A. Weber v Bestuur van de Nieuwe Algemene Bedrijfsvereniging (181/83)

Contents

In Case 181/83REFERENCE to the Court under Article 177 of the EEC Treaty by the centrale Raad van Beroep [Court of last instance in social security matters], Utrecht, for a preliminary ruling in the Proceedings pending before that court betweenA. WeberandBestuur van de Nieuwe Algemene Bedrijfsvereniging [Board of the New General Trade Association]THE COURT (First Chamber)composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,Advocate General: C. O. LenzRegistrar: D. Louterman, Administratorgives the following

Judgment

Facts and Issues

The facts of the case, the course of the procedure and the observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I —Facts and written procedure

The plaintiff in the main proceedings, Mr Weber, a Netherlands national, was employed in the Netherlands from 1932 to 1950 as road-worker. Whilst so employed he paid contributions under the Netherlands Invalidity Law (Invaliditeitswet) from 25 June 1933 onwards. Subsequently he worked in the Netherlands as a self-employed paving contractor from May 1950 to October 1972. As a self-employed person he paid voluntary contributions under the Invalidity Law until 1 January 1965.On 15 December 1972 Mr Weber moved to the Federal Republic of Germany. On 14 May 1973 he took up employment as a surveyor's assistant in Freiburg.On 11 June 1974 he became incapacitated for work. He received daily sickness benefits. On 17 September 1974 he returned to the Netherlands, where he continued to receive daily sickness benefits until 1 September 1975.In the meantime — apparently in June 1975 — he had claimed disability benefits from the defendant in the main proceedings. By a decision of 29 September 1977 he was granted a pro rata benefit under the Wet op de Arbeidsongeschiktheidsverzekering (WAO) [Netherlands Law on Disability Insurance] as from 1 September 1975 (the date on which he ceased to receive daily sickness benefits). The benefit paid under the WAO is calculated on the basis of the average wage earned by the claiment in the year immediately preceding the date on which he became incapacitated.

Applicable national provisions

Paragraphs (1) and (2) of Article 14 of the WAO provide as follows:1. For the calculation of a disability benefit to which a claim lies under this Law, the daily wage shall, in accordance with general rules to be adopted by the Sociale Verzekeringsraad [Social Security Council], subject to ministerial approval, be defined as follows:The average amount which the person entitled to benefit could have earned per day, if he had not been incapacitated for work and had carried on his usual occupation or occupations, calculated in accordance with the wage level applicable on the date on which he qualified for the disability benefit, in the year following that date and on the basis of a five-day week. These general rules shall be published in the Nederlandse Staatscourant.2. Notwithstanding the provisions of the preceding paragraph or the general rules referred to therein, the Sociale Verzekeringsraad may adopt special rules for the determination of the daily wage, subject to ministerial approval. These special rules shall also be published in the Nederlandse Staatscourant.”The term “daily wage” is, in so far as it is relevant to this case, defined in greater detail in the WAO general rules for the calculation of the daily wage (Decision No 61524 of the Sociale Verzekeringsraad of 20 April 1967, adopted pursuant to Article 14(1) and (2) of the WAO, Staatscourant 1967 No 126, and amended by subsequent decisions).Where a worker entitled to benefit usually carried on only one occupation Article 3 of the WAO general rules provides inter alia that the daily wage is to be calculated on the basis of “the average which the person entitled to benefit earned in that occupation in the year immediately preceding the date on which he became incapacitated for work, taking into account the days in that year on which he was engaged in that occupation during at least his normal working hours ...Article 7 of the WAO general rules provides as follows:1. If, immediately preceding the date on which he became incapacitated for work, a person entitled to benefit was working for a wage calculated as a fixed amount per day, per week, per month or per year — whether or not increased by overtime or bybenefits, as provided for in Article 1 (3) (d), in so far as they form part of the normal wage lawfully paid — the daily wage shall be calculated in the manner provided for in the following paragraphs. Any supplements lawfully paid over a given period shall be included in that fixed amount.2. Where the wage consisted exclusively of a fixed amount, as provided for in the preceding paragraph, the daily wage shall be equal to the fixed amount per day, or, as the case may be, 1/260 of the weekly wage multiplied by 52, or of the monthly wage multiplied by 12, or of the yearly wage.3. Where overtime was worked which may be taken into account for the calculation of the daily wage, the daily wage shall be increased by the amount produced by applying Article 3 by analogy.4. ...5. ...”In applying these provisions, the defendant in the main proceedings took the view that the occupation of surveyor's assistant, in which the plaintiff had most recently engaged in the Federal Republic of Germany, should be regarded as his usual occupation. Mr Weber disagreed with this method of calculation, and he challenged the defendant's decision before the Centrale Raad van Beroep, where he argued that, according to Article 47 (1) of Regulation No 1408/71, in the circumstances specified in subparagraphs (a) to (d) of that provision, the competent institution of a Member State must calculate the theoretical amount referred to in Article 46 (29 (a) on the basis of the wages earned, contributions paid, etc., during the insurance periods completed under the legislation of the Member State in question, that is to say, in Mr Weber's case, the Netherlands.By an order of 9 August 1983 the Centrale Raad van Beroep, Utrecht, submitted the following preliminary questions to the Court, pursuant to Article 177 of the EEC Treaty:1. Are the provisions of Article 47 (1) of Regulation No 1408/71 also applicable in cases in which the second sentence of Article 46 (2) (a) of the regulation applies?2. If so, must subparagraph (a) and/or subparagraph (b) of Article 47 (1) of Regulation No 1408/71, having regard to their wording and their purpose, be interpreted as applying to a scheme relating to invalidity benefits which:(a) is a risk scheme;(b) is not based, for the calculation of the benefit, on the wages earned during all the insurance periods completed;but(c) is based primarily — for the determination of the wages lost — on the wage received in the occupation usually carried on;and(d) in that connection, takes into account either the last fixed wage received by the person concerned in that occupation before he became incapacitated for work or the average wage received during a specific period (not more than two years before he became incapacitated for work) ?3. If the previous question is answered in the affirmative, is there anything to prevent a Member State from proceeding, for the calculation of the theoretical amount of the invalidity benefit referred to in Article 46 (2) (a) of Regulation No 1408/71, on the basis of the last wage received by the person concerned in another Member State before he became incapacitated for work?”The order making the reference for a preliminary ruling was registered at the Court on 24 August 1984.Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were lodged by the following: the Nieuwe Algemene Bedrijfsvereniging, represented by W. H. Levelt-Overmars, head of the legal department of the Gemeenschappelijk Administratiekantoor [Common Administrative Office for Social Security Matters]; the Netherlands Government, represented by I. Verkade, Secretary General at the Ministry of Foreign Affairs; and the Commission of the European Communities, represented by its Legal Adviser, J. Griesmar, acting as Agent, assisted by F. Herbert, of the Brussels Bar.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.By an order of 16 May 1984, pursuant to Article 95 (1) and (2) of the Rules of Procedure, the Court assigned the case to the First Chamber.

II —Written observations submitted to the Court

The defendant in the main proceedings, the Nieuwe Algemene Bedrijfsvereniging [hereinafter referred to as “the NAB”], notes that the second sentence of Article 46 (2) (a) deals with pure risk schemes, such as that established by the WAO.Article 47 (1) applies only to endowment schemes and therefore does not apply in the case of benefits under the WAO. The method of calculating the theoretical amount in risk schemes is therefore governed entirely by the second sentence of Article 46 (2) (a), in the sense that the matter is left to the national legislation.As a result the NAB concludes that the first question should be answered in the negative.Should the Court however reply to the first question in the affirmative, the NAB has observations in regard to the second question:

A —In the NAB's view, the rules contained in Article 47 (1) of Regulation No 1408/71 apply solely to systems in which the amount of benefit is calculated on the basis of the wages earned, the contributions paid, etc., during all the insurance periods completed.That view is based, first of all, on the place which Article 47 occupies in the general structure of the regulation. It falls under Title III, Chapter 3, on old-age pensions. In this context provisions such as those of Article 47 (1) are of obvious application.In the law of many Member States the amount of an old-age pension depends on the wages earned, the contributions paid and other criteria which refer to the past. Under those systems the amount of the old-age pension equals the product of the annual insurance value and the number of insured years. For systems of this kind Article 47 (1) provides a simplified method of calculating the insurance value in order to avoid any administrative and practical difficulties which might result from the obligation to include wages earned or contributions paid by the claimant at a time when he was subject to the legislation of another Member State. Moreover, these systems always include rules designed to adjust the amounts of wages earned or contributions paid in the past in accordance with intervening changes in prices or wages.The foregoing is equally valid for disability insurance schemes which are incoporated in the statutory old-age insurance scheme and thus have the character of an endowment scheme, such as the Italian, Luxembourg, German and Greek schemes.The purpose of Article 47 of Regulation No 1408/71 is not relevant to the calculation of the amount of invalidity benefit under a risk scheme, because the amount of benefit is not determined on the basis of the wages earned, the contributions paid, etc., during all the insurance periods completed, but is equal to the wages lost or is based on the wages recently earned. A provision such as Article 47 (1) is not compatible with risk schemes. The application of that article might lead to the calculation of invalidity benefits on the basis of wages earned in the distant past, which is contrary to the idea of a risk scheme.Moreover, risk schemes do not in general have rules for the adjustment of wages earned in the distant past to subsequent changes in wage or price levels.

