C-64/77
ECLI:EU:C:1977:197
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JUDGMENT OF THE COURT <apnote>1</apnote> OF 30 NOVEMBER 1977
Mario Torri v Office National des Pensions pour Travailleurs Salariés
(preliminary ruling, requested by the Tribunal du Travail, Liège)
Case 64/77
Social security of migrant workers — Minimum benefit — Grant — Condition
(Regulation (EEC) No 1408/71, Article 50)
Article 50 of Regulation (EEC) No the legislation of the Member State in 1408/71 of the Council is applicable only whose territory the worker resides for a
in cases in which provision is made in minimum pension.
In Case 64/77
Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail, Liege, for a preliminary ruling in the action pending before that
court between
MARIO TORRI
and
OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIÉS , Brussels,
on the interpretation of Article 50 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),
1 — Language of the Case: French.
JUDGMENT OF 30. II. 1977 - CASE 64/77
THE COURT
composed of: H. Kutscher, President, M. Sǿrensen and G. Bosco, Presidents of Chambers, A. M. Donner, P. Pescatore, J. Mertens de Wilmars, Lord
Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,
Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
The facts, the procedure and the written In addition. Mr Torri has. been receiving observations submitted under Article 20 since 1 December 1973 an old-age
of the Protocol on the Statute of the pension paid by the competent Italian Court of Justice of the EEC may be institution on the basis of his previous
summarized as follows: employment in Italy amounting to FB 12 970 per annum.
I — Facts and procedure Taking the view that as he had continued to reside in Belgium after the
termination of his employment Article Mario Torri, an Italian national who was 50 of Regulation (EEC) No 1408/71 of born on 25 October 1909, was employed the Council was applicable to him, Mr successively in Italy from 1926 to 1942 Torri challenged the decision of the and subsequently in 1946 and 1947 (19 ONPTS and sought from that institution years) and in Belgium from 1949 to 1973 a supplement to his pension as from (25 years). On 29 November 1973 he 1 November 1974 amounting to FB submitted a claim for a retirement 33 777 per annum, representing the pension to the Office National des difference between the amount of the Pensions pour Travailleurs Salariés theoretical Belgian pension, that is to say (National Pensions Bureau for Employed the amount to which he would have Persons, hereinafter referred to as 'the been entitled if he had spent the whole ONPTS'). That institution granted him a
retirement pension of FB 132 333 per of his working life in Belgium, namely FB 179 080 and the sum of the Belgian annum from 1 November 1974 when the and Italian pensions awarded him, plaintiff attained the age of 65. The namely FB 145 303. Article 50 of amount of the pension corresponds to 25 Regulation (EEC) No 1408/71 of the in Belgium years'
employment and was Council, as amended, is worded as calculated on the basis of the Royal follows: Decree No 50 of 24 October 1967 on
retirement and survivors'
pensions for 'Award of a supplement when the total of
employed persons. benefits payable under the legislations of
TORRI v ONPTS
the various Member States does not fixed amount is known because the
amount to the minimum laid down by calculation of benefits rests on the
the legislation of the State in whose amount of wage or salary and on the
territory the recipient is duration of the insurance periods permanently resident. completed?
A recipient of benefits to whom this Does the minimum benefit correspond
chapter applies may not, in the State in in that case to the amount of the
he is "theoretical pension"
calculated in whose territory permanently resident and under whose legislation a accordance with the provisions of Article benefit is payable to him, be awarded a 46 (2) (a) of the regulation?'
benefit less than a minimum benefit determined by that legislation for a The judgment referring the matter to the
period of insurance or residence equal to Court of Justice was registered at the
all the insurance periods taken into Court Registry on 26 May 1977. account for the payment in accordance
with the provisions of the preceding In accordance with Article 20 of the
articles. The responsible institution of Protocol on the Statute of the Court of
that State shall, if necessary, pay him Justice of the EEC written observations
throughout the period of his residence in were submitted on behalf of Mr Torri by its territory a supplement equal to the Daniele Rossini, Director of the social Acli'
difference between the total of the organization 'Patronato and on
benefits payable under this chapter and behalf of the Commission of the benefit.'
the amount of the minimum European Communities by its Legal Adviser Marie-Jose Jonczy, acting as
Mr Torri takes the view that the Agent. minimum benefit referred to in Article 50 of Regulation (EEC) No 1408/71 is Upon hearing the report of the
the amount of the theoretical Belgian Judge-Rapporteur and the views of the
pension calculated in accordance with Advocate-General the Court decided to
Article 46 (2) (a) of that regulation. The open the oral procedure without holding ONPTS refused to accede to the request a preparatory inquiry. of the plaintiff; it takes the view that
Belgian legislation does not lay down any benefit'
'minimum within the meaning II —
Summary of the written
of Article 50 of Regulation (EEC) No observations submitted to
1408/71 and therefore no supplement the Court could be granted to the plaintiff.
Mr Torri states that in accordance with
Mr Torri then applied to the Tribunal du Article 7 of Royal Decree No 50 of 24 Travail (Labour Tribunal) Liege. By October 1967 in Belgium the retirement
judgment of 11 May 1977 that court pension is calculated both on the basis of decided to stay proceedings and to refer the working life of the worker and of the
the following questions to the Court of gross remuneration earned by him Justice of the European Communities for during that period. The Belgian pension
a preliminary ruling pursuant to Article is therefore not a fixed amount and in 177 of the EEC Treaty: fact there is neither a minimum benefit nor a maximum benefit. 'What is to be understood by 'minimum benefit'
within the meaning of Article 50 In accordance with the obligation
of Regulation (EEC) No 1408/71 of the imposed on Member States by Article 5 Council where, in the legislation of a of Regulation (EEC) No 1408/71 the
Member State no minimum pension of a Belgian government first declared that
JUDGMENT OF 30. 11. 1977 - CASE 64/77
under its legislation there were no the declaration made by the Belgian
minimum benefits (OJ C 12 of 24. 3. government in pursuance of Article 96 of 1973, p. 11); subsequently it included the regulation does not include benefits special invalidity pensions for miners in under the system of retirement and
the field of application of Article 50 of survivors'
pensions for employed persons.
Regulation No 1408/71 (OJ C 84 of 12. 10. 1973, p. 7). The Commission first recalls the origins
of Article 50 of Regulation (EEC) No The question in the present instance 1408/71. In particular it refers to Article arose when the ONPTS started to refer in 40 of the initial proposed version of the
its decisions to the amount of a revised Regulation No 3 which the
minimum benefit with reference to Commission submitted to the Council in Article 50 of Regulation (EEC) No January 1966 (JO No 194 of 28. 10.
1408/71. According to the definition 1966, p. 3333), and to the accompanying given by the ONPTS (see Annex V to the statement of the reasons on which it was
observations) the minimum benefit based (Commission Document COM
corresponds to the amount of the (66)8 of January 1966). In the terms of
pension payable solely by virtue of the the statement of reasons the grant of a
insurance periods validated in Belgium. supplement was proposed '... in order to
It is clear from the heading and from the bring the amount of the benefits
wording of Article 50 that the minimum provided for the person concerned to the
benefit corresponds to the theoretical minimum amount laid down by the
pension which the migrant worker would legislation of the State in territory whose
receive if he had completed the whole of he resides where the conditions for the his working life in the territory of the grant of that minimum are fulfilled by State where he resides. Furthermore the taking all the insurance periods into fact that Article 50 is placed after the account (paragraph 1). This provision will
provisions of Article 46 shows that the be applicable by the institutions of the
minimum benefit corresponds to the three countries whose legislation at
amount of the theoretical pension present lays down a minimum for in invalidity, old-age and survivors'
calculated accordance with paragraph pensions
(2) (a) of Article 46. Applied in —
France, Italy and Luxembourg ...'.
conjunction with Article 3 (1) of
Regulation (EEC) No 1408/71 Article 50 It is clear from the statement of reasons
appears to have the objective of that intention, the at least that of the
guaranteeing the migrant worker the Commission, was to ensure that a
same treatment as regards pensions as migrant worker who receives portions of
that reserved to the national worker for a a pension from different Member States
working life of the same length. and who resides in one of them should
receive at least the minimum pension
In short, Mr Torri takes the view: laid down by the legislation of the State in which he resides where that State does That in the Belgian system of retirement lay down a minimum pension. If the
and survivors'
pensions the minimum minimum pension had been intended to
benefit corresponds to the theoretical be the theoretical amount the provision
pension calculated in accordance with would have been applicable in all the
Article 46 (2) (a) of Regulation (EEC) No Member States and not only in three of
1408/71; them.
