Judgment of the Court (Fifth Chamber) of 4 June 1985. - Office nationale des pensions pour travailleurs salariés (ONPTS) v Francesco Romano. - Reference for a preliminary ruling: Cour du travail de Liège - Belgium. - Social security - overlapping of pensions. - Case 58/84.



European Court reports 1985 Page 01679



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES AGAINST OVERLAPPING BENEFITS - NOT APPLICABLE AGAINST RECIPIENTS OF BENEFITS OF THE SAME KIND PAID IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 1408/71 - REDUCTION OF THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT BY THE NUMBER OF YEARS IN RESPECT OF WHICH A WORKER MAY CLAIM A PENSION IN ANOTHER MEMBER STATE - NOT PERMISSIBLE

( REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL , ART . 12 ( 2 ) AND ART . 46 ( 1 ))

Summary

PURSUANT TO ARTICLE 12 ( 2 ) AND ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , THE AMOUNT OF A MIGRANT WORKER ' S PENSION MUST BE DETERMINED IN ACCORDANCE WITH THE RELEVANT NATIONAL LEGISLATION , IRRESPECTIVE OF ANY ENTITLEMENT TO A PENSION WHICH MAY ARISE UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE . IT FOLLOWS THAT A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 OF THE COUNCIL WHICH , BY VIRTUE OF ITS LAST SENTENCE , IS NOT TO BE APPLIED WHEN THE AMOUNT OF THE PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION .

Parties

IN CASE 58/84

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DU TRAVAIL ( LABOUR COURT ), LIEGE , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( ONPTS ) ( NATIONAL PENSION OFFICE FOR EMPLOYED PERSONS )

AND

FRANCESCO ROMANO

Subject of the case

ON THE INTERPRETATION OF ARTICLES 12 AND 46 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ),

Grounds

1 BY JUDGMENT OF 24 FEBRUARY 1984 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 6 MARCH 1984 , THE COUR DU TRAVAIL ( LABOUR COURT ) LIEGE , REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF ARTICLES 12 AND 46 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ).

2 THOSE QUESTIONS WERE RAISED IN A DISPUTE CONCERNING THE REFUSAL OF THE OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( ONPTS ) ( NATIONAL PENSION OFFICE FOR EMPLOYED PERSONS , HEREINAFTER REFERRED TO AS ' THE OFFICE ' ) TO AWARD F . ROMANO , A FORMER MINER OF ITALIAN NATIONALITY , A FULL PENSION OF 30/30THS ON THE GROUND THAT HE RECEIVED PARTIAL PENSIONS IN RESPECT OF PERIODS OF EMPLOYMENT COMPLETED IN ITALY AND IN THE FEDERAL REPUBLIC OF GERMANY .

3 IT IS CLEAR FROM THE DOCUMENTS FORWARDED TO THE COURT OF JUSTICE BY THE COUR DU TRAVAIL THAT , FOLLOWING THE AMENDMENT ON 1 APRIL 1975 OF THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 2 ) OF BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967 , A PERSON WHO HAS WORKED AS AN UNDERGROUND COALMINER FOR 25 YEARS IS ENTITLED TO A FULL PENSION OF 30/30THS . THE FIVE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH HE BENEFITS ARE NOT LOCALIZED IN TIME . HOWEVER , THE OFFICE ' S PRACTICE WAS TO REDUCE THE BENEFIT OF THOSE YEARS OF NOTIONAL EMPLOYMENT BY THE NUMBER OF YEARS OF ACTUAL EMPLOYMENT IN ANOTHER MEMBER STATE . THAT PRACTICE WAS BASED ON THE LAW OF 10 FEBRUARY 1981 WHICH ENTERED INTO FORCE RETROACTIVELY ON 1 JANUARY 1981 AND WHICH PROVIDES FOR A REDUCTION OF THE NUMBER OF ADDITIONAL YEARS THUS TAKEN INTO ACCOUNT IN THE CASE OF A MINER BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE CAN CLAIM A PENSION UNDER ANOTHER BELGIAN SCHEME , EXCLUDING THE SCHEME FOR SELF-EMPLOYED WORKERS , OR UNDER A SCHEME IN A FOREIGN COUNTRY .

