Opinion of the Advocate General — ECLI:EU:C:1997:436
Date: 1997-09-25
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Italy

summary of 
the written observations of the United Kingdom in the 
Report for the Hearing in Piscitello, cited in note 9, pp. 1432 
to 1434. 
16 — Cited in note 8. 
17 — OJ 1985 C 240, p. 6; COM(85) 396 final. 
18 — Case C-236/88 Commission v France [1990] ECK. I-3163. 
For the history of Regulation N o 1247/92, see the Repon 
for the Hearing in Commission v France, p. 3166; the sum­
mary of the written observations of the Commission in Pis-
citello, cited in note 9, p. 1434; and the explanatory memo­
randum to the Commission's proposal, cited in note 17. 
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OPINION OF MR JACOBS — CASE C-132/96 
25. First, it extends the definition of 'member 
of the family' in Article 1(f) to bring Regu­
lation N o 1408/71 into line with the Court's 
case-law on the entitlement of children to 
certain hybrid benefits. 19 
26. Secondly, it inserts Article 4(2a) 20 in 
Regulation N o 1408/71, to make it clear that 
certain hybrid benefits are within the scope 
of the Regulation: 
'2 a.This Regulation shall also apply to spe­
cial non-contributory benefits which are pro­
vided under a legislation or schemes other 
than those referred to in paragraph 1 [social 
security] or excluded by virtue of paragraph 
4 [social assistance], where such benefits are 
intended: 
(a) either to provide supplementary, substi­
tute or ancillary cover against the risks 
covered by the branches of social security 
referred to in paragraph 1 (a) to (h), or 
(b) solely as specific protection for the dis­
abled.' 
Article 4(1)(c) refers to old-age benefits. 
27. Thirdly, it inserts Article 10a 21 and 
Annex IIa 22 in Regulation N o 1408/71, to 
make it clear that Member States may specify 
that certain of the benefits described in 
Article 4(2a) are payable exclusively to resi­
dents. Article 10a(1) provides: 
'Notwithstanding the provisions of Article 10 
and Title III, 23 persons to whom this Regu­
lation applies shall be granted the special 
non-contributory cash benefits referred to in 
Article 4(2a) exclusively in the territory of the 
Member State in which they reside, in accord­
ance with the legislation of that State, pro­
vided that such benefits are listed in Annex IIa. 
...' 
19 — Sec the first recital in the preamble to and Article 1(1) of 
Regulation No 1247/92. 
20 — Inserted by Article 1(2) of Regulation N o 1247/92. 
21 — Inserted by Article 1(4) of Regulation N o 1247/92. 
22 — Inserted by Article 1(6) of Regulation N o 1247/92. 
23 — Title III contains special provisions relating to the various 
categories of benefits including Articles 44 to 51 on pen­
sions. 
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STINCO A N D PANFILO v INPS 
The remainder of Article 10a ((2) to (4)) con­
tains rules for the aggregation of periods 
completed in another Member State and pro­
visions facilitating the receipt of this type of 
benefit which are not relevant to this case. 
Annex IIa includes under the heading 
'H. ITALY': 
'(e) Benefits supplementing the minimum pen­
sion (Laws N o 218 of 4 April 1952, 
N o 638 of 11 November 1983 and N o 407 
of 29 December 1990)'. 
Other benefits listed in Annex IIa are the 
Belgian guaranteed income benefit at issue in 
Frilli and Levatino, the French supplemen­
tary allowance from the National Solidarity 
Fund at issue in Biason and Giletti and the 
Italian social pension at issue in Piscitello. 
28. Finally, Regulation N o 1247/92 inserts 
Article 4(2b), 24 to make it clear that certain 
other non-contributory benefits are outside 
the scope of the Regulation altogether; 
Member States may specify such benefits, 25 
which are to be listed in a new Section III of 
Annex II 26 to Regulation No 1408/71: 
'This Regulation shall not apply to the provi­
sions in the legislation of a Member State 
concerning special non-contributory benefits, 
referred to in Annex II, Section III, the validity 
of which is confined to part of its territory.' 
29. It is thus clear that Regulation No 1247/92 
was designed, first, expressly to include spe­
cial non-contributory benefits amongst the 
benefits covered by Regulation No 1408/71 
and hence ensure that migrant workers no 
longer have to bring proceedings each time 
the status of a hybrid benefit is disputed and, 
secondly, to restrict the grant of those ben­
efits acquired under the legislation of one 
Member State exclusively to persons residing 
within the territory of that State. 27 
24 — Inserted by Article 1(2) of Regulation N o 1247/92. 
25 — Artide 5 of Regulation N o 1408/71 as replaced by Regu­
lation N o 1247/92: see Article 1(3) of the latter. 
26 — Inserted by Article 1(5) of Regulation N o 1247/92. 
27 — See the Court's description of the Commission's Proposal in 
Commission v France, cited in note 18, paragraph 6 of the 
judgment, in very similar terms. 
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OPINION OF MR JACOBS — CASE C-132/96 
30. The applicants argue, in my view cor­
rectly, that Regulation N o 1247/92 did not 
modify the calculations imposed by Article 46. 
31. The INPS invokes Regulation 
N o 1247/92, although its arguments are some­
what unclear. It appears to conclude that, 
since the supplement is, by virtue of Regu­
lation N o 1247/92, not exportable, it cannot 
be considered in the determination of the 
theoretical amount of the benefit for the pur­
poses of Article 46(2)(a). That the INPS con­
siders that Regulation N o 1247/92 has that 
effect is also borne out by the statement made 
on behalf of the applicants at the hearing that 
before the entry into force of that regulation 
the INPS had included the supplement in the 
theoretical amount and had changed its prac­
tice only after Regulation 1247/92 came into 
force. (It may also be inferred from the obser­
vations of the Italian Government in Valen­
tim 28 that that Government was previously 
of the view that a supplement such as the 
pension supplement at issue in this case fell 
within the scope of Article 46.) 
32. The argument advanced by the INPS 
however confuses payment of the supplement 
with the distinct — and germane — question 
whether it should be taken into account in 
the determination of the theoretical amount. 
It is true that Regulation N o 1247/92 makes 
it clear that the supplement is to be granted 
as such exclusively to residents in Italy, and 
hence that, since they are not resident in Italy, 
the applicants would not be entitled to claim 
the supplement to raise their total pensions to 
the minimum amount specified by the Italian 
legislation. That issue does not, however, arise 
in this case: it is plain that the applicants are 
not seeking payment of the benefit as a supple­
ment to top up their pensions but are simply 
claiming that it should be taken into account 
in determining the theoretical amount of 
the Italian pension for the purposes of 
Article 46(2)(a). 
33. The distinction between the grant of ben­
efits listed in Annex IIa, restricted to resi­
dents, and the receipt by a non-resident of a 
pro rata benefit calculated by reference to a 
theoretical amount which includes the ben­
efit, may seem slight, even specious. The dis­
tinction is however in my view correctly 
drawn. An example may make its operation 
clearer. Suppose that a worker with short 
periods of contributions in Italy and France 
retired. His pension entitlement was calcu­
lated pursuant to Article 46, the Italian pen­
sion supplement being taken into account for 
the purposes of the theoretical amount. He 
would receive pro rata benefits reflecting the 
periods worked in the two Member States 
concerned. If the total of those benefits actu­
ally received was less than the minimum pen­
sion laid down by Italian legislation, the 
worker could, provided that he was resident 
in Italy, in addition claim the Italian supple­
ment to increase the total to the minimum. If 
however he chose to move to another Member 28 — Case 171/82 Valentini v ASSEDIC [1983] ECR 2157, at p. 
2165. 
I - 5236 
STINCO A N D PANFILO v INPS 
State, he would continue to receive the pro 
rata benefits, but, by virtue of Article 10a, 
would not be entitled to continue receiving 
the supplement. He may, of course, be entitled 
to an analogous supplement in his new State 
of residence, if its legislation provides for such 
a benefit; if so, he may rely on Article 50 of 
Regulation N o 1408/71. 
34. The Austrian Government submitted 
at the hearing that, since the Italian pen­
sion supplement is listed in Annex IIa 
to Regulation N o 1408/71, then neither 
Article 46(2)(a) nor Article 50 applies. 
35. It is to my mind clear on a number of 
grounds that the effect of Article 10a is not to 
exclude from the scope of Regulation 
No 1408/71 as a whole the benefits listed in 
Annex IIa. As a general point, it must be 
borne in mind that Article 10a, as a deroga­
tion from legislation intended to improve the 
situation of migrant workers, calls for a strict 
interpretation. 
