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

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Cite as: [1979] EUECJ R-180/78

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61978J0180
Judgment of the Court of 19 June 1979.
Mme Brouwer-Kaune v Bestuur van de Bedrijfsvereniging voor het Kledingbedrijf.
Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands.
Case 180/78.
European Court reports 1979 Page 02111
Greek special edition 1979:II Page 00049
Spanish special edition 1979 Page 01067

SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - BENEFITS - OVERLAPPING - APPLICATION BY ANALOGY WITH PROVISIONS RELATIVE TO OLD-AGE AND DEATH BENEFITS - SCOPE OF ANALOGY
( REGULATION NO 1408/71 OF THE COUNCIL , ART . 40 ( 1 ))

ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT IT ALSO RELATES TO THE AWARD OF INVALIDITY BENEFITS IN A MEMBER STATE IN WHICH THE RIGHT TO SUCH BENEFITS HAS BEEN ACQUIRED BY A WORKER ON THE BASIS OF LEGISLATION OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) IN A CASE WHERE THE PERSON CONCERNED , BEFORE THE ACQUISITION OF SUCH RIGHT , HAD ALREADY BECOME ENTITLED , BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE NOT BEING OF THAT TYPE , TO AN OLD-AGE BENEFIT RESULTING FROM THE CONVERSION OF AN EARLIER INVALIDITY BENEFIT .

IN CASE 180/78
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP , UTRECHT , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
MRS BROUWER-KAUNE
AND
BESTUUR VAN DE BEDRIJFSVERENIGING VOOR HET KLEDINGBEDRIJF ( BOARD OF THE TRADE ASSOCIATION FOR THE CLOTHING TRADE ),

ON THE INTERPRETATION OF CERTAIN PROVISIONS 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 ) AND MORE PARTICULARLY OF ARTICLE 40 ( 1 ) OF THAT REGULATION ,

1 BY AN ORDER OF 16 MAY 1978 WHICH WAS RECEIVED AT THE COURT ON 5 SEPTEMBER OF THE SAME YEAR , THE CENTRALE RAAD VAN BEROEP REQUESTED A PRELIMINARY RULING , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , ON THE INTERPRETATION OF ARTICLE 40 ( 1 ) 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 ).

2 THE QUESTION HAS ARISEN IN THE CONTEXT OF A DISPUTE CONCERNING THE CALCULATION , BY THE COMPETENT NETHERLANDS INSTITUTION , OF AN INVALIDITY PENSION PAYABLE TO A WORKER WHO , AFTER WORKING IN GERMANY BETWEEN 1928 AND 1950 , SETTLED IN THE NETHERLANDS , WHERE SHE WORKED AS AN EMPLOYED PERSON FROM 1951 TO 1972 . IT EMERGES FROM THE LETTER BY WHICH THE CENTRALE RAAD VAN BEROEP TRANSMITTED ITS DECISION TO THE COURT THAT , FROM 1 AUGUST 1970 , THE PERSON CONCERNED RECEIVED IN GERMANY AN OCCUPATIONAL INVALIDITY PENSION WHICH WAS CONVERTED INTO AN EARLY OLD-AGE PENSION WITH EFFECT FROM 1 AUGUST 1973 . IN THE NETHERLANDS SHE WAS GRANTED BENEFIT FOR INCAPACITY FOR WORK AS FROM 2 OCTOBER 1973 , THAT IS TO SAY , AS FROM A DATE SUBSEQUENT TO THE CONVERSION OF THE GERMAN INVALIDITY PENSION INTO AN OLD-AGE PENSION .

3 BECAUSE OF THE ORDER IN WHICH THOSE BENEFITS WERE GRANTED THE CENTRALE RAAD VAN BEROEP CONSIDERED THAT ARTICLE 43 OF REGULATION NO 1408/71 ON THE CONVERSION OF INVALIDITY BENEFITS INTO OLD-AGE BENEFITS IS NOT APPLICABLE , AT LEAST NOT DIRECTLY , IN THE PRESENT CASE . IN FACT , THAT ARTICLE DEALS WITH THE CASE WHERE INVALIDITY BENEFITS ARE ACQUIRED IN TWO MEMBER STATES BEFORE CONVERSION INTO OLD-AGE BENEFITS AND PARAGRAPH ( 2 ) PROVIDES THAT , EVEN AFTER SUCH A CONVERSION IN ONE OF THE MEMBER STATES , THE INSTITUTION RESPONSIBLE FOR PROVIDING INVALIDITY BENEFITS IN THE OTHER MEMBER STATE SHALL CONTINUE TO PROVIDE THE RECIPIENT WITH THE INVALIDITY BENEFITS TO WHICH HE IS ENTITLED UNDER THE LEGISLATION WHICH IT ADMINISTERS .

4 AS THAT PROVISION IS NOT APPLICABLE TO THE CASE IN POINT , THE PROBLEM WHICH THE NETHERLANDS AUTHORITIES MUST RESOLVE CONCERNS THE QUESTION WHETHER THE NATIONAL LEGISLATIVE PROVISIONS WHICH , IN THE EVENT OF OVERLAPPING OF BENEFIT IN RESPECT OF INCAPACITY FOR WORK DUE UNDER NETHERLANDS LAW WITH A FOREIGN OLD-AGE BENEFIT , PROVIDE THAT THE NATIONAL BENEFIT SHALL BE REDUCED BY THE TOTAL AMOUNT OF THE FOREIGN BENEFIT , ARE IN ACCORDANCE WITH THE OTHER PROVISIONS OF COMMUNITY LAW INVOLVED , IN PARTICULAR WITH ARTICLE 40 OF THE REGULATION . FACED WITH THIS PROBLEM , THE CENTRALE RAAD VAN BEROEP SUBMITTED A REQUEST FOR A PRELIMINARY RULING ON THE QUESTION OF INTERPRETATION OF ARTICLE 40 .
5 THAT ARTICLE , WHICH IS IN CHAPTER 2 OF TITLE III OF THE REGULATION , CONCERNING INVALIDITY , PROVIDES FOR THE CASE WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES , OF WHICH AT LEAST ONE , LIKE THE GERMAN LAW APPLICABLE IN THIS CASE , IS OF THE TYPE WHEREBY THE AMOUNT OF INVALIDITY BENEFIT IS DEPENDENT ON THE DURATION OF PERIODS OF INSURANCE . BY WAY OF A REFERENCE TO CHAPTER 3 ON OLD-AGE AND DEATH PENSIONS , THE EFFECT OF ARTICLE 40 ( 1 ) IS , IN PARTICULAR , TO RENDER THE PROVISIONS OF ARTICLE 46 ON THE CALCULATION OF OLD-AGE BENEFITS APPLICABLE ALSO TO THE CALCULATION OF INVALIDITY BENEFITS .

6 IN A SERIES OF JUDGMENTS , THE LAST OF WHICH WAS DELIVERED ON 14 MARCH 1978 IN CASE 98/77 SCHAAP ( 1978 ) ECR 707 , THE COURT HAS RULED 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 SCHEME SET UP BY ARTICLE 46 OF THE REGULATION , THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED . AS REGARDS ARTICLE 46 ( 3 ), HOWEVER , THE COURT RULED IN ITS JUDGMENT OF 21 OCTOBER 1975 IN CASE 24/75 PETRONI V ONPTS ( 1975 ) 2 ECR 1149 THAT THAT PROVISION 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 .

7 THAT CASE-LAW , WHICH CONCERNS IN THE FIRST PLACE CASES IN WHICH A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES IN THE FIELD OF OLD-AGE INSURANCE , HAS BEEN EXTENDED WITHOUT MODIFICATION , BY VIRTUE OF ARTICLE 40 ( 1 ), TO CASES OF INVALIDITY INSURANCE . A SIMILAR EFFECT IS PRODUCED BY ARTICLE 43 , AS MENTIONED ABOVE , IN CASES WHERE ONE OF TWO INVALIDITY BENEFITS ALREADY ACQUIRED IS CONVERTED INTO AN OLD-AGE BENEFIT . THE PROBLEM IN THIS CASE IS TO KNOW WHETHER A DIFFERENT SOLUTION MUST BE FOUND SOLELY FOR A CASE IN WHICH THE CONVERSION OF THE INVALIDITY BENEFIT IN ONE MEMBER STATE TOOK PLACE BEFORE THE AWARD OF THE INVALIDITY BENEFIT IN ANOTHER MEMBER STATE .

8 THE ABSENCE OF ANY EXPRESS PROVISION COVERING THAT TYPE OF CASE MUST BE REGARDED AS A LACUNA . THERE IS NO OBJECTIVE REASON TO APPLY IN THAT TYPE OF CASE A RULE DIFFERENT FROM THAT APPLIED IN THE CASES EXPRESSLY REFERRED TO . THE PROTECTION OF THE RIGHTS WHICH THE PERSON CONCERNED POSSESSES BY VIRTUE OF NATIONAL LEGISLATION ALONE , WITHOUT HAVING RECOURSE TO THE SYSTEM OF AGGREGATION AND APPORTIONMENT , AND RESPECT FOR ANY ADVANTAGES RESULTING FROM THAT SYSTEM , ARE MANDATORY PRINCIPLES APPLYING EQUALLY IN ALL SITUATIONS . CONSEQUENTLY , THE SYSTEMATIC INTERPRETATION OF THE PROVISIONS OF THE REGULATION ENABLES ARTICLE 40 ( 1 ) TO BE APPLIED BY ANALOGY TO CASES SUCH AS THE PRESENT ONE . IF IT WERE NOT POSSIBLE TO ADOPT THAT SOLUTION , IT COULD EVEN BE SAID THAT THE COUNCIL HAD FAILED TO CARRY OUT COMPLETELY THE DUTY INCUMBENT UPON IT , BY VIRTUE OF ARTICLE 51 OF THE TREATY , TO ADOPT SUCH MEASURES IN THE FIELD OF SOCIAL SECURITY AS ARE NECESSARY TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS .

9 THEREFORE THE ANSWER TO THE QUESTION SUBMITTED MUST BE THAT ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT IT ALSO RELATES TO THE AWARD OF INVALIDITY BENEFITS IN A MEMBER STATE IN WHICH THE RIGHT TO SUCH BENEFITS HAS BEEN ACQUIRED BY A WORKER ON THE BASIS OF LEGISLATION OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) IN A CASE WHERE THE PERSON CONCERNED , BEFORE THE ACQUISITION OF SUCH RIGHT , HAD ALREADY BECOME ENTITLED , BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE NOT BEING OF THAT TYPE , TO AN OLD-AGE BENEFIT RESULTING FROM THE CONVERSION OF AN EARLIER INVALIDITY BENEFIT .

COSTS
10 THE COSTS INCURRED BY THE GOVERNMENT OF THE NETHERLANDS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED WRITTEN OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , 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 16 MAY 1978 , HEREBY RULES :
ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT IT ALSO RELATES TO THE AWARD OF INVALIDITY BENEFITS IN A MEMBER STATE IN WHICH THE RIGHT TO SUCH BENEFITS HAS BEEN ACQUIRED BY A WORKER ON THE BASIS OF LEGISLATION OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) IN A CASE WHERE THE PERSON CONCERNED , BEFORE THE ACQUISITION OF SUCH RIGHT , HAD ALREADY BECOME ENTITLED , BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE NOT BEING OF THAT TYPE , TO AN OLD-AGE BENEFIT RESULTING FROM THE CONVERSION OF AN EARLIER INVALIDITY BENEFIT .