C-62/76
ECLI:EU:C:1977:18
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JUDGMENT OF THE COURT 3 FEBRUARY 1977 1
Jozef Strehl v Nationaal Pensioenfonds voor Mijnwerkers (preliminary ruling requested by the Arbeidsrechtbank of Hasselt)
Case 62/76
1. Social security for migrant workers — Social security benefits — Rights created by the Treaty — Exercise — 'Detailed rules — Power of the Council (EEC Treaty, Article 51)
2. Social security for migrant workers — Social security benefits — Overlapping — Limitation — Entitlement by virtue of national legislation alone — Reduction ■ — Prohibition
(EEC Treaty, Article 51; Regulation No 1408/71, Article 46 (3); Decision No 91 of the Administrative Commission)
1. In the exercise of the powers which it Member State by virtue of the holds under Article 51 concerning the application of the national legislation coordination of the social security alone is incompatible with Article 51. schemes of the Member States, the Article 46 (3) of Regulation No Council has the power, in conformity 1408/71 and Decision No 91 of the with the provisions of the Treaty, to Administrative Commission are
lay down detailed rules for the incompatible with Article 51 of the exercise of rights to social benefits Treaty to the extent to which they which the persons concerned derive impose a limitation on the from the Treaty. overlapping of two benefits acquired 2. A limitation on the overlapping of in different Member States by a benefits which would lead to a reduction of the amount of the benefit diminution of the rights which the acquired under national legislation persons concerned already enjoy in a alone.
In Case 62/76
Reference to the Court under Article 177 of the EEC Treaty by the Arbeidsrechtbank of Hasselt for a preliminary ruling in the action pending before that court between
I — Language of the Case: Dutch.
JUDGMENT OF 3. 2. 1977 —CASE 62/76
JOZEF STREHL, 6, Nieuwe Markt, 3580 Neerpelt,
and
Nationaal Pensioenfonds voor Mijnwerkers, 6, Stefaniaplein, 1050 Brussels,
on the interpretation of Article 46 (3) 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 (OJ English Special Edition 1971 (II), p. 416) and Decision No 91 of the Commission of 12 July 1973 concerning the interpretation of Article 46 (3) of Council Regulation (EEC) No 1408/71 relating to the award of benefits due under paragraph 1 of the said article (OJ C 86 of 20. 7. 1974, p. 8),
THE COURT
composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges,
Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The judgment making the reference and in Germany outside mining. Since 1 the written observations submitted under December 1969 he has been in receipt of Article 20 of the Protocol on the Statute an invalidity pension under the Belgian of the Court of Justice of the EEC may scheme for miners. All that appears from be summarized as follows: the file is that since his rights in respect of the competent German institution were altered with effect from 1 July 1974 I — Facts and written procedure as a result of his health, the defendant, the competent Belgian institution, Mr Strehl, who is of Belgian nationality reassessed his invalidity pension due to and lives in Belgium, was employed in him under the Belgian legislation, Belgium as an underground miner and applying Article 46 of Regulation No
STREHL v PENSIOENFONDS MIJNWERKERS
1408/71 and Decision No 91 of the — The person concerned is entitled to length Commission. the total sum of the benefits calculated as above, within the limit, The Belgian law on invalidity is of type however, of the highest theoretical A, that is to say the benefits are amount, that is to say within the limit calculated independently of the length of of the higher amount which he the insurance periods. The German law would have obtained if he had on the other hand is of type B under completed his career entirely in one which the amount of benefits varies of the Member States in question. according to the length of the insurance Where the amount referred to in the periods. first subparagraph is exceeded, any institution applying paragraph 1 shall The provisions of Article 46 of adjust its benefit by an amount Regulation No 1408/71 relating to the corresponding to the proportion calculation of old-age pensions are by which the amount of the benefit virtue of Article 40 of that Regulation concerned bears to the total of the applicable by analogy to invalidity benefits determined in accordance pensions in cases where a worker has with paragraph 1 (Article 46 (3)). been successively subject to the Decision No 91 of the Administrative legislations of type A and type B or only of type B. The said provisions are Commission provides that ‘Article 46 (3), therefore applicable in a case such as that second subparagraph ... shall only apply in the main action. to benefits the amount of which, calculated in accordance with the
The system established by this article is provisions of paragraph 1, first as follows: subparagraph, of this article, exceeds the — If the person concerned fulfils under amount that would be obtained by the legislation to which he has been applying the rules of paragraphs 2 (a) and subject the conditions entitling him (b) of the said article to the calculation of these benefits'. to a pension without aggregation being necessary, the institution of the By Decision dated 12 May 1975, the Member State in question shall competent Belgian institutions awarded determine on the one hand the Mr Strehl a pension of FB 82 013, being amount of the benefit due under this the difference between the highest legislation having regard, if necessary, theoretical amount (FB 172 016) and the to the length of periods completed by apportioned amount (FB 90 048) awarded the worker and on the other hand in Germany. Mr Strehl then brought the shall calculate the amount of the matter before the Arbeidsrechtbank for benefit due as a result of applying Hasselt claiming that he should be the system of aggregation and granted a sum at least equal to the apportionment. Only the higher Belgian apportioned amount, that is FB amount shall be taken into 129 272. consideration (Article 46 (1)): — Where the right arises only after That court took the view that a question aggregation the amount of the benefit of the interpretation of a Community is calculated on an apportioned basis measure arose and by judgment dated 25 in respect of the insurance periods June 1976 stayed the proceedings and completed under the legislation in referred the following questions on the question in relation to the total interpretation of Article 46 of Regulation duration of the periods completed No 1408/71 and Decision No 91 of the under the legislation of all the Administrative Commission to the Court Member States concerned (Article 46 of Justice for a preliminary ruling under (2)). Article 177 of the EEC Treaty:
JUDGMENT OF 3. 2. 1977 —CASE 62/76
(a) It is to be noted that Decision No 91 II — Written observations sub refers to the second subparagraph of mitted to the Court Article 46 (3) (calculation of the adjustment) whilst the principle of The Commission observes first of all that the limitation of the total of the depending on whether Mr Strehl's various benefits is laid down in the German invalidity pension was paid first subparagraph of Article 46 (3). before or after 1 October 1972 (which is Does this mean that the principle of not clear from the file) it would have the first subparagraph of Article 46 been paid under the provisions of (3) is not affected by Decision No 91, Regulation No 3 or those of Regulation or is it to be assumed that where No 1408/71. It is therefore for the court Decision No 91 lays down the trying the action to determine the facts method of calculation by which any which enable the Community rules to be amount in excess of the maximum applied. benefit must be adjusted, it also implies a possibility of exceeding the Assuming that Regulation No 1408/71 is highest theoretical amount operative applicable to the case the system of in this connexion? Article 46 would give the following (b) Must the national amounts which results:
have been calculated be compared, first, with the theoretical amount and, With regard to the first paragraph, since secondly, with the apportioned Mr Strehl fulfils the requisite conditions amount? entitling him to a pension both under (c) Or is a comparison made only the Belgian legislation and under the between the national amount and the German legislation, the two competent apportioned amount? institutions would have determined on
(d) Must a national insurance institution the one hand the amount of the benefit compare only its own amounts with due in accordance with the legislation one another (national, theoretical which they administer (that is FB and/or apportioned amount)? 137 352 under the Belgian legislation (e) Or must the figures from the foreign and FB 86 383 under the German institution also be included in this legislation) and on the other hand the comparison? apportioned amount (that is FB 129 272 (f) What is the position in the case of in respect of the Belgian pension and FB the hypothesis under Question (d) 90 048 in respect of the German where Decision No 91 is applicable pension). It is the higher of the two for one country and not for the amounts which would have applied in other? both cases, that is to say the national (g) Is it in an appropriate case amount in respect of the Belgian pension unnecessary for the total of the and the apportioned amount in respect apportioned amounts to be compared of the German pension. with the national amounts?
Article 46 (2) does not apply to the present case. The order making the reference was registered at the Court Registry on 6 July 1976. With regard to the application of the third paragraph, since the sum of the Belgian and German benefits exceeds the After hearing the report of the highest theoretical amount, it is proper Judge-Rapporteur and the views of the to reduce the amount of one or both Advocate-General the Court decided to benefits in respect of which the amount open the oral procedure without a has been fixed without its being preparatory inquiry. necessary to have recourse to aggregation.
STREHL v PENSIOENFONDS MIJNWERKERS
It is at this point that Decision No 91 of imposes a limitation on the overlapping the Administrative Commission applies of two benefits acquired in different in accordance with the logic of the Member States by a reduction in the system established by Article 46 (3) amount of the benefit acquired under which is to reduce the benefits due under national legislation alone'. the domestic legislation. This decision states that Article 46 (3), second The question raised by the court making subparagraph, shall only apply to benefits the reference does not therefore arise. the amount of which, calculated in accordance with the provisions of pararaph 1, first subparagraph, of the said The Commission considers that the reply article, exceeds the amount that would be to be given to the question referred for a obtained by applying the rules of preliminary ruling might be as follows: aggregation and apportionment. In the 'In view of the fact that Article 46 (3) of main action only the Belgian pension Regulation No 1408/71 of the Council is would have been reduced, in the incompatible with Article 51 of the proportions necessary to prevent the sum Treaty to the extent to which it imposes of the Belgian and German benefits a limitation on the overlapping of two exceeding the highest theoretical benefits acquired in different Member amount. States by a reduction in the amount of a benefit acquired under national If Regulation No 1408/71 applies, the legislation alone, this provision and Decision No 91 of the Administrative competent Belgian and German institutions have correctly applied the Commission on social security for Community rules. Moreover Decision No migrant workers, which concerns its 91 does not alter the rights of parties interpretation, have been of no effect who, quite apart from the question of the since Regulation No 1408/71 entered into force. It follows that the question apportionment of the burden between the institutions, would not in any event raised by the Arbeidsrechtbank of Hasselt does not arise'. be entitled under Article 46 (3) to a total amount of benefits higher than the highest theoretical amount. This decision At the hearing on 25 November 1976 concerns the interpretation of Article 46 the Commission, represented by its (3). In its judgment of 21 October 1975 Agent, A. Haagsma, submitted oral in Case 24/75 (Petroni [1975] ECR 1149) argument. the Court ruled: 'Article 46 (3) of Regulation No 1408/71 of the Council is The Advocate-General delivered his accordingly incompatible with Article 51 opinion at the hearing on 15 December of the Treaty to the extent to which it 1976.
Law
1 By judgment dated 25 June 1976, received at the Court Registry on the following 6 July, the Arbeidsrechtbank of the judicial district of Hasselt, Belgium, referred under Article 177 of the EEC Treaty several questions on the interpretation of Article 46 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 (OJ English Special Edition 1971 (II), p. 416) and Decision No 91 of the Administrative Commission on Social Security for
JUDGMENT OF 3. 2. 1977 —CASE 62/76
migrant workers concerning the interpretation of Article 46 (3) of the said regulation (OJ C 86 of 20. 7. 1974, p. 8).
2 These questions are raised in the context of an action relating to the calculation by the relevant Belgian institution of the invalidity pension of a Belgian national, the plaintiff in the main action, who worked partly in Belgium as an underground miner and partly in the Federal Republic of Germany outside the mining sector.
3 This worker fulfilled in Belgium all the conditions required by the national legislation to entitle him to an invalidity pension under the system applying to miners.
4 On the other hand to entitle him to benefit in the Federal Republic of Germany he had to rely on the provisions of Article 45 of Regulation No 1408/71 and for the calculation of this benefit the periods completed in the two Member States were aggregated and the German benefit apportioned.
5 Taking advantage of the rule limiting the overlapping of benefits provided in different Member States, which is laid down by Article 46 (3) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission, the Belgian institution by decision dated 12 May 1975 reduced the invalidity pension from FB 137 352 to which he was entitled under Belgian legislation alone to FB 82 013.
6 This sum represents the difference between the highest theroretical amount, namely that of the German pension (FB 172 016) and the German apportioned amount (FB 90 048).
7 The plaintiff in the main action claims that he should be awarded at least the Belgian apportioned amount (FB 129 272).
8 This method of calculation by the Belgian institution is intended to put into practice a principle according to which the migrant worker is assured of receiving in total, by virtue of the various pensions granted to him by the various Member States, an amount equal to the highest benefit he would have
STREHL v PENSIOENFONDS MIJNWERKERS
obtained if he had spent his whole working life subject to the legislation of one or other of the Member States concerned.
9 The following questions are asked:
(a) It is to be noted that Decision No 91 refers to the second subparagraph of Article 46 (3) (calculation of the adjustment) whilst the principle of the limitation of the total of the various benefits is laid down in the first
subparagraph of Article 46 (3). Does this mean that the principle of the first subparagraph of Article 46 (3) is not affected by Decision No 91, or is it to be assumed that where Decision No 91 lays down the method of calculation by which any amount in excess of the maximum benefit must be adjusted, it also implies a possibility of exceeding the highest theoretical amount operative in this connexion?
(b) Must the national amounts which have been calculated be compared, first, with the theoretical amount and, secondly, with the apportioned amount?
(c) Or is a comparison made only betwen the national amount and the apportioned amount?
(d) Must a national insurance institution compare only its own amounts with one another (national, theoretical and/or apportioned amount)?
(e) Or must the figures from the foreign institution also be included in this comparison?
(f) What is the position in the case of the hypothesis under Question (d) where Decision No 91 is applicable for one country and not for the other?
(g) Is it in an appropriate case unnecessary for the total of the apportioned amounts to be compared with the national amounts?
10 Before considering these questions it is well to consider the question of the validity of the regulation and decision the interpretation of which is requested.
11 As has already been stated in other contexts and lastly by the judgment in Case 24/75 (Petroni [1975] ECR 1149), the regulations in the fields of social security for migrant workers have as their basis, their framework and their bounds Articles 48 to 51 of the Treaty.
JUDGMENT OF 3. 2. 1977 —CASE 62/76
12 Article 51 requires the Council to adopt in the field of social security such measures as are 'necessary' to provide freedom of movement for workers, providing for the aggregation, in particular for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the various national laws.
13 The aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the laws of a single Member State.
14 Article 46 (3) takes the form of a rule limiting overlapping and the Council, in the exercise of the powers which it holds under Article 51 concerning the coordination of the social security schemes of the Member States, has the power, in conformity with the provisions of the Treaty, to lay down detailed rules for the exercise of rights to social benefits which the persons concerned derive from the Treaty.
15 Decision No 91 of the Administrative Commission on social security for migrant workers is intended to interpret the said article.
16 A limitation on the overlapping of benefits which would lead to a diminution of the rights which the persons concerned already enjoy in a Member State by virtue of the application of the national legislation alone is incompatible with Article 51.
17 It is therefore proper to conclude that Article 46 (3) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission are incompatible with Article 51 of the Treaty to the extent to which they impose a limitation on the overlapping of two benefits acquired in different Member States by a reduction of the amount of the benefit acquired under national legislation alone.
18 The above findings on the validity of the said regulation and decision render superfluous an answer to the questions on their interpretatation.
STREHL v PENSIOENFONDS MIJNWERKERS
Costs
19 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds.
THE COURT
in answer to the questions referred to it by the Arbeidsrechtbank of the judicial district of Hasselt by judgment of 25 June 1976 hereby rules:
'Article 46 (3) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission are incompatible with Article 51 of the Treaty to the extent to which they impose a limitation on the overlapping of two benefits acquired in different Member States by a reduction of the amount of the benefit acquired under national legislation alone.'
Kutscher Donner Pescatore Mertens de Wilmars Sørensen
Mackenzie Stuart O'Keeffe Bosco Touffait
Delivered in open court in Luxembourg on 3 February 1977.
A. Van Houtte H. Kutscher
President Registrar
OPINION OF MR ADVOCATE-GENERAL WARNER DELIVERED ON 15 DECEMBER 1976
My Lords, Arbeidsrechtbank of Hasselt, in Belgium. To my mind it presents no difficulty This case comes to the Court by way of a because, as the Commission has pointed reference for a preliminary ruling by the out, a complete answer to the questions