That the pension supplement referred to Article 40 of the aforesaid proposed text in Article 50 of Regulation (EEC) No became Article 50 of Regulation (EEC) 1408/71 is payable if the recipient has No 1408/71. The fact that the wording of his residence in Belgium even though the latter article is slightly different from
TORRI v ONPTS
the Commission's proposed version does It is therefore a national concept in
not affect its basic purport. contrast to the concept of the theoretical
amount introduced by Regulation (EEC) No 1408/71. Sometimes the minimum Under Article 5 of Regulation (EEC) No benefit is made conditional on 1408/71 'the Member States shall completion of a certain number of years specify. . the minimum benefits of insurance. In the context of rules referred to in Article 50... in adopted on the basis of Article 51 of the declarations to be notified and published EEC Treaty it would have been normal in accordance with Article 96. In the that in granting the right to that view of the Commission such minimum benefit account should be notification would not be possible if taken of all the periods taken into minimum benefit were intended to mean
the theoretical amount. In fact the consideration by the various national
legal systems to which the worker was theoretical amount of a pension is subject. That explains the wording of determined on the basis of the individual Article 50 of Regulation (EEC) No insurance history of each worker and can 1408/71 which essentially seeks to enable only be calculated when the person a worker who has not completed concerned has made an application for a sufficient insurance periods in order to pension and filled in all the necessary be entitled to the minimum benefit forms. determined by the legislation of the State in which he resides to satisfy the From all the notifications by Member conditions relating to the insurance States under Articles 5 and 96 of period by aggregating all the periods of Regulation (EEC) No 1408/71 the insurance or residence completed in the following conclusions may be drawn: various Member States.
Finally, Article 50 of Regulation (EEC) First, as the Belgian legislation only lays No 1408/71 is only of somewhat limited down a minimum benefit for invalidity application. It only concerns three or pensions for mineworkers Mr Torri four Member States and only seeks to cannot claim a minimum old-age where after benefit. guarantee, necessary aggregation, the minimum pension
which is laid down on a flat-rate basis by Secondly, it is evident that some Member the
legislation of the Member State States have no minimum benefit within where the worker resides or where he is the meaning of Article 50. That entitled to a part pension if the sum of provision is only applicable in those the various pensions paid is less than the Member States whose legislation lays aforementioned minimum benefit. down a minimum benefit for the risk in The Commission proposes that the question. In those legal systems where questions referred to the Court for a pre the concept of a minimum benefit exists
the expression has a very particular liminary ruling be answered as follows: benefit'
meaning referring to the minimum level 'The minimum within the
of pension which is guaranteed to a meaning of Article 50 of Regulation person entitled to a pension irrespective (EEC) No 1408/71 of the Council of the amount of remuneration, corresponds to the minimum amount of
contributions or any other factors which pension, that is to say the fixed sum are taken into account in calculating the determined by the legislation of certain pension. The minimum benefit is a fixed Member States which is payable to all
amount, that is to say a flat-rate sum laid pensioners whether or not the down by the law, payable to all entitlement to it is conditional on the
pensioners whether they are covered by completion of a specified period of
Regulation (EEC) No 1408/71 or not. insurance.
JUDGMENT OF 30. 11. 1977 - CASE 64/77
Where no provision is made in the the Office National des Pensions pour
legislation of the Member State in whose Travailleurs Salaries, represented by J.
territory the worker is permanently Peltot,acting as Agent, and the
resident for a minimum pension of a Commission of the European fixed amount Article 50 is not Communities, represented by its Legal Adviser, Marie-Jose Jonczy, acting as applicable.'
Agent, presented oral argument. III — Oral procedure The Advocate-General delivered his At the hearing on 13 October 1977 Mr opinion at the hearing on 15 November
Torri, represented by Daniele Rossini, 1977.
Decision
1 By a judgment of 11 May 1977 which was received at the Court Registry on 26 May, the Tribunal du Travail, Liege, referred the following question to the Court for a preliminary ruling pursuant to Article 177 of the Treaty: 'What is benefit"
tobe understood by "minimum within the meaning of Article 50 of Regulation (EEC) No 1408/71 of the Council (OJ English Special Edition 1971 (II) p. 416) where, in the legislation of a Member State, no minimum pension of a fixed amount is known because the calculation of benefits rests
on the amount of wage or salary and on the duration of the insurance periods
'Does benefit completed?'
and the supplementary question: the minimum
correspond in that case to the amount of the 'theoretical pension'
calculated
in accordance with the provisions of Article 46 (2) (a) of the regulation?'.
2 These questions were raised in the course of proceedings relating to an
application by a worker of Italian nationality residing in Belgium who worked in Italy from 1926 to 1942 and then in 1946 and 1947 and in Belgium from
1949 to 1973 and who receives a Belgian retirement pension and an Italian retirement pension.
