OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 15 FEBRUARY 1978

My Lords,

Of these cases, one, Case 83/77, the Naselli case, comes to the court by way of a reference for a preliminary ruling by the Tribunal du Travail of Brussels; the other two, Cases 98/77 and 105/77, the Schaap and Kersjes cases, come to the Court by way of references for preliminary rulings by the Centrale Raad van Beroep of the Netherlands. All three raise problems akin to those with which the Court had to deal recently in Cases 22/77 and 37/77, the Mura and Greco cases [1977] ECR 1699 and 1711. But it would, in my opinion, be an oversimplification to say that the rulings of the court in those cases can, without qualification, be applied to these.

Before I seek to explain why that is so, I should I think recall that both the Italian Government and the Commission invited the Court to reconsider its rulings in the Mura and Greco cases on a number of grounds that had already been the subject of consideration in those cases. Thus it was submitted that the interpretation given by the court to Article 12 (2) of Regulation No 1408/71 opens the way for Member States to achieve by means of their own legislation precisely the result that the Court has held that it was not open to the Council to achieve by means of Article 46 (3); that that interpretation must conduce to lack of uniformity as between the treatment of migrant workers in Member States that have national antiduplication provisions and those that do not have them and constitutes an incentive to Member Sutes that do not have such provisions to introduce them; and that, in a case where anti-duplication provisions contained in the legislation of several Member States prima facie apply, it leads to problems as to which is to prevail. Emphasis was also placed on the wording of the second sentence of Article 12 (2), which refers to benefits awarded ‘in accordance with Articles 46, etc.’ and not to benefits acquired ‘by virtue of’ those Articles.

I hope, my Lords, that I shall be acquitted of discourtesy to the Iulian Government and to the Commission if I say that, on those points, there is nothing that I can usefully add to what I said in my Opinion in the Mura and Greco cases, save this. In that Opinion I expressed my agreement with the view recorded in a Note prepared by the Secretariat of the Advisory committee on social Security for Migrant Workers that there might be a lacuna in Article 7 of Regulation No 574/72, in that that Article did not resolve problems arising from the simultaneous incidence of different national ami-duplication provisions except where Article 12 (2) of Regulation No 1408/71 applied. That was, however, because I had deduced from earlier Judgments of the Court (in particular the Judgment in Case 34/69 the Duffy case [1969] ECR 597) that the first sentence of Article 12 (2) had no application where an antiduplication provision contained in a Member State's legislation applied by its own force not only in relation to other benefits conferred by that Member Sute's own legislation but also in relation to benefits conferred by the legislation of other Member States. The Court in the Mura and Greco cases held that, in that respect, I was wrong (see paragraph 14 of the Judgment in the Mura case and paragraph 10 of the Judgment in the Greco case). It appears to me to follow that Article 7, and in particular paragraph 1 (a) thereof, applies in all cases where there are competing national anti-duplication provisions, so as to solve the problems to which that situation may give rise, problems which caused the commission, Your Lordships remember, particular anxiety.

I think it convenient to deal with the present three cases in reverse order, that is to say suiting with the Kersjes case and ending with the Naselli case.

Kersjes is the maiden name of the widow of the late E.J. Boerboom. I shall refer to her as ‘Mrs Boerboom’. She was bom on 1 January 1909, so that she is now 69. Her husband was born in 1905 and died on 17 April 1973. At the time of his death they were resident in the Netherlands and she still resides there. I infer from what we were told that he had worked for most of his life in the Netherlands, but he had, between 1958 and 1970, worked for substantial periods in the Federal Republic of Germany. As a result Mrs Boerboom acquired, following his death, pension rights both in the Netherlands and in Germany. Those rights were, in both countries, of a complex nature, but I need not trouble Your Lordships with the details of them. The present proceedings relate only to the computation of her rights under the ‘Algemene Weduwen- en Wezenwet’, the Dutch general statute on widows' and orphans' benefits, commonly referred to as the ‘AWW’, for the period of two months from 1 August to 30 September 1973. The amount at stake in those proceedings in thus small, but the question of principle to which they give rise in of far-reaching importance.

