Judgment of the Court (First Chamber) of 20 April 1988. - Cornelis G. Bakker v Rijksdienst voor Werknemerspensionen. - Reference for a preliminary ruling: Arbeidsrechtbank Antwerpen - Belgium. - Social security - Overlapping benefits. - Case 151/87.



European Court reports 1988 Page 02009



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES AGAINST OVERLAPPING - CONCEPT - RULE UNDER WHICH THE BASIC AMOUNT FOR CALCULATING A PERSON' S RETIREMENT PENSION IS REDUCED BY REASON OF A PENSION RECEIVED BY THAT PERSON' S SPOUSE - EXCLUDED

( COUNCIL REGULATION NO 1408/71, ART . 12 ( 2 ) )

Summary

A NATIONAL RULE PROVIDING THAT A RETIREMENT PENSION IS TO BE CALCULATED ON THE BASIS OF A LOWER AMOUNT WHEN THE SPOUSE OF THE ENTITLED PERSON RECEIVES A RETIREMENT OR SURVIVOR' S PENSION OR A BENEFIT REGARDED AS EQUIVALENT THERETO DOES NOT CONSTITUTE A PROVISION DESIGNED TO PREVENT THE OVERLAPPING OF BENEFITS FOR THE PURPOSES OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION NO 1408/71 .

Parties

IN CASE 151/87

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARBEIDSRECHTBANK ( LABOUR TRIBUNAL ), OF ANTWERP, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

CORNELIS G . BAKKER

AND

RIJKSDIENST VOOR WERKNEMERSPENSIOENEN

ON THE INTERPRETATION OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION 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 ( OFFICIAL JOURNAL 1983 L 230, P . 8 ),

THE COURT ( FIRST CHAMBER )

COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, R . JOLIET AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : M . DARMON

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

C.G . BAKKER, THE PLAINTIFF IN THE MAIN PROCEEDINGS,

THE RIJKSDIENST VOOR WERKNEMERSPENSIOENEN, THE DEFENDANT IN THE MAIN PROCEEDINGS, BY R . MASYN, GENERAL ADMINISTRATOR,

THE BELGIAN GOVERNMENT, BY P . MAINIL, STATE SECRETARY FOR PENSIONS,

FOR THE NETHERLANDS GOVERNMENT, BY E.F . JACOBS, SECRETARY GENERAL AT THE MINISTRY OF FOREIGN AFFAIRS,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY G . GRIESMAR, A MEMBER OF ITS LEGAL DEPARTMENT, ASSISTED BY F . HERBERT, OF THE BRUSSELS BAR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 19 JANUARY 1988,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 8 MARCH 1988,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY JUDGMENT OF 8 MAY 1987, WHICH WAS RECEIVED AT THE COURT ON 14 MAY 1987, THE ARBEIDSRECHTBANK, ANTWERP, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION 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 FAMILY MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL 1983 L 230, P . 8 ).

2 THOSE QUESTIONS AROSE IN PROCEEDINGS BETWEEN CORNELIS BAKKER, A NETHERLANDS NATIONAL, AND THE RIJKSDIENST VOOR WERKNEMERSPENSIOENEN ( THE NATIONAL PENSIONS OFFICE FOR EMPLOYED PERSONS ), A BELGIAN SOCIAL SECURITY INSTITUTION .

3 MR BAKKER, WHO HAD WORKED AS AN EMPLOYED PERSON BOTH IN THE NETHERLANDS AND IN BELGIUM, OBTAINED AN OLD-AGE PENSION IN BOTH THOSE MEMBER STATES UNDER THE RULES OF NATIONAL LEGISLATION ALONE .

4 IN THE NETHERLANDS, THE SOCIALE VERZEKERINGSBANK ( THE NETHERLANDS SOCIAL INSURANCE BANK ), BY DECISION OF 15 OCTOBER 1985, GRANTED MR BAKKER AN OLD-AGE PENSION WITH EFFECT FROM 1 MAY 1984 PURSUANT TO THE PROVISIONS OF THE ALGEMENE OUDERDOMSWET ( GENERAL LAW ON OLD-AGE INSURANCE ) AS IN FORCE BEFORE THE AMENDMENTS OF 1 APRIL 1985 . THAT PENSION, WHICH WAS CALCULATED ON THE BASIS OF 100% OF THE NET MINIMUM SALARY, ALSO INCLUDED A PENSION FOR MRS BAKKER SINCE, UNDER THE PROVISIONS OF THE ALGEMENE OUDERDOMSWET THEN IN FORCE, THE PENSION REPRESENTED NOT ONLY THE PENSION RIGHTS ACQUIRED BY MR BAKKER HIMSELF BUT ALSO THE PENSION RIGHTS ACQUIRED BY HIS WIFE WHO HAD NOT BEEN IN PAID EMPLOYMENT . THE ABOVEMENTIONED LEGISLATION PROVIDED AT THAT TIME FOR THE PAYMENT TO THE HUSBAND ALONE OF A PENSION WHICH REPRESENTED THE RIGHTS ACQUIRED BY BOTH SPOUSES .

