C-98/77
ECLI:EU:C:1978:56
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JUDGMENT OF THE COURT OF 14 MARCH 1978 <apnote>1</apnote>
Max Schaap v Bestuur van de Bedrijfsvereniging voor Bank- en Verzekeringswezen, Groothandel en Vrije Beroepen (preliminary ruling requested by the Centrale Raad van Beroep, Utrecht)
'Social Security'
Cate 98/77
1. Social security for migrant workers — Benefits — Overlapping — Benefits corresponding to an insurance period bought in voluntarily by the person concernea — Application ofArticle 46 (2) ofRegulation No 574/72 ofthe Council
2. Social security for migrant workers — Benefits — Overlapping — Entitlement under national legislation alone — Promsions for reduction or suspension of benefit — Applicability — Position under Community rules more favourable — Preference (Regulation No 1408/71 of the Council, Arts. 12 (2) and 46)
1. The benefits corresponding to an prevent the national legislation, insurance period which has been including the national rules against bought in pursuant to the provisions the overlapping of benefits from of national legislation which grants a being applied to him in its entirety, worker this right are to be regarded provided that if the application of as falling within Article 46 (2) of such national legislation proves less Regulation No 574/72 of the Council. favourable than the application of 2. So long as a worker is receiving a the rules laid down by Article 46 of pension by virtue of national Regulation No 1408/71 the legislation alone, the provisions of provisions of that article must be Regulation No 1408/71 do not applied.
In Case 98/77
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
1 — Language of the Cue: Dutch.
JUDGMENT OF 14. 3. 1978 — CASE 98/77
Max Schaap, Amsterdam,
and
Bestuur van de Bedrijfsvereniging voor Bank- en Verzekeringswezen Groothandel en Vrije Beroepen (Board of the Trade Association for Banking, Insurance, the Wholesale Trade and the Professions), Amsterdam,
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),
THE COURT
composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, P. Pescatore, Lord Mackenzie Stuart and A. O'Keeffe, Judges,
Advocate General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
The facts, the procedure and the written 1929 to 1933 in Germany. He then took observations submitted under Article 20 up residence in the Netherlands where of the Protocol on the Statute of the from 1934, except for the period from Court of Justice of the EEC may be 1940 to 1945, he worked as an summarized as follows: employed person and as a self-employed person until 1 June 1972 when he became disabled. The respondent in the I — Facts and written procedure main action, the competent Netherlands institution, Bestuur van de Bedrijfs Mr Schaap, a Netherlands national and vereniging voor Bank- en Verze the appellant in the main action, keringswezen Groothandel en Vrije completed an insurance period from Beroepen (hereinafter referred to as 'the
SCHAAP ν BEDRIJFSVERENIGING VOOR BANK- EN VERZEKERINGSVEZEN, GROOTHANDEL EN VRIJE BEROEPEN
Fund'), awarded him an invalidity "Where a worker has been subject to the pension under Netherlands legislation legislation of two or more Member on insurance against incapacity for States, to what extent do Articles 12 (2) work (Wet op de arbeids and 46 of Regulation (EEC) No ongeschiktheidsverzekering, hereinafter 1408/71 prevent the application of referred to as 'the WAO'). national rules against the overlapping of Mr Schaap was at the same time benefits such as those in force pursuant to the WAO, where entitlement to permitted by the competent German institution to establish a right to an benefit has been obtained pursuant to invalidity pension substantially higher national legislation alone without its than the one to which he would have being necessary to apply the regulation been entitled on the basis only of the for that purpose?' compulsory periods of insurance which The order of the Centrale Raad van he had completed in Germany. He had Beroep was received at the Court on in fact availed himself of the oppor
1 August 1977. tunity afforded by German legislation Upon hearing the report of the Judge- relating to the victims of Nazi perse Rapporteur and the views of the cution and voluntarily paid contri Advocate General the Court decided to butions for the back period from 1934 open the oral procedure without any to 1945 in respect of pension insurance preparatory inquiry. (including invalidity insurance) in order to be able to claim a higher German pension.
II — Summary of the written The Netherlands Fund, taking into observations submitted to account this German invalidity pension, the Court under Article 20 reduced the amount of the benefit due of the Protocol on the to Mr Schaap pursuant to the WAO in Statute of the Court of application of Netherlands Royal Justice of the EEC Decree of 22 December 1972 enacted in implementation of Article 52 of the The respondent in the main action points WAO and with reference to Article 46 out that, as far as concerns the (3) of Regulation No 1408/71. Mr Netherlands, benefits are acquired Schaap then brought the matter before under national law and not under Regu the Raad van Beroep (Court of Appeal lation No 1408/71.
The second in social security matters), Amsterdam, sentence of Article 12 (2) does not and contended that the whole of his contain any prohibition on the adoption German pension had wrongly been of national regulations to prevent the taken into account even though the overlapping of benefits. The reduction larger proportion thereof was attri provisions laid down by the Royal butable to his voluntary insurance. Decree of 22 December 1972 relate to Since the Raad van Beroep decided the overlapping of national and foreign against Mr Schaap he appealed to the benefits and are not within the field of Centrale Raad van Beroep, Utrecht, application of Article 12 (2).
The latter which, by an order of 12 July 1977 sent provides an exception to the general to the Court by a letter of 28 July 1977 rule set out in the first sentence of the from its President, decided to stay said paragraph (2) (according to which proceedings and refer to the Court of the national legislative provisions of Justice of the European Communities Member States for reduction of benefit pursuant to Article 177 of the EEC in cases of overlapping with other social Treaty the following question for a pre security benefits may be invoked even liminary ruling: when these other benefits are paid by
JUDGMENT OF 14. J. 1978 — CASE 98/77
another Member State). However, this v Office National des Pensions pour exception to the general rule does not Travailleurs Salaria [1975] ECR 1149), apply to provisions such as those in the this means in turn that there would be Royal Decree. no reason why Article 46 (3) should not Even if the exception set out in the be applied to it. second sentence of Article 12 (2) does Finally it is inconsistent with the apply, it only refers to the case where objectives sought to be attained by benefits of the same kind in respect of Articles 48 to 51 of the Treaty that invalidity are awarded by the these articles, or regulations adopted institutions of two or more Member pursuant to them, prevent any obstacle States in accordance with Article 46. being placed in the way of unfair over The Netherlands benefits are not lapping of benefits at national level. 'awarded in accordance with Article 46', This should certainly be the position in circumstances such as those found in
because, since the amount thereof the main action, where a benefit certainly does not vary according to the period of insurance, it cannot acquired under the legislation of one Member State is added to the benefit correspond to the total periods of insurance completed in the Netherlands. acquired under the Netherlands Law on If the calculation carried out under the invalidity insurance amounting to as terms of Article 46 (2) does not produce much as 80% of final wage or salary. This situation is all the more unac a greater amount, which in practice hardly ever happens in the Netherlands, ceptable because the party concerned only the national method of computing thus gets benefits greater than the wage the amount of the benefits remains. or salary which he received before. There is no substantial difference The Belgian Government repeats its between Article 12 (2) of Regulation argumentation in Case 22/77 (Fonds No 1408/71 and Article 11 (2) of Regu
National de Retraite des Ouvriers lation No 3. Therefore the Court's Mineurs v Giovanni Mura [1977] ECR decided cases on the latter regulation 1699) and Case 37/11 (Fernando Greco apply to the main action; they clearly v Fonds National de Retraite des suggest the adoption of provisions for Ouvriers Mineurs [1977] ECR 1711). the reduction of benefit to deal with the The Italian Government points out that kind of overlapping of benefits found in Article 12 (2) of Regulation No
this case. 1408/71 must be interpreted as meaning Furthermore, if the second sentence of that it precludes the application of Article 12 (2) were to apply and if national rules against the overlapping of consequently the effect of the benefits where there are two over Netherlands provisions for reduction of lapping benefits of the same kind benefit were nullified, the result would awarded by two Member States in be that one part of the national benefit, accordance with Article 46 of the said namely the part which is not normally regulation, even if one of the benefits is paid pursuant to the national provisions payable under national legislation alone, for reduction of benefit, would because even in such a case the benefit nevertheless be paid under Regulation is awarded in accordance with Article 46
No 1408/71. It could be said that this (1). Since Article 46 provides that the portion of the benefits thus assumes the higher of the two amounts resulting nature of a benefit acquired under from the application of national Community regulations, and, on the legislation alone and the application of strength of the principles developed in the rules for aggregation is to be taken, Case 24/75 (Teresa and Silvana Petroni the 'benefit payable in pursuance of
SCHAAP v BEDRIJFSVERENIGING VOOR BANK- EN VERZEKERINGSWEZEN. GROOTHANDEL EN VRIJE BEROEPEN
