1 BY JUDGMENTS OF 22 APRIL 1980 , WHICH WERE RECEIVED AT THE COURT ON THE FOLLOWING 5 AND 7 MAY , THE ARBEIDSHOF ANTWERPEN ( LABOUR COURT , ANTWERP ), HASSELT DIVISION , ASKED THE COURT TO GIVE A RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF ARTICLE 51 OF THE TREATY AND ARTICLE 46 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 ) IN CONNEXION WITH THE PROBLEM SET OUT IN THE GROUNDS OF THE JUDGMENTS .
2 THOSE GROUNDS MAY BE SUMMARIZED AS FOLLOWS : MR CELESTRE , AN ITALIAN NATIONAL , MR DREILICH AND MR BOHNEFELD , BOTH GERMAN NATIONALS , WERE OCCUPIED AS MINERS UNDERGROUND IN BELGIUM FOR 27 , 28 AND 27 YEARS RESPECTIVELY . PREVIOUSLY , THEY HAD BEEN EMPLOYED IN THEIR COUNTRIES OF ORIGIN . THE RIJKSDIENST VOOR WERKNEMERSPENSIOENEN ( HEREINAFTER REFERRED TO AS ' ' THE NATIONAL OFFICE ' ' ), THE COMPETENT BELGIAN INSTITUTION , AWARDED THEM RETIREMENT PENSIONS ON THE BASIS OF THE PERIODS OF INSURANCE COMPLETED IN BELGIUM . THEY ALSO RECEIVE A RETIREMENT PENSION IN THEIR COUNTRIES OF ORIGIN . MRS RYDLAKOWSKI , A WIDOW , FOR HER PART RECEIVES A SURVIVOR ' S PENSION UNDER GERMAN AND BELGIAN LAW , BECAUSE HER HUSBAND WAS EMPLOYED IN GERMANY AND THEN WORKED AS A MINER UNDERGROUND IN BELGIUM FOR 25 YEARS .
3 THE PERSONS CONCERNED BROUGHT PROCEEDINGS BEFORE THE ARBEIDSRECHTBANKEN ( LABOUR TRIBUNALS ) HASSELT AND TONGEREN , WHICH HELD THAT MR CELESTRE , MR DREILICH , MR BOHNEFELD AND MRS RYDLAKOWSKI COULD CLAIM RETIREMENT AND SURVIVOR ' S PENSIONS CALCULATED ON THE BASIS OF THE FULL INSURANCE RECORD OF A MINER UNDERGROUND IN BELGIUM , CORRESPONDING TO 30 YEARS ' SERVICE .
4 THE NATIONAL OFFICE APPEALED TO THE ARBEIDSHOF ANTWERPEN , HASSELT DIVISION , AGAINST THE JUDGMENTS AT FIRST INSTANCE CLAIMING THAT ARTICLE 10 ( 2 ) OF BELGIAN ROYAL DECREE NO 50 LAYS DOWN A RULE AGAINST OVERLAPPING BENEFITS UNDER WHICH WORKERS WHO CAN ESTABLISH AN INSURANCE RECORD PARTLY AS A MINER AND PARTLY AS AN ORDINARY WORKER MAY OBTAIN A RETIREMENT PENSION EQUAL TO THE RESULT OBTAINED BY MULTIPLYING THE NUMBER OF YEARS WORKED AS A MINER BY 1.5 WITH A MAXIMUM OF 45/45 , AND THAT ONLY A RETIREMENT PENSION ( OR SURVIVOR ' S PENSION ) CORRESPONDING TO THE YEARS WORKED AS A MINER UNDERGROUND MAY BE PAID BY BELGIUM , WITH THE PROVISO THAT THE SUM OF THE ITALIAN OR GERMAN AND BELGIAN RETIREMENT PENSIONS MUST BE AT LEAST EQUAL TO THE FULL RETIREMENT PENSION GUARANTEED BY VIRTUE OF EMPLOYMENT AS A MINER UNDERGROUND .
