JUDGMENT OF 20. 10. 1977 -CASE 32/77 GIULIANI v LANDESVERSICHERUNGSANSTALT SCHWABEN

In Case 32/77 Reference to the Court under Article 177 of the EEC Treaty by the Sozialgericht Augsburg for a preliminary ruling in the action pending before that court between

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

I — Facts and procedure

II — Summary of written observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

Decision

Costs

I —. Facts and procedure

1. Does the Court, having regard to the principle of equality, adhere to its ruling (judgment of 21 October 1975 in Petroni, Case 24/75) to the effect that Article 46 (3) of Regulation No 1408/71 of the Council 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 a benefit acquired under the national legislation of a Member State alone?

2. Is Article 46 (3) of Regulation No 1408/71 of the Council, where appropriate, valid in so far as rights to payment are thereby limited which would not exist in the absence of Community law?

3. Do rights to payment exist in the absence of Community law or are such rights acquired under the legislation of a Member State alone if, in the case of a migrant worker resident in another Member State, they can be realized, by reason of national suspensory provisions, only through the waiving of residence clauses under Article 10 of Regulation No 1408/71?

4. How is the last question to be answered if bilateral or multilateral Conventions between the Member States concerned have already provided rules corresponding to those in Article 10 of Regulation No 1408/71?

II —. Summary of written observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. By order of 27 January 1977, which reached the Court Registry on 14 March 1977, the Sozialgericht Augsburg referred certain questions under Article 177 of the EEC Treaty concerning the validity of Article 46 (3) 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 (OJ, English Special Edition 1971 (II), p. 416).

2. Those questions are referred in connexion with proceedings concerning the way in which the competent German institution calculated the invalidity pension of an Italian national, the plaintiff in the main action, who resides in Italy and who worked first in Italy and subsequently in Germany.

3. The first question asks whether the Court of Justice, having regard to the principle of equality, adheres to its ruling (judgment of 21 October 1975 in Petroni, Case 24/75) to the effect that Article 46 (3) of Regulation No 1408/71 of the Council 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 a benefit acquired under the national legislation of a Member State alone.

4. The first subparagraph of Article 10 (1) of Regulation No 1408/71 provides: Save as otherwise provided in this regulation, invalidity, old age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in a territory of a Member State other than that in which the institution responsible for payment is situated.

5. As the Court has already ruled, in its judgment of 21 October 1975(Petroni,Case 24/75 [1975] ECR 1149), Article 46 (3) of Regulation No 1408/71 of the Council is incompatible with Article 51 of the Treaty to the extent to which it imposes a limitation on benefits acquired in different Member States by a reduction in the amount of a benefit acquired under national legislation alone.

6. Consequently, the answer to be given to the first two questions is that Article 46 (3) is applicable only in cases where, for the purpose of acquiring the right to benefit within the meaning of Article 51 (a) of the Treaty, it is necessary to have recourse to the arrangements for aggregation of the periods of insurance.

7. The answers to the first three questions make it unnecessary to answer the fourth.

8. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

On those grounds, THE COURT in answer to the questions referred to it by the Sozialgericht Augsburg by order of 27 January 1977 hereby rules:

1 Article 46 (3) of Regulation No 1408/71 is applicable only in cases where, for the purpose of acquiring the right to benefit within the meaning of Article 51 (a) of the Treaty, it is necessary to have recourse to the arrangements for aggregation of the periods of insurance.

2 Since the waiving of residence clauses pursuant to Article 10 of Regulation No 1408/71 has no effect on the acquisition of the right to benefit, it cannot involve the application of Article 46 (3) of that regulation.