OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 7 MAY 1981

My Lords,

These cases, which the Court ordered should be joined, were referred on 22 April 1980 by the Arbeidshof of Antwerp

(Hasselt Division) for a preliminary ruling in these terms — “for the interpretation of Article 51 of the EEC Treaty and, in so far as necessary, of other articles of the Treaty and provisions of secondary legislation in connexion with the question set out in the grounds” for making the order for reference.

The facts which give rise to the essential question in these cases are not set out in such grounds. Nor do they appear fully in the papers before the Court. Moreover there are discrepancies between the facts stated in some of the documents before the Court. It seems, however, that for the purposes of the reference the facts can be sufficiently summarized as follows.

Mr Celestre, Mr Dreilich and Mr Bohnefeld worked as miners in Belgium for 27 or 28 years. They had worked for a number of years in several capacities in another Member State before going to Belgium. Mr Celestre worked in Italy, the other two in Germany. Mrs Rydlakowski's late husband also worked for 27 years as a miner in Belgium after a period of work in Germany. Mr Celestre and Mr Bohnefeld received a retirement pension, Mr Dreilich an invalidity pension and Mrs Rydlakowski a widow's pension, by reason of the four men's work in Italy or Germany, which pensions were paid by the social security authorities in those countries. They all claimed that they were entitled to a full pension in Belgium by reason of years of work as miners. This was rejected by the pension authorities who granted only a partial pension. Their claims were, however, upheld by the Arbeidsrechtbank (Labour Tribunal) to which they applied. On an appeal by the pension authority (the Rijksdienst voor Werknemerspensioenen) to the Arbeidshof (the Labour Court) it was contended that the applicants were not entitled to the retirement pensions they claimed in Belgium.

Mr Strehl (Case 121/80) worked as a miner in Belgium. He also had worked in Germany. He received an invalidity pension from both countries — the amount of the German one being dependent upon, the amount of the Belgian one being independent of, the length of the insurance periods. When both pensions were revised with effect from 1974 the pension authority (the Nationaal Pensioenfonds voor Mijnwerkers) rejected his claim that he was entitled to a full Belgian pension. The matter came before the Arbeidsrechtbank of Hasselt which referred a question to this Court. The Court's judgment in the case (Case 62/76) is reported in [1977] ECR 211. When the case went back to the Arbeidsrechtbank Mr Strehl's claim was upheld. The pension authority appealed to the Arbeidshof.

The first four cases are thus concerned with the assessment of retirement benefits and can be dealt with together, subject to one point which I shall refer to at the end of this opinion. The fifth is concerned with the assessment of an invalidity pension which is covered by separate Belgian legislation.

Retirement benefits in the four cases are dealt with in Arrêté Royal No 50 of 24 October 1967 (Moniteur Belge of 27 October 1967 p. 11258). In summary, Arrêté Royal No 50 establishes a single scheme relating to retirement and widow's pensions for employed persons. The amount of a retirement pension is calculated on the basis of a proportion of the worker's actual or deemed income in each year of his working life. For most male workers the working life is a period of 45 years terminating at the retirement age of 65. The pension is thus calculated as a fraction of which the denominator is 45 and the numerator the number of years actually worked. 45/45 appears to be the maximum pension for years worked before age 65, although a supplementary pension may apparently accrue for years worked after that age.

Due to the nature of work in the mines, the retirement age for miners, is 55 or 60 depending on whether the miner was an underground or a surface worker. However, in accordance with Article 10(2) of the Arrêté Royal, a miner may retire after 25 years' work in the mines and receive a full retirement pension calculated as a fraction of the number of years worked, but based on a denominator of 30 rather than 45. If he has worked as an underground worker for at least 25 years, he is deemed to have worked for a total of 30 years and is entitled to a complete pension of 30/30. The deemed years making up the difference between those actually worked and the total of 30 are assumed to have been worked before 1955. This apparently is in order that the “rémunération forfaitaire” (a fixed sum attributed to each year worked) in respect of those deemed years should be taken as the sum attributable to years before 1955.

It appears from the Arbeidshof's order and from information supplied by the parties that, in order to prevent overlapping, when a man has worked both in the mines and in other work, the years spent in the former are taken in the proportion 1 1/2 :1 and the two figures are added to produce the numerator. Save in respect of years spent working after age 65, the pension cannot exceed 45/45. This process is said to be derived from the Arrêté Royal and in particular from Article 10 though it does not seem to be expressly stated. Where a man has been employed outside Belgium, and receives a pension in respect of those years under the legislation of another Member State, the Belgian pension authorities deduct the appropriate number of those years from the years over 25 years which are deemed by Article 10 (2) of the Arrêté Royal to have been worked in the mines. It is this practice which has given rise to the claims in the first four cases. Thus by way of example Mr Celestre had worked 27 years. If ne had not worked in Italy there would be no dispute as to his entitlement to a full 30/30 pension. The years worked in Italy are taken as coinciding with the three “deemed” years and those three deemed years are left out of account so that his Belgian pension is calculated on the basis of 27/30. In the first four cases a similar result is achieved. It seems that before the Arbeidsrechtbank the pension authority relied on Article 46 of Regulation No 1408/71 to justify this reduction.

