C-105/77
ECLI:EU:C:1978:59
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JUDGMENT OF THE COURT OF 14 MARCH 1978 <apnote>1</apnote>
Bestuur van de Sociale Verzekeringsbank v Mrs Boerboom-Kersjes, a widow (preliminary ruling requested by the Centrale Raad van Beroep, Utrecht)
"Social Security"
Case 105/77
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 provided that if the application of such pension by virtue of national legislation national legislation proves less alone, the provisions of Regulation No favourable than the application of the 1408/71 do not prevent the national rules laid down by Article 46 of Regu legislation, including the national rules lation No 1408/71 the provisions of against the overlapping of benefits, from that article must be applied. being applied to him in its entirety,
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
1 — Language of the Case: Dutch.
JUDGMENT OF M. 3. 1978 — CASE 105/77
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 (IT), 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 Since the latter had also been insured in observations submitted under Article 20 the Federal Republic of Germany in of the Protocol on the Statute of the respect of a period of eight years' Court of Justice of the EEC may be employment in that country, Mrs summarized as follows: Boerboom-Kersjes was also entitled, as from 1 May 1973, to survivor's benefit under German legislation. I — Facts and written procedure The competent Netherlands institution, Following the death of her husband in the Bestuur van de Sociale Verzekerings April 1973 Mrs Boerboom-Kersjes, who bank (the Board of Management of the was resident in the Netherlands, was Social Insurance Bank), pursuant to a decision of 7 March 1975 notified Mrs granted as his widow a survivor's pension as from the same month under Boerboom-Kersjes of the amounts of the Netherlands Law on general survivor's pension to which she was insurance for widows and orphans entitled for the period from 1 April (Algemene Weduwen- en Wezenwet, 1973 to 1 January 1974 under the hereinafter referred to as "the AWW"). AWW and pursuant to Article 46 of She was entitled in addition under the Regulation No 1408/71. Law on general old-age insurance to be Mrs Boerboom-Kersjes challenged this paid unul 1 October 1973 the pension decision before the Raad van Beroep due to her husband. (Social Security Court), Arnhem, which
SOCIALE VERZEKERINGSBANK v BOERBOOM-KERSJES
by its judgment of 6 May 1976 annulled II — Summary of written obser the said decision and ruled that the vations submitted to the Board of Management of the Social Court under Article 20 of Insurance Bank had to make another the Protocol on the Statute decision on the ground that the benefit of the Court of Justice of accruing under the AWW had been the EEC
reduced for the period from 1 August to 30 September 1973 pursuant to Article The Board of Management of the Social 46 (3) of the before-mentioned regu Insurance Bank refers to its application lation, whereas on the authority of the amplifying its original case and to the judgment of the Court of 21 October transcripts of the proceedings before the 1975 in Case 24/75 (Teresa and Silvana Centrale Raad van Beroep. Petrani v Office Nationale des Pensions In cases of the overlapping of one or pour Travailleurs Salariés [1975] ECR more foreign benefits awarded to the 1149), this provision had to be regarded survivor the AWW only provides for a as inapplicable so that in the case under reduction of the fixed amount of the review the survivor's pension had to be pension depending on the ratio between granted without any reduction. the total duration of the periods which lead to entitlement to these rights of the The Netherlands institution then same kind in other Member States and appealed against this decision to the the duration of the period between the Centrale Raad van Beroep which, by an date when the insured attained the age order of 9 August 1977 sent to the of 15 and the date of his death. In this Court by a letter of 25 August 1977 connexion the periods completed by the from its President, decided to stay deceased abroad do not count, in so far proceedings and refer to the Court of as the deceased was during the same Justice of the European Communities, period insured under the AWW. pursuant to Article 177 of the EEC Consequently all the periods completed Treaty the following question for a pre pursuant to the AWW as well as those liminary ruling: during which the deceased was not insured anywhere are the responsibility "Where a worker has been subject to of the AWW. Therefore the AWWs the legislation of two or more Member rules against the overlapping of benefits States, to what extent do Articles 12 (2) do not bring about any such loss of and 46 of Regulation No 1408/71 rights as Article 51 of the Treaty is prevent the application of national rules designed to prevent. against the overlapping of benefits such In the judgment in Case 50/75 (Caisse as those in force pursuant to the AWW, when entitlement to benefit has been de Pension des Employés Privés v Helga Massonet [1975] ECR 1473 at p. 1484) obtained pursuant to national legislation the Court stated clearly that the alone without its being necessary to Member States are free to adopt apply the regulation for that purpose?" measures with a view to preventing The order of the Centrale Raad van unjustified cumulation, if the entitlement to benefit exists without its Beroep was received at the Court on 29 August 1977. being necessary to apply the process of aggregation. The case-law of the Court Upon hearing the repon of the Judge- makes it clear that as a rule it is the Rapporteur and the views of the responsibility of the national and not Advocate General the Court decided to the Community authorities to adopt the open the oral procedure without any necessary measures with a view to preparatory inquiry. eliminating the unjustified advantages
JUDGMENT OF 14. J. 1978 — CASE 105/77