On 7 March 1975 the Dutch social security institution responsible for quantifying Mrs Boerboom's rights under the AWW, the ‘Bestuur der Sociale Verzekeringsbank’ which I shall call ‘the BSV’, issued a decision setting out its detailed computations for the period April — December 1973. In so doing, it took account of her German pension rights and applied Article 46 of Regulation No 1408/71, including Article 46 (3). Mrs Boerboom was entitled to her pension under the AWW by virtue of Dutch law alone. Benefits under the AWW are not dependent on the length of insurance periods; in other words they are of ‘Type A’.

On 6 May 1976 the Raad van Beroep of Arnhem, to which Mrs Boerboom had appealed against that decision, delivered Judgment holding, on the authority of the Judgment of this Court in Case 24/75 Petroni v ONPTS [1975] ECR 1149, that Article 46 (3) ought not to have been applied. It accordingly allowed Mrs Boerboom's appeal in respect of the period 1 August — 30 September 1973, that being, as I understand the case, the only period for which the application of Article 46 (3) operated to reduce her rights under the AWW.

Against that Judgment of the Raad van Beroep of Arnhem, the BSV now appeals to the Centrale Raad van Beroep. In argument before that Court the BSV conceded that Article 46 (3) could not be applied, but submitted that the pension to which Mrs Boerboom is entitled under the AWW was to be reduced, having regard to her German pension rights, by virtue of anti-duplication provisions contained in a Dutch Royal Decree made under Article 30 (a) of the AWW itself. As I understand the submissions of the BSV, the application of those provisions would, in this case, reduce Mrs Boerboom's pension more than would the application of Article 46 (3). (See Annex F to the Order for Reference, page 4).

Such are, in outline, the circumstances in which the Centrale Raad van Beroep has referred to this Court the following question:

‘Where a worker has been subject to the legislation of two or more Member States, to what extent do Articles 12 (2) and 46 of Regulation No 1408/71 prevent the application of national rules against the overlapping of benefits such as those in force pursuant to the AWW, where entitlement to benefit has been obtained pursuant to national legislation alone without its being necessary to apply the Regulation for that purpose?’

The Centrale Raad van Beroep's Order for Reference was made on 9 August 1977 and is accompanied by an explanatory letter from its President dated 23 August 1977. The Judgments of this Court in the Mura and Greco cases were delivered on 13 October 1977. By each of those Judgments the Court ruled that:

‘So long as a worker is receiving a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not prevent the national legislation, including the national rules against the overlapping of benefits, from being applied to him in its entirety, provided that if the application of such national legislation proves less favourable than the application of the rules regarding aggregation and apportionment those rules must, by virtue of Article 46 (1) of Regulation No 1408/71, be applied.’

The important question that seems to me to arise here is whether the latter part of that ruling, where reference is made to ‘the rules regarding aggregation and apportionment’, is appropriately formulated.

Your Lordships will remember that in the Petrani case, and again in Case 62/76 the Strebt case [1977] ECR 211, I pointed out that a person who, as regards social security benefits of a kind to which Article 46 applies, is affected by the legislation of two or more Member States may, in each of those States, be in any one of four possible situations:

(1)	That person may be entitled to a pension in that Sute without recourse to aggregation under Community law and find that the application to his case of the processes of aggregation and apportionment prescribed by that law would yield him a lesser pension; or

(2)	He may be entitled to a pension in that Sute without recourse to such aggregation, but be entitled to a greater pension there through the processes of aggregation and apportionment; or

(3)	He may be entitled to a pension in that Sute only through the processes of aggregation and apportionment; or

(4)	He may be entitled to no pension in that Sute even if the processes of aggregation and apportionment are applied to his case.

One may, for present purposes, disregard the fourth situation.

Paragraph 1 of Article 46 relates to a case where a person is entitled to a pension in the Member Sute concerned without recourse to aggregation, i.e. to a person who finds himself either in the first or in the second situation. It provides in effect that such a person is prima fade entitled to whichever is the higher of the pension ascertained by reference to the legislation of that Member Sute alone (sometimes conveniently referred to as ‘the autonomous amount’ of benefit) or the pension ascertained by applying the processes of aggregation and apportionment (sometimes referred to as ‘the apportioned amount’ of benefit). I say prima facie, because of the existence of Article 46 (3).

Paragraph 2 of Article 46 deals with the case of a person who can only obtain a pension in the Member Sute concerned through the processes of aggregation and apportionment, i.e. a person in the third situation I have described. It provides in effect that, in such a case, those processes shall be applied. In so doing, it defines, by paragraph 2 (a), ‘the theoretical amount of benefit’ as being the ‘amount of benefit that the person concerned could claim if all the insurance periods completed under the legislation of the Member States to which he has been subject had been completed in the Sute in question’ or, if under the legislation of that Sute the amount of the benefit does not depend on the length of insurance periods, then the amount of that benefit

Article 46 (3) (OJ L 149 of 5. 7. 1971, p. 2) is in these terms:

‘The person concerned shall be entitled to the total sum of the benefits calculated in accordance with the provisions of paragraphs 1 and 2, within the limit of the highest theoretical amount of benefit calculated according to paragraph 2 (a).

Where the amount referred to in the preceding subparagraph is exceeded, any institution applying paragraph 1 shall adjust its benefit by an amount corresponding to the proportion which the amount of the benefit concerned bears to the total of the benefits determined in accordance with paragraph 1.’

What the Court decided in the Petroni and Strehl cases was that Article 46 (3) was incompatible with Article 51 of the Treaty to the extent to which it provided for a reduction in the amount of a benefit the right to which had been acquired under national law alone. The Court did not decide that Article 46 (3) was otherwise invalid.

Leaving aside the anti-duplication provisions contained in the Dutch Royal Decree, Mrs Boerboom found herself in the Netherlands, as respects the period here in question, in the first of the situation that I have described. It was suggested on behalf of the BSV that perhaps, in the case of a benefit of Type A, its ‘autonomous amount’ could never come within Article 46 (1) since the autonomous amount of a benefit is there defined as being ‘the amount of benefit corresponding to the total length of the insurance periods to be taken into account’. That interpretation of Article 46 (1) would however involve attributing to its authors an intention that a benefit of Type A should always be subjected to the processes of aggregation and apportionment, an intention that would be inconsistent with their purpose as set out, in the preamble to Reguiation No 1408/71, in these terms:

‘Whereas the provisions for co-ordination adopted for the implementation of Article 51 of the Treaty must guarantee to workers who move within the Community their accrued rights and advantages whilst not giving rise to unjustified overlapping of benefits;

Whereas to this end, persons entitled to benefits for invalidity, old age and death (pensions) must be able to enjoy all the benefits which have accrued to them in the various Member States; whereas, however, in order to avoid unjustified overlapping of benefits, which could result in particular from the duplication of insurance periods and other periods treated as such, it is necessary to limit the benefits to the greatest amount which would have been due to a worker from one of these States if he had spent all his working life there;’

The fact is that, in relation to benefits of Type A Article 46 is loosely drafted. Thus paragraph 2 (b) of it, which unquestionably applies to them, refers to insurance periods completed under the legislation giving rise to them.

The effect of Article 46, according to its tenor, was thus to confer on Mrs Boerboom a right to her benefit under the AWW undiminished except as provided by Article 46 (3). Such diminution could not go further than necessary to ensure that her total benefits did not exceed the ‘highest theoretical amount of benefit’, which here was the German. There could be no diminution of it by the process of aggregation and apportionment, nor, because of the second sentence of Article 12 (2), could there be any diminution of it under any national anti-duplication provision.

It seems to me that in such a case as this two distinct principles come into play.

The first, which is the principle on which the decisions in the Petroni and Strehl cases rest, is that Article 51 of the Treaty does not empower the Council to legislate so as to take away from migrant workers rights that they have under national law.

The second principle is that of the primacy of Community law, by virtue of which national legislation cannot take away rights conferred by Community law.

