JUDGMENT OF 5. 4. 1979 — CASE 176/78 SCHAAP v BEDRIJFSVERENIGING VOOR BANK- EN VERZEKERINGSWEZEN, GROOTHANDEL EN VRIJE BEROEPEN

In Case 176/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep, Utrecht, for a preliminary ruling in the action pending before that court between

THE COURT composed of: J. Mertens de Wilmars, President of the First Chamber, acting as President, Lord Mackenzie Stuart (President of the Second Chamber), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, 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

The first question

The second question

Decision

Costs

I —. Facts and written procedure

1. Is the heading of Article 46 of Regulation No 574/72 an integral part of that article in the sense that the content of the article is also determined by that heading?

2. Having regard to Article 46 (2) (d) of Regulation No 1408/71 are the second subparagraph of paragraph (1) and paragraph (2) of Article 46 of Regulation No 574/72 read together with the first subparagraph of paragraph (1) and the heading above the article relates only to benefits calculated in accordance with Article 46 (2) (a) and (b) of Regulation No 1408/71 in cases where aggregation of periods has occurred and in connexion with which periods of voluntary or optional continued insurance were not taken into account, or do those provisions, or does one of them, also apply to cases in which the benefits were not calculated in accordance with Article 46 (2) (a) and (b) of Regulation No 1408/71 and there has been no question of leaving out of account periods of voluntary or optional continued insurance in calculating the benefits?

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. Are the second subparagraphs of Article 46 (1) and Article 46 (2) of Regulation No 574/72 of the Council read together with the provisions of the first subparagraph of Article 46 (1) and with the heading above the. article to be understood as meaning that the whole article relates only to cases where overlapping of periods occurs, in other words where a period of voluntary insurance coincides with a period of compulsory insurance, or do those provisions relate to cases not covered by the first subparagraph of Article 46 (1), in other words cases where no overlapping of periods occurs?

2. Is Article 46 of Regulation No 574/72 of the Council to be understood as meaning that it relates solely to benefits calculated in accordance with Article 46 (2) (a) and (b) of Regulation No 1408/71 or as meaning that it also relates to benefits calculated on the basis of national legislation alone pusuant to Article 46 (1) of Regulation No 1408/71?

1. In so far as voluntary insurance replaces compulsory insurance and does not therefore lead to overlapping of insurance periods of voluntary insurance must be treated as periods of compulsory insurance.

2. The overlapping of voluntary insurance and compulsory insurance is expressly authorized by Article 15 (3) of Regulation No 1408/71; Article 46 of Regulation No 574/72 draws the inferences from that possibility of overlapping by preventing the methods of calculation laid down in Article 46 (2) or Article 46 (3) of Regulation No 1408/71 from affecting adversely the advantages which those concerned may expect from this overlapping of insurance periods (and of contributions).

1. Article 46 of Regulation No 574/72 of the Council does not refer to all cases in which a worker has taken out voluntary insurance during his career in a Member State but only to those in which overlapping of periods of insurance occurs, in other words where a period of voluntary insurance in a Member State coincides with a period of compulsory insurance in another Member State.

2. Where a pension payable under national legislation alone is reduced pursuant to the provisions of that legislation because that pension overlaps with a pension payable under the legislation of another Member State, the competent institution of the first Member State does not take into account for the purposes of the reduction the amount of the benefit from the second Member State which corresponds to the periods of voluntary or optional continued insurance which coincide with the periods completed under compulsory insurance under the legislation which it administers.

1. By order of 11 July 1978, which was received at the Court on 17 August 1978, the Centrale Raad van Beroep referred to the Court of Justice under Article 177 of the EEC Treaty two questions for a preliminary ruling on the interpretation of Article 46 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 (Official Journal, English Special Edition 1971 (II), p. 416) and of Article 46 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (Official Journal, English Special Edition 1972 (I), p. 159). These questions have arisen within the context of proceedings relating to the calculation by the competent Netherlands institution of the invalidity pension of a Netherlands national, the plaintiff in the main action, who worked in the Federal Republic of Germany from 1929 to 1933 and afterwards in the Netherlands.

2. The plaintiff in the main action availed himself of the opportunity afforded by German legislation relating to the victims of Nazi persecution and, with reference to his pension insurance, bought in voluntarily the back period from 1934 to 1945 so as to be able to claim a higher German pension. The Netherlands Fund, taking into account the German pension, reduced the amount of the benefit payable to the plaintiff in the main action 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.

3. The plaintiff in the main action 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. 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 Nationale des Pensions pour Travailieurs 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.

4. Within the context of the same main action the Centrale Raad van Beroep referred to the Court of Justice under Article 177 of the EEC Treaty by a first order of 12 July 1977 a question for a preliminary ruling on the interpretation of Articles 12 (2) and 46 of Regulation No 1408/71 (Case 98/77, Max Schaap v Bestuur van de Bedrijfsvereniging voor Bank- en Vezekeringswezen, Groothandel en Vrije Beroepen) worded as follows:

5. The Centrale Raad van Beroep, sharing the doubts expressed by the Netherlands Fund, the defendant in the main action, on the interpretation of Article 46 (2) of Regulation No 574/72, referred to the Court once more the following questions:

6. It is necessary to deal with the two questions jointly. The Court bases the reply to be given to the questions referred to it on the fact that the benefits in question come within social security within the meaning of Regulation No 1408/71.

7. A worker who had been successively or alternatively 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) of Regulation No 1408/71 (that is, legislations according to which the amount of invalidity benefits is independant of the duration of insurance periods or periods of residence - type A), receives benefits, according to Article 40 (1) of the same regulation, under the provisions of Chapter 3 (Old age and death (pensions)), which apply by analogy. The German legislation is of type B, according to which the amount of benefits depends upon the duration of insurance periods. It follows that the plaintiff in the main action must receive benefits calculated according to the provisions of Chapter 3 - Article 44 et seq. of Regulation (EEC) No 1408/71.

8. Article 46 of that regulation is devoted to the award of benefits to a worker who has been subject to the legislation of two or more Member States. That article, which may be applicable to the case of the plaintiff in the main action, provides as follows:

9. The implementing regulation referred to in Article 46 (2) (d) of Regulation (EEC) No 1408/71 is Regulation (EEC) No 574/72 of the Council, the interpretation of which is requested in the questions referred to the Court. Article 15 (1) (b) of that regulation, as amended by Regulation (EEC) No 878/73 of the Council of 26 March 1973 (Official Journal L 86, p. 1), provides as follows:

10. It is clear from the provisions quoted above that for the purpose of the calculation of the actual amount of benefit in accordance with Article 46 (2) of Regulation (EEC) No 1408/71, the regulation aims to ensure that a period of insurance completed under voluntary or optional continued insurance under the legislation of one Member State which coincides with a period of insurance or residence completed under compulsory insurance under the legislation of another Member State is not taken into account for the purpose of the aggregation of periods without this however depriving the worker of the benefit of that period. It follows from all the foregoing that where there can be no question of periods coinciding because one body of legislation in question is of type A the regulation also allows the worker the benefits corresponding to any period of voluntary or optional insurance.

11. Therefore although Article 46 (2) of Regulation No 574/72 appears under the heading Calculation of benefits in the event of overlapping of periods, it must be applied to all cases coming under Article 46 (3) of Regulation No 1408/71 so that, for the purpose of the application of that paragraph, the competent institution cannot take account of benefits corresponding to periods completed under voluntary or optional insurance.

12. The costs incurred by the Belgian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since the proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the Centrale Raad van Beroep, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Centrale Raad van Beroep by order of 11 July 1978 hereby rules: