CELEX: 61980CJ0111
Social security
Recovery of over-payment

1 BY A JUDGMENT OF 3 APRIL 1980 , WHICH REACHED THE COURT ON 18 APRIL 1980 , THE TRIBUNAL DU TRAVAIL , MONS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 51 OF THE TREATY , OF ARTICLES 46 AND 51 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 ) AND OF ARTICLES 107 AND 111 OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 CITED ABOVE ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ).
2 THE QUESTION WAS RAISED IN THE COURSE OF PROCEEDINGS BETWEEN PIETRO FANARA , THE PLAINTIFF IN THE MAIN ACTION , AND THE INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE , A BELGIAN SOCIAL SECURITY INSTITUTION AND THE DEFENDANT IN THE MAIN ACTION ( HEREINAFTER REFERRED TO AS ' ' THE BELGIAN INSTITUTION ' ' ), AND CONCERNED THE COMPATIBILITY WITH COMMUNITY LAW OF ARTICLE 241 TER OF THE ROYAL DECREE OF 4 NOVEMBER 1963 IMPLEMENTING THE BELGIAN LAW OF 9 AUGUST 1963 INSTITUTING AND ORGANIZING A COMPULSORY SICKNESS INSURANCE SCHEME .
3 THE PLAINTIFF IN THE MAIN PROCEEDINGS , AN ITALIAN NATIONAL RESIDING IN BELGIUM , PURSUED EMPLOYMENT SUCCESSIVELY IN ITALY AND BELGIUM . HE WAS INCAPACITATED FOR WORK FROM 7 OCTOBER 1975 AND HIS INVALIDITY WAS RECOGNIZED FROM 7 OCTOBER 1976 . HE FULFILLED THE CONDITIONS REQUIRED TO ENABLE HIM TO CLAIM THE AWARD OF INVALIDITY BENEFITS . THE BELGIAN AND ITALIAN INSTITUTIONS PROCEEDED TO AWARD THOSE BENEFITS PURSUANT TO ARTICLE 40 ( 1 ) AND TO THE PROVISIONS OF CHAPTER 3 OF TITLE III OF REGULATION NO 1408/71 , AND IN PARTICULAR ARTICLE 46 THEREOF .
4 FROM 1 NOVEMBER 1976 TO 28 FEBRUARY 1979 THE PLAINTIFF IN THE MAIN PROCEEDINGS RECEIVED FULL BELGIAN INVALIDITY ALLOWANCES , WHICH WERE AWARDED TO HIM ON A PROVISIONAL BASIS UNDER ARTICLE 45 ( 1 ) OF REGULATION NO 574/72 . BY A DECISION NOTIFIED TO HIM ON 16 MARCH 1979 , THE BELGIAN INSTITUTION MADE A DEFINITIVE CALCULATION OF THE AMOUNT OF THE BELGIAN BENEFIT , DEDUCTING FROM THE FULL BELGIAN ALLOWANCE DUE ON 1 NOVEMBER 1976 THE DAILY AMOUNT OF THE ITALIAN PENSION CORRESPONDING TO THE SAME DATE . FOR THE PURPOSES OF     THAT CALCULATION , THE AMOUNT OF THE ITALIAN PENSION WAS CONVERTED INTO BELGIAN FRANCS BY APPLICATION OF THE RATE OF EXCHANGE PREVAILING IN THE FOURTH QUARTER OF 1976 , THAT DECISION AND ON THE BASIS OF THAT CALCULATION , THE PLAINTIFF IN THE MAIN ACTION WAS SAID TO HAVE RECEIVED ON A PROVISIONAL BASIS FOR THE ABOVE-MENTIONED PERIOD THE SUM OF 19 627 BELGIAN FRANCS , WHICH HAD TO BE RECOVERED BY THE BELGIAN INSTITUTION .
5 IN RESPECT OF THE PERIOD FROM 1 NOVEMBER 1976 TO 31 DECEMBER 1978 THE COMPETENT ITALIAN INSTITUTION PAID TO THE DEFENDANT IN THE MAIN ACTION THE SUM OF LIT 846 865 , WHICH REPRESENTED THE ITALIAN INVALIDITY PENSION AND TOOK ACCOUNT OF THE COST OF LIVING INCREASES IN THAT PENSION . ON CONVERSION INTO BELGIAN FRANCS AT THE RATE OF THE DATE OF PAYMENT , THAT SUM YIELDED BFR 29 538 . CONSEQUENTLY , THERE WAS A DIFFERENCE OF BFR 9 911 AS COMPARED WITH THE SUM TO BE RECOVERED .
