Opinion of Mr Advocate General Jacobs delivered on 7 February 1990. - Maria Ravida v Office national des pensions. - Reference for a preliminary ruling: Tribunal du travail de Nivelles - Belgium. - Social security - Old-age benefits - Revalorization and recalculation of benefits. - Case C-85/89.



European Court reports 1990 Page I-01063



Opinion of the Advocate-General

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My Lords,

1 . This case arises out of a request for a preliminary ruling on the interpretation of Article 51 of Council Regulation ( EEC ) No 1408/71 as amended ( see Annex I to Council Regulation ( EEC ) No 2001/83, Official Journal 1983, L 230, p . 6 ). That provision concerns the recalculation of social security benefits .

2 . Mrs Ravida, like her husband, worked both in Italy and in Belgium . She became entitled to a retirement pension in Italy as from 1 April 1978 and in Belgium as from 1 April 1980 . In addition, following the death of her husband, she was granted a survivor' s pension both in Italy and in Belgium ( as from 1 April 1980 ).

3 . For the calculation of the Belgian survivor' s pension, account was taken of a Belgian provision against the overlapping of benefits, according to which a survivor' s pension cannot be combined with one or more retirement pensions or any other benefit "en tenant lieu" paid under Belgian or foreign legislation, beyond a certain limit . That limit was exceeded by the four pensions to which Mrs Ravida was entitled, and so her survivor' s pension was reduced by the amount of the excess .

4 . Subsequently, the Italian retirement pension was increased as a result of indexation . When the Belgian social security institution ( the Office national des pensions, hereafter "the Office national ") learnt of this it reduced Mrs Ravida' s survivor' s pension by a corresponding amount as from July 1986 .

5 . Mrs Ravida challenged this decision before the tribunal du travail, Nivelles, contending that Article 51 of Regulation No 1408/71 prevented the Belgian survivor' s pension from being recalculated ( and reduced ) in such circumstances .

6 . The Belgian court referred the following question to the Court of Justice :

"Where the legislation of a Member State provides for a ceiling where retirement and survivor' s pensions overlap ( in the present case Article 52 of the Royal Decree of 21 December 1967 ) and that ceiling has been determined at the date when the pension was first paid taking into consideration also the benefit payable by another Member State, is the competent institution of the first State justified in taking account of adjustments to the benefit granted by the other Member State in order to recalculate and reduce, by implicitly applying Article 51(2 ) of Regulation ( EEC ) No 1408/71, the amount of the pension originally granted, if at any given time the national ceiling is exceeded because of an increase in the benefit paid by the other State?"

7 . Article 51 of Regulation No 1408/71 belongs to Chapter 3 of Title III of that regulation . The provisions of that chapter apply not only to retirement pensions but also to survivors' pensions . That is so because Article 44(1 ), the first article of Chapter 3, provides that :

"The rights to benefits of an employed or self-employed person who has been subject to the legislation of two or more Member States, or of his survivors, shall be determined in accordance with the provisions of this chapter ."

8 . Article 51 provides as follows :

"1.If, by reason of an increase in the cost of living or changes in the level of wages or salaries or other reasons for adjustment, the benefits of the States concerned are altered by a fixed percentage or amount, such percentage or amount must be applied directly to the benefits determined under the provisions of Article 46, without the need for a recalculation in accordance with the provisions of that article .

2.On the other hand, if the method of determining or the rules for calculating benefits should be altered, a recalculation shall be carried out in accordance with the provisions of Article 46 ."

9 . Article 51 has been considered in a number of cases before the Court, in particular Case 7/81 Sinatra v FNROM (( 1982 )) ECR 137, Case 104/83 Cinciuolo v Union nationale des fédérations mutualistes neutres (( 1984 )) ECR 1285 and judgment of 12 July 1989 in Case 141/88 Caisse nationale d' assurance vieillesse v Jordan (( 1989 )) ECR 2387 . The effect of the article, as construed by the Court, is to distinguish between two types of situation : ( a ) those in which the alteration in the benefits is due to events unconnected with the personal circumstances of the insured and to the general evolution of the economic and social situation; ( b ) those in which the alteration takes place either because of a change in the personal circumstances of the insured or because of an amendment to the rules for calculating the benefits . In the former case, Article 51(1 ) precludes a recalculation, whereas in the latter case Article 51(2 ) makes a recalculation mandatory .

10 . As the Office national points out, there can be no question of an "implied application" of Article 51(2 ) in this case, as the terms of the question referred appear to suggest . Mrs Ravida' s Italian retirement pension was not increased because of any change in her personal circumstances or because of an amendment to the rules for calculating it . It was increased on account of the general evolution of the economic and social situation . Hence, if any part of Article 51 applies it is paragraph 1 rather than paragraph 2 . If Article 51(1 ) does apply, the Office national is precluded from recalculating Mrs Ravida' s benefit to take into account the increase in the Italian benefit .

11 . However, the Office national maintains that neither paragraph of Article 51 is applicable . Instead, Article 12(2 ) of Regulation No 1408/71 applies . It provides as follows :

"The provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits or other income may 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 . 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 and 51 or Article 60(1)(b )."

12 . The Office national argues that the benefits at issue in the present case are not of the same kind because one of them ( the survivor' s pension ) was granted in respect of insurance periods completed by the recipient' s spouse, whereas the other ( the retirement pension ) was granted in respect of insurance periods completed by the recipient herself . The Office national cites Case 37/86 Van Gastel, née Coenen v Rijksdienst and Rijkskas (( 1987 )) ECR 3589 and Case 197/85 ONPTS v Stefanutti (( 1987 )) ECR 3855 . In Van Gastel the Court held that a survivor' s pension and an old-age pension are benefits of the same kind "in so far as both pensions are intended to ensure that the surviving spouse who has attained a certain age and to whom the pensions are awarded on the basis of the periods of insurance completed by the deceased spouse has the means of subsistence ". In Stefanutti the Court held that an invalidity pension based on the recipient' s own insurance record and a survivor' s benefit based on her deceased husband' s insurance record cannot be benefits of the same kind, within the meaning of Article 12(2 ) of Regulation No 1408/71, and that national rules against the overlapping of benefits may therefore be applied .

13 . Mrs Ravida and the Commission do not mention those judgments, but cite instead the Cinciuolo case, which I have already mentioned . That case concerned a man who received invalidity pensions in Belgium and in Italy, together with an occupational disease benefit in Italy . The Italian benefits were deducted from the Belgian benefit pursuant to a Belgian rule against overlapping, since that was more favourable to him than the application of Article 46 of Regulation No 1408/71 . The Belgian institution subsequently reduced its benefit following an index-linked increase in the Italian benefits . It was in those circumstances that the Court ruled that :

"Article 51 of Regulation No 1408/71 must be interpreted as applying to benefits such as those in respect of accidents at work or occupational disease which, by virtue of the national rules against the overlapping of benefits, originally affected the amount of the pension fixed pursuant to Article 46 and any subsequent adjustments to which might again affect that pension . It is therefore not necessary to recalculate the pension pursuant to Article 46 if an adjustment is made to such a benefit on account of the general evolution of the economic and social situation ."

14 . In that judgment the Court repeated an observation made in the Sinatra judgment ( cited above ) to the effect that the purpose of Article 51 was to "reduce the administrative burden which a fresh examination of the insured' s situation following every alteration in the benefits received would entail ". It then stated ( in paragraph 13 ) that :

"The same grounds of simplification and stability argue against a recalculation each time a benefit which influenced the original calculation of benefits, by virtue of the national rules against overlapping, is altered as a result of the same general evolution . In fact, the distinction made by Article 51, depending on whether the alteration in benefits is due to the general evolution in the economic situation or to an alteration in the method of determining the benefits or in the rules for calculating them, is just as suitable for application to benefits other than those determined pursuant to Article 46 ."

15 . Three observations may be made . First, the Cinciuolo judgment made no reference to Article 12(2 ) of Regulation No 1408/71, even though the Belgian institution had argued that it was applicable .

16 . Secondly, the only difference between the facts of the Cinciuolo case and the present case is that Mrs Ravida' s retirement pensions are based on insurance periods completed by her and her survivor' s pensions are based on insurance periods completed by her husband, whereas all Mr Cinciuolo' s pensions were based on insurance periods completed by him . That difference is not of course entirely without significance . It is clear from the Stefanutti judgment that a retirement pension based on the recipient' s own insurance record and a survivor' s pension based on the insurance record of the recipient' s deceased spouse are not benefits of the same kind, within the meaning of Article 12(2 ). Therefore, national rules against overlapping could be applied to the original calculation of Mrs Ravida' s pensions and to any subsequent recalculation required by Article 51(2 ). That does not, however, mean that Article 12(2 ) has the effect of ousting the application of Article 51(1 ), which, according to the Sinatra, Cinciuolo and Jordan judgments, precludes a recalculation from being effected when one of the benefits is adjusted on account of the general evolution of the economic and social situation . For the application of Article 51, it makes no difference if one pension is based on the person' s own working career, the other ( the survivor' s ) on that of her husband . Article 51 applies to all benefits calculated in accordance with Article 46 .

17 . Thirdly, in Cinciuolo one of the benefits - namely, the Italian occupational disease benefit the adjustment of which caused the Belgian institution to reduce the claimant' s invalidity benefit - did not in fact fall within the scope of Chapter 3 of Title III of Regulation No 1408/71 ( i.e . the chapter that includes Article 51 ). In the present case all the benefits concerned, that is to say, retirement pensions and survivor' s pensions, fall within the scope of Chapter 3 by virtue of Article 44(1 ), which I have already quoted . If Article 51 applies when one of the benefits concerned lies outside its scope, it must, in my opinion, apply a fortiori when all the benefits concerned clearly lie within its scope .

18 . The Office national maintains that if Article 51(1 ) were applied in the present case, so as to preclude a recalculation and reduction in the amount of the Belgian survivor' s pension, Article 12(2 ) would be emptied of its substance . However, it would, in my opinion, be more accurate to say that if Article 12(2 ) were applied Article 51(1 ) would be emptied of its substance . There is in fact no conflict between Article 12(2 ) and Article 51 . Each has its own sphere of application . Article 12(2 ) permits the application, in certain circumstances, of national rules against overlapping to the original calculation of benefit and to a subsequent recalculation . Article 51 determines the circumstances in which such a recalculation is to be effected .

19 . I am therefore of the opinion that the question referred to the Court by the tribunal du travail, Nivelles, should be answered as follows :

"Where a person is in receipt of a survivor' s pension in one Member State and a retirement pension in another Member State, calculated in accordance with Article 46 of Regulation No 1408/71, Article 51(1 ) of that regulation precludes the institution of one Member State from recalculating and reducing the survivor' s pension, if an adjustment is made to the retirement pension in the other Member State on account of the general evolution of the economic and social situation; for this purpose, it makes no difference whether the pensions are based on the same person' s working career ."

(*) Original language : English .