1.

By a judgment of 5 December 1983 the cour du travail [Labour Court], Mons, has for the second time requested a preliminary ruling from this Court in the dispute between Mr Antonino Sinatra and the Fonds national de retraite des ouvriers mineurs [Mine-Workers' National Pension Fund]. Mr Sinatra, an Italian national and the appellant in the main proceedings, worked from 1948 to 1956 as an employed person in Italy and then from 1957 to 1970 as an underground mineworker in Belgium. Those activities have entitled him to the following benefits: (i) In Italy, since 1 December 1970, an invalidity pension under the general insurance scheme, apportioned pursuant to Article 46 of Regulation No 1408/71 on the application of social security schemes to employed persons, to selfemployed persons and to members of their families moving within the Community (hereinafter referred to as ‘the regulation’) ; (ii) In Belgium, since 1 April 1971, an underground mineworker's invalidity pension at the ‘married rate’, pursuant to the Belgian Royal Decree of 19 November 1970 (Articles 1 to 4); it is a flat-rate pension whose amount is unrelated to the exact length of the insurance periods completed but which may be awarded only after a minimum of five or 10 years of insurance. A pension for occupational disease contracted in Belgium was deducted from it with effect from 10 May 1971. On the first occasion on which the cour du travail, Mons, requested this Court to give a preliminary ruling, on 7 January 1981 (Case 7/81 Sinatra v FNROM, judgment of 2 February 1982 [1982] ECR 137), the question which arose was, in essence, whether in view of Article 51 of the regulation a change in Mr Sinatra's personal circumstances which occurred in 1976 — his wife had found gainful employment and the‘household rate’ of the Belgian invalidity pension was reduced to the ‘single rate’ — entitled the Fonds national de retraite des ouvriers mineurs [hereinafter referred to as ‘the Fund’] to use the opportunity, as it did, to conduct a thorough review of the appellant's file. Citing all the Community regulations on the matter, the respondent in the main proceedings had reduced the Belgian benefit by the amount of the Italian pension for the period from 1 April 1971 to 1 July 1975, calling upon the appellant in the main proceedings to refund an ‘overpayment’ of BFR 38000; it also recalculated the Belgian benefit in accordance with the provisions of Article 46 of the regulation with effect from 1 January 1975 taking into account various amendments, including the withdrawal of the married person's supplement with effect from 1 January 1976. In its judgment of 2 February 1982 the Court ruled: ‘A recalculation in accordance with the provisions of Article 46 of Regulation No 1408/71 is necessary in respect of any alteration in benefits paid by a Member State’, subject to exceptions which do not include changes in the personal circumstances of the insured. The Fund was therefore entitled to carry out a revision of the benefit for which it was responsible, and this was what the national court held on 2 November 1983, whilst calling upon the parties to present argument on other issues relating to the compatibility of the applicable Belgian law (namely Article 23 (1) of a Royal Decree of 19 November 1970) with Community law, and in particular Articles 45, 46 and 12 of the regulation. The question was whether, and to what extent, the Italian pension could be deducted from the Belgian pension. The parties to the main proceedings are in disagreement on that point. Article 23 (1) of the aforesaid Royal Decree establishes a rule against overlapping benefits which the national court describes as an ‘external’ rule, that is to say, equally applicable to benefits obtained abroad. Before it was amended by a further Royal Decree of 3 August 1983, Article 23 (1) was worded as follows: ‘An invalidity pension granted under this decree may be aggregated with one or more retirement or invalidity pensions only up to the annual amount of the pension as laid down by Article 4 (1), (2) or (4), according to whether the worker is married, single, widowed, divorced or separated.’ The amendment of 3 August 1983 prohibited the overlapping of the invalidity pension with one or more retirement or invalidity pensions ‘granted pursuant to Belgian or foreign legislation’. At paragraph 8 of its judgment of 2 February 1982 (cited above) the Court, reiterating the principles laid down in its previous decisions, held as follows: ‘The right... conferred upon the migrant worker to benefit from the most favourable social security system implies in principle that, wherever there is an alteration in the benefits granted under that system, a fresh comparison between the national system and the system of aggregation and apportionment is to be carried out in accordance with Article 46 of Regulation No 1408/71, in order to determine which system is the most advantageous following the alteration.’ However, the two parties to the main proceedings agreed that the insurance periods in Belgium (14 years as a mineworker) and in Italy (three years under a general scheme) were not capable of aggregation within the strict meaning of Article 45 (2) of the regulation in so far as they arise under different schemes. Article 45 (2) provides as follows: ‘Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed in an occupation subject to a special scheme for employed persons or, where appropriate, in a specific employment, periods completed under the legislations of other Member States shall be taken into account for the granting of such benefits only if completed under a corresponding scheme or, failing this, in the same occupation...’. Nonetheless, the appellant in the main proceedings, referring to paragraph 8 of the Court's judgment of 2 February 1982, asserted before the cour du travail, Mons, that the above rule had no meaning unless there was aggregation and apportionment in accordance with Article 46; the Fund, on the other hand, citing the Court's judgments in Cases 22/77 (judgment of 13 October 1977, Mura v FNROM [1977] ECR 1699) and 37/77 (judgment of the same date, Greco v FNROM [1977] ECR 1711), contended that aggregation in accordance with that case-law was impossible by virtue of Article 45 (2) of the regulation; consequently, the Belgian rule against overlapping benefits applies in its entirety. In its judgment the cour du travail, Mons, stated that: ‘... it is necessary to determine whether the competent Belgian institution, since it need not have recourse to aggregation and apportionment in order to found entitlement to invalidity retirement pensions for mineworkers, must make a comparison, in accordance with Article 46 of Regulation No 1408/71, between the Community system under Article 46 (1) to (3), and the national system, including the provision against overlapping, in order to ascertain which is the more favourable for the migrant worker’. It formulated its question in the following terms : ‘Where the legislation of a Member State of the Community makes payment of invalidity benefit under a special scheme for mineworkers conditional upon the completion of a specified minimum period of insurance, although the amount of such benefit is not determined by the total length of the periods of insurance (there being no recourse to aggregation), and contains a rule against overlapping with benefits acquired under foreign legislation, must Regulation No 1408/71, particularly Articles 12, 45 and 46, be interpreted as meaning that the competent institution of that Member State must, in the case of a worker who is covered by that legislation but also receives an apportioned pension by virtue of a general scheme provided for by the legislation of another Member State, compare the Community benefit, obtained on the basis of Article 46 (1) without application of the national rules against overlapping and of Article 46 (3), which fixes as a ceiling the highest theoretical amount of pension, with the benefit obtained exclusively by application of the national legislation, including the rule against overlapping with benefits acquired under foreign legislation, in order to discover which system is more favourable to the migrant worker (yielding the higher pension)?’