6 THE ACTION BEFORE THE NATIONAL COURT IS CONCERNED WITH THE PLAINTIFF ' S RIGHT TO THE PAYMENT OF THAT SUM BY THE BELGIAN INSTITUTION . RELYING UPON ARTICLE 241 TER OF THE ABOVE-MENTIONED ROYAL DECREE OF 4 NOVEMBER 1963 IMPLEMENTING THE BELGIAN LAW OF 9 AUGUST 1963 , AS INSERTED IN THAT ROYAL DECREE BY ARTICLE 2 OF ROYAL DECREE NO 19 OF 14 DECEMBER 1978 , THE BELGIAN INSTITUTION REFUSED TO PAY OVER THE BALANCE TO THE PLAINTIFF IN THE MAIN ACTION .
7 THE PROVISIONS OF THAT ARTICLE ARE AS FOLLOWS :
' ' ( 1 ) WHERE THE ARREARS RECEIVED FROM A FOREIGN INSTITUTION , WHEN CONVERTED INTO BELGIAN CURRENCY , DO NOT COVER THE AMOUNT OF THE ADVANCE PAYMENTS OR ALLOWANCES PAID ON A PROVISIONAL BASIS , THE BALANCE SHALL NOT BE RECOVERED IF THE DIFFERENCE IS DUE EITHER TO THE DIFFERENCE IN THE RESPECTIVE EXCHANGE RATES USED TO CALCULATE THE AMOUNT OF THE SUMS DUE FROM THE FOREIGN INSTITUTION AND TO ARRIVE AT THE FIGURE EXPRESSED IN FOREIGN CURRENCY , OR TO THE ADJUSTMENT OF THE ALLOWANCES TO THE COST OF LIVING .
( 2)WHERE THE ARREARS RECEIVED FROM A FOREIGN INSTITUTION , WHEN CONVERTED INTO BELGIAN CURRENCY , EXCEED THE AMOUNT OF THE ADVANCE PAYMENTS OR ALLOWANCES PAID ON A PROVISIONAL BASIS , THE BALANCE SHALL NOT BE PAID OVER IF THE DIFFERENCE IS DUE EITHER TO THE DIFFERENCE IN THE RESPECTIVE EXCHANGE RATES USED TO CALCULATE THE AMOUNT OF THE SUMS DUE FROM THE     FOREIGN INSTITUTION AND TO ARRIVE AT THE FIGURE EXPRESSED IN FOREIGN CURRENCY , OR TO THE ADJUSTMENT OF THE ALLOWANCES TO THE COST OF LIVING .
( 3)WHERE THE ARREARS RECEIVED FROM A FOREIGN INSTITUTION , WHEN CONVERTED INTO BELGIAN CURRENCY , EXCEED THE AMOUNT OF THE ADVANCE PAYMENTS OR ALLOWANCES PAID ON A PROVISIONAL BASIS AND THE EXCESS RECEIVED ORIGINATES FROM ARREARS IN RESPECT OF A PERIOD IN WHICH THE ALLOWANCES WERE NOT AWARDED AS ADVANCES OR ON A PROVISIONAL BASIS , THE BALANCE SHALL BE PAID TO THE WORKER OR HIS SUCCESSORS OR TO THE INSTITUTION ENTITLED TO CLAIM IT ' ' .
8 IN VIEW OF THOSE FACTS , THE COURT REQUESTED A PRELIMINARY RULING ON THE FOLLOWING QUESTION :
' ' DO THE PROVISIONS OF COMMUNITY LAW AND ESPECIALLY ARTICLE 51 OF THE TREATY OF ROME , ARTICLES 46 AND 51 OF REGULATION NO 1408/71 , AND ARTICLES 107 AND 111 OF REGULATION NO 574/72 ALLOW MEMBER STATES TO RETAIN THE POWER , AND IF SO TO WHAT EXTENT , TO DECIDE BY MEANS OF DOMESTIC RULES NOT TO PAY OVER IN MATTERS OF THIS KIND THE BALANCE ARISING FROM THE FACT THAT ARREARS RECEIVED FROM A FOREIGN INSTITUTION , WHEN CONVERTED INTO NATIONAL CURRENCY , EXCEED THE AMOUNT OF ADVANCE PAYMENTS OR BENEFITS PAID ON A PROVISIONAL BASIS , IF THE DIFFERENCE IS DUE EITHER TO A DIFFERENCE IN THE RESPECTIVE EXCHANGE RATES USED TO CALCULATE THE AMOUNT OF THE SUMS DUE FROM THE FOREIGN INSTITUTION AND TO ARRIVE AT THE FIGURE EXPRESSED IN FOREIGN CURRENCY , OR TO THE ADJUSTMENT OF THE ALLOWANCES TO THE COST OF LIVING?
' '
9 IN THE PRESENT CASE , THE BELGIAN INSTITUTION , IN CONFORMITY WITH THE CASE-LAW OF THE COURT , AND IN PARTICULAR THE JUDGMENTS OF 14 MARCH 1978 ( CASE 98/77 SCHAAP ( 1978 ) ECR 707 ) AND 16 MAY 1979 ( CASE 236/78 MURA ( 1979 ) ECR 1819 ), TOOK THE VIEW THAT THE APPLICATION OF THE PROVISIONS OF ARTICLE 46 OF REGULATION NO 1408/71 WOULD BE LESS FAVOURABLE FOR THE WORKER THAN THE AWARD OF THE FULL BELGIAN INVALIDITY PENSION WITH THE APPLICATION OF THE NATIONAL LEGISLATION AGAINST OVERLAPPING . CONSEQUENTLY , BY A DECISION NOTIFIED ON 16 MARCH 1979 IT AWARDED MR FANARA THE FULL BELGIAN PENSION WHILST DEDUCTING THE AMOUNT OF THE ITALIAN PENSION .
10 THE BELGIAN INSTITUTION TAKES THE VIEW THAT IT IS IN ACCORDANCE WITH COMMUNITY LAW TO APPLY THE ABOVE-MENTIONED PROVISIONS OF NATIONAL LEGISLATION RELATING TO THE RECOVERY OF UNDUE PAYMENTS WHERE IT HAS PAID ON A PROVISIONAL BASIS A SUM IN EXCESS OF THE DEFINITIVE AMOUNT DUE .
11 THE PAYMENT OF BENEFITS ON A PROVISIONAL BASIS IS PROVIDED FOR BY ARTICLE 45 OF REGULATION NO 574/72 . ARTICLE 111 OF THE SAME REGULATION LAYS DOWN THE RULES TO BE APPLIED FOR THE RECOVERY OF PAYMENTS NOT DUE IF , WHEN AWARDING BENEFITS IN RESPECT OF INVALIDITY PURSUANT TO CHAPTER 3 OF TITLE III OF REGULATION NO 1408/71 , THE INSTITUTION OF A MEMBER STATE HAS PAID TO A RECIPIENT OF BENEFITS A SUM IN EXCESS OF THAT TO WHICH HE IS ENTITLED .
12 THE CASE-LAW OF THE COURT CITED ABOVE IS NOT CONCERNED WITH SETTLEMENT OF THE PAYMENT OF BENEFITS ON A PROVISIONAL BASIS AND THE RECOVERY OF SUMS IN EXCESS OF THOSE TO WHICH THE PERSONS CONCERNED ARE ENTITLED . IN A CASE SUCH AS THE PRESENT IT IS THEREFORE THE PROVISIONS OF REGULATIONS NOS 1408/71 AND 574/72 WHICH APPLY .
13 ARTICLE 111 OF REGULATION NO 574/72 ALLOWS AN INSTITUTION WHICH HAS PAID BENEFITS ON A PROVISIONAL BASIS TO REQUEST THE INSTITUTION OF ANY OTHER MEMBER STATE RESPONSIBLE FOR THE PAYMENT OF CORRESPONDING BENEFITS TO THE RECIPIENT TO DEDUCT THE AMOUNT OVERPAID OUT OF ANY ARREARS PAYABLE BY THE LATTER INSTITUTION TO THE RECIPIENT . THE AMOUNT THUS DEDUCTED IS TO BE TRANSFERRED TO THE CREDITOR INSTITUTION .