5 MR STREHL , A GERMAN NATIONAL AND THE PLAINTIFF IN THE MAIN ACTION IN CASE 121/80 , IS ENTITLED TO AN INVALIDITY PENSION IN BOTH GERMANY AND BELGIUM BY VIRTUE OF HIS WORK AS A MINER , THE NATIONAAL PENSIOENFONDS VOOR MIJNWERKERS ( HEREINAFTER REFERRED TO AS ' ' THE MINERS ' FUND ' ' ) APPEALED AGAINST THE JUDGMENT OF THE ARBEIDSRECHTBANK HASSELT , WHICH TOOK INTO CONSIDERATION THE PRELIMINARY RULING OF THE COURT OF JUSTICE IN CASE 62/76 ( STREHL ( 1977 ) ECR 211 ) AND HELD THAT MR STREHL WAS ENTITLED TO AN INVALIDITY PENSION CALCULATED ON THE BASIS OF A FULL INSURANCE RECORD IN BELGIUM AS A MINER UNDERGROUND .
6 THE RETIREMENT PENSION SCHEME FOR MINERS IS LAID DOWN BY BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967 , WHICH PROVIDES : ' ' ARTICLE 4 THE RETIREMENT PENSION SHALL TAKE EFFECT FROM THE FIRST DAY OF THE MONTH WHICH FOLLOWS THAT DURING WHICH THE CLAIMANT APPLIES FOR THE PENSION AND 1 . . . . 2 . . . . 3 . THE FIRST DAY OF THE MONTH WHICH FOLLOWS THAT IN WHICH THE CLAIMANT : ( A ) REACHES THE NORMAL RETIREMENT AGE , WHICH IS 55 OR 60 YEARS OF AGE DEPENDING ON WHETHER A RETIREMENT PENSION IS PAID IN RESPECT OF EMPLOYMENT EITHER AS A MINEWORKER UNDERGROUND OR AS A MINEWORKER ON THE SURFACE , OR ( B)PROVES THAT HE HAS BEEN HABITUALLY AND MAINLY EMPLOYED AS A MINEWORKER FOR 25 YEARS IN MINES OR QUARRIES WORKED UNDERGROUND . . .; UNDER PARAGRAPH ( 2 ) OF ARTICLE 10 , BY WAY OF DEROGATION FROM SUBPARAGRAPH ( 2 ) OF PARAGRAPH ( 1 ), A WORKER : ' ' 1 . WHO HAS BEEN HABITUALLY AND MAINLY EMPLOYED AS A MINEWORKER FOR AT LEAST 20 YEARS MAY RECEIVE A RETIREMENT PENSION CALCULATED AT 1/30 FOR EACH CALENDAR YEAR OF EMPLOYMENT AS A MINEWORKER . IF IN AGGREGATE HE HAS NOT BEEN HABITUALLY AND MAINLY EMPLOYED FOR 30 CALENDAR YEARS AS A MINEWORKER UNDERGROUND IN MINES OR QUARRIES WORKED UNDERGROUND BUT CAN SHOW SUCH EMPLOYMENT FOR AT LEAST 25 SUCH YEARS HE SHALL BE DEEMED TO HAVE BEEN SO HABITUALLY AND MAINLY EMPLOYED FOR A NUMBER OF ADDITIONAL CALENDAR YEARS EQUAL TO THE DIFFERENCE BETWEEN 30 AND THE NUMBER OF CALENDAR YEARS IN WHICH HE PROVES THAT HE WAS SO HABITUALLY AND MAINLY EMPLOYED . EACH OF THOSE ADDITIONAL YEARS SHALL BE CONSIDERED AS YEARS OF EMPLOYMENT UNDERGROUND IN COALMINES BEFORE 1955 ; ' ' THE INVALIDITY PENSION SCHEME FOR MINERS IS LAID DOWN BY ROYAL DECREE OF 19 NOVEMBER 1980 , WHICH PROVIDES : ' ' ARTICLE 1 ( 1 ). THE FOLLOWING PERSONS SHALL BE ENTITLED TO AN INVALIDITY PENSION ON THE CONDITIONS HEREINAFTER PROVIDED : ( A ) A WORKER SUBJECT TO THE SOCIAL SECURITY SCHEME FOR MINERS WHO HAS ACTUALLY CEASED WORK IN MINING UNDERTAKINGS ON ACCOUNT OF ILL-HEALTH CAUSING UNFITNESS FOR NORMAL UNDERGROUND AND SURFACE WORK IN THOSE UNDERTAKINGS ; ( B)A WORKER SUBJECT TO THE SOCIAL SECURITY SCHEME FOR MINERS WHO , HAVING BEEN EMPLOYED UNDERGROUND , HAS ACTUALLY CEASED WORK IN THE SAID UNDERTAKINGS ON ACCOUNT OF ILL-HEALTH CAUSING UNFITNESS FOR NORMAL UNDERGROUND WORK IN THOSE UNDERTAKINGS . ( 2 ). THE INVALIDITY PENSION SHALL BE GRANTED : 1 . TO A WORKER REFERRED TO IN PARAGRAPH ( 1 ) ( A ), IF HE CAN SHOW A MINIMUM OF TEN YEARS ' SERVICE IN MINING UNDERTAKINGS ; 2 . TO A WORKER REFERRED TO IN PARAGRAPH ( 1 ) ( B ), IF HE CAN SHOW THE MINIMUM NUMBER OF YEARS ' SERVICE LAID DOWN BY SUBPARAGRAPH 1 . AND IF THAT MINIMUM PERIOD INCLUDES AT LEAST FIVE YEARS ' ACTUAL SERVICE UNDERGROUND IN MINING UNDERTAKINGS . ARTICLE 23 ( 1 ). AN INVALIDITY PENSION GRANTED UNDER THIS DECREE MAY OVERLAP WITH ONE OR MORE RETIREMENT OR INVALIDITY PENSIONS ONLY TO THE EXTENT OF THE ANNUAL AMOUNT OF THE PENSION LAID DOWN BY ARTICLE 4 ( 1 ) ( 2 .) OR ( 4 .), ACCORDING TO WHETHER THE WORKER CONCERNED IS MARRIED , WIDOWED , DIVORCED OR SEPARATED . ' '
7 THE QUESTION PUT BY THE ARBEIDSHOF AMOUNTS TO AN INQUIRY WHETHER ARTICLE 51 OF THE TREATY AND THE LEGISLATIVE PROVISIONS ADOPTED IN IMPLEMENTATION THEREOF MUST BE INTERPRETED AS MEANING THAT IN DETERMINING THE BENEFITS TO BE PAID TO THE RECIPIENTS PURSUANT TO THE LEGISLATION OF A MEMBER STATE , PERIODS OF INSURANCE MAY NOT BE TAKEN INTO ACCOUNT TWICE , IN PARTICULAR WHERE ACTUAL PERIODS OF INSURANCE IN ONE MEMBER STATE OVERLAP WITH NOTIONAL PERIODS IN ANOTHER MEMBER STATE .
8 THE COURT HAS NO JURISDICTION TO INTERPRET NATIONAL LEGISLATION WITHIN THE PROCEDURE LAID DOWN BY ARTICLE 177 OF THE TREATY . IT IS POSSIBLE , HOWEVER , TO EMPHASIZE CERTAIN RULES OF COMMUNITY LAW WHICH MAY ASSIST IN SETTLING THE DISPUTE BEFORE THE NATIONAL COURT .
9 IT MUST BE REMEMBERED FIRST THAT , AS THE COURT STATED INTER ALIA IN ITS JUDGMENT OF 14 MARCH 1978 IN CASE 98/77 SCHAAP ( 1978 ) ECR 707 , SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION ALONE , INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , FROM BEING APPLIED TO HIM IN ITS ENTIRETY , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF THE RULES LAID DOWN BY ARTICLE 46 OF REGULATION ( EEC ) NO 1408/71 THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED .
10 IT IS A MATTER FOR THE NATIONAL COURT TO GIVE A RULING ON THE CONTENT AND INTERPRETATION OF THE PROVISIONS OF ITS NATIONAL LEGISLATION ON OVERLAPPING BENEFITS AND TO MAKE THE NECESSARY COMPARISON IN ORDER TO DETERMINE IN EACH CASE WHETHER THE APPLICATION OF THE NATIONAL RULES IS LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF THE COMMUNITY PROVISIONS AS INTERPRETED BY THE COURT . THE WORKER MUST INDEED RECEIVE THOSE BENEFITS WHICH ARE THE MOST FAVOURABLE .
11 IN ITS JUDGMENT OF 15 OCTOBER 1980 IN CASE 4/80 D ' AMICO ( 1980 ) ECR 2951 THE COURT RULED THAT 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 OF 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 . CONSEQUENTLY , THE PROVISIONS OF CHAPTER 3 OF REGULATION ( EEC ) NO 1408/71 ARE APPLICABLE AND , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF THE REGULATION , THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING IS PRECLUDED .
