C-22/77

of the system Aggregation and apportionment — Preference —

Regulation No 1408/71, Article 46 (1)

So long as a worker is receiving a provided that if the application of such

pension by virtue of national legislation national legislation proves less favourable alone, the provisions of Regulation No than the application of the rules

1408/71 do not prevent the national regarding aggregation and apportionment

legislation, including the national rules those rules must, by virtue of Article 46 the overlapping of benefits, from (1) Regulation No 1408/71, be ap­ against of

on the interpretation of Article 12 of Regulation 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),

1 — Language of the Case: French.

JUDGMENT OF 13. 10. 1977 — CASE 22/77

THE COURT

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

observations submitted under Article 20 completed in France alone.

of the Protocol on the Statute of the

Court of Justice of the EEC may be On being informed of the award of the

summarized as follows: French pension the plaintiff in the main

action, the Fonds National de Retraite des Ouvriers Mineurs (National Pension I — Facts and written procedure Fund for Mine Workers, hereinafter referred to as the 'FNROM), reduced the Mr Mura, an Italian national, who is the Belgian pension by the appropriate

defendant in the main action, worked as amount, absorbed the arrears of the

Article 1 (2) of the Belgian Royal Decree tioned Royal Decree) and of Article 46 of 19 November 1970 was satisfied by (3) of Regulation No 1408/71. the insurance periods completed in Belgium alone. Since 1 November 1973 Basing his entitlement to receive the

Mr Mura has also received a proportion­ Belgian pension without reduction

ate part of the French invalidity pension, chiefly on the judgment of the Court of his entitlement to which was acquired Justice in Case 24/75 (Petroni v Office through the aggregation of the periods of National des Pensions pour Travailleurs employment in both Belgium and Salariés [1975] ECR 1149) Mr Mura France, since it could not be acquired on brought an action before the Tribunal du

FNROM v MURA

Travail (Labour Tribunal), Mons, in — that Article 12 must be declared which he was successful. The FNROM incompatible with Articles 7, 48 and

appealed to the Cour du Travail, Mons, 51 of the Treaty and cannot therefore which by judgment of 21 January 1977 prevail over internal rules against the stayed the proceedings and referred the overlapping of benefits. following question to the Court of

II —

Summary of the written scheme for mine workers, and from observations submitted to Article 46 (2) (c) of Regulation No the Court under Article 20 1408/71, that the defendant in the

of the Protocol on the main action was entitled to a full Statute of the Court of Belgian pension without reduction.

Justice of the EEC

On the substance of the preliminary In the opinion of the FNROM the rules question Mr Mura observes, first,that in against the overlapping of benefits laid several cases the Court has stated that the down by Article 12 (1) and (2) of fact that in some cases the migrant Regulation No 1408/71 do not apply to worker has an advantage over nationals of benefits calculated in accordance with the country in which he works follows Article 46, because the unjustified from the system at present in force, overlapping of benefits which that article which rests on a simple coordination of seeks to avoid is prevented by Article 46 national legislations which have not yet (3). been harmonized.

However, the consequence of deciding that the correction provided for by the The Belgian institution may apply the

JUDGMENT OF 13. 10. 1977 — CASE 22/77

In its observations in Case 112/76 in which it was suited that the national

(Manzoni v Fonds National de Retraite legislations may deal with the problem of

des Ouvriers Mineurs) the Belgian overlapping of pensions under Article 11 Government concluded on the basis of ofRegulation No 3 if it is a question of

the judgments in Petroni (cited above) benefits acquired outside the application

and Strehl v Nationaal Pensioenfonds of the Community regulations. Those voor Mijnwerkers (Case 62/76 [1977] institutions thus believe themselves

incompatible with Articles 7 and 48 of paradoxical and unfair situations. It is the Treaty, since it creates discrimination therefore necessary that the problem of

between migrant workers and those who the overlapping of pensions should also have been employed in one State. be governed by a Community rule which Articles 7 and 48 forbid all may be relied on before the national

discrimination based on nationality. courts and submitted to the Court of

However, Article 12 gives rise to no Justice for review.

discrimination on the basis of the The defendant in the main action nationality of workers. therefore proposes to reply that:

