1 BY A JUDGMENT OF 21 JANUARY 1977 , RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 10 FEBRUARY , 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 12 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THAT QUESTION HAS BEEN REFERRED 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 HAD WORKED AS A MINE WORKER FIRST IN FRANCE AND THEN IN BELGIUM .
3 IN BELGIUM THAT WORKER SATISFIED ALL THE CONDITIONS LAID DOWN BY THE NATIONAL LEGISLATION FOR ENTITLEMENT TO AN INVALIDITY PENSION UNDER THE SCHEME FOR MINE WORKERS .
4 ON THE OTHER HAND , FOR HIS ENTITLEMENT TO BENEFIT IN FRANCE , HE HAD TO HAVE RECOURSE TO THE PROVISIONS OF ARTICLE 45 OF REGULATION NO 1408/71 ; FOR THE PURPOSES OF CALCULATING THAT BENEFIT , THE PERIODS ACTUALLY COMPLETED IN BOTH MEMBER STATES WERE AGGREGATED AND THE FRENCH BENEFIT WAS APPORTIONED .
5 APPLYING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , THE BELGIAN INSTITUTION THEN DEDUCTED THE APPORTIONED AMOUNT OF THE FRENCH BENEFIT FROM THE INVALIDITY PENSION AND ASKED THE PERSON CONCERNED TO REFUND THE SUM OVERPAID .
6 THE DEFENDANT IN THE MAIN ACTION CLAIMS THAT WHEN THE BELGIAN INSTITUTION APPLIED THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS IT DEDUCTED NOT THE APPORTIONED AMOUNT OF THE FRENCH PENSION ( FF 2 003.81 PER YEAR ) BUT RATHER THE THEORETICAL AMOUNT OF THE FRENCH PENSION ( FF 2 603.45 ).
7 IT IS FOR THE NATIONAL COURT TO CONSIDER THAT SITUATION IN CONNEXION WITH THE APPLICATION OF THE NATIONAL RULES AGAINST OVERLAPPING OF BENEFITS .
8 THE QUESTION ASKS 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 BEING PLACED IN A MORE FAVOURABLE POSITION THAN A NON-MIGRANT WORKER .
9 THE CHARGE THAT MIGRANT WORKERS OBTAIN AN ADVANTAGE OVER WORKERS WHO HAVE NEVER LEFT THEIR OWN COUNTRY CANNOT BE ACCEPTED , SINCE NO DISCRIMINATION CAN ARISE IN LEGAL SITUATIONS WHICH ARE NOT COMPARABLE .
10 ANY DIFFERENCES WHICH MAY EXIST TO THE BENEFIT OF MIGRANT WORKERS DO NOT RESULT FROM THE INTERPRETATION OF COMMUNITY LAW BUT RATHER FROM THE LACK OF ANY COMMON SOCIAL SECURITY SYSTEM OR OF ANY HARMONIZATION OF THE EXISTING NATIONAL SCHEMES , WHICH CANNOT BE MITIGATED BY THE MERE CO-ORDINATION AT PRESENT PRACTISED .
11 ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 PROVIDES THAT ' THE LEGISLATIVE PROVISIONS OF A MEMBER STATE FOR REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFIT IN CASES OF OVERLAPPING WITH OTHER SOCIAL SECURITY BENEFITS OR OTHER INCOME MAY BE INVOKED EVEN THOUGH THE RIGHT TO SUCH BENEFITS WAS ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE OR SUCH INCOME ARISES IN THE TERRITORY OF ANOTHER MEMBER STATE . HOWEVER , THIS PROVISION SHALL NOT APPLY WHEN THE PERSON CONCERNED RECEIVES BENEFITS OF THE SAME KIND IN RESPECT OF INVALIDITY , OLD-AGE , DEATH ( PENSIONS ) OR OCCUPATIONAL DISEASE WHICH ARE AWARDED BY THE INSTITUTIONS OF TWO OR MORE MEMBER STATES IN ACCORDANCE WITH ARTICLES 46 , 50 , 51 OR ARTICLE 60 ( 1 ) ( B ) ' .
12 AS THE COURT HAS ALREADY RULED IN ITS JUDGMENT OF 21 OCTOBER 1975 ( CASE 24/75 , PETRONI V ONPTS , ( 1975 ) ECR 1149 ), ARTICLE 46 ( 3 ) IS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH IT IMPOSES A LIMITATION ON BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF THE BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE .
13 IT FOLLOWS THAT THE PROVISIONS OF THAT PARAGRAPH ARE NOT APPLICABLE WHERE THEY BRING ABOUT A REDUCTION IN THE BENEFIT ACQUIRED BY VIRTUE OF A MEMBER STATE ' S NATIONAL LEGISLATION ALONE AND THAT , WHERE THAT IS THE CASE , THE SECOND SENTENCE OF ARTICLE 12 ( 2 ) IS INAPPLICABLE .
14 WHEN THE SECOND SENTENCE IS NOT APPLICABLE , THE FIRST SENTENCE APPLIES , WITH THE CONSEQUENCE THAT NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFIT MAY BE INVOKED .
15 HOWEVER , IT APPEARS FROM ARTICLE 46 ( 1 ) THAT IF THE APPLICATION OF NATIONAL PROVISIONS ON ENTITLEMENT AND CALCULATION ALONE IS LESS ADVANTAGEOUS FOR THE WORKER THAN THE APPLICATION OF THE RULES FOR AGGREGATION AND APPORTIONMENT , THE LATTER MUST BE APPLIED .
16 THEREFORE THE ANSWER SHOULD BE THAT , 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 .