Office National des Pensions v Raffaele Levatino.
Date: 1993-04-22
20 In a reference for a preliminary ruling arising out of a dispute concerning precisely the application of the income guaranteed to elderly persons as provided for by the Belgium Law of 1 April 1969, the Court held in Case 1/72 Frilli v Belgian State [1972] ECR 457, paragraph 18, that as regards a wage-earner or assimilated worker who has completed periods of employment in a Member State, resides in that State and is entitled to a pension there, the legislative provisions giving all elderly residents a legally protected right to a minimum pension are provisions, which as regards these workers, come within the field of social security covered by Article 51 of the Treaty and within the regulations adopted in application of that article, even where such legislation might fall outside this classification as regards other categories of recipients.
24 The provisions of the Regulation disclose an intention on the part of the Community legislator to include non-contributory old-age benefits, such as the guaranteed income, within the scope of Article 46.
30 As the Court has consistently held (see Case C-227/89 Roenfeldt v Bundesversicherungsanstalt fuer Angestellte [1991] ECR I-323, paragraph 12) the sole purpose of the Regulation is to secure coordination as between national social security legislation, which leaves in being their differences, and it cannot have the effect of altering national legislation.
31 The Court held, inter alia, in Frilli (paragraphs 20 and 21) that, if the difficulties which might occur as a result of the application of the Community legislation to benefits such as the guaranteed income did not adversely affect the right and duty of courts and tribunals to ensure that migrant workers received protection wherever this proved to be possible, that protection could and should be ensured only in so far as it did not lead to disruption of the system set up by the national legislation in question.
33 As the Court has consistently held (see in particular Case C-93/90 Cassamali v Office National des Pensions [1990] ECR I-1401, paragraphs 15 and 16), Article 51(1) must be interpreted as meaning that, in order to reduce the administrative burden which a fresh examination of the worker' s situation following every alteration of benefits would represent, it excludes a recalculation of benefits in accordance with Article 46 of the Regulation when the alteration which affects one of the benefits results from events unconnected with the worker' s personal circumstances and is the consequence of the general evolution of the economic and social situation. Only when the adjustment is due to an alteration of the method of determination or the rules for calculating a benefit by reason, inter alia, of a change in the worker' s personal circumstances is it necessary under Article 51(2) to carry out a recalculation of the old-age benefits.
34 The purpose of a benefit such as the income guaranteed to elderly persons is 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 Law, at least where he resides in the territory of the State providing the benefit. Entitlement to the benefit is not conditional on the length of insurance cover or, in the case of certain beneficiaries, on the duration of residence. Its amount, which is independent of the length of insurance cover or the duration of residence, is equal to the difference between the minimum income fixed by the national rules, on the one hand, and part of the beneficiary' s resources, including the national and foreign pensions which he receives, on the other. In view of its differential nature, the amount of this benefit varies, by its nature, in accordance with the evolution of the amount of the guaranteed income, which is regularly re-assessed, and the resources of the person concerned.
35 The result of the application of Article 51(1) would, according to the case-law of the Court, be that the increase in the resources of the person concerned as a result of the increase in his foreign pension would not be taken into account and that he would systematically receive an amount of resources which would exceed ° and, over time, significantly exceed ° the minimum income guaranteed by the Law.
36 The application of the provisions of Article 51(1) in this way 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.
49 Suffice it to say, in any event, that the Court held in Case 22/77 Fonds National de Retraite des Ouvriers Mineurs v Mura [1977] 1699, paragraphs 9 and 10, on the one hand, that if the application of Community provisions causes migrant workers to obtain an advantage over non-migrant workers, this is not, for all that, discriminatory, since migrant workers are not in a situation comparable to that of workers who have never left their own country and, on the other hand, that any differences which may exist to the benefit of migrant workers do not result from the interpretation of Community law but rather from the lack of any common social security system or of any harmonization of the existing national schemes, which cannot be mitigated by the mere coordination at present practised.