Case C‑431/16

Instituto Nacional de la Seguridad Social (INSS)

and

Tesorería General de la Seguridad Social (TGSS)

v

José Blanco Marqués

(Request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León)

(Reference for a preliminary ruling — Social security for migrant workers — Regulation (EEC) No 1408/71 — Articles 12 and 46a to 46c — Benefits of the same kind — Definition — Rule against overlapping — Definition — Conditions — National rule providing for a supplement to the total permanent incapacity pension for workers of at least 55 years of age — Suspension of the supplement in the event of employment or receipt of a retirement pension)

Summary — Judgment of the Court (Tenth Chamber), 15 March 2018

Social security—Migrant workers—Benefits—National rules against overlapping—National rule providing for a supplement to the total permanent incapacity pension for workers of at least 55 years of age—Suspension of the supplement in the event of employment or receipt of a retirement pension—Applicability to a benefit calculated in accordance with Article 46(1)(a)(i) of Regulation No 1408/71—Conditions

Social security—Migrant workers—Benefits—National rules against overlapping—Supplement to a total permanent incapacity pension granted to a worker under the law of a Member State and retirement pension acquired by that same worker in Switzerland—Treated as benefits of the same kind

Social security—Migrant workers—Benefits—National rules against overlapping—Concept of ‘legislation of the first Member State’ within the meaning of Article 46a(3)(a) of Regulation No 1408/71—Interpretation of a provision of national law made by a supreme national court—Included

Social security—Migrant workers—Benefits—National rules against overlapping—Suspension of the supplement to a total permanent incapacity pension during the period in which the beneficiary of that pension receives a retirement pension in another Member State or in Switzerland—Regulation constituting a provision on reduction of benefit for the purposes of Regulation No 1408/71

A national rule, such as that at issue in the main proceedings, pursuant to which the supplement to a total permanent incapacity pension is suspended during the period in which the beneficiary of that pension receives a retirement pension in another Member State or in Switzerland, constitutes a provision on reduction of benefit for the purposes of Article 12(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EEC) No 592/2008 of the European Parliament and of the Council of 17 June 2008. It follows that the national rule at issue in the main proceedings must be regarded as covering the benefits received by the beneficiary in another Member State or in Switzerland, given that the Swiss Confederation, for the purposes of the application of Regulation No 1408/71, is to be equated with a Member State of the European Union (judgment of 18 November 2010, Xhymshiti, C‑247/09, EU:C:2010:698, paragraph 31). In addition, it is not disputed that the effect of the application of that national rule is to reduce the total amount of the benefits that the person concerned may claim. (see paras 37, 38, 41, operative part 1)

Article 46a(3)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008, must be interpreted as meaning that the concept of ‘legislation of the first Member State’ in that article is to be interpreted as including the interpretation of a provision of national law made by a supreme national court. Although isolated or insignificant judicial decisions cannot be taken into account, that is not the case with regard to an interpretation in the case-law confirmed by a national supreme court (see, to that effect, judgment of 9 December 2003, Commission v Italy, C‑129/00, EU:C:2003:656, paragraph 32). (see paras 47, 48, operative part 2)

A supplement to a total permanent incapacity pension granted to a worker under the law of a Member State, such as that at issue in the main proceedings, and a retirement pension acquired by that same worker in Switzerland must be regarded as being of the same kind within the meaning of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 592/2008. In the present case, as regards the purpose and object of the 20% supplement, it is apparent from the order for reference that that supplement is intended to protect a specific category of particularly vulnerable persons, that is to say, workers aged between 55 and 65 who have been recognised as having total permanent incapacity and for whom it is difficult to find employment in an occupation other than that in which they were previously engaged. In order to achieve that objective, those workers are granted a supplement to the total permanent incapacity pension, the amount of which is set as a percentage of the regulatory base used to determine the amount of that incapacity pension. It follows from the foregoing that the 20% supplement and the total permanent incapacity pension to which it is automatically ancillary are comparable to old-age benefits, inasmuch as they are intended to guarantee a means of subsistence to workers declared as having total permanent incapacity to carry out their normal occupation and who, having reached a certain age, would in addition find it difficult to find employment in an activity other than their normal occupation. Thus, where the beneficiary of a total permanent incapacity pension succeeds in re-entering the labour market in different employment to that previously engaged in, he retains the right to the total permanent incapacity pension as such and the payment of the 20% supplement alone is suspended on account of his engaging in a new occupation, which enables him to offset in part the loss of professional income. (see paras 51-53, 56, 61, operative part 3)