C-262/97

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5. Until 1985, the AOW was, like the The Community rules Belgian legislation, based on the principle of family support. It granted to married men only the right to an old age pension up to the maximum of 100% of the statutory minimum net salary. The wife acquired the right to a personal pension — equal to 50% of the minimum net salary — only from the age of 65 and after her husband's death. 8. Article 12(2) of Council Regulation (EEC) No 1408/71, 6 in the version set out in Regulation (EEC) No 2001/83, 7 states:

6. In 1985, the Netherlands legislature amended the law 4so as to guarantee equal treatment for men and women, in confor- mity with Directive 79/7/EEC. 5

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9. That article was amended by Regulation regarded as being of the same kind within (EEC) No 1248/92, 8 which came into the meaning of paragraph 1. force on 1 June 1992. This currently pro- vides:

3. The following rules shall be applicable 'Save as otherwise provided in this Regula- for the application of provisions on reduc- tion, the provisions of the legislation of a tion... laid down by the legislation of a Member State governing the reduction... of Member State in the case of overlapping of benefits in cases of overlapping with other a benefit in respect of invalidity, old age or social security benefits or any other form of survivors with a benefit of the same kind or income may be invoked even where such with other income: benefits were acquired under the legislation of another Member State or where such income was acquired in the territory of another Member State.'

10. Regulation No 1248/92 also inserted Article 46a into Regulation No 1408/71, which provides: (c) no account shall be taken of the benefits acquired under the legislation of another Member State which are awarded on the basis of voluntary '1. For the purposes of this Chapter, over- insurance or continued optional insur- lapping of benefits of the same kind shall ance; have the following meaning: all overlap- ping of benefits in respect of invalidity, old age and survivors calculated or provided on the basis of periods of insurance and/or residence completed by one and the same …' person.

2. For the purposes of this Chapter, over- lapping of benefits of different kinds means all overlapping of benefits that cannot be The Van Munster Case

15. The first question concerned the com- patibility of the Belgian legislation with Community law. In that regard, the Court 13. Mr Van Munster had worked in both noted that 'the provision of Belgian legisla- Belgium and the Netherlands. His wife, tion at issue applies without distinction who was younger, did not work. At the age both to Belgian nationals and to nationals of 65, he received a Belgian pension at the of the other Member States. Consequently, household rate as well as a Netherlands it cannot be regarded as constituting, in pension calculated on the basis of 100% of itself, a barrier to freedom of movement for minimum net salary. When his wife turned workers'. 11 The Court concluded that 65 she received a Netherlands personal Articles 48 to 51 of the EEC Treaty did pension calculated on the basis of 50% of not preclude such a provision. 12 minimum net salary. Accordingly, the higher pension which Mr Van Munster had received until this time was withdrawn, so that the joint household income did not increase. 16. The second question concerned the concrete application of the provision in question to a situation such as that of the Van Munsters. 14. However, under Belgian legislation Mrs Van Munster had begun to receive an 'advantage equivalent to' a retirement pen- sion. 10 Consequently, the Belgian authori- 17. Having stressed certain specific aspects ties reduced her husband's pension by of that situation, 13 the Court pointed out that, 'the aim of Articles 48 to 51 of the Treaty would not be met if, through 9 — T h e legislation in question was Article 10(1) and (4) of Belgian Royal Decree No 50 of 24 October 1967 (as exercising their right to freedom of move- amended by the Law of 15 May 1984). Those provisions ment, migrant workers were to lose social were, in substance, identical to those in Article 3(1) and (8) of the Law of 20 July 1990. However, pursuant to Royal security advantages guaranteed to them by Decree No 50, the non-working spouse had the right to waive any pension or 'equivalent advantage' in order to the laws of a Member State. Such a allow the retired worker to continue receiving a pension at consequence might discourage Community the household rate. The Law of 20 July 1990 has abolished that option. 10 — According to the case-law of the Belgian Cour de cassation, an old age pension granted by the AOW constitutes an 'advantage equivalent to' a retirement 11 — Paragraph 19. pension within the meaning of the Belgian legislation (Cass. 30 June 1980, Rechtskundig Weekblad, 1980-81, 12 — Paragraph 20. 2182-2186). 13 — Paragraphs 22 to 26.

