C-83/77

JUDGMENT OF 14. 3. 1978 — CASE 83/77

benefits acquired by virtue of 3. Article 9 (2) of Regulation No 4 national legislation alone of national applies only when the benefit in rules against the overlapping of question has been awarded through benefits. the application of the processes of aggregation and apportionment.

In Case 83/77

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail (Labour Tribunal), Brussels, for a preliminary ruling in the action pending before that court between Giovanni Naselli , Brussels,

and

Caisse Auxiliaire d'Assurance Maladie-I nvalidité (Auxiliary Fund for Sickness and Invalidity Insurance), with the Institut National d'Assurance Maladie-I nvalidité (National Institute for Sickness and Invalidity Insurance) intervening,

Facts and issues

The facts, the procedure and the written I — Facts and written procedure observations submitted under Article 20 of the Protocol on the Statute of the Mr Naselli, an Italian national, who is Court of Justice of the EEC may be the plaintiff in the main action has summarized as follows: worked in Italy and Belgium. As he was

NASELLI ν CAISSE AUXILIAIRE D'ASSURANCE MALADIE-INVALIDITE

disabled in Italy in 1958 he made an proceedings and, pursuant to Article application for an invalidity pension. 177 of the EEC Treaty, to refer to the The competent Italian social security Court for a preliminary ruling the institution awarded him an apportioned following two questions: pension as from 1 October 1958, his 1. "Should Article 11 (2) of Regulation entitlement thereto being based on the No 3 be interpreted as meaning that aggregation of his insurance periods in the plaintiff, having regard to the Belgium and Italy. On the other hand provisions of Article 70 (2) of the the Belgian institution refused to award Law of 9 August 1963, could not him any pension attributable to his draw the full amount of his Belgian periods of employment in Belgium on pension as well as his Iulian pension, the ground that he had not fulfilled the although his right to his Belgian conditions for paying contributions pension was acquired independently during a period sufficiently proximate of the regulations of the European to the date when his disablement began. Economic Community, that is, in When Mr Naselli returned to Belgium other words, is the Belgian insti­ where he appears to have worked tution authorized or not to apply the between 1963 and 1965 he fell ill again national provisions prohibiting and at that time obtained allowances for plurality in conjunction with Article incapacity to work under Belgian 11 (2) of Regulation No 3 for the legislation, increased by a supplement purpose of reducing the pension paid (cf. Article 28 (3) of Regulation No 3) by virtue of the Belgian legislation to bring them up to the amount of the alone?"

JUDGMENT OF M. J. 1978 — CASE 83/77

Upon hearing the report of the Judge- "The provisions of the preceding Rapporteur and the views of the paragraph notwithstanding and, subject Advocate General, the Court decided to to the provisions of the second sentence open the oral procedure without any of Article 11 (2) of the regulation, preparatory enquiry. where implementation of the provisions of the first sentence of Article 11 (2) of II — Observations submitted to the regulation would entail reduction or the Court under Article 20 suspension of an invalidity, old-age or

suspension. Such fraction shall be judgment of 10 December 1969 (Case 34/69 Caisse d'assurance vieillesse des determined in proportion to the length travailleurs salariés de Pans v Jeanne of the periods completed in accordance with Article 28 (1) (b) of the regulation: Duffy [1969] ECR 597) and its in calculating the amount for judgment of 15 May 1974 (Case 184/73 accounting purposes according to the

benefit. be added to the compensation arising under the other legislation; they shall be With regard to the application of Article the responsibility of the social insurance 28 (3) of Regulation No 3 which institutions to the extent to which the INAMI invokes as justification for incapacity covered by that legislation is reducing the supplement to the pension

payable by Belgian insurance, Mr regulations should be counterbalanced Naselli points out that this provision has by the application of the Belgian no purpose if the worker is entitled to provisions relating to the limitation of benefits solely under the laws of one overlapping. Member State (judgment of 28 May Article 9 (2) of Regulation No 4 does 1974 in Case 191/73 Rudolf Niemann v not apply here since it only applies Bundesversicherungsanstalt fur Angestellte where, for the purpose of awarding a

