THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 46 ( 2 ) OF REGULATION ( EEC ) 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 ; CODIFIED VERSION : OFFICIAL JOURNAL 1980 C 138 , P . 1 ).
2 THE QUESTION AROSE IN THE COURSE OF THE PROCEEDINGS BROUGHT BY AN EEC CITIZEN AGAINST A DECISION OF THE NIEUWE ALGEMENE BEDRIJFSVERENIGING ( NEW GENERAL TRADE ASSOCIATION ), THE ' ' COMPETENT INSTITUTION ' ' WITHIN THE MEANING OF REGULATION NO 1408/71 , TO THE EFFECT THAT A FIVE-YEAR PERIOD OF UNEMPLOYMENT BETWEEN 1948 AND 1953 DURING WHICH THE PERSON CONCERNED WAS NOT INSURED AGAINST INVALIDITY COULD NOT BE TAKEN INTO ACCOUNT IN CALCULATING THE INVALIDITY BENEFIT GRANTED PURSUANT TO THE ABOVE-MENTIONED REGULATION IN CONJUNCTION WITH THE WET OP DE ARBEIDSONGESCHIKTHEIDSVERZEKERING OF 1966 ( THE NETHERLANDS LAW ON INSURANCE AGAINST INCAPACITY FOR WORK , HEREINAFTER REFERRED TO AS ' ' THE 1966 LAW ' ' ).
3 IT APPEARS THAT APART FROM THOSE FIVE YEARS MR BESEM WORKED , AND WAS THEREFORE INSURED , FROM 1934 ONWARDS PARTLY IN THE NETHERLANDS AND PARTLY IN THE FEDERAL REPUBLIC OF GERMANY , WHERE IN 1978 HE WAS DECLARED UNFIT FOR WORK .
4 UNDER THE PROVISIONS OF THE 1966 LAW THE AMOUNT OF THE BENEFIT IS NOT DEPENDENT ON THE LENGTH OF THE PERIODS OF INSURANCE WHICH HAVE BEEN COMPLETED BUT ON THE DEGREE OF INCAPACITY FOR WORK AND THE AMOUNT OF THE DAILY WAGE WHICH THE PERSON CONCERNED COULD HAVE OBTAINED HAD HE NOT BEEN UNFIT FOR WORK . THE BIJZONDER DAGLOONBESLUIT WAO ( ORDER LAYING DOWN SPECIAL RULES FOR DETERMINING THE DAILY WAGE , BASED ON THE 1966 LAW ) PROVIDES , HOWEVER , THAT WHERE ENTITLEMENT TO BENEFIT ARISES SOLELY BY VIRTUE OF THE COMMUNITY REGULATION , THE DAILY WAGE IS TO BE REDUCED PROPORTIONATELY IF THERE ARE ONE OR MORE UNINSURED PERIODS AFTER THE DATE ON WHICH THE PERSON CONCERNED WAS INSURED FOR THE FIRST TIME IN A MEMBER STATE .
5 IT WAS IN APPLICATION OF THE BIJZONDER DAGLOONBESLUIT THAT THE BEDRIJFSVERENIGING REDUCED MR BESEM ' S DAILY WAGE , CALCULATED UNDER THE GENERAL RULES FOR APPLYING THE 1966 LAW , ON THE BASIS OF THE RATIO OF THE UNINSURED PERIOD TO THE PERIODS OF INSURANCE COMPLETED IN THE TWO MEMBER STATES IN QUESTION . THE DAILY WAGE THUS REDUCED WAS ADOPTED BY THE BEDRIJFSVERENIGING AS THE BASIS FOR CALCULATING THE BENEFIT IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 .
6 THE PRESIDENT OF THE RAAD VAN BEROEP , AMSTERDAM , ALLOWED MR BESEM ' S APPEAL ON THE GROUND THAT SUCH A REDUCTION IN THE DAILY WAGE WAS CONTRARY TO REGULATION NO 1408/71 . THE NIEUWE ALGEMENE BEDRIJFSVERENIGING LODGED AN APPEAL AGAINST THAT DECISION