Keywords

Summary



Keywords

++++

1. Social security for migrant workers - Benefits - National anti-overlapping rules - Right acquired under national legislation alone - Applicability - Limits - Community rules more favourable to the worker

(Council Regulation No 1408/71, Art. 12(2) and Art. 46)

2. Social security for migrant workers - Benefits - National anti-overlapping rules - Non-invocability against recipients of benefits of the same kind paid in accordance with the provisions of Regulation No 1408/71 - Invalidity pension converted into an old-age pension and invalidity pension not yet converted - Treatment as benefits of the same kind irrespective of the age of the recipient

(Council Regulation No 1408/71, Art. 12(2) and Art. 46)

3. Social security for migrant workers - Old age and death insurance - Calculation of benefits - Article 46 of Regulation No 1408/71 - Application where the right to benefits is acquired under a Member State' s national legislation alone taking into consideration the years during which the worker was actually employed in that Member State or years treated as such, together with a number of notional years - Period of insurance or employment completed by the worker in another Member State giving entitlement to an invalidity pension which has not been converted into a retirement pension - Method of calculating the benefits

(Council Regulation No 1408/71, Art. 12(2) and Art. 46)

Summary

1. Where benefits granted by the competent institutions of two or more Member States overlap when a migrant worker receives a pension by virtue of a Member State' s national legislation alone, the provisions of Regulation No 1408/71 do not preclude that national legislation from being applied to him in its entirety, including any rules in that legislation against the overlapping of benefits. However, if the Member State' s national legislation alone is less favourable for the worker than the Community rules laid down in Regulation No 1408/71, the provisions of that regulation must be applied in their entirety.

2. Where a worker is in receipt of invalidity benefits converted into a retirement pension by virtue of the legislation of a Member State and invalidity benefits not yet converted into a retirement pension under the legislation of another Member State, the retirement pension and the invalidity benefits are to be regarded as benefits of the same kind within the meaning of Article 12(2) of Regulation No 1408/71 pursuant to which the provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits acquired in the same Member State or under the legislation of another Member State do 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.

The competent institution of a Member State is therefore required to apply Article 46 of Regulation No 1408/71 when awarding benefits due to a migrant worker who satisfies all the conditions for entitlement to a full retirement pension in that State and also receives an invalidity pension that has not been converted into a retirement pension in another Member State, even where that worker has not reached the retirement age prescribed under the legislation of the first State for entitlement to benefits in respect of periods of insurance or employment completed in the second Member State.

3. Pursuant to Article 46 of Regulation No 1408/71, the retirement pension due to a migrant worker where the latter satisfies the conditions prescribed for entitlement to a full retirement pension under a Member State' s national law alone, which took into consideration in establishing that pension the years during which the worker was actually employed in that Member State or years treated as such, together with a number of notional years in respect of a period before he became entitled to benefits, and where, before that employment, the worker completed a period of insurance or employment in another Member State, in respect of which he is entitled in that State to an invalidity pension which has not been converted into a retirement pension, must be calculated as follows:

(a) The amount of the independent pension must be determined pursuant to the first subparagraph of Article 46(1) of Regulation No 1408/71, that amount being equal to that of the pension due under the legislation of the Member State where the award of benefits is claimed, but without the periods completed in another Member State being deductible, pursuant to a national anti-overlapping rule, from the number of notional years which, in accordance with the legislation which the competent institution administers, are added to the years of actual employment or years treated as such;

(b) The amount of the pro rata benefit must be determined pursuant to Article 46(2) of Regulation No 1408/71 taking into account all the notional periods prior to the materialization of the risk which, in accordance with the legislation which the competent institution administers, are added to the years of actual employment or years treated as such;

(c) The amount of the independent benefit and the amount of the pro rata benefit must be compared, pursuant to the second subparagraph of Article 46(1) of Regulation No 1408/71, and the competent institution must take into consideration the higher of those amounts;

(d) The amount of the adjusted benefit must be determined pursuant to Article 46(3) of Regulation No 1408/71, the competent institution being obliged, if necessary, to reduce the independent benefit by deducting from it the total of the benefits calculated in accordance with the provisions of Article 46(1) and (2) of Regulation No 1408/71 to the extent that that total exceeds the limit referred to in the first subparagraph of Article 46(3);

(e) The amount resulting from application of the applicable national law in its entirety, including its anti-overlapping rules, must be compared with the amount arrived at after the calculation pursuant to Article 46 of Regulation No 1408/71 and the higher of those amounts is to be taken into consideration.