Enrico Fabrizii, Pietro Neri and Aldo Del Grosso v Office national des pensions.
Date: 1993-12-15
23 This interpretation is confirmed by Article 46(2)(b) of the regulation, by virtue of which the competent institution must establish the actual amount of the benefit on the basis of the theoretical amount referred to in the preceding paragraph, and in the ratio which the length of the periods of insurance completed before the risk materializes under the legislation administered by that institution bears to the total length of the periods of insurance completed under the legislation of all the Member States concerned before the risk materialized (see Case C-5/91 Di Prinzio [1992] ECR I-897, paragraph 49).
32 As for the application of the competent institution' s rules against overlapping foreign benefits, the Court has consistently held (see Case 58/84 Romano [1985] ECR 1679, paragraph 15, and Case 117/84 Ruzzu [1985] ECR 1697, paragraph 16) that a national provision which reduces the additional years of notional employment from which a worker may benefit by the number of years in respect of which he may claim a pension in another Member State constitutes a provision for reduction of benefit within the meaning of Article 12(2) of the regulation.
33 Moreover, for the purposes of calculating benefits under Community law, the provisions of the regulation must be applied in their entirety, with the result that the competent institution must also take account of Article 12(2) of the regulation (see Di Prinzio, cited above, paragraph 46).
34 Pursuant to Article 12(2), the provisions for reduction of benefit laid down in the legislation of one Member State where a benefit overlaps with other social security benefits acquired under the legislation of another Member State are not applicable where the person concerned receives benefits of the same kind, including old-age benefits, paid in accordance with Article 46 of that regulation (see Cases C-90/91 and C-91/91 Di Crescenzo and Casagrande [1992] ECR I-3851, paragraph 18).
36 It follows that the pro rata amount of the actual pension must be calculated by taking into account all the notional periods prior to the materialization of the risk that have been added to the years during which the worker was actually employed or years treated as such by the legislation of the Member State of the competent institution (see Di Prinzio, cited above, paragraphs 54 to 56).
42 For the purposes of calculating the old-age benefits of an employed worker who has been subject to the legislation of several Member States, it is for the competent institution to compare the old-age benefits which would be payable under national law alone, including its rules against the overlapping of benefits, with those which would be payable under Community law in accordance with Article 46 of the regulation, including the rule against overlapping set out in paragraph 3 thereof, and to ensure that the migrant worker receives whichever benefit is the higher (see in particular Di Crescenzo and Casagrande, cited above, paragraph 17).
46 With regard to the question whether Articles 7, 48 and 51 of the EEC Treaty preclude the application of a provision for reduction of benefit of the kind at issue in the national proceedings, it should be recalled at the outset that, according to established case-law (see Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 13), Article 7 of the EEC Treaty applies independently only to situations governed by Community law in regard to which the Treaty does not lay down any specific rules.