C-236/78

JUDGMENT OF THE COURT OF 16 MAY 1979 <apnote>1</apnote>

Foods national de retraite des ouvriers mineurs (FNROM) v Giovanni Mura (preliminary ruling requested by the Cour du Travail, Mons)

"Social security"

Case 236/78

Social security for migrant workers — Benefits — Overlapping — Right acquired by virtue of national legislation alone — Provisions for reduction or suspension — Applicability — Community rules more favourable — Preference (Regulation No 1408/71 of the Council, Art. 46)

Where the provisions of Article 46 of by virtue of which the worker receives a Regulation No 1408/71 are more pension, the provisions of that article favourable to the worker than the must be applied in their entirety. provisions of national legislation alone,

1 — Language of the Case: French.

JUDGMENT OF 16. 5. 1979 — CASE 236/78

employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II) p. 416),

THE COURT

composed of: J. Mertens de Wilmars, President of the First Chamber, acting as President, Lord Mackenzie Stuart (President of the Second Chamber), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

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

scheme for mine-workers) and Article 46 (c) of Regulation No 1408/71 merely (3) of Regulation No 1408/71, the specified the method for calculating the Fonds National de Retraite des Ouvriers amount of the apportionment and that its Mineurs, hereinafter referred to as "the application could be contemplated only Fund", reduced the Belgian pension by in the cases of those who came the amount of the French pension exclusively under the system of Article relating to the period from 1 November 46 (2), that is to say who had to rely on 1973 to 31 March 1975 and claimed aggregation of insurance periods to give from Mr Mura reimbursement of the entitlement to pension. overpayment. In view of these considerations the Cour Basing his entitlement to receive the du Travail, Mons, decided that it was Belgian pension without reduction proper to make a fresh reference to the chiefly on the judgment of the Court in Court of Justice in accordance with Case 24/75 Petroni [1975] ECR 1149, Article 177 of the EEC Treaty. By Mr Mura brought an action before the judgment of 13 October 1978 the Cour Tribunal du Travail, Mons, in which he du Travail referred the following was successful. The Fund appealed to the question to the Court for a preliminary Cour du Travail, Mons, which referred ruling: the following question to the Court of Justice for a preliminary ruling: "Does the second subparagraph of Article 46 (1) of Regulation (EEC) No "Must Article 12 of Regulation No 1408/71 preclude the application of 1408/71 authorizing the overlapping of Article 46 (2) (c)? This question is of benefits take precedence over national particular relevance inasmuch as the rules against overlapping in cases in Court of Justice, in its judgment of 14 which the Community provisions result March 1978 in Case 98/77, Schaap, in a migrant worker's being placed in a refers in the operative part, and not in more favourable position than a non- the statement of the grounds therefor, to migrant worker?" the whole of Article 46".

open the oral procedure without any fixed at ten years, the denominator of preparatory inquiry.. the fraction to be taken into account in calculating the Belgian pension under Article 46 (2) (c) could not exceed ten. However, since the application of the fraction 11/10ths would be to burden the Belgian institution with a benefit in excess of the full benefit provided for by II — Summary of the written the Belgian legislation, it would be right observations submitted to to limit the benefit due from Belgium to the Court the amount of the full pension. This would be in accordance with the judgments in the aforementioned Case Mr Mura takes the view that Article 46 24/75 and in Case 1/67 Ciechelski (1) of Regulation No 1408/71 does not [1967] ECR 181. exclude the application of Article 46 (2) (c) when calculating the pension according to the rules of aggregation The Italian Government observes that it and apportionment. Indeed: appears from the case-law of the Court, confirmed by the judgments in Cases 98/77, Schaap, [1978] ECR 707, and — The wording of Article 46 (2) (c) 105/77 Boerboom-Kersjes, [1978] ECR leaves no doubt that it applies to 717, that: Article 46 (2) as a whole.

— The Community rules guarantee to qualification of the comparison the worker in any event the most mentioned in the second subparagraph of favourable treatment available as a Article 46 (1)). Further, if an result of the full application of the independent national benefit were national rules and the application of reduced by the application of the the principles of aggregation and national rule against overlapping up to a apportionment under the provisions level corresponding to an amount which of Regulation No 1408/71. a worker receives in another Member State under the-Community rules, not only would he receive no benefit from the application of the Community rules, but they might even work to his disad­ vantage (splitting up of the full benefit, less favourable exchange rate and so The rules on aggregation and apportionment include Article 46 (2) (c) forth). It therefore appears right to which guarantees to the worker the ascertain whether the application in their benefits acquired under national entirety of the rules on aggregation and apportionment (that is to say the whole legislation subject only to the restriction of the rules referred to in Article 46 (2)) that in no event has the competent national institution to bear costs of a as if there were no independent national benefit, would lead to a more favourable benefit greater than the full benefit provided for by the legislation which it position for the worker of which he administers. could take advantage.

JUDGMENT OF 16. 5. 1979 — CASE 236/78

Nevertheless, since the Court in its workers rights given them by the judgment in Case 22/77 referred to the legislative systems of Member States. "Rules regarding aggregation and apportionment" it may be asked whether it did not intend to include in this the — The primacy of Community law by virtue of which national legislation whole of Article 46 (2). In view of the cannot take away rights conferred by fact that Member States may henceforth Community law. apply their rules against overlapping, it would be right to apply the qualification set out in Article 46 (2) (c) in order that the terms of the comparison between the national benefit and the apportionment The Commission therefore thinks that should not be distorted. Article 46 (3) is applied, not as in the aforementioned case of Petroni to reduce a benefit acquired under national legislation alone, but to allow a migrant worker to receive the highest benefit Although the facts of those cases did not which he can claim in a Member State justify such a difference, the Court either under the national legislation, referred in its judgments in Schaap and having regard to the provisions on over­ Boerboom-Kersjes to the "Rules laid lapping, or under the provisions of down by Article 46 of Regulation Community law. The migrant worker No 1408/71". It seems that it intended thus has a guarantee that the reduction to go beyond the rules on aggregation in his benefits, whether on the basis of and apportionment and that, bearing in national clauses against overlapping or mind the observations made by Mr Article 46 (3), cannot lead to a sum less Advocate General Warner in his opinion, than the highest theoretical amount. it referred to Article 46 as a whole, so as to include in the terms of the comparison Article 46 (3). The Commission therefore considers that the answer to the question might be as follows:

not prevent the national legislation from — On the one hand Mr Mura's case being applied in its entirety, including ought not to be considered on the the national rules against overlapping, it basis of Article 46 (2) since he being understood that if the application received in Belgium a full invalidity of that legislation is less advantageous pension on the basis solely of the than that of the system under Article 46 periods completed in that country. of Regulation No 1408/71, the Article 46 (2) thus applies only in provisions of Article 46 (2) and (3) must connexion with the comparison be applied in order to allow the worker provided for in the second sub­ to receive the highest benefit which he paragraph of Article 46 (1). can claim either under national legislation or under the rules of — Further, Article 46 (2) (c) must not Community law". be applied in the present case in so far as the Belgian legislation is not of the type referred to therein. Article III — Oral procedure 46 (2) (c) refers to legislative systems which prescribe a maximum The Fund, represented by S. Yanick, of insurance period whereas the Belgian the Mons Bar, G. Mura, represented by mining scheme prescribes a minimum D. Rossini, Director of the Patronato period. ACLI social service organization, and the Commission of the European With the aid of two examples similar to Communities, represented by Mrs Mr Mura's case the Fund demonstrates M. J. Jonczy, acting as Agent, submitted that it is not possible automatically to oral argument at the hearing on 22 March 1979. infer that the application of the Belgian legislation to a person in receipt of The Fund put forward two arguments invalidity benefits is less advantageous explaining that the judgment in Case than that of the rules of Community law. 22/77 related only to Article 46 (1), referring itself only to Article 46 (2) (a) The Advocate General delivered his and (b): opinion at the hearing on 4 April 1979.

4 During the course of the same action the Cour du Travail, Mons asked in a previous judgment of 21 January 1977 under Article 177 of the Treaty whether Article 12 of Regulation No 1408/71 authorizing the overlapping of benefits must take precedence over national rules against overlapping in cases in which the Community provisions result in a migrant worker's being placed in a more favourable position than a non-migrant worker.

5 In its judgment of 13 October 1977 in Case 22/77 [1977] ECR 1699 the Court gave the following answer:

"So long as a worker is receiving a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not prevent the national legislation, including the national rules against the overlapping of benefits, from being applied to him in 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 virtue of Article 46 (1) of Regulation No 1408/71, be applied".

FNROM v MURA

6 The Cour du Travail, Mons, sharing the doubts expressed by the Fund on the interpretation of Article 46 of Regulation No 1408/71, made a second reference to the Court and asked the following question:

"Does the second subparagraph of Article 46 (1) … preclude the application of Article 46 (2) (c)? This question is of particular relevance inasmuch as the Court of Justice, in its judgment of 14 March 1978 in Case 98/77, Schaap, refers in the operative part, and not in the statement of the grounds therefor, to the whole of Article 46".

JUDGMENT OF 16. 5. 1979 — CASE 236/78

of the provisions of Article 45 being necessary, the competent institution of that Member State shall, in accordance with the legislation which it administers, determine the amount of benefit corresponding to the total length of the insurance periods or periods of residence to be taken into account in pursuance of such legislation. It shall also undertake the calcu­ lation of the amount of benefit which would be obtained by applying the rules laid down in Article 46 (2) (a) and (b), namely the rules on aggregation and apportionment. Only the higher of these two amounts is to be considered (Article 46 (1)). Where a worker has been subject to the legislation of any Member State and does not satisfy the conditions for entitlement to benefits unless account is taken of the provisions of Article 45 (Article 46 (2) (a) and (b)), the responsible institution of that Member State is to apply the rules on aggregation and apportionment set out in Article 46 (2). The process of apportionment enables an "actual amount" to be established on the basis of the theoretical amount pro rata with the length of the periods of insurance or residence completed before the occurrence of the event insured against under the legislation applied by that institution as compared with the total length of the periods of insurance and residence completed under the legislation of all the Member States concerned before the occurrence of that event.

11 The first subparagraph of Article 46 (3) provides that the worker shall be entitled to the total sum of the benefits calculated in accordance with the above-mentioned provisions, within the limit of the highest theoretical amount of benefits. The second subparagraph of Article 46 (3) nevertheless provides that where the amount referred to in the preceding subparagraph is exceeded, any institution applying paragraph (1) shall adjust its benefit by an amount corresponding to the proportion which the amount of the benefit concerned bears to the total of the benefits determined in accordance with Article 46 (1).

15 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,

in answer to the question referred to it by the Cour du Travail, Mons, by a judgment of 13 October 1978, hereby rules:

Where the provisions of Article 46 of Regulation No 1408/71 are more favourable to the worker than the provisions of national legislation

OPINION OF MR WARNER — CASE 236/78

My Lords, The Belgian legislation in point is that concerning invalidity benefits for This case comes to the Court, for the mineworkers, which is administered by second time, by way of a reference for a the Fonds National de Retraite des preliminary ruling by the Cour du Ouvriers Mineurs (the "FNROM"). It is Travail of Mons. On the first occasion it mainly contained in an Arrêté Royal of bore number 22/77 and the Judgment of 19 November 1977 (Moniteur Belge 26. the Court was delivered on 13 October 11. 1970). 1977. It is reported at [1977] ECR 1699.

The facts, Your Lordships will re­ member, are these. By virtue of Article 1 of that Arrêté Royal a mineworker is entitled to an Signor Mura, who was born on 28 invalidity pension if, having been October 1937, worked as a miner in employed for at least ten years as such, France for some four years, from 1957 he becomes incapacitated from normal to 1962, and in Belgium for eleven years, work. By Article 4 the amount of the from 1962 to 1973. He then became pension is fixed at an annual sum incapacitated. expressed in Belgian francs which varies