Collini v Office national des pensions pour travailleurs salariés.
Date: 1987-12-17
3 MR COLLINI' S 35 YEARS OF EMPLOYMENT IN BELGIUM ALONE WOULD HAVE ENTITLED HIM TO A PENSION OF BFR 326 389 . THE ONPTS CALCULATED THAT PENSION BY ADDING EIGHT YEARS OF NOTIONAL INSURANCE COVER TO THE 35 YEARS, PURSUANT TO ARTICLE 11 BIS OF ROYAL DECREE NO 50 . HOWEVER, IN VIEW OF MR COLLINI' S PERIOD OF EMPLOYMENT IN ITALY, THE ONPTS, APPLYING THE ANTI-OVERLAPPING RULE CONTAINED IN ARTICLE 11 TER OF ROYAL DECREE NO 50, REDUCED THE NUMBER OF YEARS OF NOTIONAL INSURANCE COVER FROM EIGHT TO THREE AND, CONSEQUENTLY, GRANTED MR COLLINI A PENSION OF ONLY BFR 300 490 .
10 IT MUST BE REMEMBERED, IN THE FIRST PLACE, THAT THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 3 ) FIXES THE CEILING UP TO WHICH A MIGRANT WORKER IS ENTITLED TO THE SUM OF THE BENEFITS CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 1 ) AND ( 2 ), THAT IS TO SAY THE SUM OF THE AUTONOMOUS AND PRO RATA BENEFITS . ACCORDING TO THAT ARTICLE, THE CEILING CORRESPONDS TO "THE LIMIT OF THE HIGHEST" THEORETICAL AMOUNT OF THE PENSIONS, THAT IS TO SAY THE AMOUNT TO WHICH THE WORKER WOULD HAVE BEEN ENTITLED IF HE HAD COMPLETED ALL THE INSURANCE PERIODS IN QUESTION NOT IN DIFFERENT MEMBER STATES BUT IN THE MEMBER STATE WHOSE LEGISLATION WOULD HAVE GIVEN HIM THE HIGHEST PENSION . IT IS AGREED THAT IN THIS CASE THAT CEILING CORRESPONDS TO THE AMOUNT OF THE BELGIAN PENSION TO WHICH MR COLLINI WOULD HAVE BEEN ENTITLED IF HE HAD WORKED FOR 42 YEARS IN BELGIUM AND THAT THE THEORETICAL BELGIAN PENSION, CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 2 ) ( A ) AND ( C ), AMOUNTS TO BFR 336 748 . IT IS THEREFORE WITHIN THE LIMITS OF THAT CEILING THAT MR COLLINI IS ENTITLED TO THE SUM OF THE INDEPENDENT BELGIAN BENEFIT ( BFR 326 389 ) AND THE PRO RATA ITALIAN BENEFIT ( BFR 23 829 ).
11 IT MUST THEN BE OBSERVED THAT, AS THE COURT RECALLED IN ITS JUDGMENT OF 13 MARCH 1986 IN CASE 296/84 SINATRA V FNROM (( 1986 )) ECR 1047, PARAGRAPH 19, UNDER ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71, ARTICLE 46, INCLUDING THE ANTI-OVERLAPPING RULE CONTAINED IN PARAGRAPH ( 3 ) THEREOF, IS APPLICABLE BY ANALOGY TO INVALIDITY BENEFITS WHERE A WORKER HAS BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES, AND THE LEGISLATION OF AT LEAST ONE OF THOSE MEMBER STATES MAKES THE AMOUNT OF THE BENEFITS DEPENDENT ON THE LENGTH OF THE INSURANCE PERIODS . ARTICLE 46 APPLIES, THEREFORE, IN CASES IN WHICH THE WORKER IS SUBJECT TO TWO BODIES OF LEGISLATION, ONE OF WHICH MAKES THE AMOUNT OF THE BENEFITS DEPENDENT UPON THE LENGTH OF THE INSURANCE PERIODS (" TYPE B" LEGISLATION ) WHEREAS THE OTHER DOES NOT, PROVIDED THAT THE MINIMUM QUALIFYING PERIOD FOR ENTITLEMENT TO THE BENEFIT HAS BEEN COMPLETED (" TYPE A" LEGISLATION ). ALTHOUGH IN SUCH CASES THE OVERLAPPING DOES NOT DERIVE FROM A DUPLICATION OF INSURANCE PERIODS, ARTICLE 46 APPLIES . THIS SHOWS THAT ARTICLE 46 ( 3 ) APPLIES WHERE THE SUM OF THE BENEFITS CONCERNED EXCEEDS THE CEILING LAID DOWN THEREIN, EVEN IF THE EXCEEDING OF THAT CEILING IS NOT DUE TO THE DUPLICATION OF INSURANCE PERIODS .
13 IN THOSE CIRCUMSTANCES, IT MUST BE STATED IN REPLY TO THE FIRST QUESTION THAT THE ANTI-OVERLAPPING RULE IN ARTICLE 46 ( 3 ) APPLIES IN ALL CASES IN WHICH THE TOTAL SUM OF THE BENEFITS CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 1 ) AND ( 2 ) EXCEEDS THE LIMIT OF THE HIGHEST THEORETICAL AMOUNT OF PENSION, EVEN IF THE EXCEEDING OF THAT LIMIT IS NOT DUE TO THE DUPLICATION OF INSURANCE PERIODS .
THE SECOND QUESTION