4 MR ROMANO WAS EMPLOYED IN ITALY AND IN GERMANY BEFORE HIS EMPLOYMENT IN BELGIUM , FROM 13 OCTOBER 1947 TO 28 FEBRUARY 1959 , AS A MINEWORKER UNDERGROUND . FROM 1 MARCH 1959 TO 31 DECEMBER 1972 HE RECEIVED INVALIDITY BENEFITS AS AN UNDERGROUND MINER . SINCE THE RELEVANT BELGIAN LEGISLATION TREATS THE LATTER PERIOD AS A PERIOD OF ACTUAL EMPLOYMENT , MR ROMANO WAS ABLE TO CLAIM AN EMPLOYMENT RECORD SPANNING 25 YEARS . ON 1 JANUARY 1973 HE RETIRED . THE PENSION PAID TO HIM FROM 1 JANUARY 1973 TO 31 MARCH 1975 DOES NOT GIVE RISE TO ANY DISPUTE . AS REGARDS THE PERIOD AFTER 1 APRIL 1975 , THE OFFICE ESTABLISHED , BY DECISION OF 29 OCTOBER 1979 , THAT MR ROMANO COULD CLAIM AN EMPLOYMENT RECORD SPANNING 30 YEARS FOR THE PURPOSES OF THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 2 ) OF BELGIAN ROYAL DECREE NO 50 WITH A VIEW TO OBTAINING A FULL PENSION , WHICH IT REDUCED HOWEVER , IN ACCORDANCE WITH ITS CONSISTENT PRACTICE , BY 5/30THS CORRESPONDING TO THE FIVE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT ON THE GROUND THAT THOSE YEARS COINCIDED WITH THE YEARS OF ACTUAL EMPLOYMENT IN ITALY AND GERMANY .

5 MR ROMANO CHALLENGED THE OFFICE ' S DECISION BEFORE THE COMPETENT NATIONAL COURTS . WHEN THE DISPUTE CAME BEFORE IT ON APPEAL , THE COUR DU TRAVAIL , LIEGE , CONSIDERED THAT AS REGARDS THE PERIOD PRECEDING THE ENTRY INTO FORCE OF THE AFOREMENTIONED LAW , THERE WAS NO BASIS UNDER NATIONAL LAW FOR REDUCING MR ROMANO ' S BELGIAN MINER ' S PENSION . HOWEVER , IT RAISED THE QUESTION WHETHER THE ENTRY INTO FORCE OF THE LAW OF 10 FEBRUARY 1981 WAS CAPABLE OF ALTERING THE ASSESSMENT OF THE RELEVANT ADMINISTRATIVE PRACTICE MADE BY THE COURT OF JUSTICE IN ITS JUDGMENT OF 2 JULY 1981 IN JOINED CASES 116 , 117 , 119 , 120 AND 121/80 ONPTS V CELESTRE ( 1981 ) ECR 1737 . ACCORDINGLY , THE NATIONAL COURT REFERRED THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

' ( 1 ) IN VIEW OF THE INCLUSION OF NEW WORDING :

( A ) IN SUBPARAGRAPH ( 1 ) OF ARTICLE 10 ( 2 ) OF ROYAL DECREE NO 50 OF 24 OCTOBER 1967 BY ARTICLE 11 OF THE LAW OF 10 FEBRUARY 1981 ;

( B)IN THE ROYAL DECREE OF 21 DECEMBER 1967 BY THE ADDITION OF ARTICLE 32 QUINQUE BY ARTICLE 3 OF THE ROYAL DECREE OF 30 MARCH 1981 , DOES SUBPARAGRAPH ( 1 ) OF ARTICLE 10 ( 2 ), THUS SUPPLEMENTED , CONSTITUTE A RULE AGAINST OVERLAPPING BENEFITS WITHIN THE MEANING OF ARTICLE 12 OF REGULATION NO 1408/71?

