Aldegonda van den Booren v Rijksdienst voor Pensioenen.
Date: 2013-03-07
21. In that respect, it should be noted that it is for the national courts alone, which are seised of a case and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they refer to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is, in principle, bound to give a ruling (Case C‑169/07 Hartlauer  [2009] ECR I‑1721, paragraph 24 and the case-law cited, and Case C‑393/08 Sbarigia  [2010] ECR I‑6337, paragraph 19).
22. It follows that questions relating to European Union law enjoy a presumption of relevance. Accordingly, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2010] ECR I‑11421, paragraph 25, and Sbarigia , paragraph 20).
26. It should be borne in mind, as a preliminary point, that, although it is not for the Court, in proceedings brought under Article 267 TFEU, to rule on the compatibility of rules of domestic law with European Union law, it is none the less competent to give the national court full guidance on the interpretation of European Union law in order to enable that court to determine whether those rules are so compatible (see, inter alia, Case C‑292/92 Hünermund and Others  [1993] ECR I‑6787, paragraph 8).
28. From the outset, it must be borne in mind that, according to settled case-law, a national rule must be regarded as a provision on reduction of benefit, within the meaning of Regulation No 1408/71, if the calculation which it requires to be made has the effect of reducing the amount of the pension which the person concerned may claim by reason of the fact that he receives a benefit from another Member State ( Insalaca , paragraph 16).
29. In that regard, it follows from Article 12(2) of Regulation No 1408/71 that provisions on reduction laid down in the legislation of a Member State may, unless that regulation provides otherwise, be invoked against persons who receive a benefit from that Member State if they can claim other social security benefits, even when those benefits are acquired under the legislation of another Member State ( Insalaca , paragraph 22).
30. An exception to the principle laid down in Article 12(2) of Regulation No 1408/71 is contained in Article 46b(1) of that regulation, which provides that, in the case of overlapping of benefits of the same kind, provisions on reduction laid down by the legislation of a Member State do not apply to benefits calculated in accordance with Article 46(2) of that regulation ( Insalaca , paragraph 23).
31. In that regard, the Court has consistently held that social security benefits must be regarded as being of the same kind, within the meaning of Article 12(2) of Regulation No 1408/71, when their purpose and object, as well as the basis on which they are calculated and the conditions for granting them, are identical (Case 197/85 Stefanutti [1987] ECR 3855, paragraph 12; Case C‑98/94 Schmidt [1995] ECR I‑2559, paragraph 24; and Insalaca , paragraph 24).
32. Article 46a(1) of Regulation No 1408/71 states that overlapping of benefits of the same kind is defined as the overlapping of benefits in respect of invalidity, old age and survivors ‘calculated or provided on the basis of periods of insurance and/or residence completed by one and the same person’. In accordance with Article 46a(2) of Regulation No 1408/71, benefits calculated or provided on the basis of the careers of two different persons cannot be treated as being benefits of the same kind within the meaning of Article 46a(1) (see, to that effect, Stefanutti , paragraph 13, and Case C‑366/96 Cordelle [1998] ECR I‑583, paragraphs 20 and 21).
33. In so far as it transpires, regard being had to the written observations submitted to the Court, that the Belgian survivor’s pension received by Mrs van den Booren was calculated on the basis of the professional career of her late husband and that she receives the Netherlands old-age pension in her own right, those two benefits cannot be considered to be benefits of the same kind coming within the exception provided for under Article 46a(1) of Regulation No 1408/71.
35. In that regard, Regulation No 1408/71 provides, in particular in Article 46a(3)(d), that, if a rule against overlapping is applicable under the legislation of only one Member State on account of the fact that the person concerned receives benefits of the same kind or of a different kind payable under the legislation of another Member State, the benefit payable under the legislation of the first Member State may be reduced only within the limit of the amount of the benefits payable under the legislation of the other Member State ( Cordelle , paragraph 14).
36. Accordingly, pursuant to that rule, the Belgian survivor’s pension of the person concerned may be reduced only within the limit of the amount of the Netherlands old-age pension ( Cordelle , paragraph 15).
38. However, the interpretation of Regulation No 1408/71 thus provided must be understood without prejudice to the solution which might flow from the potential applicability of provisions of primary law. The finding that a national measure may be consistent with a provision of a secondary law measure, in this case Regulation No 1408/71, does not necessarily have the effect of removing that measure from the scope of the Treaty’s provisions (Case C‑208/07 von Chamier-Glisczinski  [2009] ECR I‑6095, paragraph 66 and case-law cited).
42. Furthermore, although it is true that, in the absence of harmonisation at European Union level, it is for the legislation of each Member State to determine the conditions for granting social security benefits in kind, the Member States must, when exercising that power, comply with European Union law (see, to that effect, inter alia, von Chamier-Glisczinski , paragraph 63 and the case-law cited).
43. In that regard, as regards the provisions of primary law to which the national court refers, it is sufficient to bear in mind that Article 45 TFEU gives effect to a fundamental principle under which, in particular, the activities of the European Union are to include the abolition, as between Member States, of obstacles to freedom of movement for persons (Case C‑18/95 Terhoeve  [1999] ECR I‑345, paragraph 36 and the case-law cited).
44. As a result, European Union law militates against any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Member State nationals of the fundamental freedoms guaranteed by the Treaty (Case C‑212/06 Government of Communauté française and Gouvernement wallon  [2008] ECR I‑1683, paragraph 45 and the case-law cited).
45. According to settled case-law, national measures of that kind may be allowed only if they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued ( Government of Communauté française and Gouvernement wallon , paragraph 55 and the case-law cited).
46. Accordingly, it is for the national court to assess the compatibility of the rules of national legislation at issue with the requirements of European Union law by determining whether the Belgian rule against overlapping, which admittedly applies without distinction to Belgian nationals and to nationals of other Member States, does not in fact lead, in respect of the person concerned, to an unfavourable situation in comparison with that of a person whose situation has no cross-border element, and, if such a disadvantage is established in the present case, whether the national rule at issue is justified by objective considerations and is proportionate to the legitimate objective pursued by national law.