Judgment_paragraph 2. · 75/76

2.The respondent in the main action submits as its principal observation that the Community rules relating to overlapping, Article 11 (2) of Regulation No 3 and Article 9 (2) of Regulation No 4, do not apply to the present case because Austria is not a Member State of the EEC.The solution is thus to be sought in the wording of Article 28 of Regulation No 3.Article 28 establishes a fiction whereby the worker is deemed to have completed his entire working life in the same country. Belgian legislation is accordingly applicable unconditionally to the present case. The fact that the insurance periods completed by Mr Kaucic in Austria could not be taken into account for the purposes of the acquisition of the right in no way affects the calculation of the amount of the Belgian benefit determined ‘for accounting purposes’. On the other hand the fact that the insured person must be notionally deemed to have been insured throughout his working life in Belgium and that, consequently, the amount determined ‘for accounting purposes’ must be calculated on the basis of Belgian legislation means that the Belgian institutions must apply all the provisions for the calculation of this benefit and that consequently they may not disregard the provisions of Article 70 (2) of the Belgian Law of 9 August 1963.The respondent in the main action adds that Regulation No 3 allowed separate schemes to continue under which beneficiaries are directly entitled either under national law alone or under national law supplemented, if necessary, by the system of aggregation of periods. In the present case the Kaucic sisters are entitled to the benefits provided under Belgian national law in implementation of European regulations. Nevertheless Belgian law remains applicable and EEC Regulations Nos 3 and 4 do not entail any derogation from the application of the Belgian provisions on the restriction of overlapping of benefits when the damage in respect of which the benefits are claimed is partially covered by the legislation of a third country.In this connexion the respondent relies upon the judgment of the Court of 5 July 1967 in Case 2/67, De Moor v Caisse de Pension des Employés Privés ([1967] ECR 197).The respondent in the main action considers, in the alternative, that if the Court rules that the Community provisions preclude the contested application of Article 70 (2) of the Belgian Law of 9 August 1963, the latter provision cannot be applied in calculating the Belgian amount determined ‘for accounting purposes’. Accordingly the Belgian institutions are obliged to apply Article 70 (2), thereby deducting the amount of the Austrian pension from the amount of the Belgian benefit which was calculated proportionally. In fact Belgian law remains applicable in so far as the EEC regulations do not derogate from the application of its provisions.Furthermore the respondent in the main action recalls that, pursuant to Article 8 of Regulation No 3 concerning equality of treatment, an insured foreigner, permanently resident in the territory of a Member State and to whom the Community regulations with regard to the grant of a proportion of a Belgian benefit apply is subject to the same obligations as Belgian nationals. This means that Article 70 (2) of the Belgian Law of 9 August 1963 may be applied to all insured persons who are in receipt of Belgian benefits in respect of incapacity for work without its being necessary to resort to aggregation of insurance periods, whilst it may not be applied to an insured person who is in receipt of the same benefits by virtue of aggregregation which would no doubt be contrary to the spirit of Article 8 of Regulation No 3.