1 BY A JUDGMENT OF 16 JUNE 1976 , WHICH WAS RECEIVED AT THE COURT OF JUSTICE ON 28 JULY 1976 , THE BELGIAN COUR DE CASSATION REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JO OF 16 . 12 . 1958 , NO 30 , P . 561 ).
2 THE COUR DE CASSATION ASKS WHETHER ARTICLES 27 ( 1 ) AND 28 ( 1 ) OF REGULATION NO 3 PRECLUDE THE APPLICATION BY THE INSTITUTION OF A MEMBER STATE OF THE RULES UNDER ITS OWN LEGISLATION RELATING TO THE OVERLAPPING OF THE BENEFIT PAYABLE UNDER THIS LEGISLATION AND A BENEFIT GRANTED UNDER THE LEGISLATION OF A THIRD COUNTRY AND , IN PARTICULAR , WHETHER THEY PRECLUDE THE APPLICATION OF ARTICLE 70 ( 2 ) OF THE BELGIAN LAW OF 9 AUGUST 1963 TO THE OVERLAPPING OF THE BENEFIT PAYABLE BY THE BELGIAN INSTITUTION AND THE BENEFIT PAYABLE IN AUSTRIA , WITH WHICH BELGIUM HAS NOT ENTERED INTO A BILATERAL CONVENTION RELATING TO SOCIAL SECURITY , ESPECIALLY IN THE SENSE THAT THE BELGIAN INSTITUTION COULD NOT APPLY THE SAID ARTICLE 70 ( 2 ) IN ORDER TO DETERMINE , FOR ACCOUNTING PURPOSES , THE AMOUNT TO WHICH THE PERSON CONCERNED WOULD BE ENTITLED IF ALL THE INSURANCE PERIODS OR ASSIMILATED PERIODS , AGGREGATED IN ACCORDANCE WITH ARTICLE 27 OF REGULATION NO 3 , HAD BEEN COMPLETED EXCLUSIVELY UNDER BELGIAN LAW .
3 DURING THE PROCEDURE IT WAS SUGGESTED THAT IN ORDER TO REPLY TO THE QUESTION SUBMITTED ARTICLE 11 ( 2 ) OF REGULATION NO 3 AND ARTICLE 9 ( 2 ) OF REGULATION NO 4 OF THE COUNCIL OF 3 DECEMBER 1958 ON IMPLEMENTING PROCEDURES AND SUPPLEMENTARY PROVISIONS IN RESPECT OF REGULATION NO 3 ( JO OF 16 . 12 . 1958 , NO 30 , P . 597 ) MUST BE TAKEN INTO CONSIDERATION .
4 THE QUESTION SUBMITTED COMES WITHIN THE CONTEXT OF A DISPUTE CONCERNING THE AMOUNT PAYABLE BY WAY OF AN INVALIDITY PENSION TO THE SUCCESSORS OF AN ITALIAN WORKER WHO DIED IN ITALY , HAVING WORKED NOT ONLY IN ITALY AND BELGIUM BUT ALSO IN AUSTRIA , WHICH IS NOT A MEMBER STATE OF THE COMMUNITY , AND WHO HAD BEEN GRANTED AN INVALIDITY PENSION BY THE AUSTRIAN INSTITUTION CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF THE BILATERAL SOCIAL SECURITY AGREEMENT CONCLUDED BETWEEN ITALY AND AUSTRIA .
5 NEVERTHELESS THE COMPETENT BELGIAN INSTITUTION , IN CALCULATING THE BELGIAN PENSION , NOT ONLY APPLIED THE PROVISIONS OF REGULATION NO 3 IN ORDER TO AGGREGATE THE INSURANCE PERIODS COMPLETED IN ITALY AND IN BELGIUM BUT ALSO , RELYING ON ARTICLE 70 ( 2 ) OF THE BELGIAN LAW OF 9 AUGUST 1963 , TOOK INTO ACCOUNT THE AUSTRIAN PENSION IN ORDER TO REDUCE THE BENEFIT PAYABLE BY IT WITH REGARD TO THE PERIOD AFTER 1 JANUARY 1968 .
6 UNDER ARTICLE 70 ( 2 ) OF THE BELGIAN LAW , BELGIAN INSURANCE BENEFITS SHALL NOT BE ADDED TO THE COMPENSATION PAYABLE IN RESPECT OF THE SAME DAMAGE UNDER ANOTHER LEGISLATION ; HOWEVER IN EVERY CASE THE BENEFICIARY MUST RECEIVE AMOUNTS WHICH ARE NOT LESS THAN THE AMOUNT OF THE INSURANCE BENEFITS .
7 IT IS CLEAR FROM THE JUDGMENT MAKING THE REFERENCE THAT THE BELGIAN COURTS ON THE ONE HAND HAVE FINALLY ESTABLISHED THAT THE PROVISION MUST BE INTERPRETED TO MEAN THAT IT IS ALSO APPLICABLE WHEN THE DAMAGE IS COVERED BY A FOREIGN LAW AND , ON THE OTHER , THAT THE DAMAGE SUFFERED BY THE WORKER IN QUESTION WAS IN FACT COVERED BY THE PENSION GRANTED UNDER THE AUSTRIAN LAW .
