# C_2018166EN.01000802.xml

| 14.5.2018 | EN | Official Journal of the European Union | C 166/8 |
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14.5.2018

EN

Official Journal of the European Union

C 166/8

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Judgment of the Court (Tenth Chamber) of 15 March 2018 (request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS) v José Blanco Marqués

(Case C-431/16) (1)

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((Reference for a preliminary ruling - Social security for migrant workers - Regulation (EEC) No 1408/71 - Articles 12 and 46a to 46c - Benefits of the same kind - Definition - Rule against overlapping - Definition - Conditions - National rule providing for a supplement to the total permanent incapacity pension for workers of at least 55 years of age - Suspension of the supplement in the event of employment or receipt of a retirement pension))

(2018/C 166/10)

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:

Operative part of the judgment

Operative part of the judgment

| 1. | A national rule, such as that at issue in the main proceedings, pursuant to which the supplement to a total permanent incapacity pension is suspended during the period in which the beneficiary of that pension receives a retirement pension in another Member State or in Switzerland, constitutes a provision on reduction of benefit for the purposes of Article 12(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EEC) No 592/2008 of the European Parliament and of the Council of 17 June 2008. |
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1.

A national rule, such as that at issue in the main proceedings, pursuant to which the supplement to a total permanent incapacity pension is suspended during the period in which the beneficiary of that pension receives a retirement pension in another Member State or in Switzerland, constitutes a provision on reduction of benefit for the purposes of Article 12(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EEC) No 592/2008 of the European Parliament and of the Council of 17 June 2008.

| 2. | Article 46a(3)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008, must be interpreted as meaning that the concept of ‘legislation of the first Member State’ in that article is to be interpreted as including the interpretation of a provision of national law made by a supreme national court. |
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2.

Article 46a(3)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008, must be interpreted as meaning that the concept of ‘legislation of the first Member State’ in that article is to be interpreted as including the interpretation of a provision of national law made by a supreme national court.

| 3. | A supplement to a total permanent incapacity pension granted to a worker under the law of a Member State, such as that at issue in the main proceedings, and a retirement pension acquired by that same worker in Switzerland must be regarded as being of the same kind within the meaning of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008. |
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3.

A supplement to a total permanent incapacity pension granted to a worker under the law of a Member State, such as that at issue in the main proceedings, and a retirement pension acquired by that same worker in Switzerland must be regarded as being of the same kind within the meaning of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008.

| 4. | Article 46b(2)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008, must be interpreted as meaning that a national rule to prevent overlapping, such as that in Article 6 of Decreto 1646/1972 para la aplicación de la ley 24/1972, de 21 de junio, en materia de prestaciones del Régimen General de la Seguridad Social (Decree 1646/1972 on the Implementation of Law 24/1972 of 21 June 1972 concerning general social security system benefits), of 23 June 1972, is not applicable to a benefit calculated in accordance with Article 46(1)(a)(i) of that regulation when that benefit is not referred to in Annex IV, part D, to that regulation. |
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4.

Article 46b(2)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008, must be interpreted as meaning that a national rule to prevent overlapping, such as that in Article 6 of Decreto 1646/1972 para la aplicación de la ley 24/1972, de 21 de junio, en materia de prestaciones del Régimen General de la Seguridad Social (Decree 1646/1972 on the Implementation of Law 24/1972 of 21 June 1972 concerning general social security system benefits), of 23 June 1972, is not applicable to a benefit calculated in accordance with Article 46(1)(a)(i) of that regulation when that benefit is not referred to in Annex IV, part D, to that regulation.

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(1)  OJ C 402, 31.10.2016.

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