C-112/76

JUDGMENT OF THE COURT 13 OCTOBER 1977

Renato Manzoni v Fonds National de Retraite des Ouvriers Mineurs

(preliminary ruling requested by the Tribunal du Travail, Charleroi)

Case 112/76

1. Social security for migrant workers Social security benefits — Overlapping — —

Limitation — Entitlement by virtue of a national legislation alone Reduction —

No 1408/71 is incompatible with worker's right it is necessary to have Article 51 of the Treaty to the extent recourse to aggregation of the

to which it imposes a limitation on insurance periods and apportionment

benefits acquired in different Member of the benefits.

In Case 112/76

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail (Labour Tribunal), Charleroi, for a preliminary ruling in the action

pending before that court between

social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416),

THE COURT,

composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of

Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

Mr Manzoni, an Italian national, was paid since 1 December 1972 by the

employed in Italy from 24 September amount of the apportioned Italian 1944 to 31 July 1950, that is for 244 pension and further claimed repayment

weeks, and as an underground worker in of the amount over-paid of BF 12 523.

the mines in Belgium from 1952 to 28

May 1972, that is for more than 20 years. Relying on the judgment of the Court of He stopped work at the latter date for 21 October 1975 in Case 24/75 (Petroni, health reasons. On the basis of his work [1975] ECR 1149), which ruled that in Belgium he was granted by the Article 46 (3) of Regulation No 1408/71 defendant in the main action (hereinafter is incompatible with Article 51 of the

referred to as 'the FNROM') an invalidity EEC Treaty to the extent to which it pension from 1 December 1972. Later he imposes a limitation on the overlapping was granted by the Italian institution a of two benefits by a reduction in the

invalidity is of Type B, that is to say, State under the present invalidity such that the amount of pension varies pension scheme for mineworkers

according to the duration of the established by the Royal Decree of 19 insurance periods. It requires, moreover, November 1970 and subsequent

a minimum insurance cover of five years amending decrees is reduced on the and at least 260 weekly contributions as basis of Article 46 (3) of Regulation regards general invalidity and one year (EEC) No 1408/71 by reason of the and at least 52 weekly contributions as benefits paid by other Member States, regards occupational invalidity (apart is such reduction in accordance with

from accident at work). Article 51 of the Treaty of Rome? (2) Are the competent institutions On the hand, other the Belgian entitled to reduce benefits payable by legislation is of Type A, that is to say, them by applying Article 46 (3), such that the amount of the pension where the overlapping of the benefits does not depend on the duration of the awarded by the various Member insurance periods. Nevertheless, the States results in the grant of benefits Belgian legislation on the special on the basis of duplicated insurance

invalidity scheme for mineworkers is not periods?

strictly speaking based on risk, as is, for example, the Netherlands legislation. The judgment of the Tribunal du Travail, Article 1 (2) of the Royal Decree of 19 Charleroi, was received at the Court on

after ten employment

as a mineworker (underground or surface

worker), or five years underground in the II —

Summary of written ob­

case of pneumoconiosis, corresponds to a servations submitted to the full working life of 30 years as a Court under Article 20 of

mineworker. Accordingly, there is in the the Protocol on the Statute case at issue in the main action a of the Court of Justice of

to the retirement pension in to that payable after a full working life of relating question in the aforementioned 30 years in the mines. Under Article 1 (2) judgment in the Petroni case, the of the Royal Decree of 19 November

JUDGMENT OF 13. 10. 1977 — CASE 112/76

1970 a period of 10 years is the Belgian pension if aggregation were

minimum and maximum duration of necessary, for they were periods coming insurance periods taken into account for under two different schemes (Article 38 entitlement to full benefit. The reference (2) of Regulation No 1408/71). to working life of 30 years was to be a

found in Article 13 of the Royal Decree As for the compatibility of Article 46 (3) of 28 May 1958 (repealed on 1 with Article 51 of the Treaty, it appears November 1970), which provided that obvious that the interpretation already 'the retirement or invalidity pension ... given by the Court of the provision in

may be aggregated with one or more question applies also to the invalidity pensions granted under one or more pension scheme. It follows, moreover, other retirement or invalidity pension from the judgment in Case 140/73, schemes only up to the amount of the Mancuso ([1973] II ECR 1449), although retirement pension provided for in given in a case arising under the old

to a claimant of an invalidity pension is not to place migrant workers at a

coming under the rules for aggregation. disadvantage but to avoid. putting them

There is no provision on this subject. in too privileged a position. The The only limitation on aggregation is limitation in question is not an obstacle

that at present laid down by Article 23 to the principle of equality of treatment