The result, in my opinion, is that a person in Mrs Boerboom's position is entitled, in each Member Sute, to whichever is the greater of, on the one hand, the benefit that he can claim under the legislation of that Member Sute alone, due account being taken of any anti-duplication provisions that it may contain, and, on the other hand, the benefit that he can claim under Reguiauon No 1408/7 due account being taken of Article 46 (3), but without limitation by reference to the rules regarding aggregation and apportionment. I should add, in view of a point raised by the Commission, that, in my opinion, having regard to the decision of the court in Case 32/77 the Giuliani case [1977] ECR 1857, that result must follow wherever the person concerned is resident.

I am therefore of the opinion that, in answer to the question referred to the Court by the Centrale Raad van Beroep, Your Lordships should rule that so long as a person is receiving a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not prevent the national legislation, including any national rules against the overlapping of benefits, from being applied to him in its entirety, provided that, if the application of such national legislation proves less favourable than the application of the rules of Community law, the latter rules must be applied.

The question referred to the Court by the Centrale Raad van Beroep in the Schaap case is in terms identical to its question in the Kersjes case, and should in my opinion receive the same answer. There too the application of the rules of Community law in their entirety would be more favourable than the application only of the relevant Dutch legislation with its anti-duplication provisions, but for different reasons.

Mr Schaap, who is Jewish, was bom on 20 December 1914. He worked and was compulsorily insured for social security purposes in Germany from 1929 to 1933. After having had to leave Germany in 1933, he worked in the Netherlands from 1934 to 1972, with an interruption from 1940 to 1945. In June 1972 he gave up work because of sickness, he received Dutch sickness benefit (under the ‘Ziektewet’) for the maximum period of one year. Thereafter, i.e. from June 1973, he became entitled to an invalidity pension under the Dutch legislation on insurance against incapacity for work (the ‘Wet op arbeidsongeschiktheidsverzekering’ or ‘WAO’). He became entitled to that pension by virtue of Dutch law alone. Benefits under the WAO are, like those under the AWW, of Type A. At the same time Mr Schaap became entitled to a German invalidity pension (‘Erwerosunfähigkeitsrente’). The amount of this pension, which is of Type B, is substantially greater than it would have been had it reflected only the compulsory contributions paid by Mr Schaap in Germany from 1929 to 1933, because Mr Schaap had, as he was entitled to do under German legislation of 1970 in favour of victims of Nazi persecution (the ‘Gesetz zur Änderung und Ergänzung der Vorschriften Uber die Wiedergutmachung NS-Unrechts in der Sozialversicherung’), voluntarily paid contributions for back periods during which he had been prevented from working and being insured in Germany.

The Dutch social security institution responsible for quantifying Mr Schaap's pension was the ‘Bestuur van de Bedrijfsvereniging voor Bank- en Verzekeringswezen, Groothandel en Vrije Beroepen’ (Board of the Trade Association for Banking, Insurance, the Wholesale Trade and the Professions), which I shall call for short the ‘BBB’. On 18 March 1975 it wrote to Mr Schaap notifying him of a decision under which it had, in purported application of Article 46 (3), reduced his pension under the WAO by the full amount of his German pension, the ‘highest theoretical amount of benefit’ being, in his case, the Dutch.

Against that decision Mr Schaap appealed to the Raad van Beroep of Amsterdam, contending that so much of his German pension as was attributable to his voluntary contributions was a benefit to which he was entitled under a scheme for victims of war and therefore, by virtue of Article 4 (4) of Regulation No 1408/71, outside the scope of that Regulation, so that it should not have been taken into account in applying Article 46 (3). In the alternative Mr Schaap claimed that the BBB should be ordered to reimburse him the total amount he had paid in voluntary contributions in Germany (DM 2661) and also the fees of the German lawyer who had advised him and acted for him in connexion with the payment of them (DM 3416.10).

The Raad van Beroep rejected Mr Schaap's appeal, holding on the one hand that the voluntary element in his German pension did not fall within Article 4 (4) and, on the other hand, that it had no jurisdiction to order the reimbursement he claimed.

It is from that Judgment of the Raad van Beroep of Amsterdam that Mr Schaap now appeals to the Centrale Raad van Beroep.