3 In the terms of Article 50 of the regulation in question: 'A recipient of
benefits to whom this chapter applies may not, in the State in whose territory he is permanently resident and under whose legislation a benefit is payable to
him, be awarded a benefit less than the minimum benefit determined by that legislation for a period of insurance or residence equal to all the insurance periods taken into account for the payment in accordance with the provisions
of the preceding articles. The responsible institution of that State shall, if necessary, pay him throughout the period of his residence in its territory a
TORRI v ONPTS
supplement equal to the difference between the total of the benefits payable
under this chapter and the amount of the minimum benefit'.
4 The plaintiff in the main action takes the view that if no minimum benefit of
a fixed amount is determined by the Belgian legislation which was applicable
to him the minimum benefit must be understood as corresponding to the
amount of the theoretical Belgian pension calculated in accordance with
Article 46 (2) (a) of the regulation, that is to say, the amount of the pension which would be payable to him if all his insurance periods had been
completed under the relevant Belgian legislation.
5 Article 50 covers cases where the periods of employment of the worker under
the legislation of the States to which he was subject were relatively short with
the result that the total amount of the benefits payable by those States does not provide a reasonable standard of living.
6 In order to remedy that situation the article in question provides that where
the legislation of the State of residence lays down a minimum benefit, the
benefit payable by that State shall be increased by a supplement equal to the
difference between the total of the benefits payable by the different Member States to the legislation of which the worker was subject and the minimum
benefit
7 Moreover Article 5 of the regulation provides that the Member States shall
specify in the declarations referred to in that article 'the minimum benefits referred to in Article 50'; that provision accords with the hypothesis that not
all the systems of legislation necessarily include minimum benefits of the
type in question but it would scarcely be comprehensible if the interpretation
put forward by the plaintiff in the main action were correct.
8 According to the declaration made by the Kingdom of Belgium a minimum benefit exists only in the context of the laws relating to invalidity pensions for mineworkers.
9 It is for the national court to assess whether that declaration is complete
having regard to all the national legislation in question.
JUDGMENT OF 30. 11. 1977 - CASE 64/77
10 Moreover, the view of the plaintiff in the main action is not in accordance
with the other provisions of Chapter III of the regulation.
11 Indeed, while those provisions serve to ensure that pensioned workers who
have worked for identical periods under identical systems of legislation
receive identical pensions, the consequence of the plaintiff's view would be
that those workers would receive different pensions according to their place
in Member State highest level of residence as those living the with the of
pensions would receive a higher pension than workers who had the same
insurance record.
12 The interpretation which is thereby proposed would result in giving Article 50 an effect which, going beyond its limited object, would bring it in to conflict with the general objective of Chapter III of not influencing the free choice of the place of residence which Article 48 (3) (d) of the Treaty guarantees to a former worker.
13 It must therefore be concluded that Article 50 of Regulation (EEC) No
1408/71 of the Council is applicable only in cases in which provision is made
in the legislation of the Member State in whose territory the worker resides
for a minimum pension.
14 A reply to this effect should therefore be given to the questions referred to
the Court.
Costs
15 The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable.
16 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.
TORRI v ONPTS
On those grounds,
THE COURT,
in answer to the questions referred to it by the Tribunal du Travail, Liege, by judgment of 11 May 1977, hereby rules:
Article 50 of Regulation (EEC) No 1408/71 of the Council is
applicable only in cases in which provision is made in the
legislation of the Member State in whose territory the worker
resides for a minimum pension.
Kutscher Sǿrensen Bosco Donner Pescatore
Mertens de Wilmars Mackenzie Stuart O'Keeffe Touffait
Delivered in open court in Luxembourg on 30 November 1977.
A. Van Houtte H. Kutscher
Registrar President
OPINION OF MR ADVOCATE-GENERAL WARNER DELIVERED ON 15 NOVEMBER 1977
My Lords, Article 50 of Council Regulation (EEC) No 1408/71. This case comes before the Court by way of a reference for a preliminary ruling by It appears, according to what we were the Tribunal du Travail of Liege. The told, that this is a test case, Your Lordships'
plaintiff in the proceedings before the ruling in which will govern
Tribunal is Signor Mario Torri. The also the outcome of a number of other
defendant is the Belgian Office National cases at present pending in Belgium. des Pensions pour Travailleurs Salariés (the 'ONPTS'). The question at issue in The facts of this case are these.
those proceedings is whether Signor Torri, who is an old age pensioner, is Signor Torri, who is an Italian national, entitled to receive from the Defendant a was born on 25 October 1909. He supplement to his pension by virtue of worked in Italy from 1924 to 1947 and