Opinion of Mr advocate general Capotorti

Mr President,

Member of the Court,

1. The origin of the present proceedings is a reference for a preliminary ruling on a question of interpretation submitted by a Netherlands court, namely the Centrale Raad van Beroep, in the context of a dispute over the application of Netherlands rules against the overlapping of benefits in the field of pensions. The appellant in the main action, Mrs Brouwer-Kaune, worked as an employed person in two Member States: in Germany from 1928 to 1950 and in the Netherlands from 1951 to 1972. From 1950 to 1957 she continued voluntarily to pay contributions in Germany in respect of invalidity and old-age insurance so as to reach the total period of contributions necessary to obtain a pension. In 1970, following a medical examination which the person concerned underwent at the competent German social security institution, she was' declared partially incapacitated for work and as a result obtained, as from 1 August of that year, an occupational invalidity pension under the Federal legislation, for which purpose the German insurance periods were not aggregated with those completed in the Netherlands. Subsequently, by a decision of 16 August 1974, that pension was converted, retroactively with effect from 1 August 1973, into an old-age pension.

2. For a better understanding of the problem under consideration a brief summary is required of the content of the Community rules on which the solution must be based. The said Article 40 (1) of Regulation No 1408/71 belongs to Chapter 2 of Title III, which chapter concerns invalidity benefits; however, Article 40 (1) refers to the rules contained in Chapter 3 (old-age and death), declaring them applicable by analogy in relation to invalidity benefits enjoyed by a worker who has been successively or alternately subject to the legislations of two or more Member States, of which at least one is not of the type referred to in Article 37 (1) (that is to say of the type whereby the amount of invalidity benefit is independent of the duration of periods of insurance). Article 40 (1) further provides that the application by analogy of Chapter 3 shall take into account the provisions of paragraph (3), but that paragraph is not relevant to the case under consideration.

3. Working on that basis, let us examine the question first of all in the light of Article 40 (1). There is no doubt that in cases such as the one described the two conditions laid down in the said provision are satisfied: the worker concerned has been successively subject to the legislations (in the field of invalidity) of two Member States, and one of those legislations is not of the type referred to in Article 37 (1); moreover, the very wording of the question presupposes that both the conditions are satisfied, since it refers to the situation where the right to an invalidity pension exists under the law of one Member State, of the type referred to in Article 37 (1), and where the person concerned satisfies the requirements on the basis of which he may be accorded a similar right under the legislation of another Member State, of a type different from that referred to in Article 37 (1). So where is the origin of the doubts, evinced by the Netherlands court, concerning the applicability by analogy of Chapter 3? To ask whether the provisions of that Chapter are applicable amounts to asking whether Article 40 itself is applicable, since that article, in fact, merely deals, by means of a reference to Chapter 3, with invalidity benefits in favour of workers who are in the situation described there. In the hypothesis adopted by the national court, for the purpose of determining the amount of invalidity benefits, where the worker is in the situation envisaged in Article 40 (1) there is no doubt that that article — and, consequently, Chapter 3 — are applicable.

4. In support of the first of these hypotheses one could argue that Article 46 must be interpreted in accordance with Article 12 (2) of the Regulation. That provision lays down that The legislative provisions of a Member State for reduction, suspension, or withdrawal of benefit in cases of overlapping with other social security benefits or other income may be invoked even though the right to such benefits was acquired under the legislation of another Member State …; and it goes on to state that this provision shall not apply when the person concerned receives benefits of the same kind in respect of invalidity, old-age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States in accordance with Articles 46, 50, 51 or Article 60 (1) (b).

5. For those reasons I conclude by proposing that in answer to the request for a preliminary ruling submitted by the Centrale Raad van Beroep by an order of 16 May 1978, the Court should declare that, by virtue of Article 40 (1) of Regulation No 1408/71 of the Council, Article 46 of that regulation is also applicable to the award of invalidity benefits in one Member State, in which a worker's right to such benefits has been recognized under legislation of the type referred to in Article 37 (1), where, before acquiring that right, the person concerned has already become entitled to an old-age pension as a result of the conversion of a former invalidity pension by virtue of the legislation of another Member State not being of the type referred to in the said Article 37 (1).

1 Translated from the Italian.