4.

In support of the first of these hypotheses one could argue that Article 46 must be interpreted in accordance with Article 12 (2) of the Regulation. That provision lays down that ‘The legislative provisions of a Member State for reduction, suspension, or withdrawal of benefit in cases of overlapping with other social security benefits or other income may be invoked even though the right to such benefits was acquired under the legislation of another Member State …’; and it goes on to state that ‘this provision shall not apply when the person concerned receives benefits of the same kind in respect of invalidity, old-age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States in accordance with Articles 46, 50, 51 or Article 60 (1) (b)’. It should further be borne in mind that on the subject of restrictions on the applicability of national rules against overlapping this Court has laid down case-law, some of it recent, which is clearly favourable to the interests of the worker. But until now, the need to limit the effects of national provisions against overlapping has been recognized in relation to situations in which two invalidity pensions or two pensions for a surviving spouse were awarded concurrently. It is worth citing in particular the judgment of 13 October 1977 in Case 22/77 Mura [1977] ECR 1699; there the Court, after declaring 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’, laid down that ‘if the application of national provisions on entitlement and calculation alone is less advantageous for the worker than the application of the rules for aggregation and apportionment, the latter must be applied’. That principle was inferred from the said Article 46 (1), interpreted as a rule restricting the applicability of internal rules against the overlapping of benefits. The same line was followed by the judgments of 13 October 1977 in Case 37/77 Greco [1977] 2 ECR 1711, of 14 March 1978 in Case 98/77 Schaap [1978] ECR 707 and also of 14 March 1978 in Case 105/77 Boerboom-Kersjes [1978] ECR 717. In support of the second hypothesis one may point first of all to the fact that Article 46, in so far as it is referred to by Article 40 (1), is situated in the context of the rules concerning invalidity benefits, and thus in the same context as the said Article 43. I have already had occasion to observe that Article 43 permits overlapping between invalidity pensions and old-age pensions; and certainly it prevails over any contrary national provision; thus it precludes the provisions of Article 12 (2). With regard to Article 43 (3) the Commission rightly observed that it envisages only the possibility of a reduction, even in the case of a worker who receives an invalidity pension in one Member State and an old-age pension in another: so the benefits are allowed to overlap, albeit only to a certain extent, and the national rules against overlapping are applicable only when they lead to a more favourable result than that produced by way of apportionment. A correct, systematic interpretation of Article 46 should therefore lead to the conclusion, at least as regards the award of concurrent invalidity and old-age pensions, that the different nature of the benefits does not preclude the application of criteria designed to restrict the effect of national rules against the overlapping of benefits. Returning to the case-law of the Court, cited above, I would point out that it is based on the assumption that the first sentence of the said Article 12 (2) applies and that the second sentence must be disregarded (see in particular paragraphs 13 and 14 of the decision in Mura). Thus a feature of the cases decided was that provisions contained in national laws for the reduction, suspension or withdrawal of benefit were, in principle, applicable. Notwithstanding that, the Court inferred from Article 46 (1) that the rules regarding overlapping and apportionment must be applied whenever the national provisions concerning the existence of the right to benefit and the calculation thereof prove less favourable for the worker. And even though, as I have already observed, the situations which gave rise to the requests for a preliminary ruling were particular examples of the award in two Member States of concurrent benefits of the same type, none the less the decisions of the Court were not expressly affected by that circumstance. In fact the only condition inherent in those decisions is that the case must involve a worker who receives a pension by virtue of national legislation alone; as happened in this case. By that I do not mean to state that the line followed in the cases cited may purely and simply be confirmed in this case; that is precluded by the tenor of the question submitted by the national court and by the situation to which it refers, which, it cannot be doubted, display special features. But it may certainly be regarded as established that, apart from the provision laid down by the second sentence of Article 12 (2) and in partial correction of the rule contained in the first sentence, the Court has accepted that Article 46 (1) restricts the effectiveness of rules against the overlapping of benefits; and it does so without, I repeat, requiring that the concurrent benefits be of the same kind. Finally, I do not think it out of place to refer to the general objectives of the regulation concerned. The seventh and eighth recitals of the preamble to Regulation No 1408/71 state that ‘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’; and that ‘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’. Let us attempt to relate those general criteria to the present case. If the worker concerned has been employed only in Germany, for a period equal to the total of the periods of employment completed in Germany and the Netherlands (that is to say, from 1928 to 1972), there is no reason to think that she would have received in Germany an old-age pension considerably higher than the one which she currently enjoys on the basis of the period of employment from 1928 to 1957. So it would seem contrary to the general criteria referred to above to apply a national measure against the overlapping of benefits which, taking into account the old-age pension due to a worker in respect of the contribution periods completed under the legislation of another Member State, deducts the entire amount thereof from the invalidity benefit to which the same worker is entitled in his State of residence, even though the right to that benefit matured independently of those contribution periods. In general terms, that shows that the effects of the national provisions against the overlapping of benefits must be restricted even in the case of the award, in different States, of concurrent invalidity and old-age pensions to which the worker is entitled as a result of insurance periods completed mainly at different times in the two States concerned. If the case concerns national rules against the overlapping of benefits which take into consideration the old-age pension drawn by the insured person in another State, for the purpose of reducing his invalidity pension, the different nature of the two concurrent pensions must not be used to render inapplicable those Community principles or rules which guarantee the worker's entitlement to benefits, acquired in the State in which the aforesaid rules against overlapping are in force, at least within the limits of the apportionment provided for in Article 46.