Manuela Gómez Rodríguez and Gregorio Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz.
Date: 1998-05-07
20 In that regard, it should be noted that in Case C-59/95 Bastos Moriana and Others v Bundesanstalt für Arbeit [1997] ECR I-1071, the Court clarified its case-law on benefit supplements.  It ruled on the question whether, under Articles 77 and 78 of the Regulation, the competent institution of a Member State must grant pensioners or orphans residing in another Member State a supplement of that kind even if entitlement to the pension or orphans' pension has not been acquired solely by virtue of periods of insurance completed in the first State.
21 The Court first recalled that the rules laid down in Articles 77 and 78 of the Regulation were designed to determine the Member State whose legislation governed the grant of the benefits in question, which were then granted, in principle, in accordance with the legislation of a single Member State. It followed from Articles 77(2)(b)(i) and 78(2)(b)(i) that where a pensioner or a deceased worker had been subject to the laws of more than one Member State, the benefits in question were to be paid in accordance with the laws of the State in whose territory the pensioner, or the orphan of the deceased worker, resided (Bastos Moriana and Others, paragraph 15).
22 Next, the Court stated that the rule relating to benefit supplements (see, in particular, the judgments in Laterza and Gravina) was based on the principle that the objective of Articles 48 to 51 of the Treaty would not be achieved if, as a consequence of the exercise of their right to freedom of movement, workers were to lose social security advantages guaranteed to them in any event by the laws of a single Member State (Bastos Moriana and Others, paragraph 17; see also Case 24/75 Petroni v ONPTS [1975] ECR 1149, paragraph 13).
23 The Court pointed out that to apply the provisions of Articles 77 and 78 of the Regulation specifying the Member State of residence as having sole competence to grant the family benefits in question could result, however, in the persons concerned being deprived of their entitlement to benefit under the laws of another Member State alone. It was for that reason that, in its judgments in Laterza and Gravina, those provisions had been interpreted as meaning that the principle of a single State responsible for payment was subject, as regards family benefits, to an exception requiring the other Member State to grant a benefit supplement (see Bastos Moriana and Others, paragraph 18).
24 Finally, the Court concluded that, having regard to the reasoning underlying that exception, its scope could not be widened in such a way that a benefit supplement had also to be granted where the entitlement of the pensioner or orphan existed only by virtue of the application of the aggregation rules provided for by the Regulation. In that situation, the application of Articles 77 and 78 did not deprive the persons concerned of the benefits granted under the laws of another Member State alone (Bastos Moriana and Others, paragraph 19).
28 As the Court has pointed out on a number of occasions, the Member States retain sole competence to determine the level and the duration of the benefits granted by them (see, inter alia, Case C-2/89 Bestuur van de Sociale Verzekeringsbank v Kits van Heijningen [1990] ECR I-1755, paragraph 19).
32 It follows that, where entitlement to benefits which arose in the State of residence is lost because an age-limit has been reached, the competent institution of another Member State is not required to grant benefits to the persons concerned, unless they have acquired their entitlement there solely on the basis of the periods of insurance completed in that State.
38 In Case 82/72 Walder v Bestuur der Sociale Verzekeringsbank [1973] ECR 599, on the interpretation of Articles 6 and 7 of the Regulation, the Court held (at paragraphs 6 and 7) that it was clear from those provisions that the replacement of provisions of social security conventions concluded between Member States by Community regulations was mandatory and did not allow of any exceptions save for the cases expressly referred to by the regulations, even where the social security conventions were more advantageous to the persons covered by them than those regulations.
39 However, the Court ruled in Rönfeldt that Articles 48(2) and 51 of the EC Treaty had to be interpreted as precluding the loss of social security advantages for the workers concerned which would result from the inapplicability, following the entry into force of the Regulation, of conventions operating between two or more Member States and incorporated in their national law.
40 In Thévenon the Court stated that the circumstances in Rönfeldt were specific in nature and not present in a case such as the one before it, where the insured person had not exercised his right to freedom of movement until after the entry into force of the Regulation, that is to say after the bilateral convention had already been replaced by the Regulation.
41 In the main proceedings, the appellants' father completed his periods of insurance in Spain and Germany before the accession of the Kingdom of Spain to the European Communities and the rule identified in Rönfeldt, as clarified in Thévenon, is therefore applicable in principle.
42 It follows that persons such as the appellants in the main proceedings cannot lose the social security advantage which they were guaranteed by the bilateral convention in question.
43 In that regard, the German Government points out that in this instance a comparison has already been made, under Article 118(1) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 (OJ, English Special Edition 1972 (I), p. 159), of the advantages resulting from, respectively, the bilateral convention and the Regulation, whose outcome was that it was more advantageous to apply the Regulation than the convention.
44 Article 118(1) of Regulation No 574/72 applies in circumstances where the Regulation enters into force after the risk materialises but before the benefit is set for the first time.  In that case, the provision states that the pension claim is to give rise to a double award, both in accordance with the convention, for the period before the Regulation applied, and in accordance with the Regulation, for the period after its entry into force.  It also provides that if the amount calculated under the convention is higher than that calculated under the Regulation, the person concerned is to continue to receive the amount calculated under the convention.
45 Since a comparison has already been made between the advantages resulting from the convention and those resulting from the Regulation, whose outcome was that the arrangements under the Regulation were more favourable for the appellants, the principle identified in Rönfeldt cannot be applied.