JUDGMENT OF M. J. 1978 — CASE 105/77 SOCIALE VERZEKERINGSBANK v BOERBOOM-KERSJES

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

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 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 written 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

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.

4. The Netherlands institution pursuant to the Algemene Weduwen- en Wezenwet (law on general insurance for widows and orphans) (AWW), 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:

8. 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 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.

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.

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

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: