Keywords
Summary

Keywords

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1. Social security for migrant workers ° Invalidity insurance ° Conditions for grant of benefits ° Question of national law ° Calculation of benefits ° Award having regard to the various legislative schemes to which the worker has been subject ° Legislation of a Member State requiring the claimant to choose between two alternative benefits ° Account to be taken by the institution of the Member State granting the benefits of the choice of benefit made by the claimant

(Council Regulations No 1408/71, Arts 44(2) and 46, and No 574/72, Art. 36(4))

2. Social security for migrant workers ° Invalidity insurance ° Calculation of benefits ° Article 40 of Regulation No 1408/71 ° Award having regard to the various legislative schemes to which the worker has been subject ° Grant of an old-age pension instead of an invalidity pension by a Member State as a result of the choice made by the worker ° Whether permissible

(Council Regulations No 1408/71, Arts 40(1) and 46(1), subpara. 2, and No 574/72, Art. 36(4))

Summary

1. The procedural rules in Article 44(2) of Regulation No 1408/71 and Article 36(4) of Regulation No 574/72 entail no changes in the conditions to which Member States make the grant of invalidity benefits subject. It is for the legislation of each Member State to determine whether the person concerned may waive an invalidity pension in order subsequently to receive an old-age pension which is more advantageous to him.

Accordingly, where national legislation requires a claimant to make a choice between two alternative benefits, the benefit to be taken into account, pursuant to the first sentence of Article 44(2) of Regulation No 1408/71, and for the purposes of the calculations to be performed under Article 46 of that Regulation, is simply the benefit which the claimant elects to receive.

2. The second subparagraph of Article 46(1) of Regulation No 1408/71 and Article 36(4) of Regulation No 574/72 do not prevent an institution of a Member State to which an institution of another Member State has referred a claim for invalidity pension based on Article 40 of Regulation No 1408/71 from awarding a worker an old-age pension instead of an invalidity pension which he has waived in order to obtain an old-age pension which is more advantageous to him.