14 THAT PROVISION DEALS EXHAUSTIVELY WITH THE QUESTION OF THE RECOVERY OF THE AMOUNT OVERPAID AS REGARDS SOCIAL SECURITY BENEFITS DUE TO A WORKER TO WHOM BENEFITS HAVE BEEN PAID ON A PROVISIONAL BASIS PURSUANT TO ARTICLE 45 ( 1 ) OF REGULATION NO 574/72 . IT LEAVES THE MEMBER STATES NO FREEDOM TO LEGISLATE ON THE MATTER , OR IN PARTICULAR TO PROVIDE THAT WHERE THE ARREARS RECEIVED FROM A FOREIGN INSTITUTION , WHEN CONVERTED INTO NATIONAL CURRENCY , EXCEED THE AMOUNT OF THE ADVANCE PAYMENTS OR ALLOWANCES PAID ON A PROVISIONAL BASIS , THE BALANCE IS NOT TO BE PAID OVER IF THE DIFFERENCE IS DUE EITHER TO THE DFFERENCE IN THE EXCHANGE RATES USED TO CALCULATE THE AMOUNT OF THE SUMS DUE FROM THE FOREIGN INSTITUTION AND TO ARRIVE AT THE FIGURE EXPRESSED IN FOREIGN     CURRENCY , OR TO THE ADJUSTMENT OF THE ALLOWANCES TO THE COST OF LIVING . SUCH A PROVISION WOULD THEREFORE BE INCOMPATIBLE WITH REGULATION NO 574/72 .
15 THE REPLY WHICH MUST BE GIVEN TO THE QUESTION PUT BY THE TRIBUNAL DU TRAVAIL , MONS , IS THEREFORE THAT A PROVISION OF NATIONAL LAW WHICH , IN THE CASE OF SOCIAL SECURITY BENEFITS DUE TO A WORKER TO WHOM BENEFITS HAVE BEEN PAID ON A PROVISIONAL BASIS PURSUANT TO ARTICLE 45 ( 1 ) OF REGULATION NO 574/72 , PROVIDES THAT WHERE THE ARREARS RECEIVED FROM A FOREIGN INSTITUTION , WHEN CONVERTED INTO BELGIAN CURRENCY , EXCEED THE AMOUNT OF THE ADVANCE PAYMENTS OR ALLOWANCES PAID ON A PROVISIONAL BASIS , THE BALANCE IS NOT TO BE PAID OVER IF THE DIFFERENCE IS DUE EITHER TO THE DIFFERENCE IN THE EXCHANGE RATES USED TO CALCULATE THE AMOUNT OF THE SUMS DUE FROM THE FOREIGN CURRENCY , OR TO THE ADJUSTMENT OF THE ALLOWANCES TO THE COST OF LIVING , IS INCOMPATIBLE WITH REGULATION NO 574/72 .
Decision on costs
16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . 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 .
Operative part
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , MONS , BY A JUDGMENT OF 3 APRIL 1980 , HEREBY RULES :
A PROVISION OF NATIONAL LAW WHICH , IN THE CASE OF SOCIAL SECURITY BENEFITS DUE TO A WORKER TO WHOM BENEFITS HAVE BEEN PAID ON A PROVISIONAL BASIS PURSUANT TO ARTICLE 45 ( 1 ) OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 , PROVIDES THAT WHERE THE ARREARS RECEIVED FROM A FOREIGN     INSTITUTION , WHEN CONVERTED INTO NATIONAL CURRENCY , EXCEED THE AMOUNT OF THE ADVANCE PAYMENTS OR ALLOWANCES PAID ON A PROVISIONAL BASIS , THE BALANCE IS NOT TO BE PAID OVER IF THE DIFFERENCE IS DUE EITHER TO THE DIFFERENCE IN THE EXCHANGE RATES USED TO CALCULATE THE AMOUNT OF THE SUMS DUE FROM THE FOREIGN INSTITUTION AND TO ARRIVE AT THE VALUE EXPRESSED IN FOREIGN CURRENCY , OR TO THE ADJUSTMENT OF THE ALLOWANCES TO THE COST OF LIVING , IS INCOMPATIBLE WITH REGULATION NO 574/72 .