Soon after his appeal was lodged the BBB in fact reimbursed him the amount of his German voluntary contributions and of his German lawyer's fees. The relevant correspondence makes it clear that that was done ex gratia and Mr Schaap, who appeared in person at the hearing, told us then that he had expressly accepted the reimbursement without prejudice to his rights. Indeed the BBB has not suggested, either to the Centrale Raad van Beroep or to this Court, that that reimbursement had any effect on Mr Schaap's rights. Quite certainly, in my opinion, it cannot have affected his rights under Community law. It is not of course for me to hazard an opinion as to whether it can have had any effect in Dutch law.

Before the Centrale Raad van Beroep the BBB conceded, having regard to the decision of this Court in the Petroni case, that Article 46 (3) ought not to have been applied. But it submitted that precisely the same reduction in Mr Schaap's pension fell to be made under a Dutch Royal Decree of 22 December 1972 adopted under Article 52 of the WAO: that Decree required the deduction fom his Dutch pension of the full amount of his German pension.

The Centrale Raad van Beroep had no hesitation in rejecting Mr Schaap's contention based on Article 4 (4) of Regulation No 1408/71. As to that, it considered that the answer was too clear for any reference to this Court to be warranted. But it thought it right to refer to this Court the question as to the applicability of national anti-duplication provisions the terms of which I have already indicated.

In this Court the Commission has pointed out that Mr Schaap's voluntary contributions were of a kind referred to in Article 46 (2) of Regulation No 574/72 and that, by virtue of that provision, so much of Mr Schaap's German pension as was earned by those contributions (i.e. the greater pan of it) should not have been taken into account for the purposes of Article 46 (3) of Regulation No 1408/71. The BBB has not disputed that view.

It thus appears that the reduction in Mr Schaap's Dutch pension permitted by Article 46 (3) is smaller than the reduction in it permitted by the Dutch Royal Decree. In those circumstances Mr Schaap is, in my opinion, entitled in the Netherlands to a pension computed in accordance with Community law, without regard to the Dutch Royal Decree.

The Naselli case differs from the other two, not only in that it comes from Belgium, but also in that it raises questions, not under Regulations Nos 1408/71 and 574/72, but under the old Regulations Nos 3 and 4, which still apply to benefits die right to which accrued before 1972.

Regulation No 3 does not contain provisions like Articles 46 (1) and (3) of Regulation No 1408/71. The provisions of Regulation No 3 corresponding to Articles 45 and 46 of Regulation No 1408/71 are Articles 27 and 28. It has been established by a long line of decisions of this Court that those Articles have no application at all in a case where a migrant worker is entitled in a Member Sute to a greater pension by virtue of the legislation of that State alone than he could obtain through the processes of aggregation and apportionment. (I collected the earlier authorities to that effect in my Opinion in Case 191/73 the Niemann case [1974] ECR 571. To those one may add the Judgment in the Niemann case itself and that in Case 50/75 the Massonet case [1975] ECR 1473, paragraph 22 of which is particularly in point).

The provision of Regulation No 3 (JO No 30 of 16.12.1958) corresponding to Article 12 (2) of Regulation No 1408/71 is Article 11 (2), the French text of which is, so far as material, as follows (there is, as your Lordships know, no authentic English text of Regulation No 3):

‘Les clauses de reduction ou de suspension prévues par la législation d'un État membre, en cas de cumul d'une prestation avec d'autres prestations de sécurité sociale … sont opposables au bénéficiaire, même s'il s'agit de prestations acquises sous un régime d'un autre État membre … Toutefois, cette règle n'est pas applicable aux cas où des prestations de même nature sont acquises conformément aux dispositions des articles 26 et 28 du présent règlement.’

(Article 26 of Regulation No 3, Your Lordships remember, was the provision, corresponding to Article 40 of Regulation No 1408/71, assimilating the method of computing invalidity pensions, in the case of a worker who had been subject to legislations of which one at least was of Type B, to the method of computing old age and ‘death’ pensions).

Mr Naselli was born on 10 January 1926. He has spent parts of his working life in Italy, parts of it in Belgium. He also appears to have suffered periods of unemployment. He worked, intermittently, on the land in Italy between 1940 and 1947, as a miner in Belgium between 1947 and 1949, in Italy on the land again between 1949 and 1951, back as a miner in Belgium between 1951 and 1953, again in Italy between 1953 and 1962, and lastly in Belgium, in various jobs, between 1963 und 1965. He now lives in Belgium.

In 1958 he became incapable of work owing to illness. In consequence he was awarded, as from 1 October 1958, an Italian invalidity pension, the amount of which was computed by aggregating his periods of insurance in Belgium and in Italy and then applying the process of apportionment. There was some discussion before this Court as to how that came about, since Regulation No 3 did not enter into force until 1 January 1959. Almost certainly, it came about because of a Protocol between the Belgian and Italian Governments whereby there were brought into force as between those two countries, as from 1 January 1958, a number of provisions of the European Convention on social security for migrant workers signed at Rome on 9 December 1957. That was the Convention on which Regulation No 3, as its preamble recites, was based. At all events the Italian pension so awarded to Mr Naselli has continued to be paid to him ever since.

For reasons that it is not, I think, necessary to go into, the incapacity that befell Mr Naselli in 1958 was not of a kind such as to entitle him to any benefit in Belgium. But in 1965 he became ill again. As a result he became entitled in Belgium to sickness benefit for a year and thereafter, Le. from21 June 1966, to a Belgian invalidity pension. This pension is of Type A and Mr Naselli is entitled to it by virtue of Belgian law alone. None the less the competent Belgian social security institution, the Institut National d'Assurance Maladie-Invalidité (or ‘INAMI’), computed it in accordance with the provisions of Article 28 of Regulation No 3 — understandably enough because the case law of the Court on Regulation No 3 had, in 1966, hardly been developed. Thus the INAMI awarded Mr Naselli an apportioned Belgian pension plus a ‘supplement’ under paragraph (3) of Article 28 (a provision that this Court subsequently held, in the Niemann case, to be void) designed to make up the difference between the aggregate of his apportioned Belgian and Italian pensions and his full Belgian pension. The circumstance that the INAMI so proceeded has at least the merit of revealing to us that the full amount of Mr Naselli's Belgian pension less the amount of his Italian pension is greater than the amount of his apportioned Belgian pension.

I should perhaps parenthetically mention that, at the hearing before this Court, it was submitted on behalf of the INAMI that Mr Naselli did owe his Belgian pension to Regulation No 3 inasmuch as formerly his rights in Belgium would have been governed by the Convention between Belgium and Italy on Social Insurance signed at Brussels on 30 April 1948, Article 14 (3) of which provided that invalidity arising less than one year after the arrival of the worker concerned in either country should not entitle him to cash benefits in that country. That submission seemed to me to contradict what we were told on behalf of the INAMI itself about the Protocol to which I have referred and, moreover, to be doubtfully founded in fact: there is nothing before this Court to show that Mr Naselli arrived in Belgium less than a year before his illness supervened in 1965. At all events the Order for Reference made by the Tribunal du Travail of Brussels is framed on the footing that Mr Naselli was entitled to his Belgian pension by virtue of Belgian law alone, so that that is the basis on which this Court must deal with the case.

As from 1 January 1969 the amount of Mr Naselli's Iulian pension was increased. Upon hearing of this, rather belatedly, the INAMI recomputed his Belgian pension and instructed the Caisse Auxiliaire d'Assurance Maladie-Invalidité (or ‘CAAMI’), which seems to be a subordinate institution directly responsible for handling Mr Naselli's case, to recover from him a sum of Bfrs 45998 allegedly overpaid in respect of his Belgian pension between 1 January 1969 and 30 June 1973.

It is by way of appeal against that requirement that Mr Naselli has brougth the present proceedings before the Tribunal du Travail. The nominal defendant in those proceedings is the CAAMI, but the INAMI has intervened in them and everything points to its being the real defendant.

The INAMI concedes that Article 28 of Regulation No 3 is here inapplicable. Its case rests on Article 70 (2) of the Belgian statute of 9 August 1963 under which sickness and invalidity benefits are payable. That provision, as amended in 1971, reads as follows:

‘Les prestations prévues par la présente loi ne sont accordées que dans les conditions fixées par le Roi, lorsque le dommage pour lequel il est fait appel aux prestations est couvert par le droit commun ou par une autre législation. Dans ces cas, les prestations de l'assurance ne sont pas cumulées avec la réparation résulunt de l'autre législation; elles sont à charge de l'assurance dans la mesure où le dommage couvert par cette législation n'est pas effectivement réparé. Dans tous les cas, le bénéficiaire doit recevoir des sommes au moins équivalentes au montant des prestations de l'assurance. Pour l'application du présent paragraphe, le montant des prestations accordées par l'autre législation est le montant brut diminué du montant des cotisations de sécurité sociale prélevé sur ces prestations.

L'organisme assureur est subrogé de plein droit au bénéficiaire. La convention intervenue entre le débiteur de la réparation et le bénéficiaire n'est pas opposable à l'organisme assureur sans l'accord de ce dernier.’

The INAMI contends that the effect of that provision, as a matter of Belgian law, is to require the amount of Mr Naselli's Italian pension to be deducted from the amount of his Belgian pension before the latter is paid to him.

On behalf of Mr Naselli it is contended, first, that Article 11 (2) of Regulation No 3 does not permit such a deduction and, in the alternative, that, if it does, Article 9 (2).of Regulation No 4 applies and renders the permitted deduction only partial. (Article 9 of Regulation No 4 corresponds to Article 7 of Regulation No 574/72, to which I referred earlier).

Such are the circumstances in which the Tribunal du Travail has referred to this Court the following questions:

‘Should Article 11 (2) of Regulation No 3 be interpreted as meaning that the plaintiff, having regard to the provisions of Article 70 (2) of the Statute of 9 August 1963, could not draw the full amount of his Belgian pension as well as his Iulian pension, although his right to his Belgian pension was acquired independently of the Regulations of the European Economic Community, that is, in other words, in the Belgian institution authorized or not to apply the national anti-duplication provisions in conjunction with Article 11 (2) of Regulation No 3 for the purpose of reducing the pension paid by virtue of the Belgian legislation alone?

Does Article 9 (2) of Regulation No 4 apply only to a case where the benefit that is to be reduced because it overlaps with another benefit or other income, is awarded by virtue of aggregation of insurance periods, that is, in other words, did the Belgian institution have to take into account a fraction and not the whole of the Iulian pension for the purpose of reducing the Belgian benefit although that benefit was acquired without having to apply Regulations of the European Economic Community?’

The Commission, in its written observations to this Court, took two preliminary points, which it accepted were points of Belgian law rather than of Community law. First it questioned whether, in formulating against Mr Naselli a claim going back to 1 January 1969, the INAMI had respected the relevant period of limitation as laid down by Belgian legislation. At the hearing Counsel for the Commission expressed herself as being satisfied by the answer then given on behalf of the INAMI on that point. I confess that there has lingered in my mind a doubt as to whether she was right to do so. Secondly the Commission questioned whether Article 70 (2) of the Belgian statute of 9 August 1963 really was an anti-duplication provision of the kind described in Article 11 (2) of Regulation No 3. This, at the instigation of the Court itself, led to lively argument at the hearing. There again I was left in doubt as to whether the answer given by Counsel for the INAMI was adequate, particularly as he relied on decisions of the Belgian Conseil d'État which seemed to me distinguishable. But, of course, both those points are for the Belgian Courts, and I shall not take up Your Lordships' time discussing them further (though one can envisage that the second of them could give rise to a further reference to this Court by a Belgian Court).

I revert to the actual questions referred to us by the Tribunal du Travail of Brussels.

On the first of those questions the argument put forward on behalf of Mr Naselli was essentially based on the Judgments of this Court in the Duffy case and in Case 184/73 the Kaufmann case [1974] ECR 517. It was submitted that those cases were authority for the proposition that Article 11 (2) permitted the application of a national anti-duplication provision only in a case where the right to the relevant benefit was acquired by virtue of Community law.

In my opinion, as is shown by the Mura and Greco cases (and indeed by the earlier dicta of the Court in Case 12/67 Guissart v Belgium [1967] ECR 425 at p. 434, in Case 140/73 the Mancuso case [1973] ECR 1449 at p. 1456 and in the Massonet case [1975] ECR at p. 1484) that proposition is too widely stated.

It is in my opinion important to bear in mind that both in the Duffy case and in the Kaufmann case the national antiduplication provision in question was one which, by its own force, i.e. as a matter of the law of the Member Sute whose legislation contained it (France in the Duffy case, the Netherlands in the Kaufmann case), applied only in relation to benefits conferred by the legislation of that Member Sute and not in relation to benefits conferred by foreign legislation. The Duffy case is authority for the proposition that, in such circumstances, a social security institution liable to pay a benefit by virtue of the legislation of that Member Sute alone may not invoke Article 11 (2) to extend the scope of the anti-duplication provision in question so as to render it applicable in relation to a benefit to which the person concerned is entitled in another Member Sute. That proposition is but a particular instance of the application of the general rule that Community law cannot be invoked to take away from a person that to which he is entitled under the law of a Member State alone. The Kaufmann case is authority for the converse proposition that, where a social security institution is liable to pay a benefit only by virtue of Community law, the effect of the first sentence of Article 11 (2), unless the second sentence of it applies, is to extend the scope of the national anti-duplication provision so that it applies also in relation to benefits payable in other Member States. That of course is an instance of the application of the general principle that, where Community law confers a benefit, it may limit the extent of that benefit.

The circumstances here are different, and similar to those in the Mura and Greco cases, in that the INAMI's contentions rest on the view (which may or may not be right) that Article 70 (2) of the Belgian statute in question is an anti-duplication provision of the widest scope applying, as a matter of Belgian law, as well in relation to benefits payable in other countries as in relation to benefits payable in Belgium. It follows from what is said in the Judgments in the Mura and Greco cases about the first sentence of Article 12 (2) of Regulation No 1408/71 that, if that is so, the first sentence of Article 11 (2), which is so far as relevant in identical terms, must apply here. But its primary effect cannot then be more than permissive: it means that Community law does not forbid the application of Article 70 (2) in relation to Mr Naselli's Iulian pension. I think also of course that, in a case where there were competing national anti-duplication provisions, the application of the first sentence of Article 11 (2) in that manner could have the secondary effect of bringing into play Article 9 (1) of Regulation No 4 (which corresponds to Article 7 (1) (a) of Regulation No 1408/71).

In the result I am of the opinion that, in answer to the first question referred to the Court by the Tribunal du Travail of Brussels, your Lordships should rule that so long as a person is receiving a pension by virtue of national legislation alone, Article 11 (2) of Regulation No 3 does not prevent the application to that person of a provision of that legislation against the overlapping of benefits to the extent to which that provision would be applicable to him in the absence of Article 11 (2).

The Tribunal's second question relates, Your Lordships remember, to Article 9 (2) of Regulation No 4. That provision is, so far as material, in these terms:

‘Nonobstant les dispositions du paragraphe précédent et sous réserve des dispositions de la deuxième phrase du paragraphe (2) de l'article 11 du règlement, lorsque l'application des dispositions de la première phrase du paragraphe (2) de l'article 11 du règlement entraînerait la réduction ou la suspension d'une prestation d'invalidité … liquidée en vertu des dispositions de l'article 28 du règlement par l'institution d'un Etat membre, cette institution ne prend en compte, pour la réduction ou pour la suspension, qu'une fraction des prestations … entraînant la réduction ou la suspension. Cette fraction est déterminée au pro rata de la durée des périodes accomplies, conformément à l'alinéa (b) du paragraphe (1) de l'article 28 du règlement; lors du calcul du montant “pour ordre”, selon ladite disposition, la prestation ou le revenu ou la rémunération entraînant la réduction ou la suspension de la pension ne doivent pas être pris en considération.’

Notwithstanding the arguments advanced before us on behalf of Mr Naselli, it seems to me quite plain that, as was submitted both by the INAMI and by the Commission that provision only applies where the benefit in question has been awarded through the application of the processes of aggregation and apportionment. I am of the opinion that Your Lordships should so rule.