1 BY ORDER OF 2 JUNE 1982 , RECEIVED AT THE COURT ON 24 JUNE 1982 , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), LYON , REFERRED TO THE COURT FOR A PRELIMINARY RULING A QUESTION ON THE INTERPRETATION OF ARTICLE 46 OF REGULATION ( EEC ) 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 ) AND ON THE INTERPRETATION OF ARTICLE 51 OF THE EEC TREATY .
2 THAT QUESTION WAS RAISED IN THE CONTEXT OF PROCEEDINGS BETWEEN BIAGIO VALENTINI AND THE ASSOCIATION POUR L ' EMPLOI DANS L ' INDUSTRIE ET LE COMMERCE ( ASSOCIATION FOR EMPLOYMENT IN INDUSTRY AND TRADE , HEREINAFTER REFERRED TO AS ' ' THE ASSOCIATION ' ' ), LYON .
3 MR VALENTINI , AN ITALIAN NATIONAL , WORKED IN ITALY UNTIL 1957 AND , BY REASON OF THAT FACT , HAS RECEIVED SINCE THE AGE OF 60 , IN OTHER WORDS SINCE 1974 , A CONTRIBUTORY OLD-AGE PENSION AMOUNTING TO FF 15 PER DAY , WHICH IS PAID BY THE ISTITUTO NAZIONALE PER LA PREVIDENZA SOCIALE ( NATIONAL SOCIAL WELFARE INSTITUTION ).
4 SUBSEQUENTLY , MR VALENTINI WORKED IN FRANCE FROM 1963 TO 1977 AND BY VIRTUE OF THAT FACT HAS SINCE THE AGE OF 63 , THAT IS , SINCE HE LEFT HIS PAID EMPLOYMENT IN THE LATTER YEAR , RECEIVED ALLOWANCES UNDER THE GUARANTEED INCOME RETIREMENT SCHEME .
5 THE GUARANTEED INCOME RETIREMENT SCHEME WAS TEMPORARILY SET UP IN FRANCE BY THE NATIONAL INTER-TRADE AGREEMENT OF 13 JUNE 1977 WHICH SUPPLEMENTED AND AMENDED THE NATIONAL INTER-TRADE AGREEMENT OF 27 MARCH 1972 ON THE GUARANTEED INCOME RETIREMENT SCHEME , WHICH IN TURN SUPPLEMENTED THE REGULATION ANNEXED TO THE AGREEMENT OF 31 DECEMBER 1958 SETTING UP THE NATIONAL INTER-TRADE SCHEME OF UNEMPLOYMENT INSURANCE AND BASED ON ARTICLE L 351-5 OF THE CODE DE TRAVAIL . THAT SCHEME IS ADMINISTERED BY THE OFFICES OF THE ASSOCIATION , WHICH ALSO ADMINISTER THE SCHEME ' S FUNDS AND WHICH OPERATE AS MEMBERS OF THE UNION INTERPROFESSIONNELLE POUR L ' EMPLOI DANS L ' INDUSTRIE ET LE COMMERCE ( INTER-TRADE ORGANIZATION FOR EMPLOYMENT IN TRADE AND INDUSTRY ).
6 THE ALLOWANCES PAID UNDER THE GUARANTEED INCOME SCHEME ARE GRANTED TO WORKERS OVER 60 YEARS OF AGE WHO RETIRE ON THE CONDITION THAT THEY HAVE BEEN AFFILIATED FOR 10 YEARS TO A WORKERS ' SOCIAL SECURITY SCHEME BY REASON OF AN OCCUPATION WITHIN THE FIELD OF APPLICATION OF THE UNEMPLOYMENT INSURANCE SCHEME AND THAT IN PRINCIPLE THEY CAN PROVIDE EVIDENCE OF ONE YEAR ' S CONTINUOUS EMPLOYMENT IN ONE OR MORE UNDERTAKINGS IN THE FIVE YEARS PRECEDING RETIREMENT .
7 THE ALLOWANCES REPRESENT A DAILY PROPORTION OF 70% OF THE AVERAGE DAILY EARNING DURING THE LAST THREE MONTHS OF EMPLOYMENT . THEY MAY HOWEVER BE REDUCED IN PURSUANCE OF ARTICLE 38 OF THE AMENDMENT OF 13 JUNE 1977 TO THE ANNEX TO THE REGULATION GOVERNING THE SCHEME OF SPECIAL ALLOWANCES RELATING TO THE SITUATION OF UNEMPLOYED WORKERS OVER 60 . THAT PROVISION , WHICH IS PART OF THE ABOVE-MENTIONED INTER-TRADE AGREEMENT OF 13 JUNE 1977 , SEEKS TO LIMIT THE ALLOWANCES IN QUESTION ' ' SO THAT WHEN ADDED TO THE OLD-AGE BENEFITS FOR ONE DAY , THE SUM OF THE TWO BENEFITS AMOUNTS TO A MAXIMUM OF 70% OF THE REFERENCE DAILY EARNINGS ' ' .