36. First, it is clear from Article 4(2a), referred 
to in Article 10a, that the Regulation applies 
in principle to benefits such as the Italian 
pension supplement. 
37. Secondly, the opening words of 
Article 10a, 'Notwithstanding the provisions 
of ... Tide III', show that the Regulation as a 
whole applies, and in particular that Tide III 
(which includes Article 46) applies except in 
so far as it is overridden by Article 10a, namely 
as to the validity of a residence requirement 
in the case of specified benefits. 
38. Thirdly, if the effect of Article 10a were 
to exclude from the scope of Regulation 
N o 1408/71 the benefits Usted in Annex IIa, 
Article 4(2b) and Section III of Annex II 
would be redundant. 
39. It may also be noted that Advocate Gen­
eral Tesauro in Krid 29 gave short shrift to the 
argument apparently advanced by the United 
Kingdom to the effect that the amendments 
made by Regulation N o 1247/92 'made it 
even clearer that special non-contributory 
benefits fall outside the scope of social secu­
rity'. 30 He stated his view that it was not 
'possible to entertain any doubts with regard 
to the fact that a national benefit such as that 
at issue in the main proceedings [the French 
Fonds National de Solidarité supplement] ... 
falls within the field of social security' as 
defined by the Regulation. 31 The Court 
29 — Case C-103/94 Krid v CNAVTS [1995] EC» I-719. 
30 — See paragraphs 9 to 11 of trie Opinion. 
31 — Paragraph 11. 
I - 5237 
OPINION OF MR JACOBS — CASE C-132/96 
echoed that view, ruling that, 'since Regu­
lation N o 1247/92 came into force, benefits 
such as the supplementary allowance from 
the FNS have been expressly included within 
the matters covered by Regulation 
N o 1408/71'. 32 
40. It is thus clear to my mind that, notwith­
standing Article 10a, Regulation N o 1408/71 
as a whole applies to the benefits listed in 
Annex IIa. It is moreover clear to me that 
Article 46 specifically continues to apply to 
those benefits. 
41. First, if the intention had been to take 
non-contributory benefits generally outside 
the scope of Article 46, that provision would 
surely have been amended so as to make that 
clear; as will be shown below, that was not 
done, even though the relevant provisions of 
Article 46 were amended at the same time. 
42. Secondly, there is nothing in the wording 
of Article 10a to suggest that it has the effect 
contended for by the INPS and the Austrian 
Government: the provision simply provides 
for the benefits to which it applies to be paid 
exclusively in the State of residence. The Aus­
trian Government submitted at the hearing 
that the reference to Title III in the opening 
words of Article 10a demonstrated that 
Title III did not apply to benefits listed in 
Annex IIa. That argument is to my mind not 
correct. Title III is headed 'Special provisions 
relating to the various categories of benefits' 
and comprises 60 articles grouped in eight 
chapters dealing with sickness and maternity, 
invalidity, old-age and death (pensions), acci­
dents at work and occupational diseases, death 
grants, unemployment benefits, family ben­
efits, and benefits for dependent children of 
pensioners and for orphans. Many of those 
provisions seek to confer entitlement to cash 
benefits on non-residents. Clearly to the extent 
that such benefits are listed in Annex IIa, any 
such entitlement is now overridden by 
Article 10a. There is no reason, however, to 
consider that Article 10a excludes the applica­
tion of the remaining provisions of Tide III, 
which do not concern the entitlement of non­
residents, to the benefits listed in Annex IIa. 
43. Thirdly, the history of Article 10a, 
recounted above, shows that the intention was 
to resolve the difficulties perceived to flow 
from cases such as Biason 33 and Piscitello, 34 
where the Court ruled that non-contributory 
cash benefits continued to be payable even 
though the recipient transferred his residence 
from the Member State of payment to another 
Member State, rather than issues such as that 
raised in Levatine, which concerned the deter­
mination and adjustment of old-age benefits 
32 — Paragraph 36 of the judgment. 
33 — Cited in note 8. 
34 — Cited in note 9. 
