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

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES TO PREVENT OVERLAPPING - ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 - PURPOSE - APPLICABLE ONLY TO BENEFITS ACQUIRED UPON APPLICATION OF REGULATION NO 1408/71
( EEC TREATY , ARTS 48 TO 51 ; REGULATION NO 1408/71 OF THE COUNCIL , ART . 12 ( 2 ))
2.SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES TO PREVENT OVERLAPPING - NOT APPLICABLE TO BENEFITS ACQUIRED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE - BENEFITS AWARDED AND FINANCED ON THE CONDITIONS LAID DOWN IN ARTICLE 57 OF REGULATION NO 1408/71 - NO EFFECT
( REGULATION NO 1408/71 OF THE COUNCIL , FIRST SENTENCE OF ART . 12 ( 2 ) AND ART . 57 )

1 . ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 FORMS THE COUNTERPART OF THE ADVANTAGES WHICH COMMUNITY LAW AFFORDS WORKERS IN ENABLING THEM TO REQUIRE SOCIAL SECURITY LEGISLATION OF MORE THAN ONE MEMBER STATE TO BE APPLIED SIMULTANEOUSLY . ITS PURPOSE IS TO PREVENT THEM FROM DERIVING ADVANTAGES FROM THAT POSSIBILITY WHICH IN NATIONAL LAW ARE CONSIDERED EXCESSIVE .

HOWEVER , ALTHOUGH LIMITATIONS MAY BE IMPOSED ON MIGRANT WORKERS TO BALANCE THE SOCIAL SECURITY ADVANTAGES WHICH THEY DERIVE FROM THE COMMUNITY REGULATIONS AND WHICH THEY COULD NOT OBTAIN WITHOUT THEM , THE AIM OF ARTICLES 48 TO 51 OF THE TREATY WOULD NOT BE ATTAINED IF THE SOCIAL SECURITY ADVANTAGES WHICH A WORKER MAY DERIVE FROM THE LEGISLATION OF A SINGLE MEMBER STATE WERE TO BE WITHDRAWN OR REDUCED AS A RESULT OF THE APPLICATION OF THOSE REGULATIONS .

IT MUST THEREFORE BE ACCEPTED THAT THE APPLICATION , PURSUANT TO ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 , OF A PROVISION DESIGNED TO PREVENT THE OVERLAPPING OF NATIONAL BENEFITS ALONE TO A BENEFIT PAYABLE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IS NOT JUSTIFIED UNLESS THE BENEFIT TO BE REDUCED WAS ACQUIRED BY VIRTUE OF THE APPLICATION OF THE PROVISIONS OF THAT REGULATION .

2.THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 MUST BE CONSTRUED AS EXCLUDING THE REDUCTION OR SUSPENSION OF A BENEFIT ACQUIRED SOLELY UNDER THE LEGISLATION OF ONE MEMBER STATE EVEN IF THE BENEFITS TO BE TAKEN INTO ACCOUNT IN EFFECTING THE REDUCTION , BEING ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , WERE AWARDED IN APPLICATION OF ARTICLE 57 OF REGULATION NO 1408/71 AND IF THE COMPETENT INSTITUTION OF THE FIRST MEMBER STATE CONTRIBUTES TO THE COST OF THOSE BENEFITS UPON THE TERMS SET OUT IN ARTICLE 57 ( 3 ) ( C ).

IN CASE 279/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE LANDESSOZIALGERICHT ( HIGHER SOCIAL COURT ) FUR DAS LAND NORDRHEIN-WESTFALEN IN ESSEN FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN
LEO JERZAK
AND
BUNDESKNAPPSCHAFT - VERWALTUNGSSTELLE AACHEN ( FEDERAL INSURANCE FUND FOR MINERS , AACHEN OFFICE )

ON THE INTERPRETATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY AN ORDER DATED 11 OCTOBER 1982 , WHICH WAS RECEIVED AT THE COURT ON 19 OCTOBER 1982 , THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN ( HIGHER SOCIAL COURT FOR NORTH RHINE-WESTPHALIA ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY QUESTIONS RELATING TO THE INTERPRETATION 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 QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN LEO JERZAK AND THE BUNDESKNAPPSCHAFT ( FEDERAL INSURANCE FUND FOR MINERS ) CONCERNING THE APPLICATION OF PARAGRAPH 75 OF THE REICHSKNAPPSCHAFTSGESETZ ( LAW ON THE MINERS ' INSURANCE FUND ) WHICH APPLIES TO THE OVERLAPPING OF A PENSION PAID UNDER THE GERMAN MINERS ' INSURANCE SCHEME AND ONE PAID UNDER THE GERMAN ACCIDENT INSURANCE SCHEME .

3 MR JERZAK , A GERMAN NATIONAL , WORKED IN THE COAL-MINES IN GERMANY AND BELGIUM .

4 AFTER CONTRACTING SILICOSIS AS A RESULT OF HIS WORK IN BELGIUM , MR JERZAK WAS AWARDED A PENSION FOR OCCUPATIONAL DISEASE IN THAT COUNTRY WHICH WAS PAID UNDER BELGIAN LEGISLATION BY THE BELGIAN ACCIDENT INSURANCE INSTITUTION . THE COST OF THE PENSION WAS PARTLY BORNE BY THE BERGBAU-BERUFSGENOSSENSCHAFT , THE GERMAN MINERS ' MUTUAL BENEFIT SOCIETY , IN ACCORDANCE WITH ARTICLE 57 ( 3 ) OF REGULATION NO 1408/71 .
5 SINCE 1973 THE BUNDESKNAPPSCHAFT HAS PROVIDED MR JERZAK WITH A MINER ' S DISABILITY PENSION AWARDED ON THE BASIS OF THE PROVISIONS OF GERMAN LAW ALONE AS THE AMOUNT RESULTING FROM THE APPLICATION OF ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 IS LESS ADVANTAGEOUS FOR HIM .

6 TAKING INTO ACCOUNT THE FACT THAT THE BELGIAN PENSION FOR OCCUPATIONAL DISEASE HAD BEEN INCREASED ON ACCOUNT OF MR JERZAK ' S INCREASED DEGREE OF INVALIDITY , THE BUNDESKNAPPSCHAFT DECIDED PURSUANT TO ARTICLE 75 OF THE REICHSKNAPPSCHAFTSGESETZ TO SUSPEND PAYMENT OF A PROPORTION OF THE INVALIDITY PENSION PROVIDED UNDER THE GERMAN MINERS ' SCHEME AND TO REQUIRE REPAYMENT OF THE SUMS UNDULY PAID .

7 MR JERZAK APPEALED AGAINST THAT DECISION TO THE SOZIALGERICHT ( SOCIAL COURT ) AACHEN AND THEN TO THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN WHICH HAS ASKED THE COURT TO RULE UPON THE FOLLOWING PRELIMINARY QUESTIONS :
' ' 1 . ( A ) ARE A MEMBER STATE ' S LEGAL PROVISIONS GOVERNING THE OVERLAPPING OF ONE SOCIAL SECURITY BENEFIT WITH ANOTHER ( PARAGRAPH 75 OF THE REICHSKNAPPSCHAFTSGESETZ ) APPLICABLE ( THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 ) EVEN WHERE :
( I ) THE BENEFIT TO BE REDUCED HAS BEEN DETERMINED UNDER NATIONAL LEGISLATION ALONE ( ARTICLE 46 ( 1 ) OF THE REGULATION ); AND
( II)A PROPORTION OF THE BENEFIT TO BE TAKEN INTO ACCOUNT ( ARTICLE 57 ( 3 ) ( C ) OF THE REGULATION ) IS BORNE BY AN INSURANCE INSTITUTION IN THE STATE UNDER WHOSE LEGISLATION THE BENEFIT TO BE REDUCED IS PROVIDED?

( B)DOES THE APPLICATION OF THE LEGISLATION GOVERNING THE OVERLAPPING OF SOCIAL SECURITY BENEFITS DEPEND IN PRINCIPLE ON THE PROPORTIONS OF BENEFIT BORNE?

( C)DOES IT MATTER WHETHER THE ASSIGNMENT BY ARTICLE 57 ( 1 ) OF THE REGULATION TO THE LAST INSURANCE INSTITUTION OF SOLE RESPONSIBILITY FOR AWARDING BENEFIT OPERATES TO THE ADVANTAGE OR DISADVANTAGE OF THE INSURED PERSON?

2.IS THE EXTENT TO WHICH THE BENEFIT IS REDUCED OR SUSPENDED DEPENDENT UPON THE SIZE OF THE PROPORTIONS OF THE BENEFIT TO BE BROUGHT INTO ACCOUNT AND IF SO TO WHAT DEGREE?

3.IS THE DISREGARDING OF ANNUAL REMUNERATION AS THE UPPER LIMIT FOR THE PURPOSES OF AN APPLICATION BY ANALOGY OF PARAGRAPH 75 OF THE REICHSKNAPPSCHAFTSGESETZ CONTRARY TO ARTICLES 48 TO 51 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY OR OTHER PROVISIONS OR PRINCIPLES OF COMMUNITY LAW?
' '
8 IN ESSENCE THE FIRST QUESTION SEEKS TO ESTABLISH WHETHER ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 OF THE COUNCIL ALLOWS A NATIONAL PROVISION DESIGNED TO PREVENT THE OVERLAPPING OF NATIONAL BENEFITS ALONE TO BE APPLIED IN A CASE WHERE THE BENEFIT TO BE REDUCED HAS BEEN AWARDED SOLELY ON THE BASIS OF NATIONAL LAW AND WHERE THE COST OF THE BENEFIT TO BE TAKEN INTO ACCOUNT TO MAKE THE REDUCTION , AWARDED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , IS BORNE BY THE COMPETENT INSTITUTIONS OF THE TWO MEMBER STATES CONCERNED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY ARTICLE 57 ( 3 ) OF THE SAME REGULATION .

9 THE FIRST POINT TO RECALL IS THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 PROVIDES THAT THE PROVISIONS OF THE LEGISLATION OF A MEMBER STATE FOR THE REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFIT IN CASES OF OVERLAPPING WITH OTHER SOCIAL SECURITY BENEFITS MAY BE INVOKED ' ' EVEN THOUGH THE RIGHT TO SUCH BENEFITS WAS ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ' ' .

10 CONSTRUED IN THE LIGHT OF ARTICLES 48 TO 51 OF THE TREATY , WHICH CONSTITUTE THE BASIS , THE FRAMEWORK AND THE BOUNDS OF THE SOCIAL SECURITY REGULATIONS , ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 FORMS THE COUNTERPART OF THE ADVANTAGES WHICH COMMUNITY LAW AFFORDS WORKERS IN ENABLING THEM TO REQUIRE THE SOCIAL SECURITY LEGISLATION OF MORE THAN ONE MEMBER STATE TO BE APPLIED SIMULTANEOUSLY . ITS PURPOSE IS TO PREVENT THEM FROM DERIVING ADVANTAGES FROM THAT POSSIBILITY WHICH IN NATIONAL LAW ARE CONSIDERED EXCESSIVE .

11 HOWEVER , ALTHOUGH THE COURT HAS CONSISTENTLY HELD THAT LIMITATIONS MAY BE IMPOSED ON MIGRANT WORKERS TO BALANCE THE SOCIAL SECURITY ADVANTAGES WHICH THEY DERIVE FROM THE COMMUNITY REGULATIONS AND WHICH THEY COULD NOT OBTAIN WITHOUT THEM , THE AIM OF ARTICLES 48 TO 51 OF THE TREATY WOULD NOT BE ATTAINED IF THE SOCIAL SECURITY ADVANTAGES WHICH A WORKER MAY DERIVE FROM THE LEGISLATION OF A SINGLE MEMBER STATE WERE TO BE WITHDRAWN OR REDUCED AS A RESULT OF THE APPLICATION OF THOSE REGULATIONS .