12 IT MUST BE REMEMBERED THAT IT IS CLEAR FROM THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 THAT WHERE THE PROVISIONS OF ARTICLE 46 OF THE REGULATION ARE APPLIED , NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION , SUSPENSION OR WITHDRAWAL DO NOT APPLY . IT FOLLOWS THAT THE AMOUNT REFERRED TO IN ARTICLE 46 ( 1 ) IS THE AMOUNT TO WHICH THE WORKER WOULD BE ENTITLED UNDER NATIONAL LEGISLATION IF HE WERE NOT IN RECEIPT OF A PENSION BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE . IF UNDER THE NATIONAL LEGISLATION A WORKER WHO IS ABLE TO ESTABLISH A CERTAIN NUMBER OF YEARS OF INSURANCE IS ENTITLED TO A FULL PENSION , IT IS THE AMOUNT OF THAT FULL PENSION WHICH MUST BE TAKEN INTO ACCOUNT .
13 REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 160 ) CONTAINS IN ARTICLES 15 AND 46 PROVISIONS GOVERNING THE OVELAPPING OF PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES . CONSEQUENTLY , IT IS NOT PERMISSIBLE FOR THE INSTITUTION OF A MEMBER STATE TO APPLY NATIONAL RULES FOR THE AGGREGATION AND APPORTIONMENT OF PERIODS OF INSURANCE WHICH ARE LESS FAVOURABLE TO THE WORKER THAN THOSE CONTAINED IN THE REGULATION .
14 ATTENTION SHOULD BE DRAWN IN PARTICULAR TO ARTICLE 15 ( 1 ) ( E ) OF REGULATION ( EEC ) NO 574/72 WHICH PROVIDES AS FOLLOWS : ' ' WHERE IT IS NOT POSSIBLE ACCURATELY TO DETERMINE THE PERIOD OF TIME IN WHICH CERTAIN PERIODS OF INSURANCE WERE COMPLETED UNDER THE LEGISLATION OF ONE MEMBER STATE , SUCH PERIODS SHALL BE PRESUMED NOT TO OVERLAP WITH PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE AND SHALL , WHERE ADVANTAGEOUS , BE TAKEN INTO ACCOUNT . ' '
15 CONSEQUENTLY , THE REPLY WHICH MUST BE GIVEN TO THE QUESTION PUT BY THE ARBEIDSHOF ANTWERPEN IS AS FOLLOWS : ( A ) SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION ALONE , INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , FROM BEING APPLIED TO HIM IN ITS ENTIRETY , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF THE RULES LAID DOWN BY ARTICLE 46 OF REGULATION ( EEC ) NO 1408/71 THE PROVISION OF THAT ARTICLE MUST BE APPLIED . ( B)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 OF 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 . CONSEQUENTLY , THE PROVISIONS OF CHAPTER 3 OF REGULATION ( EEC ) NO 1408/71 ARE APPLICABLE AND , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF THE REGULATION , THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING IS PRECLUDED . ( C)WHERE A WORKER IS IN RECEIPT OF BENEFITS OF THE SAME KIND IN RESPECT OF INVALIDITY OR OLD AGE WHICH ARE AWARDED BY THE INSTITUTIONS OF TWO OR MORE MEMBER STATES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 OF REGULATION ( EEC ) NO 1408/71 , THE NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION , SUSPENSION OR WITHDRAWAL DO NOT APPLY . IT FOLLOWS THAT THE AMOUNT REFERRED TO IN ARTICLE 46 ( 1 ) IS THE AMOUNT TO WHICH THE WORKER WOULD BE ENTITLED UNDER NATIONAL LEGISLATION IF HE WERE NOT IN RECEIPT OF A PENSION BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE . IF UNDER THE NATIONAL LEGISLATION A WORKER WHO IS ABLE TO ESTABLISH A CERTAIN NUMBER OF YEARS OF INSURANCE IS ENTITLED TO A FULL PENSION , IT IS THE AMOUNT OF THAT FULL PENSION WHICH MUST BE TAKEN INTO ACCOUNT . ( D)REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 160 ) CONTAINS IN ARTICLES 15 AND 46 PROVISIONS GOVERNING THE OVERLAPPING PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF TWO OR MORE MEMBER STATES . CONSEQUENTLY , IT IS NOT PERMISSIBLE FOR THE INSTITUTION OF A MEMBER STATE TO APPLY NATIONAL RULES FOR THE AGGREGATION AND APPORTIONMENT OF PERIODS OF INSURANCE WHICH ARE LESS FAVOURABLE TO THE WORKER THAN THOSE CONTAINED IN THE REGULATION .