Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1978/R10577.html
Cite as: [1978] EUECJ R-105/77

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61977J0105
Judgment of the Court of 14 March 1978.
Bestuur van de Sociale Verzekeringsbank v Mrs Boerboom-Kersjes, a widow.
Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands.
Social security.
Case 105/77.
European Court reports 1978 Page 00717
Greek special edition 1978 Page 00269
Portuguese special edition 1978 Page 00277

SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - OVERLAPPING - ENTITLEMENT UNDER NATIONAL LEGISLATION ALONE - PROVISIONS FOR REDUCTION OR SUSPENSION - APPLICABILITY - POSITION UNDER COMMUNITY RULES MORE FAVOURABLE - PREFERENCE
( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 12 ( 2 ) AND 46 )

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 .

IN CASE 105/77
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ), UTRECHT , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
BESTUUR VAN DE SOCIALE VERZEKERINGSBANK ( BOARD OF MANAGEMENT OF THE SOCIAL INSURANCE BANK ), AMSTERDAM ,
AND
MRS BOERBOOM-KERSJES , A WIDOW , NIJMEGEN

ON THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 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 ),

1BY AN ORDER OF 9 AUGUST 1977 WHICH WAS RECEIVED AT THE COURT ON 29 AUGUST 1977 THE CENTRALE RAAD VAN BEROEP REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , FOR A PRELIMINARY RULING , A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 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 ).

2THIS QUESTION HAS BEEN RAISED IN AN ACTION CONCERNING THE CALCULATION BY THE COMPETENT NETHERLANDS INSTITUTION OF THE SURVIVOR ' S PENSION OF A NETHERLANDS NATIONAL , THE RESPONDENT IN THE MAIN ACTION , WHOSE HUSBAND HAD COMPLETED INSURANCE PERIODS IN THE NETHERLANDS AND IN THE FEDERAL REPUBLIC OF GERMANY .

3AT HIS DEATH THE HUSBAND HAD FULFILLED IN THE NETHERLANDS ALL THE CONDITIONS REQUIRED UNDER THE NATIONAL LEGISLATION FOR ENTITLEMENT TO AN OLD-AGE PENSION .

4THE NETHERLANDS INSTITUTION PURSUANT TO THE ALGEMENE WEDUWEN- EN WEZENWET ( LAW ON GENERAL INSURANCE FOR WIDOWS AND ORPHANS ) ( AWW ), RELYING ON THE RULE FOR THE LIMITATION OF BENEFITS LAID DOWN IN ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 , REDUCED THE BENEFIT PAYABLE UNDER THIS LEGISLATION BY THE AMOUNT OF THE BENEFIT PAID UNDER GERMAN LEGISLATION .

5MRS BOERBOOM-KERSJES , THE PARTY CONCERNED , CHALLENGED THIS DECISION BEFORE THE RAAD VAN BEROEP , AMSTERDAM , WHICH ANNULLED IT ON THE BASIS OF THE JUDGMENT OF THE COURT IN CASE 24/75 ( TERESA AND SILVANA PETRONI V OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( 1975 ) ECR 1149 ).

6THE NETHERLANDS INSTITUTION THEN APPEALED AGAINST THE JUDGMENT OF THE RAAD VAN BEROEP TO THE CENTRALE RAAD VAN BEROEP .

7THE QUESTION REFERRED IS :
' ' WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES , TO WHAT EXTENT DO ARTICLES 12 ( 2 ) AND 46 OF THE REGULATION NO 1408/71 PREVENT THE APPLICATION OF NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS SUCH AS THOSE IN FORCE PURSUANT TO THE AWW , WHERE ENTITLEMENT TO BENEFIT HAS BEEN OBTAINED PURSUANT TO NATIONAL LEGISLATION ALONE WITHOUT ITS BEING NECESSARY TO APPLY THE REGULATION FOR THAT PURPOSE?
' '
8THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 13 OCTOBER 1977 ( CASE 33/77 FERNANDO GRECO V FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( 1977 ) ECR 1711 ) 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 .

9IT FOLLOWS THAT IF THE PROVISIONS OF REGULATION NO 1408/71 ARE MORE FAVOURABLE TO THE WORKER THAN THE NATIONAL LEGISLATION THEY MUST BE APPLIED .

COSTS
10THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

11AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY ORDER OF 9 AUGUST 1977 , HEREBY RULES :
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 .