8 THE ASSOCIATION , LYON , ACCEPTED MR VALENTINI ' S ENTITLEMENT TO THE GUARANTEED INCOME ALLOWANCES , THE CONDITIONS OF WHICH HE SATISFIED SOLELY ON THE BASIS OF HIS WORK IN FRANCE . HOWEVER , THE ASSOCIATION DEDUCTED THE ITALIAN OLD-AGE PENSION AMOUNTING TO FF 15 PER DAY FROM THE DAILY SUM PAID TO HIM , SO THAT THE TOTAL OF THE TWO BENEFITS SHOULD NOT EXCEED THE CEILING OF 70% OF THE FORMER DAILY EARNINGS .
9 MR VALENTINI BROUGHT AN ACTION AGAINST THAT METHOD OF CALCULATION BEFORE THE TRIBUNAL DE GRANDE INSTANCE , LYON , WHICH DECIDED TO STAY THE PROCEEDINGS : ' ' UNTIL THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , INTERPRETING ARTICLE 46 OF REGULATION NO 1408/71 OF 14 JUNE 1971 AND ARTICLE 51 OF THE TREATY OF ROME , HAS DECLARED WHETHER , IN APPLICATION OF THOSE PROVISIONS , A WORKER OF ITALIAN NATIONALITY RESIDING IN FRANCE , WHO HAS BEEN IN RECEIPT OF AN OLD-AGE PENSION PAID IN ITALY SINCE THE AGE OF 60 AND WHO RECEIVES IN FRANCE THE GUARANTEED INCOME OF 70% OF HIS DAILY EARNINGS AS PROVIDED FOR IN THE AMENDMENT OF 13 JUNE 1977 TO THE ANNEX TO THE REGULATION ON ALLOWANCES FOR UNEMPLOYED WORKERS , MAY CLAIM TO HAVE HIS ITALIAN PENSION PAID CONCURRENTLY WITH THE FRENCH ALLOWANCE OF 70% OF HIS DAILY EARNINGS OR WHETHER , ON THE OTHER HAND , THE FRENCH ORGANIZATION WHICH PAYS HIM THE ALLOWANCE , NAMELY THE ASSOCIATION POUR L ' EMPLOI DANS L ' INDUSTRIE ET LE COMMERCE , IS ENTITLED TO DEDUCT FROM THAT ALLOWANCE THE SUMS PAID BY THE ITALIAN INSTITUTION . ' '
10 IT APPEARS FROM THE ORDER OF THE NATIONAL COURT THAT THE QUESTION SUBMITTED ESSENTIALLY SEEKS TO ASCERTAIN WHETHER BENEFITS SUCH AS THE ALLOWANCES UNDER THE GUARANTEED INCOME RETIREMENT SCHEME PROVIDED FOR IN THE RELEVANT FRENCH PROVISIONS FALL WITHIN THE FIELD OF APPLICATION OF ARTICLE 46 OF REGULATION NO 1408/71 IN SUCH A WAY AS TO EXCLUDE THE APPLICATION OF NATIONAL PROVISIONS AGAINST OVERLAPPING . MORE PRECISELY , THERE ARE TWO PARTS TO THE QUESTION : THE FIRST IS INTENDED TO ESTABLISH WHETHER AN ALLOWANCE OF THE TYPE PAID UNDER THE GUARANTEED INCOME SCHEME IS OF THE SAME KIND AS AN OLD-AGE PENSION WITHIN THE MEANING OF THE ABOVE-MENTIONED REGULATION ; THE SECOND PART SEEKS TO ASCERTAIN WHETHER , IN VIEW OF THE NATURE OF THE BENEFITS IN QUESTION AND IN THE LIGHT OF ARTICLE 51 OF THE EEC TREATY , EITHER NATIONAL OR COMMUNITY PROVISIONS AGAINST OVERLAPPING MAY BE APPLICABLE .
11 AS REGARDS A REPLY TO THE FIRST PART OF THE QUESTION , THE DEFENDANT IN THE MAIN PROCEEDINGS , THE FRENCH GOVERNMENT AND THE COMMISSION POINT OUT THAT BENEFITS SUCH AS THOSE ARISING UNDER THE GUARANTEED INCOME RETIREMENT SCHEME IN FRANCE MAY NOT BE REGARDED AS OLD-AGE BENEFITS , EITHER BECAUSE , AS THE ASSOCIATION , LYON , AND THE FRENCH GOVERNMENT MAINTAIN , THE BENEFITS IN QUESTION ARE UNEMPLOYMENT BENEFITS , OR BECAUSE , AS THE COMMISSION SUGGESTS , THE BENEFITS FALL INTO A SPECIAL CATEGORY WHICH IS AS YET NOT COVERED BY REGULATION NO 1408/71 , SO THAT SUCH BENEFITS MAY NOT BE REGARDED AS BEING OF ' ' THE SAME KIND ' ' AS OLD-AGE PENSIONS .
12 ON THE OTHER HAND , THE ITALIAN GOVERNMENT MAINTAINS THAT SUCH BENEFITS MUST BE REGARDED AS BEING OF ' ' THE SAME KIND ' ' AS OLD-AGE BENEFITS , IN VIEW OF ALL THEIR CONSTITUENT ELEMENTS , IN PARTICULAR THE FACTOR OF AGE .
13 ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT , 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 . ON THE OTHER HAND , CHARACTERISTICS WHICH ARE PURELY FORMAL MUST NOT BE CONSIDERED RELEVANT CRITERIA FOR THE CLASSIFICATION OF THE BENEFITS .
14 IN THAT RESPECT , IT SHOULD BE NOTED THAT THE ESSENTIAL CHARACTERISTIC OF THE OLD-AGE BENEFITS REFERRED TO IN ARTICLE 4 ( 1 ) ( C ) AND 46 OF REGULATION NO 1408/71 LIES IN THE FACT THAT THEY ARE INTENDED TO SAFEGUARD THE MEANS OF SUBSISTENCE OF PERSONS WHO , WHEN THEY REACH A CERTAIN AGE , LEAVE THEIR EMPLOYMENT AND ARE NO LONGER REQUIRED TO HOLD THEMSELVES AVAILABLE FOR WORK AT THE EMPLOYMENT OFFICE . MOREOVER , THE SYSTEM OF AGGREGATION AND APPORTIONMENT OF THE BENEFITS PROVIDED FOR IN ARTICLE 46 IS BASED ON THE ASSUMPTION THAT THE BENEFITS ARE NORMALLY FINANCED , ACQUIRED ON THE BASIS OF THE RECIPIENT ' S OWN CONTRIBUTIONS AND CALCULATED BY REFERENCE TO THE LENGTH OF TIME DURING WHICH HE HAS BEEN AFFILIATED TO THE INSURANCE SCHEME .
15 THAT FOLLOWS MOREOVER FROM ALL THE PROVISIONS OF CHAPTER 3 OF TITLE 3 OF REGULATION NO 1408/71 , IN PARTICULAR ARTICLE 45 THEREOF AND THE AIMS SET OUT IN THE SIXTH RECITAL IN THE PREAMBLE THERETO ACCORDING TO WHICH THE OBJECTIVES OF THE REGULATIONS ' ' MUST BE ATTAINED IN PARTICULAR BY AGGREGATION OF ALL THE PERIODS TAKEN INTO ACCOUNT UNDER THE VARIOUS NATIONAL LEGISLATIONS FOR THE PURPOSE OF ACQUIRING AND RETAINING THE RIGHT TO BENEFITS AND OF CALCULATING THE AMOUNT OF BENEFITS ' ' , AND IN THE EIGHTH RECITAL WHICH REFERS EXPRESSLY TO OLD-AGE PENSIONS , THE RIGHT TO WHICH HAS BEEN ACQUIRED IN VARIOUS MEMBER STATES ON THE BASIS OF INSURANCE PERIODS .
16 HENCE , WHILST BENEFITS OF THE TYPE IN QUESTION ARE TO SOME EXTENT SIMILAR TO OLD-AGE BENEFITS , AS REGARDS THEIR PURPOSE AND OBJECT WHICH IS , IN PARTICULAR , TO GUARANTEE THE MEANS OF SUBSISTENCE OF PERSONS WHO HAVE REACHED A CERTAIN AGE , THEY CLEARLY DIFFER FROM THEM IN RESPECT OF THE BASIS ON WHICH THEY ARE CALCULATED AND THE CONDITIONS FOR THEIR GRANT , REGARD BEING HAD TO THE SYSTEM OF AGGREGATION AND APPORTIONMENT WHICH FORMS THE BASIS OF REGULATION NO 1408/71 .
17 THE RETIREMENT ALLOWANCES ALSO DIFFER IN SO FAR AS THEY PURSUE AN OBJECT RELATED TO EMPLOYMENT POLICY INASMUCH AS THEY HELP TO RELEASE POSTS HELD BY WORKERS WHO ARE NEAR THE AGE OF RETIREMENT FOR THE BENEFIT OF YOUNGER UNEMPLOYED PERSONS , AN OBJECT WHICH HAS ONLY BECOME APPARENT AFTER THE IMPLEMENTATION OF REGULATION NO 1408/71 , IN THE CONTEXT OF THE ECONOMIC CRISIS WHICH HAS AFFECTED THE COMMUNITY FOR A NUMBER OF YEARS .
18 IN ADDITION IT SHOULD BE NOTED THAT THE COMMISSION HAS SUBMITTED TO THE COUNCIL A PROPOSAL FOR SUPPLEMENTING REGULATION NO 1408/71 IN ORDER TO TAKE INTO ACCOUNT THE SPECIFIC FEATURES OF BENEFITS OF THE TYPE IN QUESTION .
19 IT MUST THEREFORE BE STATED THAT THE BENEFITS IN QUESTION MAY NOT BE REGARDED AS BEING OF THE SAME KIND AS THE OLD-AGE BENEFITS REFERRED TO IN ARTICLE 46 OF REGULATION NO 1408/71 .
20 AS REGARDS THE SECOND PART OF THE QUESTION , RELATING TO THE APPLICABILITY OF NATIONAL PROVISIONS AGAINST OVERLAPPING , IT SHOULD BE RECALLED THAT , ACCORDING TO ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 , LEGISLATIVE PROVISIONS OF A MEMBER STATE FOR THE REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFIT IN CASES OF OVERLAPPING OF TWO OR MORE SOCIAL SECURITY BENEFITS MAY BE APPLIED TO THE RECIPIENT EVEN THOUGH THE RIGHT TO SUCH BENEFITS WAS ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , IN SO FAR AS THOSE BENEFITS ARE NOT BENEFITS OF THE SAME KIND AS BENEFITS RECEIVED IN RESPECT OF INVALIDITY , OLD-AGE , DEATH OR OCCUPATIONAL DISEASE .
21 IN THOSE CIRCUMSTANCES , IT IS NO LONGER NECESSARY TO CONSIDER THE QUESTION WHICH OF THE PROVISIONS AGAINST OVERLAPPING ARE APPLICABLE IF THE BENEFITS IN QUESTION ARE OF THE SAME KIND AS OLD-AGE BENEFITS WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 .
22 MOREOVER , IT SHOULD BE STATED THAT THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) IS COMPATIBLE WITH ARTICLE 51 OF THE TREATY INASMUCH AS THAT PROVISION DOES NOT PROHIBIT THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING IN CASES WHERE BENEFITS - SUCH AS THOSE IN QUESTION - ARE NOT OF THE SAME KIND AS BENEFITS RECEIVED IN RESPECT OF INVALIDITY , OLD-AGE , DEATH OR OCCUPATIONAL DISEASE WITHIN THE MEANING OF REGULATION NO 1408/71 . IN SO FAR AS THOSE NATIONAL PROVISIONS AGAINST OVERLAPPING ARE APPLIED IN A MANNER WHICH IS IDENTICAL TO NATIONALS OF ALL THE MEMBER STATES WITHOUT TAKING INTO ACCOUNT THEIR NATIONALITY , THERE CAN BE NO DISCRIMINATION WITHIN THE MEANING OF ARTICLE 48 OF THE EEC TREATY .
23 IN REPLY TO THE QUESTION REFERRED TO THE COURT , IT SHOULD THEREFORE BE STATED THAT BENEFITS SUCH AS THE ALLOWANCES UNDER THE GUARANTEED INCOME RETIREMENT SCHEME PROVIDED FOR IN THE RELEVANT FRENCH PROVISIONS DO NOT FALL WITHIN THE SCOPE OF ARTICLE 46 OF REGULATION NO 1408/71 AND THAT WHERE SUCH BENEFITS OVERLAP WITH OLD-AGE PENSIONS OF OTHER MEMBER STATES , COMMUNITY LAW DOES NOT PREVENT THE NATIONAL RULES AGAINST OVERLAPPING FROM BEING APPLIED .