C-4/80

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail [Labour Tribunal], Charleroi, for a preliminary ruling in the action pending before that court between

1 — Language of the Case: French.

JUDGMENT OF 15. 10. 1980 — CASE 4/80

REMO D'AMICO

and

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIÉS [National Pension Office for Employed Persons]

Facts and Issues

The facts of the case, the course of the for six years. He then worked from 1952 procedure and the observations to 1972 as a miner underground in submitted under Article 20 of the Belgium. Having been granted an Protocol on the Statute of the Court of invalidity pension in 1973, he submitted Justice of the EEC may be summarized an application on 14 December 1976 in as follows : Belgium for a retirement pension with effect from 1 October 1977.

I — Facts and written procedure The main provisions governing retire- ment pensions for miners in Belgium are contained in Arrêté Royal No 50 of 24 October 1967. The provisions in point in Mr D'Amico, an Italian national residing Mr D'Amico's case are more precisely in Belgium, was first employed in Italy these:

D'AMICO v ONPTS

Article 4: considered as years of employment underground in coalmines before "The retirement pension shall take effect 1955"; from the first day of the month which follows that during which the claimant applies for the pension and not before: Article 25:

"In derogation from the second subpara- Since 1 October 1977 Mr D'Amico has graph of Article 10 (1) a worker: also been in receipt of an Italian invalidity pension on the basis of his previous employment in Italy. The 1° who has been habitually and mainly amount of that pension is Lit 703 230 or employed as a mineworker for at Bfr 28 293. least 20 years may receive a re- tirement pension calculated at one thirtieth for each calendar year of The ONPTS took the view that because employment as a mineworker. If in of that pension four of the five notional aggregate he has not been habitually years could not be taken into account. In and mainly employed for 30 calendar Belgium the full working life of an years as a mineworker underground underground miner is restricted to 30 in mines or quarries worked under- years: to take into account five notional ground but can show such years in the calculation of the pension employment for at least 25 such years would amount to awarding him a he shall be deemed to have been so pension for 34 years as an underground habitually and mainly employed for a miner. number of additional calendar years equal to the difference between 30 Consequently the miner's pension for Mr and the number of calendar years in D'Amico was calculated on the basis of which he proves that he was so habi- 26/30ths of the full amount: 25 actual tually and mainly employed. Each of years plus one notional year. The those additional years shall be ONPTS accordingly granted him a

JUDGMENT OF 15. 10. 1980 — CASE 4/80

D'AMICO v ONPTS

Calamera, an official of the Patronato compatible with Articles 48 to 51 of the INCA/CGIL (social services for Italian Treaty. workers), by the ONPTS, represented by its general administrator, Mr Masyn, by the Belgian Government, represented by the Secretary General of the Ministry for He refers to the case-law of the Court Foreign Affairs, Mr Nokerman, by the contained in Cases 184/73 Kaufmann Italian Government, represented by Mr [1974] ECR 517 and 83/77 Naselli Favara, Avvocato dello Stato, and by [1978] ECR 683, according to which the Commission of the European Article 11 (2) of Regulation No 3 (to Communities, represented by its Legal which Article 12 (2) of Regulation No Adviser, Jean Amphoux, acting as Agent, 1408/71 corresponds) is "the counter- and by the Council of the European weight to the advantages which Regu- Communities, represented by John lations Nos 3 and 4 procure for workers Carbery, its Legal Adviser, acting as by enabling them to claim the simul- Agent. taneous application of the social security laws of several Member States and its purpose is to prevent them from deriving from that application advantages which the national legislation considers On hearing the report of the Judge- excessive; therefore the restrictions Rapporteur and the views of the referred to in Article 11 (2) only apply to Advocate General the Court decided to insured persons in so far as the benefits open the oral procedure without any acquired by applying those regulations preparatory inquiry. The Court did, are concerned". however, put certain questions to the parties.

(so-called Type B legislation). The so- provisions of the first paragraph of called Type B legislation treats invalidity Article 10 (2) of Arrêté Royal No 50 and as premature old-age. The Italian consequently be deemed to have a legislation on invalidity is of the B type. number of additional calendar years An invalidity pension has the cha- equal to the difference between 30 and racteristics and the constituent elements 25. He established that he had received of an early retirement pension and does benefit for 194 weeks in Italy, from not undergo any change when retirement 1 March 1947 to 13 September 1952, age is reached. The Italian invalidity which was deemed to be equivalent to six pension can accordingly be regarded as years of work. In the case of a worker corresponding to an early retirement who has been employed in Belgium as a pension and as such does not bar the mineworker and has been employed grant of the Belgian retirement pension. abroad otherwise than in mines the Office takes into consideration the fact that according to Belgian law entitlement Mr D'Amico proposes the following to the pension is acquired only at l/45th answer to the questions referred to the per year and not l/30th and takes only Court: two-thirds of that insurance record into consideration to determine the number of added notional years as a mineworker "Article 12 (2) of Regulation No which must be ignored in order to 1408/71, which makes application of a comply with the 100 % limit rule, or national provision such as that set forth 30/30ths. In Mr D'Amico's case the six in Article 25 of Arrêté Royal No 50 of years of work in Italy multiplied by 24 October 1967 possible, is 2/3rds produces four. Four added incompatible with Articles 48 to 51 of notional years as a mineworker are the Treaty if its effect is to reduce therefore to be ignored. The Belgian pensions payable under the legislation of pension is therefore calculated at a single Member State to nothing. 26/30ths, or an amount of Bfr 234 925.

Article 25 of the Arrêté Royal is overlapping, by Regulation No 1408/ compatible with Articles 48 to 51 of the 71). Treaty on two grounds: it does not contain any discrimination on the grounds of nationality, and, provided the The Italian Government proposes the legislation of a Member State complies following answer to the questions: with the principle of equal treatment, Articles 48 to 51 of the Treaty do not require Member States to take into account, in their national legislation, "A national rule against overlapping characteristics specific to the legislation which, in the absence of reciprocal of other countries. arrangements and Community rules, has the effect of reducing social security benefits granted to a migrant worker under the national law of a single Member State on the ground that such a The Government of the Italian Republic worker has been granted another social emphasizes in the first place that Mr security benefit, which is itself payable D'Amico has completed, both in Belgium under the national law of another single and in Italy and on the basis of different Member State, is not compatible with the years which do not overlap, two periods EEC Treaty or with Regulation (EEC) of insurance, each of them sufficient to No 1408/71". afford entitlement to respectively an old-age pension in Belgium and invalidity pension in Italy. Therefore he has no need to rely on Community rules The Belgian Government maintains that in order to bring about the fulfilment of it is clear from Article 12 (2) of Regu- the conditions required by the national lation No 1408/71 that there is no legislation of each Member State. The incompatibility between Article 25 of question which arises is whether the rule Arrêté Royal No 50 and Article 12 (2) against overlapping contained in the of Regulation No 1408/71. The Belgian legislation may be regarded as compatibility of the said Article 25 with being compatible with the Community the provisions of Articles 46 and 50 of system and whether it is permitted by Regulation No 1408/71 is also beyond Article 12 (2) of Regulation No 1408/71. question. From the guidelines evinced in the judgment of the Court in Case 34/69 Duffy [1969] ECR 597 it seems obvious As regards the compatibility of Article 25 that the provisions set forth in the first in point with Articles 48 to 51 of the part of Article 12 (2) of Regulation No 1408/71 has no application at all in this Treaty, foreigners are not treated case. differently from Belgian nationals and therefore there is no incompatibility.

compatibility it is rather the result of a The observations of Mr Advocate lacuna in the Community rules. It is General Capotorti in Case 180/78 cited apparent from the case-law of the Court above showed that in situations such as that although the Court recognizes the this the proper view to be taken is that applicability of national rules against the fact that the benefits in question are overlapping in the case of benefits of different content does not fix the payable to a worker under the national limits resulting from Article 46 of Regu- legislation of a single Member State, it lation No 1408/71 in the case of the nevertheless views Article 46 (1) as a application of national rules against over- provision restricting the effect of national lapping. Mr Advocate General Capotorti rules against overlapping. National stated that provisions, including rules against over- lapping, may have application provided only that the effect thereof is more advantageous to a worker than that obtained by applying Article 46 of the "the effects of the national provisions regulation. Situations are at issue which against the overlapping of benefits must are expressly referred to by that article, be restricted even in the case of the either directly or by way of reference award, in different States, of concurrent made by other provisions of the regu- invalidity and old-age pensions to which lation (Article 40 (1), Article 43). the worker is entitled as a result of insurance periods completed mainly at different times in the two States concerned". The problem is different with regard to the rule against overlapping contained in Article 25 of Arrêté Royal No 50 which contemplates a situation in which there The Advocate General concluded : are concurrent benefits and which is not expressly dealt with by the Community rules. It prohibits the overlapping of benefits of a different nature. The payment of retirement pension is "If the case concerns national rules suspended on account of the grant to the against the overlapping of benefits which individual concerned of an invalidity take into consideration the old-age benefit. pension drawn by the insured person in another State, for the purpose of reducing his invalidity pension, the different nature of the two concurrent pensions must not be used to render An application of Article 25 of Arrêté inapplicable those Community principles Royal No 50 which deprives the or rules which guarantee the worker's individual concerned of the whole of the entitlement to benefits, acquired in the retirement pension acquired by virtue of State in which the aforesaid rules against 25 years of work as a miner under- overlapping are in force, at least within ground in Belgium owing to a small the limits of the apportionment provided invalidity pension which he receives in for in Article 46". another Member State may hardly be regarded as being compatible with the general objectives of Articles 48 to 51 of the Treaty and with the scheme of Regu- lation No 1408/71, particularly in the In its judgment in the same case the light of the case-law of the Court. Court of Justice ruled:

