1BY A JUDGMENT OF 13 OCTOBER 1978 , RECEIVED AT THE COURT ON 27 OCTOBER , THE COUR DU TRAVAIL , MONS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 46 ( 1 ) AND ( 2 ) OF REGULATION 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 ).
2THAT QUESTION HAS BEEN RAISED IN THE CONTEXT OF AN ACTION CONCERNING THE WAY IN WHICH THE COMPETENT BELGIAN INSTITUTION CALCULATED THE INVALIDITY PENSION OF AN ITALIAN NATIONAL , THE DEFENDANT IN THE MAIN ACTION , WHO WAS EMPLOYED AS A MINE-WORKER IN FRANCE FROM 1958 TO 1962 AND THEN IN BELGIUM FROM 1962 TO 1973 , WHEN HE BECAME INCAPACITATED .
3IN BELGIUM THE WORKER SATISFIED THE CONDITION LAID DOWN BY NATIONAL LEGISLATION FOR THE ACQUISITION OF THE RIGHT TO AN INVALIDITY PENSION UNDER THE SCHEME FOR MINE-WORKERS , NAMELY A MINIMUM OF TEN YEARS ' SERVICE IN MINING UNDERTAKINGS . ON THE OTHER HAND , FOR THE ACQUISITION OF HIS RIGHT TO BENEFIT IN FRANCE , HE HAD TO HAVE RECOURSE TO THE PROVISIONS OF ARTICLE 45 OF REGULATION NO 1408/71 ; FOR THE PURPOSE OF CALCULATING THAT BENEFIT , THE PERIODS ACTUALLY COMPLETED IN BOTH MEMBER STATES WERE AGGREGATED AND THE FRENCH BENEFIT WAS APPORTIONED . APPLYING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS AND ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 , THE COMPETENT BELGIAN INSTITUTION , THE FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( FNROM ), THEN DEDUCTED THE APPORTIONED AMOUNT OF FRENCH BENEFIT FROM THE INVALIDITY PENSION AND ASKED THE PERSON CONCERNED TO REFUND THE SUM OVERPAID .
4DURING THE COURSE OF THE SAME ACTION THE COUR DU TRAVAIL , MONS ASKED IN A PREVIOUS JUDGMENT OF 21 JANUARY 1977 UNDER ARTICLE 177 OF THE TREATY WHETHER ARTICLE 12 OF REGULATION NO 1408/71 AUTHORIZING THE OVERLAPPING OF BENEFITS MUST TAKE PRECEDENCE OVER NATIONAL RULES AGAINST OVERLAPPING IN CASES IN WHICH THE COMMUNITY PROVISIONS RESULT IN A MIGRANT WORKER ' S BEING PLACED IN A MORE FAVOURABLE POSITION THAN A NON-MIGRANT WORKER .
5IN ITS JUDGMENT OF 13 OCTOBER 1977 IN CASE 22/77 ( 1977 ) ECR 1699 THE COURT GAVE THE FOLLOWING ANSWER : ' ' 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 REGARDING AGGREGATION AND APPORTIONMENT THOSE RULES MUST , BY VIRTUE OF ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , BE APPLIED ' ' .
6THE COUR DU TRAVAIL , MONS , SHARING THE DOUBTS EXPRESSED BY THE FUND ON THE INTERPRETATION OF ARTICLE 46 OF REGULATION NO 1408/71 , MADE A SECOND REFERENCE TO THE COURT AND ASKED THE FOLLOWING QUESTION : ' ' DOES THE SECOND SUBPARAGRAPH OF ARTICLE 46 ( 1 ) . . . PRECLUDE THE APPLICATION OF ARTICLE 46 ( 2 ) ( C)? THIS QUESTION IS OF PARTICULAR RELEVANCE INASMUCH AS THE COURT OF JUSTICE , IN ITS JUDGMENT OF 14 MARCH 1978 IN CASE 98/77 , SCHAAP , REFERS IN THE OPERATIVE PART , AND NOT IN THE STATEMENT OF THE GROUNDS THEREFOR , TO THE WHOLE OF ARTICLE 46 ' ' .
7TO ANSWER THIS QUESTION IT IS NECESSARY TO CONSIDER IN THE FIRST PLACE THE PROVISIONS OF REGULATION NO 1408/71 .
8ARTICLE 46 OF THE REGULATION CONTAINS THE PROVISIONS TO BE APPLIED FOR THE AWARD OF OLD-AGE PENSIONS IN THE CASE OF A WORKER WHO HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES . FOR THE AWARD OF INVALIDITY BENEFITS IN THE CASE OF A WORKER WHO HAS BEEN SUBJECT SUCCESSIVELY OR ALTERNATELY TO THE LEGISLATIVE SYSTEMS OF TWO OR MORE MEMBER STATES , ONE AT LEAST OF WHICH IS NOT A SYSTEM DETERMINING THE AMOUNT OF BENEFIT INDEPENDENTLY OF THE DURATION OF INSURANCE PERIODS OR OF RESIDENCE , THE PROVISIONS OF ARTICLE 46 , BY VIRTUE OF ARTICLE 40 ( 1 ), APPLY BY ANALOGY .