12 IT MUST THEREFORE BE ACCEPTED THAT THE APPLICATION , PURSUANT TO ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 , OF A PROVISION DESIGNED TO PREVENT THE OVERLAPPING OF NATIONAL BENEFITS ALONE TO A BENEFIT PAYABLE UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IS NOT JUSTIFIED UNLESS THE BENEFIT TO BE REDUCED WAS ACQUIRED BY VIRTUE OF THE APPLICATION OF THE PROVISIONS OF THAT REGULATION .

13 IN THIS REGARD IT MUST BE STRESSED THAT THE GERMAN MINER ' S PENSION WHICH THE GERMAN AUTHORITIES PLAN TO REDUCE WAS ACQUIRED SOLELY ON THE BASIS OF GERMAN LAW .

14 HENCE THE CIRCUMSTANCES IN WHICH THE BENEFIT TO BE TAKEN INTO CONSIDERATION IN EFFECTING THE REDUCTION ( IN THIS CASE THE BELGIAN PENSION FOR OCCUPATIONAL DISEASE ) WAS ACQUIRED AND AWARDED DO NOT AFFECT THE ANSWER TO BE GIVEN TO THE QUESTION RAISED .

15 IN ANY EVENT IT MAY BE NOTED THAT THE FINANCING OF PART OF THE COST OF A BENEFIT BY THE COMPETENT INSTITUTIONS OF TWO MEMBER STATES IN ACCORDANCE WITH ARTICLE 57 ( 3 ) OF REGULATION NO 1408/71 CANNOT BE REGARDED AS AN ADVANTAGE DERIVING FROM THE APPLICATION OF COMMUNITY LAW SO AS TO PERMIT THE REDUCTION , UNDER ARTICLE 12 ( 2 ) OF THAT REGULATION , OF A PENSION ACQUIRED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE . ARTICLE 57 OF REGULATION NO 1408/71 PRESCRIBES A MERE METHOD OF FINANCING AND DOES NOT CONFER ANY SPECIAL ADVANTAGE ON THE PERSON CONCERNED .

16 IN VIEW OF THE FOREGOING CONSIDERATIONS THE ANSWER TO THE FIRST QUESTION SUBMITTED BY THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN MUST BE THAT THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 MUST BE CONSTRUED AS EXCLUDING THE REDUCTION OR SUSPENSION OF A BENEFIT ACQUIRED SOLELY UNDER THE LEGISLATION OF ONE MEMBER STATE EVEN IF THE BENEFITS TO BE TAKEN INTO ACCOUNT IN EFFECTING THE REDUCTION BEING ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE WERE AWARDED IN APPLICATION OF ARTICLE 57 OF REGULATION NO 1408/71 AND IF THE COMPETENT INSTITUTION OF THE FIRST MEMBER STATE CONTRIBUTES TO THE COST OF THOSE BENEFITS UPON THE TERMS SET OUT IN ARTICLE 57 ( 3 ) ( C ).

17 IN VIEW OF THE ANSWER JUST GIVEN TO THE FIRST QUESTION THERE IS NO NEED TO RULE UPON THE OTHER QUESTIONS RAISED BY THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN .

COSTS
18 THE COSTS INCURRED BY THE COMMISSION , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE LANDESSOZIALGERICHT FUR DAS LAND NORDRHEIN-WESTFALEN BY ORDER OF 11 OCTOBER 1982 , HEREBY RULES :
THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 MUST BE CONSTRUED AS EXCLUDING THE REDUCTION OR SUSPENSION OF A BENEFIT ACQUIRED SOLELY UNDER THE LEGISLATION OF ONE MEMBER STATE EVEN IF THE BENEFITS TO BE TAKEN INTO ACCOUNT IN EFFECTING THE REDUCTION , BEING ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , WERE AWARDED IN APPLICATION OF ARTICLE 57 OF REGULATION NO 1408/71 AND IF THE COMPETENT INSTITUTION OF THE FIRST MEMBER STATE CONTRIBUTES TO THE COST OF THOSE BENEFITS UPON THE TERMS SET OUT IN ARTICLE 57 ( 3 ) ( C ).