CELEX: 61983CC0104
Language: en
Date: 1984-02-09 00:00:00
Title: Opinion of Mr Advocate General Mancini delivered on 9 February 1984. # Salvatore Cinciuolo v Union Nationale des Fédérations Mutualistes Neutres and Institut National d'Assurance Maladie-Invalidité. # Reference for a preliminary ruling: Tribunal du travail de Bruxelles - Belgium. # Social security - Recalculation of benefits. # Case 104/83.

OPINION OF MR ADVOCATE GENERAL MANCINI
      DELIVERED ON 9 FEBRUARY 1984 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In these proceedings the Court is asked to give a preliminary ruling on the interpretation 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 (Official Journal, English Special Edition 1971 (II), p. 416). In particular, it is necessary to determine whether, in the light of Article 51 (1), it is necessary to recalculate a pension determined in accordance with Article 46 when the amount of one or more benefits taken into account in the original calculation has been adjusted to compensate for an increase in die cost of living.
               Salvatore Calciuolo, the plaintiff in the main action, worked in Italy and Belgium. On 27 January 1976, while in Belgium, he became unfit for work and for that reason received sickness allowance until 31 January 1977. On 1 February 1977 he became entitled to an invalidity pension. In order to obtain an Italian pension he had recourse to Community law. To determine the amount of that pension the periods actually completed in the two Member States were aggregated pursuant to Article 45 of Regulation No 1408/71 and the benefit due to him in Italy pursuant to Article 46 (2) (b) was paid to him on a pro rata basis by the Istituto Nazionale Previdenza Sociale. In its turn, the Institut National d'Assurance Maladie-Invalidité (hereinafter referred to as “the Institut National”) paid the Belgian invalidity pension according to national law. By application of the rule against the overlapping of benefits contained in Article 70 (2) of the Law of 9 August 1963 the Belgian pension was reduced by an amount corresponding to the amount of the Italian benefit.
               On 20 October 1976 Mr Cinciuolo obtained an Italian pension for occupational disease calculated on the basis of an invalidity rate of 21% and paid by the Istituto Nazionale Assicurazione Infortuni. On learning of that, the Institut National decided to recalculate the Belgian invalidity benefit (6 November 1980). Figures then showed that the most favourable calculation for Mr Cinciuolo was that provided for by Article 46 (3) of Regulation No 1408/71. Pursuant to Article 7 (1) (c) of Regulation No 574/72 of the Council of 21 March 1972 (Official Journal, English Special Edition 1972 (I), p. 159), the Belgian benefit was therefore reduced by a fraction of the Italian pension for occupational disease.
               Adjustments made to the latter pension were at the origin of the main action. The relevant Italian legislation (cf. Article 234 of the Testo Unico sull'Assicurazione contro gli Infortuni et le Malattie Professionali [Codified Law on Insurance Against Accidents and Occupational Disease], approved by Presidential Decree No 1124 of 30 June 1965) provides that permanent invalidity pensions are to be recalculated every three years on the basis of variations in the index of minimum gross wages for agricultural workers, as established by the Istituto Centrale di Statistica [Central Statistical Office]. Since 1 July 1983 the recalculation is to be made annually (Article 3 of Law No 251 of 10 May 1982).
               The Institut National took into account the recalculations to which the pension was subject on 1 July 1977 and 1 July 1980. It therefore reduced the Belgian benefit and requested Mr Cinciuolo to refund the amounts overpaid. Mr Cinciuolo sought to settle the matter through administrative channels but was unsuccessful and so brought proceedings on 31 July 1979 and 5 December 1980 before the Tribunal du Travail, Brussels. In his opinion, the reductions made by the Institut National were contrary to Article 51 of Regulation No 1408/71; the Institut National, on the other hand, considered that Article 51 was not applicable since, in its view, it related only to pensions and not to other kinds of benefits, such as allowances for occupational disease.
               By order of 26 May 1983 the Tribunal du Travail stayed the proceedings and referred the following question to the Court for a preliminary ruling under Article 177:
               “Does Article 51 (1) of Regulation (EEC) No 1408/71 of 14 June 1971 apply solely to the invalidity, old age and survivor's pensions referred to in Article 46 or does it also apply to benefits of a different nature, such as those in respect of accidents at work or occupational disease, which, by virtue of the national rules against the overlapping of benefits, originally affected the amount of the pension fixed pursuant to Article 46 and any subsequent adjustments to which might again affect that pension?
               In other words, is it necessary to recalculate the pension pursuant to Article 46 in the event of an adjustment being made to the amount of a benefit in respect of occupational disease which is not aggregable or is partly aggregable with the pension?”
            
         
               2. 
            
            
               The question put by the Belgian court thus concerns Article 51 of Regulation No 1408/71. That article is headed “revalorization and recalculation of benefits” and comes in Chapter 3 [“Old Age and Death (Pension)”], but for obvious reasons of analogy it also applies to the invalidity benefits governed by Section 2 of Chapter 2. Article 51 provides :
               
                        “(1)
                     
                     
                         If, by reason of an increase in the cost of living ..., the benefits of the States concerned are altered by a fixed percentage or amount, such percentage or amount must be applied directly to the benefits determined under the provisions of Article 46, without the need for a recalculation ...
                     
                  
                        (2)
                     
                     
                         On the other hand, if the method of determining or the rules for calculating benefits should be altered, a recalculation shall be carried out in accordance with the provisions of Article 46.”
                     
                  The Court had occasion to deal with Article 51 in its judgment of 2 February 1982 in Case 7/81 (Sinatra v Fonds National [1982] ECR 137), where it was stated that its objective is to simplify the procedure for the payment of benefits. In particular, the Court held that a fresh calculation was not required “where the alterations in the benefits result from events unconnected with the personal circumstances of the insured” (paragraph 10). However, it must be noted that there is a difference between the present case and the Sinatra case. Mr Sinatra was receiving benefits of the same kind (invalidity pensions). Mr Cinciuolo is also receiving a benefit — that for occupational disease — which has no resemblance to a pension.
               As I have said, it is that difference on which the Institut National relies. In its view, Article 51 applies only to benefits of a similar nature. Two arguments are put forward in support of that contention: First, Article 51 refers only to Article 46, which deals with benefits of the same kind, and makes no mention of Article 12 where the nature of the benefits is irrelevant for the purposes of the rules against overlapping and account may also be taken of earned income. Secondly, it must be borne in mind that if benefits of a different kind, and in particular earned income, may overlap with an invalidity pension the difficulties of calculation involved in the application of Article 51 would become insuperable.
               I am not convinced by those arguments. Let me say first of all that Article 51 does not distinguish between benefits according to their nature. It merely requires that the alteration should relate to “benefits of the State concerned ... determined under the provisions of Article 46”. Now, it is quite clear that the occupational disease benefit is a social security benefit; indeed Article 4 (1) (e) of Regulation No 1408/71 says so expressly.
               But let us examine the Institut National's arguments more closely. With regard to the first, it seems apparent that the reference made by Article 51 to Article 46 is a reference to Article 46 as a whole. It thus includes paragraph (3), under which benefits of a different nature are also to be taken into account in calculating the pension in so far as they arc provided for by the rules against overlapping in Article 12 of Regulation No 1408/71 and Article 7 of Regulation No 574/72. Moreover, as I have said, it is precisely on that basis that on 6 November 1980 the Institut National took account of the Italian benefit for occupational disease when proportionately reducing the Belgian invalidity pension.
               As for the second argument, I cannot say that the parallel drawn by the Institut National between this pension and earned income is apt. In the first place, it is doubtful that when Article 51 refers to an alteration in the “benefits of the States concerned” it includes variations to which such income is subject. Let us assume however that, by way of Article 12, earned income has had an effect upon a benefit calculated pursuant to Article 46; even in such a case as that the difficulties which the Institut National mentions do not really strike me as insuperable. Two hypothetical cases may be conceived. In the first the alteration in earned income depends on external factors, such as an increase in the cost of living. According to the Sinatra case, Article 51 does not allow a fresh calculation. In the second case the same result arises through circumstances peculiar to the insured: for example an improvement or worsening of his health. According to the Sinatra case, the social security institution must recalculate the benefit.
               It is obvious that those observations apply a fortiori to benefits which it is not possible to regard as pensions but which are of a different nature from earned income.
            
         
               3. 
            
            
               In conclusion, I suggest that the Court should give the following answer to the question put by the Tribunal du Travail, Brussels, by order of 26 May 1983 pursuant to Article 177 of the EEC Treaty:
               “Article 51 (1) of Regulation No 1408/71 of the Council of 14 June 1971 also applies to benefits of a different nature from pensions, such as those in respect of accidents at work or occupational disease, if such benefits originally affected the amount of the pension pursuant to Article 46 or if their subsequent alteration depends on circumstances extraneous to the insured.”
            
         (
            1
         )	Translated from lhe Italian.