workers from exercising their right to free- which accords with the requirements of dom of movement and would therefore Community law'. 19 constitute an obstacle to that freedom...'. 14 The Court stated that, '[i]n the present case, it appears that application of national legislation to a migrant worker in the same way as to a non-migrant worker gives rise to unforeseen consequences, hardly com- 19. In response to the second question, the patible with the aim of Articles 48 to 51 of Court held that: 'When, for the purpose of the Treaty and attributable to the very fact applying a provision of its domestic law, a that the migrant worker's pension entitle- national court has to characterise a social ment is governed by two different bodies of security benefit awarded under the statu- legislation'. 15 tory scheme of another Member State, it should interpret its own legislation in the light of the aims of Articles 48 to 51 of the EEC Treaty and, as far as is at all possible, prevent its interpretation from being such 18. The Court then defined the obligations as to discourage a migrant worker from incumbent on competent authorities when actually exercising his right to freedom of faced with such a divergence of legislation. movement'. 20 The Court pointed out that 'the principle of cooperation in good faith laid down in Article 5 of the EEC Treaty requires the competent authorities in the Member States to use all the means at their disposal to achieve the aim of Article 48 of the Treaty' 16 and that '[t]hat requirement implies that those authorities should ascer- Facts and procedure tain whether their legislation can be applied literally to migrant workers, in exactly the same way as non-migrant workers, without ultimately causing migrant workers to lose 20. The factual background to the main a social security advantage and, conse- proceedings is similar to that in the above- quently, discouraging them from actually cited Van Munster case. exercising their right to freedom of move- ment'. 17 In order to assist the national court, the Court stated, by reference to its earlier case-law, 18 that '[w]hen applying domestic law, the national court must, as far as is at all possible, interpret it in a way 21. Mr Engelbrecht worked in Belgium from 1958 to 1993. During that time he made voluntary contributions to the Sociale 14 — Paragraph 27. Verzekeringsbank — the Netherlands 15 — Paragraph 30. 16 — Paragraph 32. Social Insurance Scheme (hereafter the 17 — Paragraph 33. 18 —Case 157/86 Murphy and Others [1988] ECR 673, paragraph 11; Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-91/92 Faccini Dori 19 — Paragraph 34. [1994] ECR I-3325, paragraph 26. 20 — Point 2 of the operative pan.

23. In Belgium, the Rijksdienst voor Pen- sioenen/Office National Belge des Pen- sions — the Belgian National Office for Pensions (hereafter the ΌNP') — granted 27. However, considering that Mrs Engel­ him a retirement pension with effect from brecht was in receipt of a 'benefit equiva­ 1 June 1993. That pension was at the lent to' a retirement pension within the household rate because his spouse had not meaning of the Belgian legislation, the worked and was not in receipt of a ONP, by a decision taken on 20 October retirement pension or benefit equivalent to 1994, reduced the amount of the pension such a pension. allocated to her husband by substituting the single rate for the household rate. This resulted in a 15% reduction in the income which Mr Engelbrecht received from his Belgian pension. 24. In the Netherlands, the SVB granted him an old age pension from 1 May 1993, which was increased by a supplement because his wife was not yet 65 at that time.

28. Mr Engelbrecht appealed against that decision to the Arbeidsrechtbank (Labour 2 5 . Mrs Engelbrecht t u r n e d 65 on Court) te Turnhout. He claimed that his 16 August 1994. wife's old age pension should be considered overall to be the result of voluntary insur­ ance even though it was calculated on the basis of both compulsory and voluntary insurance periods. He argued that, pur­ 26. Subsequently, the SVB granted her a suant to Article 46a(3)(c) of Regulation personal old age pension from 1 August No 1408/71, as amended by Regulation 1994, calculated on the basis of her periods No 1248/92 (hereinafter 'Regulation of residence in the Netherlands and the No 1408/71, as amended'), the ONP could voluntary insurance scheme to which her not take his wife's pension into account husband subscribed. The SVB specified that when calculating his pension.

29. The Arbeidsrechtbank te Turnhout brecht's pension referred to above could rejected that argument on the ground that not be taken into account when determin- Article 46a did not relate to a situation, as ing the level of her husband's Belgian in this case, where retirement or old age pension. benefits were paid to two different people. However, it considered that the reduction of Mr Engelbrecht's Belgian pension con- stituted an obstacle to freedom of move- 32. However, as regards the part of ment for workers. Referring, in particular, Mrs Engelbrecht's pension that was awar- to the Van Munster judgment, the court ded on the basis of periods of compulsory held that Mrs Engelbrecht's pension could insurance — namely 12% of the amount not be classified as a 'retirement pension' or allocated — the Arbeidshof te Antwerpen 'equivalent benefit' within the meaning of had doubts as to how to interpret the the Belgian legislation. The court conse- Court's Van Munster judgment, Article 5 quently upheld Mr Engelbrecht's right to a of the EC Treaty (now Article 10 EC), pension at the household rate. Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) Article 50 of the EC Treaty (now Article 41 EC) and Article 51 of the EC Treaty (now, after amendment, Article 42 EC). 30. The ONP brought an appeal against that decision before the Arbeidshof te Antwerpen. This latter considered the con- ditions under which the Belgian legislation 33. Those doubts arise essentially from a could apply to Mrs Engelbrecht's Nether- divergence of case-law as between the lands pension. national court and the Belgian Cour de cassation (Court of Cassation). In similar cases the Arbeidshof te Antwerpen had noted that application of the Belgian legis- lation led, for the spouses concerned, to loss of a social security advantage and therefore constituted an obstacle to the free 31. Firstly, it rejected Mr Engelbrecht's movement of workers. Consequently, it had submission that his wife's pension resulted decided to disapply the provisions of its from voluntary insurance. It considered legislation in question. The Belgian Cour de that only the greater part of that pension — cassation quashed that conclusion. 21 It 88% of the amount allocated — was pointed out that, according to the Van awarded on the basis of 'voluntary insur- Munster judgment, Community law did not ance or continued optional insurance' preclude the provisions in issue. The Cour within the meaning of Article 46a(3)(c) of de cassation considered that, in so far as Regulation No 1408/71, as amended. Community law did not require it to do so, Next, the Arbeidshof te Antwerpen set the national court was not entitled to aside the first court's conclusion and held that that provision could be applied when the retirement or old age benefits were 21 — Judgments of the Belgian Cour de cassation of 13 January awarded to two separate people. The Court 1997, Office national des pensions/Swolfs, and of 10 Feb- ruary 1997, Bannink/Office national des pensions (cited in concluded that the part of Mrs Engel- paragraph 16.1 of the order of reference).

Is the view that a national court which concludes that an applicable national provision requires a migrant worker's pension to be reduced (such as Arti- (a) Does the reasoning set out in cle 3(1) and Article 3(8) of the Belgian paragraphs 21 to 31 of that judg- Law of 20 July 1990 requiring the ment in respect of Question 2 amount of the pension received by a cover "unforeseen adverse effects migrant worker's spouse to be of the lack of coordination deducted from that worker's household between social security schemes"?

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(b) In the light of paragraphs 32, 33 Preliminary observations and 34 of that judgment, is point 2 of the operative part of that judg- ment to be interpreted as meaning that, where it is impossible to 35. Before considering those questions, I interpret an applicable provision would make two preliminary observations. of national law in such a way as to eliminate the adverse effects of its application, in a specific situation, on free movement of workers, the national court must apply that rule 36. First, the Belgian Government and the in full, or that the national court ONP submit that the questions referred for must disapply that rule of national a preliminary ruling are identical to those law? already dealt with in the Van Munster judgment. In accordance with the judgment in Da Costa, 22 there is therefore no need to give a further interpretation of Community law.

(3) In the light of point 2 of the operative part of the judgment in Van Munster v Rijksdienst voor Pensioenen and the case-law of the Court of Justice, is it 37. I do not consider that argument to be compatible with Community law, more well founded. particularly Articles 5, 48 and 51 of the Treaty, to take the view that the national court may not disapply express, binding provisions of national law in order to eliminate the adverse effects: 38. It is true that certain questions — namely, Question 2(a) — overlap with the arguments contained in the Van Munster judgment. 23 However, most of the ques- tions referred are new.

45. On the other hand, if Article 46a is interpreted as being applicable to a situa- tion such as that at issue in the main proceedings, the ONP will not, pursuant to 42. Secondly, the reasoning articulated in Article 46a(3)(c), be permitted to take into the order for reference indicates that the account the proportion of Mrs Engel- court in the main proceedings considered brecht's Netherlands pension calculated the interpretation of Article 46a of Regula- on the basis of periods of compulsory tion No 1408/71, as amended, and con- insurance — namely 12% of the amount cluded that it should apply to the Engel- allocated. Unless I am mistaken that pro- brechts' situation. 24 portion will be less than the difference between Mr Engelbrecht's pension at the household rate and his pension at the single rate. Subsequently, application of Arti- cle 3(8) of the Law of 20 July 1990 will 43. Interpretation of that provision is allow Mr Engelbrecht to retain his right to clearly of relevance for the decision in the a pension at the household rate subject to main proceedings. the deduction of the proportion mentioned above from his wife's pension (12% of the amount allocated).

44. If Article 46a is interpreted as being inapplicable to the Engelbrechts' situation, the ONP will be entitled, when calculating Mr Engelbrecht's Belgian retirement pen- sion, to take account of the entire Nether- 46. The interpretation of Article 46a of Regulation No 1408/71, as amended, adopted by the national court appears to 24 — See, in particular, paragraphs 9 to 10.8 of the order for reference. me to be incorrect.

The answer to the questions referred 50. During the main proceedings argument focused essentially on the Court's Bakker judgment. 27 48. I shall begin by examining the question relating to the interpretation of Article 46a of Regulation No 1408/71, as amended. The questions referred to the Court will then require it to be ascertained whether, on the one hand, the reduction of Mr En- gelbrecht's retirement pension constitutes 51. In that judgment the Court held that an obstacle to the free movement of work- the Belgian legislation 28 did not constitute ers and, on the other hand, whether the a 'provision for reduction [of benefit]' 29 national court is bound to disapply its within the meaning of Article 12(2) of domestic legislation. Council Regulation No 1408/71, in the v e r s i o n set o u t in R e g u l a t i o n No 2001/83. 30 According to the Court, 'the anti-overlapping provisions referred to by that provision only concern cases where a single person is in receipt of more than one benefit'. 3 1 The Belgian legislation 'relates to a situation different... [since it] Article 46a of Regulation No 1408/71, as does not concern cases where different amended benefits awarded to the same person over- lap but cases where retirement or survivors pensions are paid to two different per- sons'. 32 49. It is clear from the grounds of the order for reference 26 that the Arbeidshof te Antwerpen is seeking to establish whether 27 — Case 151/87 Bakker [1988] ECR 2009. A r t i c l e 4 6 a ( 3 )(c) of R e g u l a t i o n 28 — Article 10(1) to (4) of Royal Decree No 50 was in issue. 29 — 'Provisions for reduction [of benefit]' are also called 'Anti- overlapping provisions'. 30 — Paragraph 15. 25 — Case 126/80 Salonia [1981] ECR 1563, paragraph 8. 31 — Paragraph 12. 26 — See, in particular, paragraphs 9 to 10.8. 32 — Paragraph 14.

54. To that end the scope of Article 12(2) of Regulation No 1408/71 should be defined at the outset. 57. Secondly, the amendments effected by Regulation No 1248/92 do not, in my view, cast doubt on the Court's finding in Bakker. 55. I consider, for two reasons, that the term 'provisions... governing the reduc- tion... of benefits' in Article 12(2) of Reg- ulation No 1408/71, as amended, means exactly the same as 'provisions... for reduc- 58. That finding was premissed as much on tion... of benefit' in Article 12(2) of Reg- the wording as on the aims of Article 12(2) ulation No 1408/71, in the version set out of Regulation No 1408/71, in the version in Regulation No 2001/83. set out in Regulation No 2001/83. With regard to its wording, the Court noted that the first sentence of that provision referred, in the French version, to the 'bénéficiaire' (recipient of benefit) and the second re-

56. First, Regulation No 1248/92 amended 33 — Case C-366/96 Cordelle [1998] ECR I-583, paragraph 12. Article 12(2) by deleting the second sen- 34 — Ibid. tence of that paragraph and stating that the 35 — Case C-143/97 Conti [1998] ECR I-6365, paragraph 19.

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62. To the extent that it determines the conditions for the application of national rules against overlapping in respect of invalidity, old age and survivors' benefits, Article 46a(3)(c) constitutes a limit on the 59. In my view, those considerations are principle laid down in Article 12(2) of equally applicable to Article 12(2) of Reg- Regulation No 1408/71, as amended, that ulation No 1408/71, as amended. On the provisions against overlapping may be one hand, even though Regulation invoked. Consequently, its scope cannot No 1248/92 has deleted the second sen- be wider than that of the principle from tence of that provision, it remains the case which it derogates. that the first sentence [of the French version] continues to refer to the 'bénéfi- ciaire' of social security benefits. On the other hand, as we have seen, 39 the amend- ments effected by Regulation No 1248/92 have not undermined the principle of 63. Moreover, I share the ONP's view that Article 12(2). That principle has, in Reg- the concept of Overlapping of benefits of ulation No 1408/71, as amended, the same the different kinds', referred to in Arti- purpose as that pursued in the version of cle 46a(2), cannot cover a case where two Regulation No 1408/71 set out in Regula- separate individuals have more than one tion No 2001/83. overlapping benefit. It follows from the 21st recital in the preamble to Regulation No 1248/92 that that term must be inter- 36 — Paragraph 11. preted 'in accordance with the case-law of 37 — Paragraph 12. 38 — Paragraph 13. the Court of Justice'. The Court's case-law 39 — Point 56 of this Opinion. states that there are overlapping benefits of

65. First of all, Question 2(a) is not easy to understand. In order to identify its import,

68. In the second situation, the national 40 — With regard to Article 12(2) of Regulation N o 1408/71, in the version set out in Regulation N o 2001/83, see Case court 'holds that the application of that 197/85 Stefanutti [1987] ECR 3 8 5 5 . In that case Mrs Ste- [national] rule... constitutes an obstacle to fanutti was in receipt firstly of an invalidity pension on the basis of her employment record in one Member State a n d , the free movement of workers'. 43 It could secondly, a survivor's pension on the basis of her deceased husband's employment record in another Member State. disapply that provision 'in order to elim- With regard to Article 46a of Regulation N o 1408/71, as amended, see Case C-98/94 Schmidt [1995] ECR I-2559. inate the adverse effects... of [its] applica- In that case Mrs Schmidt was in receipt of a retirement pension awarded on the basis of insurance periods which she had completed in one Member State and also a retirement pension obtained — in her capacity as a divorced spouse — on the basis of periods of insurance 41 — Question 1 (my emphasis). completed by her former husband in another Member 42 — Question 3 (my emphasis). State. 4 3 — Question 1 (my emphasis).