By an Arrêté Royal of 19 November 1970 (Moniteur Belge of 26 November 1970 at p. 12012) invalidity pensions are provided for those miners who have ceased work on account of ill health causing unfitness for work. The relevant provision of the scheme for present purposes is that, in order to qualify, a minimum period of 10 years' employment in mining undertakings must have been completed. The amount of the pension is not determined by the precise number of years worked. Article 23 provides “an invalidity pension granted under this decree may overlap with one or more retirement or invalidity pensions only to the extent of the annual amount of the pension laid down by Article 4 ...”.

The Arbeidshof summarize the issue in Mr Strehľs case in this way. “This case concerns a miner who claims that the Belgian and foreign benefits in respect of the invalidity pension must be added together in full. The judgment appealed against granted the claim The previous question referred to the Court of Justice has not altogether resolved the problem which has arisen. In its judgment of the 3 February 1977 the Court of Justice ruled that Article 46 (3) of Regulation No 1408/71 is incompatible with Article 51 of the EEC Treaty to the extent to which it imposes a limitation on the overlapping or two benefits acquired in different Member States by a reduction of the amount of the benefit acquired under national legislation alone. However it is possible that national law itself may contain a prohibition on counting periods twice, as is the case here, with the result that the question of the repercussions which the Treaty provisions have on those national rules remains to be examined.”

Certain basic propositions as to the approach to Community law which are relevant to the question referred seem to have been accepted by the parties as having been laid down by the Court. Thus (1) as was said in Case 24/75 Petroniv ONPTS[1975] ECR 1149“the aim of Articles 48 to 51 (of the EEC Treaty) would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the laws of a single Member State”. (2) In the absence of an express exception consistent with the aims of the Treaty, the provisions of Regulations No 1408/71 and 574/72 cannot be applied in such a way as to deprive a migrant worker of a benefit deriving from national law alone or to reduce the amount of it, (See, for example, Case 807/79 Gravina v Landesversicherungsanstalt Schwaben9 July 1980.) (3) Community law does not prevent the application of national rules against the overlap of insurance periods or the duplication of social security benefits in the case of rights derived solely under national law (see e.g. Case 22/77 FNROM v Mura (Mura No 1) [1977] ECR 1699, Case 33/77 Greco v FNROM [1977] ECR 1711, Case 98/77 Schaap v Bestuur van de Bedrijfsvereniging voor Bank- en Verzekeringswezen [1978] ECR 707 and Case 105/77 Bestuur van de Sociale Verzekeringsbank v Boerboom-Kersjes [1978] ECR 717).

Accordingly in these cases the first task is to assess the amount of entitlement under Belgian law alone taken as a whole. The second task is to assess the amount of entitlement in accordance with the provisions of Community law. The claimant will then be entitled to receive which ever is the more favourable result for him.

So far as Belgian law is concerned no provisions of Community law prevent the application by the Belgian institution of a provision of Belgian law entitling them to reduce a pension acquired solely under Belgian law in order to prevent an overlap or duplication with another social security benefit. Equally no provision of Community law empowers or requires the Belgian institution to make such a reduction under Belgian law in the absence of such provision in Belgian law itself. It is, of course, for the Belgian courts to decide whether Belgian law contains such provisions.

The assessment of benefit under Community law centres on Article 46 which must be read as a whole (the Schaap and Boerboom-Kersjes cases referred to above) and subject to any other relevant provisions of Community law.

In the present cases the entitlement to benefit in Belgium is satisfied without the need to refer to periods of insurance completed elsewhere. Accordingly the first stage under Article 46 (1) is to determine the amount of benefit corresponding “to the total length of the periods of insurance or residence to be taken into account in pursuance of” the national legislation being administered. Read alone that would, it seems, produce the same result as under the first task where only national law is to be looked at. In my opinion it is not to be read alone. Effect must be given to Article 12 (2) of Regulation No 1408/71 which provides inter alia that:

“The provisions of the legislation of a Member State for reduction... of benefit in cases of overlapping with other social security benefits... may be invoked even though the right to such benefits was acquired under the legislation of another Member State ... However, this provision shall not apply when the person concerned receives benefits of the same kind in respect of invalidity, old-age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States in accordance with the provisions of Articles 46, 50, 51 or Article 60 (1) (b).”

The effect of this on the first calculation under Article 46 (1) of the entitlement under national law is, in my opinion, that any anti-overlap provisions of the national legislation must be ignored. This does not seem to be limited to cases, as can obviously be argued, where the anti-overlap provisions do not expressly exclude overlap with foreign benefits, but is of general application.

The only provision of Belgian legislation which is relied upon to justify the practice of reducing the deemed years seems to be Article 10 (2) of the Arrêté Royal No 50. If that Article properly construed does have that meaning, it is difficult to see how it can be other than “a provision for reduction of benefit in cases of overlapping with other social security benefits” within the meaning of Article 12 (2) and it must be ignored. If there is no legislation providing for the reduction of benefit in such a case then the full entitlement without the reduction of the deemed years is to be taken in any event for the purposes of Article 46 (1).

The second stage under Article 46 (1) is for the competent institution to calculate the amount of benefit which would be obtained by applying the rules laid down in paragraphs 2 (a) and (b) of Article 46 — namely the theoretical amount of benefit if all the periods of insurance had been completed under the legislation of the Member State to which the worker has been subject, adjusted in the ratio which the length of the periods of insurance completed under the legislation administered by the institution in question bears to the total length of the periods of insurance completed under the legislation of all Member States (“the actual amount”).

The higher of the two amounts (the national amount without anti-overlap provisions being taken into account and the actual amount) is to be taken into consideration. Since the retirement pensions and the invalidity pension have been earned in the full amount by reference to the national law alone under the first paragraph of Article 46 (1) no higher result can it seems be achieved in the present cases, by carrying out the task under paragraphs 2 (a) and (b) pursuant to the second paragraph of Article 46 (1).

Article 46 (3) provides that a claimant who has worked in several Member States shall be entitled to the total of (a) that pension under Article 46 (1) calculated by the institution of the State where entitlement has been established without reference to Article 45 and (b) that pension or those pensions calculated by the institutions of Member States under whose legislation entitlement conditions are not satisfied without reference to Article 45 and which are calculated under Article 46 (2) as a whole. But the total sum due is subject always to the ceiling provided by the highest theoretical amount which could have been achieved if all the periods of insurance had been completed under the legislation of each of the relevant Member States. If the total exceeds the ceiling of this highest theoretical amount, the institution applying paragraph 1 of Article 46 adjusts its benefit proportionately by virtue of Article 46 (3). If the adjusted figure exceeds the figure resulting from national legislation alone (including anti-overlapping provisions) then the former must be paid. If the figure resulting from national legislation alone exceeds the figure adjusted by virtue of Article 46 (3) then on the Petroni principle the figure resulting from national legislation must be paid. This may mean that the retired or invalided worker may get more than the maximum provided by the national legislation. This has been categorized in the observations as a “strange result”. It would not occur if all the schemes were harmonized: it can happen in the present state of the legislation.

It is suggested also that this result militates in favour of the migrant worker who gains advantages over the worker who stays always in one country and so cannot be correct as an approach. This consideration does not in my view vitiate the result. The Court has alreadv pointed out that the two categories or workers cannot always be regarded as being on all fours (see the judgment of the Court in the first Mura case).

It is accordingly necessary for the Belgian courts to decide in respect of the claim for a retirement pension

(i) whether there is or is not an anti-overlap provision and what is the resulting calculation under national law;

(ii) what is the amount achieved by applying both paragraphs of Article 46 (1) taking into consideration the higher of the two amounts;

(iii) what is the highest theoretical amount which could have been achieved under Article 46 (2) (a) in the Member States relevant for each worker;

(iv) if the total achieved in both Member States after applying paragraphs 1 and 2 of Article 46 exceeds the highest theoretical amount calculated under paragraph 2 (a), what is the appropriate adjustment under the second paragraph of Article 46 (3).

The Belgian institution should then pay the result of such adjustment unless the figure obtained under national legislation alone (to be taken as a whole) exceeds the result of such adjustment, in which case the figure obtained under national legislation should be paid.

Reference has been made to Article 15 (1) (b), (c) and (d) of Regulation No 574/72, made under Article 97 of Regulation No 1408/71 and made applicable by Article 46 (1) of Regulation No 574/72 to the calculation of the theoretical and the actual amount of benefit in accordance with the provisions of Article 46 (2) (a) and (b) of Regulation No 1408/71. Paragraph 15 (1) (c) seems of concern in these cases. That provides :

“when a period of insurance or residence, other than a period treated as such, completed under the legislation of one Member State coincides with a period treated as such under the legislation of another Member State, only the period other than a period treated as such shall be taken into account.”

This clearly only applies to calculations under the process of aggregation and apportionment (see Case 112/76 Manzoni ν FNROM[1977] ECR 1647. It does not apply to the calculation under the first paragraph of Article 46 (1). When the calculation is made under paragraph 46 (2) (a) and (b) it will be necessary for the national court to say whether a period is “treated as such”. It must also decide whether the two periods referred to “coincide”. This does not seem to me to mean merely that the length of the periods is the same: they must be shown to coincide in time. It is not easy to see that the deemed years brought into account by Article 10 (2) of Arrêté Royal No 50 are fixed in time. They are it seems, for the purpose of calculating the “remuneration forfaitaire”, merely deemed to have taken place before 1955. In this Article 10 (2) is to be contrasted with Article 35 of an Arrêté Royal of the 21 December 1967 (Moniteur Belge of 16 January 1968, p. 441) which assimilates to periods of actual employment, periods where a miner has been unemployed or in receipt of an invalidity pension, which are periods definite in time. This, however, is a question for the national court to decide on the basis of the approach which the Court indicates and which in my opinion is as set out above. This question does not in any event, in my view, affect the calculation of the pensions under Belgian legislation in the present cases since (a) the workers claiming a retirement pension have completed the period necessary to obtain a full pension whether the deemed years or the actual years worked abroad are taken into account and (b) the calculation of (as opposed to the entitlement to) Mr Strehl's invalidity pension does not depend on the length of the insurance period. The question may be relevant in calculating the highest theoretical amount elsewhere.

The Ministère de la Prévoyance Sociale suggests that where a retirement pension based on a working life which includes fictitious or deemed periods is drawn at the same time as a foreign benefit the same insurance periods will be counted twice over so that real periods should be substituted for fictitious periods. This would only be a valid point if the periods coincided in point of time in any event which, semble, here they do not. In the calculation under Article 46 overlapping is taken into account by the application of Article 46(3) which this argument appears to ignore. It does not seem to me to affect the conclusion set out above.

One point of detail rises on Mr Dreilich's case. He, it appears, is receiving a German invalidity pension, as opposed to a retirement pension which is of the same kind as the Belgian benefit.

Article 25 of Arrêté Royal No 50 provides that, unless determined otherwise by the King, a retirement pension is only payable, inter alia, if the claimant does not receive an invalidity or a sickness benefit, whether this is under Belgian or foreign social security law. This on the face of it would have the effect of withdrawing Mr Dreilich's right to a Belgian retirement pension although it does not apply where the foreign benefit is a retirement pension. In its written observations the Rijksdienst voor Werknemerspensionen has pointed out that, by way of an administrative concession, foreign invalidity benefits granted to a worker who has reached the age of retirement set by Belgian law are to be considered as retirement benefits. In consequence Article 25 would no longer be applied. In the event that the administrative concession does avoid the application of Article 25, there is no difference between Mr Dreilich's case and that of Mr Celestre, Mr Bohnefeld and Mrs Rydlakowski. If, however, it does not do so Mr Dreilich would apparently only receive a Belgian pension computed in accordance with Article 46. For that purpose Article 12 (2) of Regulation No 1408/71 would remove the effect of Article 25 of the Arrêté Royal. In consequence Mr Dreilich would only be entitled to a pension at the expense of the Belgian institution reduced as appropriate under the provisions of Article 46 (3).

A similar result is achieved in the second Strehl case. At the time of the first Strehl case it was assumed that there was no applicable national anti-overlap rule and, for that reason, Mr Strehl was entitled to a full pension since the result of applying Article 46, and in particular Article 46 (3), would have given him only a reduced benefit, thus bringing the Petroni principle into play. The Arbeidsrechtbank upheld Mr Strehl's claim in the light of the Court's decision. It was only when the Belgian institution appealed to the Arbeidshof that attention seems to have been drawn to Article 23 (1) of the Arrêté Royal of the 19 November 1970 the terms of which are set out above. As a result of this provision, Mr Strehl's entitlement under Belgian law would be reduced by the amount of his German pension. This reduced amount is lower than that calculated by applying Article 46: the reduced Belgian pension seems from the papers to come to BFR 47304 whereas, under Article 46, the reduction made pursuant to Article 46 (3) in order to bring the total benefits received within the limit of the highest theoretical amount results in a figure of BFR 82013. In consequence, the Belgian institution must award the amount due under Article 46.

As a result in my opinion the reference should be answered in the following way:

(i) in the case of a benefit acquired and calculated solely under national law and without the application of the provisions of Regulations Nos 1408/71 and 574/72, no provision of Community law prevents the application of a provision of national law whereby notional periods of insurance or residence are to be deducted where they coincide with periods of actual insurance or residence in another Member State;

(ii) in the case of a benefit calculated under the first paragraph of Article 46 (1) of Regulation No 1408/71 there is no provision of Community law requiring notional periods to be replaced by actual periods completed in another Member State but the amount of the benefit may fall to be reduced by the application of Article 46 (3) ;