Opinion of Mr Advocate General Fennelly delivered on 17 September 1998. - Rijksdienst voor Pensioenen v Gerdina Lustig. - Reference for a preliminary ruling: Hof van Cassatie - Belgium. - Regulation (EEC) No 1408/71 - Old-age benefits - Articles 45 and 49 - Calculation of benefits where the person concerned does not simultaneously fulfil the conditions laid down by all the legislations under which periods of insurance or residence were completed. - Case C-244/97.



European Court reports 1998 Page I-08701



Opinion of the Advocate-General

1 This social security case raises two particular issues. Firstly, it concerns the effect on a pensioner's right to a graduated minimum rate of pension in one Member State, which is subject to a national requirement of a `complete career' in that Member State, of periods of employment spent in another Member State. Secondly, it raises an issue of interpretation of a remedial amendment of the Community social security rules with limited retrospective effect.

I - Factual and legal context of the main proceedings

2 Retirement pensions are normally awarded under Belgian law on the basis of the earnings of the retired person during his working life. However, in order to avoid the grant of very low pensions to retired persons who were engaged in low-income employment, Belgian law provides for a graduated minimum rate of public retirement pension for employed persons who retire following a complete career. (1) At the time material to the main proceedings in this case, a complete career was deemed to be 40 years' employment in Belgium in the case of a woman. Persons who have completed two-thirds or more of a complete career in employment in Belgium are entitled to a corresponding fraction of the minimum retirement pension rate, equivalent to that used for the calculation of a pension under the normal retirement regime for employed persons. (2)

3 Ms Gerdina Lustig (hereinafter `the applicant') was born on 15 January 1929. She worked in the Netherlands from 1946 to 1968 and in Belgium from 1970 to 1988. Had these periods of employment been spent entirely in Belgium, they would have constituted a complete career for the purposes of the Laws of 1980 and 1981. When she attained the age of 60, the Rijksdienst voor Pensioenen (the National Pensions Office, hereinafter `the defendant') granted the applicant, as from 1 February 1989, a Belgian retirement pension of BFR 106 834 under the normal regime for employed persons, based on her 19 years of employment in Belgium. The sum granted was 19/40 of that which would have been awarded to her under the normal regime on the basis of 40 years' equivalent employment in Belgium, without reference to the graduated minimum rate of retirement pension.

4 The applicant was not entitled to a retirement pension under the Netherlands system until she reached the age of 65. As from 1 January 1994, she received a Netherlands retirement pension commensurate with her period of employment there. As from the same date, the defendant applied the aggregation provisions of Chapter 3 of Title III of 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. (3) Thus, it took account of the applicant's periods of employment in the Netherlands, which enabled her to satisfy the requirement of a complete career and entitled her to the grant, though prospectively only, of a recalculated Belgian pension of BFR 142 046, which is 19/40 of the graduated minimum public retirement pension rate.

5 The applicant sought from the defendant, in respect of the period from 1989 to 1994, payment of an equivalent level of pension, to take account of her period of employment in the Netherlands for the purpose of reaching the threshold for allocation of a pension at the graduated minimum rate. Her applications before the Arbeidsrechtbank (Labour Court) te Antwerpen and, on appeal, before the Arbeidshof (Higher Labour Court) te Antwerpen were successful, on different grounds. The defendant appealed to the Hof van Cassatie van België (Belgian Court of Cassation, hereinafter `the national court'). The defendant argued before the national court that the applicant was entitled, during the period in question, to a pension under Belgian law alone, based on her 19 years' employment in Belgium, without recourse to the provisions of Regulation No 1408/71. In particular, it submitted, pursuant to Article 49(1)(b)(ii) of that Regulation, that it was not obliged as a matter of Community law to take account of periods of insurance under the Netherlands system when calculating the amount of a Belgian retirement pension for such periods, as the applicant did not satisfy the conditions (including that of age) for the grant of a Netherlands pension.