( 2)IN THE EVENT OF AN AFFIRMATIVE ANSWER TO QUESTION 1 , IS THE RULE THUS LAID DOWN BY THE SAID NEW SUBPARAGRAPH ( 1 ) OF ARTICLE 10 ( 2 ) COMPATIBLE WITH THE TREATY OF ROME AND WITH THE COMMUNITY REGULATIONS CONCERNED , IN PARTICULAR REGULATIONS NOS 1408/71 AND 574/72?

( 3)IS IT APPROPRIATE TO APPLY ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 , ON THE BASIS OF ARTICLE 46 ( 1 ), AND ACCORDING TO WHAT PROVISIONS OR PROCEDURES IN THE SPECIFIC CASE OF THE RESPONDENT , IN CONSEQUENCE OF THE NEW RULES RESULTING FROM THE LAW OF 10 FEBRUARY 1981 AND THE ROYAL DECREE OF 30 MARCH 1981 AND THE INTERPRETATION GIVEN TO THE JUDGMENT IN THE CELESTRE CASE OF 2 JULY 1981 BY THE APPELLANT WHICH REITERATES THE VIEW THAT THE PROVISIONS AGAINST OVERLAPPING BENEFITS APPLY ONLY IF THE PENSION IS CALCULATED AND AWARDED UNDER ARTICLE 46 ( 2 ) ( A ) AND ( B ) OF REGULATION NO 1408/71?

'

6 THE QUESTIONS REFERRED TO THE COURT OF JUSTICE BY THE COUR DU TRAVAIL , LIEGE , ARE CONCERNED WITH A PROBLEM INVOLVING THE INTERPRETATION OF COMMUNITY LAW AND ARE DESIGNED ESSENTIALLY TO ASCERTAIN WHETHER A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 WHICH , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ), IS NOT TO BE APPLIED WHEN THE AMOUNT OF THE PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION .

7 THE OFFICE CONTENDS THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 CANNOT BE RELIED UPON IN THE CASE OF A BENEFIT AWARDED IN ACCORDANCE WITH ARTICLE 46 ( 1 ) OF THAT REGULATION . THE TITLE OF ARTICLE 12 IS ' PREVENTION OF OVERLAPPING OF BENEFITS ' WHILST , ACCORDING TO THE OFFICE , ARTICLE 46 ( 1 ) AUTHORIZES A STATE TO DETERMINE THE PERIODS OF INSURANCE OR RESIDENCE TO BE TAKEN INTO ACCOUNT IN PURSUANCE OF ITS LEGISLATION . THE POWER OF THE NATIONAL LEGISLATURES TO DETERMINE PERIODS OF INSURANCE IS ALSO CONFIRMED BY ARTICLE 1 ( R ) OF REGULATION NO 1408/71 . THE OFFICE TAKES THE VIEW THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 REFERS EXCLUSIVELY TO BENEFITS , NOT TO PERIODS OF INSURANCE . IT FOLLOWS , IN ITS VIEW , THAT WHEN ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 IS APPLIED , ACCOUNT MUST BE TAKEN OF A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE .

8 MR ROMANO CONSIDERS THAT LEGISLATION OF THE KIND AT ISSUE IN THIS CASE CONTAINS A ' PROVISION FOR REDUCTION OF BENEFIT ' WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 WHICH MUST NOT BE APPLIED , BY VIRTUE OF ARTICLE 12 ( 2 ), WHEN THE AMOUNT OF A MIGRANT WORKER ' S PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION . THE REDUCTION IS EFFECTED BY DEDUCTING THE PERIODS OF INSURANCE TAKEN INTO ACCOUNT UNDER THE LEGISLATION OF ANOTHER MEMBER STATE FROM THOSE NORMALLY TAKEN INTO CONSIDERATION FOR THE CALCULATION OF THE PENSION . BUT THAT FACT IS IMMATERIAL SINCE THE RULE IS MERELY A TECHNICAL METHOD OF PREVENTING THE OVERLAPPING OF BENEFITS . MR ROMANO ALSO REFERS TO PARAGRAPH ( C ) OF THE OPERATIVE PART OF THE COURT ' S JUDGMENT OF 2 JULY 1981 IN THE ABOVE-MENTIONED CELESTRE CASE .

9 THE COMMISSION CONSIDERS THAT A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 AND THAT , WHEN THE BENEFIT IS CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 1 ), THAT NATIONAL PROVISION IS NOT TO BE APPLIED , HAVING REGARD TO THE LAST SENTENCE OF ARTICLE 12 ( 2 ).

10 THE ITALIAN GOVERNMENT INFERS FROM THE OPERATIVE PART OF THE COURT ' S JUDGMENT OF 2 JULY 1981 IN THE CELESTRE CASE THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 PRECLUDES THE APPLICATION OF A NATIONAL RULE TO THE CALCULATION OF A PENSION AWARDED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION WHICH REDUCES THE BENEFIT OF THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT BY THE YEARS OF INSURANCE COMPLETED IN ANOTHER MEMBER STATE .

11 IT MUST BE POINTED OUT IN THE FIRST PLACE THAT THE AMOUNT OF THE PENSION AWARDED TO A WORKER WHO HAS BEEN SUBJECT TO THE LEGISLATION OF MORE THAN ONE MEMBER STATE MUST , IN THE MEMBER STATE IN WHICH ' THE CONDITIONS FOR ENTITLEMENT TO BENEFIT HAVE BEEN SATISFIED , WITHOUT APPLICATION OF THE PROVISIONS OF ARTICLE 45 BEING NECESSARY ' , BE CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 ( 1 ).

12 IN ITS JUDGMENT OF 2 JULY 1981 IN THE CELESTRE CASE THE COURT STATED THAT : ' IT IS CLEAR FROM THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 THAT WHERE THE PROVISIONS OF ARTICLE 46 OF THE REGULATION ARE APPLIED , NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION , SUSPENSION OR WITHDRAWAL DO NOT APPLY . IT FOLLOWS THAT THE AMOUNT REFERRED TO IN ARTICLE 46 ( 1 ) IS THE AMOUNT TO WHICH THE WORKER WOULD BE ENTITLED UNDER NATIONAL LEGISLATION IF HE WERE NOT IN RECEIPT OF A PENSION BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE ' .

13 IT FOLLOWS FROM THE AFORESAID JUDGMENT THAT , PURSUANT TO ARTICLE 12 ( 2 ) AND ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , THE AMOUNT OF A MIGRANT WORKER ' S PENSION MUST BE DETERMINED IN ACCORDANCE WITH THE RELEVANT NATIONAL LEGISLATION , IRRESPECTIVE OF ANY ENTITLEMENT TO A PENSION WHICH MAY ARISE UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE .

14 THE FACT THAT THE REDUCTION OF THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE IS NOW EFFECTED AT NATIONAL LEVEL ON THE BASIS OF A STATUTORY PROVISION , AND NO LONGER BY THE APPLICATION OF A MERE ADMINISTRATIVE PRACTICE , CANNOT ALTER THAT CONCLUSION .

15 FOR THOSE REASONS , THE ANSWER TO THE QUESTION SUBMITTED BY THE NATIONAL COURT MUST BE THAT A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY WHICH , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ), IS NOT TO BE APPLIED WHEN THE AMOUNT OF THE PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION .

Decision on costs

COSTS

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

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER ),

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE COUR DU TRAVAIL , LIEGE , BY JUDGMENT OF 24 FEBRUARY 1984 , HEREBY RULES :

A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY WHICH , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ), IS NOT TO BE APPLIED WHEN THE AMOUNT OF THE PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION .