1 By judgment of 24 March 1989, which was received at the Court Registry on 5 April 1989, the cour du travail ( Labour Court ), Liège, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Articles 48 and 51 of the EEC Treaty and Articles 12(2 ) and 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, as amended and brought up to date by Council Regulation No 2001/83 of 2 June 1983 ( Official Journal 1983, L 230, p . 6, Annex I ).
2 Those questions were raised in proceedings concerning the refusal by the Office national des pensions ( National Pensions Office, hereinafter referred to as "ONP ") to grant Augusto Pian, who is resident in Italy, an early retirement pension as an employed person .
3 Its refusal was based on Article 4(1)(a ), ( 2 ) and ( 3 ) and Article 25 of Royal Decree No 50 of 24 October 1967 and the first paragraph of Article 64 bis of the Royal Decree of 21 December 1967, according to which a retirement pension is not payable where the person concerned receives an invalidity pension under the scheme of a foreign country and does not satisfy the requirements for commencement of the Belgian retirement pension . Mr Pian, who was born on 9 June 1922, does not satisfy the requirement as to age ( 65 years ).
4 Mr Pian worked in Belgium from 1947 to 1951 as a miner and as a non-manual worker from 1952 to 1971 . He then went to Italy where he worked until 1978 . He receives an Italian invalidity pension and, since 1 March 1978, has received a Belgian retirement pension on the basis of an occupational insurance record of 5/45ths, amounting to BFR 21 759, as a miner .
5 The cour du travail, Liège, hearing an appeal from the decision of the tribunal du travail ( Labour Tribunal ), Liège, which had ordered the ONP to pay Mr Pian an early retirement pension as from 1 January 1984, stayed the proceedings and referred the following questions to the Court for a preliminary ruling : "( 1 ) Where a migrant worker has become entitled to a personal invalidity pension in one Member State, without application of the Community regulations, and asserts in another Member State rights to a benefit on the basis of his employment, without application of the Community regulations, is it compatible with Articles 48 and 51 of the Treaty of Rome for the institution in the second State, which grants the retirement pension, to take into account the invalidity pension granted by the first State in order to apply the rules laid down in its own national legislation for the prevention of overlapping benefits, just as it takes into account invalidity benefits granted under its own legislation? ( 2 ) If so, where the legislation of a Member State treats in a different manner the overlapping of a retirement pension granted under such legislation with an invalidity benefit or an old-age benefit, how must an invalidity pension granted by another Member State which is not convertible into an old-age pension be treated : must it be treated as an invalidity benefit or as an old-age benefit? Should a distinction possibly be made according to whether or not the recipient of the invalidity pension has reached retirement age or is receiving an old-age benefit? Must a distinction be drawn according to whether the retirement pension is claimed at the normal age or is applied for early ( with a reduction of the amount )? ( 3 ) With reference to Questions 1 and 2, must the retirement age be ( a ) thatprescribed by the legislation containing the provision on overlapping, or ( b ) that laid down by the legislation providing for thenon-convertible benefit to which the rules on overlapping are applied?"
6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case and of the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court . The first question
7 It is apparent from the grounds of the judgment of the national court that by the first question that court seeks essentially to determine whether Articles 48 and 51 of the Treaty and the provisions of Regulation No 1408/71 prevent the application of national legislation under which an early retirement pension, granted under that legislation alone, may not be paid where the person concerned receives an invalidity pension pursuant to the legislation of another Member State alone .
8 The Court has consistently held ( see in particular the judgment of 5 May 1983 in Case 238/81 Raad van Arbeid v Van der Bunt-Craig (( 1983 )) ECR 1385, paragraph 15 ) that where a worker receives a pension pursuant to national legislation alone, the provisions of Regulation No 1408/71 do not prevent that national legislation from being applied to him in its entirety, including any national rules against overlapping benefits .
9 It must be noted, however, that the Court has also consistently held that if the application of national legislation alone proves less favourable to the worker than the application of the rules laid down by Article 46 of Regulation No 1408/71, the provisions of that article must be applied ( see in particular the judgment of 2 July 1981 in Joined Cases 116 and 117 and 119 to 121/80 RWP v Celestre (( 1981 )) ECR 1737 ).
10 In order to decide the proceedings before it, the national court must compare the benefits which would be due pursuant to national legislation alone, including the anti-overlapping rules thereof, with those that would be due under Article 46 of Regulation No 1408/71, including the rule against overlapping contained in Article 46(3 ).
11 In calculating the benefits due pursuant to Article 46, the national court must take account in particular of the fact that, according to Article 12(2 ) of Regulation No 1408/71, the provisions of the legislation of a Member State for the reduction, suspension or withdrawal of a benefit in cases of overlapping with other social security benefits acquired in that same Member State or under the legislation of another Member State are not to apply when the person concerned receives benefits of the same kind in respect of invalidity, old age, death ( pensions ) or occupational disease .
12 It should be pointed out in that regard that, according to previous decisions of the Court, where a worker is in receipt of invalidity benefits converted into an old-age pension by virtue of the legislation of a Member State and invalidity benefits not yet converted into an old-age pension under the legislation of another Member State, the old-age pension and the invalidity benefits are to be regarded as being of the same kind ( see, most recently, the judgment in Celestre, cited above ).
13 Those decisions also apply in cases in which old-age ( retirement ) pensions due under the legislation of a Member State do not arise as a result of the conversion of invalidity benefits, provided that the old-age pension, whether or not arising from such a conversion, is of the same kind as an invalidity pension ( see judgment of 18 April 1989 in Case 128/88 Di Felice v Inasti (( 1989 )) ECR 923, paragraph 14 ).
14 That interpretation of Article 12(2 ) of Regulation No 1408/71 cannot be altered in the case of the payment of an early retirement pension, in so far as the only effect of early payment is to reduce the amount of the pension .
15 Finally, it must be emphasized that the amount obtained pursuant to Article 46(1 ) and ( 2 ) of Regulation No 1408/71 must be reduced in accordance with Article 46(3 ), which fixes a ceiling for the amount which a worker may receive under Article 46, namely the highest of the theoretical amounts of benefits calculated according to Article 46(2)(a ). Article 46(3 ) is applicable, to the exclusion of national rules against overlapping ( see the judgment in Van der Bunt-Craig, cited above, paragraph 15, and in Di Felice, cited above ).
16 It follows from the foregoing that, without its being necessary to consider the other provisions of Community law mentioned by the national court, it must be stated in reply to the first question that where an employed or self-employed person receives a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not preclude that legislation alone from being applied to him in its entirety, including any national rules against the overlapping of benefits, unless the application of that national legislation proves to be less favourable to him than that of the rules laid down in Article 46 of Regulation No 1408/71 . In the latter case, Article 46 must be applied, account being taken of the fact that provisions for reduction, suspension or withdrawal of benefit laid down by national legislation are inapplicable by virtue of the final sentence of Article 12(2 ) of the regulation, when the person concerned receives benefits of the same kind in respect of invalidity, old age, death ( pensions ) or occupational disease awarded by the institutions of the different Member States . An early retirement pension and an invalidity pension are to be regarded as benefits of the same kind within the meaning of Article 12(2 ) of the regulation . The second and third questions
17 It is apparent from the grounds of the judgment of the national court that by the second and third questions that court seeks essentially to determine whether, when the legislation of only one Member State is applied, the classification, in the light of the anti-overlapping rules contained in that legislation, of an early retirement pension and an invalidity pension awarded by another Member State is governed by Community law .
18 It is to be noted from the wording of those questions that they refer only to the case where the provisions of national law alone are applied in order to calculate the benefits payable to a worker, and, as indicated earlier, that is possible only if the application of national law alone is more favourable to the person concerned than that of Article 46 of Regulation No 1408/71 .
19 In those circumstances, it must be borne in mind that the Court has held that, where national legislation alone is applied, the classification of the benefits is not governed by Community law ( see judgment of 6 October 1987 in Case 197/85 ONPTS v Stefanutti (( 1987 )) ECR 3855, paragraph 17 ). It is therefore for the national court or tribunal to determine the substance of, and to interpret the provisions of, its national legislation as regards the overlapping of benefits .
20 It must therefore be stated in reply to the second and third questions that when the legislation of only one Member State is applied, the classification, in the light of the anti-overlapping rules contained in that legislation, of an early retirement pension awarded under the legislation of that State alone and of an invalidity pension awarded by another Member State is not governed by Community law .