6 The national court has referred the following question to the Court for a preliminary ruling pursuant to Article 177 of the Treaty establishing the European Community (hereinafter `the Treaty'):

`Is Article 49(1)(b)(ii) of Regulation No 1408/71 in conjunction with Article 45 of that Regulation to be interpreted as meaning that, where the person concerned fulfils the conditions laid down by one legislation for entitlement to an old-age pension, albeit a limited one, without having recourse to periods of insurance completed under another legislation whose conditions of pension entitlement are not satisfied, the competent national authority is nevertheless obliged to take into account periods completed under the latter legislation where that could result in the award of a greater old-age pension up until such time as the conditions laid down under the latter legislation are fulfilled?'

II - Community-law provisions

7 Article 45 of Regulation No 1408/71 establishes the principle of aggregation of periods of insurance or of residence in different Member States for the purposes of acquiring a right to a retirement pension. When determining whether to grant a retirement pension, the competent national authority takes account of periods of insurance or residence in other Member States as if they were spent under the legislation which it applies. Article 46 of Regulation No 1408/71 sets out the method by which the amount of the retirement pension is calculated, even in cases where the retiree has a right to a pension under national law alone without recourse to the aggregation provisions in Article 45. The competent authority first calculates the `independent amount' - the amount of benefit payable to the retiree under national law alone. (4) It then calculates the `actual' or `pro rata amount'. The pro rata or actual amount is derived from the `theoretical amount' of pension which would be granted if all the retiree's periods of insurance or residence had been spent in the Member State in question: the actual amount of benefit is the proportion of the theoretical amount corresponding to the proportion of the retiree's total period of insurance or residence which was actually spent in the Member State in question. (5) Finally, the competent authority compares the independent amount and the actual amount, and awards the higher. (6)

8 Article 49 of Regulation No 1408/71, in the version amended and updated by Regulation No 2001/83, (7) provides as follows:

`(1) If, at a given time, the person concerned does not satisfy the conditions laid down for the provision of benefits by all the legislations of the Member States to which he has been subject, taking into account where appropriate the provisions of Article 45, but satisfies the conditions of one or more of them only, the following provisions shall apply:

(a) each of the competent institutions administering a legislation whose conditions are satisfied shall calculate the amount of the benefit due, in accordance with the provisions of Article 46;

(b) however:

(i) if the person concerned satisfies the conditions of at least two legislations without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, these periods shall not be taken into account for the purposes of the provisions of Article 46(2);

(ii) if the person concerned satisfies the conditions of only one legislation without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, the amount of the benefit payable shall be calculated in accordance with the provisions only of that legislation whose conditions are satisfied, taking account of the periods completed under that legislation only.

(2) The benefit or benefits awarded under one or more of the legislations in question, in the case referred to in paragraph 1, shall be recalculated automatically in accordance with the provisions of Article 46, as and when the conditions required by one or more of the other legislations to which the person concerned had been subject are satisfied, taking into account as appropriate the provisions of Article 45.'

This provision was amended by Regulation No 1248/92, (8) with effect from 1 June 1992, in a manner which is not pertinent to the present case. (9) It was further amended by Regulation No 3096/95, (10) also with effect from 1 June 1992. The fifth recital in the preamble to the latter regulation reads as follows:

`Whereas Article 49(1)(b) permits payment of benefit taking account only of periods completed under legislations conferring entitlement, when these periods suffice for calculating benefits by applying the legislations whose conditions are satisfied; whereas however taking account of periods completed under legislations whose conditions of entitlement are not satisfied may result in higher levels of benefit in certain situations, to be determined, under the legislations for which the conditions are satisfied; whereas it therefore appears useful to supplement Article 49(1)(b)(i) and (ii) in order to permit such periods to be taken into account when it results in the person concerned receiving a higher level of benefit.'

Article 49(1) as so amended now reads, in relevant part, as follows:

`If, at a given time, the person concerned does not satisfy the conditions laid down for the provision of benefits by all the legislations of the Member States to which he has been subject, taking into account where appropriate Article 45 and/or Article 40(3), but satisfies the conditions of one or more of them only, the following provisions shall apply:

(a) each of the competent institutions administering a legislation whose conditions are satisfied shall calculate the amount of the benefit due, in accordance with Article 46;

(b) however:

(i) if the person concerned satisfies the conditions of at least two legislations without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, these periods shall not be taken into account for the purposes of the provisions of Article 46(2) unless taking account of the said periods makes it possible to determine a higher amount of benefit;

(ii) if the person concerned satisfies the conditions of one legislation only without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, the amount of the benefit due shall, in accordance with Article 46(1)(a)(i), be calculated only in accordance with the provisions of the legislation whose conditions are satisfied, taking account of the periods completed under that legislation only, unless taking account of the periods completed under the legislations whose conditions are not satisfied makes it possible, in accordance with Article 46(1)(a)(ii), to determine a higher amount of benefit ... .'

III - Observations

9 Written and oral observations were submitted by the defendant and the Commission. In addition, the Kingdom of Belgium presented written observations and the United Kingdom of Great Britain and Northern Ireland presented oral observations.

10 All of the parties which have submitted observations contend that the graduated minimum public retirement pension is not a distinct benefit, the conditions for the grant of which would be subject to Article 45 of Regulation No 1408/71, and that, on the contrary, the criterion of a complete career in Belgium constitutes an additional means of calculating the amount of a Belgian retirement pension, which is subject to, inter alia, Articles 46 and 49 of that Regulation. The applicant does not need to invoke Article 45 of Regulation No 1408/71 in order to be granted a pension under Belgian law, although, of course, she receives a pension lower than the corresponding fraction of the minimum public retirement pension.

11 The defendant, Belgium and the United Kingdom propose a negative answer to the question referred by the national court. Even if a retired person has recourse to Article 45 of Regulation No 1408/71 in order to satisfy the conditions of insurance or residence for grant of a pension, Article 49(1)(b)(ii) of that Regulation provides expressly that, where that person does not satisfy simultaneously the conditions - such as, in this case, that regarding age - imposed for award of a pension by all the systems to which he has been subject, the amount of pension is calculated solely by reference to the legislation whose conditions are satisfied, taking account solely of periods spent subject to this legislation; that is, in the present case, periods spent in employment in Belgium. This, it is said, is the clear literal meaning of the terms of Article 49; it would be in breach of the principle of legal certainty to attribute to them the qualified meaning contended for by the Commission. The amendment effected by Regulation No 3096/95 cannot, therefore, be construed as being merely clarificatory in nature, nor was it understood as such by the Community legislator; furthermore, if the Commission were correct, the amendment would be superfluous. The United Kingdom also places considerable emphasis on the judgment in McLachlan, in which, in its view, the Court interpreted Article 49 as prohibiting a Member State from taking into account, for the purposes of calculating the amount of a retirement pension, periods of insurance or residence in other Member States whose conditions for grant of such a pension are not satisfied. (11)

12 The Commission argues that the principle of `aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries', established by Article 51 of the Treaty and given effect by Articles 45 and 46 of Regulation No 1408/71, is a fundamental principle of Community social security law, designed to ensure that migrant workers do not lose social security advantages guaranteed to them by the laws of the Member States as a result of the exercise of their right to freedom of movement, in the light of which all the provisions of the Regulation should be interpreted. (12) Article 46 of Regulation No 1408/71 also expresses a second fundamental principle, that the application of Community law should not lead to a result less favourable than would be achieved through the application of national law alone (13) - hence the comparison of the independent amount and the actual or pro rata amount of benefits. Article 49, as a derogation from Article 46, can only have as its objective an improvement on the result of a calculation in accordance with the latter provision, especially because the retiree will receive only a partial income, until such time as the conditions of the other systems to which he has been subject are satisfied. Aggregation should always apply where it would lead to a result equivalent to that which would have been assured to the worker if he had stayed in one Member State throughout his working life. Article 49 cannot, therefore, be interpreted as excluding the calculation of benefit in accordance with Article 46 where this would result in a higher amount of benefit for the retiree. The amendment of Article 49 to this effect, introduced by Regulation No 3096/95, must, therefore, be construed merely as a clarification of the existing scope of application of that provision. The agent for the Commission stated at the hearing that the amendment was proposed and made retroactive to 1 June 1992 as a response to what it deemed to be an incorrect interpretation of Article 49, by at least one Member State, dating from the extensive alterations to Chapter 3 of Title III of Regulation No 1408/71 introduced by Regulation No 1248/92.