arising out of that case-law. Therefore application of the rules against the over Articles 46 and 12 (2) of Regulation No lapping of benefits to those cases only 1408/71 cannot be so interpreted as to where the payment of the pension is preclude in any way the application of effected on the basis of national law the AWW's rules against the over alone. Thus the only applicable rules lapping of benefits in cases such as this against the overlapping of benefits are one where the right to a widow's those of the legislation of the Member pension has already derived from the Sute where the worker or the person application of the national legislation, entitled in his right resides. In the main since the purpose of these rules against action only the provision against the the overlapping of benefits is simply to overlapping of benefits laid down by prevent the granting of unfair Netherlands legislation is applicable and advantages. any such provisions which may be laid In this connexion it is immaterial that in down by German legislation cannot be applied to Mrs Boerboom-Kersjes. the main action the application of the If this were not the case the whole national rules against the overlapping of benefits yields a lower figure than the process of awarding pensions would be one which would be produced by an insoluble problem and the level of applying Article 46, including paragraph the reduction completely unjustified. (3) thereof. On the other hand the institutions of
Mrs Boerboom-Kersjes in a letter to the the Member States can only apply Registrar of the Court submits that she provisions again« the overlapping of is not the respondent in the main action benefits laid down by their domestic and that it has long since been sealed. legislation in so far as the amount of the pension resulting from the application The Commission points out that the of such provisions is greater than the issue in the main action is the same as sum which would result from the that in Case (Max Schaap v 98/77 application of aggregation and Bestuur van de Bedrijfsvereniging voor apportionment. The proportions Bank- en Verzekeringswezen Groot allowed pursuant to Article 46 (1), that handel en Vrije Beroepen at present sub is to say in lieu of a pension granted judice), Case 22/77 (Fonds National de under the legislation of one Member Retraite des Ouvriers Mineurs v Sute reduced on the basis of the Giovanni Mura [19771 ECR 1699) and domestic provisions against the over Case 37/77 (Fernando Greco v Fonds lapping of benefits cannot themselves be National de Retraite des Ouvriers reduced on the basis of a system similar Mineurs [1977] ECR 1711). It emerges to that of Article 46 (3), since it has not from the judgments of the Court in been necessary to resort to the system these last two cases that the social of aggregation of periods of insurance security institutions of the Member in order to establish entitlement to States are entitled to apply the rules pension. against the overlapping of benefits laid Even though the principle of the down by their national legislation. The Commission believes that the application of national rules against the overlapping of benefits is restricted in its application of this rule is nevertheless scope it is not without its disadvantages. subject to certain conditions. It does not guarantee to the worker that In the first place the said rules are a reduction will only be made from the applicable "so long as a worker is date when the total benefits exceed the receiving a pension by virtue of national highest theoretical sum and within the legislation alone ...". The Court limits of this sum, which is what the appears to have intended to limit the Community legislature intended.
SOCIALE VERZEKERINGSBANK v BOERBOOM-KERSJES
In the end a pension acquired only could vary considerably from one Sute under the legislation of one Member to another and call in question if not State always had to be reduced. Why nullify the very effectiveness of Article should Member States which do not 51 of the Treaty. have rules against the overlapping of The Government of the Iulian benefits always be responsible for the payment of benefits whereas those Republic, represented by O. Fiumara, which do have them can, without Deputy Sute Advocate, acting as Agent, suffering any loss, avoid paying the the Commission of the European whole or part of any benefits acquired Communities, represented by A. on the basis only of the periods Haagsma of the Legal Department of completed under that legislation? Apart the Commission, presented oral from the fact that Member States which argument at the hearing on 17 January do not have such rules would 1978. incorporate them into their legislation, the rule for reduction of benefits, which The Advocate General delivered his is a national rule and has not been opinion at the hearing on 15 February coordinated even at Community level, 1978.
Decision
1 By 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).
2 This 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.
3 At his death the husband had fulfilled in the Netherlands all the conditions required under the national legislation for entitlement to an old-age pension.
« The Netherlands institution pursuant to the Algemene Weduwen- en Wezenwet (law on general insurance for widows and orphans) (AWW),
JUDGMENT OF M. J. 1978 — CASE 105/77
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.
5 Mrs 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 Salariés [1975] ECR 1149).
6 The Netherlands institution then appealed against the judgment of the Raad van Beroep to the Centrale Raad van Beroep.
7 The 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 over lapping 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?"
« The 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 over lapping 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.
9 It 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
to The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.
SOCIALE VERZEKERINGSBANK ν BOERBOOM-KERSJES
11 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 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.
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)