Judgment of the Court of 14 March 1978. - Bestuur van de Sociale Verzekeringsbank v Mrs Boerboom-Kersjes, a widow. - Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. - Social security. - Case 105/77.



European Court reports 1978 Page 00717

Greek special edition Page 00269

Portuguese special edition Page 00277



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - OVERLAPPING - ENTITLEMENT UNDER NATIONAL LEGISLATION ALONE - PROVISIONS FOR REDUCTION OR SUSPENSION - APPLICABILITY - POSITION UNDER COMMUNITY RULES MORE FAVOURABLE - PREFERENCE

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 12 ( 2 ) AND 46 )

Summary

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 .

Parties

IN CASE 105/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ), UTRECHT , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BESTUUR VAN DE SOCIALE VERZEKERINGSBANK ( BOARD OF MANAGEMENT OF THE SOCIAL INSURANCE BANK ), AMSTERDAM ,

AND

MRS BOERBOOM-KERSJES , A WIDOW , NIJMEGEN

Subject of the case

ON THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

Grounds

1BY AN ORDER OF 9 AUGUST 1977 WHICH WAS RECEIVED AT THE COURT ON 29 AUGUST 1977 THE CENTRALE RAAD VAN BEROEP REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , FOR A PRELIMINARY RULING , A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2THIS QUESTION HAS BEEN RAISED IN AN ACTION CONCERNING THE CALCULATION BY THE COMPETENT NETHERLANDS INSTITUTION OF THE SURVIVOR ' S PENSION OF A NETHERLANDS NATIONAL , THE RESPONDENT IN THE MAIN ACTION , WHOSE HUSBAND HAD COMPLETED INSURANCE PERIODS IN THE NETHERLANDS AND IN THE FEDERAL REPUBLIC OF GERMANY .

3AT HIS DEATH THE HUSBAND HAD FULFILLED IN THE NETHERLANDS ALL THE CONDITIONS REQUIRED UNDER THE NATIONAL LEGISLATION FOR ENTITLEMENT TO AN OLD-AGE PENSION .

4THE NETHERLANDS INSTITUTION PURSUANT TO THE ALGEMENE WEDUWEN- EN WEZENWET ( LAW ON GENERAL INSURANCE FOR WIDOWS AND ORPHANS ) ( AWW ), RELYING ON THE RULE FOR THE LIMITATION OF BENEFITS LAID DOWN IN ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 , REDUCED THE BENEFIT PAYABLE UNDER THIS LEGISLATION BY THE AMOUNT OF THE BENEFIT PAID UNDER GERMAN LEGISLATION .

5MRS BOERBOOM-KERSJES , THE PARTY CONCERNED , CHALLENGED THIS DECISION BEFORE THE RAAD VAN BEROEP , AMSTERDAM , WHICH ANNULLED IT ON THE BASIS OF THE JUDGMENT OF THE COURT IN CASE 24/75 ( TERESA AND SILVANA PETRONI V OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( 1975 ) ECR 1149 ).

6THE NETHERLANDS INSTITUTION THEN APPEALED AGAINST THE JUDGMENT OF THE RAAD VAN BEROEP TO THE CENTRALE RAAD VAN BEROEP .

7THE QUESTION REFERRED IS :

' ' WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES , TO WHAT EXTENT DO ARTICLES 12 ( 2 ) AND 46 OF THE REGULATION NO 1408/71 PREVENT THE APPLICATION OF NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS SUCH AS THOSE IN FORCE PURSUANT TO THE AWW , WHERE ENTITLEMENT TO BENEFIT HAS BEEN OBTAINED PURSUANT TO NATIONAL LEGISLATION ALONE WITHOUT ITS BEING NECESSARY TO APPLY THE REGULATION FOR THAT PURPOSE?

' '

8THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 13 OCTOBER 1977 ( CASE 33/77 FERNANDO GRECO V FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( 1977 ) ECR 1711 ) 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 , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE THAN THE APPLICATION OF THE RULES REGARDING AGGREGATION AND APPORTIONMENT THOSE RULES MUST , BY VIRTUE OF ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , BE APPLIED .

9IT FOLLOWS THAT IF THE PROVISIONS OF REGULATION NO 1408/71 ARE MORE FAVOURABLE TO THE WORKER THAN THE NATIONAL LEGISLATION THEY MUST BE APPLIED .

Decision on costs

COSTS

10THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

11AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY ORDER OF 9 AUGUST 1977 , HEREBY RULES :

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 .