Opinion of the Advocate General — ECLI:EU:C:2023:358
Date: 2023-04-27
Language of the case: French
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-45/22 – 1 
Case C-45/22 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged: 
20 January 2022 
Referring court: 
Tribunal du travail francophone de Bruxelles (Belgium) 
Date of the decision to refer: 
4 January 2022 
Applicant: 
HK 
Defendant: 
Service fédéral des Pensions (SFP) 
  
1. Subject matter and facts of the dispute: 
1 HK receives a retirement pension for the activities he pursued as an employed 
person in Belgium and Spain. 
2 His spouse, who had been employed in Belgium, Spain and Finland, died on 
29 November 2016. 
3 HK is therefore entitled to survivors’ pensions. The competent Spanish institution 
has awarded HK a survivors’ pension without applying any ceiling in respect of 
overlapping with other pensions. By contrast, the competent Belgian and Finnish 
institutions apply such a ceiling. 
4 By decision of 18 September 2019, the Service fédéral des Pensions (Federal 
Pensions Service) (Belgium) awarded HK a Belgian survivors’ pension. 
5 HK is challenging the calculation of that pension and, more specifically, the 
application of the rules against overlapping laid down in EU law. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-45/22 
 
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2. Provisions at issue: 
A. EU law 
Regulation (EC) No 853/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems 
6 Article 53, entitled ‘Rules to prevent overlapping’, states: 
‘1. Any overlapping of invalidity, old age and survivors’ benefits calculated or 
provided on the basis of periods of insurance and/or residence completed by the 
same person shall be considered to be overlapping of benefits of the same kind. 
2. Overlapping of benefits which cannot be considered to be of the same kind 
within the meaning of paragraph 1 shall be considered to be overlapping of 
benefits of a different kind.’ 
7 Article 55, entitled ‘Overlapping of benefits of a different kind’, provides: 
‘1. If the receipt of benefits of a different kind or other income requires the 
application of the rules to prevent overlapping provided for by the legislation of 
the Member States concerned regarding: 
(a) two or more independent benefits, the competent institutions shall divide the 
amounts of the benefit or benefits or other income, as they have been taken into 
account, by the number of benefits subject to the said rules; …’ 
3. Positions of the parties: 
8 It is common ground between the parties that, in the present case, the benefits in 
question are of a different kind and that two survivors’ pensions are subject to an 
overlapping rule under national law, namely the Belgian survivors’ pension and 
the Finnish survivors’ pension.  
9 The parties also consider that the Belgian overlapping rule is therefore mitigated 
by Article 55(1)(a) of Regulation No 883/2004. However, they disagree as to how 
it should be applied.  
A. Federal Pensions Service 
10 The Federal Pensions Service considers that the expression ‘as they have been 
taken into account’ in Article 55(1)(a) of Regulation No 883/2004 covers only the 
part of the benefits which is taken into account in order to limit overlapping 
between benefits of a different kind, thus the amount which exceeds the ceiling in 
respect of overlapping. It its view, it is the amount of the benefits taken into 
account to reduce the survivors’ pension (in the present case EUR 11 418.87 
SERVICE FÉDÉRAL DES PENSIONS 
 
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representing the portion of the retirement pensions which exceeds the ceiling in 
respect of overlapping) which must be divided by the number of survivors’ 
pensions subject to the rules to prevent overlapping between benefits of a different 
kind (in the present case the Belgian and Finnish survivors’ pensions, since the 
Spanish survivors’ pension is not reduced). That amount divided by two (Belgian 
and Finnish survivors’ pensions subject to the ceiling) will then be deducted from 
the survivors’ pension.  
11 Its calculation is essentially as follows: 
Survivors’ pension: EUR 7 638.46  
Ceiling in respect of overlapping: EUR 16 458.42 (110% of the full survivors’ 
pension) 
Retirement pensions to be taken into consideration: EUR 20 238.83 
Calculation of the amount by which the ceiling in respect of overlapping has been 
exceeded: 
EUR 7 638.46 (amount of the survivors’ pension) + EUR 20 238.83 (total amount 
of retirement pensions) – EUR 16 458.42 (ceiling in respect of overlapping) = 
EUR 11 418.87. 
Calculation of the reduced survivors’ pension: 
EUR 7 638.46 – EUR 11 418.87 
 2 
(amount by which the ceiling has been exceeded divided by the number of 
survivors’ pensions subject to overlapping rules, in the present case the Belgian 
and Finnish survivors’ pensions) = EUR 1 929.03 
12 The Federal Pensions Service also notes that the Finnish authorities followed 
exactly the same process when calculating the Finnish survivors’ pension notified 
to HK on 10 November 2017. 
B. HK 
13 HK considers that Article 55(1)(a) of Regulation No 883/2004 covers the income 
of the pension recipient which is taken into account by the national rules to 
prevent overlapping and that it is the amounts of the other pensions which must be 
divided by two. 
14 His calculation therefore differs from the Federal Pensions Service’s calculation in 
that regard: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-45/22 
 
