Opinion of Mr Advocate General Tesauro delivered on 6 February 1990. - Rijksdienst voor Pensioenen v E. Spits. - Reference for a preliminary ruling: Arbeidshof te Gent - Belgium. - Social security - Old-age benefits - Regulation (EEC) Nº 1408/71 - Article 46. - Case C-342/88.



European Court reports 1990 Page I-02259



Opinion of the Advocate-General

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Mr President,

Members of the Court,

The national court - the Arbeidshof Gent ( Labour Court, Ghent ), Belgium - has referred to the Court for a preliminary ruling a question which, apart from the wording seeking a reply which will directly resolve the dispute, essentially concerns the interpretation of Article 46 of the well-known Regulation ( EEC ) No 1408/71 ( 1 ) on the application of social security schemes to workers moving within the Community .

Mr Spits, a Netherlands national, had worked for some years in Belgium and for many years in the Netherlands . In particular, the years of work established and therefore relevant under the Belgian pension legislation were from 1932 to 1938, the first two of which preceded his 20th birthday . The relevant years for the purposes of the Netherlands legislation were from 1929 to 1979 . The fact that Mr Spits is subject to the rules of two Member States means that Regulation No 1408/71 applies and, in particular, for purposes of calculating the two benefits, Article 46 .

The wording of this provision is not wholly clear; in any event, so far as this case is concerned, paragraphs 1 and 2 respectively lay down the methods of calculating benefits in each Member State according to whether or not the national rules permit entitlement to benefit to be granted without its being necessary to add the relevant years of contribution under the rules of other Member States .

In the second case ( Article 46(2 ) ), each national institution must calculate first a "theoretical" amount of benefit ( Article 46(2)(a ) ), determined on the basis of the total of all the relevant contribution periods under the rules of the Member States concerned as if they had all been completed in the Member State in question . It must then establish the "actual" amount of the benefit, which represents the amount calculated on the basis of the theoretical amount, in the ratio which the length of the period of insurance in the Member State concerned bears to the total period of insurance ( Article 46(2)(b ) ).

In the first case, by contrast, that is to say where the national rules provide for a pension to be granted without specifying a minimum number of years of insurance and it is therefore not necessary to add the periods completed abroad, each institution must, in addition to calculating the "theoretical" amount and the "actual" or "proportionate" amount, also calculate an "independent" national amount, based solely on "national" insurance periods ( Article 46(1 ) ). The benefit which will have to be finally granted will correspond to whichever of the "independent" amount and the "proportionate" amount, as provided for in the second paragraph of Article 46(1 ), is higher .

In this case, it is not contested that the Belgian institution had to calculate both the "independent" amount and the "proportionate" amount; it is also common ground that the "proportionate" amount corresponds to five years out of 45 ( which is the maximum number of years which may be considered ). The dispute before the national court concerns the "independent" amount which according to the Belgian authorities should correspond to five years out of 45 whereas, according to Mr Spits ( and the court of first instance, whose judgment is the subject of an appeal on the part of the Belgian authorities before the Arbeidshof Gent ), it should correspond to seven years out of 45 ( from 1932 to 1938 ), with the consequence that this amount should be accepted in so far as it is higher . In its written observations, the Commission supported the view put forward by Mr Spits .

The disagreement arose because the Belgian institution had not taken into account in calculating the "independent" amount the two years preceding that in which Mr Spits had his 20th birthday which under the national rules are taken into account only if they can be used to complete an "incomplete" contribution record, which was not the case here since the total number of years completed by Mr Spits was over 50, if the periods completed in Belgium and those completed in the Netherlands were added together .

The Commission maintains that in order to calculate the "independent" amount the national institution must consider only the periods completed in that State, excluding periods completed in other Member States, with the consequence that even the two years preceding that in which the person concerned had his 20th birthday should be taken into account . That follows from the fact that by virtue of Article 12(2 ) of Regulation ( EEC ) No 1408/71 the provisions of national legislation for the reduction of benefit in cases of overlapping must not be applied for purposes of calculating the "independent" amount referred to in Article 46(1 ) of the regulation, whereas it is precisely such a provision which led the Belgian institution to exclude 1932 and 1933 from the calculation of the independent amount .

Without considering the question further, it seems to me that the Commission' s interpretation must be accepted in its entirety . Moreover, following the arguments put forward in the Commission' s written observations the Belgian institution itself expressly acknowledged at the hearing that it had made a mistake and accepted the interpretation of Article 46 put forward by the Commission, in particular as regards the specific issue of whether the two years in question should be taken into account .

In view of these considerations I propose that the Court should reply to the question submitted to it by the Arbeidshof as follows :

"Article 46(1 ) of Regulation ( EEC ) No 1408/71 must be interpreted as meaning that the national institution responsible for paying pensions must calculate the benefit on the basis of the periods of contribution to be taken into account under national law, excluding periods of contribution completed in other Member States ."

(*) Original language : Italian .

( 1)1 Council Regulation ( EEC ) No 1408/71 of 14 June 1971 ( a codified version of which is annexed to Council Regulation ( EEC ) No 2001/83, OJ 1983, L 230, p . 6 ).