(1) of the Royal Decree of 19 November between migrant and non-migrant

1970 according to which 'an invalidity workers, but, on the contrary, gives it the pension granted under the present decree very widest scope by guaranteeing as the may be aggregated with one or more amount of the benefit the highest retirement or invalidity pensions only up theoretical amount which the person

and Belgium shows that the Belgian and the one which is the most

insurance periods do not duplicate the compatible with the principle of equality Italian insurance periods. Duplication of of treatment.

insurance periods is possible only where there is aggregation, and the right to the The aforementioned judgment in Petroni Belgian pension arose in this case by was given in a case of retirement pension reason of the periods of work in Belgium where the decisive criteria differ alone. The periods of work completed in fundamentally from invalidity those of

Italy outside industry could pensions for mineworkers. the mining Having regard not be aggregated with the Belgian to the flat-rate nature of such pensions

periods to determine the right to the the application of the judgment in

MANZONI v FNROM

by reason of employment in Belgium of Article 46 (1) applies the provision of

from 1952 to 1972 and an Italian Article 46 (3) introduces a just solution

invalidity pension granted by reason of by guaranteeing the worker the highest employment in Italy from 1944 to 1950. theoretical amount. This rule likewise There is thus an overlapping of benefits respects the principle of non-

for one and the same period. discrimination since non-migrant

workers can never obtain a benefit higher The Belgian Government observes that than that granted in respect of a full in the judgment in Petroni the Court working life. decided that the principle of Article 51 of the Treaty implies that the regulation If Article 46 (3) is incompatible with

must establish rules for co-ordination Article 51 of the Treaty it is also

and the other derived from the system of benefits calculated in accordance with

aggregation and apportionment already Article 46 since the unjustified

provided for in the former Regulation overlapping which Article 12 seeks to No 3. When the right to benefit depends prevent is avoided by Article 46 (3). But

on aggregation of the insurance or if Article 46 (3) is void, Article 46 could residence periods the pension granted by give rise to discrimination in respect of a

a national institution is calculated solely non-migrant worker in so far as the

according to the duration of the migrant worker takes advantage of

before the law, since the non-migrant single national legislation and cannot be worker is not placed at a disadvantage in relied on to reduce benefits which an

relation to the migrant worker. When the insurance institution is liable to pay

JUDGMENT OF 13. 10. 1977 — CASE 112/76

under its own legislation. Further, the account of the years of work completed

Court has stated that the very objectives in Italy and the Italian institution those of the Community rules would be completed in Belgium. There is no

jeopardized if their application, instead of duplication where the pension received

Cases 50/75, Massonet [1975] ECR 1473, number of years (according to a legal 49/75, Borella [1975] ECR 1461, 35/74, fiction), which fortuitously also covers

Rzepa [1974] ECR 1241, 191/73, the period of activity completed in Niemann [1974] ECR 571, 140/73 another Member State, for which another

(abovementioned) and 27/71, Keller pension is already paid independently by [1971] ECR 885. the latter. It is quite arbitrary to calculate the ten fictitious years 'as if the person

It is only where the regulations grant concerned had begun to work in workers social security benefits which Belgium ten years previously (that is to they could not obtain if the regulations say, during the period when he was

did apply that limitations may be not working in Italy). It would be more imposed in consideration of the benefits logical to calculate those years 'as if the which they thereby obtain; apart from worker had worked in Belgium for ten

this case, similar limitations are not years (which work he had not been able 'pursue'

those taken into consideration by both since Mr Manzoni was subject

States to determine severally the pension successively to a legislation of Type B in to which the worker is entitled — as one Member State then to a legislation of

would happen if in the present case the Type A in another Member State, Article Belgian institution had also taken 46 of Regulation No 1408/71 should

MANZONI v FNROM

have been applied. Such application the FNROM in relation to old age and

would have allowed the plaintiff to widow's pensions provided in Article 13 obtain, on the one hand, an apportioned that a retirement or invalidity pension

was thus a benefit acquired by virtue of solidated the legislation on retirement

national legislation alone. and survivor's pensions for all employed

workers including mineworkers and

entrusted the administration of those Only if the criteria for the grant of pensions to a single institution, the invalidity pensions were fundamentally Office National des Pensions pour different from those in relation to old age Travailleurs Salaries (National Pensions pensions might it be asked whether in Office for Employed Persons). That the case of invalidity pensions Article 46 decree did not maintain the ceiling to (3) could be regarded as compatible with aggregation of the decree of 1958. As it Article 51 of the Treaty. The Court has not been responsible for old age considered in the aforementioned case of pensions for mineworkers since 1 Mancuso that the application by analogy January 1968, the date on which the of Articles 27 and 28 of Regulation No 3 Royal Decree No 50 entered into force, to invalidity pensions also implied the the FNROM has never had to be application by analogy of the acquainted with that decree. This is no interpretation which it gave to these doubt the reason for its error in relation provisions in relation to old age

judgment in to the reference to a working life of 30 pensions. Translating the years. Mancuso into the context of Regulation No 1408/71, it is therefore not possible

to show that Article 46 (3) is compatible Even if there had been a duplication of

Regulation No 1408/71 to cases of

There is no duplication of insurance invalidity pensions referred to in periods, whether real or fictitious. The Article 40 (1) of the same regulation

national court's confusion no doubt implies that Article 46 (3) of

from the fact that the Royal Decree Regulation No 1408/71 is incom­ arises

of 28 May 1958 establishing the rules of patible with Article 51 of the Treaty

JUDGMENT OF 13. 10. 1977 — CASE 112/76

acquired under national legislation observations.

alone, even in the case of actual

duplication of the insurance periods The Advocate-General delivered his taken into account for the calculation opinion at the hearing on 20 September of the benefit. 1977.

Decision

1 By a judgment dated 18 November 1976, received at the Court Registry on 25 November 1976, the Tribunal du Travail, Charleroi, referred certain questions under Article 177 of the EEC Treaty on the interpretation of Article 51 of the

EEC Treaty and Article 46 (3) of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons

MANZONI v FNROM

Relying on the rule for the limitation of benefits laid down by Article 46 (3) of Regulation No 1408/71, the Belgian institution believed it could reduce

the invalidity pension by the amount of the apportioned Italian benefit and claimed repayment of the amount overpaid.

6 It is asked first: 'If the pension paid by the Belgian State under the present

invalidity pension scheme for mineworkers established by the Royal Decree of 19 November 1970 and subsequent amending decrees is reduced on the

basis of Article 46 (3) of Regulation (EEC) No 1408/71 by reason of the

their basis, their framework and their bounds Articles 48 to 51 of the Treaty.

9 Article 51 requires the Council to adopt in the field of social security such 'necessary'

measures as are 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 calculating the amount of benefit, of all of

periods taken into account under the laws of the several countries.

to 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 infield of social security guaranteed to the them in any event by the legislation of a Member State alone.

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.

13 It is therefore proper to conclude that Article 46 (3) is incompatible with

Article 51 of the Treaty to the extent to which it imposes a limitation on

benefits acquired in different Member States by a reduction in the amount of a benefit acquired under the national legislation of a Member State alone.

present case on the basis of periods of work completed in Belgium alone.

18 Accordingly the second question does not call for an answer.

Costs

19 The costs incurred by the Belgian Government, the Italian Government and the Commission of the European Communities, which have submitted

observations to the Court, are not recoverable.

MANZONI v FNROM

by judgment of 18 November 1976, hereby rules:

Article 46 (3) of Regulation No 1408/71 is incompatible with

Article 51 of the Treaty to the extent to which it imposes a

limitation on benefits acquired in different Member States by a reduction in the amount of a benefit acquired under the national legislation of a Member State alone.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

The feature that these four cases (Case recent are Case 24/75 Petroni v ONPTS 112/76, Case 22/77, Case 32/77 and Case [1975] ECR 1149, Case 50/75 CPEP v 37/77) have in common is that they all Massonet, ibid. p. 1473, and Case 62/76