Opinion of Mr Advocate General Darmon delivered on 8 March 1988. - Cornelis G. Bakker v Rijksdienst voor Werknemerspensionen. - Reference for a preliminary ruling: Arbeidsrechtbank Antwerpen - Belgium. - Social security - Overlapping benefits. - Case 151/87.



European Court reports 1988 Page 02009



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Arbeidsrechtbank, Antwerp, has submitted to the Court for a preliminary ruling questions on the interpretation of Article 12 ( 2 ) of Council Regulation ( EEC ) No 1408/71 . ( 1 ) The background to the reference is as follows .

2 . Mr Cornelis Bakker, a Netherlands national, who worked as an employed person, mainly in the Netherlands but also for a few years in Belgium, applied for and obtained two old-age pensions . Those pensions were obtained, it must be stressed, solely upon the application of the national rules of each of those two Member States .

3 . In the Netherlands, Mr Bakker obtained, as from 1 May 1984, a married man' s pension calculated on the basis of 100% of the net minimum wage pursuant to the provisions of the Algemene Ouderdomswet ( the General Law on Old-Age Insurance ) in force at that time . An important feature of that pension was that it not only represented the pension rights of Mr Bakker himself but also included the pension rights of his wife who had never had a gainful occupation . Effectively then, the Netherlands legislation provided at that time for the payment to the husband alone of a pension which included the pension rights of both spouses .

4 . Afterwards, the Belgian Rijksdienst voor Werknemerspensioenen granted Mr Bakker an old-age pension calculated on the basis of the household rate, that is to say 75% of his previous pay, pursuant to the rules of Belgian legislation . The household rate was applied to Mr Bakker by reason of his status as a married man whose wife did not receive a retirement pension or other benefit equivalent thereto . Mr Bakker, who had worked for about three years in Belgium, received 3/45ths of the household rate indicated above .

5 . Mr Bakker' s difficulties began when the Netherlands legislation on old-age pensions was amended following Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security . ( 2 ) The Netherlands authorities considered that the principle set out in the directive should be implemented in the Netherlands by the replacement of the system in which the husband alone received a pension representing the rights of both spouses by a new system in which each spouse received his and her own retirement pension . Consequently, by virtue of the new provisions of the Algemene Ouderdomswet, which came into force as from 1 April 1985, each spouse was entitled from the age of 65 to be paid a pension equal to 50% of the net minimum wage . The new legislation cut the cake in two, as it were . That legislation also provided that a married person who fulfilled the conditions for receipt of a retirement pension but whose spouse had not yet reached the age of 65 was to receive a pension supplement equivalent to 50% of the net minimum wage . The purpose of the latter provision was clearly to provide for a transition between the old and the new system and to prevent a household from abruptly losing half of the income acquired under the legislation on retirement pensions .

6 . Pursuant to the new legislation, the Sociale Verzekeringsbank ( the Netherlands Social Insurance Bank ) altered the pension paid to Mr Bakker . Since Mrs Bakker was not yet 65 years old, the Social Verzekeringsbank awarded him, as from 1 April 1985, his own pension equivalent to 50% of the net minimum wage plus a pension supplement . Later, when Mrs Bakker reached the age of 65, the Sociale Verzekeringsbank continued to pay to Mr Bakker, as from 1 September 1985, his pension equal to 50% of the net minimum wage, but without a pension supplement, since from that date Mrs Bakker was entitled to her own pension equal to 50% of the net minimum wage .

7 . The fact that Mrs Bakker had been awarded a retirement pension under the Algemene Ouderdomswet led the Belgian Rijksdienst voor Werknemerspensioenen to take the view that Mr Bakker no longer fulfilled the conditions necessary to have his Belgian pension calculated on the basis of the household rate, since his spouse was in receipt of a retirement pension . Therefore, on 26 March 1986, the Rijksdienst voor Werknemerspensioenen decided to award Mr Bakker, as from 1 September 1985, a pension calculated on the basis of the single person' s rate, that is to say 60% of the pay previously received . Mr Bakker appealed against that decision to the Arbeidsrechtbank, Antwerp, which, by judgment of 8 March 1987, made a reference to this Court for a preliminary ruling .

8 . The first sentence of Article 12 ( 2 ) of Regulation No 1408/71, which is central to the questions referred to this Court, sets out a general principle and the second sentence sets out derogations from that principle . The general principle consists in allowing provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefits in cases of overlapping with other social security benefits or other income to be invoked even though the right to such benefits was acquired under the legislation of another Member State or such income arises in the territory of another Member State . That principle is departed from where 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 and 51 or of Article 61 ( b ).

9 . In essence, the Arbeidsrechtbank, Antwerp, asks the Court whether Article 10 ( 1 ) of Belgian Royal Decree No 50 of 24 October 1967, as amended, which provides for two rates of retirement pension according to whether or not the retired person' s spouse receives a retirement pension, a survivor' s pension or other benefit deemed to be equivalent thereto, constitutes a provision for reduction within the meaning of the general principle set out in the first sentence and, if so, whether it falls within the derogations provided for in the second sentence .

10 . In the form in which they were submitted by the national court, those questions may lead this Court to give an ostensibly straightforward reply . It appears to follow from the wording of Article 12 ( 2 ) itself that the general principle that provisions for reduction of benefit are applicable in cases of overlapping and the derogations from that principle only relate to cases of overlapping benefits where they are received by the same person .

11 . All of the observations submitted to the Court during the written procedure agree on this point . One need only refer to the use of the expressions "le bénéficiaire" in the first sentence ( the expression is omitted in the English version ) and "the person concerned" in the second to conclude that such an interpretation is correct .

12 . However, the provision at issue in the Belgian royal decree establishes a means for reducing a retirement benefit paid to a person when his or her spouse is in receipt of a retirement or survivor' s pension . This case does not therefore concern a reduction by reason of the overlapping of benefits received by the same person . Consequently, from a strict reading of the questions submitted by the national court one could immediately conclude that the first question should be answered in the negative and there would then be no need to answer the two parts of the second question .

13 . However, that approach would not, in my view, be in accordance with the spirit of the case-law of the Court, which has always been anxious to give a useful reply to the national court making the reference, nor would it do justice to the real difficulties evinced by the case which prompted the national court to make the reference .

14 . In my view, the Arbeidsrechtbank, Antwerp, is inquiring generally whether the fact that Mr Bakker' s Belgian pension is reduced because of the award of an old-age pension to his wife in the Netherlands is contrary to a rule of Community law . It thought that it had identified Article 12 ( 2 ) of Regulation No 1408/71 as being such a possible bar in Community law, whereas that provision concerns situations different from that in point . Consequently, I consider that it is within the spirit of the preliminary ruling procedure to examine the question whether other Community rules or principles are relevant here, as the Netherlands Government indicated in its observations .

15 . If one looks at the situation which led the national court to make a reference to the Court, one indeed sees certain difficulties and paradoxes which arguably might pose problems with regard to principles of Community law .

16 . It may be observed first of all that the question of the economic position of the elderly spouse who has not worked and who consequently has not contributed to an old-age insurance scheme is treated differently in the social security legislation of the Member States .

17 . In their legislation some States have opted for a "classic" solution to this question consisting in supplementing the old-age pension of the previously working spouse on the ground that he has to support the other spouse . This is the case, for example, with the Belgian legislation, in particular Article 10 ( 1 ) of the Royal Decree of 24 October 1967, the provision at the centre of the preliminary questions submitted to this Court, which draws a distinction between a "single person' s pension" and a "household pension", and also with the French legislation, which, in Article L 351-13 of the code de la sécurité sociale, lays down the principle that an old-age pension is to be increased for a "dependent spouse ". In this type of legislation it may be noted that a dependent spouse provides entitlement to an increase in the pension of the other spouse but does not receive his or her own pension .

18 . The present Netherlands legislation adopts solutions which are substantially different . Before 1 April 1985 the scheme of the Algemene Ouderdomswet was in some respect comparable to the classic system in which a supplementary pension is granted for a dependent spouse, since the husband was paid a higher pension than that which he would have received as a single person . However, the original feature of the Netherlands system was that a married woman who was not in paid employment was regarded as acquiring her own rights to an old-age pension but those rights were actually brought to fruition by the payment to the husband alone of a pension which was higher than that for a single person .

19 . After the adoption of Council Directive 79/7, the Netherlands implemented the principle of equal treatment for men and women by pursuing the logic of its legislation . In the new provisions of the Algemene Ouderdomswet it was provided that the acquisition of pension rights by the non-working spouse was to lead to the payment of that person of his or her own pension and not to an increase in the other spouse' s pension .

20 . These differences in the way in which national legislation treats the situation of the non-working spouse do not seem to be inconsequential with regard to provisons such as Article 10 ( 1 ) of the Belgian Royal Decree of 24 October 1967 . If a non-working spouse of a person who worked both in the Netherlands and in Belgium receives an old-age pension under the Netherlands social security legislation, the consequence of this is that under the Belgian social security legislation the person concerned receives an old-age pension for a single person and not a household pension . On the other hand, if a person worked, for example, in France and Belgium, the fact that the French social security legislation took into account the situation of the non-working spouse by providing a supplement for a "dependent spouse" to the employed person' s old-age pension does not, apparently, prevent that employed person from receiving the Belgian old-age pension at the household rate .

21 . I am perplexed by the possibility of such a difference in treatment, particularly if one bears in mind that the award under Netherlands legislation to the non-working spouse of an old-age pension of his or her own appears to be the result of the implementation of a Community directive .

22 . Let us take the case of a household in which the working spouse has worked in the Netherlands and Belgium and the case of a different household in which the working spouse has worked in France and Belgium . Let us suppose that the total amount of the two Netherlands old-age pensions paid to the spouses in the first household is equal to the amount of the French old-age pension, increased on account of a dependent spouse, paid to the working spouse in the second household . How will Belgian law treat those two households? In the first household, the working spouse will receive a Belgian old-age pension for a single person . In the second, he will receive the household pension . In total, the combined pensions in the first household will be lower than in the second household because Belgian law is applied differently in the two cases .

23 . Does not such a result raise questions as to its compatibility with Community law?

24 . In its written observations the Commission argued that the unfavourable consequences suffered by Mr and Mrs Bakker flow not from the application of the Belgian rules at issue but from the Netherlands legislation concerning old-age pensions as in force before 1 April 1985 .

25 . That argument is not entirely convincing . In a sense it amounts to saying that if, like the classic systems in which a supplement is awarded for a dependent spouse, the "old" Algemene Ouderdomswet had merely provided a higher pension for the working spouse without basing the increase on pension rights acquired by the non-working spouse, the implementation of Community Directive 79/7 would not have necessitated the adoption of new provisions in the Netherlands whereby the pension rights acquired by the non-working spouse are converted into his or her own pension . To accept this reasoning would mean implicitly recognizing the system of having a supplement for a dependent spouse as a sort of Community "standard model" and the Netherlands system, in which the non-working spouse receives his or her own pension as a rarity whose disadvantages must be accepted . However, with regard to a Community principle such as that of equal treatment between men and women in matters of social security, which is implemented by Council Directive 79/7, it is hard to see why legislation awarding a pension of his or her own to the non-working spouse should a priori be inferior to legislation which awards the working spouse alone an increase in his or her pension by reason of the fact that the other spouse is dependent, nor why it should be regarded as superfluous .

26 . The proceedings in which the Arbeidsrechtbank, Antwerp, has made the reference do therefore reveal a serious difficulty with regard to Community law which deserves examination . Is the Court in a position, in this reference for a preliminary ruling, to make that examination and to resolve the difficulty?