11 (2) of Regulation No 3: on the one question in the affirmative the Belgian hand the question what is a provision pension would have to be reduced as for reduction or suspension within the provided for in Article 9 (2) of Regu meaning of the before-mentioned lation No 4 which would otherwise Article 11 (2) and especially whether have no meaning. Since this provision Article 70 (2) of the Law of 9 August applies, in the absence of any further 1963 is such a provision and, on the indication, to benefits awarded pursuant other hand, the question in what to the provisions of Article 28 of Regu circumstances such provisions may be lation No 3 it also applies to benefits applied in accordance with Article 11 entitlement to which is acquired under (2) and, in particular, the question an independent system. whether these provisions are applicable CAAMI relies on the judgment of if the benefits were acquired without 6 December 1973 (Case 140/73, Regulations Nos 3 and 4 having to be

in the main action. general law or under some other law. INAMI extracts from the case-law of Such an interpretation is supported by the Court and the opinion of Mr the last paragraph of the said article Advocate General Trabucchi in the which states on the one hand, that the Mancuso case (referred to above) and in body providing the insurance is auto Case 50/75 Caisse de pension des matically subrogated to the recipient employes privés v Helga Massonet [1975] and, on the other hand, that the ECR 1473 the principle that the agreement between the person liable to advantage derived from Community pay the compensation and the recipient

is not enforceable against the body kind acquired by aggregation fall within providing the insurance without the the exception provided by the last consent of the latter. sentence of Article 11 (2). The logical Even if the illness is presumed to be an consequence is that, where an old-age injury can the Italian institution which or invalidity pension acquired under national legislation alone and another awards Mr Naselli a proportional pension of the same kind acquired invalidity pension be regarded as being under the legislation of another liable to pay the compensation for the Member State overlap, the national injury? That appears to be absurd in so far as it was in fact in Belgium that Mr provisions against the overlapping of Naselli fell ill, obtained allowances for benefits apply as provided for in the first sentence of Article 11 (2).

ECR 211). However it is for the trial judge to In the main action in this case the determine the meaning of his own Belgian institution made an ap country's legislation and it is advisable, portionment and awarded a supplement for the purpose of answering the on the basis of Article 28 (3) of Regu questions raised, to consider whether lation No 3 which in the meantime the the article in question might be a Court in the above-mentioned Case national provision against the over 191/73 (Niemann [1974] ECR 571) had lapping of benefits. held to be incompatible with Article 51 Article 11 (2) of Regulation No 3 first of the Treaty.

If account acquired in accordance with Article 28. is taken of the above-mentioned Only apportioned pensions of the same decided cases of the Court the answer is

3, that is to say of apportioned and not shall be apportioned in the same independently awarded pensions, since proportions as the benefit has itself in the converse case it is impossible to been reduced pursuant to Article 28 know by what proportion the amount to of the regulation. be deducted must be reduced. This system may appear to be illogical in so The plaintiff in the main action far as the national provisions against the represented by Mr D. Rossini, Director overlapping of benefits are not under of the social security service "Patronato the provisions of Article 11 (2) A.C.L.I.", INAMI, represented by Mr applicable to pensions acquired under Masquelin, Advocate at the Brussels Article 28. But the last sentence of Bar, and the Commission of the Article 11 (2) states clearly that the European Communities represented by benefits in question must be of the same its Legal Adviser, Mrs M.J. Jonczy, kind. The national rule against the over­ acting as Agent, presented oral lapping of benefits may therefore only argument at the hearing on be applied to the apportioned pension 17 November 1977. within the limits laid down by Article 9 (2) of Regulation No 4 where invalidity The Advocate General delivered his or old-age benefit acquired in opinion at the hearing on 15 February accordance with Article 28 of Regu- 1978.

JUDGMENT OF M. 3. 1978 — CASE 83/77

Decision

1 By order of 23 June 1977 which was received at the Court on 5 July 1977 the Tribunal du Travail, Brussels, referred to the Court, pursuant to Article 177 of the EEC Treaty, for a preliminary ruling two questions relating to the interpretation of Article 11 (2) of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561) and of Article 9 (2) of Regulation No 4 of the Council of 3 December 1958 on implementing procedures and sup­ plementary provisions in respect of Regulation No 3 concerning social security for migrant workers (Journal Officiel 1958, p. 597).

NASELLI ν AUXILIAIRE D'ASSURANCE MALADIE-INVALIDITE

"Should Article 11 (2) of Regulation No 3 be interpreted as meaning that the plaintiff, having regard to the provisions of Article 70 (2) of the Law of 9 August 1963, could not draw the full amount of his Belgian pension as well as his Italian pension, although his right to his Belgian pension was acquired independently of the regulations of the European Economic Community, that is, in other words, is the Belgian institution authorized or not to apply the national provisions prohibiting plurality in conjunction with Article 11 (2) of Regulation No 3 for the purpose of reducing the pension paid by virtue of the Belgian legislation alone?"

8 The second question referred is:

"Does Article 9 (2) of Regulation No 4 apply only to a case where the benefit that is to be reduced because it overlaps with another benefit or other income, is awarded by virtue of aggregation of insurance periods, that is, in other words, did the Belgian institution have to take into account a fraction and not the whole of the Iulian pension for the purpose of reducing the Belgian benefit although that benefit was acquired without having to apply regulations of the European Economic Community?"

First Question

9 The Court has already held in its judgment of 6 December 1973 in Case 140/73 Direction régionale de la sécurité sociale de la région parisienne and Caisse régionale d'assurance maladie de Paris v Carmela Mancuso and Caisse nationale d'assurance vieillesse des travailleurs salariés [1973] ECR 1449 that the application by analogy of Article 27 and 28 of Regulation No 3 to the cases referred to in Article 26 (1) implies that benefits may only be apportioned if it has been necessary, in order to give rise to entitlement, to aggregate beforehand the periods completed under different legislations.

14 On the other hand consideration of the other provisions of Regulation No 3 shows that none of them precludes the application to benefits acquired by virtue of national legislation alone of national rules against the overlapping of benefits.

15 Nevertheless the Belgian institution draws attention to the provisions of Article 70 of the Belgian Law of 9 August 1963 on sickness and invalidity insurance which read as follows: 'The benefits provided for by this Law shall be granted only under conditions determined by the King, if the incapacity in respect of which a claim for benefits is made falls within the general law or some other legislation. In such cases insurance benefits shall not be added to the compensation arising under the other legislation; they shall be the responsibility of the social insurance institutions to the extent to which the incapacity covered by that law is not in fact made good. In every case the recipient must receive amounts which are not less than the amount of the insurance benefits."

16 It is for the national court to consider the question whether this provision is a rule against the overlapping of benefits applicable to the benefits in a case such as the one in the main action or whether it is on the other hand only a provision granting the right of subrogation.

NASELLI v AUXILIAIRE D'ASSURANCE MALADIE-INVALIDITÉ

17 It is also for the national court to consider whether under this provision the reduction óf a Belgian pension by taking account of benefits acquired under the system of another Member State is possible without invoking the provisions of Article 11 (2) of Regulation No 3.

OPINION OF MR WARNER — CASE 83/77

On those grounds,

THE COURT

in answer to the questions referred to it by the Tribunal du Travail, Brussels, by judgment of 23 June 1977 hereby rules:

1. Consideration of the provisions of Regulation No 3 shows that none of them precludes the application to benefits acquired by virtue of national legislation alone of national rules against the overlapping of benefits.

2. Article 9 (2) of Regulation No 4 applies only when the benefit in question has been awarded through the application of the processes of aggregation and apportionment.

My Lords, liminary rulings by the Centrale Raad van Beroep of the Netherlands. All Of these cases, one, Case 83/77, the three raise problems akin to those with Naselli case, comes to the court by way of a reference for a preliminary ruling which the Court had to deal recently in by the Tribunal du Travail of Brussels; Cases 22/77 and 37/77, the Mura and the other two, Cases 98/77 and 105/77, Greco cases [1977] ECR 1699 and 1711. the Schaap and Kersjes cases, come to But it would, in my opinion, be an over­ the Court by way of references for pre- simplification to say that the rulings of