national legislation alone' is payable 'in (Greco [1977] ECR 1711). Article 12 (2) accordance with' Article 46 (1). Article of Regulation No 1408/71 lays down 12 (2) is not therefore incompatible with the principle that national legislative the Treaty, even if in certain cases the provisions against overlapping may be migrant worker is favoured compared applied to workers covered by the said with the non-migrant worker. regulation except in the case of certain benefits of the same kind and in The Commission calls attention to the particular of benefits in respect of fact that the problem posed by the question referred is not of the same invalidity awarded in accordance with
Article 46. kind as the one raised by Mr Schaap both in the original action and on The reason why Article 12 (2), which as appeal. Mr Schaap takes the view that such favours the migrant worker, the Fund ought not to have taken into appears in Regulation No 1408/71 is account that part of his German pension that Article 46 (3) thereof places limits which was acquired as a result of on the overlapping of pensions. Indeed voluntary insurance and refers to Article the Court held in its judgment in Case 4 (4) of Regulation No 1408/71. Since 24/75 (Teresa and Silvana Petroni v it may be inferred from the Court's Office National des Pensions pour judgment in Case 93/76 (Fernand Travailleurs Salariés [1975] ECR 1149) Liégeois v Office National des Pensions that the latter provision is incompatible pour Travailleurs Salariés [1977] ECR with Article 51 of the Treaty.
Can it 543) that, provided that the contri therefore be accepted that it is lawful to butions fixed by national legislation reintroduce national rules against over have been paid, the buying in of back lapping? The Court in the Petroni insurance periods must be regarded as a judgment did not disavow the principle form of voluntary insurance, it appears of reduction of pensions. The Council, therefore that the period from 1934 to in the exercise of its powers under 1945, in respect of which Mr Schaap Article 51, in so far as it adopts rules has paid his back contributions, must be conferring upon migrant workers rights regarded as a period of voluntary which they would not otherwise enjoy, insurance within the meaning of Regu is entitled to make certain that they do lation No 1408/71. not result in unjustified overlapping of benefits.
However Article 12 (2) does The Netherlands Fund should therefore not allow national provisions against have applied these specific provisions overlapping to be applied whether the designed for periods of voluntary benefits are awarded pursuant to Article insurance and in particular Article 46 46 (1) or to Article 46 (2). Moreover, in (2) of Regulation (EEC) No 574/72 of the absence of a common system of the Council fixing the procedure for social security, a Community rule implementing Regulation (EEC) No enabling unjustified overlapping to be 1408/71 which provides that 'For the avoided is better than a reduction of purposes of Article 46 (3) of the regu
benefits based on national provisions lation, the amounts of benefit against overlapping. corresponding to periods of voluntary According to the opinion of Mr or optional continued insurance shall Advocate General Warner in Cases not be taken into account'. 22/77 (Mura) and 37/77 (Greco) where The question referred to the Court for a a benefit is acquired under the national preliminary ruling raises in similar legislation of a Member State alone, wording the question of interpretation Article 12 does not preclude the referred to the Court in Cases 22/77 operation of a national provision against (Mura [1977] ECR 1699) and 37/77 overlapping, provided that the benefit
JUDGMENT OF 14. 3. 1978 — CASE 98/77
giving rise to the reduction overlaps alone, would it not be necessary to with a benefit acquired under the comply with the intention of the legislation of another Member Sute. Community legislature which in Article The Court has acknowledged that in 46 of Regulation No 574/72 clearly certain circumstances other than those intended not to affect adversely the where periods of insurance overlap, an rights derived from voluntary insurance? accumulation of pensions might result It seems to be unthinkable that, simply from its interpretation of Article 51, but because the Court considered that that "this consequence follows not from Article 46 (3) of Regulation No the interpretation of Community law 1408/71 is incompatible with Article 51 but from the system at present in force, which, in the absence of a common of the Treaty, this latter provision may no longer apply, since if that were the social security scheme, rests on a simple co-ordination of national legislations case, the parties concerned would be in which have not yet been harmonized" a less favourable position than they (judgment in Case 50/75, Caisse de would be if Article 46 (3) of Regulation Pension des Employés Privés v Helga No 1408/71 were applied. Massonet [1975] ECR 1473 at p. 1484). The Government of the Iulian In the case with which the main action Republic, represented by O. Fiumara, is concerned there can be no over Deputy Sute Advocate, acting as Agent, lapping of periods, since, on the one the Commission of the European hand, the Netherlands legislation is not Communities, represented by A. based on insurance periods and, on the Haagsma of the Legal Department of other hand, the German pension was the Commission, presented oral acquired in part on the basis of argument at the hearing on 17 January voluntary insurance. If it were to be 1978. admitted that the national rule against overlapping might replace Article 46 (3) The Advocate General delivered his for the purpose of reducing the benefit opinion at the hearing on 15 February acquired under national legislation 1978.
Decision
1 By an order of 12 July 1977 which was received at the Court on 1 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).
2 This question has been raised in an action concerning the calculation by the competent Netherlands institution of the invalidity pension of a Netherlands
SCHAAP v BEDRIJFSVERENIGING VOOR BANK- EN VERZEKERINGSWEZEN, GROOTHANDEL EN VRIJE BEROEPEN
national Mr Schaap, the appellant in the main action, who had worked in Germany from 1929 to 1933 and then in the Netherlands.
3 Mr Schaap availed himself of the opportunity afforded by German legislation relating to the victims of Nazi persecution and, with reference to his pension insurance (including invalidity), bought in voluntarily the back period from 1934 to 1945 so as to be able to claim a higher German pension.
4 The Netherlands Fund, taking into account this German invalidity pension, reduced the amount of the benefit payable to Mr Schaap under Netherlands legislation on pension insurance,' in application of the Netherlands Royal Decree of 22 December 1972, enacted in implementation of Article 52 of the Wet op de arbeidsongeschiktheidsverzekering (Law on insurance against incapacity for work, hereinafter referred to as "the WAO") and with reference to Article 46 (3) of Regulation No 1408/71.
5 Mr Schaap challenged this decision contending that the whole of the German pension had wrongly been taken into account even though the larger part thereof was attributable to his voluntary insurance.
6 The further argument was put forward that the provisions of Regulation No 1408/71 as interpreted by the Court in its judgment of 21 October 1975 in Case 24/75 (Teresa and Silvana Petroni v Office National des Pensions pour Travailleurs Salariés [1975] ECR 1149) preclude any reduction, pursuant to the provisions of the national legislation of a Member State, of benefit acquired solely by virtue of national legislation without having recourse to Community provisions.
7 The question referred to the Court 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 Regulation (EEC) No 1408/71 prevent the application of national rules against the over lapping of benefits such as those in force pursuant to the WAO, where entitlement to benefit has been obtained pursuant to national legislation alone without its being necessary to apply the regulation for that purpose?"
JUDGMENT OF 14. 3. 1978 — CASE 98/77
The portion of the German benefit attributable to the period from 1934 to 1945
« Article 46 (2) of Regulation No 574/72 of the Council of 21 March 1974 (Official Journal, English Special Edition 1972 (I), p. 159) provides that for the purposes of Article 46 (3) of Regulation No 1408/71 the amounts of benefit corresponding to periods of voluntary or optional continued insurance shall not be taken into account.
9 It is obvious that benefits attributable to an insurance period which has been bought in pursuant to the provisions of legislation which grants a worker the right to buy in the insurance for this period are to be regarded as falling within this provision.
The application of national legislation
10 The Court has already held in its judgment of 13 October 1977 (Case 37/77, 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.
ii It follows that if the provisions of Regulation No 1408/71 are more favourable to the worker than national legislation they must be applied.
Costs
12 The costs incurred by the Belgian Government, the Italian Government and the Commission of the European Communities which have submitted obser vations to the Court are not recoverable.
SCHAAP v BEDRIJFSVERENIGING VOOR BANK- EN VERZEKERINGSVEZEN, GROOTHANDEL EN VRIJE BEROEPEN
13 As 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 12 July 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.
Kutscher Serensen Bosco
Donner Pescatore Mackenzie Stuart O'Keeffe
Delivered in open court in Luxembourg on 14 March 1978.
A. Van Houtte H. Kutscher
Registrar President
OPINION OF MR ADVOCATE GENERAL WARNER (see Case 83/77, p. 694)