The Court stated in Case 34/69 (Caisse Member The institutions of the States d'Assurance Vieillesse des Travailleurs are not entitled to rely upon national Salariés de Paris v Jeanne Duffy [1969] rules against overlapping to reduce ECR 597) and Case 184/73 (Bestuur van Com­ benefits calculated pursuant to de Nieuwe Algemene Bedrijfsvereniging munity law. Under the present European v Kaufmann [1974] I ECR 517), when Article 12 Regulation No rules of

point in the main action entitlement to the defendant receives two benefits of the the Belgian pension was acquired same kind Article 12 (2) of Regulation independently of the rules on No 1408/71 is applicable. Since the aggregation laid down by those interpretation of the text of that

regulations. As against the principles laid provision can only lead to an affirmative

down by the Court in those two reply to the question referred it must be judgments, certain institutions refer to assumed that the court a quo intended to two other judgments (judgment of 6 raise doubts as to the applicability, in the December 1973 in the case of Mancuso, absence of a Community rule against

Case 140/73, [1973] II ECR 1449 and overlapping, of that provision, which may judgment of 25 November 1975, Caisse in appropriate circimstances give the

de Pension des Employés Privés v migrant worker an advantage over the

Massonet, Case 50/75, [1975] ECR 1473), national worker.

whose necessity is accepted, not for the Furthermore, there is no substantial purpose of enacting independent difference between Article 12 (2) of

Community legislation, but in order to Regulation No 1408/71 Article 11 and co-ordinate and harmonize the national (2) of Regulation No 3. Therefore the laws, that the Community rules against consequence of the limitation placed on the overlapping of benefits are the ambit of Article 46 (3) by the Petroni incompatible with Article 51 of the judgment is that the line followed in the Treaty. The result of the inapplicability case-law of the Court concerning of Article 12 (2) and the consequent Regulation No 3 continued (cf. may of national rules possibility applying Cases 140/73 and 50/75); this clearly against the overlapping of benefits is to implies that in the case of an overlapping give effect once again in another form to of benefits such as that in issue in the the Community provision which has main action national provisions for been declared to be unlawful. Until reduction should be introduced. If it Community rules covering every were not possible to introduce such

possibility are adopted, it is less provisions that part of the benefit which prejudicial to be able to give an would not be granted thereunder would advantage to a migrant worker under the nevertheless have to be paid by virtue of Community provisions in force than to the regulation, which, in the light of the run the risk of creating a situation which Petroni judgment, would mean that there is entirely unfavourable to him (cf. would be no obstacle to applying the opinion of Mr Advocate General Warner provisions of Article 46 (3) thereto. in Case 62/76, Strehl). in Therefore, practice, the relationship which exists between the second In this instance there is no duplication of fictitious the sentence of Article 12 (2) and Article 46 actual or periods, since

such that the exception does not apply to benefits granted under the legislation of

national provisions for reduction. That a third State were reduced. On that point

exception applies only where, in the Netherlands Government draws accordance with the provisions of Article attention to the questions referred to the

46, benefits of the same kind are awarded Court for a preliminary ruling by the by the institutions of two or more Sozialgericht Augsburg in Case 32/77 Member States. Benefits to which there is (Giuliani v Landesversicherungsanstalt

already an entitlement under national Schwaben).

JUDGMENT OF 13. 10. 1977 — CASE 22/77

into account periods of insurance Regulation No 1408/71 which the Court completed in both countries, without any is asked to provide and the literal text of provision for reduction by country A by that provision, it must be asked whether

reason of overlapping of the benefits. In a provision which allows the application

such a situation country A is responsible of internal rules against the overlapping for an unreasonable proportion of the of benefits is compatible with Article 51 benefit payable. of the Treaty.

In the light of the judgment in the Article 12 first of all lays down the

aforementioned Case 34/69 and to the principle that national legislative pro­

extent that Article 46 (3) permits a visions against the overlapping of

being placed in a more favourable The Commission observes, first of all, position than non-migrant workers, the

that it may be assumed that there was in application of the Community rule must fact a double overlapping of benefits and nevertheless prevail over the application

thus a double reduction of them. The of the internal rule against the

decision adopted by the FNROM is overlapping of benefits. Such a question

based not only on Article 46 (3) but also challenges the basic principle of the

on Article 12 of Regulation No 1408/71, precedence of Community law over

FNROM v MURA

the principle that there shall be no grounds of overlap, national benefits limitation on separately acquired acquired without recourse to aggregation

pensions. and the possibility of too great a degree of protection for the worker, the Court The Court has, however, stated in Case has invariably opted in favour of the

1/67 (Ciechelski, [1967] ECR 181) and in second alternative'. However, the Court Case 2/67 (de Moor, [1967] ECR 197) stated both in Case 50/75 and in Case that a pension may be reduced where 140/73 that:'It follows from Article 11 of

there is duplication of insurance periods, Regulation No 3 that the national

that is to say, if the benefit relates to legislations could deal with this situation

which may greatly exceed the wage compatible with Article 51 of the Treaty?

previously paid to the person concerned. If the Court were so to hold, that would The difficulty is therefore to decide on confirm that national laws are alone

the threshold beyond which there is applicable to the reduction of separately undue overlapping of benefits and acquired pensions. It would, furthermore, whether it is for the Community encourage those Member States which

legislature or for the national legislature have no rules against the of overlapping to determine that threshold and the benefits to introduce such rules into their manner in which a reduction, once legislation. Finally, there would be a risk

accepted, may be carried out. of excessive reductions if Member States had sole power in that area. It is, of

The Court has recognized that in certain course, possible to conceive of

which have not yet been Court has regarded as incompatible with

(Case 50/75). In the course of his opinion Article 51 of the Treaty. The in that case Mr Advocate General Commission considered that it had Trabucchi analysed the judgment in Case found a solution to that problem in its 140/73 (Mancuso), in which the same proposal for a regulation submitted to

observation already appeared, and stated the Council on 20 November 1968.

that, in dealing with questions The Commission therefore considers that concerning invalidity benefits: 'Of the

two possibilities, namely, the danger of the following reply may be given to the question referred: insufficient protection which might arise

in certain cases by the adoption of the 'The basic principle of the precedence of

Mr Mariscal, defend­ resented by the

ant in the main action, represented by The Advocate General delivered his Mr Rossini, Director of the Italian opinion at the hearing on 20 September welfare service 'Patronato ACLI', the 1977.

Decision

1 By a judgment of 21 January 1977, received at the Court Registry on the following 10 February, the Cour du Travail, Mons, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question

concerning the interpretation of Article 12 of Regulation (EEC) No 1408/71 of the Council 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).

Applying the national rules against the overlapping of benefits, the Belgian institution then deducted the apportioned amount of the French benefit from

the invalidity pension and asked the person concerned to refund the sum

overpaid.

6 The defendant in the main action claims that when the Belgian institution applied the national rules against the overlapping of benefits it deducted not the apportioned amount of the French pension (FF 2 0 3.81 per year) but

rather the theoretical amount of the French pension (FF 2 603.45).

7 It is for the national court to consider that situation in connexion with the

10 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 co-ordination at

present practised.

11 Article 12 (2) of Regulation No 1408/71 provides that The legislative provisions of a Member State for reduction, suspension or withdrawal of

benefit in cases overlapping of with other social security benefits or other income may be invoked even though the right to such benefits was acquired

under the legislation of another Member State or such income arises in the

13 It follows that the provisions of that paragraph are not applicable where they bring about a reduction in the benefit acquired by virtue of a Member State's national legislation alone and that, where that is the case, the second sentence of Article 12 (2) is inapplicable.

14 When the second sentence is not applicable, the first sentence applies, with

the consequence that national legislative provisions for reduction, suspension or withdrawal of benefit may be invoked.

15 However, it appears from Article 46 (1) that if the application of national

provisions on entitlement and calculation alone is less advantageous for the

worker than the application of the rules for aggregation and apportionment,

17 The costs incurred by the Belgian Government, the Italian Government, the Netherlands Government, the Government of the United Kingdom and the

Commission of the European Communities, which have submitted

observations to the Court, are not recoverable.

18 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.

its entirety, provided that if the application of such national

legislation proves less favourable than the application of the rules

regarding aggregation and apportionment those rules must, by virtueof Article 46 (1) of Regulation No 1408/71, be applied.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 13 October 1977.