8 THE PROVISIONS OF REGULATIONS NOS 3 AND 4 CONCERNING THE AGGREGATION OF INSURANCE PERIODS REFER ONLY TO PERIODS COMPLETED UNDER THE LEGISLATION OF THE MEMBER STATES .
9 PERIODS COMPLETED IN A THIRD COUNTRY , WHETHER OR NOT SUCH COUNTRY HAS ENTERED INTO A SOCIAL SECURITY CONVENTION WITH ONE OR MORE OF THE RELEVANT MEMBER STATES , ARE NOT COVERED BY ANY PROVISION OF THE COMMUNITY REGULATIONS RELATING TO THE HARMONIZATION BY THE MEMBER STATES OF THEIR SYSTEMS OF SOCIAL SECURITY .
10 IN PARTICULAR THE LAST PART OF ARTICLE 11 ( 2 ) OF REGULATION NO 3 WHICH PROHIBITS THE APPLICATION TO BENEFICIARIES OF PROVISIONS IN THE LEGISLATION OF A MEMBER STATE FOR THE REDUCTION OF BENEFIT REFERS ONLY TO CASES WHERE BENEFITS OF THE SAME KIND ARE ACQUIRED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 27 AND 28 OF THE REGULATION AND ACCORDINGLY DOES NOT PROHIBIT THE APPLICATION OF PROVISIONS FOR REDUCTION WHERE ONE OF THE BENEFITS WAS ACQUIRED PURSUANT TO THE LEGISLATION OF A THIRD COUNTRY .
11 IT FOLLOWS THAT THE CASE IN WHICH A BENEFIT HAS BEEN ACQUIRED PURSUANT TO THE LEGISLATION OF A THIRD COUNTRY FALLS OUTSIDE THE SCOPE OF ARTICLE 9 ( 2 ) OF REGULATION NO 4 WHICH STATES THAT IN CALCULATING THE AMOUNT FOR ACCOUNTING PURPOSES ACCORDING TO ARTICLE 28 OF REGULATION NO 3 THE BENEFIT GIVING RISE TO THE REDUCTION SHALL NOT BE TAKEN INTO ACCOUNT .
12 IT MUST THUS BE CONCLUDED THAT WHEN ARTICLE 28 PROVIDES FOR THE CALCULATION FOR ACCOUNTING PURPOSES OF THE AMOUNT OF BENEFIT TO WHICH THE PERSON CONCERNED WOULD BE ENTITLED IF ALL INSURANCE PERIODS OR ASSIMILATED PERIODS HAD BEEN COMPLETED EXCLUSIVELY UNDER THE LEGISLATION OF THE RELEVANT MEMBER STATE , IT PERMITS ACCOUNT TO BE TAKEN OF NATIONAL RULES PROVIDING FOR THE REDUCTION OF THE BENEFIT ON THE BASIS OF A BENEFIT RECEIVED BY THE PERSON CONCERNED FROM A SOURCE OUTSIDE THE COMMUNITY .
13 ACCORDINGLY IT IS NECESSARY TO REPLY TO THE QUESTION SUBMITTED THAT THE PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS , AND IN PARTICULAR ARTICLE 28 ( 1 ) THEREOF , AND OF REGULATION NO 4 OF THE COUNCIL OF 3 DECEMBER 1958 DO NOT PRECLUDE THE APPLICATION BY THE INSTITUTION OF A MEMBER STATE , WHEN CALCULATING ' FOR ACCOUNTING PURPOSES ' THE AMOUNT OF THE BENEFIT TO WHICH THE PERSON CONCERNED WOULD BE ENTITLED IF ALL THE INSURANCE PERIODS HAD BEEN COMPLETED EXCLUSIVELY UNDER THE LEGISLATION OF THAT MEMBER STATE , OF A RULE LAID DOWN UNDER ITS OWN LEGISLATION IN ORDER TO REDUCE THE THEORETICAL AMOUNT BY THE BENEFIT RECEIVED BY THE PERSON CONCERNED FROM A SOURCE OUTSIDE THE COMMUNITY .
COSTS
14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
15 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 , COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE BELGIAN COUR DE CASSATION BY A JUDGMENT OF 16 JUNE 1976 , HEREBY RULES :
THE PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 , CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS , AND IN PARTICULAR ARTICLE 28 ( 1 ) THEREOF , AND OF REGULATION NO 4 OF THE COUNCIL OF 3 DECEMBER 1958 DO NOT PRECLUDE THE APPLICATION BY THE INSTITUTION OF A MEMBER STATE , WHEN CALCULATING ' FOR ACCOUNTING PURPOSES ' THE AMOUNT OF THE BENEFIT TO WHICH THE PERSON CONCERNED WOULD BE ENTITLED IF ALL THE INSURANCE PERIODS HAD BEEN COMPLETED EXCLUSIVELY UNDER THE LEGISLATION OF THAT MEMBER STATE , OF A RULE LAID DOWN UNDER ITS OWN LEGISLATION IN ORDER TO REDUCE THE THEORETICAL AMOUNT BY THE AMOUNT OF A BENEFIT RECEIVED BY THE PERSON CONCERNED FROM A SOURCE OUTSIDE THE COMMUNITY .
