C-116/80

JUDGMENT OF 2. 7. 1981 — JOINED CASES 116, 117, 119, 120 AND 121/80

4. Social security for migrant workers — Aggregation and apportionment — Community rules —Application of national rules less favourable to the worker— Not permissible (Regulation (EEC) No 574/72 of the Council, Arts 15 and 46)

In Joined Cases 116, 117, 119, 120 and 121/80

REFERENCES to the Court under Article 177 of the EEC Treaty by the Fourth Chamber of the Arbeidshof Antwerpen [Labour Court, Antwerp], Hasselt Division, for a preliminary ruling in the actions pending before that court between

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RIJKSDIENST VOOR WERKNEMERSPENSIOENEN [National Pensions Office for Employed Persons], Brussels,

and

GIORGIO CELESTRE (Case 116/80),

JOZEF STREHL (Case 121/80)

on the interpretation of Article 51 of the Treaty and Article 46 of Regulation (EEC) N o 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).

T H E C O U R T (First Chamber)

composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate General : Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar

gives the following

The judgments making the references because her husband was employed in and the written observations submitted Germany and then worked as a miner pursuant to Article 20 of the Protocol on underground in Belgium for 25 years. the Statute of the Court of Justice of the European Economic Community may be summarized as follows: The persons concerned brought proceedings before the Arbeitdsrecht- banken [Labour Tribunals] Hasselt and Tongeren, which held that Mr Celestre, Mr Dreilich, Mr Bohnefeld and Mrs I — Facts and written p r o c e d u r e Rydlakowski could claim retirement and survivor's pensions calculated on the basis of the full insurance record of a miner underground corresponding to 30 years' service. Before the Arbeidshof 1. The facts which are the subject of Antwerpen, Hasselt Division, the the main proceedings are not described National Office appealed against the in the interlocutory judgments. As they judgments at first instance. It claimed emerge from the other documents that Article 10 (2) of Belgian Royal contained in the files on the cases and Decree N o 50 lays down a rule against from the written observations submitted overlapping benefits under which to the Court, they may be summarized as workers who can establish an insurance follows : record partly as a miner and partly as an ordinary worker may obtain a retirement pension equal to the result obtained by multiplying the number of years worked Mr Celestre, an Italian national, Mr as a miner by 1.5 with a maximum of Dreilich and Mr Bohnefeld, both 4S /45, and that only a retirement pension German nationals, were occupied as (or survivor's pension) corresponding to miners underground in Belgium for 27, the years worked as a miner under- 28 and 27 years respectively. Previously, ground may be paid by Belgium, with they had been employed in their the proviso that the sum of the Italian or countries of origin. They found that they German and Belgian retirement pensions were granted a retirement pension by the must be at least equal to the full Rijksdienst voor Werknemerspensioenen retirement pension guaranteed by virtue (hereinafter referred to as "the National of employment as a miner underground. Office"), the competent Belgian institution, on the basis of the periods of insurance completed in Belgium. In addition, they also receive a retirement Mr Strehl, a German national, is entitled pension in their countries of origin. Mrs to an invalidity pension in both Germany Rydlakowski, a widow, for her part and Belgium by virtue of his work as a receives a survivor's pension under miner. A reference has already been German law and under Belgian law, made to the Court of Justice by the

2. ... "Article 1 (1). The following persons 3. The first day of the month which shall be entitled to an invalidity pension follows that in which the claimant: on the conditions hereinafter provided:

(a) reaches the normal retirement (a) a worker subject to the social age, which is 55 or 60 years of security scheme for miners who has age depending on whether a actually ceased work in mining retirement pension is paid in undertakings on account of ill-health respect of employment either as a causing unfitness for normal under­ mineworker underground or as a ground and surface work in those mineworker on the surface, or undertakings;

(b) proves that he has been habitually and mainly employed as a (b) a worker subject to the social mineworker for 25 years in mines security scheme for miners who, or quarries worked underground having been employed underground, ...;” has actually ceased work in the said

JUDGMENT OF 2. 7. 1981 — JOINED CASES 116, 117, 119, 120 AND 121/80

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(2) Invalidity pension: of Foreign Affairs, acting as Agent, and by the Commission of the European Communities, represented by J. A miner is entitled to the (full) Amphoux, Legal Adviser, acting as Belgian invalidity pension of BFR Agent, assisted by A. Haagsma, a 150 000 and to partial invalidity member of the Commission's Legal benefits abroad of BFR 50 000 for Department. 5 working years;

Upon hearing the report of the Judge- The years actually worked abroad Rapporteur and the views of the are substituted for the notional years Advocate General, the Court decided to in Belgium; open the oral procedure without any preparatory inquiry.

The Belgian pension must be 2 reduced to 7 3 0 of BFR 150 000 but By order of 18 June 1980 the Court is aggregated with the foreign decided to join the cases for the purposes benefit; of procedure and judgment.

The sum of both benefits, that is By order of 15 October 1980 the Court, BFR 125 000 + 50 000 = BFR in pursuance of Article 95 (1) and (2) of 175 000, exceeds the full Belgian its Rules of Procedure, decided to assign pension and must therefore be the joined cases to the First Chamber. upheld.

JUDGMENT OF 2. 7. 1981 — JOINED CASES 116, 117, 119, 120 AND 121/80

sory insurance completed on the territory another State. It must on the other hand of another State. In the second case, the be emphasized that the principle that the provisions of Article 12 (1) of Regulation full Belgian pension acquired after the (EEC) No 1408/71 and of Article 15 of completion of 25 years' service as a Regulation (EEC) No 574/72 must be miner should not be reduced is now applied. acknowledged by most of the Belgian national courts, both of first instance and of appeal, a claim substantiated by the persons concerned by the submission by way of examples of the statements of A mere comparison of the texts clearly grounds relating to a number of shows that the provision in Article 10 (2) judgments which establish the lawfulness (1.) of Royal Decree N o 50 is not, of overlapping benefits. unlike other provisions of Belgian legislation on retirement and survivor's pensions, a rule against or a restriction of overlapping benefits. On the other hand, in contrast to those provisions, There can in any event only be a Article 10 (2) of Royal Decree N o 50 question of the overlapping of periods of makes no reference to a foreign pension insurance in the case of aggregation. The scheme. The conclusion may therefore be right to the Belgian pension was acquired drawn that the legislature intended to solely by virtue of the periods of work assure the miner that, owing to the risks performed in Belgium in the mining to which he has been exposed during his industry; on the other hand, the periods working life and the premature deterio- of work completed outside the mines in ration of his physical condition, the the other State could not in any case be pension acquired by virtue of his periods aggregated with the Belgian periods in of work in the mines will be a full one. order to determine the right to the Conversely, there is a clear and unam- Belgian pension, if such aggregation biguous rule against overlapping in the were necessary, because the periods were legislation on miners' invalidity pensions, covered by different schemes. a fact which distinguishes the case of Mr Strehl from the four other cases.

national legislation alone, because it was years, for example 28 proven years and 2 not necessary to have recourse to the additional years which are presumed. process of aggregation and the applicable When the other Member State in which national legislation contains no rules the worker was also employed informs against overlapping benefits. the Office of the periods valid under its legislation, the Office calculates the national pension limiting the number of additional years to the difference between 30 and the number of valid years of employment as a miner under­ For the purpose of determining whether ground under the legislation of both Article 12 (1) of Regulation (EEC) N o countries, which leads to the loss of the 1408/71, which prohibits the overlapping additional years which coincide with the of benefits for one and the same period years of actual employment abroad. That of insurance, applies, it is a matter for does not give rise to any great difficulties the national court to determine whether where the worker in question was periods of insurance completed in the employed as a miner underground or on various Member States do in fact the surface for a number of years overlap." abroad. Conversely, where the worker was employed abroad in a sector other than mining and was therefore subject to the general scheme for workers, the Office takes account of the fact that under Belgian law the right to the 2. The National Office maintains that if pension is acquired not at the rate of V30, it were to agree in cases such as those in but only at the rate of V45 per annum, question to the grant of a full retirement and it takes only 2/3 of that period of pension as a miner underground to be employment into account in order to paid by Belgium ( 3 0/30), the consequence determine the number of additional of the application of the Community presumed years which must be provisions would be to create discrimi­ eliminated in order to comply with the nation incompatible with the aim of the rule concerning the restriction to unity Treaty. (30/30).

If the Office took account neither of discrimination against the migrant Article 10 cited above nor of Article 12 worker. However, the consequence of of Regulation (EEC) No 1408/71, the taking such periods into account must result in the cases in question would be not be that the same period is taken into the strange one that the persons consideration twice. Indeed, the periods concerned would obtain at retirement of actual insurance should take age a full retirement pension, calculated precedence over the presumed periods. on the basis of 30 years' employment in Furthermore, since the Belgian benefit is Belgium as a miner underground and, in a retirement benefit calculated on the addition, a partial foreign pension. In basis of an insurance record including a that case, an insurance record exceeding period of "notional" insurance, if it were unity would be recognized at retirement aggregated in full with the foreign age. The Office takes the contrary view benefits, periods of insurance would be that the persons concerned should obtain taken into account twice. Consequently, a retirement pension amounting to 30/30, it is clear that the foreign benefit should the years of employment as an ordinary be substituted for the Belgian benefit for worker not giving rise to the grant of a the "notional" years so that a value is set retirement pension (or a survivor's on the periods of insurance completed in pension). the various countries, but substituting the actual scheme for the notional scheme where periods overlap. Consequently, the solution applied by the National Office is fair if the scheme itself is regarded as a minimum and given that the foreign benefit is substituted for the Belgian 3. The Miners' Fund claims that in the benefit for the presumed years. case of Mr Strehl the consequence of the application of the case-law arising from the Mura case is that a choice must be made between the apportionment rule and the national provision against over- lapping. The application of the With regard to Case 121/80, the apportionment rule would be more institution of each Member State, whose advantageous in this case. On the other conditions for entitlement to a benefit hand, the person concerned cannot at laid down by the legislation which it 1 July 1974 claim the supplement applies are fulfilled, should compare the provided for by Article 50 of Regulation benefit calculated according to the (EEC) No 1408/71, as the total of his provisions of that legislation with the benefits in the two countries is greater benefit calculated according to Com- than the amount of the Belgian minimum munity law and grant the higher amount. benefit. In the latter case, the provisions of Article 46 of Regulation (EEC) N o 1408/71 must be applied using the rules of aggregation and apportionment. However it is important not to lose sight of the fact that the calculation of the actual Belgian benefit to be paid must 4. The Belgian Government points out take account of the fact that the person that Article 51 of the Treaty provides concerned worked solely in the mines in that all the periods of insurance Belgium, and both in and outside the completed in the Member States must be mines in Germany and moreover that it taken into account so that there is no seems that in Germany he benefited from

periods treated as completed and, fur­ Article 12; it is in reality not a provision thermore, that the invalidity benefits "against overlapping benefits" but a granted are of a different type. provision in favour of the former miner. Article 12 (2) does permit national provisions against overlapping, but only in the case of true "overlapping" (with the advantages which derive therefrom for the migrant worker), and does not 5. The Italian Government takes the apply "when the person concerned view that the national provision which receives benefits of the same kind in provides, without any quid pro quo respect of . . . old age . . . which are and independently of the Community awarded . . . in accordance with the provisions, for a reduction of the social provisions of Articles 46, 50, 51 . . . " . benefit acquired by a migrant worker by virtue of the national law alone by reason of the conferment on that worker of the right to another social benefit following nis pursuit of an occupation in Nor is it certain that Article 46 (2) of another Member State, is compatible Regulation (EEC) N o 1408/71 applies in neither with the Treaty nor with Regu­ the cases in question: it seems, on the lation (EEC) N o 1408/71. contrary, that "the conditions for entitlement to benefit" were fully satisfied, at least as far as the period of work in the mine is concerned. Cases where it is neither possible nor necessary to aggregate several periods of insurance, The "notional" months of service (or because the two periods in question " d o those covered by conventions) do not not overlap", fall outside the scheme of correspond to a real period, but merely Community "aggregation"; in that case, establish a special procedure for the both pensions are cumulative (in fact) calculation of the retirement pension; for and are not aggregated, and it is not that reason, it is not possible to speak of possible to determine the limit of what is the "overlapping" of a period of actual referred to by common agreement as the work with a "notional" period of service. "theoretical amount". Even under the Having regard to the terms used in present system of imperfect har­ bringing the actions, it seems that the monization of the laws on social possibility that the benefits are security, the national legislatures cannot "anticipatory old-age benefits" must be be authorized to adopt measures which ruled out (Article 12 (3) of Regulation impose on migrant workers restrictions (EEC) N o 1408/71). On the other hand, which in any event contain no quid pro Articles 12 and 46 of that regulation quo. The Court made an express ruling concern benefits "for one and the same to that effect in the Mura and Schaap period of compulsory insurance", cases. whereas, in the cases of the persons concerned, there is no doubt that the work of the former miner was performed at a different point in time, that is to say during a different "period". The provision in Royal Decree N o 50 of 24 6. The Netherlands Government takes October 1967 cannot be regarded as " a the view that the "notional" periods play provision for reduction, suspension or no part in the determination of the withdrawal" within the meaning of amount of the invalidity pensions. Where