The problem is in different terms in this case inasmuch as the relevant national The Commission proposes the following rule against overlapping is not concerned answers to the questions put by the with what happens to the individual's Tribunal du Travail: invalidity benefit but with what happens to his retirement pension and it is decidedly more difficult to find the solution by reference to an express provision of Regulation No 1408/71. Yet the requirements are strictly the same and the considerations taken into " 1 . A rule against overlapping contained account in the Brouwer-Kaume case may in the national legislation of a be applied here. There is every reason to Member State the effect of which is believe that the scheme of Article 46, to bar entitlement to an old-age which it appears should be seen as pension acquired under that embodying a rule of common law, should also be capable of application, if legislation when the interested party only by analogy, in a situation such as may claim a benefit under the this. legislation of another Member State by reason of periods of employment completed by him under the legislation of that State is incompatible with Articles 48 to 51 In all the circumstances, national auth- of the Treaty establishing the orities should treat old-age pensions and European Economic Community.

JUDGMENT OF 15. 10. 1980 — CASE 4/80

Decision

1 By an order of 3 January 1980 which was received at the Court on 9 January 1980 the Tribunal de Travail [Labour Tribunal], Charleroi, referred to the Court for a preliminary ruling under Article 177 of the Treaty a question as to the interpretation of Articles 12, 46 and 50 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 (Official Journal, English Special Edition 1971 (II), p. 416).

2 The question has been raised in the context of a dispute concerning the calculation by the competent Belgian institution of an old-age pension due to

D'AMICO v ONPTS

an Italian worker who, having worked in Italy between 1948 and 1952, moved to Belgium where he was employed as a miner underground from 1952 to 1972.

3 According to the order by the Tribunal de Travail it seems that from 1973 to 1977 he received a Belgian invalidity pension. In December 1976 he applied in Belgium for a retirement pension with effect from 1 October 1977.

JUDGMENT OF 15. 10. 1980 — CASE 4/80

of the same nature may be invoked as against the recipient, and of Article 25 of Arrêté Royal No 50 of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) which provides for the suspension of the payment of a Belgian retirement pension when an insured person is in receipt of a foreign invalidity pension.

s In those circumstances the Tribunal du Travail took the view that it had to stay the proceedings and refer the following question to the Court for a preliminary ruling:

"If a former worker of Italian nationality who is less than 60 years old is resident in Belgium; And if he has been found to be entitled to a full insurance record in Belgium as an underground miner of 30/30ths, on the basis of having worked for 25 years as an underground miner;

And if he has been awarded an invalidity pension in Italy on the basis of employment there: 1. Is Article 25 of Arrêté Royal No 50 of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) relating to the retirement and survivor's pension of employed persons compatible with the object of Articles 12, 46 and 50 of Regulation (EEC) No 1408/71 of the Council?

2. Is Article 25 of the Arrêté Royal of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) compatible with Articles 48 to 51 of the Treaty of Rome? 3. Are Articles 12, 46 and 50 of Regulation (EEC) No 1408/71 of the Council compatible with Articles 48 to 51 of the Treaty?"

1 3 Article 43 (1) provides that invalidity benefits shall be converted into old-age benefits, where appropriate, under the conditions laid down by the legislation or legislations under which they were granted, and in accordance with the provisions of Chapter 3.

1 4 Paragraph(2) of the same article provides that any institution of a Member State which is responsible for providing invalidity benefits shall, where a person receiving invalidity benefits can by virtue of the provisions of Article

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49, establish a claim to old-age benefits under the legislation of other Member States, continue to provide such person with the invalidity benefits to which he is entitled under the legislation which it administers until the provisions of paragraph (1) become applicable as regards that institution.

15 Although that provision only expressly refers to the obligation of an institution, responsible for providing the invalidity benefits which have not been converted into old-age benefits, to continue to provide benefits to a person receiving the invalidity benefits, when account is taken of Articles 48 to 51 of the Treaty that provision implies that an institution providing invalidity benefits which have been converted into old-age benefits is not empowered to stop granting those benefits on the ground that the recipient thereof is also in receipt of invalidity benefits which have not yet been converted.

16 It is accordingly permissible to conclude that invalidity benefits converted into old-age pensions and unconverted invalidity benefits are to be regarded as being of the same nature and that it follows that the provisions of Chap- ter 3 are applicable to them.

On those grounds,

THE COURT

in answer to the question referred to it by the Tribunal du Travail, Charleroi, by order of 3 January 1980, hereby rules:

Where a worker is in receipt of invalidity benefits converted into an old-age pension by virtue of the legislation of a Member State and of invalidity benefits not yet converted into an old-age pension under the legislation of another Member State, the old-age pension and the invalidity benefits are to be regarded as being of the same kind, the provisions of Chapter 3 of Regulation No 1408/71 are applicable for the purpose of determining the rights of the worker, and, by virtue of the last sentence of Article 12 (2) of the regulation, the application of national rules against overlapping is precluded.

Kutscher Pescatore Koopmans

Mertens de Wilmars Mackenzie Stuart O'Keeffe Touffait