1 BY AN ORDER OF 21 DECEMBER 1979 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 2 JANUARY 1980 THE FIRST CHAMBER OF THE TRIBUNAL CIVIL DE PREMIERE INSTANCE , LIEGE , REFERRED A QUESTION TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY ON THE INTERPRETATION OF ARTICLE 51 OF THE EEC TREATY AND ARTICLES 27 AND 28 OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 561 ).
2 THIS QUESTION HAS ARISEN IN THE CONTEXT OF A DISPUTE BETWEEN THE FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( NATIONAL PENSION FUND FOR MINERS ), HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' , THE PLAINTIFF IN THE MAIN ACTION , AND ONE OF ITS LAWYERS , THE DEFENDANT IN THE MAIN ACTION , WHOM THE FUND ACCUSES OF FAILING DESPITE THE ISSUE OF INSTRUCTIONS TO THAT EFFECT TO LODGE AN APPEAL IN DUE TIME , AGAINST A JUDGMENT DELIVERED ON 17 APRIL 1975 BY THE EUPEN DIVISION OF THE ARBEITSGERICHT ( LABOUR TRIBUNAL ) VERVIERS .
3 BY THAT JUDGMENT THE ARBEITSGERICHT SET ASIDE , ON THE BASIS OF AN INTERPRETATION OF COMMUNITY LAW WHICH WAS CHALLENGED BY THE FUND , A DECISION BY THE FUND TO WITHDRAW , PURSUANT TO ARTICLE 28 ( 4 ) OF REGULATION NO 3 , WITH RETROACTIVE EFFECT , INVALIDITY BENEFITS AWARDED PURSUANT TO REGULATION NO 3 TO MR TOMITZEK , A GERMAN NATIONAL WHO HAD WORKED AS A MINER FIRST IN GERMANY AND THEN IN BELGIUM . THE FUND ' S DECISION WAS BASED ON THE FACT THAT , FOLLOWING A DECISION BY THE BUNDESKNAPPSCHAFT , THE COMPETENT GERMAN INSTITUTION , OF 26 MARCH 1974 , MR TOMITZEK RECEIVED , WITH RETROACTIVE EFFECT , AN INVALIDITY PENSION CALCULATED ON THE BASIS OF GERMAN LEGISLATION ALONE , WHICH WAS HIGHER THAN THE PENSION PREVIOUSLY PAID BY THE BUNDESKNAPPSCHAFT PURSUANT TO REGULATION NO 3 .
4 THE FUND THEN BROUGHT AN ACTION FOR DAMAGES FOR PROFESSIONAL MISCONDUCT ON THE PART OF ITS LAWYER , WHO ARGUED IN HIS DEFENCE THAT THE FUND HAD NOT SUFFERED ANY DAMAGE IN THIS CASE SINCE THE ARBEITSGERICHT VERVIERS HAD CORRECTLY INTERPRETED THE COMMUNITY LAW APPLICABLE IN THE MATTER .
5 THE TRIBUNAL CIVIL DE PREMIERE INSTANCE , LIEGE , DECIDED TO STAY THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' ' DID THE ARBEITSGERICHT VERVIERS , IN ITS JUDGMENT OF 17 APRIL 1975 , CORRECTLY INTERPRET ARTICLE 51 OF THE EEC TREATY AND ARTICLES 27 AND 28 OF REGULATION ( EEC ) NO 3 OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS BY RULING THAT THE GERMAN INSURANCE INSTITUTION , THE BUNDESKNAPPSCHAFT , DID NOT AWARD A PURELY NATIONAL PENSION WHICH WOULD HAVE JUSTIFIED THE DECISION TAKEN BY THE PLAINTIFF , BUT A COMMUNITY PENSION WHICH WAS MORE ADVANTAGEOUS FOR THE PERSON ENTITLED , THEREBY EXCLUDING THE APPLICATION OF ARTICLE 28 ( 4 ) OF THE SAID REGULATION ( EEC ) NO 3?
' '
6 IN CONNEXION WITH THE TASK ENTRUSTED TO IT BY ARTICLE 177 THE COURT HAS NO JURISDICTION TO REVIEW THE APPLICATION OF THE PROVISIONS OF COMMUNITY LAW TO A GIVEN CASE OR TO CRITICIZE THE WAY IN WHICH A NATIONAL COURT APPLIES COMMUNITY LAW . HOWEVER , THE NEED TO ARRIVE AT A SERVICEABLE INTERPRETATION OF COMMUNITY LAW PERMITS THE COURT TO EXTRACT FROM THE DETAILS OF THE DISPUTE IN THE MAIN ACTION THE INFORMATION NECESSARY FOR AN UNDERSTANDING OF THE QUESTION REFERRED TO IT AND FOR THE FORMULATION OF AN APPROPRIATE ANSWER .
7 IT IS APPARENT FROM THE FILE THAT THE PURPOSE OF THE REFERENCE FOR A PRELIMINARY RULING IS TO ENABLE THE NATIONAL COURT TO DETERMINE WHETHER THE FUND COULD PROPERLY RELY ON ARTICLE 28 ( 4 ) OF REGULATION NO 3 IN ORDER TO WITHDRAW , WITH RETROACTIVE EFFECT , THE BENEFITS PREVIOUSLY GRANTED TO MR TOMITZEK . THE COURT WILL THEREFORE EXAMINE WHETHER , BEARING IN MIND THE PROVISIONS OF ARTICLE 28 ( 4 ) OF REGULATION NO 3 , COMMUNITY LAW ALLOWS THE COMPETENT INSTITUTION OF A MEMBER STATE TO REFUSE TO GRANT A PRO RATA PENSION CALCULATED BY APPLYING ARTICLES 27 AND 28 OF REGULATION NO 3 TO A WORKER WHO RECEIVES A PENSION PROVIDED BY THE INSTITUTION OF ANOTHER MEMBER STATE PURSUANT TO THE LEGISLATION OF THAT STATE ALONE .
8 ARTICLE 28 ( 4 ) OF REGULATION NO 3 , WHICH APPLIES TO INVALIDITY BENEFITS BY VIRTUE OF ARTICLE 26 OF THAT REGULATION PROVIDES THAT ' ' SUBJECT TO THE PROVISIONS OF PARAGRAPH ( 1 ) ( F ) OF THIS ARTICLE , PERSONS WHO MAY CLAIM UNDER THE PROVISIONS OF THIS CHAPTER SHALL NOT BE ENTITLED TO CLAIM A PENSION UNDER THE LEGISLATION OF ONE MEMBER STATE ONLY ' ' .
9 ARTICLE 28 ( 4 ) IS BASED ON THE PREMISE THAT A MIGRANT WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES MAY CLAIM ENTITLEMENT TO A PENSION ONLY BY MEANS OF THE AGGREGATION OF PERIODS AND THE APPORTIONMENT OF BENEFITS PROVIDED FOR BY ARTICLES 27 AND 28 OF REGULATION NO 3 .
10 UNDER WELL-SETTLED CASE-LAW DATING FROM ITS JUDGMENT OF 5 JULY 1957 IN CASE 1/67 CIECHELESKI , ( 1967 ) ECR 181 THE COURT HAS RULED THAT AGGREGATION AND APPORTIONMENT HAVE NO RELEVANCE IN THE CASE OF A STATE IN WHICH THE RESULT SOUGHT BY ARTICLE 51 OF THE TREATY IS ALREADY ATTAINED BY VIRTUE OF NATIONAL LEGISLATION ALONE . BY THAT CASE-LAW AGGREGATION AND APPORTIONMENT CANNOT BE EFFECTED , WITHOUT BEING INCOMPATIBLE WITH ARTICLE 51 , IF THEIR EFFECT IS TO REDUCE THE BENEFITS WHICH THE PERSON CONCERNED MAY CLAIM BY VIRTUE OF THE LAWS OF A SINGLE MEMBER STATE ON THE BASIS SOLELY OF THE PERIODS OF INSURANCE COMPLETED UNDER THOSE LAWS PROVIDED , HOWEVER , THAT THAT METHOD DOES NOT LEAD TO AN OVERLAPPING OF BENEFITS FOR ONE AND THE SAME PERIOD .
11 IT SHOULD BE FURTHER EMPHASIZED THAT THE OVERLAPPING OF A BENEFIT , ACQUIRED UNDER NATIONAL LAW ALONE ON THE BASIS OF NATIONAL CONTRIBUTION PERIODS WITH A BENEFIT ACQUIRED IN ANOTHER STATE BY MEANS OF AGGREGATION IN A CASE WHERE , AS REQUIRED BY ARTICLE 27 , THE PERIODS OF INSURANCE ' ' DO NOT OVERLAP ' ' , DOES NOT CONSTITUTE AN ADVANTAGE WHICH IS CONTRARY TO COMMUNITY LAW . THE ADVANTAGE OF AGGREGATION IS THE ACQUISITION OF A RIGHT TO A PENSION WHICH WOULD NOT OTHERWISE ARISE , THE PENSION ACQUIRED IN THIS WAY BEING CALCULATED IN PROPORTION ONLY TO THE INSURANCE PERIOD COMPLETED IN THE MEMBER STATE IN QUESTION , TO THE EXCLUSION OF ANY PERIOD COMPLETED ELSEWHERE .
12 THE ANSWER TO THE QUESTION REFERRED TO THE COURT SHOULD THEREFORE BE THAT THE COMPETENT INSTITUTION OF A MEMBER STATE MAY NOT RELY ON THE PROVISIONS OF REGULATION NO 3 OR IN PARTICULAR ON ARTICLE 28 ( 4 ) OF THAT REGULATION IN ORDER TO REFUSE THE GRANT TO A WORKER OF BENEFITS CALCULATED PURSUANT TO ARTICLES 27 AND 28 OF THAT REGULATION OR TO REDUCE THEM ON THE GROUND THAT THAT WORKER IS RECEIVING A PENSION PROVIDED BY THE INSTITUTION OF ANOTHER MEMBER STATE PURSUANT TO THE LEGISLATION OF THAT STATE ALONE .
13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . SINCE THE 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 ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL CIVIL DE PREMIERE INSTANCE , LIEGE , BY ORDER OF 21 DECEMBER 1979 , HEREBY RULES :
THE COMPETENT INSTITUTION OF A MEMBER STATE MAY NOT RELY ON THE PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS OR IN PARTICULAR ON ARTICLE 28 ( 4 ) OF THAT REGULATION IN ORDER TO REFUSE THE GRANT TO A WORKER OF BENEFITS CALCULATED PURSUANT TO ARTICLES 27 AND 28 OF THAT REGULATION OR TO REDUCE THEM ON THE GROUND THAT THAT WORKER IS RECEIVING A PENSION PROVIDED BY THE INSTITUTION OF ANOTHER MEMBER STATE PURSUANT TO THE LEGISLATION OF THAT STATE ALONE .