IV - Analysis

13 I should first of all state that I agree with the parties which have submitted observations that the graduated minimum pension rate does not constitute a distinct benefit, the grant of which would be subject to Article 45 and the amount of which would, in the present case, be determined in accordance with Article 46(2) of Regulation No 1408/71. It seems clear that the Laws of 1980 and 1981 simply introduced an additional calculation rule, establishing a favourable rate for certain retired persons in receipt of very low retirement pensions, entitlement to which is determined in the first place according to different rules. However, it is worth bearing in mind, when determining whether the principle of aggregation should be applied to the calculation of the amount of benefit payable to the applicant, that the present case concerns a rule regarding admission to a distinct class of pension recipients, who benefit from the application of a graduated minimum scale. The situation of the applicant therefore has certain points in common with that of a person who would be excluded from the outset from the class of recipients of old-age benefits if his periods of insurance or residence in other Member States were not taken into account. Article 45 of Regulation No 1408/71 permits a person in the latter position to satisfy the minimum requirements for entitlement to a pension imposed by a national social security regime, while the rules in Article 46 on aggregation and apportionment ensure, none the less, that he receives a pension amount from the Member State in question which is commensurate solely with his periods of residence or insurance in that country. On the other hand, it is contended by certain parties that in a case such as the present, where a retired person is granted a pension by Member State A, but would be excluded from the outset from the class of recipients of a special graduated rate of minimum old-age benefits if his periods of insurance or residence in other Member States were not taken into account, Article 49 of Regulation No 1408/71 precludes the application of the aggregation provisions of Article 46(2)(a) and the payment, pursuant to Article 46(2)(b), of a graduated minimum pension commensurate with that part of the retired person's total career which was spent in Member State A.

14 For the avoidance of doubt, I should also state at this stage that I do not think that Article 50 of Regulation No 1408/71 is of relevance. (14) Article 50 provides for the payment of a supplement equal to the difference between the total of the benefits payable under Chapter 3 of Title III and the amount of the minimum benefit payable in the Member State where a retired person resides for a period of insurance or residence equal to all the periods of insurance taken into account for the payment of benefit in accordance with the preceding articles of that Chapter. The present proceedings are concerned with determining how to calculate the benefits payable to the applicant under Chapter 3 of Title III. If the Commission's argument regarding the interpretation of Article 49 were accepted, there would be no need to apply Article 50, as the applicant would receive, pursuant to Article 46, the minimum Belgian benefit payable in respect of the periods taken into account for the payment of benefit. (15) On the other hand, if the terms of Article 49(1)(b)(ii) of Regulation No 1408/71 were applied without qualification, the applicant's periods of insurance or residence in the Netherlands would not be taken into account in any way in the calculation of the Belgian pension payable to her before the age of 65. In that case, the application of Article 50 would not secure her any additional advantage, as the pension granted to the applicant would correspond to the minimum benefit payable for the relevant period of insurance in Belgium, that is, the normal benefit based exclusively on former earnings payable to a person who has not had two-thirds or more of a complete career in Belgium.

15 Before proceeding to analyse how, in general, Article 49 of Regulation No 1408/71 should be interpreted in the light of Article 51 of the Treaty, I wish to determine the precise import of the Court's judgment in McLachlan. (16) That case concerned a person residing in France who had completed 120 quarterly periods of insurance in France and 53 in the United Kingdom. The statutory retirement age in the United Kingdom is 65 years, before which an old-age pension is not payable. French law provides for up to 150 quarterly periods of insurance to be taken into account for the calculation of an old-age pension; for lesser periods of insurance, the pension shall be the corresponding number of 150ths of the full pension, calculated on the basis of the beneficiary's basic annual earnings. Persons over 60 who have more than 150 quarterly periods of insurance may not receive unemployment benefit in France, but receive instead an old-age pension. The applicant in that case was made redundant at the age of 61 years and was allocated an old-age pension, his periods in both France and the United Kingdom being taken into account in order to exclude the payment of unemployment benefit. However, the amount of his pension was calculated exclusively on the basis of his 120 periods of insurance in France.

16 The applicant in McLachlan did not seek the simple application of the rules on aggregation and apportionment in Article 46 of Regulation No 1408/71, as the benefit payable under national law was apparently higher than, or certainly no less than, the pro rata amount. (17) It seems, instead, that he claimed the immediate payment by the French authorities of a full French pension, corresponding to 150 quarterly periods of insurance, on the ground that this amount would have been allocated to him if he had spent all of his working career in France. (18) It was in this context that the Court made the statement, which is invoked in particular by the United Kingdom, that `[t]he taking into account by [national legislation whose conditions are satisfied] of periods completed under the legislation of another Member State is excluded by [Article 49] as regards the calculation of the amount of the pension'. (19) The Court continued that this result was `in conformity with the system under Regulation No 1408/71, which allowed different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights'. (20) It stated that Mr McLachlan therefore had rights against the competent institutions of the United Kingdom in respect of the periods of insurance completed in that State and against the French institutions in respect of the periods completed in France. (21) As a result, `each State pays the benefits which correspond to the periods completed under its legislation'. (22)

17 It is clear from these statements that the Court recognised the existence of inherent limits to the application of the principle that migrant workers should not be deprived of the advantages which they could have claimed under the legislation of a single Member State if they had worked there for their entire careers. Those limits are imposed by the very fact of the existence of different systems of social security which operate under different conditions, including those regarding the minimum age for the grant of certain benefits. Those limits are also recognised by the regime established by Regulation No 1408/71: consequently, the application of the principle of aggregation in order to determine eligibility for and the amount of certain benefits under different national systems is necessarily tempered by the principle of proportionate apportionment between national systems of responsibility for payment of benefits, in accordance with any additional national conditions, such as those regarding age.

18 McLachlan involved an attempted decoupling of the principles of aggregation and apportionment. The present case is entirely different in character. The applicant seeks merely the application of the rules regarding aggregation and apportionment in Article 46 of Regulation No 1408/71. Although she is entitled to the grant of a Belgian retirement pension in respect of her 19 years' employment in that country, she cannot qualify during the material period for the application of a particular minimum rate of pension, also payable in respect only of those 19 years, unless her period of employment in the Netherlands is also taken into account. In this regard, it is worth quoting a further statement by the Court in McLachlan:

`However, Article 49 does not preclude the legislation of a Member State whose conditions are satisfied from taking periods of insurance completed under the legislation of another Member State into account for the purposes of the acquisition of the right to an old-age pension and for determining the rate of that pension. Moreover, that article cannot preclude their being taken into account, since the Court has consistently held that Regulation No 1408/71 may not be interpreted as meaning that it may result in depriving migrant workers of the advantages which they could have claimed under the legislation of a single Member State.' (23)

19 In this passage, the Court recognises a distinction between the rate of a pension and its ultimate amount. In a system of aggregation and apportionment such as that established by Article 46(2) of Regulation No 1408/71, the rate of pension is fixed through the calculation of the theoretical amount; the process of aggregation ensures that, where different rates or scales of old-age benefit are applicable, depending on the total length of a retired person's career in the country in question, his entire career in the Community is taken into account in determining the applicable rate. The ultimate amount of pension payable (provided the independent amount is not higher) is the actual or pro rata amount, whereby pension is paid at the rate already identified solely in respect of the proportion of the retired person's career actually spent in the Member State in question, even if that period would in itself have given rise under national rules only to a right to a pension payable at a lower rate.

20 The present case raises the question whether, in the absence of national rules such as those referred to in the passage quoted immediately above, Community law requires the application of the principle of aggregation to the determination of the rate of pension for a Member State whose conditions for the grant of old-age benefit are satisfied, Article 49(1)(b)(ii) of Regulation No 1408/71 notwithstanding. In my view, it does so require, it always being understood that the principle of apportionment also applies, that is, that the calculation rules in Article 46(2) are observed in full. This conclusion flows first and foremost from the provisions of Article 51 of the Treaty itself, which establishes the principle of aggregation as the norm for the Community-law rules on social security for migrant workers, and in the light of which Regulation No 1408/71 must be interpreted. (24) Furthermore, if Article 49(1)(b)(ii) were applied without qualification, it would have the effect of depriving a worker such as the applicant of benefits at a higher rate which would have been awarded to her if she had spent her entire career in Belgium. It would do so in a fashion which is not related to the continued existence of different schemes, which create claims on different institutions against which the claimant possesses direct rights. It is not in dispute that a pension is payable in respect of her career in the Netherlands only after she reached the age of 65 years. In cases where a threshold period of residence or insurance must be reached for a higher rate of benefit to be payable under a national social security system, the principle of aggregation is normally applied to the calculation of the amount of benefit precisely in order to ensure that a career spent in more than one Member State does not result in payment of benefit at a lower rate than would be applicable to a person with the same employment history confined to the country in question. (25) Its application to the calculation of the pension due from Member State A, whose conditions are in all other respects satisfied, in no way gives rise to additional claims against the institutions of another Member State's system, irrespective of whether that State's conditions for the grant of a pension are fulfilled.

21 The unqualified application of Article 49(1)(b)(ii) of Regulation No 1408/71 could also have illogical consequences. If Belgium also imposed a threshold of two-thirds of a complete career spent in that country for the grant of a basic pension, the applicant would benefit from the combined application of Articles 45 and 46 in order to be paid a pension at the graduated minimum rate in respect of her 19 years' employment there. The higher age for the payment of an additional Netherlands pension, also subject, if necessary, to aggregation and apportionment, would be irrelevant in such circumstances, as it also should be, in my view, in the present case.

22 Furthermore, the principle of the autonomy of the Member States in setting differing substantive conditions, including those regarding age, for the grant of social security benefits underlies the Community rules on aggregation and apportionment. The autonomous choice of a Member State to permit the grant of a full pension at the age of 60 is as much entitled to respect, within the framework of the Community rules protecting migrant workers, as that of the Member State which provides for this only at the age of 65. The application in circumstances such as those of the present case of the rules on aggregation and apportionment is more respectful, within that framework, of that autonomy than would be an unqualified reading of Article 49(1)(b)(ii) of Regulation No 1408/71, which would subject the award by Belgium, at the age chosen by Belgium, of aggregated pro rata benefits at a rate consistent with the length of a retired person's career in the Community to the requirement that the different substantive conditions imposed by any other Member State where that person had worked were also satisfied. In other words, the application of the latter rules would, in effect, superimpose the Dutch age of pension entitlement on the Belgian system.

23 This conclusion regarding the proper interpretation of Article 49(1)(b)(ii) of Regulation No 1408/71 in the light of Article 46, and, ultimately, of Article 51 of the Treaty, is not disturbed, in my view, by the retroactive effect of Regulation No 3096/95 to a specific date, viz. 1 June 1992, nor by the fifth recital in the preamble to that Regulation. It has, admittedly, been plausibly argued that both give the impression that the amendment of Article 49 was, in substantive terms, an innovation. Regarding the retroactivity point, the Commission explained that the amendment was proposed in order to respond to a perceived misconstruction in at least one Member State of the effect of Article 49, which coincided in time with the general reform of Chapter 3 of Title III introduced by Regulation No 1248/92. This account has not been contradicted. In fact, if the Council viewed the amendment as simply clarificatory in nature, it would have made sense to give its terms retrospective effect in respect of the period of currency of the apparent misinterpretation of the preexisting provision, in order to correct decisions by national social security authorities which might otherwise be protected by, for example, the expiry of time-limits for challenge or the principle of res judicata. This is not inconsistent with the view that the terms of the amendment merely articulate the proper construction of the preceding text, so that, in substantive terms, the amendment is more apparent than real.

24 The terms of the fifth recital in the preamble to Regulation No 3096/95 do not indicate clearly that the Council regarded the amendment as an innovation. In stating that it `appear[ed] useful' to supplement Article 49(1)(b)(i) and (ii), the Council does not make clear whether it had in mind a substantive or merely a textual supplementing of that provision. In Reichling, the Court said that its interpretation of a provision was `borne out' by subsequent amendments, contrary to the social security body's a contrario arguments. (26) It referred to the lack of explanation of the amendment in the recitals as evidence that the amendment was clarificatory in nature; however, the explanation given in the fifth recital in the preamble to Regulation No 3096/95 does not contradict the thesis that the amendment of Article 49 of Regulation No 1408/71 effected by that measure also served simply to clarify the law.

25 In any event, the interpretation of the pre-amendment terms of Article 49 which I propose above is based on a reading of that provision in the light of Article 51 of the Treaty and of the resulting scheme and objectives of Regulation No 1408/71. If the Court determines that that was, from the outset, the proper interpretation of that provision, it would not be within the power of the Council to disturb it, many years after the original provision's enactment, simply by legislating expressly for the same result under the false impression that it was establishing a novel entitlement.

V - Conclusion

26 In the light of the foregoing, I propose that the Court respond as follows to the question referred by the Hof van Cassatie van België:

Article 49(1)(b)(ii) of 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 is to be interpreted as meaning that, where the person concerned fulfils the conditions laid down by one legislation for entitlement to an old-age pension, albeit a limited one, without having recourse to periods of insurance or residence completed under another legislation whose conditions of pension entitlement are not satisfied, the competent national authority is nevertheless obliged to take into account, in accordance with the rules on aggregation and apportionment in Article 46(2) of that Regulation, periods completed under the latter legislation where that could result in the award of an old-age pension at a higher rate in respect of the period up until such time as the conditions laid down under the latter legislation are fulfilled.

(1) - Article 152, Law of 8 August 1980, Belgisch Staatsblad of 15 August 1980.

(2) - Article 33, Law of 10 February 1981, Belgisch Staatsblad of 14 February 1981.

(3) - OJ, English Special Edition 1971 (II), p. 416. This case relates to the version amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6, and as further amended by Council Regulation (EEC) No 1248/92 of 30 April 1992, OJ 1992 L 136, p. 7, and by Council Regulation (EC) No 3096/95 of 22 December 1995, OJ 1995 L 335, p. 10.

(4) - Article 46(1) of Regulation No 1408/71.

(5) - Article 46(2) of Regulation No 1408/71.

(6) - Formerly the second indent of Article 46(1) of Regulation No 1408/71; Article 46(3) of that Regulation, after the entry into force of Regulation No 1248/92.

(7) - Loc. cit.

(8) - Loc. cit. The English text of the consolidated version of Regulation No 1408/71 published in OJ 1992 C 325, p. 1, in the light of, inter alia, the amendments introduced by Regulation No 1248/92, appears to be erroneous in so far as it excludes the reference to Article 45 in the first sentence of Article 49(1).

(9) - This amendment inserted a reference to Article 40(3) of Regulation No 1408/71 into Article 49(1) and added a final sentence regarding the exercise of the option of postponement of benefits under Article 44(2). A corresponding addition was made to the text of Article 49(2).

(10) - Loc. cit.

(11) - Case C-146/93 McLachlan v CNAVTS [1994] ECR I-3229 (hereinafter `McLachlan'), paragraphs 28 and 29.

(12) - Case C-406/93 Reichling v INAMI [1994] ECR I-4061, paragraphs 21 and 24 (hereinafter `Reichling'); Case C-165/91 Van Munster v Rijksdienst voor Pensioenen [1994] ECR I-4661, paragraph 27; Case C-481/93 Moscato v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1995] ECR I-3525, paragraphs 27 and 28; Case C-482/93 Klaus v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1995] ECR I-3551, paragraph 21 (hereinafter `Klaus').

(13) - Case 24/75 Petroni v ONPTS [1975] ECR 1149, paragraph 16; Joined Cases C-90/91 and C-91/91 Di Crescenzo and Casagrande [1992] ECR I-3851, paragraphs 14 and 34; regarding Article 49 of Regulation No 1408/71, McLachlan, loc. cit., paragraph 31.

(14) - This provision is at issue in Case C-132/96 Stinco and Panfilo v INPS, in which judgment is due on 24 September 1998.

(15) - Until the conditions of the Netherlands legislation were satisfied, only periods in Belgium would be taken into account for payment of benefit, although the applicant's career in the Netherlands would be used for the purposes of reaching the threshold of two-thirds or more of a complete career in Belgium for the application of the Belgian graduated minimum pension regime.

(16) - Loc. cit. In the account which follows, national law is described as it applied during the period material to the decision in McLachlan.

(17) - The independent amount corresponded to 120 quarterly periods of insurance. The theoretical amount corresponded to 150 quarterly periods, and the pro rata amount was based on 150 quarterly periods multiplied by 120/173, i.e. 104.05. In these circumstances, the independent amount should have been awarded irrespective of whether Article 46, and in particular its present section 3, or Article 49, of Regulation No 1408/71 were applicable. However, Advocate General Lenz states at paragraph 4 of his Opinion in McLachlan that the applicant was allocated a pension which amounted to approximately two-thirds of a full pension, to which he would have been entitled if he had completed 150 quarterly periods under the French system, which suggests that he may only have received the pro rata amount from the French authorities; he implicitly acknowledges this at paragraph 21 of his Opinion.

(18) - The exact nature of the applicant's claim in McLachlan is not entirely clear, in part because he argued, on similar grounds, that the very grant of a pension in lieu of unemployment benefit was unlawful and that the amount of pension allocated was too low; see however the question referred by the Cour de Cassation, at paragraph 18 of the judgment, and, in addition, paragraphs 12, 21, 23, 24 and 36 of the judgment and paragraph 11 of the Opinion.

(19) - Loc. cit., paragraph 29. The Court presumably meant that Article 49 did not require such an outcome, as nothing in Community law curtails a Member State's freedom to adopt purely national rules allocating to retired persons at its own expense amounts of pension corresponding to their periods of residence or insurance in another Member State; see further paragraph 31, quoted below.

(20) - Ibid., same sentence. The Court cited Case 100/78 Rossi v Caisse de Compensation pour Allocations Familiales [1979] ECR 831, paragraph 13.

(21) - Ibid., paragraph 30.

(22) - Ibid., paragraph 37.

(23) - Ibid., paragraph 31, emphasis added. The Court cited Case C-302/90 Faux [1991] ECR I-4875, paragraph 28.

(24) - See, in particular, Klaus, loc. cit., paragraph 21.

(25) - See, in particular, Reichling, loc. cit., paragraphs 23 and 24.

(26) - Ibid., paragraph 29.