1 BY JUDGMENT DATED 25 JUNE 1976 , RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 6 JULY , THE ARBEIDSRECHTBANK OF THE JUDICIAL DISTRICT OF HASSELT , BELGIUM , REFERRED UNDER ARTICLE 177 OF THE EEC TREATY SEVERAL QUESTIONS ON THE INTERPRETATION OF ARTICLE 46 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ( OJ ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND DECISION NO 91 OF THE ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS CONCERNING THE INTERPRETATION OF ARTICLE 46 ( 3 ) OF THE SAID REGULATION ( OJ C 86 OF 20 . 7 . 1974 , P . 8 ).
2 THESE QUESTIONS ARE RAISED IN THE CONTEXT OF AN ACTION RELATING TO THE CALCULATION BY THE RELEVANT BELGIAN INSTITUTION OF THE INVALIDITY PENSION OF A BELGIAN NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , WHO WORKED PARTLY IN BELGIUM AS AN UNDERGROUND MINER AND PARTLY IN THE FEDERAL REPUBLIC OF GERMANY OUTSIDE THE MINING SECTOR .
3 THIS WORKER FULFILLED IN BELGIUM ALL THE CONDITIONS REQUIRED BY THE NATIONAL LEGISLATION TO ENTITLE HIM TO AN INVALIDITY PENSION UNDER THE SYSTEM APPLYING TO MINERS .
4 ON THE OTHER HAND TO ENTITLE HIM TO BENEFIT IN THE FEDERAL REPUBLIC OF GERMANY HE HAD TO RELY ON THE PROVISIONS OF ARTICLE 45 OF REGULATION NO 1408/71 AND FOR THE CALCULATION OF THIS BENEFIT THE PERIODS COMPLETED IN THE TWO MEMBER STATES WERE AGGREGATED AND THE GERMAN BENEFIT APPORTIONED .
5 TAKING ADVANTAGE OF THE RULE LIMITING THE OVERLAPPING OF BENEFITS PROVIDED IN DIFFERENT MEMBER STATES , WHICH IS LAID DOWN BY ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 AND DECISION NO 91 OF THE ADMINISTRATIVE COMMISSION , THE BELGIAN INSTITUTION BY DECISION DATED 12 MAY 1975 REDUCED THE INVALIDITY PENSION FROM FB 137 352 TO WHICH HE WAS ENTITLED UNDER BELGIAN LEGISLATION ALONE TO FB 82 013 .
6 THIS SUM REPRESENTS THE DIFFERENCE BETWEEN THE HIGHEST THERORETICAL AMOUNT , NAMELY THAT OF THE GERMAN PENSION ( FB 172 016 ) AND THE GERMAN APPORTIONED AMOUNT ( FB 90 048 ).
7 THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT HE SHOULD BE AWARDED AT LEAST THE BELGIAN APPORTIONED AMOUNT ( FB 129 272 ).
8 THIS METHOD OF CALCULATION BY THE BELGIAN INSTITUTION IS INTENDED TO PUT INTO PRACTICE A PRINCIPLE ACCORDING TO WHICH THE MIGRANT WORKER IS ASSURED OF RECEIVING IN TOTAL , BY VIRTUE OF THE VARIOUS PENSIONS GRANTED TO HIM BY THE VARIOUS MEMBER STATES , AN AMOUNT EQUAL TO THE HIGHEST BENEFIT HE WOULD HAVE OBTAINED IF HE HAD SPENT HIS WHOLE WORKING LIFE SUBJECT TO THE LEGISLATION OF ONE OR OTHER OF THE MEMBER STATES CONCERNED .
9 THE FOLLOWING QUESTIONS ARE ASKED :
( A ) IT IS TO BE NOTED THAT DECISION NO 91 REFERS TO THE SECOND SUBPARAGRAPH OF ARTICLE 46 ( 3 ) ( CALCULATION OF THE ADJUSTMENT ) WHILST THE PRINCIPLE OF THE LIMITATION OF THE TOTAL OF THE VARIOUS BENEFITS IS LAID DOWN IN THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 3 ). DOES THIS MEAN THAT THE PRINCIPLE OF THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 3 ) IS NOT AFFECTED BY DECISION NO 91 , OR IS IT TO BE ASSUMED THAT WHERE DECISION NO 91 LAYS DOWN THE METHOD OF CALCULATION BY WHICH ANY AMOUNT IN EXCESS OF THE MAXIMUM BENEFIT MUST BE ADJUSTED , IT ALSO IMPLIES A POSSIBILITY OF EXCEEDING THE HIGHEST THEORETICAL AMOUNT OPERATIVE IN THIS CONNEXION?
( B ) MUST THE NATIONAL AMOUNTS WHICH HAVE BEEN CALCULATED BE COMPARED , FIRST , WITH THE THEORETICAL AMOUNT AND , SECONDLY , WITH THE APPORTIONED AMOUNT?
( C ) OR IS A COMPARISON MADE ONLY BETWEN THE NATIONAL AMOUNT AND THE APPORTIONED AMOUNT?
( D ) MUST A NATIONAL INSURANCE INSTITUTION COMPARE ONLY ITS OWN AMOUNTS WITH ONE ANOTHER ( NATIONAL , THEORETICAL AND/OR APPORTIONED AMOUNT)?
( E ) OR MUST THE FIGURES FROM THE FOREIGN INSTITUTION ALSO BE INCLUDED IN THIS COMPARISON?
( F ) WHAT IS THE POSITION IN THE CASE OF THE HYPOTHESIS UNDER QUESTION ( D ) WHERE DECISION NO 91 IS APPLICABLE FOR ONE COUNTRY AND NOT FOR THE OTHER?
( G ) IS IT IN AN APPROPRIATE CASE UNNECESSARY FOR THE TOTAL OF THE APPORTIONED AMOUNTS TO BE COMPARED WITH THE NATIONAL AMOUNTS?
10 BEFORE CONSIDERING THESE QUESTIONS IT IS WELL TO CONSIDER THE QUESTION OF THE VALIDITY OF THE REGULATION AND DECISION THE INTERPRETATION OF WHICH IS REQUESTED .
11 AS HAS ALREADY BEEN STATED IN OTHER CONTEXTS AND LASTLY BY THE JUDGMENT IN CASE 24/75 ( PETRONI ( 1975 ) ECR 1149 ), THE REGULATIONS IN THE FIELDS OF SOCIAL SECURITY FOR MIGRANT WORKERS HAVE AS THEIR BASIS , THEIR FRAMEWORK AND THEIR BOUNDS ARTICLES 48 TO 51 OF THE TREATY .
12 ARTICLE 51 REQUIRES THE COUNCIL TO ADOPT IN THE FIELD OF SOCIAL SECURITY SUCH MEASURES AS ARE ' NECESSARY ' TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS , PROVIDING FOR THE AGGREGATION , IN PARTICULAR FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT , OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE VARIOUS NATIONAL LAWS .
13 THE AIM OF ARTICLES 48 TO 51 WOULD NOT BE ATTAINED IF , AS A CONSEQUENCE OF THE EXERCISE OF THEIR RIGHT TO FREEDOM OF MOVEMENT , WORKERS WERE TO LOSE ADVANTAGES IN THE FIELD OF SOCIAL SECURITY GUARANTEED TO THEM IN ANY EVENT BY THE LAWS OF A SINGLE MEMBER STATE .
14 ARTICLE 46 ( 3 ) TAKES THE FORM OF A RULE LIMITING OVERLAPPING AND THE COUNCIL , IN THE EXERCISE OF THE POWERS WHICH IT HOLDS UNDER ARTICLE 51 CONCERNING THE COORDINATION OF THE SOCIAL SECURITY SCHEMES OF THE MEMBER STATES , HAS THE POWER , IN CONFORMITY WITH THE PROVISIONS OF THE TREATY , TO LAY DOWN DETAILED RULES FOR THE EXERCISE OF RIGHTS TO SOCIAL BENEFITS WHICH THE PERSONS CONCERNED DERIVE FROM THE TREATY .
15 DECISION NO 91 OF THE ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS IS INTENDED TO INTERPRET THE SAID ARTICLE .
16 A LIMITATION ON THE OVERLAPPING OF BENEFITS WHICH WOULD LEAD TO A DIMINUTION OF THE RIGHTS WHICH THE PERSONS CONCERNED ALREADY ENJOY IN A MEMBER STATE BY VIRTUE OF THE APPLICATION OF THE NATIONAL LEGISLATION ALONE IS INCOMPATIBLE WITH ARTICLE 51 .
17 IT IS THEREFORE PROPER TO CONCLUDE THAT ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 AND DECISION NO 91 OF THE ADMINISTRATIVE COMMISSION ARE INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH THEY IMPOSE A LIMITATION ON THE OVERLAPPING OF TWO BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION OF THE AMOUNT OF THE BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE .
18 THE ABOVE FINDINGS ON THE VALIDITY OF THE SAID REGULATION AND DECISION RENDER SUPERFLUOUS AN ANSWER TO THE QUESTIONS ON THEIR INTERPRETATATION .
COSTS
19 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE AND 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 QUESTIONS REFERRED TO IT BY THE ARBEIDSRECHTBANK OF THE JUDICIAL DISTRICT OF HASSELT BY JUDGMENT OF 25 JUNE 1976 HEREBY RULES :
' ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 AND DECISION NO 91 OF THE ADMINISTRATIVE COMMISSION ARE INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH THEY IMPOSE A LIMITATION ON THE OVERLAPPING OF TWO BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION OF THE AMOUNT OF THE BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE . '
