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Valentina R., lawyer
European Court reports 1978 Page 00707 Greek special edition Page 00267 Portuguese special edition Page 00273
1 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - OVERLAPPING - BENEFITS CORRESPONDING TO AN INSURANCE PERIOD BOUGHT IN VOLUNTARILY BY THE PERSON CONCERNED - APPLICATION OF ARTICLE 46 ( 2 ) OF REGULATION NO 574/72 OF THE COUNCIL
2 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - OVERLAPPING - ENTITLEMENT UNDER NATIONAL LEGISLATION ALONE - PROVISIONS FOR REDUCTION OR SUSPENSION OF BENEFIT - APPLICABILITY - POSITION UNDER COMMUNITY RULES MORE FAVOURABLE - PREFERENCE ( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 12 ( 2 ) AND 46 )
IN CASE 98/77
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ), UTRECHT , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
MAX SCHAAP , AMSTERDAM ,
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 ), AMSTERDAM ,
ON THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),
1 BY AN ORDER OF 12 JULY 1977 WHICH WAS RECEIVED AT THE COURT ON 1 AUGUST 1977 THE CENTRALE RAAD VAN BEROEP REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , FOR A PRELIMINARY RULING A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THIS QUESTION HAS BEEN RAISED IN AN ACTION CONCERNING THE CALCULATION BY THE COMPETENT NETHERLANDS INSTITUTION OF THE INVALIDITY PENSION OF A NETHERLANDS NATIONAL MR SCHAAP , THE APPELLANT IN THE MAIN ACTION , WHO HAD WORKED IN GERMANY FROM 1929 TO 1933 AND THEN IN THE NETHERLANDS .
3 MR SCHAAP AVAILED HIMSELF OF THE OPPORTUNITY AFFORDED BY GERMAN LEGISLATION RELATING TO THE VICTIMS OF NAZI PERSECUTION AND , WITH REFERENCE TO HIS PENSION INSURANCE ( INCLUDING INVALIDITY ), BOUGHT IN VOLUNTARILY THE BACK PERIOD FROM 1934 TO 1945 SO AS TO BE ABLE TO CLAIM A HIGHER GERMAN PENSION .
4 THE NETHERLANDS FUND , TAKING INTO ACCOUNT THIS GERMAN INVALIDITY PENSION , REDUCED THE AMOUNT OF THE BENEFIT PAYABLE TO MR SCHAAP UNDER NETHERLANDS LEGISLATION ON PENSION INSURANCE , IN APPLICATION OF THE NETHERLANDS ROYAL DECREE OF 22 DECEMBER 1972 , ENACTED IN IMPLEMENTATION OF ARTICLE 52 OF THE WET OP DE ARBEIDSONGESCHIKTHEIDSVERZEKERING ( LAW ON INSURANCE AGAINST INCAPACITY FOR WORK , HEREINAFTER REFERRED TO AS ' ' THE WAO ' ' ) AND WITH REFERENCE TO ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 .
5 MR SCHAAP CHALLENGED THIS DECISION CONTENDING THAT THE WHOLE OF THE GERMAN PENSION HAD WRONGLY BEEN TAKEN INTO ACCOUNT EVEN THOUGH THE LARGER PART THEREOF WAS ATTRIBUTABLE TO HIS VOLUNTARY INSURANCE .
6 THE FURTHER ARGUMENT WAS PUT FORWARD THAT THE PROVISIONS OF REGULATION NO 1408/71 AS INTERPRETED BY THE COURT IN ITS JUDGMENT OF 21 OCTOBER 1975 IN CASE 24/75 ( TERESA AND SILVANA PETRONI V OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( 1975 ) ECR 1149 ) PRECLUDE ANY REDUCTION , PURSUANT TO THE PROVISIONS OF THE NATIONAL LEGISLATION OF A MEMBER STATE , OF BENEFIT ACQUIRED SOLELY BY VIRTUE OF NATIONAL LEGISLATION WITHOUT HAVING RECOURSE TO COMMUNITY PROVISIONS .
7 THE QUESTION REFERRED TO THE COURT IS : ' ' 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 ( EEC ) NO 1408/71 PREVENT THE APPLICATION OF NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS SUCH AS THOSE IN FORCE PURSUANT TO THE WAO , WHERE ENTITLEMENT TO BENEFIT HAS BEEN OBTAINED PURSUANT TO NATIONAL LEGISLATION ALONE WITHOUT ITS BEING NECESSARY TO APPLY THE REGULATION FOR THAT PURPOSE? ' '
THE PORTION OF THE GERMAN BENEFIT ATTRIBUTABLE TO THE PERIOD FROM 1934 TO 1945
8 ARTICLE 46 ( 2 ) OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1974 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) PROVIDES THAT FOR THE PURPOSES OF ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 THE AMOUNTS OF BENEFIT CORRESPONDING TO PERIODS OF VOLUNTARY OR OPTIONAL CONTINUED INSURANCE SHALL NOT BE TAKEN INTO ACCOUNT .
9 IT IS OBVIOUS THAT BENEFITS ATTRIBUTABLE TO AN INSURANCE PERIOD WHICH HAS BEEN BOUGHT IN PURSUANT TO THE PROVISIONS OF LEGISLATION WHICH GRANTS A WORKER THE RIGHT TO BUY IN THE INSURANCE FOR THIS PERIOD ARE TO BE REGARDED AS FALLING WITHIN THIS PROVISION .
10 THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 13 OCTOBER 1977 ( CASE 37/77 , FERNANDO GRECO V FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( 1977 ) ECR 1711 ) 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 .
11 IT FOLLOWS THAT IF THE PROVISIONS OF REGULATION NO 1408/71 ARE MORE FAVOURABLE TO THE WORKER THAN NATIONAL LEGISLATION THEY MUST BE APPLIED .
COSTS
12 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT , THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
13 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY ORDER OF 12 JULY 1977 HEREBY RULES :
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 LAID DOWN BY ARTICLE 46 OF REGULATION NO 1408/71 THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED .