Office national des pensions (ONP) v Maria Cirotti.
Date: 1997-10-02
7 By application of 17 January 1989, Mrs Cirotti challenged that decision of the ONP before the Tribunal du Travail de Bruxelles (Labour Court, Brussels), which ruled in her favour by a judgment of 17 June 1993, in which it applied by analogy to the present case the interpretation given by the Court of Justice in Case C-93/90 Cassamali v Office National des Pensions [1991] ECR I-1401.  In that judgment, the Court ruled that where, under national rules against the overlapping of benefits, the pension paid to a worker by a Member State has been calculated at an amount such that, when added to the amount of a benefit of any kind paid by another Member State, it does not exceed a certain maximum, neither Article 51(1) of Regulation (EEC) No 1408/71 nor any other provision of Community law allows the amount of that pension to be adjusted in order to prevent that maximum from being exceeded, in the event of subsequent alterations being made to the other benefit on account of general economic and social developments.
9 The ONP adds that to apply the approach taken in the Cassamali judgment by analogy would result in spouses having unequal resources, since the total income of the spouse receiving the share of the retirement pension would increase if the benefit enjoyed by that person in his or her own right in another Member State was increased.  That result would be contrary to Article 3(1) of Regulation No 1408/71.
17 Next, when calculating the amount of the old-age benefits payable to a worker who has been subject to the legislation of two or more Member States, the competent institution in each Member State must compare the amount payable under the national legislation alone, including any rules against overlapping, and the amount resulting from the application of Article 46 of Regulation No 1408/71. For the calculation of each benefit, the worker must enjoy the benefit of whichever system is most favourable to him (see, in particular, the judgment in Case C-85/89 Ravida v Office National des Pensions [1990] ECR I-1063, paragraph 18).
18 As the Court pointed out in Case 7/81 Sinatra v FNROM [1982] ECR 137, at paragraph 8, any subsequent alteration in one of the benefits implies in principle that a fresh comparison is to be carried out, for each benefit, between the national system and the Community system in order to determine which is the more advantageous to the worker following the alteration.
19 In paragraphs 9 and 10 of the same judgment, however, the Court stated that, in order to reduce the administrative burden which a fresh examination of the worker's situation following every alteration of benefits would represent, Article 51(1) of Regulation No 1408/71 excluded a recalculation of benefits in accordance with Article 46 and, hence, a fresh comparison between the national system and the Community system when the alteration resulted from events unconnected with the worker's personal circumstances and was the consequence of general economic and social developments.
21 It is sufficient to note in that regard that, according to paragraph 20 of the Cassamali judgment, cited above, Article 51(1) applies even where the benefit to be reduced due to index-linked increases in another benefit has been calculated in accordance with national provisions and not according to Article 46.
22 In challenging the applicability of Article 51(1), the ONP also cites the judgment in Case C-65/92 Office National des Pensions v Levatino [1993] ECR I-2005, which concerned a dispute as to whether alterations in an Italian pension linked to changes in the cost of living should be taken into account when calculating the guaranteed income for elderly persons provided for by Belgian legislation.
25 As the Advocate General pointed out in paragraph 24 of his Opinion, the Court's reasoning in the Levatino judgment was based on the special nature of the guaranteed income for elderly persons and is therefore not applicable by analogy to the benefit at issue in the main proceedings.
26 In Levatino, having found that the purpose of the guaranteed income was to offset the inadequacy of the resources of the person concerned so as to enable him to attain the minimum level of resources guaranteed by the statute (paragraph 34), the Court held that to apply Article 51(1) would result in any increase in that person's resources as a result of the increase in his foreign pension not being taken into account, and in his systematically receiving income in excess of the minimum income guaranteed by the statute (paragraph 35).
27 In the same judgment, the Court added that to apply Article 51(1) would not only put migrant workers at an advantage, but would alter the purpose of the guaranteed income benefit and disrupt the scheme of the national legislation in question (paragraph 36).