1BY ORDER OF 11 JULY 1978 , WHICH WAS RECEIVED AT THE COURT ON 17 AUGUST 1978 , THE CENTRALE RAAD VAN BEROEP REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS FOR A PRELIMINARY RULING ON THE INTERPRETATION OF 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 ) AND OF ARTICLE 46 OF 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 . 159 ). THESE QUESTIONS HAVE ARISEN WITHIN THE CONTEXT OF PROCEEDINGS RELATING TO THE CALCULATION BY THE COMPETENT NETHERLANDS INSTITUTION OF THE INVALIDITY PENSION OF A NETHERLANDS NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , WHO WORKED IN THE FEDERAL REPUBLIC OF GERMANY FROM 1929 TO 1933 AND AFTERWARDS IN THE NETHERLANDS .
2THE PLAINTIFF IN THE MAIN ACTION AVAILED HIMSELF OF THE OPPORTUNITY AFFORDED BY GERMAN LEGISLATION RELATING TO THE VICTIMS OF NAZI PERSECUTION AND , WITH REFERENCE TO HIS PENSION INSURANCE , BOUGHT IN VOLUNTARILY THE BACK PERIOD FROM 1934 TO 1945 SO AS TO BE ABLE TO CLAIM A HIGHER GERMAN PENSION . THE NETHERLANDS FUND , TAKING INTO ACCOUNT THE GERMAN PENSION , REDUCED THE AMOUNT OF THE BENEFIT PAYABLE TO THE PLAINTIFF IN THE MAIN ACTION UNDER NETHERLANDS LEGISLATION ON PENSION INSURANCE IN APPLICATION OF THE NETHERLANDS ROYAL DECREE OF 22 DECEMBER 1972 , ENACTED IN IMPLEMENTATION OF ARTICLE 52 OF THE WET OP DE ARBEIDSONGESCHIKTHEIDSVERZEKERING ( LAW ON INSURANCE AGAINST INCAPACITY FOR WORK , HEREINAFTER REFERRED TO AS ' ' THE WAO ' ' ) AND WITH REFERENCE TO ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 .
3THE PLAINTIFF IN THE MAIN ACTION CHALLENGED THIS DECISION , CONTENDING THAT THE WHOLE OF THE GERMAN PENSION HAD WRONGLY BEEN TAKEN INTO ACCOUNT EVEN THOUGH THE LARGER PART THEREOF WAS ATTRIBUTABLE TO HIS VOLUNTARY INSURANCE . THE FURTHER ARGUMENT WAS PUT FORWARD THAT THE PROVISIONS OF REGULATION NO 1408/71 AS INTERPRETED BY THE COURT IN ITS JUDGMENT OF 21 OCTOBER 1975 IN CASE 24/75 ( TERESA AND SILVANA PETRONI V OFFICE NATIONALE DES PENSIONS POUR TRAVAILLEURS SALARIES ( 1975 ) ECR 1149 ) PRECLUDE ANY REDUCTION , PURSUANT TO THE PROVISIONS OF THE NATIONAL LEGISLATION OF A MEMBER STATE , OF BENEFIT ACQUIRED SOLELY BY VIRTUE OF NATIONAL LEGISLATION WITHOUT HAVING RECOURSE TO COMMUNITY PROVISIONS .
4WITHIN THE CONTEXT OF THE SAME MAIN ACTION THE CENTRALE RAAD VAN BEROEP REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY A FIRST ORDER OF 12 JULY 1977 A QUESTION FOR A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 OF REGULATION NO 1408/71 ( CASE 98/77 , MAX SCHAAP V BESTUUR VAN DE BEDRIJFSVERENIGING VOOR BANK- EN VEZEKERINGSWEZEN , GROOTHANDEL EN VRIJE BEROEPEN ) WORDED AS FOLLOWS : ' ' WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES , TO WHAT EXTENT DO ARTICLE 12 ( 2 ) AND ARTICLE 46 OF REGULATION ( EEC ) NO 1408/71 PREVENT THE APPLICATION OF NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS SUCH AS THOSE IN FORCE PURSUANT TO THE WAO , WHERE ENTITLEMENT TO BENEFIT HAS BEEN OBTAINED PURSUANT TO NATIONAL LEGISLATION ALONE WITHOUT ITS BEING NECESSARY TO APPLY THE REGULATION FOR THAT PURPOSE? ' ' FOR THE REASONS SET OUT IN ITS JUDGMENT OF 14 MARCH 1978 ( CASE 78/77 ( 1978 ) ECR 707 ), THE COURT GAVE THE FOLLOWING REPLY : ' ' SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION , 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 THAN THE APPLICATION OF THE RULES LAID DOWN BY ARTICLE 46 OF REGULATION NO 1408/71 THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED . ' '
5THE CENTRALE RAAD VAN BEROEP , SHARING THE DOUBTS EXPRESSED BY THE NETHERLANDS FUND , THE DEFENDANT IN THE MAIN ACTION , ON THE INTERPRETATION OF ARTICLE 46 ( 2 ) OF REGULATION NO 574/72 , REFERRED TO THE COURT ONCE MORE THE FOLLOWING QUESTIONS : ' ' 1 . IS THE HEADING OF ARTICLE 46 OF REGULATION NO 574/72 AN INTEGRAL PART OF THAT ARTICLE IN THE SENSE THAT THE CONTENT OF THE ARTICLE IS ALSO DETERMINED BY THAT HEADING? 2 . HAVING REGARD TO ARTICLE 46 ( 2 ) ( D ) OF REGULATION NO 1408/71 ARE THE SECOND SUBPARAGRAPH OF PARAGRAPH ( 1 ) AND PARAGRAPH ( 2 ) OF ARTICLE 46 OF REGULATION NO 574/72 READ TOGETHER WITH THE FIRST SUBPARAGRAPH OF PARAGRAPH ( 1 ) AND THE HEADING ABOVE THE ARTICLE TO BE UNDERSTOOD AS MEANING THAT THE WHOLE ARTICLE RELATES ONLY TO BENEFITS CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 2 ) ( A ) AND ( B ) OF REGULATION NO 1408/71 IN CASES WHERE AGGREGATION OF PERIODS HAS OCCURRED AND IN CONNEXION WITH WHICH PERIODS OF VOLUNTARY OR OPTIONAL CONTINUED INSURANCE WERE NOT TAKEN INTO ACCOUNT , OR DO THOSE PROVISIONS , OR DOES ONE OF THEM , ALSO APPLY TO CASES IN WHICH THE BENEFITS WERE NOT CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 2 ) ( A ) AND ( B ) OF REGULATION NO 1408/71 AND THERE HAS BEEN NO QUESTION OF LEAVING OUT OF ACCOUNT PERIODS OF VOLUNTARY OR OPTIONAL CONTINUED INSURANCE IN CALCULATING THE BENEFITS? ' '
6IT IS NECESSARY TO DEAL WITH THE TWO QUESTIONS JOINTLY . THE COURT BASES THE REPLY TO BE GIVEN TO THE QUESTIONS REFERRED TO IT ON THE FACT THAT THE BENEFITS IN QUESTION COME WITHIN SOCIAL SECURITY WITHIN THE MEANING OF REGULATION NO 1408/71 .
7A WORKER WHO HAD BEEN SUCCESSIVELY OR ALTERNATIVELY SUBJECT TO THE LEGISLATIONS OF TWO OR MORE MEMBER STATES , OF WHICH AT LEAST ONE IS NOT OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) OF REGULATION NO 1408/71 ( THAT IS , LEGISLATIONS ACCORDING TO WHICH THE AMOUNT OF INVALIDITY BENEFITS IS INDEPENDANT OF THE DURATION OF INSURANCE PERIODS OR PERIODS OF RESIDENCE - TYPE A ), RECEIVES BENEFITS , ACCORDING TO ARTICLE 40 ( 1 ) OF THE SAME REGULATION , UNDER THE PROVISIONS OF CHAPTER 3 ( OLD AGE AND DEATH ( PENSIONS )), WHICH APPLY BY ANALOGY . THE GERMAN LEGISLATION IS OF TYPE B , ACCORDING TO WHICH THE AMOUNT OF BENEFITS DEPENDS UPON THE DURATION OF INSURANCE PERIODS . IT FOLLOWS THAT THE PLAINTIFF IN THE MAIN ACTION MUST RECEIVE BENEFITS CALCULATED ACCORDING TO THE PROVISIONS OF CHAPTER 3 - ARTICLE 44 ET SEQ . OF REGULATION ( EEC ) NO 1408/71 .
8ARTICLE 46 OF THAT REGULATION IS DEVOTED TO THE AWARD OF BENEFITS TO A WORKER WHO HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES . THAT ARTICLE , WHICH MAY BE APPLICABLE TO THE CASE OF THE PLAINTIFF IN THE MAIN ACTION , PROVIDES AS FOLLOWS : ' ' 1 . WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF A MEMBER STATE AND WHERE HE SATISFIES ITS CONDITIONS FOR ENTITLEMENT TO BENEFITS , WITHOUT APPLICATION OF THE PROVISIONS OF ARTICLE 45 BEING NECESSARY , THE COMPETENT INSTITUTION OF THAT MEMBER STATE SHALL , IN ACCORDANCE WITH THE LEGISLATION WHICH IT ADMINISTERS , DETERMINE THE AMOUNT OF BENEFIT CORRESPONDING TO THE TOTAL LENGTH OF THE INSURANCE PERIODS TO BE TAKEN INTO ACCOUNT IN PURSUANCE OF SUCH LEGISLATION . THIS INSTITUTION SHALL ALSO CALCULATE THE AMOUNT OF BENEFIT WHICH WOULD BE OBTAINED BY APPLYING THE RULES LAID DOWN IN PARAGRAPH ( 2 ) ( A ) AND ( B ). ONLY THE HIGHER OF THESE TWO AMOUNTS SHALL BE TAKEN INTO CONSIDERATION . 2.WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF A MEMBER STATE AND DOES NOT SATISFY THE CONDITIONS FOR ENTITLEMENT TO BENEFITS UNLESS ACCOUNT IS TAKEN OF THE PROVISIONS OF ARTICLE 45 , THE COMPETENT INSTITUTION OF THAT MEMBER STATE SHALL APPLY THE FOLLOWING RULES : ( A ) THE INSTITUTION SHALL CALCULATE THE THEORETICAL AMOUNT OF BENEFIT THAT THE PERSON CONCERNED COULD CLAIM IF ALL THE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATIONS OF THE MEMBER STATES TO WHICH HE HAS BEEN SUBJECT HAD BEEN COMPLETED IN THE STATE IN QUESTION AND UNDER THE LEGISLATION ADMINISTERED BY IT ON THE DATE THE BENEFIT IS AWARDED . IF , UNDER THAT LEGISLATION , THE AMOUNT OF THE BENEFIT DOES NOT DEPEND ON THE LENGTH OF THE INSURANCE PERIODS , THEN THAT AMOUNT SHALL BE TAKEN AS THE THEORETICAL AMOUNT REFERRED TO IN THIS SUBPARAGRAPH ; ( B ) THE INSTITUTION SHALL THEN ESTABLISH THE ACTUAL AMOUNT OF THE BENEFIT ON THE BASIS OF THE THEORETICAL AMOUNT REFERRED TO IN THE PRECEDING SUBPARAGRAPH AND IN THE RATIO WHICH THE LENGTH OF THE INSURANCE PERIODS COMPLETED BEFORE THE MATERIALIZATION OF THE RISK UNDER THE LEGISLATION ADMINISTERED BY THAT INSTITUTION BEARS TO THE TOTAL LENGTH OF THE INSURANCE PERIODS COMPLETED BEFORE MATERIALIZATION OF THE RISK UNDER THE LEGISLATIONS OF ALL THE MEMBER STATES CONCERNED ; ( C ) . . . ( D ) THE PROCEDURE FOR TAKING INTO ACCOUNT DUPLICATE PERIODS WHEN APPLYING THE RULES OF CALCULATION LAID DOWN IN THIS PARAGRAPH SHALL BE LAID DOWN IN THE IMPLEMENTING REGULATION REFERRED TO IN ARTICLE 97 . 3.THE PERSONS CONCERNED SHALL BE ENTITLED TO THE TOTAL SUM OF THE BENEFITS CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS 1 AND 2 WITHIN THE LIMIT OF THE HIGHEST THEORETICAL AMOUNT OF BENEFITS CALCULATED ACCORDING TO PARAGRAPH 2 ( A ). WHERE THE AMOUNT REFERRED TO IN THE PRECEDING SUBPARAGRAPH IS EXCEEDED , ANY INSTITUTION APPLYING PARAGRAPH 1 SHALL ADJUST ITS BENEFIT BY AN AMOUNT CORRESPONDING TO THE PROPORTION WHICH THE AMOUNT OF THE BENEFIT CONCERNED BEARS TO THE TOTAL OF THE BENEFITS DETERMINED IN ACCORDANCE WITH PARAGRAPH 1 . ' '
9THE IMPLEMENTING REGULATION REFERRED TO IN ARTICLE 46 ( 2 ) ( D ) OF REGULATION ( EEC ) NO 1408/71 IS REGULATION ( EEC ) NO 574/72 OF THE COUNCIL , THE INTERPRETATION OF WHICH IS REQUESTED IN THE QUESTIONS REFERRED TO THE COURT . ARTICLE 15 ( 1 ) ( B ) OF THAT REGULATION , AS AMENDED BY REGULATION ( EEC ) NO 878/73 OF THE COUNCIL OF 26 MARCH 1973 ( OFFICIAL JOURNAL L 86 , P . 1 ), PROVIDES AS FOLLOWS : ' ' WHEN A COMPULSORY INSURANCE PERIOD OR PERIOD OF RESIDENCE COMPLETED UNDER THE LEGISLATION OF ONE MEMBER STATE COINCIDES WITH A VOLUNTARY OR OPTIONAL CONTINUED INSURANCE PERIOD UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , ONLY THE PERIOD COMPLETED UNDER COMPULSORY INSURANCE SHALL BE TAKEN INTO ACCOUNT . ' ' FOR THE PURPOSE OF AGGREGATION OF THE PERIODS , ARTICLE 46 OF THE SAME REGULATION , AS AMENDED BY REGULATION ( EEC ) NO 878/73 AND BY REGULATION ( EEC ) NO 1392/74 OF THE COUNCIL OF 4 JUNE 1974 ( OFFICIAL JOURNAL L 152 , P . 1 ) IS ENTITLED ' ' CALCULATION OF BENEFITS IN THE EVENT OF OVERLAPPING OF PERIODS ' ' AND PROVIDES AS FOLLOWS : ' ' 1 . FOR THE CALCULATION OF THE THEORETICAL AND ACTUAL AMOUNT OF BENEFIT IN ACCORDANCE WITH ARTICLE 46 ( 2 ) ( A ) AND ( B ) OF THE REGULATION , THE RULES PROVIDED FOR IN ARTICLE 15 ( 1 ) ( B ), ( C ) AND ( D ) OF THE IMPLEMENTING REGULATION SHALL APPLY . THE ACTUAL AMOUNT THUS ESTABLISHED SHALL BE INCREASED BY THE AMOUNT CORRESPONDING TO THE PERIODS OF VOLUNTARY OR OPTIONAL CONTINUED INSURANCE AND SHALL BE DETERMINED IN ACCORDANCE WITH THE LEGISLATION UNDER WHICH THESE INSURANCE PERIODS WERE COMPLETED . 2 . FOR THE PURPOSES OF ARTICLE 46 ( 3 ) OF THE REGULATION , THE AMOUNTS OF BENEFIT CORRESPONDING TO PERIODS OF VOLUNTARY OR OPTIONAL CONTINUED INSURANCE SHALL NOT BE TAKEN INTO ACCOUNT . ' '
10IT IS CLEAR FROM THE PROVISIONS QUOTED ABOVE THAT FOR THE PURPOSE OF THE CALCULATION OF THE ACTUAL AMOUNT OF BENEFIT IN ACCORDANCE WITH ARTICLE 46 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 , THE REGULATION AIMS TO ENSURE THAT A PERIOD OF INSURANCE COMPLETED UNDER VOLUNTARY OR OPTIONAL CONTINUED INSURANCE UNDER THE LEGISLATION OF ONE MEMBER STATE WHICH COINCIDES WITH A PERIOD OF INSURANCE OR RESIDENCE COMPLETED UNDER COMPULSORY INSURANCE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IS NOT TAKEN INTO ACCOUNT FOR THE PURPOSE OF THE AGGREGATION OF PERIODS WITHOUT THIS HOWEVER DEPRIVING THE WORKER OF THE BENEFIT OF THAT PERIOD . IT FOLLOWS FROM ALL THE FOREGOING THAT WHERE THERE CAN BE NO QUESTION OF PERIODS COINCIDING BECAUSE ONE BODY OF LEGISLATION IN QUESTION IS OF TYPE A THE REGULATION ALSO ALLOWS THE WORKER THE BENEFITS CORRESPONDING TO ANY PERIOD OF VOLUNTARY OR OPTIONAL INSURANCE .
11THEREFORE ALTHOUGH ARTICLE 46 ( 2 ) OF REGULATION NO 574/72 APPEARS UNDER THE HEADING ' ' CALCULATION OF BENEFITS IN THE EVENT OF OVERLAPPING OF PERIODS ' ' , IT MUST BE APPLIED TO ALL CASES COMING UNDER ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 SO THAT , FOR THE PURPOSE OF THE APPLICATION OF THAT PARAGRAPH , THE COMPETENT INSTITUTION CANNOT TAKE ACCOUNT OF BENEFITS CORRESPONDING TO PERIODS COMPLETED UNDER VOLUNTARY OR OPTIONAL INSURANCE .