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70. I would conclude that, in essence, in Question 2(a) the Arbeidshof te Antwerpen 72. As we know, Regulation No 1408/71, is seeking to ascertain whether the reduc- as amended, does not set up a common tion in the retirement pension required by social security scheme for workers and Article 3(1) and (8) of the Belgian Law of members of their family moving within 20 July 1990, in a situation such as that of the Community. 51 In that area, Article 51 the Engelbrechts, constitutes an obstacle to of the Treaty provides for the coordination, the free movement of workers or whether it not the harmonisation, of the legislation of results from the disparities between the the Member States. 52 It allows differences Belgian and Netherlands social security to remain between the social security schemes. schemes of each Member State and, conse- quently, between the rights of persons who work in them. The substantive and proce- dural differences between the social secur- ity schemes of the Member States are

71. As I have said, 46 that question has already been considered in the Van Mun- 47 — Points 21 to 35. 48 — See in particular, paragraphs 14.5.1 to 14.5.4. 49 — Paragraph 27 (see also paragraphs 33 and 35). 50 — Paragraph 30 (see also paragraphs 31 and 32). 44 — Question 3 (my emphasis). 51 — Case 807/79 Gravina (1980) ECR 2205, paragraph 7; 45 — Paragraph 15.1 of the order for reference (my emphasis). Case 21/87 Borowitz [1988] ECR 3715, paragraph 23. 46 — Point 38 of this Opinion. 52 — Case 41/84 Pinna [1986] ECR 1, paragraph 20.

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77. It is therefore necessary to ascertain retirement pension in the second State. whether the provision at issue deprives the When his spouse reached the age of 65 migrant worker of a social security advan- she would have had no pension of her own. tage that is enjoyed by a non-migrant Consequently, Mr Engelbrecht's Belgian worker. pension would have been maintained at the household rate.

78. In that regard, it is undeniable that Mr Engelbrecht, who exercised his right to 82. Let us now imagine that Mr Engel- free movement, is in a less favourable brecht had worked in Belgium and Ireland. situation than a worker who also has a Irish law gives retired workers a pension non-working 'dependent' spouse but who increased by a weekly supplement if their has worked only in Belgium. While the spouses have not engaged in any gainful former loses his right to a retirement employment and do not have an income of pension at the household rate, the latter is their own. 60 On reaching retirement age, not faced with the threat of having his Mr Engelbrecht would thus have obtained pension reduced. a pension at the household rate from the first State and a pension increased by way of statutory supplement in the second State. When his spouse reached the age of 65, she would not have received a retirement 79. However, that finding does not neces- pension or equivalent benefit, so that sarily mean that the Belgian legislation is Mr Engelbrecht's Belgian pension would incompatible with Articles 48 to 51 of the not have been reduced. Treaty.

84. It follows from those examples that 86. I conclude that the reduction in retire- Belgian legislation does not establish a ment pension required by Article 3(1) and difference in treatment as between non- (8) of the Belgian Law of 20 July 1990 in a migrant workers and those who have situation such as that in issue in the main exercised their right to free movement. It proceedings does not constitute an obstacle does not deprive the migrant worker of a to the free movement of workers, but social security advantage which only the results from the existing disparities between non-migrant worker enjoys. It is true that, the Belgian and Netherlands social security in theory, the reduction in retirement schemes. pension imposed by Belgian legislation affects only workers who have exercised their right to free movement. However, that reduction operates not by reason of the exercise of that right but because the migrant worker and non-working spouse The other questions fall simultaneously under Belgian and Netherlands pensions legislation.

87. Given the conclusion outlined above, the other questions — which it is appro- priate to consider together — can be for- mulated as follows:

