law://eu/cjeu/1973/c-140-73/hd_1_1_2_2@2026-11-14The Commission refers to the case law of the Court and in particular to the judgments in Ciechelski and de Moor, from which it appears that apportionment of a benefit is possible only if the aggregation of periods of work completed in one or more other Member States was necessary to confer the entitlement to benefit in the State concerned. Otherwise recourse to apportionment would infringe Article 51 of the Treaty. Apportionment is possible only in a State where aggregation of periods is required.The Commission observes that one could indeed join with the first plaintiff in fearing that the application to invalidity pensions of rules applying to old-age pensions would result in an accumulation of benefits. Of the six Member States to whom Regulation No 3 applied, three have, as regards invalidity pensions, legislation which does not make the amount of benefits depend on the duration of insurance, whereas the legislation of another takes account of the duration of insurance only for a part of the pension. Thus the grant of a complete invalidity pension under legislation of type A and an apportionment of a pension under legislation of type B could involve an accumulation of undue benefits, insofar as the aggregate of the benefits paid could exceed the theoretically highest amount, and even in certain cases the earnings of the person concerned before the claim arose.According to the Commission this objection could be rebutted as follows.A recent judgment of the Court (Case 27/71, Keller, judgment dated 10 November 1971, Rec. 1971 p. 885) has stated that the benefit for a migrant worker arising from the exclusion in certain cases of aggregation and apportionment ‘arose not from the interpretation of Community law but from the system at present in force, which, in the absence of a common system of social security, rests on a simple coordination of national legislations, which have not yet been harmonized’.Moreover, although the Court has not had to express an opinion on the interpretation of Articles 27 and 28 of Regulation No 3 in the case of invalidity pensions, it has already applied the said principles to old-age pension schemes of the same type as invalidity pensions, in particular to schemes providing benefits comprising a part proportionate to the duration of the insurance and a fixed part independent of that duration (judgment dated 5 July 1967, Case 2/67, de Moor, Rec. 1967 p. 255) and even to the case of legislation of type A (judgment dated 15 July 1964, Case 100/63, van der Veen, Rec. 1964 p. 1125). According to the Commission it may be deduced by analogy from the van der Veen judgment that the rule that apportionment applies only if aggregation is a prior condition for entitlement applies equally to the calculation of invalidity pensions.The first question must therefore be answered in the affirmative.As to the second question the Commission considers that in view of the principle referred to above there is no point in applying Article 28 (3) of Regulation No 3 expressly referred to by the Court of Appeal, Paris. Indeed, this provision, which provides for the grant of a supplement when the amount of the benefits calculated under Article 28 (1) and (2) is lower than the benefit which would atise under the legislation of one Member State alone, no longer has any effect, since if entitlement to benefit under the legislation of one Member State alone exists, this benefit must be granted according to the rules of that legislation alone, without the application of Article 28 (1) and (2).It is proper too to point out that, taking account of the principles developed by the Court, Regulation No 1408/71 of the Council, which henceforth replaces Regulation No 3, has repeated such a provision.
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