5 IN BELGIUM THE RIJKSDIENST VOOR WERKNEMERSPENSIOENEN GRANTED MR BAKKER, BY DECISION OF 29 MARCH 1985, A RETIREMENT PENSION PURSUANT TO ARTICLE 10 ( 1 ) OF BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967, AS AMENDED BY THE LAW OF 15 MAY 1984 . UNDER THAT PROVISION, ENTITLEMENT TO A RETIREMENT PENSION IS BASED ON A FRACTION OF THE GROSS INCOME TAKEN INTO ACCOUNT, WHICH IS :

75% FOR AN EMPLOYED PERSON WHOSE SPOUSE HAS CEASED TO BE IN PAID EMPLOYMENT, EXCEPT WHEN AUTHORIZED BY THE KING, AND DOES NOT RECEIVE A RETIREMENT OR SURVIVOR' S PENSION OR A BENEFIT DEEMED TO BE EQUIVALENT THERETO OR ANY OF THE ALLOWANCES REFERRED TO IN ARTICLE 25 ( THE "HOUSEHOLD RATE ");

60% FOR OTHER EMPLOYED PERSONS ( THE "SINGLE PERSON' S RATE ").

SINCE, ON 29 MARCH 1985, MRS BAKKER WAS NOT ENTITLED TO A BENEFIT OF HER OWN, MR BAKKER' S BELGIAN PENSION WAS CALCULATED ON THE BASIS OF THE HOUSEHOLD RATE ( 75 %).

6 WITH EFFECT FROM 1 APRIL 1985 THE ALGEMENE OUDERDOMSWET WAS AMENDED TO TAKE ACCOUNT OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS LAID DOWN IN COUNCIL DIRECTIVE 79/7/EEC OF 19 DECEMBER 1978 ( OFFICIAL JOURNAL 1979 L 6, P . 24 ). THE NEW SCHEME OF THE ALGEMENE OUDERDOMSWET PROVIDES INTER ALIA THAT UPON REACHING THE AGE OF 65 ANY MARRIED MAN OR WOMAN WHO RESIDES OR HAS RESIDED IN THE NETHERLANDS IS ENTITLED TO HIS OR HER OWN OLD-AGE PENSION, CALCULATED ON THE BASIS OF 50% OF THE NET MINIMUM WAGE . APPLYING THE NEW RULES, THE SOCIALE VERZEKERINGSBANK BEGAN TO PAY MR AND MRS BAKKER, AS FROM 1 SEPTEMBER 1985, BY WHICH TIME MRS BAKKER HAD REACHED THE AGE OF 65, THEIR OWN OLD-AGE PENSIONS CALCULATED ON THE BASIS OF 50% OF THE NET MINIMUM WAGE .

7 AFTER THE RIJKSDIENST VOOR WERKNEMERSPENSIOENEN HAD BEEN INFORMED THAT MRS BAKKER HAD BEEN GRANTED A PENSION UNDER THE ALGEMENE OUDERDOMSWET, IT REDUCED, BY DECISION OF 26 MARCH 1986 TAKING EFFECT FROM 1 SEPTEMBER 1985, THE AMOUNT OF MR BAKKER' S RETIREMENT PENSION BY APPLYING THE SINGLE PERSON' S RATE ( 60 %) INSTEAD OF THE HOUSEHOLD RATE ( 75 %).

8 MR BAKKER APPEALED AGAINST THAT DECISION TO THE ARBEIDSRECHTBANK, ANTWERP, WHICH STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :

"1 . SHOULD THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION NO 1408/71 OF 14 JUNE 1971 BE UNDERSTOOD AS MEANING THAT THE PHRASE "PROVISIONS ... FOR REDUCTION ... OF BENEFIT IN CASES OF OVERLAPPING WITH OTHER SOCIAL SECURITY BENEFITS ... " ALSO COVERS A RULE ( SUCH AS THAT SET OUT IN ARTICLE 10 ( 1 ) OF ROYAL DECREE NO 50 OF 24 OCTOBER 1967 AS AMENDED BY THE LAW OF 15 MAY 1984 ) PROVIDING THAT THE RETIREMENT PENSION TO BE AWARDED IS TO BE CALCULATED ON THE BASIS OF A LOWER AMOUNT ( THE SINGLE PERSON' S RATE AS OPPOSED TO THE HOUSEHOLD RATE, OR 60% INSTEAD OF 75 %) DEPENDING ON WHETHER OR NOT THE SPOUSE OF THE PERSON CONCERNED IS RECEIVING A RETIREMENT OR SURVIVOR' S PENSION OR OTHER BENEFIT DEEMED TO BE EQUIVALENT THERETO?

2 . SHOULD THE SECOND SENTENCE OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION NO 1408/71 BE UNDERSTOOD AS MEANING

( A ) THAT A BENEFIT GRANTED UNDER A SCHEME WHEREBY SEPARATE OLD-AGE PENSIONS ARE AWARDED TO MARRIED PERSONS AND ACCOUNT IS TAKEN OF THE FACT THAT THEY ARE MARRIED ( SUCH AS THE NETHERLANDS ALGEMENE OUDERDOMSWET AS FROM 1 APRIL 1985 ) AND A BENEFIT GRANTED UNDER A SCHEME WHICH AWARDS A MARRIED PERSON A HIGHER ( HOUSEHOLD ) PENSION ( SUCH AS LAID DOWN IN ARTICLE 10 ( 1 ) ( A ) OF BELGIAN ROYAL DECREE NO 50 ) ARE TO BE REGARDED AS "BENEFITS OF THE SAME KIND IN RESPECT OF ... OLD-AGE"?

( B ) THAT IN INTERPRETING THE EXPRESSION "BENEFITS OF THE SAME KIND IN RESPECT OF ... OLD-AGE", ACCOUNT SHOULD BE TAKEN OF THE FACT THAT THE LEGISLATION OF DIFFERENT MEMBER STATES ( SUCH AS IN THIS CASE THE NETHERLANDS AND THE BELGIAN LEGISLATION ) MAKES ALLOWANCE IN DIFFERENT WAYS WHEN AWARDING AND CALCULATING A "MARRIED PERSON' S PENSION" OR A "HOUSEHOLD PENSION" FOR THE FACT THAT A PERSON CLAIMING A PERSION IS MARRIED?"

9 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

THE FIRST QUESTION

10 BY ITS FIRST QUESTION THE NATIONAL COURT SEEKS TO ASCERTAIN IN ESSENCE WHETHER A NATIONAL RULE SUCH AS THAT LAID DOWN IN ARTICLE 10 ( 1 ) OF BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967, AS AMENDED BY THE LAW OF 15 MARCH 1984 AND PROVIDING THAT A RETIREMENT PENSION IS TO BE CALCULATED ON THE BASIS OF A LOWER AMOUNT ( NAMELY THE 60% RATE FOR A SINGLE PERSON INSTEAD OF THE HOUSEHOLD RATE OF 75 %) WHEN THE SPOUSE OF THE PERSON ENTITLED RECEIVES A RETIREMENT OR SURVIVOR' S PENSION OR A BENEFIT REGARDED AS EQUIVALENT THERETO CONSTITUTES A PROVISION DESIGNED TO PREVENT THE OVERLAPPING OF BENEFITS FOR THE PURPOSES OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION NO 1408/71 OF 14 JUNE 1971 .

11 IN THAT RESPECT IT SHOULD BE RECALLED THAT THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 PROVIDES THAT PROVISIONS OF THE LEGISLATION OF A MEMBER STATE DESIGNED TO PREVENT THE OVERLAPPING OF BENEFITS "MAY BE INVOKED EVEN THOUGH THE RIGHT TO SUCH BENEFITS WAS ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ". HOWEVER, THE SECOND SENTENCE OF THAT PROVISION PROVIDES THAT "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 )".

12 IT IS CLEAR FROM THE VERY WORDING OF ARTICLE 12 THAT THE ANTI-OVERLAPPING PROVISIONS REFERRED TO BY THAT PROVISION ONLY CONCERN CASES WHERE A SINGLE PERSON IS IN RECEIPT OF MORE THAN ONE BENEFIT .

13 FURTHERMORE, SUCH AN INTERPRETATION IS IN ACCORDANCE WITH THE PURPOSE OF THAT ARTICLE WHICH, AS THE COURT HAS ALREADY POINTED OUT ( SEE IN PARTICULAR THE JUDGMENT OF 15 SEPTEMBER 1983 IN CASE 279/82 JERZAK V BUNDESKNAPPSCHAFT (( 1983 )) ECR 2603 AND THE JUDGMENT OF 13 MARCH 1986 IN CASE 296/84 SINATRA V FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS (( 1986 )) ECR 1047 ), FORMS THE COUNTERPART OF THE ADVANTAGES WHICH COMMUNITY LAW AFFORDS WORKERS IN ENABLING THEM TO REQUIRE THE SOCIAL SECURITY LEGISLATION OF MORE THAN ONE MEMBER STATE TO BE APPLIED SIMULTANEOUSLY . THE PURPOSE OF ARTICLE 12 IS TO PREVENT A WORKER FROM BEING ABLE TO DERIVE FROM THE SIMULTANEOUS APPLICATION OF DIFFERENT BODIES OF LEGISLATION ADVANTAGES CONSIDERED UNJUSTIFIED IN BOTH NATIONAL LAW AND COMMUNITY LAW .

14 ON THE OTHER HAND, IT MUST BE STATED THAT A NATIONAL RULE SUCH AS THAT CONTAINED IN ARTICLE 10 OF BELGIAN ROYAL DECREE NO 50, WHICH FOR SOCIAL REASONS PROVIDES FOR THE RETIREMENT PENSION GRANTED TO A MARRIED PERSON TO BE HIGHER ON CONDITION THAT THE RECIPIENT' S SPOUSE IS NOT ENTITLED TO A RETIREMENT PENSION OR AN ADVANTAGE REGARDED AS EQUIVALENT THERETO, RELATES TO A SITUATION DIFFERENT FROM THAT COVERED BY ARTICLE 12 OF REGULATION NO 1408/71 . A RULE SUCH AS THAT CONTAINED IN ARTICLE 10 DOES NOT CONCERN CASES WHERE DIFFERENT BENEFITS AWARDED TO THE SAME PERSON OVERLAP BUT CASES WHERE RETIREMENT OR SURVIVOR' S PENSIONS ARE PAID TO TWO DIFFERENT PERSONS .

15 THE ANSWER TO THE FIRST QUESTION SUBMITTED BY THE ARBEIDSRECHTBANK, ANTWERP, MUST THEREFORE BE THAT A NATIONAL RULE SUCH AS THAT LAID DOWN IN ARTICLE 10 ( 1 ) OF BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967, AS AMENDED BY THE LAW OF 15 MAY 1984, AND PROVIDING THAT A RETIREMENT PENSION IS TO BE CALCULATED ON THE BASIS OF A LOWER AMOUNT ( NAMELY THE 60% RATE FOR A SINGLE PERSON INSTEAD OF THE HOUSEHOLD RATE OF 75 %) WHEN THE SPOUSE OF THE ENTITLED PERSON RECEIVES A RETIREMENT OR SURVIVOR' S PENSION OR A BENEFIT REGARDED AS EQUIVALENT THERETO DOES NOT CONSTITUTE A PROVISION DESIGNED TO PREVENT THE OVERLAPPING OF BENEFITS FOR THE PURPOSES OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 1408/71 OF 14 JUNE 1971 .

THE SECOND QUESTION

16 IN VIEW OF THE ANSWER GIVEN TO THE FIRST QUESTION, THE SECOND QUESTION DOES NOT NEED TO BE ANSWERED .

Decision on costs

COSTS

17 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM, BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE ARBEIDSRECHTBANK, ANTWERP, BY JUDGMENT OF 8 MAY 1987, HEREBY RULES :

A NATIONAL RULE SUCH AS THAT LAID DOWN IN ARTICLE 10 ( 1 ) OF BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967, AS AMENDED BY THE LAW OF 15 MAY 1984, AND PROVIDING THAT A RETIREMENT PENSION IS TO BE CALCULATED ON THE BASIS OF A LOWER AMOUNT ( NAMELY THE 60% RATE FOR A SINGLE PERSON INSTEAD OF THE HOUSEHOLD RATE OF 75 %) WHEN THE SPOUSE OF THE ENTITLED PERSON RECEIVES A RETIREMENT OR SURVIVOR' S PENSION OR A BENEFIT REGARDED AS EQUIVALENT THERETO DOES NOT CONSTITUTE A PROVISION DESIGNED TO PREVENT THE OVERLAPPING OF BENEFITS FOR THE PURPOSES OF ARTICLE 12 ( 2 ) OF COUNCIL REGULATION ( EEC ) NO 1408/71 OF 14 JUNE 1971 .