27 . During the written procedure, only the Netherlands Government extended the discussion outside the confines of Article 12 ( 2 ) of Regulation No 1408/71, which, as we have seen, is irrelevant to the real problem . In brief, it submitted that the application of the Belgian provision at issue had effects incompatible with the free movement of workers within the Community and that that provision was also contrary to the abovementioned Directive 79/7, inasmuch as Article 4 ( 1 ) of that directive requires national legislation to provide that contributions and benefits are calculated independently of the family status of the recipient .

28 . It was therefore only in their brief oral observations that the Belgian Rijksdienst voor Werknemerspensioenen and the Commission touched on those points . I do not think that the arguments put forward at the hearing with regard to those points could have assisted the Court .

29 . As regards the question of taking family status into account in the calculation of benefits, the Commission pointed out that, according to the judgment of the Court in the Teuling case, ( 3 ) a supplement for a dependent spouse, for which statistically more married men qualify than married women, is contrary to Article 4 ( 1 ) of Directive 79/7/EEC unless the grant of the supplement can be justified by objective reasons, but that a supplement expressed as a percentage of gross income and not, as in the Teuling case, as a percentage of a uniform minimum wage does not constitute an objective justification . The conclusion that this problem of equal treatment is important but is not submitted to the Court at this time does not therefore seem to me very convincing, nor does it go to the heart of the matter . The Arbeidsrechtbank, Antwerp, has clearly asked the Court a question concerning the conformity with Community law of a national provision which draws a distinction between a single person' s pension and a household pension whereby the latter is calculated on the basis of a higher earned income than the other .

30 . Furthermore, the assertion that the application of the Belgian provision in question would affect the free movement of workers within the Community has not been discussed at all in the context of the difference in treatment of the old-age benefit paid to the non-working spouse on the one hand and the supplement paid to the working spouse on account of a dependent spouse on the other .

31 . The wording of the questions submitted by the national court, which relate exclusively to the precise wording of a provision of Community law that bears no relation to the problem with which that Court is faced, has therefore prevented a full airing of the arguments relating to the compatibility with Community law of a national provision which, from the payment of social security benefits which take into account the position of a non-working spouse, draws different inferences according to whether those benefits take the form of a supplement to the working spouse' s pension or of a personal pension paid to the non-working spouse .

32 . In particular, the wording of the questions prevented the Court from ascertaining the consequences of the conditions under which the non-working spouse is liable to pay old-age pension contributions pursuant to the new provisions of the Algemene Ouderdomswet . It seems to be important to be able to assess whether those conditions show that pensions such as those governed by the Algemene Ouderdomswet exhibit such specific characteristics that it is justified to treat them differently from supplements for a dependent spouse .

33 . Consequently, I would suggest that the Court should reply to the questions of the national court in a way which will allow that court, if it considers it necessary, to make a new reference to the Court but with a question concerning the problem which is actually raised . In my view, the Court' s reply cannot be along the lines suggested by the Commission . Since Article 12 ( 2 ) of Regulation No 1408/71 plainly does not relate to the situation referred to in Article 10 ( 1 ) of the Belgian Royal Decree of 24 October 1967, it would in any event be inappropriate to rule that a provision like the Belgian provision is compatible or incompatible with that article . Furthermore, it would be quite premature to test such a provision against other provisions of Community law .

34 . Consequently, I would propose that the Court should rule as follows :

"A national provision under which a retirement pension is calculated on the basis of the rate for a single person, which is lower than the household rate, if the spouse of the retired person is in receipt of a retirement or survivor' s pension or other benefit equivalent thereto, is not covered by Article 12 ( 2 ) of Regulation No 1408/71 of 14 June 1971; both the first sentence and the second sentence thereof relate exclusively to provisions which a Member State lays down for reduction, suspension or withdrawal of benefit in the case of the overlapping of different benefits paid to the same person ".

(*) Translated from the French .

( 1 ) Official Journal, English Special Edition, 1971 ( II ) p . 416 .

( 2 ) Official Journal 1979 L 6, p . 24 .

( 3 ) Case 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie (( 1987 )) ECR 2497 .