1BY AN ORDER OF 9 AUGUST 1977 WHICH WAS RECEIVED AT THE COURT ON 29 AUGUST 1977 THE CENTRALE RAAD VAN BEROEP REFERRED TO THE COURT , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , FOR A PRELIMINARY RULING , A QUESTION RELATING TO THE INTERPRETATION OF ARTICLES 12 ( 2 ) AND 46 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2THIS QUESTION HAS BEEN RAISED IN AN ACTION CONCERNING THE CALCULATION BY THE COMPETENT NETHERLANDS INSTITUTION OF THE SURVIVOR ' S PENSION OF A NETHERLANDS NATIONAL , THE RESPONDENT IN THE MAIN ACTION , WHOSE HUSBAND HAD COMPLETED INSURANCE PERIODS IN THE NETHERLANDS AND IN THE FEDERAL REPUBLIC OF GERMANY .
3AT HIS DEATH THE HUSBAND HAD FULFILLED IN THE NETHERLANDS ALL THE CONDITIONS REQUIRED UNDER THE NATIONAL LEGISLATION FOR ENTITLEMENT TO AN OLD-AGE PENSION .
4THE NETHERLANDS INSTITUTION PURSUANT TO THE ALGEMENE WEDUWEN- EN WEZENWET ( LAW ON GENERAL INSURANCE FOR WIDOWS AND ORPHANS ) ( AWW ), RELYING ON THE RULE FOR THE LIMITATION OF BENEFITS LAID DOWN IN ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 , REDUCED THE BENEFIT PAYABLE UNDER THIS LEGISLATION BY THE AMOUNT OF THE BENEFIT PAID UNDER GERMAN LEGISLATION .
5MRS BOERBOOM-KERSJES , THE PARTY CONCERNED , CHALLENGED THIS DECISION BEFORE THE RAAD VAN BEROEP , AMSTERDAM , WHICH ANNULLED IT ON THE BASIS OF THE JUDGMENT OF THE COURT IN CASE 24/75 ( TERESA AND SILVANA PETRONI V OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( 1975 ) ECR 1149 ).
6THE NETHERLANDS INSTITUTION THEN APPEALED AGAINST THE JUDGMENT OF THE RAAD VAN BEROEP TO THE CENTRALE RAAD VAN BEROEP .
7THE QUESTION REFERRED IS :
' ' WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES , TO WHAT EXTENT DO ARTICLES 12 ( 2 ) AND 46 OF THE REGULATION NO 1408/71 PREVENT THE APPLICATION OF NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS SUCH AS THOSE IN FORCE PURSUANT TO THE AWW , WHERE ENTITLEMENT TO BENEFIT HAS BEEN OBTAINED PURSUANT TO NATIONAL LEGISLATION ALONE WITHOUT ITS BEING NECESSARY TO APPLY THE REGULATION FOR THAT PURPOSE?
' '
8THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 13 OCTOBER 1977 ( CASE 33/77 FERNANDO GRECO V FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( 1977 ) ECR 1711 ) THAT SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION , INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , FROM BEING APPLIED TO HIM IN ITS ENTIRETY , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE THAN THE APPLICATION OF THE RULES REGARDING AGGREGATION AND APPORTIONMENT THOSE RULES MUST , BY VIRTUE OF ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , BE APPLIED .
9IT FOLLOWS THAT IF THE PROVISIONS OF REGULATION NO 1408/71 ARE MORE FAVOURABLE TO THE WORKER THAN THE NATIONAL LEGISLATION THEY MUST BE APPLIED .
COSTS
10THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
11AS 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 QUESTION REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY ORDER OF 9 AUGUST 1977 , HEREBY RULES :
SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION , INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , FROM BEING APPLIED TO HIM IN ITS ENTIRETY , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE THAN THE APPLICATION OF THE RULES LAID DOWN BY ARTICLE 46 OF REGULATION NO 1408/71 THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED .
