C-26/78

JUDGMENT OF THE COURT OF 5 OCTOBER 1978 <apnote>1</apnote>

Institut National d'Assurance Maladie-Invalidité and Union Nationale des Fédérations Mutualistes Neutres v Antonio Viola (preliminary ruling requested by the Cour du Travail, Mons)

"Invalidity pension"

Case 26/78

Social security for migrant workers — Benefits — Overlapping — National legislation — Rules against overlapping — Application — Conditions (Regulation No 3 of the Council, Art ¡I (2))

1. The restrictions referred to in Article 2. If the application of the relevant 11 (2) of Regulation No 3 apply to national legislation is less favourable insured persons only as regards than that of the system of aggre­ benefits acquired by applying Regu­ gation and apportionment, the latter lations Nos 3 and 4. system must be applied.

on the interpretation of Article 11 of Regulation No 3 and Article 9 of Regulation No 4 (on social security for migrant workers),

1 — Language of the Case . French

JUDGMENT OF 5 10. 1978 — CASE 26/78

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, A. O'Keeffe and A. Touffait, Judges,

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

INAMl v VIOLA

Upon hearing the report of the Judge- Article 3 of Iulian Law No 218 of 4 Rapporteur and the views of the April 1952 provides that "pensions shall Advocate General, the Court decided to be increased' by an amount equal to one open the oral procedure without any twelfth of the annual amount, to be preparatory inquiry. paid at Christmas. Under Article 34 (2)

JUDGMENT OF 5. 10. 1978 — CASE 26/78

That is allowances for the same persons. moreover the official point of view of the INPS as expressed in the circulan — The principle of treating the pension of its general management on the entry supplement for a dependent spouse into force of Regulation No 1408/71. in the same way as family allowances which is expressly B — Observations submitted by Mr contained in the Iulian legislation is Viola indirectly confirmed by the provisions of Article 1 (f) and (u) (i) Mr Viola claimed the invalidity of Regulation No 1408/71. insurance benefits not for an incapacity which was or could be covered by the — Family expenses for a migrant Iulian legislation but for a risk which worker are greater than for a national worker and it would be materialized in Belgium and which entitled him to the allowances laid abnormal to deprive him of a benefit down by the Law of 9 August 1963 to which might serve to compensate in the exclusion of any direct or indirect part for these additional charges. intervention by any other legislation. — The special Belgian scheme for For its part the Iulian invalidity pension miners, the FNROM, at first took is the counterpart, at the time when the the same view as the Iulian INPS risk materializes, for the contributions namely that the pension supplement paid by the worker and his employer. for a dependent spouse was not to Even if it is accepted that the latter be taken into consideration in pension constitutes compensation for reducing the Belgian pension.

benefits Indeed: makes no provision for the grant of a — The conditions for the grant of the "13th month" of a pension. To claim two benefits are identical and the that in application of the rules against Italian Law of 30 April 1969 makes the overlapping of benefits the "13th express reference to the provisions month" of a pension should be applying in respect of family deducted from the Belgian pension is allowances tantamount to saying that a Member

Sute is not permitted to grant benefits apply the national provision against the which have no equivalent in another overlapping of benefits in the light of Member Sute. Article 11 of Regulation No 3. It was In conclusion Mr Viola contends that this problem which formed the subject neither the pension supplement for a of the judgment in Case 83/77 (Naselli v Caisse Auxiliaire d'Assurance Maladie- dependent spouse nor the "13th month" of a pension should be taken into Invalidité [1978] ECR 683) in which the consideration in applying the rules Court of Justice ruled that the against the overlapping of benefits on restrictions referred to in Article 11 (2) which an institution of a Member Sute apply to insured persons only in so far may rely pursuant to Article 11 (2) of as the benefits acquired by applying Regulation No 3. Regulations Nos 3 and 4 are concerned and that no other provision of Regu lation No 3 precludes the application to C — Observations submitted by the benefits acquired by virtue of national Belgian Government legislation alone of national rules In a judgment of 20 June 1972 with against the overlapping of benefits.

holds good for the application of the provisions at issue in the main action. It appears therefore that the questions By a judgment of 10 January 1974 the raised by the national court do not arise Cour du Travail, Brussels, held that the in the context of the application of the "13th month" granted by the Iulian law rules about overlapping contained in was not a "gratuity" but a component Article 11 of Regulation No 3 and of the Italian pension which had to be Article 9 of Regulation No 4.

question the factors of interpretation depending on Community law which might be D — Observations submitted by the useful to it in evaluating the effects of Commission such provision" (Case 63/76 Inzirillo v Before replying to the questions raised Caisse d'Allocations Familiales de Lyon by the Belgian court, the Commission [1976] ECR 2057). thinks it appropriate to inquire whether In the light of the wording of Article 1 the Belgian institution had the power to (s) of Regulation No 3 the supplement

for a dependent spouse falls within the although they may be of the same definition of the term "pension". amount, are for their pan still However, according to the relevant covered by the provisions of the Italian legislation since the Law of 30 regulation concerning pensions. April 1969 the supplement has been awarded on a fixed basis, that is to say It is evident from the wording of the independently of the duration of Italian Law of 4 April 1952 that the insurance periods or the amount of the supplement to the pension paid at payments effected and it is of an Christmas is directly linked to the amount equal to that of the family granting of a pension and the allowances to which the said supplement terminology used ("pensions shall be is assimilated by the Italian body, the increased") shows that it is not a new INPS. separate benefit. The Commission puts forward the following arguments in answer to the Consequently the Commission takes the submissions made on behalf of the view that for the purpose of applying INPS before the national court: Regulation No 3 benefits granted by the — The benefit granted by the Law of legislation of a Member Sute to a 30 April 1969 serves the same aim person entitled to a pension for a (the term "pension supplements' was dependent spouse by way of a retained) as that granted under the supplement payable at Christmas which previous law. It is consequently are inseparable from the payment of the difficult to accept that that benefit pension constitute supplements within has become comparable to family the meaning of Article 1 (s) of Regu­ allowances because it is now granted lation No 3 and form an integral pan of on a fixed basis. the pension. — The Law of 30 April 1969 is not INAMI, represented by A. Wattier, of contained in the part of the Italian the Mons Bar, Mr Viola, represented by Code relating to family allowances D. Rossini, Director of the welfare but in that relating to general organization "Patronato ACLI", and invalidity. the Commission of the European — Whilst Article 42 (2) of Regulation Communities, represented by its Legal No 3 refers to supplements to Adviser, A. Toledano-Laredo, acting as pensions it must be noted that the Agent, presented oral argument at the treatment of them in the same way hearing on 6 July 1978. as family allowances extends only to increases or supplements to pensions The Advocate General delivered his or benefits in respect of children; opinion at the hearing on 20 September supplements for a dependent spouse, 1978.

« On the other hand for the acquisition of a right to benefits in Italy he had to rely on the provisions of Regulation No 3 and in calculating those benefits the periods actually completed in the two Member States were aggregated and the Italian benefits were apportioned.

5 On being informed of the award of apportioned Iulian benefits the Belgian institution, having regard to the rules against the aggregation of benefits contained in Article 70 (2) of the Belgian Law of 9 August 1963 on the establishment and organization of a scheme of compulsory insurance against sickness and invalidity, raised the problem of the overlapping of the benefits.

6 On appeal the case was brought before the Cour du Travail, Mons, which, by a first judgment of 25 June 1976, ruled that Mr Viola could not receive the Belgian benefits for incapacity for work in addition to the invalidity pension paid by the Iulian authorities but that the right to claim a refund of the sums paid before 1 May 1969 was time-barred; it therefore ordered that the proceedings be reopened to enable the parties to the main action to determine the amount of the sums paid to Mr Viola by the Iulian institution from 1 May 1969 to 30 April 1971.

7 The judgment of 25 June 1976 left unanswered the question whether, for the application of the Belgian rules against the overlapping of benefits, the pension supplements for a dependent spouse and the annual supplement awarded at Christmas time, provided for by the Iulian legislation, were an

JUDGMENT OF S. 10. 1971 — CASE 26/78

integral pan of the invalidity pension and in order to resolve this problem the Cour du Travail, Mons, by a second judgment of 10 February 1978, referred the following questions to the Court of Justice for a preliminary ruling:

ι; As regards old-age and death pensions, Articles 27 and 28 of Regulation No 3 apply to such a situation, but not when in a Sute the object sought by Article 51 is attained under national legislation alone.

ΙΝAΜΙ v VIOLA

13 The scheme of Articles 27 and 28 thus implies a simultaneous application of those two provisions.

14 As a result, apportionement of benefits may not be made, unless it has been necessary, for the acquisition of the right, to aggregate beforehand the periods completed under different legislative systems, but it may not be used if its effect is to reduce the benefits which the insured person can claim under the legislation of a single State.

15 The same considerations require the application of the same rules when the problem arises of the application by analogy of Articles 27 and 28 to invalidity pensions.

16 As the Court of Justice has already ruled in its judgment of 14 March 1978 in Case 83/77 (Naselli v Caisse Auxiliaire d'Assurance Maladie-Invalidité [1978] ECR 683) the restrictions referred to in Article 11 (2) of the regu­ lation apply to insured persons only as regards benefits acquired by applying Regulations Nos 3 and 4.

21 Accordingly if the provisions of national legislation alone, including the rules against the aggregation of benefits, are less favourable to the insured person than the rules relating to aggregation and apportionment, it is the latter rules which should be applied.

Costs

22 The costs incurred by the Belgian Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

23 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

Delivered in open court in Luxembourg on 5 October 1978.

A. Van Houtte Η. Kutscher

Registrar President

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 20 SEPTEMBER 1978

My Lords, Maladie-Invalidité (or "INAMI") and the Union Nationale des Fédérations This scase comes to the Court by way of a reference for a preliminary ruling Mutualistes Neutres (or "UNFMN"). by the Cour du Travail of Mons. They are the appellants before the Cour du Travail of Mons. Signor Antonio Viola, the respondent in the proceedings before that Court, was I need not, I think, trouble Your born in April 1908. So far as one can Lordships with all the deuils of that discern from the papers, he worked in litigation. The respondent's position Italy from 1930 to 1935, in Germany under Belgian law was much clarified for a short period in 1938 and 1939, by a Judgment of the Cour du Travail and in Belgium from 1947 to 1960. He of Mons dated 25 June 1976, and the then fell ill. He still lives in Belgium In issues arising in the litigation were 1961 he became entitled to invalidity thereby considerably narrowed down. pensions in both Belgium and Italy. He That Judgment hinged largely on has never been entitled to such a Article 70 (2) of the Belgian statute of 9 pension in Germany. August 1963 on sickness and invalidity The amount of pension due to him in benefits (I propose to refer to that Belgium has been the subiect of statute, for short, as "the Belgian statute protracted and complex litigation there of 1963" or simply as "the statute of between himself and the Belgian social 1963"). This Court has been concerned security institutions concerned, namely with Article 70 (2) of it on at least two the Institut National d'Assurance previous occasions, namely in Case