I - 5238 
STINCO AND PANFILO v INPS 
which included a benefit in the nature of a 
supplement to a minimum income level. The 
purpose of Article 10a is purely to validate a 
stipulation that a benefit is payable solely in 
the national territory, which stipulation would 
otherwise be unlawful by virtue of Article 10 
as previously interpreted by the Court. 
44. There is accordingly nothing to suggest 
that the effect of the amendments made to 
Regulation N o 1408/71 by Regulation 
N o 1247/92 is to exclude benefits such as the 
Italian pension supplement from Article 46. 
45. To conclude this section, therefore, I con­
sider that it was established in Levatine that 
a benefit such as the Italian pension supple­
ment is subject to Article 46 and that that 
proposition has not been altered by the amend­
ments to Regulation N o 1408/71 made by 
Regulation N o 1247/92. 
The theoretical amount 
46. Once it is accepted that Article 46 applies 
to the supplement, in my view it must follow 
from the wording of Article 46(2)(a), and in 
particular from the final sentence, 35 that the 
theoretical amount of the pension to be cal­
culated should include the supplement. That 
to my mind is the plain meaning of 'the theo­
retical amount of benefit to which the person 
concerned could lay claim provided all periods 
of insurance ... have been completed in the 
State in question'. If, in this case, the appli­
cants had completed in Italy the total number 
of weeks worked, it appears that they would 
have been able to lay claim to derisory pen­
sions supplemented in each case to the level 
of the minimum pension. 
47. The INPS submits that, where the amount 
of the minimum benefit is, as here, indepen­
dent of periods of insurance, that benefit must 
not be taken into account in calculating the 
theoretical pension but is relevant only for 
the purposes of Article 50. That argument is 
in my view untenable in the light of the 
wording of Article 46(2)(a), the final sentence 
of which specifically provides that 'if the 
amount of the benefit is independent of the 
duration of the periods completed, the amount 
shall be regarded as being the theoretical 
amount'. That provision clearly envisages that 
the amount of a benefit which is independent 
of the duration of the periods completed is 
not thereby excluded from the theoretical 
amount, but on the contrary is the theoretical 
35 — Sec paragraph 47 below. 
I - 5239 
OPINION OF MR JACOBS — CASE C-132/96 
amount; that view moreover appears to have 
been taken by the Court in Levatine. 36 It 
may be noted that Article 46 was amended by 
Regulation N o 1248/92, 37 adopted on the 
same day as Regulation N o 1247/92, but the 
final sentence in Article 46(2)(a) was not 
deleted. That is most unlikely, moreover, to 
have been an oversight, since the final sen­
tence was in fact recast in smoother language 
to the same effect, 38 thus strongly suggesting 
that it was intended to have continuing scope. 
48. That argument of the INPS moreover 
disregards the decision in Levatino, in which 
the benefit was similarly independent of 
periods of insurance but was none the less 
held to fall within the scope of Article 46. It 
may be noted that in that case the Office 
National de Pensions, the Belgian national 
authority, put forward the argument that the 
method of calculation of the guaranteed 
income benefit was incompatible with the 
system of aggregation and apportionment pro­
vided for in, inter alia, Article 46. That argu­
ment was rejected. 39 
49. The INPS asserts that including the sup­
plement in the theoretical amount of the pen­
sion would mean that the amount of the pen­
sion awarded after apportionment would be 
inversely proportional to the length of the 
beneficiary's working life. It illustrates that 
argument with an example: on the assump­
tion that the beneficiary worked for a short 
given period in Italy (five years in its example), 
then the longer the total working life of the 
beneficiary (and hence ex hypothesi the longer 
his working life elsewhere), the smaller the 
fraction represented by the Italian element of 
his total pension. Since that is the whole pur­
pose of the aggregation and apportionment 
exercise, that proposition is hardly surprising. 
50. The INPS also presents as an unaccept­
able consequence of the applicants' view the 
fact that the total pension payable after aggre­
gation and apportionment may in some cir­
cumstances exceed the national minimum; 
again, that is hardly surprising given that it is 
surely the purpose of a minimum to be 
exceeded in most cases. 
51. Should it not be thought clear from the 
wording of Article 46(2)(a) that the theo­
retical amount of the pension should include 
the supplement, there is a further argument 
to that effect drawn from decisions of the 
Court. There is some case-law on what is 
meant by 'the theoretical amount of the ben­
efit', although no direct authority on the spe­
cific question raised in this case. 
