6.

It seems to me reasonable, therefore, to look for the answer to the question of interpretation referred to the Court by the Belgian Cour de Cassation in one of the two possibilities I have described above: the decision is either that the national legislation of the Member State under which the pension, granted in accordance with Community rules, is paid, must be applied in its entirety, including the provisions against overlapping or that the result of the calculations provided for by Community regulations for the purpose of determining the amount of a pension is inviolable and that, therefore, it is impossible to alter it pursuant to national rules aginst overlapping. I hasten to add that the first of these two alternatives is the one which, in my opinion, is the one to be preferred. I base this on the principle laid down by this Court in its judgment of 5 July 1967 in Case 2/67, De Moor v Caisse de Pension des Employes Privés ([1967] ECR 197). According to one of the grounds of the judgment in that case: ‘Regulation No 3 did not provide for a common system of social security giving the beneficiary a single entitlement based on a simple apportionment of such benefits between national institutions, but allowed separate systems to continue, creating separate claims against separate institutions against which the beneficiary has direct rights either under national law alone or national law supplemented, if necessary, by the system of the aggregation of insurance periods provided for by Article 51 of the Treaty’. The same principle was, moreover, expressed, although in more concise terms, in the judgment of the same date in Ciechelski, Case 1/67, ([1967] ECR 181) and was then reiterated in the judgments of 10 November 1971 in Keller v Caisse d'Assurance Vieillesse de Strasbourg, Case 27/71, ([1971] ECR 885) and of 12 November 1974 in Mutualités Chrétiennes v Rzepa, Case 35/74 ([1974] ECR 1241). In the first of these judgments it was held inter alia that ‘the system at present in force … in the absence of a common social security scheme, depends on a simple coordination of national legislative systems which have not been harmonized’; in the second it was held that ‘the system embodied in Regulations Nos 3 and 4 rests on mere coordination of national legislation in the field of social security’. In any case it is clear that the determination of the amount of the pensions to be paid varies from State to State since every Member State is still free to lay down both what these amounts should be and the detailed rules and conditions for granting pensions of all kinds. Thus, in the invalidity insurance scheme, Belgian legislation grants the maximum pension on the sole condition that the insured has worked 120 days whereas in Italy the amount of the allowance is calculated in proportion to the length of the period in paid employment. The rules against overlapping must, in my view, be laid down in terms of the aim and the requirements of each national legislation. In particular, the introduction of rules reducing the amount of the pension in cases of overlapping is clearly more justified under a scheme such as the Belgian one, in which the right to a maximum invalidity pension is obtained without difficulty, than under a scheme such as the Italian one. And, in this connexion, I should like to emphasize that the question concerning the validity, in terms of Community law, of a rule against overlapping must be put so as to take into account the effect of a rule of this kind, which is to reduce the amount of a pension calculated on the basis of Community requirements, and not the way in which the reduction is made. In the present case, the judgment in which the Belgian Cour de Cassation asked for a preliminary ruling refers to a certain conflict between the statements of the defendant and those of the judgment on appeal concerning the way in which the rules against overlapping fixed under Belgian law have been applied: according to the Institut national d'assurance maldadie-invalidité, the deduction is made when calculating the theoretical benefit for accounting purposes (‘pour ordre’) whereas, according to the appeal judgment, the amount calculated on the basis of Community rules was reduced by the amount of the Austrian pension. It does not seem to me to make any difference which method was followed; what matters is the legality or otherwise of a reduction as the result of national rules against overlapping. On the ground indicated earlier (or, I repeat, because the amount of the benefits depends on the relevant national law as well as upon Community law) I am of the opinion that Community law does not preclude the introduction and application of legislation against overlapping at national level. Finally, I must refer to two more general considerations. Article 8 of Regulation No 3 ensures that persons permanently resident in the territory of any Member State to whom the provisions of the regulations apply receive the national treatment (that is to say equality of treatment with the subjects of any Member State) and lays down that those persons ‘shall have the same rights and obligations under the social security legislation of every other Member State as the latter's nationals’. This provision seems to me to imply that the obligations and benefits under each social security system are indivisible and means that, even as regards obligations and restrictions, there must be no preferential treatment for the nationals of other Member States (unless they arise specifically and expressly from other provisions of the regulation). In conclusion, I should like to recall the general principle of interpretation laid down by this Court on the subject of the interpretation of Regulation No 3 when it declared that it must be interpreted with regard to the fundamental aim of Article 51 of the Treaty, which is to establish the most favourable conditions for achieving the freedom of movement and employment of Community workers within the territory of each of the Member States (judgment of 16 November 1972 in Case 14/72, Heinze v Landesversicherungsanstalt Rheinprovinz, ([1972] ECR 1105). In the present case, as the Commission also recognized in its observations, the application of the rule against overlapping does not compromise the freedom of movement for workers since the circumstance which makes this rule applicable is the worker's employment in a third country.