# C_2016402EN.01001702.xml

| 31.10.2016 | EN | Official Journal of the European Union | C 402/17 |
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31.10.2016

EN

Official Journal of the European Union

C 402/17

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Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León (España) lodged on 2 August 2016 — Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) v José Blanco Marqués

(Case C-431/16)

(2016/C 402/20)

Language of the case: Spanish

Referring court

Referring court

Tribunal Superior de Justicia de Castilla y León

Parties to the main proceedings

Parties to the main proceedings

Applicants: Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS)

Applicants:

Defendant: José Blanco Marqués

Defendant:

Questions referred

Questions referred

| 1) | Is a rule of national law, such that contained in Article 6.4 of Royal Decree 1646/1972 of 23 June, which establishes that the 20 % supplement to the regulatory base for pensioners who have a total permanent incapacity to perform their normal occupation and who are over 55 years old ‘shall be suspended during the period in which the worker obtains employment’, to be regarded as a rule to prevent overlapping within the meaning of Article 12, Article 46a, Article 46b and 46d of Regulation No 1408/71 (1) and Articles 5, 53, 54 and 55 of Regulation No 883/2004, (2) in view of the fact that the Spanish Supreme Court has held that the incompatibility established in that role of national law applies not only to employment but also to receipt of a retirement pension? |
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1)

Is a rule of national law, such that contained in Article 6.4 of Royal Decree 1646/1972 of 23 June, which establishes that the 20 % supplement to the regulatory base for pensioners who have a total permanent incapacity to perform their normal occupation and who are over 55 years old ‘shall be suspended during the period in which the worker obtains employment’, to be regarded as a rule to prevent overlapping within the meaning of Article 12, Article 46a, Article 46b and 46d of Regulation No 1408/71 (1) and Articles 5, 53, 54 and 55 of Regulation No 883/2004, (2) in view of the fact that the Spanish Supreme Court has held that the incompatibility established in that role of national law applies not only to employment but also to receipt of a retirement pension?

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| 2) | If the answer to the previous question is in the affirmative, are Article 46a(3)(a) of Regulation No 1408/71 and Article 53(3)(a) of Regulation No 883/2004 to be interpreted as meaning that a rule to prevent the overlapping of the benefit at issue and a pension from another European Union State or Switzerland may be applied only if there is a rule of national law of the rank of statute that expressly provides that Social Security invalidity, old-age or survivors’ benefits, such as that at issue here, are incompatible with benefits or income acquired abroad by the beneficiary? Or may the rule to prevent overlapping be applied to pensions from another European Union State or Switzerland, in accordance with Article 12 of Regulation No 1408/71 and Article 5 of Regulation No 883/2004, even when there is no express legal provision, but when the national case-law has adopted an interpretation which supposes that the benefit at issue is incompatible with a retirement pension under Spanish law? |
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2)

If the answer to the previous question is in the affirmative, are Article 46a(3)(a) of Regulation No 1408/71 and Article 53(3)(a) of Regulation No 883/2004 to be interpreted as meaning that a rule to prevent the overlapping of the benefit at issue and a pension from another European Union State or Switzerland may be applied only if there is a rule of national law of the rank of statute that expressly provides that Social Security invalidity, old-age or survivors’ benefits, such as that at issue here, are incompatible with benefits or income acquired abroad by the beneficiary? Or may the rule to prevent overlapping be applied to pensions from another European Union State or Switzerland, in accordance with Article 12 of Regulation No 1408/71 and Article 5 of Regulation No 883/2004, even when there is no express legal provision, but when the national case-law has adopted an interpretation which supposes that the benefit at issue is incompatible with a retirement pension under Spanish law?

| 3) | If the answer to the previous question supports application of the Spanish rule to prevent overlapping (as developed by case-law) to the case at issue, even failing any express law concerning benefits or income acquired abroad, is the 20 % supplement, which, under Spanish Social Security legislation, is received by workers who are recognised as having total permanent incapacity to perform their normal occupation and are over 55 years old, as has been described, to be considered the same as or different from a retirement pension under the Swiss Social Security system? Does the definition of the various branches of Social Security in Article 4 (1) of Regulation No 1408/71 and Article 3(1) of Regulation No 883/2004 have Community scope or must the definition given by the national legislation be followed for every specific benefit? If the definition has Community scope, is the 20 % supplement to the regulatory base of the total permanent incapacity benefit, which is the subject matter of these proceedings, to be regarded as an invalidity benefit or an unemployment benefit, in light of the fact that it supplements the pension for total permanent incapacity to perform the normal occupation owing to the difficulty people more than 55 years old have in finding other employment, so that payment of that supplement is suspended if the beneficiary does work? |
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3)

If the answer to the previous question supports application of the Spanish rule to prevent overlapping (as developed by case-law) to the case at issue, even failing any express law concerning benefits or income acquired abroad, is the 20 % supplement, which, under Spanish Social Security legislation, is received by workers who are recognised as having total permanent incapacity to perform their normal occupation and are over 55 years old, as has been described, to be considered the same as or different from a retirement pension under the Swiss Social Security system? Does the definition of the various branches of Social Security in Article 4 (1) of Regulation No 1408/71 and Article 3(1) of Regulation No 883/2004 have Community scope or must the definition given by the national legislation be followed for every specific benefit? If the definition has Community scope, is the 20 % supplement to the regulatory base of the total permanent incapacity benefit, which is the subject matter of these proceedings, to be regarded as an invalidity benefit or an unemployment benefit, in light of the fact that it supplements the pension for total permanent incapacity to perform the normal occupation owing to the difficulty people more than 55 years old have in finding other employment, so that payment of that supplement is suspended if the beneficiary does work?

| 4) | If the two benefits are considered to be of the same kind and considering that contribution periods in another State have not been taken into account for the determining of either the amount of the Spanish incapacity pension or its supplement, is the 20 % supplement to the regulatory base of the Spanish total permanent incapacity pension to be regarded as a benefit to which the rules to prevent overlapping are applicable, inasmuch as its amount does not depend on the length of periods of insurance or residence, within the meaning of Article 46b, third indent, of Regulation No 1408/71 and Article 54(2)(a) of Regulation No 883/2004? May the rule to prevent overlapping be applied even though that benefit is not listed in Part D of Annex IV to Regulation No 1408/71 or in Annex IX of Regulation No 883/2004? |
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4)

If the two benefits are considered to be of the same kind and considering that contribution periods in another State have not been taken into account for the determining of either the amount of the Spanish incapacity pension or its supplement, is the 20 % supplement to the regulatory base of the Spanish total permanent incapacity pension to be regarded as a benefit to which the rules to prevent overlapping are applicable, inasmuch as its amount does not depend on the length of periods of insurance or residence, within the meaning of Article 46b, third indent, of Regulation No 1408/71 and Article 54(2)(a) of Regulation No 883/2004? May the rule to prevent overlapping be applied even though that benefit is not listed in Part D of Annex IV to Regulation No 1408/71 or in Annex IX of Regulation No 883/2004?

| 5) | If the answer to the previous question is in the affirmative, is the rule in Article 46a(3)(d) of Regulation No 1408/71 and Article 53(3)(d) of Regulation No 883/2004, according to which the Spanish Social Security benefit could be reduced only ‘within the limit of the amount of the benefits payable under the legislation’ of another State, in this case Switzerland? |
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5)

If the answer to the previous question is in the affirmative, is the rule in Article 46a(3)(d) of Regulation No 1408/71 and Article 53(3)(d) of Regulation No 883/2004, according to which the Spanish Social Security benefit could be reduced only ‘within the limit of the amount of the benefits payable under the legislation’ of another State, in this case Switzerland?

| 6) | If the two benefits are considered to be of different kinds and given that Switzerland appears to apply no rule to prevent overlapping, under Article 46c of Regulation No 1408/71 and Article 5 of Regulation No 883/2004, may the whole reduction be applied to the 20 % supplement to the Spanish total permanent incapacity pension or must the reduction be made on a split or pro-rata basis? In either case, must the limit referred to in Article 46a(3)(d) of Regulation No 1408/71 and Article 53(3)(d) of Regulation No 883/2004, according to which the Spanish Social Security benefit may be reduced only ‘within the limit of the amount of the benefits payable under the legislation’ of another State, in this case Switzerland, be applied? |
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6)

If the two benefits are considered to be of different kinds and given that Switzerland appears to apply no rule to prevent overlapping, under Article 46c of Regulation No 1408/71 and Article 5 of Regulation No 883/2004, may the whole reduction be applied to the 20 % supplement to the Spanish total permanent incapacity pension or must the reduction be made on a split or pro-rata basis? In either case, must the limit referred to in Article 46a(3)(d) of Regulation No 1408/71 and Article 53(3)(d) of Regulation No 883/2004, according to which the Spanish Social Security benefit may be reduced only ‘within the limit of the amount of the benefits payable under the legislation’ of another State, in this case Switzerland, be applied?

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(1)  Regulation (EEC) 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 (OJ 1971 L 149, p. 2).

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(2)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland) (OJ 2004 L 166, p. 1).

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