CELEX: 61985CC0197
Language: en
Date: 1987-06-10
Title: Opinion of Mr Advocate General Lenz delivered on 10 June 1987. # Office national des pensions pour travailleurs salariés (ONPTS) v Domenica Stefanutti. # Reference for a preliminary ruling: Cour du travail de Mons - Belgium. # Social security - Application of national rules for the overlapping of benefits - Classification of an invalidity pension of another Member State. # Case 197/85.

OPINION OF MR ADVOCATE GENERAL LENZ
      delivered on 10 June 1987 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      A — Facts of the case
      
               1.
            
            
               The case on which I give my Opinion today concerns the interpretation of 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’ as well as the interpretation of Regulation No 574/72 laying down the procedure for implementing Regulation No 1408/71 with regard to provisions of Belgian legislation concerning the overlapping of social security benefits.
            
         
               2.
            
            
               Those provisions provide on the one hand (Article 25 of the Royal Decree of 24 October 1967) that a survivor's pension is not to be paid to persons in receipt of an invalidity pension (including a foreign invalidity pension); in such a case, only an ‘adaptation allowance’, equal to the annual sum of the survivor's pension, is payable. On the other hand, according to Article 20 of that decree, where a survivor's pension overlaps with an old-age pension, a reduction is made in accordance with an upper limit laid down in a decree of December 1967. Another necessary piece of information in this regard is that — initially in practice and since 1981 pursuant to a decree — an invalidity pension is treated as an old-age pension from the time when the requirements for the granting of an old-age pension are fulfilled (which in the case of women is the attainment of 60 years of age).
            
         
               3.
            
            
               Those provisions were applied in the case of an Italian national born in 1919 and resident in Italy who has received her own Italian invalidity pension since July 1969. In 1972 she married an Italian who had worked for 15 years in Italy and over 16 years in Belgium. He died in February 1977.
            
         
               4.
            
            
               When she made an application after that date for a survivor's pension (which was forwarded from Italy to the Belgian insurance institution) she initially received, for the period February 1977 to January 1978, only the aforementioned Belgian adaptation allowance on account of her Italian invalidity pension. A widow's pension (calculated according to the length of time which her deceased husband had worked in Belgium) was then granted to her from April 1979 (after she had reached 60 years of age) for the precise reason that, as we have seen, from that moment the invalidity pension is treated as an old-age pension. The widow's pension was, however, reduced in accordance with the upper limit laid down in the Decree of December 1967.
            
         
               5.
            
            
               Not happy with that reduction, Mrs Stefanutti commenced proceedings in the tribunal du travail (Labour Tribunal), Charleroi. That tribunal took the view that Article 25 of the Decree of 24 October 1967 was not applicable because the Italian invalidity pension was to be regarded as an old-age pension. It held that Mrs Stefanutti was entitled to a Belgian survivor's pension as from February 1977. The tribunal also took the view that, because a survivor's pension and an old-age pension were of a different nature, the former could overlap with an Italian pension only within the limits laid down in the Decree of December 1967.
            
         
               6.
            
            
               The competent Belgian insurance institution, the Office national des pensions pour travailleurs salariés (National pension office for employed persons) appealed against that decision to the cour du travail (Labour Court), Mons, which accepted its view that Mrs Stefanutti's invalidity pension was to be treated as an old-age pension only after she had reached 60 years of age. Mrs Stefanutti cross-appealed. She takes the view that, in accordance with Article 7 (1) (b) of Regulation No 574/72, the Italian invalidity pension can in any case only be taken into account in proportion to the Italian insurance period. Article 7 (1) (b) provides that:
               
                        ‘(1)
                     
                     
                        Where a person entitled to a benefit due under the legislation of one Member State is also entitled to benefits under the legislation of one or more of the other Member States, the following rules shall apply:
                        
                                 (a)
                              
                              
                                 ... ;
                              
                           
                                 (b)
                              
                              
                                 as regards benefits in respect of invalidity, old age or death (pensions) awarded under Article 46 (2) of the Regulation by the institution of a Member State, that institution shall take into account any benefits of a different kind and any income or remuneration likely to entail the reduction or suspension of the benefit due from that institution, not for the calculation of the theoretical amount referred to in Article 46 (2) (a) of the Regulation but exclusively for the reduction or suspension of the amount referred to in Article 46 (2) (b) of the Regulation. However, only a fraction of the total amount of such benefit, income or remuneration shall be taken into account, and that fraction shall be determined in proportion to the duration of the periods of insurance completed, in accordance with Article 46 (2) (b) of the Regulation.’
                              
                           
                  
         
               7.
            
            
               Since the Mons court is not clear how the Belgian provisions against overlapping benefits are to be viewed in Community law and what Article 7 (1) (b) of Regulation No 574/72 means, it has decided, by judgment of 21 June 1985, (
                     1
                  ) to stay the proceedings and to submit the following questions to the Court for a preliminary ruling under Article 177 of the EEC Treaty:
               
                        ‘(1)
                     
                     
                        Where the widow of a migrant worker has become entitled to a personal invalidity pension in one Member State without application of the Community regulations and claims a survivor's benefit in another Member State on the basis of her husband's employment, again without application of the Community regulations, is it compatible with Articles 48 and 51 of the EEC Treaty that the institution of the second State which grants the survivor's pension should take into account, in applying the rules laid down in its own legislation for preventing the overlapping of benefits, the invalidity pension granted by the first State in the same way as it takes into account invalidity benefits granted under its own legislation?
                     
                  
                        (2)
                     
                     
                        If the answer to the first question is in the affirmative, how must the invalidity pension granted by another Member State, which is not convertible into an old-age pension, be treated if the legislation of a Member State treats the overlapping of the survivor's pension granted by that State with an invalidity benefit or old-age benefit differently: must it be treated as an invalidity benefit or as an old-age benefit? Should a distinction possibly be made according to whether or not the recipient of the invalidity pension has reached retirement age or is receiving an old-age benefit?
                     
                  
                        (3)
                     
                     
                        Should that retirement age be the age laid down in the legislation which includes the provision relating to overlapping benefits or the age laid down in the legislation governing the unconvertible benefit, the overlapping of which with another benefit is regulated?
                     
                  
                        (4)
                     
                     
                        Is Article 7 (1) (b) of Regulation No 574/72 applicable to the overlapping of an indirect pension (a survivor's pension) with a direct pension of a different kind (invalidity or old-age pension)?’
                     
                  
         
               8.
            
            
               My views in this regard, formulated in the light of the arguments put forward by the parties to the main proceedings, the Italian Government and the Commission (which are all summarized in the Report for the Hearing), are as follows.
            
         B — Opinion
      
               9. (1)
            
            
               Since in proceedings under Article 177 of the EEC Treaty it is not possible to rule on the question whether national law is compatible with Community law (which, judging by the wording of the first question, is essentially what is expected of the Court), the first question to be considered (after an appropriate rewording of this question) is how Community law deals with the application of a provision of Belgian law against overlapping benefits to a foreign invalidity pension in a case in which a person has become entitled to a personal invalidity pension and a survivor's pension without the application of Community legislation.
            
         
               10. (a)
            
            
               With regard to that last point, it is necessary to bear in mind that it is clear from the relevant case-law that in cases in which benefits may be claimed solely on the basis of national legislation national law in its entirety (including provisions for preventing the overlapping of benefits) must be applied. In this regard, see the judgments in Cases 98/77, 116, 117, 119 to 121/80, 238/81 and 296/84. (
                     2
                  ) It is clear from that case-law that in a case'such as that which is the subject of the main proceedings Community law is not in principle opposed to the application of national anti-over-lapping rules.
            
         
               11.
            
            
               The respondent's representative has objected that his client's entitlement to a pension acquired on the basis of her own periods of insurance constitutes a property right within the meaning of Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and should therefore escape the application of a national anti-overlapping rule. It is understandable that such considerations should arise in a case such as this. However, it must be borne in mind that they concern the relationship between Belgian law and principles of that kind (the basic right to the protection of property is another possible consideration). Regard cannot therefore be given to such considerations in proceedings for a preliminary ruling but only in proceedings before the national courts, which, should the occasion arise, must inquire whether the provision of national law that it is required to apply is compatible with higher-ranking law.
            
         
               12. (b)
            
            
               It may also be noted that, because the Belgian anti-overlapping rules are of an external nature (that is to say that they also cover foreign benefits), they are not dependent on the extension provision in Article 12 (2) of Regulation No 1408/71 which states that:
               ‘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 ... may be invoked even though the right to such benefits was acquired under the legislation of another Member State ... ’.
            
         
               13.
            
            
               Consequently, in such a situation, the limitation to be inferred from the next sentence of Article 12 is, initially at least, irrelevant:
               ‘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, 51 or Article 60 (1) (b).’
            
         
               14. (c)
            
            
               The scope of that provision is important for another reason, however. The Court has always emphasized that in such cases (namely where benefits are payable under national law alone without recourse to Community law) a comparison should be made with the calculations made under Article 46 of Regulation No 1408/71 and ‘the rules regarding aggregation and apportionment must be applied if their application is more favourable than the application of national legislation’. (
                     3
                  ) However, if this brings Article 46 into operation, then, as we have seen, Article 12 (2) also comes into operation and the principle of that provision is that national anti-overlapping rules may not be applied to benefits of the same kind.
            
         
               15.
            
            
               The question how that provision must be interpreted has been dealt with by the Court many times. For present purposes, I need only point out that in the judgment in Case 171/82, (
                     4
                  ) for example, the Court held that social security benefits must be regarded, irrespective of characteristics peculiar to the various national laws, as being of the same kind when their purpose and object together with the basis on which they are calculated and the conditions for granting them are identical (the same view was expressed in Case 238/81).
            
         
               16.
            
            
               In the present case, the Commission has attempted to show that those conditions are not fulfilled where there is an entitlement to a widow's pension on the one hand and to an invalidity pension on the other. The purpose of a widow's pension is to compensate for the loss of a husband's income at a time when it is not easy for the survivor, owing to her age, to find work herself, whereas the purpose of an invalidity pension is to compensate for the impairment of the recipient's ability to work. Moreover, there can be no question of the basis for calculation and the conditions for granting the benefits being the same; in one case they are related to the deceased husband's employment record and the benefit is conditional (in the case of widows) on the attainment of 45 years of age, whereas the invalidity pension is based on the respondent's own employment record in Italy and its payment is not conditional on the attainment of a specific age.
            
         
               17.
            
            
               The Commission has also explained that in the case of the overlapping of the widow's pension with an Italian old-age pension there can be no question of the same kind of benefits. It was able to refer in this regard not only to a similar finding in the Opinions in Cases 34/69 and 132/81 (
                     5
                  ) but also to the fact that different insurance periods are used for calculating the pensions and that the conditions for payment (minimum age) are also different.
            
         
               18.
            
            
               In my view, there is much to be said in favour of that assessment and it may accordingly be assumed that even upon application of Article 46 of Regulation No 1408/71 no obstacle to the application of the Belgian anti-overlapping rules arises under Article 12 (2) of the regulation.
            
         
               19.
            
            
               It may also be observed that that conclusion cannot be shaken by the preamble to Regulation No 1408/71. As the respondent has pointed out in particular, the preamble speaks of guaranteeing accrued rights and advantages and avoiding unjustified overlapping of benefits. Apart from the fact that the relevant recital in the preamble mentions only workers whose acquired rights and advantages are to be guaranteed (whereas the main proceedings concern the entitlements of a worker's survivor), that general wording can hardly be relied upon against the precise provision of Article 12 to substantiate the proposition that anti-overlapping rules are not applicable because different insurance periods which do not overlap cannot lead to an unjustified duplication of benefits. The same applies to the respondent's argument that anti-overlapping rules make sense only if one person's working life is the basis for the benefits since the risk of the relevant periods' overlapping does not exist in the case of different working lives. Here again, Article 12 does not provide any guidance; there is nothing to exclude the application of anti-overlapping rules where benefits are related to the employment records of two different persons.
            
         
               20. (d)
            
            
               However, besides those observations, two further points must be made which may also be deduced from the Court's decisions.
            
         
               21.
            
            
               The first point is that in its judgment in Case 238/81 the Court found that Article 46 (3), which sought to limit, by the means provided in paragraphs (1) and (2) of that article, the overlap of acquired benefits, was applicable, to the exclusion of rules against overlapping laid down by national legislation. (
                     6
                  ) The second point is that in paragraph 21 of its judgment in Case 296/84 Sinatra v FNROM the Court stated that the amount referred to in the first paragraph of Article 46 (1) was 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 and the application of a national rule designed to prevent the overlapping of domestic and foreign benefits was precluded in this context, in accordance with Article 12 (2).
            
         
               22.
            
            
               My observations can be confined to those points. Their significance for the case now before the national court must be determined by that court.
            
         
               23.
            
            
               
                  (2) The second and third questions, to which I turn next, relate to the different Belgian anti-overlapping provisions which I mentioned at the beginning. One of those provisions provides that the widow's pension ceases to be payable, save for an adaptation allowance, if an invalidity pension is also drawn, whilst the other provision provides that, where a widow's pension overlaps with an old-age pension, a ceiling applies (it is necessary to add that an invalidity pension is regarded as an old-age pension from the time when the age is reached at which an old-age pension may be drawn).
            
         
               24.
            
            
               The cour du travail would like to know in that regard whether an invalidity pension granted by another Member State which is not convertible into an old-age pension must be treated as an invalidity benefit or as an old-age benefit; it also wishes to know whether it is important for the purpose of that question that the recipient has reached retirement age or is in receipt of an old-age benefit'; and finally, whether in the present case the retirement age must be determined in accordance with Belgian law or Italian law.
            
         
               25.
            
            
               The Italian Government and the respondent in the main proceedings have essentially argued in this regard that, because the Italian invalidity pension has the same purpose and basis of calculation as an old-age pension, it must be regarded as an old-age pension and therefore the fact that the retirement age for women is 55 in Italy must also be a decisive factor. The Commission's view on these questions, however, is that Community law provides no answer to them; the Belgian court must answer them in accordance with domestic law.
            
         
               26.
            
            
               As I see the case, the Commission's view should be adopted.
            
         
               27.
            
            
               In actual fact, the only provision which comes to mind in this regard is Article 43 of Regulation No 1408/71, which states that:
               ‘Invalidity benefits shall be converted into old-age benefits, where appropriate, under the conditions laid down by the legislation or legislations under which they were granted, and in accordance with the provisions of Chapter 3.’
            
         
               28.
            
            
               In this regard, it is however important to note — particularly with regard to the words ‘where appropriate’ — that there was no provision in Italy for the automatic conversion of an invalidity pension into an old-age pension upon the attainment of the age of 55 (in the case of women) until the Law of 12 June 1984 was passed; in the period prior to that Law there was no such provision (that period being the relevant period in the present case).
            
         
               29.
            
            
               Moreover, as far as the question of classification is concerned, reference can only be made to the relevant case-law for which it is clear (see the judgment in Case 93/75 (
                     7
                  )) that the Court of Justice may not give a preliminary ruling on the question of how a benefit awarded under the legislation of a Member State must be classified under the legislation of another Member State. Such a question pertains, as it was emphasized, to national law alone and it is therefore ‘a matter for the national court to give a ruling on the content and interpretation of the provisions of its own national legislation on overlapping benefits’ (as the Court expressly held in Joined Cases 116, 117 and 119 to 121/80 RWP v Celestre and Others (
                     8
                  )).
            
         
               30.(3)
               
            
            
               Finally, the fourth question relates to Article 7 (1) (b) of Regulation No 574/72 (which I mentioned at the beginning) enacted to implement Article 12 of Regulation No 1408/71. That provision concerns, of course, cases in which the recipient of a benefit payable under the legislation of one Member State is also entitled to benefits under the legislation of one or more other Member States. It provides that:
               ‘as regards benefits in respect of invalidity, old age or death (pensions) awarded under Article 46 (2) of the Regulation by the institution of a Member State, that institution shall take into account any benefits of a different kind and any income or remuneration likely to entail the reduction or suspension of the benefit due from that institution, not for the calculation of the theoretical amount referred to in Article 46 (2) (a) of the Regulation but exclusively for the reduction or suspension of the amount referred to in Article 46 (2) (b) of the Regulation. However, only a fraction of the total amount of such benefit, income or remuneration shall be taken into account, and that fraction shall be determined in proportion to the duration of the periods of insurance completed, in accordance with Article 46 (2) (b) of the Regulation.’
            
         
               31.
            
            
               The point to be clarified in this regard is whether that provision is also applicable to the overlapping of a survivor's pension with an invalidity or old-age pension.
            
         
               32.
            
            
               I would not hesitate to give an affirmative answer to that question as it is put since a survivor's pension is certainly to be regarded as a benefit in respect of death and the invalidity or old-age pensions involved in the present case are clearly benefits which may entail reductions under Belgian law.
            
         
               33.
            
            
               However, according to its wording, the provision in question applies only if benefits are awarded under Article 46 (2), that is to say if they are calculated in proportion to the insurance periods completed in the various Member States (apportionment). This is not so in the present case because the conditions for the grant of the survivor's pension are fulfilled without any need to resort to foreign periods of insurance and employment. Therefore, Article 7 (1) (b) of Regulation No 574/72 could only enter into consideration in the comparison required by the Court's case-law, that is to say when it is to be determined whether or not the application of Community law (Article 46) leads to more favourable results than the application of national law alone.
            
         
               34.
            
            
               No more is to be said on the fourth question from the point of view of Community law.
            
         C — Conclusion
      To sum up, I propose that the questions submitted by the cour du travail, Mons, should be answered as follows:
      
               35.
            
            
               ‘(a) If entitlement to a benefit arises under national law alone (that is to say without it being necessary to take into account, pursuant to provisions of Community law, periods of insurance or employment completed abroad), Community law does not exclude the application of national law in its entirety, including any provisions for preventing the overlapping of benefits. If the application of national law proves less favourable to the person concerned than the application of Community law, Community law (thus Article 46 of Regulation No 1408/71) comes into operation. In that case Article 12 (2) of Regulation No 1408/71 does not exclude the application of national provisions for preventing the overlapping of benefits if the benefits involved are of a different kind, which is the case with a survivor's pension and an invalidity or old-age pension.
            
         
               36.
            
            
               (b) In the absence of criteria laid down by Community law, Questions 2 and 3, which relate to the classification of an invalidity pension granted by another Member State and which are important for the application of Belgian anti-over-lapping provisions, must be answered on the basis of national law for the interpretation of which the Court of Justice has no jurisdiction.
            
         
               37.
            
            
               (c) Article 7 (1) (b) of Regulation No 574/72 applies in the event of the lawful application of national anti-overlapping provisions to a survivor's pension on the one hand and an invalidity or old-age pension on the other hand if the benefit is calculated according to the law containing the anti-overlapping provisions and with regard to Article 46 (2) of Regulation No 1408/71.’
            
         (
            *1
         )	Translated from the German.
      (
            1
         )	Registered at the Court on 26 June 1985.
      (
            2
         )	I refer in this regard to the following four judgments; judgment of 14 March 1978 in Case 98/77 Max Schaap v Bestuur van de Bedrijfsvereniging voor Bank- en Verzekeringswezen Groothandel en Vrije Beroepen, [1978] ECR 707; judgment of 2 July 1981 in Joined Cases 116, 117 and 119 to 121/80 Rijksdienst voor Werknemerspensioenen v Giorgio Celestre and Others [1981] ECR 1737; judgment of 5 May 1983 in Case 238/81 Raad van Arbeid v Van der Bunt-Craig [1983] ECR 1385; judgment of 13 March 1986 in Case 296/84 Antonio Sinatra v Fonds national de retraite des ouvriers mineurs (FNROM) [1986] ECR 1047.
      (
            3
         )	See the judgment in Case 98/77 Schaap [1978] ECR 707, paragraphs 10 and 11 at p. 714; sec also the judgments in Celestre, Van der Bunt-Craig and Sinatra, cited above.
      (
            4
         )	Judgment of 5 July 1983 in Case 171/82 Biagio Valentini v ASSEDIO, Lyon [1983] ECR 2157, paragraph 13 at p. 2170.
      (
            5
         )	Opinion of Mr Advocate General Römer of 3 December 1969 in Case 34/69 Caisse d'assurance vieillesse des travailleurs salariés de Paris v Jeanne Duffy [1969] ECR 605; Opinion of 25 March 1982 of Mr Advocate General VerLoren van Themaat in Case 132/81 Rijksdienst voor Werknemerspensioenen v Alice Vlaeminck [1982] ECR 2965.
      (
            6
         )	Judgment of 5 May 1983 in Case 238/81 Raad van Arbeid v Van der Bunt-Craig [1983] ECR 1385, paragraph 15 at p. 1401.
      (
            7
         )	Judgment of 17 December 1975 in Case 93/75 Jacob Adlerblum v Caisse national d'assurance vieillesse des travailleurs salariés [1975] ECR 2151.
      (
            8
         )	Judgment of 2 July 1981 in Joined Cases 116, 117 and 119 to 121/80 Rijkdienst voor Werknemerspensioenen v Giorgio Celestre and Others [1981] ECR 1737, paragraph 10 at p. 1753.