Opinion of Mr Advocate General Lenz delivered on 16 September 1997. - Louisette Cordelle v Office national des pensions (ONP). - Reference for a preliminary ruling: Tribunal du travail de Charleroi - Belgium. - Social security - Articles 12(2) and 46a of Regulation (EEC) No 1408/71 - National rules against overlapping - Benefits of the same kind. - Case C-366/96.



European Court reports 1998 Page I-00583



Opinion of the Advocate-General

A - Introduction

1 In the present reference for a preliminary ruling the Tribunal du Travail (Labour Court), Charleroi, has referred to the Court a question on the compatibility with Community law of national rules against overlapping.

2 According to the information provided by the national court and the parties, the dispute at the origin of the proceedings may be summarised as follows: the plaintiff in the main proceedings, Mrs Cordelle, is a citizen of the Union. She receives a survivor's pension paid by the Belgian insurance scheme and three old-age pensions, two of which are paid by the Belgian social security scheme and one by the French social security scheme.

3 Mrs Cordelle receives her survivor's pension on the basis of her late husband's full working career for insurance purposes, completed exclusively in Belgium. The pension is calculated solely according to Belgian law, without Community law being applied. In addition to two Belgian old-age pensions the plaintiff also receives a French old-age pension, calculated on the basis of 27 trimesters of employment, plus 48 trimesters attributed to her for having raised six children. This pension was further increased by 10% on account of the plaintiff's children. In 1989 the Belgian social security authority, the Office National des Pensions (hereinafter `the ONP'), calculated the pension and, applying the Royal Decree of 21 December 1967 (hereinafter `the Royal Decree'), established a maximum amount for the Belgian survivor's pension and the French old-age pension. In 1994, when the ONP became aware of the amount of the French old-age pension, the Belgian survivor's pension was reduced in accordance with the Royal Decree and repayment of the amount of BFR 42 460 already paid was demanded.

4 The plaintiff challenges that decision. She claims that the national rule against overlapping in Article 52 of the Royal Decree is not applicable to her French pension, since the increased amount payable on the ground that she had raised children is a benefit which does not exist under Belgian legislation and, accordingly, cannot be taken into consideration for the purposes of the Belgian rule against overlapping.

5 Article 52 is designed to coordinate insurance against two different risks, relating to different periods, by placing a limit on the overlapping of old-age pensions provided on the basis of periods of insurance completed by the beneficiary and a survivor's pension awarded on the basis of periods of insurance completed by a third party. It ensures that the survivor's pension payable to a worker's surviving partner can overlap with one or more old-age pensions provided under a Belgian or foreign scheme only up to a maximum amount. (1)

6 In the national court's view the question arises whether the French pension is to be regarded in its entirety as an old-age pension and whether in the present case, in the light of the Community rules, Article 52 of the Royal Decree is to be applied.

7 It therefore sought a preliminary ruling by the Court on the following question:

Having regard to the benefits paid in accordance with French law by the Caisse Régionale d'Assurance Maladie Nord Picardie and to the retirement pension payable under Belgian law, is the rule preventing the overlapping of benefits (2) laid down by Article 52 of the Royal Decree of 21 December 1967 applicable in the light of the Community rules?

B - Analysis

8 The ONP takes the view that the preliminary question is inadmissible. As formulated, it does not seek an interpretation of Community law and therefore does not fall within the scope of Article 177 of the EC Treaty, which governs the Court's jurisdiction to give preliminary rulings.

9 According to the consistent case-law of the Court, to which the Commission also refers in this context, in proceedings brought under Article 177 of the EC Treaty the Court has no jurisdiction to apply the rules of Community law to a specific case nor, consequently, to classify provisions of national law with respect to such a rule. It may, however, provide the national court with an interpretation of all relevant provisions of Community law which might be useful in assessing the effects of such provisions of national law. (3) The Court may therefore interpret the Community rules in order to determine whether they preclude the application of national rules against overlapping.

10 In the present case Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, (4) as amended by Council Regulation (EEC) No 2001/83 of 2 June 1983 (5) and by Council Regulation (EEC) No 1248/92 of 30 April 1992, (6) must take precedence. (7)

11 The Commission is the only party to have expressed a view as to which version of the regulation falls to be examined in the present case. That question is relevant, however, since the decision concerning the determination of the old-age and survivor's pensions was taken before Regulation No 1248/92 entered into force on 1 June 1992, and the ONP's demand for repayment concerns the period following its entry into force. At the hearing the Commission came to the conclusion that the calculation of the pensions is subject to the pre-1992 system, that is to say the `old' version of the regulation, since the plaintiff's pensions were established in 1989.

12 The applicability of the `new' version of the regulation is governed by Article 95a, which was inserted by Regulation No 1248/92. Article 95a(1) provides that under Regulation No 1248/92 no right is to be acquired for a period prior to 1 June 1992. Pursuant to Article 95a(4), however, the rights of a person to whom a pension was awarded prior to 1 June 1992 may, on the application of the person concerned, be reviewed, taking into account the provisions of Regulation No 1248/92. The time from which the review takes effect depends on the date on which the application is made and is governed by Article 95a(5) and (6). All pensions were not, therefore, automatically recalculated from 1992.

13 The Court has not been told whether the plaintiff made such an application for her rights to be recalculated. All that is certain is that the overlapping of the pensions was established pursuant to Article 52 of the Royal Decree in 1989 and therefore in accordance with the old version of the regulation. Whether in 1994 the adjustment of the pension as originally calculated (or its recalculation) was effected pursuant to the new version of the regulation depends, inter alia, on whether the plaintiff submitted an application for a review pursuant to Article 95a of Regulation No 1408/71. Since it is therefore uncertain which version of the regulation formed the basis of the contested decision, I consider it appropriate to examine the matter from the viewpoint of both the old and the new versions.

I - The old version of Regulation No 1408/71

14 As I have already observed, neither the ONP nor the Belgian Government addresses the problem of the different versions of Regulation No 1408/71. Both point out that the survivor's pension is based on the husband's period of insurance completed exclusively in Belgium and therefore awarded exclusively in accordance with Belgian law. There is a distinction between the award of a pension and the calculation of the amount which, owing to the limitation of overlapping provided for in Article 52, is eventually paid to the beneficiary. However, that distinction is of no relevance in the present case, where the question is whether the survivor's pension can actually be reduced by virtue of the French old-age pension.

15 The provision most relevant to the question of the applicability of national rules against overlapping is Article 12(2) of Regulation No 1408/71, under which national rules which provide for the reduction or withdrawal of benefits in cases of overlapping with other social security benefits are also to be applicable in the case of benefits acquired under the legislation of another Member State. The contested rule against overlapping is also applicable to the old-age pension acquired under French law. However, the second sentence of Article 12(2) provides for an exception where the beneficiary receives benefits of the same kind, for example in respect of old age. That exception may thus apply in the case of pension rights, but only in relation to the overlapping of benefits of the same kind. Whether or not national rules against overlapping are applicable under Article 12(2) therefore depends on whether or not the benefits in question are of the same kind.

16 In a consistent line of decisions concerning the problem of national rules against overlapping in the context of pensions, the Court has held that `when a migrant worker receives a pension solely by virtue of the legislation of one Member State, the provisions of Regulation No 1408/71 do not preclude that national legislation from being applied to him in its entirety, including the anti-overlapping rules'. (8) It is clear from the same case-law, however, that `if the application solely of the legislation of the Member State in question proves less favourable to the worker than that of the Community rules in Article 46 of Regulation No 1408/71, it is the provisions of the latter article that must be applied in their entirety'. (9)

17 As regards the application of Article 46, it must be borne in mind that national rules against overlapping are not applicable where the person concerned receives benefits of the same kind, for example in respect of old age, as provided for in the second sentence of Article 12(2). (10) That is not the case, however, where the beneficiary receives benefits of a different kind. In that case Regulation No 1408/71 does not preclude the application of national rules against overlapping. (11)

18 That, again according to the Court's case-law, means that the difference between benefits of the same kind and benefits of a different kind is decisive. The Court has consistently held that social security benefits must be regarded as being of the same kind when their purpose and object as well as the basis on which they are calculated and the conditions for granting them are identical. (12) The Court has considered that this requirement is not met in the case of a personal invalidity pension based on the recipient's own employment record in one Member State and a survivor's pension based on the employment record of the recipient's deceased husband in another Member State. (13)

19 The present case is also one which concerns benefits relating to different employment records and different periods of insurance: the personal old-age pension based on the plaintiff's employment record and the survivor's pension based on her late husband's employment record. It follows that the benefits in this case, too, cannot be regarded as benefits of the same kind.

20 Further support for that conclusion may be found in Article 46a of Regulation No 1408/71, which was inserted by Regulation No 1248/92. (14) As the 21st recital in the preamble to the latter regulation states, Article 46a reflects the case-law of the Court of Justice. Article 46a was therefore inserted solely to bring the legislation into line with the previous case-law of the Court of Justice and, accordingly, can also be invoked here. It follows that benefits are of the same kind if they are payable in respect of invalidity, old age and survivors and are calculated on the basis of periods of insurance completed by one and the same person. Since the benefits in the present case were calculated on the basis of periods of insurance completed by different persons, however, they are not benefits of the same kind. It must therefore be concluded that in the present case Regulation No 1408/71 does not prevent the application of a national provision against overlapping such as Article 52 of the Royal Decree.

II - The new version of Regulation No 1408/71

21 At the hearing the Commission submitted that the amendments brought about by Regulation No 1248/92 do not affect the principle of Regulation No 1408/71 but lay down precise limits to the applicability of national rules against overlapping in the context of the calculation of pensions. That premiss will be examined below.

22 Article 12 of the regulation was amended as follows: the second sentence of Article 12(2) was removed and the rule in the first sentence applies `[s]ave as otherwise provided in this Regulation'. Therefore the question whether Regulation No 1408/71 provides for an exception to the applicability of a national rule against overlapping in respect of survivors' and old-age pensions is to be examined in the light of Chapter 3 of the regulation, entitled `Old age and death (pensions)'. Articles 46a, 46b and 46c were inserted into that chapter.

23 In the present case Article 46b can be eliminated at the outset, since it contains `special provisions applicable in the case of overlapping of benefits of the same kind (15) under the legislation of two or more Member States'. Since the present case concerns the overlapping of benefits of different kinds, Article 46b is of no relevance.

24 The same applies to Article 46c, which contains provisions applicable in the case of overlapping of one or more benefits referred to in Article 46a(1) - and therefore benefits of the same kind - with one or more benefits of a different kind.

25 However, Article 46a, which is headed `General provisions relating to reduction, suspension or withdrawal applicable to benefits in respect of invalidity, old age or survivors under the legislation of the Member States', contains rules which may be applicable in the present case. First, under paragraph 3(a), the application of national provisions against overlapping is permitted only where they provide for benefits or income acquired abroad to be taken into account. Since Article 52 of the Royal Decree permits both national pensions and foreign pensions to be taken into account, paragraph 3(a) does not preclude its application.

26 Paragraph 3(d), however, provides that where provisions against overlapping are applicable under the legislation of only one Member State on account of the fact that the person concerned receives benefits of a different kind payable under the legislation of other Member States, the benefit payable under the legislation of the first Member State may be reduced only within the limit of the amount of the benefits payable under the legislation of other Member States. In the present case that means that the survivor's pension awarded under Belgian legislation may be reduced only within the limit of the old-age pension awarded under French legislation. Therefore the rule limits, but does not preclude, the application of national provisions against overlapping.

27 It must be concluded, therefore, that in the case of overlapping of benefits of different kinds national provisions against overlapping such as Article 52 continue to apply under the new version of Regulation No 1408/71, although the reductions provided for therein are subject to a limit.

28 I shall conclude by dealing briefly with the argument put forward by the plaintiff in the main proceedings that the increase in the French pension on account of the fact that she had brought up children is an advantage which does not exist in Belgium and is therefore not covered by Article 52. As the ONP and the Belgian Government rightly maintain, it is for the national court, in applying the provisions against overlapping, to classify the benefits in question in conformity with the applicable national legislation, taking account of the rules relating to the conflict of laws, to the extent that the Community provisions are not relevant. (16) Furthermore, I do not consider that that question is of any relevance to the answer to the question referred to the Court.

C - Conclusion

29 In the light of the foregoing considerations, I propose that the question referred to the Court should be answered as follows:

The provisions of Regulation (EEC) No 1408/71 are to be interpreted as meaning that they do not preclude the application of national provisions against overlapping, such as Article 52 of the Belgian Royal Decree of 21 December 1967, which provide for benefits awarded abroad to be taken into account where a survivor's pension awarded under Belgian legislation is received in conjunction with an old-age pension awarded under French legislation.

However, the effects of the application of such provisions may be limited in accordance with that regulation as amended by Regulation No 1248/92.

Annex

A - The wording of the relevant provisions as amended by Regulation No 2001/83 (OJ 1983 L 230, p. 6) (referred to in the Opinion as the `old version')

Article 12(2) provides:

`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).'

B - The wording of the relevant provisions as amended by Regulation No 1248/92 (OJ 1992 L 136, p. 7) (17) (referred to in the Opinion as the `new version')

Article 12(2) provides:

`Save as otherwise provided in this Regulation, the provisions of the legislation of a Member State governing the reduction, suspension or withdrawal of benefits in the case of overlapping with other social security benefits or any other form of income may be invoked even where such benefits were acquired under the legislation of another Member State or where such income was acquired in the territory of another Member State.'

Article 46a, which was inserted into the regulation at that point, contains general provisions relating to reduction, suspension or withdrawal applicable to benefits in respect of invalidity, old age or survivors under the legislations of the Member States. Paragraphs 1 and 2 of Article 46a provide:

`1. For the purposes of this Chapter, overlapping of benefits of the same kind shall have the following meaning: all overlapping of benefits in respect of invalidity, old age and survivors calculated or provided on the basis of periods of insurance and/or residence completed by one and the same person.

2. For the purposes of this Chapter, overlapping of benefits of different kinds means all overlapping of benefits that cannot be regarded as being of the same kind within the meaning of paragraph 1.'

Article 46b, also incorporated into the regulation at that point, contains special provisions applicable in the case of overlapping of benefits of the same kind under the legislation of two or more Member States.

(1) - According to the information provided by the Belgian Government, the full passage reads as follows: `... une pension de survie (de travailleur salarié) ne peut être cumulée avec une ou plusieurs pensions de retraite ou tout autre avantage en tenant lieu, octroyés en vertu d'une législation belge ou étrangère ou en vertu d'un régime de pension du personnel d'une institution de droit international public, qu'à concurrence d'une somme égale à 110% du montant de la pension de survie accordée au conjoint survivant, multipliée par la fraction inverse de celle, limitée le cas échéant à l'unité, qui a été utilisée pour le calcul de la pension de retraite servant de base au calcul de la pension de survie.'

(2) - In the original French: `la norme prohibitive de cumul'.

(3) - Case 37/86 Van Gastel v Rijksdienst and Rijkskas [1987] ECR 3589, paragraph 8.

(4) - OJ, English Special Edition 1971 (II), p. 416.

(5) - Council Regulation (EEC) No 2001/83 of 2 June 1983 amending and updating Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and also amending and updating Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1983 L 230, p. 6).

(6) - Council Regulation (EEC) No 1248/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1992 L 136, p. 7).

(7) - The relevant provisions of both versions of the Regulation are set out in the annex to this Opinion.

(8) - Case C-31/92 Larsy v INASTI [1993] ECR I-4543, paragraph 11; see also Joined Cases C-90/91 and C-91/91 ONP v Di Crescenzo and Casagrande [1992] ECR I-3851, paragraph 15, Case C-5/91 Di Prinzio v ONP [1992] ECR I-897, paragraph 16, Case 238/81 Raad van Arbeid v Van der Bunt-Craig [1983] ECR 1385, paragraph 15, Joined Cases 116/80, 117/80, 119/80, 120/80 and 121/80 Rijksdienst voor Werknemerspensionen v Celestre [1981] ECR 1737, paragraph 9, and Case 26/78 Institut National d'Assurance Maladie-Invalidité et Union Nationale des Fédérations Mutualistes Neutres v Viola [1978] ECR 1771, paragraphs 16 to 19.

(9) - Larsy, cited in footnote 8, paragraph 12; see also di Crescenzo and Casagrande, cited in footnote 8, paragraph 16; Di Prinzio, cited in footnote 8, paragraph 17; Van der Bunt-Craig, cited in footnote 8, paragraph 15; Celestre, cited in footnote 8, paragraph 9; and Viola, cited in footnote 8, paragraphs 20 to 21.

(10) - Case 197/85 ONPTS v Stefanutti [1987] ECR 3855, paragraph 12.

(11) - On this point, see also my Opinion of 4 May 1995 in Case C-98/94 Schmidt v Rijksdienst voor Pensionen [1995] ECR I-2559, at I-2561, paragraphs 22 and 25.

(12) - Stefanutti, cited in footnote 10, paragraph 12, and Case C-98/94 Schmidt v Rijksdienst voor Pensionen [1995] ECR I-2559, at I-2561, paragraph 24.

(13) - Stefanutti, cited in footnote 10, paragraph 13.

(14) - See annex B to this Opinion.

(15) - Emphasis added.

(16) - Viola, cited in footnote 8, paragraphs 16 to 19.

(17) - Pursuant to Article 4, the regulation entered into force on 1 June 1992.