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Calculation of the amount by which the ceiling in respect of overlapping has been 
exceeded: 
EUR 7 638.46 (amount of the survivors’ pension) + EUR 20 238.83 
   2  
(total amount of retirement pensions divided by the number of survivors’ pensions 
subject to overlapping rules, in the present case the Belgian and Finnish survivors’ 
pensions) – EUR 16 458.42 (ceiling in respect of overlapping)  
= EUR 1 299.45  
Calculation of the reduced survivors’ pension: 
EUR 7 638.46 – EUR 1 299.45 = EUR 6 399.01 
4. Findings of the Labour Court: 
15 HK’s situation involves two foreign elements in that he receives a Belgian and a 
Spanish retirement pension for employed persons and, following the death of his 
spouse, Belgian, Spanish and Finnish survivors’ pensions for employed persons, 
since his wife had worked and paid contributions in various Member States 
(Belgium, Spain, Finland). 
16 The Belgian legislation authorises the overlapping of a survivors’ pension and a 
retirement pension up to a ceiling equal to 110% of the amount of the survivors’ 
pension that would have been awarded to the surviving spouse for a complete 
contributions record. 
17 Implementing Article 48 TFEU, Regulation No 883/2004 coordinates the social 
security systems of the Member States and governs in particular the rules against 
overlapping provided for in the legislation of the Member States. It replaced 
Regulation No 1408/71. The Court of Justice has recalled on many occasions that 
‘the provisions both of Regulation No 1408/71 and of Regulation No 883/2004 do 
not set up a common scheme of social security, but have the sole objective of 
ensuring coordination between the various national schemes which continue to 
exist’ (judgments of 21 February 2013, Salgado González, C-282/11, 
EU:C:2013:86; of 7 December 2017, Zaniewicz-Dybeck, C-189/16, 
EU:C:2017:946; and of 21 October 2021, Zakład Ubezpieczeń Społecznych I 
Oddział w Warszawie, C-866/19, EU:C:2021:865, paragraph 25). 
18 The overlapping of the survivors’ pension for an employed person and the various 
retirement pensions (Belgian and foreign) must be regarded as an overlapping of 
benefits of a different kind. Benefits calculated on the basis of the professional 
careers of two different persons cannot be regarded as benefits of the same kind. 
In the present case, HK’s Belgian survivors’ pension was calculated on the basis 
SERVICE FÉDÉRAL DES PENSIONS 
 
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of his late wife’s professional career whereas his Belgian and Spanish retirement 
pensions have been awarded to him personally on the basis of his own 
professional activities. This case therefore does not involve benefits of the same 
kind. 
19 In the light of the calculations submitted, HK is entitled to a survivors’ pension 
solely by virtue of the application of Article 55(1)(a) of Regulation No 883/2004. 
Another worker with a Belgian retirement pension for employed persons of an 
amount equivalent to that received by HK, thus EUR 20 238, would not have 
received any survivors’ pension in Belgium. 
20 HK is therefore in a more advantageous position as a result of the application of 
the European legislation. 
21 The rule contained in Article 55(1)(a) of Regulation No 883/2004 did not appear 
as such in its predecessor, Regulation No 1408/71. More specifically, 
Article 46c(1) of Regulation No 1408/71 provided: 
‘If the receipt of benefits of a different kind or other income entails the reduction, 
suspension or withdrawal of two or more benefits referred to in Article 46(1)(a)(i), 
the amounts which would not be paid in strict application of the provisions 
concerning reduction, suspension or withdrawal provided for by the legislation of 
the Member States concerned shall be divided by the number of benefits subject to 
reduction, suspension or withdrawal’. 
22 Article 55(1)(a) of Regulation No 883/2004 therefore appears to have amended 
the rule set out in Article 46c(1) of Regulation No 1408/71. According to one 
author, it is therefore no longer the amount of the benefit which is not paid which 
is divided, but the benefits or income taken into account when applying the rule to 
prevent overlapping. 
According to another author, by contrast, if several independent benefits must be 
reduced simultaneously by applying those rules, the amount to which the 
reduction, suspension or withdrawal relates must be divided by the number of 
benefits subject to reduction, suspension or withdrawal. 
23 The Labour Court finds that in the present case there is an issue with the 
interpretation of the rule contained in Article 55(1)(a) of Regulation No 883/2004 
and considers it necessary to refer the following two questions to the Court for a 
preliminary ruling. 
5. Questions referred for a preliminary ruling: 
24 The Labour Court refers the following questions for a preliminary ruling: 
– Must the rule laid down in Article 55(1)(a) of Regulation (EC) No 883/2004 
that the competent institutions are to divide the amounts of the benefit or 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-45/22 
 
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benefits or other income, as they have been taken into account, by the number 
of benefits subject to the said rules be interpreted as meaning that the income as 
such taken into account when applying the rule to prevent overlapping must be 
divided by the number of survivors’ pensions impacted by the rules against 
overlapping? 
– On the contrary, must the rule laid down in Article 55(1)(a) of Regulation (EC) 
No 883/2004 that the competent institutions are to divide the amounts of the 
benefit or benefits or other income, as they have been taken into account, by 
the number of benefits subject to the said rules be interpreted as meaning that it 
is not the income as such taken into account when applying the rule to prevent 
overlapping, but rather it is the portion of the income which exceeds a ceiling 
in respect of overlapping, as, for example, laid down by the national rule at 
issue, that must be divided by the number of survivors’ pensions impacted by 
the rules against overlapping?