OPINION OF MR ADVOCATE GENERAL WARNER

DELPVERED ON 4 APRIL 1979

My Lords,

This case comes to the Court, for the second time, by way of a reference for a preliminary ruling by the Cour du Travail of Mons. On the first occasion it bore number 22/77 and the Judgment of the Court was delivered on 13 October 1977. It is reported at [1977] ECR 1699.

The facts, Your Lordships will remember, are these.

Signor Mura, who was born on 28 October 1937, worked as a miner in France for some four years, from 1957 to 1962, and in Belgium for eleven years, from 1962 to 1973. He then became incapacitated.

The Belgian legislation in point is that concerning invalidity benefits for mineworkers, which is administered by the Fonds National de Retraite des Ouvriers Mineurs (the ‘FNROM’). It is mainly contained in an Arrêteé Royal of 19 November 1977 (Moniteur Beige 26. 11. 1970).

By virtue of Article 1 of that Arrêteé Royal a mineworker is entitled to an invalidity pension if, having been employed for at least ten years as such, he becomes incapacitated from normal work. By Article 4 the amount of the pension is fixed at an annual sum expressed in Belgian francs which varies only according to whether the worker concerned is an underground worker or a surface worker and according to whether he is married or not. It does not vary according to the length of insurance periods. Article 23 contains a number of provisions about the overlapping of benefits. In particular paragraph 1 of that Article provides that an invalidity pension granted under the Arrêté Royal may be cumulated with one or more other retirement or invalidity pensions only up to the annual amount fixed by Article 4 for underground workers, married or unmarried as the case may be. That provision is interpreted by the Belgian courts as applying in relation to all other retirement or invalidity pensions, whether payable under Belgian legislation or under any foreign legislation. Article 23 (4) contains provisions limiting the extent to which invalidity pensions payable under the Arrete Royal may be cumulated with benefits in respect of occupational accidents or diseases.

Pursuant to the Arrêté Royal the FNROM awarded Signor Mura a full invalidity pension as From 1 November 1973. Signor Mura did not have to invoke Community law in order to render himself entitled to that pension.

Signor Mura was also awarded, as from the same date, a French invalidity pension based on his period of insurance in France. To this he was entitled as the result of aggregation and apportionment under Articles 45 and 46 (2) of Council Regulation (EEC) No 1408/71.

Upon hearing of the award to Signor Mura of his French pension, the FNROM reduced his Belgian pension in accordance with Article 46 (3) of that Regulation. The figures were complicated by the fact that Signor Mura was also entitled to benefit in Belgium in respect of occupational disease, in relation to which Article 23 (4) of the Arrêté Royal applied. At all, events, the formal Decision of the FNROM, which was dated 24 March 1975, stated that he was liable to refund a sum of BF 10181 representing past overpayments to him of pension.

Against that Decision Signor Mura appealed to the Tribunal du Travail of Mons, which, on the authority of the decision of this Court in Case 24/75 Petroni v ONPTS [1975] ECR 1149, annulled the Decision and declared that he was entitled to his Belgian pension without reduction.

The FNROM thereupon appealed to the Cour du Travail of Mons. That Court referred to this Court the question whether Article 12 of Regulation No 1408/71 precluded the application, in such circumstances, of a national rule against duplication of benefits.

This Court's ruling was expressed in these terms:

‘So long as a worker is receiving a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not prevent the national legislation, including the national rules against the overlapping of benefits, from being applied to him in its entirety, provided that if the application of such national legislation proves less favourable than the application of the rules regarding aggregation and apportionment those rules must, by virtue of Article 46 (1) of Regulation No 1408/71, be applied.’

(See [1977] ECR at p. 1709).

A ruling in the same termswas given in Case 37/77 Greco v FNROM [1977] ECR 1711, in which the Court delivered Judgment on the same day.

It is not clear why in those rulings the Court referred to ‘the rules regarding aggregation and apportionment’. The true principle, in my opinion, is that stated in the Court's rulings in Case 98/77 the first Schaap case [1978] ECR 707 and in Case 105/77 the Boerboom case, ibid. p. 717. Those rulings were in these terms:

‘So long as a worker is receiving a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not prevent the national legislation, including the national rules against the overlapping of benefits, from being applied to him in its entirety, provided that if the application of such national legislation proves less favourable than the application of the rules laid down by Article 46 of Regulation No 1408/71 the provisions of that article must be applied.’

(See [1978] ECR at pp. 715 and 723).

The reasoning in the Judgments in the Schaap and Boerboom cases, considered in the light of the facts of those cases, shows, I think, that the reference in those rulings to ‘the rules laid down by Article 46’ is a reference to that Article as a whole and to all provisions ancillary thereto. Such ancillary provisions include the second sentence of Article 12 (2) of Regulation No 1408/71 which precludes the application of national anti-duplication provisions where invalidity benefits are awarded under Article 46. Where they are so awarded, the only anti-duplication provision that can apply is paragraph 3 of Article 46 itself — for the rule in the Petroni case does not exclude the application of that paragraph where a pension is awarded, not under national law alone, but under Article 46.

The Commission concludes and, as it seems to me, rightly that, in the Schaap and Boerboom cases, the Court held in favour of the view that I had put forward in my Opinion in those cases that, in circumstances such as those with which we are here concerned, the person in question is entitled in each Member State to whichever is the greater of, on the one hand, the pension that he can claim under the legislation of that Member State alone, in its entirety, including any anti-duplication provision that it may contain, and, on the other hand, the pension that he can claim under the provisions of Regulation No 1408/71 in their entirety. As the Commission points out, this means that, consistently with the rule in the Petroni case, if the legislation of a Member State confers on that person the right to a greater pension than he could claim in that State under Article 46, he retains that right, but that the provisions of national legislation cannot operate to reduce his total entitlement below that intended by the authors of Regulation No 1408/71, i.e. below ‘the highest theoretical amount of benefit’. The Commission submits, and again it seems to me rightly, that the Court should adhere to that view.

Paragraphs 1 and 2 of Article 46 deal between them with three different situations:

(1) The situation in which the person concerned is entitled to a pension in a particular Member State without recourse to aggregation and apportionment, and where the application to his case of the process of aggregation and apportionment would yield him a lesser or no different a pension;

(2) The situation in which that person is entitled to a pension in that State without recourse to aggregation and apportionment, but where the application to his case of that process yields him a greater pension; and

(3) The situation in which that person is entitled to a pension in that State only through the process of aggregation and apportionment.

Paragraph 1 of Article 46 relates to a person in the first or the second situation. It provides in effect that such a person is prima facie entitled to whichever is the higher of the pension ascertained by reference to the legislation of the Member State concerned alone (sometimes conveniently referred to as ‘the autonomous amount’ of benefit) or the pension ascertained by applying the process of aggregation and apportionment (sometimes referred to as ‘the apportioned amount’ of benefit). I say ‘prima facie’, because of the existence of Article 46 (3).

Paragraph 2 of Article 46 deals with the case of a person in the third situation I have described.

I can see no possible reason for holding that a person who is in the first of those situations in a particular Member State is to have his prima facie rights under Article 46 cut down by the application to him of the process of aggregation and apportionment simply because the legislation of that State happens to contain an anti-duplication provision. By virtue of the second sentence of Article 12 (2), the existence of a national anti-duplication provision has no bearing on the computations to be made under Article 46.

Signor Mura, whilst being, in France, in the third of the three situations that I have described, is, in Belgium, in the first of them. That must be so, since he is prima facie entitled in Belgium, by virtue of Belgian law alone, to a full pension, the amount of which does not depend on length of service or of insurance periods, albeit that entitlement to it is subject to a ten year qualifying period — which he served. The application in his case of the process of aggregation and apportionment could not increase his entitlement in Belgium, but only reduce it, or, at best, leave it unaffected. Thus, in my opinion, there is no room for the application of that process in. his case in Belgium.

Any detailed question as to the mode of application of that process must therefore be irrelevant.

When, however, after this Court had ruled on the first reference from the Cour du Travail of Mons, this case went back to that Court for further consideration, such a question was raised because of an argument put forward on behalf of Signor Mura. Assuming the process of aggregation and apportionment to be applicable, its result, at first sight, appeared to be a reduction in his prima facie entitlement to 11/15ths of the full amount of pension, since he had worked four years in France and eleven in Belgium. The argument put forward on his behalf, in an endeavour to escape from that result, rested on paragraph 2 (c) of Article 46, which is in the following terms:

‘if the total length of the insurance periods completed under the legislations of all the Member States concerned before the materialization of the risk is longer than the maximum period required by the legislation of one of these States for receipt of full benefit, the competent institution of that State shall, when applying the provisions of this paragraph, take into consideration this maximum period instead of the total length of the periods completed; this method of calculation must not result in the imposition on that institution of the costs of a benefit greater than the full benefit provided for by the legislation which it administers.’

The argument put forward on behalf of Signor Mura was that, since the period required by the relevant Belgian legislation for receipt of full benefit was ten years, the first pan of paragraph 2 (c) required 10 to be substituted for 15 as the denominator of the fraction, whilst the second part required 10 to be substituted for 11 as the nominator. Thus Signor Mura remained entitled, at all events prima facie, to the full amount of pension.

To counter that argument the FNROM submitted that paragraph 2 (c) was applicable only in a case falling exclusively within paragraph 2, i.e. in a case where resort to aggregation and apportionment was necessary to give the person concerned any right to a pension at all. The FNROM pointed, in support of that submission, to the terms of paragraph 1 of Article 46, which refer only to ‘the rules laid down in paragraph 2 (a) and (b)’.

Confronted with those arguments, the Cour du Travail made the present reference, by which it seeks this Court's ruling on the question whether paragraph 1 of Article 46 excludes the application of paragraph 2 (c). The Cour du Travail observes, in its Order for Reference, that the question arises all the more because of the wording of the Court's Judgment in the Schaap case.

On the narrow question thus referred to the Court, I agree once again with the Commission. Paragraph 1 of Article 46 does not exclude the application, in a case falling thereunder, of paragraph 2 (c). The latter subparagraph is but ancillary to paragraphs 2 (a) and (b) and does not need to be expressly mentioned wherever and whenever they are referred to. It would moreover be most illogical and unfair if a person could claim the benefit of paragraph 2 (c) if unable to establish any right to pension in a Member State without resort to aggregation and apportionment, but precluded from doing so if entitled to some pension there without resort to that process.

The Cour du Travail does not ask this Court to rule on the question whether, if paragraph 2 (c) can apply in a case within paragraph 1, the Belgian legislation here in point is of a kind to which paragraph 2 (c) relates. Both the FNROM and the Commission submit that it is not, because the ten year period prescribed by that legislation is a that point, however, there is no need to minimum one, not a maximum one. On express a concluded view in this case.

In the result, I am of the opinion that Your Lordships should answer the question put by the Cour du Travail as follows:

The terms of paragraph 1 of Article 46 of Regulation No 1408/71 are not to be interpreted as excluding the possible application, in a case within that paragraph, of paragraph 2 (c) of the same Article. However, in accordance with Article 46 (1), the process of aggregation and apportionment, in which paragraph 2 (c) plays an ancillary part, should not be applied so as to reduce the amount of benefit to which a person is prima facie entitled under the legislation of the Member State concerned.