1 BY ORDER OF 14 OCTOBER 1981 , WHICH WAS RECEIVED AT THE COURT ON 19 OCTOBER 1981 , THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ), AMSTERDAM , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 46 ( 2 ) 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 ; CODIFIED VERSION : OFFICIAL JOURNAL 1980 C 138 , P . 1 ).
2 THE QUESTION AROSE IN THE COURSE OF THE PROCEEDINGS BROUGHT BY AN EEC CITIZEN AGAINST A DECISION OF THE NIEUWE ALGEMENE BEDRIJFSVERENIGING ( NEW GENERAL TRADE ASSOCIATION ), THE ' ' COMPETENT INSTITUTION ' ' WITHIN THE MEANING OF REGULATION NO 1408/71 , TO THE EFFECT THAT A FIVE-YEAR PERIOD OF UNEMPLOYMENT BETWEEN 1948 AND 1953 DURING WHICH THE PERSON CONCERNED WAS NOT INSURED AGAINST INVALIDITY COULD NOT BE TAKEN INTO ACCOUNT IN CALCULATING THE INVALIDITY BENEFIT GRANTED PURSUANT TO THE ABOVE-MENTIONED REGULATION IN CONJUNCTION WITH THE WET OP DE ARBEIDSONGESCHIKTHEIDSVERZEKERING OF 1966 ( THE NETHERLANDS LAW ON INSURANCE AGAINST INCAPACITY FOR WORK , HEREINAFTER REFERRED TO AS ' ' THE 1966 LAW ' ' ).
3 IT APPEARS THAT APART FROM THOSE FIVE YEARS MR BESEM WORKED , AND WAS THEREFORE INSURED , FROM 1934 ONWARDS PARTLY IN THE NETHERLANDS AND PARTLY IN THE FEDERAL REPUBLIC OF GERMANY , WHERE IN 1978 HE WAS DECLARED UNFIT FOR WORK .
4 UNDER THE PROVISIONS OF THE 1966 LAW THE AMOUNT OF THE BENEFIT IS NOT DEPENDENT ON THE LENGTH OF THE PERIODS OF INSURANCE WHICH HAVE BEEN COMPLETED BUT ON THE DEGREE OF INCAPACITY FOR WORK AND THE AMOUNT OF THE DAILY WAGE WHICH THE PERSON CONCERNED COULD HAVE OBTAINED HAD HE NOT BEEN UNFIT FOR WORK . THE BIJZONDER DAGLOONBESLUIT WAO ( ORDER LAYING DOWN SPECIAL RULES FOR DETERMINING THE DAILY WAGE , BASED ON THE 1966 LAW ) PROVIDES , HOWEVER , THAT WHERE ENTITLEMENT TO BENEFIT ARISES SOLELY BY VIRTUE OF THE COMMUNITY REGULATION , THE DAILY WAGE IS TO BE REDUCED PROPORTIONATELY IF THERE ARE ONE OR MORE UNINSURED PERIODS AFTER THE DATE ON WHICH THE PERSON CONCERNED WAS INSURED FOR THE FIRST TIME IN A MEMBER STATE .
5 IT WAS IN APPLICATION OF THE BIJZONDER DAGLOONBESLUIT THAT THE BEDRIJFSVERENIGING REDUCED MR BESEM ' S DAILY WAGE , CALCULATED UNDER THE GENERAL RULES FOR APPLYING THE 1966 LAW , ON THE BASIS OF THE RATIO OF THE UNINSURED PERIOD TO THE PERIODS OF INSURANCE COMPLETED IN THE TWO MEMBER STATES IN QUESTION . THE DAILY WAGE THUS REDUCED WAS ADOPTED BY THE BEDRIJFSVERENIGING AS THE BASIS FOR CALCULATING THE BENEFIT IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 .
6 THE PRESIDENT OF THE RAAD VAN BEROEP , AMSTERDAM , ALLOWED MR BESEM ' S APPEAL ON THE GROUND THAT SUCH A REDUCTION IN THE DAILY WAGE WAS CONTRARY TO REGULATION NO 1408/71 . THE NIEUWE ALGEMENE BEDRIJFSVERENIGING LODGED AN APPEAL AGAINST THAT DECISION WITH THE RAAD ITSELF , WHICH REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING : ' ' IS IT COMPATIBLE WITH THE METHOD OF CALCULATING BENEFITS PROVIDED FOR BY ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 FOR THE AMOUNT OF THE BENEFIT FROM A MEMBER STATE , WHOSE COMPETENT INSTITUTION MUST APPLY ARTICLE 45 ( 3 ) OF THE REGULATION IN ORDER TO GRANT ENTITLEMENT TO THE BENEFIT AND WHOSE LEGISLATION IS CONSIDERED TO BE OF THE KIND MENTIONED IN ARTICLE 37 ( 1 ) OF THE REGULATION , TO BE DETERMINED BY THE EXTENT TO WHICH THE PERIOD BETWEEN THE DATE ON WHICH THE PERSON CONCERNED WAS FIRST INSURED IN ANY ONE MEMBER STATE AND THE DATE ON WHICH THE INCAPACITY FOR WORK OCCURRED IS COMPLETED BY PERIODS OF INSURANCE IN ACCORDANCE WITH THE LEGISLATION OF THE MEMBER STATES OR BY VIRTUE OF THE REGULATION , WITH THE RESULT THAT THE RIGHTS ONLY OF THOSE WORKERS WHO HAVE MOVED TO ANOTHER MEMBER STATE ARE RESTRICTED? ' '
7 IN ORDER TO REPLY TO THE QUESTION IT IS NECESSARY TO EXAMINE MORE CLOSELY THE PROVISIONS IN REGULATION NO 1408/71 WHICH ARE APPLICABLE TO THE CASE .
8 ANNEX III TO THE REGULATION LISTS THE LEGISLATION REFERRED TO IN ARTICLE 37 ( 1 ) OF THE REGULATION UNDER WHICH THE AMOUNT OF INVALIDITY BENEFIT IS INDEPENDENT OF THE LENGTH OF THE INSURANCE PERIODS . IT IS APPARENT FROM THE ANNEX THAT THE NETHERLANDS LAW OF 1966 ON INSURANCE AGAINST INCAPACITY FOR WORK IS OF THAT TYPE , BUT THAT THE GERMAN LAW ON THE SAME SUBJECT IS NOT .
9 ARTICLE 40 OF THE REGULATION PROVIDES THAT THE PROVISIONS CONTAINED IN CHAPTER 3 ( ARTICLES 44 TO 51 , CONCERNING OLD-AGE AND DEATH BENEFITS ) ARE TO APPLY BY ANALOGY TO INVALIDITY BENEFITS PAID TO A WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO LEGISLATION IN TWO OR MORE MEMBER STATES , AT LEAST ONE OF WHICH IS NOT OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ).
10 WHERE THE LEGISLATION OF A MEMBER STATE WHICH , LIKE THE NETHERLANDS LAW IN QUESTION , MAKES THE GRANT OF BENEFITS CONDITIONAL UPON A WORKER ' S BEING SUBJECT TO ITS LEGISLATION AT THE TIME WHEN THE RISK MATERIALIZES , HAS NO REQUIREMENTS AS TO THE LENGTH OF INSURANCE PERIODS , ARTICLE 45 ( 3 ) OF THE REGULATION PROVIDES THAT ANY WORKER WHO IS NO LONGER SUBJECT TO THAT LEGISLATION IS TO BE DEEMED TO BE STILL SO SUBJECT AT THE TIME WHEN THE RISK MATERIALIZES IF , INTER ALIA , HE IS SUBJECT AT THAT TIME TO THE LEGISLATION OF ANOTHER MEMBER STATE .
11 ARTICLE 46 ( 2 ) LAYS DOWN THE METHOD OF CALCULATION TO BE USED WHERE CONDITIONS FOR ENTITLEMENT TO BENEFITS ARE NOT SATISFIED UNLESS ACCOUNT IS TAKEN OF THE PROVISIONS OF ARTICLE 45 . ACCORDING TO ARTICLE 46 ( 2 ) ( A ) THE COMPETENT INSTITUTION MUST , BEFORE CALCULATING THE AMOUNT OF THE APPORTIONED BENEFIT , CALCULATE THE THEORETICAL AMOUNT OF BENEFIT WHICH THE PERSON COULD CLAIM IF ALL THE PERIODS 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 ON WHICH THE BENEFIT IS AWARDED . IT IS EXPRESSLY ADDED THAT ' ' 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 REFERRED TO IN THIS SUBPARAGRAPH ' ' .
12 IT IS THUS APPARENT THAT THE SITUATION WHICH IS THE SUBJECT-MATTER OF THE MAIN PROCEEDINGS IS GOVERNED BY A COMPREHENSIVE SET OF COMMUNITY RULES WHICH CONTAIN ALL THAT IS NECESSARY TO ENABLE THE THEORETICAL AMOUNT TO BE DETERMINED BY CONSIDERING THOSE RULES IN CONJUNCTION WITH THE NATIONAL PROVISIONS LAYING DOWN THE AMOUNT OF BENEFIT WHICH WOULD BE RECEIVED BY A WORKER ENTITLED TO SUCH BENEFIT UNDER THE NATIONAL LEGISLATION ALONE .
13 IT IS NOT COMPATIBLE WITH THOSE RULES FOR A MEMBER STATE TO ADOPT FOR THE PURPOSE OF DETERMINING THE AMOUNT OF BENEFIT IN SUCH CIRCUMSTANCES PROVISIONS DESIGNED TO ALTER THE WAY IN WHICH THE THEORETICAL AMOUNT IS CALCULATED SO AS TO MAKE THAT AMOUNT LESS THAN THAT WHICH WOULD RESULT FROM THE GENERAL PROVISIONS IN FORCE UNDER THE NATIONAL LEGISLATION .
14 THE REPLY TO THE QUESTION IS THEREFORE THAT IT IS NOT COMPATIBLE WITH THE METHOD OF CALCULATING BENEFITS PROVIDED FOR BY ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 FOR THE COMPETENT INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION IS CONSIDERED TO BE OF THE KIND REFERRED TO IN ARTICLE 37 ( 1 ) OF THE REGULATION TO DETERMINE THE THEORETICAL AMOUNT OF THE INVALIDITY BENEFIT ON THE BASIS OF THE EXTENT TO WHICH THE PERIOD BETWEEN THE DATE ON WHICH THE PERSON CONCERNED WAS FIRST INSURED IN ANY ONE MEMBER STATE AND THE DATE ON WHICH THE INCAPACITY FOR WORK OCCURRED COMPRISES PERIODS OF INSURANCE COMPLETED UNDER THE LEGISLATION OF THE MEMBER STATES OR BY VIRTUE OF THE ABOVE-MENTIONED REGULATION .