OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 14 MARCH 1979

My Lords,

This case comes to the Court, for the second time, by way of a reference for a preliminary ruling by the Centrale Raad van Beroep. On the first occasion it bore number 98/77. The Judgment delivered by the Court on that occasion is reported at [1978] ECR 707.

The facts, Your Lordships will recall, are these.

Mr Schaap, who was born in 1914, worked and was compulsorily insured for social security purposes in Germany from 1929 to 1933. After having had to leave Germany in 1933, he worked in the Netherlands from 1934 to 1972, with an interruption from 1940 to 1945. In June 1972 he gave up work because of sickness. He received Dutch sickness benefit for the maximum period of one year. Thereafter, i. e. from June 1973, he became entitled to an invalidity pension under the Dutch legislation on insurance against incapacity for work (the ‘Wet op arbeidsongeschiktheidsverzekering’ or ‘WAO’). He became entitled to that pension by virtue of Dutch law alone. Benefits under the WAO are not dependent on the length of insurance periods; in other words they are of ‘Type A’. At the same time Mr Schaap became entitled to a German invalidity pension (‘Erwerbsunfähigkeitsrente’). The amount of this pension, which is of Type B, is substantially greater than it would have been had it reflected only the compulsory contributions paid by Mr Schaap in Germany from 1929 to 1933, because Mr Schaap had, as he was entitled to do under German legislation of 1970 in favour of victims of Nazi persecution (the ‘Gesetz zur Änderung und Ergänzung der Vorschriften über die Wiedergutmachung NS-Unrechts in der Sozialversicherung’), voluntarily paid contributions for the back period 1934 to 1945, during which he had been prevented from working and being insured in Germany.

The Dutch social security institution responsible for quantifying Mr Schaap's pension was the ‘Bestuur van de Bedrijfsvereniging voor Bank-en Verzekeringswezen, Groothandel en Vrije Beroepen’ (Board of the Trade Association for Banking, Insurance, the Wholesale Trade and Professions), which I shall call for short the ‘BBB’. On 18 March 1975 the BBB wrote to Mr Schaap notifying him of a decision under which it had, in purported application of Article 46 (3) of Council Regulation (EEC) No 1408/71, reduced his pension under the WAO by the full amount of his German pension, the ‘highest theoretical amount of benefit’ being, in his case, the Dutch.

Against that decision Mr Schaap appealed to the Raad van Beroep of Amsterdam, which rejected his appeal.

Mr Schaap then appealed to the Centrale Raad van Beroep.

Before that Court the BBB conceded, having regard to the decision of this Court in Case 24/75 Petroni v ONPTS [1975] ECR 1149, that Article 46 (3) ought not to have been applied. But it submitted that precisely the same reduction in Mr Schaap's pension fell to be made under a Dutch Royal Decree of 22 December 1972 adopted under Article 52 of the WAO.

Thereuponthe Centrale Raad van Beroep referred to this Court the question whether, and to what extent, in such circumstances, Articles 12 (2) and 46 of Regulation No 1408/71 prevented the application of a national anti-duplication provision.

In this Court the Commission drew attention to Article 46 (2) of Council Regulation (EEC) No 574/72, which reads as follows:

‘For the purposes of Article 46 (3) of the Regulation’, that means of Regulation No 1408/71, ‘the amounts of benefit corresponding to the periods of voluntary or optional continued insurance shall not be taken into account’.

The Commission submitted that Mr Schaap's voluntary contributions were of a kind referred to in that provision, with the result that so much of his German pension as was earned by those contributions (i. e. the greater pan of it) should not have been taken into account for the purposes of Article 46 (3) of Regulation No 1408/71. The BBB did not dispute that view. It thus appeared that the reduction in Mr Schaap's Dutch pension permitted by Article 46 (3) was smaller than the reduction in it permitted by the Dutch Royal Decree. (In the Observations that the Commission has lodged in the present case, it seems to be suggested that Mr Schaap had relied on Article 46 (2) of Regulation No 574/72 before the Raad van Beroep of Amsterdam and the Centrale Raad van Beroep. So far, however, as I can discern from the relevant papers, that provision was mentioned for the first time by the Commission in this Court).

The Court in its Judgment (paragraph 8) recited the terms of Article 46 (2), and commented (in paragraph 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.’

The Court then referred (in paragraph 10) to its decision in Case 37/77 Greco v FN ROM [1977] ECR 1711 and held (in paragraph 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.’

The ruling of the Court was in these terms:

‘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.’

The case having come before the Centrale Raad van Beroep for further hearing on 13 June 1978, the BBB then contended that Article 46 (2) was inapplicable. Its argument to that effect may, I think, be summarized as follows.

The heading of Article 46 (as amended by Council Regulation (EEC) No 878/73 of 26 March 1973) is ‘Calculation of benefits in the event of overlapping of periods’. Paragraph 1 of that Article is expressed to apply to the calculation of the theoretical and actual amount of benefit under paragraphs 2 (a) and (b) of Article 46 of Regulation No 1408/71. Its first subparagraph renders applicable for that calculation the rules in Article 15 (1) (b), (c) and (d) of Regulation No 574/72. Those rules form part of the rules as to aggregation of periods and relate exclusively to overlapping periods. The second sub-paragraph provides that the actual amount established under those rules shall be increased by the amount corresponding to the periods of voluntary or optional continued insurance. That cannot apply except where those periods have, under those rules, been excluded from the calculation in the first instance. Thus paragraph 1 of the Article is only applicable in a case where periods are to be aggregated and there is an overlap of periods. Paragraph 2 cannot be read in isolation from paragraph 1 and the heading, and therefore must also be taken to apply only where there is aggregation of periods and overlapping of periods. In support of that argument the BBB referred to Article 13 (5) of Regulation No 4, which, it says, was the ancestor of Article 46 of Regulation No 574/72.

The Centrale Raad van Beroep was impressed by that argument, at all events in so far as it seemed to show that Article 46 could only be invoked where there were overlapping periods. It was also impressed by the fact that Article 46 (2) (d) of Regulation No 1408/71 expressly provided that ‘the procedure for taking into account overlapping periods when applying the rules of calculation referred to in this paragraph shall be laid down in the implementing Regulation’.

The Centrale Raad van Beroep, being of the opinion that there is in this case no relevant overlap of periods, has referred to this Court the following questions:

‘1. Is the heading of Article 46 of Regulation No 574/72 an integral part of that article in the sense that the content of the article is alsodetermined by that heading?

2. Having regard to Article 46 (2) (d) of Regulation No 1408/71, are the second subparagraph of paragraph 1 and paragraph 2 of Article 46 of Regulation No 574/72, read together with the first subparagraph of paragraph 1 and the heading above the article, to be understood as meaning that the whole article relates only to benefits calculated in accordance with Article 46 (2) (a) and (b) of Regulation No 1408/71 in cases where aggregation of periods has occurred and in connexion with which periods of voluntary or optional continued insurance were not taken into account, or do those provisions, or does one of them, also apply to cases in which the benefits were not calculated in accordance with Article 46 (2) (a) and (b) of Regulation No 1408/71 and there has been no question of leaving out of account periods of voluntary or optional continued insurance in calculating the benefits?’

In my opinion the real and only problem in this case arises from the wording of the heading of Article 46 of Regulation No 574/72. The circumstances that Article 46 (2) (d) of Regulation No 1408/71 expressly foreshadowed a provision in Regulation No 574/72 to deal with cases of overlapping periods does not mean that the Council was precluded from dealing in the latter Regulation with any other kind of case. Nor can reference to the contents of the old Regulation No 4 be in point, since Regulation No 3 contained no provision resembling Article 46 (3) of Regulation No 1408/71. As to paragraph 1 of Article 46 of Regulation No 574/72, it may well be that its application is confined to cases where periods are aggregable and where some of them overlap. But one cannot, in my opinion, deduce from that that the application of paragraph 2 of the same Article, which is expressed in much more general terms, is similarly confined. In saying this I do not overlook that Article 46 formerly contained a paragraph 3 (repealed in 1974) dealing with even more special cases.

So the question is whether the effect of the heading of Article 46 is to confine the scope of paragraph 2 of that Article to cases where there are ‘overlapping periods’.

As to that the first observation that comes to mind is that the phrase ‘overlapping of periods’ is somewhat vague. Originally the heading referred to ‘overlapping of insurance periods’, but the word ‘insurance’ was deleted by Regulation No 878/73 (which entered into force before Mr Schaap became entitled to his pension). The Commission says that that deletion was made to take account of the fact that in some of the new Member States periods of residence, as distinct from periods of insurance, can be relevant for social security purposes.

The view is of course tenable that there was overlap in this case at all events for the period 1934 to 1940 when Mr Schaap was working in the Netherlands and for which he paid back contributions in Germany. But I do not think the solution of the problem lies there.

The root of the problem lies in the fact that no period of any sort is relevant to the calculation of the benefit to which Mr Schaap is entitled under the WAO, first because he is entitled to it without resort to the process of aggregation and apportionment and secondly because benefits under the WAO are of Type A, i. e. are independent of the length of insurance periods. Indeed, as we learnt in Case 109/76 the Blottner case [1977] ECR 1141, the WAO has no requirement as to the length of insurance periods either for entidement to or for the calculation of benefits. One can understand that, in those circumstances, the Centrale Raad van Beroep should regard the concept of overlapping periods as inapplicable.

In the Opinion that I delivered on 15 February 1978 on three cases including Case 98/77 ([1978] ECR 694) I pointed out that in relation to benefits of Type A Article 46 of Regulation No 1408/71 was loosely drafted, for instance in that it referred to the amount of a benefit of Type A to which a person might be entitled under the legislation of a Member State without recourse to aggregation and apportionment (its ‘autonomous’ amount, as it is sometimes called) as ‘the amount of benefit corresponding to the total length of the insurance periods to be taken into account’. It appears to me that that looseness of drafting has spilt over at least into the heading of Article 46 of Regulation No 574/72.

As both the Belgian Government and the Commission have urged, there can be no justification for depriving a worker of the fruit of voluntary contributions that he has made in one Member State merely because he is entitled to benefit in another Member State without recourse to aggregation and apportionment. Nor in my opinion can there be any justification for depriving him of that fruit merely because the benefit to which he is entitled in the latter State is of Type A. It accordingly seems to me that paragraph 2 of Article 46 of Regulation No 574/72 must be held to mean precisely what it says and that its scope cannot be restricted by reference to the heading of that Article. That heading may be appropriate to paragraph 1, but in relation to paragraph 2 it is simply inapt.

The Commission submits that Article 46 of Regulation No 574/72 should be held to apply only in a case where a period of voluntary insurance in one Member State has coincided with a period of compulsory insurance in another. But that would involve, not only treating the heading of the Article as appropriate to paragraph 2, but also treating the deletion from that heading if the word ‘insurance’ as never having occurred.

In the result I am of the opinion that Your Lordships should, in answer to the questions referred to the Court by the Centrale Raad van Beroep, rule that, notwithstanding the terms of paragraph 2 (d) of Article 46 of Regulation No 1408/71 and of the heading of Article 46 of Regulation No 574/72, paragraph 2 of the latter Article applies in every case where paragraph 3 of the former does.