a miner becomes disabled after at least 7. The Commission observes that 10 years' work in the mines, he receives neither Article 51 nor any other an invalidity pension which is provision of secondary Community law independent of the length of the period can have the effect of not taking into for which he was insured. If he was not consideration certain periods of insured for that minimum period as a insurance taken into account pursuant to miner, but was insured for the minimum the legislation of a Member State, even period of insurance of 6 months required if, in addition to the benefit which he by the general scheme, he is then entitled receives under that legislation, the on the basis of the general scheme to insured person also receives a benefit in an invalidity pension which is also another Member State and if "notional" independent of the length of the period periods of insurance completed by him in for which he was insured. The Belgian the first Member State coincide with scheme contains no provisions providing actual periods completed in the other that the "notional" periods are not to be State. taken into account when they coincide with periods completed in another

236/78. The application of the Belgian discrimination against a worker who has national rules against overlapping is in remained in his own country. That these cases less favourable than that of view cannot fail to arouse justifiable the scheme contained in Article 46. In astonishment. Indeed, the cases in the Strehl case, the German institution question are concerned with payments does not apply Article 46 (1) in the sense made exclusively pursuant to the referred to in the second subparagraph legislation of a single Member State. of paragraph (3). That means that Furthermore, in one of the five cases (the the Belgian institution alone applies Strehl case), a reference was made at an paragraph (1) and may therefore deduct earlier stage to the Court of Justice for a the amount by which the sum of the preliminary ruling, which was obtained. Belgian pension and the German pension

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Decree N o 50 of 24 October 1967, except where such application proves less whereby the retirement or survivor's favourable than that of the system pension may not overlap with a benefit established by Article 46 of Regulation granted under foreign legislation on (EEC) N o 1408/71. account of sickness, invalidity or involuntary unemployment. But the royal decree contains no express provision against overlapping concerning benefits of the same nature. Nevertheless, that The Commission proposes therefore to meaning is adopted in the actual the Court of Justice that the following application of that provision in Belgian answer should be given to the Belgian administrative practice. With regard to court: the nature of the "presumption" of 30 years, a judgment of the Cour du Travail [Labour Court], Liège, of 29 June 1979 (ONPTS ν Schiabello) held that that "Neither Article 51 of the EEC Treaty presumption must be regarded as nor any other secondary provision "irrebuttable" and that it is not possible implies that benefits based on the to restrict or annul it by giving proof to legislation of one Member State alone the contrary, in particular by showing must be reduced on the ground that the that the miner was employed elsewhere recipient is also entitled to another during those years. It seems that it is not benefit, whether or not of the same altogether impossible to assert that proof nature, in another State, and that periods to the contrary may and must be of insurance completed by that recipient produced, and consequently that the under the legislation of the second State years "worked" elsewhere should, if coincide with notional periods completed necessary, be deducted from the under the legislation of the first State." "notional" years taken into account in Belgium. This amounts therefore to the application of a rule against overlapping.

2 Those grounds may be summarized as follows: Mr Celestre, an Italian national, Mr Dreilich and Mr Bohnefeld, both German nationals, were occupied as miners underground in Belgium for 27, 28 and 27 years respectively. Previously, they had been employed in their countries of origin. The Rijksdienst voor Werknemerspensioenen (hereinafter referred to as "the National Office"), the competent Belgian institution, awarded them retirement pensions on the basis of the periods of insurance completed in Belgium. They also receive a retirement pension in their countries of origin. Mrs Rydlakowski, a widow, for her part receives a survivor's pension under German and Belgian law, because her husband was employed in Germany and then worked as a miner underground in Belgium for 25 years.

3 The persons concerned brought proceedings before the Arbeidsrechtbanken [Labour Tribunals] Hasselt and Tongeren, which held that Mr Celestre, Mr Dreilich, Mr Bohnefeld and Mrs Rydlakowski could claim retirement and survivor's pensions calculated on the basis of the full insurance record of a miner underground in Belgium, corresponding to 30 years' service.

4 The National Office appealed to the Arbeidshof Antwerpen, Hasselt Division, against the judgments at first instance claiming that Article 10 (2) of Belgian Royal Decree No 50 lays down a rule against overlapping benefits under which workers who can establish an insurance record partly as a miner and partly as an ordinary worker may obtain a retirement pension equal to the result obtained by multiplying the number of years worked as a miner by

1. . . .

2. ...

3. The first day of the month which follows that in which the claimant:

(a) reaches the normal retirement age, which is 55 or 60 years of age depending on whether a retirement pension is paid in respect of employment either as a mineworker underground or as a mineworker on the surface, or

(b) proves that he has been habitually and mainly employed as a mineworker for 25 years in mines or quarries worked underground ...;

Under paragraph (2) of Article 10, by way of derogation from subparagraph (2) of paragraph (1), a worker:

(2). The invalidity pension shall be granted:

1. to a worker referred to in paragraph (1) (a), if he can show a minimum of ten years' service in mining undertakings;

2. to a worker referred to in paragraph (1) (b), if he can show the minimum number of years' service laid down by subparagraph 1. and if that minimum period includes at least five years' actual service underground in mining undertakings.

Article 23 (1). An invalidity pension granted under this decree may overlap with one or more retirement or invalidity pensions only to the extent of the annual amount of the pension laid down by Article 4 (1) (2.) or (4.), according to whether the worker concerned is married, widowed, divorced or separated."

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7 The question put by the Arbeidshof amounts to an inquiry whether Article 51 of the Treaty and the legislative provisions adopted in implementation thereof must be interpreted as meaning that in determining the benefits to be paid to the recipients pursuant to the legislation of a Member State, periods of insurance may not be taken into account twice, in particular where actual periods of insurance in one Member State overlap with notional periods in another Member State.

JUDGMENT OF 2. 7. 1981 — JOINED CASES 116, 117, 119, 120 AND 121/80

invalidity benefits are to be regarded as being of the same kind. Consequently, the provisions of Chapter 3 of Regulation (EEC) N o 1408/71 are applicable and, by virtue of the last sentence of Article 12 (2) of the regulation, the application of national rules against overlapping is precluded.

12 It must be remembered that it is clear from the last sentence of Article 12 (2) of Regulation (EEC) No 1408/71 that where the provisions of Article 46 of the regulation are applied, national legislative provisions for reduction, suspension or withdrawal do not apply. It follows that the amount referred to in Article 46 (1) is the amount to which the worker would be entitled under national legislation if he were not in receipt of a pension by virtue of the legislation of another Member State. If under the national legislation a worker who is able to establish a certain number of years of insurance is entitled to a full pension, it is the amount of that full pension which must be taken into account.

1 3 Regulation (EEC) N o 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (Official Journal, English Special Edition 1972 (I), p. 160) contains in Articles 15 and 46 provisions governing the ovelapping of periods of insurance completed under the legislation of two or more Member States. Consequently, it is not permissible for the institution of a Member State to apply national rules for the aggregation and apportionment of periods of insurance which are less favourable to the worker than those contained in the regulation.

(c) Where a worker is in receipt of benefits of the same kind in respect of invalidity or old age which are awarded by the institutions of two or more Member States in accordance with the provisions of Article 46 of Regulation (EEC) No 1408/71, the national legislative provisions for reduction, suspension or withdrawal do not apply. It follows that the amount referred to in Article 46 (1) is the amount to which the worker would be entitled under national legislation if he were not in receipt of a pension by virtue of the legislation of another Member State. If under the national legislation a worker who is able to establish a certain number of years of insurance is entitled to a full pension, it is the amount of that full pension which must be taken into account.

(d) Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (Official Journal, English Special Edition 1972 (I), p. 160) contains in Articles 15 and 46 provisions governing the overlapping periods of insurance completed under the legislation of two or more Member States. Consequently, it is not permissible for the institution of a Member State to apply national rules for the aggregation and apportionment of periods of insurance which are less favourable to the worker than those contained in the regulation.

JUDGMENT OF 2. 7. 1981 — JOINED CASES 116, 117, 119, 120 AND 121/80

Costs

16 The costs incurred by the Government of the Kingdom of Belgium, by the Government of the Italian Republic, by the Government of the Kingdom of the Netherlands and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. 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.

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follows that the amount referred to in Article 46 (1) is the amount to which the worker would be entitled under national legislation if he were not in receipt of a pension by virtue of the legislation of another Member State. If under the national legislation a worker who is able to establish a certain number of years of insurance is entitled to a full pension, it is the amount of that full pension which must be taken into account.

(d) Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) N o 1408/71 (Official Journal, English Special Edition 1972 (I), p. 160) contains in Articles 15 and 46 provisions governing the overlapping of periods of insurance completed under the legislation of two or more Member States, Consequently, it is not permissible for the institution of a Member State to apply national rules for the aggre­ gation and apportionment of periods of insurance which are less favourable to the worker than those contained in the regulation.

Koopmans O'Keeffe Bosco

Delivered in open court in Luxembourg on 2 July 1981.

J. A. Pompe T. Koopmans Deputy Registrar President of the First Chamber