B —However, if the Court is of the view that Article 47 (1) of the regulation may also apply to risk systems, the NAB considers that the article has no bearing on risk systems such as that provided for by the WAO.Article 47 (1) (a) applies to schemes under which invalidity and old-age benefits are calculated on the basis of average earnings, an average contribution, an average increase, or on the ratio which existed, during the insurance periods, between the claimant's gross earnings and the average gross earnings of all insured persons other than apprentices.Article 47 (1) (b) applies to schemes under which invalidity and old-age benefits are calculated on the basis of the amount of earnings, contributions or increases.The subsequent paragraphs of Article 47 do not appear relevant in the present case.A factor common to all the schemes to which Article 47 (1) (a) and (b) applies is the fact that the amount of benefit or pension is directly based on the wages or contributions paid in the past or on averages thereof.It cannot be denied, says the NAB, that the determination of average wages — over short periods — may play a role in the calculation of the daily wage under the WAO. It must however be borne in mind that the calculation of the daily wage under the WAO differs fundamentally in nature from the calculation of the amount of benefit under the schemes referred to in Article 47 (1) (a) and (b). In fact, the WAO is in the nature of insurance against the loss of earnings.In the general rules on the calculation of the daily wage the choice was made to determine future wage loss on the basis of the wages earned in the recent past.However, provision is also made in those rules for possible corrections if the result of the calculation carried out on the basis of wages actually earned during the reference period does not correspond with the wages which would have been earned in the future.Since Netherlands law does not calculate the amount of benefit on the basis of the wages earned in the past, the provisions of Article 47 (1) (a) and (b) of the regulation do not apply to the calculation of the theoretical amount under the WAO.

C —If it should none the less be accepted that the provisions of Article 47 (1) (a) and (b) apply to the calculation of the daily wage under the WAO, their application would encounter considerable practical difficulties.First, it must be observed that subparagraphs (a) and (b) of Article 47 (1) speak respectively of average earnings and of the amount of earnings. That is apparently a reference to earnings during a period fixed by law or during all the insurance periods completed.It must be asked therefore how these provisions can be applied in the context of the WAO. Under the WAO the daily wage is fixed not on the basis of wages earned during a particular period but on the basis of wages earned in a particular occupation or occupations (the usual occupation(s)).Secondly, if the provisions of Article 47 (1) (a) and (b) were applied and if as a result wages earned abroad were not considered for the purpose of determining the daily wage, it would be quite impossible to determine the daily wage where wages were earned in the Netherlands only in the relatively distant past, as is the case here.According to the provisions of Article 6 (1) of the Algemene Dagloonregelen (general rules on the daily wage), the reference period cannot be extended by more than one year. In the present case no wages were earned under a contract of employment in the Netherlands during the extended reference period and it is therefore not possible to determine the daily wage.If, in spite of the foregoing, it were desired to determine the daily wage on the basis of wages earned in the Netherlands in the distant past, other practical problems would be encountered. The Netherlands system of social security for workers does not provide for records of insurance periods. The administrative bodies are therefore unable to find out what wages were earned in the past, while the employers can provide only incomplete information or none at all with regard to past periods.The foregoing leads to the conclusion that the second question referred by the Centrale Raad van Beroep should be answered in the negative.With regard to the third question, the NAB is of the view that if Article 47 (1) were applicable it would in no way be possible to take into account wages earned in other Member States.The Netherlands Government thinks that the first question calls for a negative reply. According to the second sentence of Article 46 (2) (a), the amount of the benefit, determined in accordance with the legislation administered by the competent institution, must be considered the theoretical amount if, under that legislation, the amount of the benefit does not depend on the length of the insurance periods.Since the WAO constitutes legislation of that type, the benefit determined in accordance with its provisions and the rules for its application must be regarded as the theoretical amount.In the explanatory memorandum (COM (66) 8 of 6 January 1966) attached to the proposal for a Council regulation which eventually became Regulation (EEC) No 1408/71 the second sentence of Article 46 (2) (a) is explained as follows:“If the amount of the benefits paid under the legislation does not depend on the length of the insurance periods completed (standard amount or percentage of lost wages), that amount is to be taken as the theoretical amount (paragraph 2).”The provision which became Article 47 (1) is explained in this way:“The first paragraph lays down the factors which, on the basis of insurance periods completed under other legislation, must be considered in calculating the theoretical amount referred to in paragraph (2) of the previous article, where the calculation of benefits according to the legislation in question is based on average earnings, an average contribution, an average increase or on the ratio which existed between the claimant's earnings and the average earnings of all insured persons (subparagraph (a)), on the amount of the wages earned or contributions paid (subparagraph (b)), on standard earnings or a fixed amount (subparagraph (c)), or on actual earnings for some periods and on standard earnings for other periods ...”According to the Netherlands Government, this explanatory memorandum shows that the provisions of Article 47 relate only to legislation under which the amount of the benefit depends on the length of the insurance periods.According to the Commission, the reply to the questions put to the Court must be inferred from the purpose and general structure of the provisions of the regulation on risk schemes and endowment schemes for disability insurance.

