1 BY A JUDGMENT OF 24 FEBRUARY RECEIVED AT THE COURT REGISTRY ON 6 MARCH 1975, THE TRIBUNAL DU TRAVAIL OF BRUSSELS REFERRED THREE QUESTIONS UNDER ARTICLE 177 OF THE EEC TREATY CONCERNING THE VALIDITY AND THE INTERPRETATION OF ARTICLE 46 ( 3 ) 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 ( OJ L 149 OF 5 . 7 . 1971, P . 18 ).
2 THESE QUESTIONS HAVE BEEN RAISED WITHIN THE FRAMEWORK OF PROCEEDINGS BETWEEN THE BELGIAN INSTITUTION RESPONSIBLE FOR THE PAYMENT OF PENSIONS TO EMPLOYED PERSONS AND THE SUCCESSORS OF A MIGRANT WORKER IN RELATION TO THE CALCULATION OF THE RETIREMENT PENSION TO WHICH THE LATTER WAS ENTITLED UNTIL THE TIME OF HIS DEATH .
3 THE WORKER, WHO HAD COMPLETED INSURANCE PERIODS IN BELGIUM AND IN ITALY, FULFILLED IN THE FIRST MEMBER STATE ALL THE CONDITIONS REQUIRED BY THE NATIONAL LEGISLATION FOR ENTITLEMENT TO BENEFIT, WHICH, CALCULATED ON THE BASIS OF THAT LEGISLATION, AMOUNTED TO BFRS . 34 358 .
4 ON THE OTHER HAND, IN ORDER TO ESTABLISH HIS RIGHT TO BENEFIT IN THE SECOND MEMBER STATE, HE HAD TO INVOKE THE PROVISIONS OF ARTICLE 45 OF THE REGULATION NO 1408/71, AND FOR THE CALCULATION OF THAT BENEFIT THE PERIODS ACTUALLY COMPLETED IN THE TWO MEMBER STATES WERE AGGREGATED AND THE ITALIAN BENEFIT WAS APPORTIONED .
5 TAKING ADVANTAGE OF THE RULE LIMITING THE OVERLAPPING OF BENEFITS PROVIDED IN DIFFERENT MEMBER STATES, LAID DOWN BY ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71, THE BELGIAN INSTITUTION REDUCED THE BENEFIT TO BFRS 26 427 .
6 THAT SUM REPRESENTS THE THEORETICAL AMOUNT OF THE BELGIAN BENEFIT, THAT IS TO SAY, THE AMOUNT WHICH IS ARRIVED AT IF THE PERIODS COMPLETED IN THE TWO MEMBER STATES HAD BEEN COMPLETED IN BELGIUM, LESS THE ITALIAN BENEFIT CALCULATED AFTER AGGREGATION AND APPORTIONMENT .
7 THIS METHOD OF CALCULATION BY THE BELGIAN INSTITUTION IS INTENDED TO PUT INTO PRACTICE A PRINCIPLE ACCORDING TO WHICH THE MIGRANT WORKER IS ASSURED OF RECEIVING IN TOTAL, BY VIRTUE OF THE VARIOUS PENSIONS GRANTED TO HIM BY THE VARIOUS MEMBER STATES, AN AMOUNT EQUAL TO THE HIGHEST BENEFIT THAT HE WOULD HAVE OBTAINED IF HE HAD SPENT HIS WHOLE WORKING LIFE SUBJECT TO THE LEGISLATION OF ONE OR OTHER OF THE MEMBER STATES CONCERNED .
8 ACCORDING TO THE SAME PRINCIPLE THAT AMOUNT REPRESENTS THE MAXIMUM THAT HE MAY RECEIVE IN TOTAL BY VIRTUE OF THOSE VARIOUS PENSIONS .
9 THE QUESTIONS REFERRED BY THE NATIONAL COURT ASK WHETHER THIS RULE, TO THE EXTENT TO WHICH IT CONSTITUTES A LIMITATION ON OVERLAPPING, MUST BE APPLIED IN CASES SUCH AS THE PRESENT AND, IF SO, WHETHER IT MUST THEREFORE BE REGARDED AS BEING INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY . ON THE FIRST QUESTION AND THE FIRST PART OF THE SECOND QUESTION
10 THESE QUESTIONS ASK WHETHER ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL IS IN CONFORMITY WITH ARTICLE 51 OF THE TREATY AND, IF SO, WHETHER IT MUST BE APPLIED TO THE PENSION GRANTED TO A MIGRANT WORKER ON THE BASIS OF INSURANCE PERIODS NOT DUPLICATED BY ANY OF THE PERIODS USED AS THE BASIS FOR CALCULATING THE PENSION GRANTED IN OTHER COUNTRIES OF THE COMMUNITY .
11 THE REGULATIONS IN THE FIELD OF SOCIAL SECURITY FOR MIGRANT WORKERS HAVE AS THEIR BASIS, THEIR FRAMEWORK AND THEIR BOUNDS ARTICLE 48 TO 51 OF THE TREATY .
12 ARTICLE 51 REQUIRES THE COUNCIL TO ADOPT IN THE FIELD OF SOCIAL SECURITY SUCH MEASURES AS ARE 'NECESSARY' TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS, PROVIDING FOR THE AGGREGATION, IN PARTICULAR FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT, OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES .
13 THE AIM OF ARTICLES 48 TO 51 WOULD NOT BE ATTAINED IF, AS A CONSEQUENCE OF THE EXERCISE OF THEIR RIGHT TO FREEDOM OF MOVEMENT, WORKERS WERE TO LOSE ADVANTAGES IN THE FIELD OF SOCIAL SECURITY GUARANTEED TO THEM IN ANY EVENT BY THE LAWS OF A SINGLE MEMBER STATE .
14 ARTICLE 51 OF THE TREATY DEALS ESSENTIALLY WITH THE CASE IN WHICH THE LAWS OF ONE MEMBER STATE DO NOT BY THEMSELVES ALLOW THE PERSON CONCERNED THE RIGHT TO BENEFITS BY REASON OF THE INSUFFICIENT NUMBER OF PERIODS COMPLETED UNDER ITS LAWS, OR ONLY ALLOW HIM BENEFITS WHICH ARE LESS THAN THE MAXIMUM .
15 TO REMEDY THIS SITUATION IT PROVIDES, IN RESPECT OF A WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LAWS OF TWO OR MORE MEMBER STATES, FOR AGGREGATION OF THE INSURANCE PERIODS COMPLETED UNDER THE LAWS OF EACH OF SUCH STATES .
16 THE AGGREGATION AND APPORTIONMENT CANNOT THEREFORE BE CARRIED OUT IF THEIR EFFECT IS TO DIMINISH THE BENEFITS WHICH THE PERSON CONCERNED MAY CLAIM BY VIRTUE OF THE LAWS OF A SINGLE MEMBER STATE ON THE BASIS SOLELY OF THE INSURANCE PERIODS COMPLETED UNDER THOSE LAWS, ALWAYS PROVIDED THAT THIS METHOD CANNOT LEAD TO A DUPLICATION OF BENEFITS FOR ONE AND THE SAME PERIOD .
17 AGGREGATION IS NOT APPLIED EVEN IN CASES WHERE INSURANCE PERIODS COMPLETED IN THE STATE CONCERNED COINCIDE WITH INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE .
18 THAT INTERPRETATION IS EXPRESSLY CONFIRMED BY ARTICLE 45 OF REGULATION NO 1408/71 ACCORDING TO WHICH AN INSTITUTION OF A MEMBER STATE WHOSE LEGISLATION MAKES THE ACQUISITION, RETENTION OR RECOVERY OF THE RIGHT TO BENEFITS CONDITIONAL UPON THE COMPLETION OF PERIODS OF INSURANCE OR OF RESIDENCE SHALL TAKE INTO ACCOUNT PERIODS OF INSURANCE OR OF RESIDENCE COMPLETED IN OTHER MEMBER STATES ONLY 'TO THE EXTENT NECESSARY '.
19 THUS, IN ADOPTING REGULATION NO 1408/71, THE COUNCIL INTENDED TO ALIGN THE IMPLEMENTING RULES WHICH IT LAYS DOWN WITH THE REQUIREMENTS OF ARTICLE 51 OF THE TREATY .
20 ARTICLE 46 ( 3 ) APPEARS TO BE A RULE LIMITING OVERLAPPING AND THE COUNCIL, IN THE EXERCISE OF THE POWERS WHICH IT HOLDS UNDER ARTICLE 51 CONCERNING THE COORDINATION OF THE SOCIAL SECURITY SCHEMES OF THE MEMBER STATES, HAS THE POWER, IN CONFORMITY WITH THE PROVISIONS OF THE TREATY, TO LAY DOWN DETAILED RULES FOR THE EXERCISE OF RIGHTS TO SOCIAL BENEFITS WHICH THE PERSONS CONCERNED DERIVE FROM THE TREATY .
21 HOWEVER, A LIMITATION ON THE OVERLAPPING OF BENEFITS WHICH WOULD LEAD TO A DIMINUTION OF THE RIGHTS WHICH THE PERSONS CONCERNED ALREADY ENJOY IN A MEMBER STATE BY VIRTUE OF THE APPLICATION OF THE NATIONAL LEGISLATION ALONE IS INCOMPATIBLE WITH ARTICLE 51 .
22 IT IS THEREFORE PROPER TO CONCLUDE 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 THE BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE .
23 CONSEQUENTLY, THE OTHER QUESTIONS HAVE LOST THEIR PURPOSE .