36 — Cited in note 111 see paragraph 26 of the judgment. 
37 — Cited in note 2. 
38 — The previous version read: 'If, under that legislation, the 
amount of the benefit does not depend on the length of the 
periods completed then that amount shall be taken as the 
theoretical amount referred to in this subparagraph': see the 
consolidated version of Regulation N o 1408/71 contained in 
Annex I to Council Regulation (EEC) N o 2001/83 of 2 June 
1983, OJ 1983 L 230, p. 6. 
39 — Paragraphs 23 to 27 of the judgment; see also paragraphs 13 
and 14 of my Opinion. 
I - 5240 
STINCO A N D PANFILO v INPS 
52. Menzies 40 concerned the proper basis 
for calculating an occupational invalidity 
pension in Germany under Article 46(2). 
German legislation provided for a supple­
mentary insurance period to be credited to 
insured persons who had suffered occupa­
tional invalidity before reaching 55 years of 
age. Mr Menzies had 24 months of insurance 
contributions in Germany and 248 months in 
the United Kingdom. The supplementary 
period, which in his case amounted to 199 
months, was taken into account by the com­
petent institution when calculating the theo­
retical amount under Article 46(2)(a) but not 
when calculating the actual amount under 
Article 46(2)(b). The theoretical benefit was 
therefore the amount of invalidity pension to 
which Mr Menzies would have been entitled 
in Germany if he had paid contributions for 
a total of 471 months, namely 24 +248 +199. 
The German pro rata benefit was calculated 
as 8.82% of the theoretical amount, namely 
24: (24 +248). The applicant claimed that the 
supplementary period should have been taken 
into account in calculating the actual amount, 
•which would have resulted in a pro rata ben­
efit of 47.34%, namely (24 +199): (24 +248 
+199). 
53. In rejecting that argument, the Court 
made the following points about the calcula­
tion of the theoretical amount: 
'As regards the theoretical amount, the express 
effect of Article 46(2)(a) is that it must be 
calculated as if the insured person had carried 
out his occupational activity exclusively in 
the Member State in question. It follows that 
if, in order to evaluate the benefit awarded in 
the event of premature invalidity or death of 
the insured person, the legislation of that State 
provides that the benefit must be calculated 
in relation to not only periods of insurance 
completed by the insured person but also in 
relation to a supplementary period ..., that 
supplementary period must also be taken into 
account in the calculation of the theoretical 
amount referred to in subparagraph (a).' 41 
54. In Di Prinzio 42 the Court commented 
that: 
'with regard to the question of the taking into 
account of notional periods in calculating the 
theoretical amount of the benefit, it is apparent 
from the wording of Article 46(2)(a) that the 
competent institution is to apply its own leg­
islation in its entirety and therefore, if the 
latter provides that the benefits must be cal­
culated not only by reference to actual periods 
or periods treated as such, but also to a 
number of additional notional years, that addi­
tional period must also be taken into consid-
40 — Case 793/79 Menzies v Buntdesversicberungsanstalt für Ang­
estellte [1980] ECR 2085. 
41 — Paragraph 10 of the judgment. 
42 — Case C-5/91 [1992] ECR I-897. 
I - 5241 
OPINION OF MR JACOBS — CASE C-132/96 
eration in calculating the theoretical amount 
of the benefit'. 43 
55. It can be concluded from Menzies and Di 
Prinzio that, if a Member State sought to 
achieve the aim of a minimum pension by the 
attribution of notional periods of insurance 
to correct an applicant's short insurance his­
tory, such periods would clearly be required 
to be included in determining the theoretical 
amount. It would seem anomalous if, where 
another Member State seeks to achieve the 
same aim by way of a pension supplement, 
that supplement should not be so included. 
56. In Besem, 44 the Court laid down a more 
general rule. That case concerned the calcula­
tion of Netherlands invalidity benefit. Under 
the relevant national legislation, the amount 
of the benefit was not dependent on the length 
of the completed periods of insurance but 
was based on the degree of incapacity for 
work and on the amount which the applicant 
could have earned if he had not been unfit for 
work. Where, however, entidement to the 
benefit arose solely as a result of the Com­
munity regulation, that hypothetical wage was 
to be reduced in proportion to uninsured 
periods. Mr Besem had been uninsured for 
five years in an otherwise insured period of 
44 years before being declared unfit for work. 
The Netherlands authority calculated his 
invalidity benefit under Article 46(2) on the 
basis of the wage thus reduced. That reduc­
tion was challenged. 
57. In ruling that the reduction was unlawful, 
the Court stated that the situation before it 
was: 
'governed by a comprehensive set of Com­
munity rules which contain all that is neces­
sary to enable the theoretical amount to be 
determined by considering those rules in con­
junction with the national provisions laying 
down the amount of benefit which would be 
received by a worker entitled to such benefit 
under the national legislation alone. 
It is not compatible with those rules for a 
Member State to adopt for the purpose of 
determining the amount of benefit in such 
circumstances provisions designed to alter the 
way in which the theoretical amount is cal­
culated so as to make that amount less than 
that which would result from the general 
provisions in force under the national legisla­
tion.' 45 
58. It may be concluded from the principles 
laid down by the Court in those cases that 
43 — Paragraph 45 of the judgment. 
44 — Case 274/81 Besem v Nieuwe Algemene Bedrijfsvereniging 
[1982] ECR 2995. 45 — Paragraphs 12 and 13 of the judgment 
I - 5242 
STINCO A N D PANFILO v INPS 
the calculation referred to in Article 46(2)(a) 
is to be based on the total notional pension 
which would be due to the applicant if he had 
worked throughout his working life in the 
Member State in question. It would be incon­
sistent with those principles that a pension 
supplement should not be included in that 
calculation. 
59. I would mention as a final point the 
various notes and minutes of meetings of the 
Administrative Commission on Social Secu­
rity for Migrant Workers which have been 
referred to by the INPS in support of its sub­
missions. The Administrative Commission 
was originally set up under Regulation N o 3, 46 
the precursor of Regulation N o 1408/71, and 
is currendy regulated by Articles 80 and 81 of 
Regulation N o 1408/71. Its duties inter alia 
include dealing with 'all administrative ques­
tions and questions of interpretation arising 
from' Regulation N o 1408/71, 'without preju­
dice to the right of the authorities, institu­
tions and persons concerned to have recourse 
to the procedures and tribunals provided for 
by the legislations of Member States, by this 
Regulation or by the Treaty'. 47 The Court 
however established at an early stage that the 
equivalent provision of Regulation N o 3 48 
did not affect the powers of the competent 
courts or tribunals to assess the validity and 
content of the Regulation, in respect of which 
the decisions of the Administrative Commis­
sion have only the status of an opinion. N o 
other interpretation, the Court continued, would 
be in accordance with the Treaty, in particular 
Article 177 which established a procedure to 
ensure the uniform judicial interpretation of 
the rules of Community law. 49 Accordingly, 
the notes referred to by the INPS cannot be 
regarded as binding. 
Article 50 of Regulation No 1408/71 
60. The INPS refers to the distinction between 
'theoretical amount' in Article 46(2)(a) and 
'minimum benefit' in Article 50: the former is 
simply the basis for the calculation on which 
the Community system of aggregation and 
apportionment is based while the latter rep­
resents a guaranteed minimum income inde­
pendent of the periods of insurance com­
pleted by the worker. The INPS concludes 
that, in the context of the Community legis­
lation, Article 50 is the sole provision intended 
to guarantee a minimum income to pen­
sioners. That may well be correct: it does not, 
however, appear to be directly relevant to the 
issue before the Court, which as indicated 
above is not concerned with guaranteeing a 
minimum income to the applicants. 
61. The INPS invokes Torri 50 and Brown­
ing, 51 although it is not clear 'what principle 
46 — Regulation N o 3 of the Council of 25 September 1958 con­
cerning social security for migrant workers, JO 1958, p. 561. 
47 — Article 81(a). 
48 — Article 43. 
49 — Case 19/67 Socialt Verzekeringsbank v Van der Vecht [1967] 
ECR 345, at p. 355. 
50 — Cited in note 4. 
51 — Case 22/81 [1981] ECR 3357. 
