OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 30 JUNE 1983 ( 1 )

Mr President,

Members of the Court,

1. The facts

From the middle of 1937 to the beginning of 1948 Mr Jerzak worked in the German coalmines and from the beginning of 1948 to the end of 1967 in the Belgian coalmines. From 1961 to 1973 he was insured as a coke-oven worker under the German miners' insurance scheme. He contracted an occupational disease and as a result the Belgische Fonds voor de Beroepsziektes [Belgian Occupational Diseases Fund] awarded him as from 1964 a pension for occupational disease which was increased on account of an increase in the degree of his invalidity in 1973 and again in 1977 with retroactive effect from the end-, of 1975. A proportion of that pension (approximately 51%) is borne by the competent German insurance institution in accordance with Article 57 (3) (c) of Regulation No 1408/71 (Official Journal, English Special Edition 1971 (II), p. 416). At the end of 1975 the Belgische Nationaal Pensioenfonds [Belgian National Pension Fund] informed Mr Jerzak that the invalidity pension awarded to him as from April 1974 would not be paid because his invalidity had been caused by an occupational disease and the invalidity benefits in respect thereof were higher than the invalidity pension.

Besides the Belgian invalidity benefits Mr Jerzak has since 1973 been receiving a German miner's invalidity pension. Under Article 46 (1) of Regulation No 1408/71 that pension is calculated on the basis of German law alone since the amount resulting from the accumulation of the periods completed in the two Member States, which is governed by Article 46 (2), would have been less. In 1977 Mr Jerzak's German miner's pension was reduced with effect from the date on which the latest increase in the Belgian benefit took effect. This was done pursuant to Paragraph 75 of the Reichsknappschaftsgesetz [Law on the Miners' Insurance Fund]. That provision governs the overlapping of invalidity benefits under the statutory accident insurance scheme with miners' pensions.

2. The issue raised

The main issue which arose in the subsequent court proceedings was whether that German rule against the overlapping of benefits could also be applied to the overlapping of German and Belgian benefits. For the arguments advanced in those proceedings and for the judgment given at first instance by the Sozialgericht [Social Court] Aachen I refer to pages 6 to 11 of the order for reference of the Landessozialgericht [Higher Social Court].

As regards the applicability of Paragraph 75 of the Reichsknappschaftsgesetz to the present case, the Landessozialgericht makes the basic assumption that its direct application is excluded by decisions of the highest German courts as the expression “accident benefit” used in that paragraph relates solely to benefits under the statutory German accident insurance scheme. The question then remaining is whether it is possible, on the basis of provisions of Community law, for Paragraph 75 to be applied to cases involving the overlapping of pensions and accident benefits under the legislation of different Member States. The Landessozialgericht and the Commission agree that the answer to that question depends on the interpretation of the first sentence of Article 12(2) of Regulation No 1408/71. For the way in which the national court formulated its first and crucial question on this point, I refer to the order for reference and the Report for the Hearing. They show that the question submitted to the Court is limited to cases in which the foreign benefits to be taken into account in the calculation of the national benefits are partly borne, in accordance with Article 57 (3) (c) of Regulation No 1408/71, by the insurance institution of the State effecting the calculation. Questions as to the relevance of the proportion borne and of the practical consequences of the application of Article 57(1) of Regulation No 1408/71 for the insured person are also raised.

On pages 14 to 17 of its order the national court itself enters into detailed explanations of the question as thus formulated and these greatly assist in understanding the background to the questions raised. The second and third questions raised by the Landessozialgericht are relevant only if the first sentence of Article 12 (2) of Regulation No 1408/71 must not be regarded as a bar to an application by analogy of national provisions against the overlapping of benefits even in cases such as this.

3. The Commission's position

The Commission rightly points out in its written observations that there is already an extensive body of case-law on Article 12(2) of Regulation No 1408/71. ( 2 ) According to that case-law, that article does not permit an extended or analogous application of a Member State's own rule against the overlapping of benefits to cases involving the overlapping of benefits awarded by itself and another Member State unless the benefits provided by the first Member State were awarded in application of Community law. If Community law does require that, in calculating its own benefits for migrant workers, a Member State should also take account of the provisions of other Member States, that Member State should also have the possibility of applying its own rules against the overlapping of benefits to similar cases involving the overlapping of benefits awarded by itself and another Member State. In this regard the Commission refers in particular to the Court's judgments in Kau/mann (Case 184/73) and Duffy (Case 34/69), cited above. However, the Court has ruled out an application of Community law, including Article 12 (2) of Regulation No 1408/71, which would enable a Member State to reduce also entitlement to benefits acquired solely on the basis of its own national law. In this connection the Commission refers to paragraph 13 of the decision in the first Buccini case (79/81).

The Commission then correctly points out that those previous decisions of the Court appear to rule out the application of the national provisions against the overlapping of benefits in this case. This is because the benefits which the competent German insurance institution seeks to reduce on the ground that they overlap with Belgian benefits are based entirely on German law. The Landessozialgericht also realized this. However, its questions and the explanation provided indicate that it clearly thinks that there might also be a good reason for applying national rules against the overlapping of benefits where an insurance institution of the Member State concerned has, on the basis of Community law, contributed (in this case slightly more than half) to the foreign benefits to be taken into account which are themselves awarded in application of Community law. That the Belgian benefits concerned (and not just the way in which their cost is borne) are themselves based on Community law in this case is not in fact contested. Nor is it contested that the Belgian benefits are in substance comparable to German accident insurance benefits which may be taken into account in the calculation of the miner's pension (“Knappschaftsrente”).

In paragraph 14 of its written observations the Commission takes the view, based on a detailed analysis of the Court's case-law, that any deduction of foreign benefits from a Member State's own benefits is contrary to Article 51 of the EEC Treaty if its benefits are based entirely on national law. It refers here in particular to the Court's judgments in Case 112/76, Manzoni [1977] ECR 1647, and Case 24/75, Petroni [1975] ECR 1149. Paragraph 10 of the decision in Manzoni, which is identical to paragraph 13 of the decision in Petroni, states in fact that: “The aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the legislation of a Member State alone.” I also refer to paragraph 21 of the decision in Petroni in which it was held that “... a limitation on the overlapping of benefits which would lead to a diminution of the rights which the persons concerned already enjoy in a Member State by virtue of the application of the national legislation alone is incompatible with Article 51”.

Still, those two judgments relate solely to the question whether the Community legislature may provide for such a restriction on the overlapping of benefits awarded by different Member States. As the Commission also points out, within certain limits Community law does not prevent a national legislature from restricting the overlapping of benefits awarded by itself and another Member State besides the overlapping of purely national benefits. On this point the Commission refers to the court's judgment in Joined Cases 116 to 121/80, Celestre and Others [1981] ECR 1737. According to that judgment, the most important limit which Community law places on national restrictions on the overlapping of benefits awarded by more than one Member State is, to cite paragraph 9 of that judgment, that “if the application of such national legislation proves less favourable to the worker than the application of the rules laid down by Article 46 of Regulation (EEC) No 1408/71, the provisions of that article must be applied”. However, as the Commission rightly points out in its written observations, still other limits affecting the national legislature may be inferred from the Court's decisions cited above.

Unlike the Commission, I think that in view of the power which Member States thus have in principle to enact provisions to prevent the overlapping of benefits with those of other Member States the “unjustified advantages” to which the national court refers in this case are attributable not so much to the absence of harmonization of the Member States' social security laws as to the absence of a provision of national law, compatible with Community law, dealing with the overlapping of national and foreign benefits. The relevant provision of German law in fact only covers cases involving the overlapping of German benefits and, according to the relevant case-law of the Court, Community law is unable to fill this lacuna. Since the problems clearly set out by the national court are real in themselves, I think that in its answer the Court should clearly state that they have a national origin and that it is impossible to resolve them on the basis of existing Community law. In fact, if my understanding of Paragraph 21 (12) of the Gesetz zur Wiederbelebung der Wirtschaft und Beschäftigung und zur Entlastung des Bundeshaushalts [Law to Stimulate the Economy and Employment and relieve the Federal Budget] of 20 December 1982 (Bundesgesetzblatt I of 23 December 1982, No 54) is correct, the lacuna in question has in the meantime been filled by the German legislature.

4. Conclusion

I therefore propose that the Court should answer the questions of the Landessozialgericht für das Land Nordrhein-Westfalen as follows:

“As long as a provision of national law against overlapping relates to national benefits alone and the benefit which it is sought to reduce on the ground that it overlaps with other benefits is based entirely on the national law of the Member State concerned, the first sentence of Article 12 (2) of Regulation No 1408/71 must be construed as also excluding the application of the provision of national law against overlapping where the other benefits to be taken into account are awarded in another Member State by application of Article 57 of Regulation No 1408/71. That answer does not prevent the national legislature from extending the provision of national law against overlapping to cases involving the overlapping of benefits with those awarded by another Member State, provided, of course, that that extension and application are effected in accordance with the principles of Community law”

( 1 ) Translated from the Dutch.

( 2 ) Case 34/69, Duffy [1969] ECR 597; Case 184/73, Kaufmann [1974] ECR 517; Case 75/76, Kaucie and Kaucie, [1977] ECR 495; Case 22/77, Mura, and Case 37/77, Greco [1977] ECR 1699 and 1711; Case 98/77, Schaap [1978] ECR 707; Case 105/77, Boerboom-Kersjes, [1978] ECR 717; Case 26/78, Viola [1978] ECR 1771; Case 181/78, Brouwer-Kaune [1979] ECR 2111; Case 4/80, d'Amico [1980] ECR 2951, and Case 79/81, Aurini [1982] ECR 1063.