A —Risk schemes and endowment schemes in disability insurance

The questions posed in this case concern one of the problems which arise when a worker, like the plaintiff in the main proceedings, has had a so-called “mixed” working life: that is to say, he has been subject successively to an endowment scheme (a type B scheme, in this case the German system of invalidity insurance) and a risk scheme (a type A scheme, in this case the Netherlands system of invalidity insurance). Whereas endowment schemes, in so far as the conditions for the granting of benefit are concerned, are similar to old-age pension schemes, risk schemes resemble more closely health insurance.For the Belgian, French and Netherlands insurance schemes this means that benefits can only be received if working or earning capacities recently used as an insured person can no longer be used as a result of a long-term disability.Endowment systems, on the other hand, are based on the fact that the benefits received in the event of prolonged disability depend on the period during which a person was. insured or resident in the country concerned during his whole working life. The longer the period of insurance or residence was, the higher the benefit.This general description of endowment schemes and risk schemes indicates the problems which may arise where a person has been subject to different schemes during his working life.Where a migrant worker who becomes disabled has been insured under both types of scheme he may be harmed by the interruption of his working life if, at the time of his disablement he does not fulfil the conditions for receiving benefit under at least a risk scheme.In order to remedy that situation Regulation No 1408/71 provides for a number of legal fictions in the field of insurance.Article 45 (1) is concerned with the aggregation of periods completed in another Member State and with the use of an insurance fiction. The first situation arises in the case of a worker employed in Germany and in France, when the disability occurs under the French risk scheme but the German insurance periods must also be taken into account in calculating the waiting period. The second situation arises in the case of a worker employed in France and in Germany when, so as to entitle him to benefits in France, the disability which occurred in Germany is deemed to have occurred in France.Article 45 (3) deals with a situation relating specifically to the Netherlands risk scheme.If, regard being had to those provisions, the conditions governing the entitlement to benefits are fulfilled, the claimant is entitled under the risk scheme to a pro rata benefit pursuant to Article 46 (2) of the regulation. The institution responsible for the scheme must then begin by determining the theoretical amount referred to in Article 46 (2).In a risk scheme the theoretical amount should be equal to the amount of benefit provided for by national legislation. Under the WAO, as in the case of other risk systems, the calculation of the benefit for a long-term disability is based on the wage or salary earned by the insured person in the period immediately preceding the occurrence of the disability.Under endowment schemes, which resemble old-age pension schemes, the calculation is based in general not on the average salary earned by the insured immediately before he became disabled but on his earnings over a much longer period (in Germany, his entire working life).