93. Fairness would demand a reply in the alternative. 90. For its part, the ONP pointed out that, under the case-law of the Belgian Cour de cassation, an old age pension provided under the AOW should be considered to be a 'benefit equivalent to' a retirement pension. Therefore, to refuse to classify 94. The reduction of Mr Engelbrecht's Bel- Mrs Engelbrecht's pension as such is tanta- gian retirement pension, effected without mount to interpreting the Belgian legisla- any real quid pro quo for his wife, con- tion contra legem. 62 The method of inter- stitutes an injustice which is hard to accept. pretation in conformity with Community It is all the harder because the adverse law cannot compel a national court to give consequences of the disparities between the an interpretation contra legem. Belgian and Netherlands legislation are well known to the competent authorities. Thus, it is clear from the documents before the Court that, since October 1984, the Belgian and Netherlands social security bodies had been examining the repercus- sions of the AOWs reform on the Belgian 91. Clearly, the Court cannot examine that rules. 64 In that context, they had already question. It involves an interpretation of found that the grant, pursuant to Nether- Belgian law and is, accordingly, beyond the lands legislation, of their own pension to Court's jurisdiction. 63 It is therefore appro- non-working spouses would prevent the priate to proceed on the assumption — Belgian pension of retired workers being expressly referred to by the national maintained at the household rate. 65Fur- court — that the legislation in question is thermore, those consequences were high- not capable of being interpreted in a lighted in the Bakker case 66 and in the Van Munster judgment.

96. On the one hand the Court has con- 98. Is it appropriate to extend this principle sistently held that, in the absence of har- to a situation such as that in issue in the monisation in social security matters, main proceedings? Member States remain competent to define the conditions for granting social security benefits, provided that the conditions adopted do not give rise to overt or disguised discrimination between Commu- nity workers. 67 It is equally clear that Article 48 of the Treaty is not concerned 99. I do not think so. with any disparities in treatment which may result, between Member States, from divergences existing between the laws of the various Member States, so long as the latter affect all persons subject to them in accordance with objective criteria and without regard to their nationality. 68 100. Firstly, as both the Netherlands and United Kingdom Governments have pointed out, such a solution would be difficult to reconcile with the principle of legal certainty.

Member State's rules — that are equally of the Community'. 72 Hence the objective consistent with Community law. of Article 51 of the Treaty is to contribute to the 'establishment of the greatest possi- ble freedom of movement for migrant workers...'. 73 The terms of the Van Mun- ster judgment are clear: where there is a divergence between national legislation in 102. Significant difficulties would result matters of social security, 'the principle of both for the competent authorities and for cooperation in good faith laid down in citizens when they sought to determine the Article 5 of the EEC Treaty requires the exact circumstances in which their social competent authority in the Member States security rules could be applied. Those to use all the means at their disposal to difficulties would be even harder to resolve achieve the aims of Article 48 of the where a migrant worker's situation was Treaty'. 74 governed, not by the legislation of two Member States, as in this case, but by the legislation of three separate Member States, or even more. 71

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a divergence between national rules on 109. Similarly, the Administrative Com- social security that are in conformity with mission on Social Security for Migrant Community law, it can only be required to Workers is competent to address the prob- interpret its legislation in the light of the lem. According to the wording of Arti- aims of Articles 48 to 51 of the Treaty and cle 81 of Regulation No 1408/71, as amen- to avoid, as far as possible, giving an ded, it is the duty of that commission 'to interpretation that might discourage deal with all administrative questions and migrant workers from effectively exercising questions of interpretation arising from the their right to free movement. That obliga- provisions of this Regulation...' and also to tion is laid down in the Van Munster 'submit proposals to the Commission... for judgment and should be confirmed. How- working out... revision of this... Regula- ever, in a situation where such an inter- tion'. pretation proves impossible, the national court cannot, in my view, be required to disapply its national legislation.

(2) The reduction in the amount of a retirement pension required by Article 3(1) and (8) of the Belgian Law of 20 July 1990 in a situation such as that in issue in the main proceedings does not constitute an obstacle to the free movement of workers, but results from the disparities between the Belgian and Netherlands social security schemes.

(3) When, for the purpose of applying a provision of domestic law, a national court has to characterise a social security benefit awarded under the statutory scheme of another Member State, and concludes that its own legislation I - 7345

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cannot be interpreted in the light of the aims of Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC), Article 50 of the EC Treaty (now Article 41 EC) and Article 51 of the EC Treaty (now, after amendment, Article 42 EC) in such a way as to avoid the adverse effects for the migrant worker of the lack of coordination between national social security schemes, it is not required to disapply its national legislation.

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