Leo Jerzak v Bundesknappschaft - Verwaltungsstelle Aachen (279/82)

II —Summary of the written observations submitted to the Court by the Commission

The Commission points out that in, inter alia, its judgment of 13 October 1977 in Case 112/76 (Manzoni [1977] ECR 1647) the Court clearly established the principle that the application of Community law, in particular Article 12 (2) of Regulation No 1408/71, may not have the effect of reducing or diminishing in any way rights acquired under national legislation alone. The Commission therefore considers that it is not possible in this case to envisage the reduction, pursuant to Article 12 (2) of Regulation No 1408/71, of the miner's pension determined on the basis of German law alone.The Commission reminds the Court that, according to its established case-law, in particular its judgment of 15 May 1974 in Case 184/73 (Kaufmann [1974] ECR 517), Article 12(2) of Regulation No 1408/71 allows Member States to apply “internal” rules against the overlapping of benefits to comparable benefits provided in another Member State when the benefits granted by the Member State in question are provided in pursuance of Community rules. Therefore the fact that the institutions of different Member States help to finance the same social security benefit provided by one of those States cannot of itself require the application, in accordance with Article 12(2) of Regulation No 1408/71, of internal rules against the overlapping of benefits.According to the Commission, Article 57 of Regulation No 1408/71 merely lays down a method of financing, which should not be confused with questions relating to the acquisition or retention of rights to social security benefits.The Commission points out that in the judgment of 21 October 1975 in Case 24/75 (Petroni v ONPTS [1975] ECR 1149) the Court held that the reduction of a benefit provided under the legislation of one Member State alone when the benefit to be taken into account had been determined on the basis of Article 45 of Regulation No 1408/71 was contrary to Article 51 of the Treaty.Referring to the judgment given by the Court on 2 July 1981 in Joined Cases 116, 117, 119, 120 and 121/80 (Giorgio Celestre and Others [1981] ECR 1737), the Commission considers that the situation in this case would be totally different if the rule in question against the overlapping of benefits were an “external” rule requiring social security benefits received in other Member States to be taken into consideration.As regards the “unjustified advantages” referred to by the Landessozialgericht, which Mr Jerzak is said to enjoy in comparison with national workers who, being in receipt of the same benefits under German legislation alone, could not challenge the application of that rule against the overlapping of benefits, the Commission observes that the Court has repeatedly pointed out that any differences which may exist to the benefit of migrant workers are not the result of the interpretation of Community law but of the absence of a common social security scheme or the failure to harmonize the existing national schemes.The Commission states that if the Court decides to adopt the view advocated by it Questions 2 and 3 of the Landessozialgericht will lose their purpose.The Commission proposes that the Court should reply to the first question as follows:“The first sentence of Article 12 (2) of Regulation No 1408/71 must be interpreted as ruling out the reduction or suspension of a benefit acquired solely under the legislation of one Member State even if the benefits which were acquired under the legislation of another Member State were determined pursuant to Article 57 of Regulation No 1408/71 and the competent institution of the first Member State contributes towards the financing of those benefits as provided for in Article 57 (3) (c)”