I - 5243 
OPINION OF MR JACOBS — CASE C-132/96 
it is seekingto derive from those decisions. In 
Torri, the Court ruled that Article 50 could 
not apply where a Member State had not spe­
cifically legislated for a minimum pension. In 
Browning, that proposition was further 
refined: the Court ruled that what was meant 
in Article 50 was a minimum resulting from 
a specific guarantee laid down under national 
legislation and not the minimum benefits 
which may result from the normal operation 
of pension rules based on insurance periods 
and contributions. It may be that the INPS is 
seeking to rely on Torri as authority for its 
contention that the theoretical amount of the 
benefit is not the same as the minimum pen­
sion: in that case, the applicant had unsuc­
cessfully argued that, in default of a statutory 
minimum pension in a given Member State, 
Article 50 required that a minimum be pay­
able equal to the theoretical amount calcu­
lated in accordance with Article 46(2)(a). 
However, it is clearly fallacious to conclude 
from the premiss that the theoretical amount 
cannot, in the absence of any statutory min­
imum, be a minimum pension for the pur­
poses of Article 50 that therefore the theo­
retical amount must, for the purposes of 
Article 46(2)(a), exclude a statutory supple­
ment designed to bring a pension up to such 
a minimum. 
62. The Commission refers to the historical 
genesis of Article 50. In the Explanatory Mem­
orandum to its proposal 52 for a revised Regu­
lation N o 3, 53 which was ultimately adopted 
as Regulation N o 1408/71, it is stated in rela­
tion to Article 40, which became Article 50 of 
Regulation N o 1408/71: 
'Lorsque la carrière du travailleur a été assez 
courte et que le droit aux prestations 
d'invalidité, de vieillesse ou de survie, n'a pu 
s'ouvrir, au titre des législations des États 
auxquelles il a été soumis, qu'en tenant compte 
de toutes ses périodes d'assurance, il arrive 
fréquemment que le montant total des presta­
tions dues par ces États n'atteigne pas le 
niveau du minimum prévu par la législation 
d'un ou de plusieurs d'entre eux, bien que le 
montant théorique dont il s'agit à l'article 35 
[which became Article 46] ait déjà été porté 
au niveau de ce minimum.' 54 
The provision was intended to be applicable 
in the three Member States which, at the time, 
provided for minimum benefits of the speci­
fied types, namely France, Italy and Luxem­
bourg. The Commission notes that the min­
imum benefits laid down by the French and 
Luxembourg legislation were for fixed 
amounts. It concludes that the theoretical 
amount in Article 46(2)(a) was clearly intended 
to be raised to the level of any applicable 
statutory minimum, whether or not the 
amount of that minimum is independent of 
periods of insurance. 
52 — JO 1966 194, p. 3333; COM(66) 8 of 6 January 1966. 
53 — Cited in note 46. 54 — P. 52; emphasis added. 
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STINCO AND PANFILO v INPS 
63. I do not consider that the Commission's 
explanations of its proposed legislation would 
be conclusive, or even of significant probative 
value, in the absence of other factors: as 
Advocate General Warner pointed out in his 
Opinion in Torri, 55 there is no warrant for 
assuming that the members of the Council 
shared in all respects the Commission's inten­
tions as to the meaning of any given provi­
sion. Where, however, as here, those explana­
tions accord with the view of, in this case, 
Article 46(2)(a) derived from its wording, its 
context and its interpretation by the Court, I 
consider that they furnish useful additional 
evidence. 
Conclusion 
64. I accordingly consider that the question referred by the Pretura, Rome, should 
be answered as follows: 
Where (i) the legislation of a Member State confers entitlement to a supplement to 
increase to a specified minimum the amount of an old-age pension within the 
meaning of Chapter 3 of Title III of Council Regulation (EEC) N o 1408/71 of 14 
June 1971 on the application of social security schemes to employed persons, to 
self-employed persons and to members of their families moving within the Com­
munity and (ii) the amount of the pension to which a person could have laid claim 
if he had completed in that Member State all periods of insurance and/or residence 
under the legislation of the Member States to which he was subject would be less 
than the specified minimum so that the person would be entitled to that supple­
ment, the theoretical amount referred to in Article 46(2)(a) of the Regulation is the 
amount of the pension as supplemented to that specified minimum notwithstanding 
the fact that the supplement is listed in Annex IIa to the Regulation. 
55 — At p. 2309. 
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