law://eu/cjeu/1978/c-236-78/hd_1_1_2@2026-11-13Mr Mura takes the view that Article 46 (1) of Regulation No 1408/71 does not exclude the application of Article 46 (2) (c) when calculating the pension according to the rules of aggregation and apportionment. Indeed:— The wording of Article 46 (2) (c) leaves no doubt that it applies to Article 46 (2) as a whole.— Article 46 (2) (c) is the logical corollary of subparagraphs (a) and (b) since its objective is:— To guarantee the migrant worker the full benefit due by the national legislation on the basis of a maximum length of insurance periods;— To prevent the method of calculation used from resulting in the imposition on the competent institution of the burden of a benefit higher than the full benefit due under the legislation which it applies.Mr Mura worked for 11 years in Belgium and four in France. Since the maximum length of insurance periods giving entitlement in Belgium to the full pension under the mining scheme was fixed at ten years, the denominator of the fraction to be taken into account in calculating the Belgian pension under Article 46 (2) (c) could not exceed ten. However, since the application of the fraction 11/10ths would be to burden the Belgian institution with a benefit in excess of the full benefit provided for by the Belgian legislation, it would be right to limit the benefit due from Belgium to the amount of the full pension. This would be in accordance with the judgments in the aforementioned Case 24/75 and in Case 1/67 Ciechelski [1967] ECR 181.The Italian Government observes that it appears from the case-law of the Court, confirmed by the judgments in Cases 98/77, Schaap, [1978] ECR 707, and 105/77 Boerboom-Kersjes, [1978] ECR 717, that:— In the absence of a common social security scheme the Community rules guarantee, simply by co-ordinating the various national schemes and aggregating insurance periods, that a person who has worked successively or alternately in several Member States is not deprived thereby of social security benefits which he would have enjoyed if he had always worked in the same State; on the other hand these rules ought not to involve the reduction or withdrawal of social security benefits already due to the worker under national legal systems without reference to the Community legislation or to the overlapping provided for by the said Community rules;— The Community rules do not replace national rules, which apply in their entirety both when they grant an independent benefit and when they reduce it (rule against overlapping);— The Community rules guarantee to the worker in any event the most favourable treatment available as a result of the full application of the national rules and the application of the principles of aggregation and apportionment under the provisions of Regulation No 1408/71.The rules on aggregation and apportionment include Article 46 (2) (c) which guarantees to the worker the benefits acquired under national legislation subject only to the restriction that in no event has the competent national institution to bear costs of a benefit greater than the full benefit provided for by the legislation which it administers.As a result the Italian Government thinks that the question ought to be answered less in terms of the interpretation of the second subparagraph of Article 46 (1) than by application in any event of the rules laid down in Article 46 (2) as a whole in order to determine by means of comparison the most favourable position for the worker. In its view it would be wrong to object that the rules of Article 46 (2) are directly applicable solely when the conditions for the acquisition of the right to benefits are fulfilled only having regard to the provisions of Article 45.Article 46 provides for the application of the provisions either of paragraph (1) or of paragraph (2) according to whether or not the aforementioned conditions are satisfied (save in the first case for the qualification of the comparison mentioned in the second subparagraph of Article 46 (1)). Further, if an independent national benefit were reduced by the application of the national rule against overlapping up to a level corresponding to an amount which a worker receives in another Member State under the-Community rules, not only would he receive no benefit from the application of the Community rules, but they might even work to his disadvantage (splitting up of the full benefit, less favourable exchange rate and so forth). It therefore appears right to ascertain whether the application in their entirety of the rules on aggregation and apportionment (that is to say the whole of the rules referred to in Article 46 (2)) as if there were no independent national benefit, would lead to a more favourable position for the worker of which he could take advantage.The Commission observes first of all that the Belgian legislation in question is not of the type of those systems referred to in Article 46 (2) (c) of Regulation No 1408/71, namely those which provide a ceiling of benefits based on a maximum insurance period. The Belgian pension is granted at a flat rate to a worker who is incapable of working and who has worked for a minimum of ten years in mining undertakings.The Commission observes that strictly according to Article 46 (1) it must be inferred that neither the qualification with regard to the calculation of the apportionment contained in Article 46 (2) (c) nor the rules in relation to duplicate periods in Article 46 (2) (d) apply when entitlement to benefit depends on the national legislation alone and the apportionment is made in order to grant the maximum amount.Nevertheless, since the Court in its judgment in Case 22/77 referred to the ‘Rules regarding aggregation and apportionment’ it may be asked whether it did not intend to include in this the whole of Article 46 (2). In view of the fact that Member States may henceforth apply their rules against overlapping, it would be right to apply the qualification set out in Article 46 (2) (c) in order that the terms of the comparison between the national benefit and the apportionment should not be distorted.Although the facts of those cases did not justify such a difference, the Court referred in its judgments in Schaap and Boerboom-Kersjes to the ‘Rules laid down by Article 46 of Regulation No 1408/71’. It seems that it intended to go beyond the rules on aggregation and apportionment and that, bearing in mind the observations made by Mr Advocate General Warner in his opinion, it referred to Article 46 as a whole, so as to include in the terms of the comparison Article 46 (3).According to Mr Warner's opinion the Court decided that Article 46 (3) was incompatible with Article 51 of the Treaty to the extent only to which it reduced the amount of a benefit acquired under national legislation alone, but it did not declare Article 46 (3) otherwise invalid. The Advocate General claimed that two distinct principles were relevant:— The principle that Article 51 of the Treaty does not empower the Council to take away from migrant workers rights given them by the legislative systems of Member States.— The primacy of Community law by virtue of which national legislation cannot take away rights conferred by Community law.The Commission therefore thinks that Article 46 (3) is applied, not as in the aforementioned case of Petroni to reduce a benefit acquired under national legislation alone, but to allow a migrant worker to receive the highest benefit which he can claim in a Member State either under the national legislation, having regard to the provisions on overlapping, or under the provisions of Community law. The migrant worker thus has a guarantee that the reduction in his benefits, whether on the basis of national clauses against overlapping or Article 46 (3), cannot lead to a sum less than the highest theoretical amount.The Commission therefore considers that the answer to the question might be as follows:‘Article 46 (2) (c) of Regulation No 1408/71 of the Council, which refers to legislative systems which take account of the length of insurance periods in calculating the benefit, is an integral part of the system of aggregation and apportionment provided for by the said regulation in relation to pensions.So long as a worker receives a pension under national legislation alone, the provisions of Regulation No 1408/71 do not prevent the national legislation from being applied in its entirety, including the national rules against overlapping, it being understood that if the application of that legislation is less advantageous than that of the system under Article 46 of Regulation No 1408/71, the provisions of Article 46 (2) and (3) must be applied in order to allow the worker to receive the highest benefit which he can claim either under national legislation or under the rules of Community law’.
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