JUDGMENT OF 14. 3. 1978 — CASE 98/77 SCHAAP v BEDRIJFSVERENIGING VOOR BANK- EN VERZEKERINGSVEZEN, GROOTHANDEL EN VRIJE BEROEPEN

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

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 written procedure

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

Decision

The portion of the German benefit attributable to the period from 1934 to 1945

The application of national legislation

Costs

I —. Facts and written procedure

II —. Summary of the 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 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 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:

8. 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.

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.

11. It follows that if the provisions of Regulation No 1408/71 are more favourable to the worker than national legislation they must be applied.

12. The costs incurred by the Belgian Government, the Italian Government and the Commission of the European Communities which have submitted observations to the Court are not recoverable.

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: