Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS) v José Blanco Marqués.
Date: 2018-03-15
35


As regards the definition of ‘a provision on reduction of benefit’ for the purposes of Article 12(2) of Regulation No 1408/71, it is apparent from settled case-law of the Court that a national rule must be regarded as a provision on reduction of benefit 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 (see, to that effect, judgments of 7 March 2002, Insalaca, C‑107/00, EU:C:2002:147, paragraph 16 and the case-law cited, and of 7 March 2013, van den Booren, C‑127/11, EU:C:2013:140, paragraph 28).
37


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).
39


The Court has already ruled that a national rule which provides that the supplement to a worker’s retirement pension is to be reduced by the amount of a retirement pension which the person concerned may claim under the scheme of another Member State constitutes a provision for reduction of benefit for the purposes of Article 12(2) of Regulation No 1408/71 (judgment of 22 October 1998, Conti, C‑143/97, EU:C:1998:501, paragraph 30).
40


In that regard, so far as concerns the argument of the INSS and the TGSS that the national rule at issue in the main proceedings falls outside the scope of Regulation No 1408/71 on account of the fact that it merely sets out a simple incompatibility rule, the Court has explained that national provisions for reduction of benefits cannot be rendered exempt from the conditions and limits of application laid down in Regulation No 1408/71 by categorising them as rules for calculating the amount payable or rules of evidence (see, to that effect, judgments of 22 October 1998, Conti, C‑143/97, EU:C:1998:501, paragraph 24, and of 18 November 1999, Van Coile, C‑442/97, EU:C:1999:560, paragraph 27).
46


With regard to the question whether the interpretation of a legal provision by a supreme court must be regarded as legislation within the meaning of Article 1(j) of Regulation No 1408/71, it should be borne in mind that the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (judgment of 8 June 1994, Commission v United Kingdom, C‑382/92, EU:C:1994:233, paragraph 36).
47


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).
50


With a view to answering that question, it should be borne in mind that, according to settled case-law of the Court, social security benefits must be regarded as being of the same kind when their purpose and object, as well as the basis on which they are calculated and the conditions for granting them, are identical. By contrast, characteristics which are purely formal need not be considered relevant criteria for the classification of the benefits (see, to that effect, judgments of 5 July 1983, Valentini, 171/82, EU:C:1983:189, paragraph 13; of 11 August 1995, Schmidt, C‑98/94, EU:C:1995:273, paragraphs 24 and 31; and of 18 July 2006, De Cuyper, C‑406/04, EU:C:2006:491, paragraph 25).
54


It is, moreover, to that effect that the total permanent incapacity pension and the 20% supplement are different from an unemployment benefit, which is intended to cover the risk associated with the loss of revenue suffered by a worker following the loss of his employment although he is still able to work (see, to that effect, judgment of 18 July 2006, De Cuyper, C‑406/04, EU:C:2006:491, paragraph 27).
59


In that regard, it should be pointed out that the Court has already ruled that, in the case where a worker is in receipt of invalidity benefits converted into an old-age pension by virtue of the legislation of a Member State and invalidity benefits not yet converted into an old-age pension under the legislation of another Member State, the old-age pension and the invalidity benefits are to be regarded as being of the same kind (judgments of 2 July 1981, Celestre and Others, 116/80, 117/80 and 119/80 to 121/80, EU:C:1981:159, paragraph 11 and the case-law cited, and of 18 April 1989, Di Felice, 128/88, EU:C:1989:153, paragraph 13).
63


In that regard, it must be pointed out that, according to Article 12(2) of Regulation No 1408/71, provisions to prevent overlapping laid down in the legislation of a Member State may, unless that regulation provides otherwise, be relied on 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 (judgments of 7 March 2002, Insalaca, C‑107/00, EU:C:2002:147, paragraph 22, and of 7 March 2013, van den Booren, C‑127/11, EU:C:2013:140, paragraph 29).