1 BY A JUDGMENT DATED 18 NOVEMBER 1976 , RECEIVED AT THE COURT REGISTRY ON 25 NOVEMBER 1976 , THE TRIBUNAL DU TRAVAIL , CHARLEROI , REFERRED CERTAIN QUESTIONS UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF ARTICLE 51 OF THE EEC TREATY AND ARTICLE 46 ( 3 ) OF REGULATION 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THESE QUESTIONS HAVE BEEN REFERRED IN THE CONTEXT OF AN ACTION CONCERNING THE WAY IN WHICH THE COMPETENT BELGIAN INSTITUTION CALCULATED THE INVALIDITY PENSION OF AN ITALIAN NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , WHO WORKED FIRST IN ITALY AND THEN IN BELGIUM AS AN UNDERGROUND WORKER IN THE MINES .
3 IN BELGIUM THAT WORKER SATISFIED ALL THE CONDITIONS LAID DOWN BY THE NATIONAL LEGISLATION FOR ENTITLEMENT TO AN INVALIDITY PENSION UNDER THE SCHEME FOR MINEWORKERS .
4 ON THE OTHER HAND , FOR HIS ENTITLEMENT TO BENEFIT IN ITALY , HE HAD TO HAVE RECOURSE TO THE PROVISIONS OF ARTICLE 45 OF REGULATION NO 1408/71 ; FOR THE PURPOSES OF CALCULATING THAT BENEFIT , THE PERIODS ACTUALLY COMPLETED IN BOTH MEMBER STATES WERE AGGREGATED AND THE ITALIAN BENEFIT WAS APPORTIONED .
5 RELYING ON THE RULE FOR THE LIMITATION OF BENEFITS LAID DOWN BY ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 , THE BELGIAN INSTITUTION BELIEVED IT COULD REDUCE THE INVALIDITY PENSION BY THE AMOUNT OF THE APPORTIONED ITALIAN BENEFIT AND CLAIMED REPAYMENT OF THE AMOUNT OVERPAID .
6 IT IS ASKED FIRST : ' IF THE PENSION PAID BY THE BELGIAN STATE UNDER THE PRESENT INVALIDITY PENSION SCHEME FOR MINEWORKERS ESTABLISHED BY THE ROYAL DECREE OF 19 NOVEMBER 1970 AND SUBSEQUENT AMENDING DECREES IS REDUCED ON THE BASIS OF ARTICLE 46 ( 3 ) OF REGULATION ( EEC ) NO 1408/71 BY REASON OF THE BENEFITS PAID BY OTHER MEMBER STATES , IS SUCH REDUCTION IN ACCORDANCE WITH ARTICLE 51 OF THE TREATY OF ROME?
'
7 IT IS THEN ASKED : ' ARE THE COMPETENT INSTITUTIONS ENTITLED TO REDUCE BENEFITS PAYABLE BY THEM BY APPLYING ARTICLE 46 ( 3 ), WHERE THE OVERLAPPING OF THE BENEFITS AWARDED BY THE VARIOUS MEMBER STATES RESULTS IN THE GRANT OF BENEFITS ON THE BASIS OF DUPLICATED INSURANCE PERIODS?
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FIRST QUESTION
8 THE REGULATIONS IN THE FIELD OF SOCIAL SECURITY FOR MIGRANT WORKERS HAVE AS THEIR BASIS , THEIR FRAMEWORK AND THEIR BOUNDS ARTICLES 48 TO 51 OF THE TREATY .
9 ARTICLE 51 REQUIRES THE COUNCIL TO ADOPT IN THE FIELD OF SOCIAL SECURITY SUCH MEASURES AS ARE ' NECESSARY ' TO PROVIDE FREEDOM OF MOVEMENT FOR WORKERS , PROVIDING FOR THE AGGREGATION , IN PARTICULAR FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFIT AND OF CALCULATING THE AMOUNT OF BENEFIT , OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES .
10 THE AIM OF ARTICLES 48 TO 51 WOULD NOT BE ATTAINED IF , AS A CONSEQUENCE OF THE EXERCISE OF THEIR RIGHT TO FREEDOM OF MOVEMENT , WORKERS WERE TO LOSE ADVANTAGES IN THE FIELD OF SOCIAL SECURITY GUARANTEED TO THEM IN ANY EVENT BY THE LEGISLATION OF A MEMBER STATE ALONE .
11 ARTICLE 46 ( 3 ) APPEARS TO BE A RULE LIMITING THE AMOUNT OF THE VARIOUS APPORTIONED BENEFITS AND THE COUNCIL , IN THE EXERCISE OF THE POWERS WHICH IT HOLDS UNDER ARTICLE 51 CONCERNING THE COORDINATION OF THE SOCIAL SECURITY SCHEMES OF THE MEMBER STATES , HAS THE POWER , IN CONFORMITY WITH THE PROVISIONS OF THE TREATY , TO LAY DOWN DETAILED RULES FOR THE EXERCISE OF RIGHTS TO SOCIAL BENEFITS , INCLUDING INVALIDITY BENEFITS , WHICH THE PERSONS CONCERNED DERIVE FROM THE TREATY .
12 HOWEVER , AN APPLICATION OF ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 WHICH WOULD LEAD TO A DIMINUTION OF THE RIGHTS WHICH THE PERSONS CONCERNED ALREADY ENJOY IN A MEMBER STATE BY VIRTUE OF THE APPLICATION OF THE NATIONAL LEGISLATION ALONE IS INCOMPATIBLE WITH ARTICLE 51 .
13 IT IS THEREFORE PROPER TO CONCLUDE THAT ARTICLE 46 ( 3 ) IS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH IT IMPOSES A LIMITATION ON BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF A BENEFIT ACQUIRED UNDER THE NATIONAL LEGISLATION OF A MEMBER STATE ALONE .
SECOND QUESTION
14 THE BELGIAN LEGISLATION ON THE SPECIAL INVALIDITY SCHEME FOR MINERS PROVIDES THAT THE INVALIDITY PENSION SHALL BE GRANTED TO A WORKER WHO HAS BEEN EMPLOYED FOR A MINIMUM OF TEN YEARS IN THE MINES .
15 THE PERSON CONCERNED WORKED AS A MINER IN BELGIUM FOR MORE THAN 20 YEARS .
16 THE APPLICATION OF RULES PREVENTING THE OVERLAPPING OF BENEFITS WHERE THERE IS DUPLICATION OF INSURANCE PERIODS IS POSSIBLE ONLY WHERE FOR THE ACQUISITION OR CALCULATION OF THE WORKER ' S RIGHT IT IS NECESSARY TO HAVE RECOURSE TO AGGREGATION OF THE INSURANCE PERIODS AND APPORTIONMENT OF THE BENEFITS .
17 ENTITLEMENT TO A PENSION UNDER BELGIAN LEGISLATION WAS ACQUIRED IN THE PRESENT CASE ON THE BASIS OF PERIODS OF WORK COMPLETED IN BELGIUM ALONE .
18 ACCORDINGLY THE SECOND QUESTION DOES NOT CALL FOR AN ANSWER .
COSTS
19 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT , THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
20 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , BY JUDGMENT OF 18 NOVEMBER 1976 , HEREBY RULES :
ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 IS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH IT IMPOSES A LIMITATION ON BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF A BENEFIT ACQUIRED UNDER THE NATIONAL LEGISLATION OF A MEMBER STATE ALONE .
