Opinion of the Advocate General — ECLI:EU:C:2001:582
Date: 2001-10-25
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 
1. Social security for migrant workers — Benefits — National rules against overlap­
ping — Restriction of the ceiling fixed for the overlapping of a retirement and a 
survivor's pension where a survivor's pension is payable under the regime of another 
Member State — Legislation constituting a provision on reduction within the meaning 
of Regulation No 1408/71 
(Council Regulation No 1408/71, Arts 46a and 46b) 
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SUMMARY — CASE C-107/00 
2. Social security for migrant workers — Benefits — National rules against overlap­
ping — Applicability — Limits — Community legislation, including its rules against 
overlapping, more favourable to the worker 
(Council Regulation No 1408/71, Arts 12(2) and 46) 
1. The legislation of a Member State 
governing the calculation of a surviv­
or's pension and establishing a restric­
tion of the ceiling fixed for the over­
lapping of a retirement and a survivor's 
pension where the surviving spouse can 
claim a survivor's pension payable by 
another Member State is a provision on 
reduction within the meaning of 
Articles 46a and 46b of Regulation 
No 1408/71 as amended by Regulation 
No 1248/92. 
A national rule must be regarded as a 
provision on reduction of benefit, 
within the meaning of Regulation 
No 1408/71, if the calculation which 
it requires to be made has the effect of 
reducing the amount of the pension 
which the person concerned may claim, 
because he receives a benefit from 
another Member State. 
(see paras 16, 20, operative part 1) 
2. Articles 46a and 46b of Regulation 
No 1408/71, as amended by Regu­
lation No 1248/92, preclude the appli­
cation of the legislation of a Member 
State containing a provision against 
overlapping under which a survivor's 
pension received in that Member State 
must be reduced because of a survivor's 
pension acquired, in another Member 
State, where the benefits payable in 
application of the legislation of the first 
Member State are less favourable than 
those determined in application of 
Article 46 of that regulation. 
The competent institution of a Member 
State must compare the benefits which 
would be payable in application of the 
national legislation alone, including its 
rules against overlapping, with those 
which would be payable in application 
of Community law, and award to the 
migrant worker the benefit which 
yields the higher amount. 
(see paras 29-30, operative part 2) 
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