B —Function and interpretation of Article 47 (1) in conjunction with Article 46 (2) of Regulation No 1408/71

Article 40 (1) provides that “an employed or self-employed person who has been successively or alternately subject to the legislation of two or more Member States, of which at least one is” an endowment scheme “shall receive benefits under the provisions of Chapter 3 [old-age and death], which shall apply by analogy, taking into account the provisions of paragraph 3”.As regards the rights under a risk scheme of a worker who has had the type of “mixed” working life described above, Chapter 3 provides for three possibilities :(a) The worker fulfils all the conditions entitling him to benefit under the risk scheme, without having to have recourse to the provisions of Regulation No 1408/71. In this case he receives the full benefit without any pro rata reduction. The only possible reduction in the benefit would be as a result of the application of national rules against the overlapping of benefits.(b) The worker who is insured under the risk scheme when he becomes disabled but can only fulfil the waiting period requirement if insurance periods or periods of residence in another Member State are taken into account (Article 45 (1) of Regulation No 1408/71) is entitled to a pro rata benefit under the scheme.(c) The worker is no longer insured under the risk scheme when he becomes disabled and can claim benefits under the scheme only by relying on the fictitious insurance provided for in Article 40 (3) and Article 45 of Regulation No 1408/71. He is entitled to a pro rata benefit.This last situation is that in which the plaintiff in the main proceedings finds himself.With regard to the interpretation of Article 47 (1) of the regulation, the Commission takes the view that the provision, in conjunction with Article 40 (1), is in principle applicable mutatis mutandis to the coordination of the risk system and the endowment system.In order to apply that principle it is however necessary to distinguish between cases in which the right to benefits under the risk system is based on the aggregation of insurance periods and those in which it is based on a legal fiction.If the right to benefits is based on a legal fiction the reference period, that is to say the period immediately before the claimant became incapacitated, will in all likelihood not have been completed under the risk scheme. In that case, to apply Article 47 (1) and take into account only insurance periods completed under that scheme in calculating the daily wage would imply taking into account periods outside the reference period. In view of what has already been said about the purpose of risk schemes, that would be in flagrant contradiction with the structure and principles of these schemes, which include the Netherlands WAO. It is therefore also incompatible with the principle laid down in the last sentence of Article 46 (2) (a), which, for the calculation of the theoretical amount, refers to the calculation of the amount of benefit under national law.If, on the other hand, the entitlement to benefit under the risk scheme is based on the aggregation of insurance periods and not on a legal fiction, the application of Article 47 (1) is perfectly consistent with the structure and objective of the system.In such a case the disability arises at a time when the insured person is subject to the risk scheme but does not fulfil the national conditions concerning the waiting period; this usually means that during the reference period insurance periods or periods of residence have been completed in another Member State. In that case the application of the principles laid down in Article 47 is not inconsistent with the structure of the risk scheme, since only insurance periods or periods of residence completed under that scheme are taken into account, and these are by necessity periods immediately preceding the disablement of the person concerned.In principle therefore an affirmative reply may be given to the first two questions referred by the Centrale Raad van Beroep.With regard to the third question, the Commission takes the view that the reply should be negative.The object of Article 47 of Regulation No 1408/71 is to provide a simplified method of calculation, owing to the administrative and practical difficulties which the institution may encounter when it must also take into account the wages earned by a claimant while subject to the legislation of another Member State.According to the Commission, this interpretation cannot be regarded as forbidding insurance institutions, in calculating loss of wages due to long-term disability, from taking into consideration wages earned by the claimant while he was insured in another Member State. The need for administrative simplification can in no case prevail over the fundamental purpose of risk schemes.In conclusion the Commission points out that its position, as set out above, does not impair freedom of movement for workers, as defined in Articles 48 and 51 of the EEC Treaty. If the plaintiff in the main proceedings had remained in the Netherlands the consequences would not have been different. Since the WAO is a risk scheme it follows that if a person is insured at the time of suffering long-term disability he will receive a “full” benefit, that is to say a benefit which is not reduced on the ground that during certain periods in the past he was not insured. The amount of the benefit is calculated on the basis of the wages earned shortly before the disability arose; in this regard the fact that the claimant may have earned higher or lower wages in the past is irrelevant. Conversely, a worker who is not insured under the WAO at the time of suffering a long-term disability receives no benefits, even if he was previously insured under that legislation for years and paid contributions.Thus the effect of Regulation No 1408/71, which because of “fictitious insurance” gives migrant workers the benefit of insurance under the WAO even though they were not insured under that legislation at the time of suffering a long-term disability, is not different.

III —Oral procedure

At the sitting on 5 July 1984 oral argument was presented for the Nieuwe Algemene Bedrijfsvereniging, by F. W. M. Keunen, acting as Agent, and for the Commission of the European Communities, by. F. Herbert, of the Brussels Bar.The Advocate General delivered his opinion at the sitting on 25 October 1984.

Decision

1By an order dated 15 August 1983, which was received at the Court on 24 August 1983, the Centrale Raad van Beroep [Court of last instance in social security matters], Utrecht, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).

2Those questions were raised in the context of a dispute between a worker of Netherlands nationality, Mr Weber, who is the plaintiff in the main proceedings, and the Bestuur van de Nieuwe Algemene Bedrijfsvereniging [Board of the New General Trade Association], a Netherlands social security institution, which is the defendant in the main proceedings.

3The plaintiff in the main proceedings was employed in the Netherlands from 1932 to 1950 as a road-worker, and paid contributions under the Netherlands Invalidity Law from 25 June 1933 onwards. He subsequently worked in the Netherlands as a self-employed paving contractor from May 1950 to October 1972. As a self-employed person he paid voluntary contributions under the aforesaid Law until 1 January 1965.

4On 15 December 1972 the plaintiff moved to the Federal Republic of Germany, where he took up employment on 14 May 1973 as a surveyor's assistant. On 11 June 1974 he became incapacitated for work. On 17 September 1974 he returned to the Netherlands.

5In 1975 the plaintiff claimed disability benefit from the defendant. By a decision of 29 September 1977 the defendant granted him a pro rata benefit under the Wet op de Arbeidsongeschiktheidsverzekering [Netherlands Law on Disability Insurance] as from 1 September 1975, on which date he ceased to receive daily sickness benefits.

6Under the provisions of the Law on Disability Insurance the disability benefit is calculated by reference to the average amount (“the daily wage”) which the claimant could have earned during the following year, calculated in accordance with the wage level applicable on the date on which he qualified for the benefit, if he had not been incapacitated for work and had carried on his usual occupation or occupations. Where the worker usually carried on only one occupation, the daily wage is calculated on the basis of the average wage which he earned in that occupation in the year immediately preceding the date on which he became incapacitated for work, account being taken of the days in that year on which he was engaged in that occupation during at least his normal working hours. Implementing provisions define further the method for calculating the daily wage.

7The defendant took the view that the occupation of surveyor's assistant, in which the plaintiff was last engaged in the Federal Republic of Germany, should be regarded as his usual occupation; accordingly; it calculated the benefit by reference to the wage received in that occupation. The plaintiff disagreed with that method of calculation and brought an action against the defendant's decision, maintaining that, under Article 47 (1) of Regulation No 1408/71, in the circumstances specified in subparagraphs (a) to (d), the competent institution of a Member State must calculate the theoretical amount referred to in Article 46 (2) on the basis of the wages earned during the insurance periods completed under the legislation of the Member State in question, that is to say, in the present instance, the Netherlands.

8The Centrale Raad van Beroep, to which the case came on appeal, took the view that its decision depended on the interpretation of the Community regulation; it therefore referred the following preliminary questions to the Court:1. Are the provisions of Article 47 (1) of Regulation No 1408/71 also applicable in cases in which the second sentence of Article 46 (2) (a) of the regulation applies?2. If so, must subparagraph (a) and/or subparagraph (b) of Article 47 (1) of Regulation No 1408/71, having regard to their wording and their purpose, be interpreted as applying to a scheme relating to invalidity benefits which :(a) is a risk scheme;(b) is not based, for the calculation of the benefit, on the wages earned during all the insurance periods completed;but(c) is based primarily — for the determination of the wages lost — on the wage received in the occupation usually carried on;and(d) in that connection, takes into account either the last fixed wage received by the person concerned in that occupation before he became incapacitated for work or the average wage received during a specific period (not more than two years before he became incapacitated for work) ?3. If the previous question is answered in the affirmative, is there anything to prevent a Member State from proceeding, for the calculation of the theoretical amount of the invalidity benefit referred to in Article 46 (2) (a) of Regulation No 1408/71, on the basis of the last wage received by the person concerned in another Member State before he became incapacitated for work?”

9It is apparent from the information before the Court that the plaintiff is entitled to invalidity benefit by virtue of the laws of two Member States, one of which — the Netherlands — has legislation of the type referred to by Article 37 (1) of Regulation No 1408/71. Under such legislation (known as “type A”) the amount of invalidity benefit is independent of the length of the insurance periods completed. The legislation of the Federal Republic of Germany, on the other hand, makes the acquisition, maintenance or recovery of entitlement to benefit subject to the completion of a certain number of insurance periods (“type B” legislation).

10Article 40 (1) of the regulation provides as follows:“A worker who has been successively or alternately subject to the legislations of two or more Member States, of which at least one is not of the type referred to in Article 37 (1), shall receive benefits under the provisions of Chapter 3, which shall apply by analogy, taking into account the provisions of paragraph 3.”

11That provision is therefore applicable in this instance.

12The plaintiff's right to claim invalidity benefit in the Netherlands is not contested. The dispute is solely concerned with the method of calculating the benefit. Since the plaintiff was subject to the legislation of the Federal Republic of Germany at the time when the risk materialized, Article 46 (2) applies to the determination of the theoretical amount and the actual amount of the benefit to be disbursed by the Netherlands institution. The theoretical amount is the amount of benefit which the person concerned could claim if all the insurance periods and residence periods completed under the legislation of the Member States to which the worker has been subject had been completed in the Member State in question and under the legislation administered by it on the date when the benefit is awarded. If, under that legislation, the amount of benefit does not depend on the length of the insurance periods completed, then that amount is taken as the theoretical amount of the benefit.

13The first two questions raised by the national court seek to ascertain whether Article 47 of the regulation is also applicable when the second sentence of Article 46 (2) (a) applies, in the circumstances described by the second question.

14Article 47 (1) lays down special rules which apply to the particular cases envisaged therein. The rule in subparagraph (a) applies in a case where, under the legislation of a Member State, benefits are calculated on the basis of average earnings, an average contribution, an average increase or on the ratio which existed, during the insurance periods, between the claimant's gross earnings and the average gross earnings of all insured persons other than apprentices. The rule in subparagraph (b) applies in cases where the legislation provides that benefits are to be calculated on the basis of the amount of earnings, contributions or increases, and where periods of insurance or residence in another Member State are taken into account. The rule in subparagraph (c) applies in cases where the legislation provides that benefits are to be calculated on the basis of standard earnings or a fixed amount. The rule in subparagraph (d) applies in cases where the legislation provides that benefits are to be calculated, for some periods, on the basis of the amount of earnings and, for other periods, on the basis of standard earnings or a fixed amount.

15None of those rules deals with a system of disability benefits such as the one described by the second question, namely a system under which the amount of benefit is unrelated to the length of the insurance periods and which, for the purpose of calculating the loss of earnings, is based primarily on the wage received in the usual occupation of the person concerned and, in that connection, takes into account either the last fixed wage received by that person in that occupation before he became incapacitated for work or the average wage received by him during a specific period (not more than two years before he became incapacitated for work). It follows that, as the wording of Article 46 (2) (a) itself indicates, the theoretical amount is to be calculated solely in accordance with the legislation administered by the national institution.

16In those circumstances the third question serves no further purpose.

17The answer to the questions submitted by the national court is therefore that the cases envisaged by Article 47 (1) of Regulation No 1408/71 do not include the case of a system of disability benefits under which the amount of benefit does not depend on the length of the insurance periods completed and which, for the calculation of the. loss of-earnings, is based primarily on the wage received in the usual occupation of the person concerned and, in that connection, takes into account either the last fixed wage received by him in that occupation before he became incapacitated for work or the average wage received by him during a specific period (not more than two years before he became incapacitated for work).

Costs

18The costs incurred by the Netherlands Government and the Commission, which have submitted observations to the Court, are not recoverable.

19As these proceedings are, in so far as the Bestuur van de Nieuwe Algemene Bedrijfsvereniging is concerned, a step in the proceedings before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (First Chamber),in answer to the questions referred to it by the Centrale Raad van Beroep, by an order dated 9 August 1983, hereby rules as follows: The cases envisaged by Article 47 (1) of Regulation No 1408/71 do not include the case of a system of disability benefits under which the amount of benefit does not depend on the length of the insurance periods completed and which, for the calculation of the loss of earnings, is based primarily on the wage received in the usual occupation of the person concerned and, in that connection, takes into account either the last fixed wage received by him in that occupation before he became incapacitated for work or the average wage received by him during a specific period (not more than two years before he became incapacitated for work).

Delivered in open court in Luxembourg on 29 November 1984.