9ARTICLE 46 PROVIDES THAT ' ' THE THEORETICAL AMOUNT ' ' OF BENEFIT SHALL BE CALCULATED BY THE INSTITUTION OF EACH OF THE MEMBER STATES TO WHOSE LEGISLATION THE WORKER HAS BEEN SUBJECT . THE THEORETICAL AMOUNT IS THE AMOUNT OF BENEFIT WHICH THE WORKER COULD CLAIM IF ALL THE INSURANCE PERIODS OR PERIODS OF RESIDENCE COMPLETED UNDER THE LEGISLATION 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 PERIODS COMPLETED , THEN THAT AMOUNT SHALL BE TAKEN AS THE THEORETICAL AMOUNT .
10THE ' ' ACTUAL AMOUNT ' ' OF THE BENEFIT IS CALCULATED AS FOLLOWS . WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF A MEMBER STATE AND WHERE THE CONDITIONS FOR ENTITLEMENT TO BENEFIT HAVE BEEN SATISFIED 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 OR PERIODS OF RESIDENCE TO BE TAKEN INTO ACCOUNT IN PURSUANCE OF SUCH LEGISLATION . IT SHALL ALSO UNDERTAKE THE CALCULATION OF THE AMOUNT OF BENEFIT WHICH WOULD BE OBTAINED BY APPLYING THE RULES LAID DOWN IN ARTICLE 46 ( 2 ) ( A ) AND ( B ), NAMELY THE RULES ON AGGREGATION AND APPORTIONMENT . ONLY THE HIGHER OF THESE TWO AMOUNTS IS TO BE CONSIDERED ( ARTICLE 46 ( 1 )). WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF ANY MEMBER STATE AND DOES NOT SATISFY THE CONDITIONS FOR ENTITLEMENT TO BENEFITS UNLESS ACCOUNT IS TAKEN OF THE PROVISIONS OF ARTICLE 45 ( ARTICLE 46 ( 2 ) ( A ) AND ( B )), THE RESPONSIBLE INSTITUTION OF THAT MEMBER STATE IS TO APPLY THE RULES ON AGGREGATION AND APPORTIONMENT SET OUT IN ARTICLE 46 ( 2 ). THE PROCESS OF APPORTIONMENT ENABLES AN ' ' ACTUAL AMOUNT ' ' TO BE ESTABLISHED ON THE BASIS OF THE THEORETICAL AMOUNT PRO RATA WITH THE LENGTH OF THE PERIODS OF INSURANCE OR RESIDENCE COMPLETED BEFORE THE OCCURRENCE OF THE EVENT INSURED AGAINST UNDER THE LEGISLATION APPLIED BY THAT INSTITUTION AS COMPARED WITH THE TOTAL LENGTH OF THE PERIODS OF INSURANCE AND RESIDENCE COMPLETED UNDER THE LEGISLATION OF ALL THE MEMBER STATES CONCERNED BEFORE THE OCCURRENCE OF THAT EVENT .
11THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 3 ) PROVIDES THAT THE WORKER SHALL BE ENTITLED TO THE TOTAL SUM OF THE BENEFITS CALCULATED IN ACCORDANCE WITH THE ABOVE-MENTIONED PROVISIONS , WITHIN THE LIMIT OF THE HIGHEST THEORETICAL AMOUNT OF BENEFITS . THE SECOND SUBPARAGRAPH OF ARTICLE 46 ( 3 ) NEVERTHELESS PROVIDES THAT 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 ARTICLE 46 ( 1 ).
12IN ITS JUDGMENT OF 21 OCTOBER 1975 IN CASE 34/75 , PETRONI ( 1975 ) ECR 1149 , THE COURT RULED THAT ARTICLE 46 ( 3 ) IS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH IT IMPOSES A LIMITATION ON THE OVERLAPPING OF TWO BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF A BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE . IN SUBSEQUENT JUDGMENTS AND IN PARTICULAR IN THE JUDGMENT OF 13 OCTOBER 1977 IN THE PRESENT CASE AND THAT OF 14 MARCH 1978 IN CASE 98/77 , SCHAAP ( 1978 ) ECR 707 , THE COURT STATED THAT WHERE , ON THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING , THE APPLICATION OF THE NATIONAL LEGISLATION ALONE IN ITS ENTIRETY PROVES LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF THE RULES LAID DOWN BY THE COUNCIL IN REGULATION NO 1408/71 , THE LATTER MUST BE APPLIED .
13IT FOLLOWS THAT IN SUCH A CASE THE PROVISIONS OF ARTICLE 46 OF THE REGULATION MUST BE APPLIED IN THEIR ENTIRETY .