C-132/81

In Case 132/81

REFERENCE to the Court under Anicie 177 of the EEC Treaty by the Bruges Division of the Arbeidshof, Ghent, for a preliminar)· ruling in the case pending before that court between

RIJKSDIENST VOOR WERKNEMERSPENSIOENEN, Brussels,

and

ALICE VLAEMINCK, residing in Bruges,

I — Language or the Case: Dutch

JUDGMENT

Facts and Issues

The facts of the case, the course of 1940 to 1942 and worked in France as a the procedure and the observations frontier worker from 1930 to 1939. submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized By an administrative decision of 9 as follows: August 1971 the Rijksdienst voor Werk- nemerspensioenen [National Pensions Office for Employed Persons, hereinafter referred to as "the Belgian Institution"] granted Mrs Saelens as from 1 I — Facts a n d % r u t e n p r o c e d u r e September 1971 a retirement pension of is /éo calculated on the basis of the fraction l/*o per year and corresponding to the period of insurance of 23 years 1 Mrs Alue Sarirnv ner Vlaeminck. a completed by her in Belgium. As from * i d o * . *as m paiű employment in the same date she was also granted a Belgium from I^Jo to l ų 2 ^ and from survivor's pension of 'Vi? corresponding 1933 to 19?: and in France from 1«»3I to to the period of insurance of 17 years 1°>b Her latr husoanJ worked in completed by Mr Saelens both in Belgium from \u2u to> \U2U ar.ii from Belgium and in France.

RIJKSDIENST VOOR VERKNEMERSPENSIOENEN v VLAEMINCK

It appears from lhe information supplied By a decision notified on 19 July 1971 by the Belgian Institution at the request trie Caisse Régionale d'Assurance of the Court that the survivor's pension Maladie du Nord de la France [Regional was calculated solely on the basis of the Sickness Insurance Fund of Northern Belgian pension scheme since no right to France, hereinafter referred to as "the a survivor's pension had been acquired in French Institution"] granted Mrs France. The Belgian Institution applied, Saelens, also with effect from 1 in particular, Article 18 (6) of Royal September 1971, a proportional retire- Decree No 50 of 24 October 1967 on ment pension corresponding to the retirement and survivor's pensions for period of insurance of 69 months employed persons. As regards frontier completed by her in France. workers, that paragraph provides :

That decision by the French Institution The amount of the survivor's pension of caused the Belgian Institution to review "/ir was however reduced. According to of its own motion the Belgian survivor's the information given by the Belgian pension paid to Mrs Vlaeminck whilst Institution, the reduction was based on leaving her Belgian retirement pension the rule against the overlapping of unchanged. By decision of 11 January benefits contained in Article 52 of the 1977 the Belgian Institution granted her, Royal Decree of 21 December 1967 as from 1 January 1973, a proportional laying down general rules on the survivor's pension of Vu in the sum of retirement and survivor's pension BFR 30 312 per annum, calculated in schemes for employed persons. By virtue accordance with Anicie 46 of Regulation of that provision a survivor's pension No 1408/71 and corresponding solely to may overlap with one or more retirement the period of insurance of seven years pensions only up to an amount equal to which Mr Saelens had completed in 110% of the amount of the survivor's Belgium. That proportional pension was pension. noi reduced pursuant io Article 52 of the

JUDGMENT OF 16. 9. 1982 — CASE 132/81

Royal Decree of 21 December 1967. The reversal of the judgment appealed against Belgian Institution also informed her that and confirmation of the administrative the "minimum benefit" was 17/i7, that decision which it took on 11 January is to say BFR 73 617. The decision of 1977. In its grounds of appeal the 11 January 1977 also states as follows: Belgian Institution argued that Com- munity law does not require the rules "The Belgian survivor's pension may against the overlapping of benefits to be only overlap with one or more applied by one Member State, in this retirement pensions up to a limit case France, in such a way that they of 110% of BFR 73 617 x ! 7.7 = result in a larger supplement in another BFR 80 979. Member State, in this case Belgium.

RIJKSDIENST VOOR VERKNEMERSPENSIOENEN v VLAEMINCK

Government represented by Arnaldo of Regulation No 1408/81. By virtue of Squillante, acting as Agent, and by Pier that provision the additional amount to Giorgio Ferri, Avvocato dello Stato, and be paid is equal to the difference by the Commission of the European between the sum of the benefits due and Communities, represented by John the amount of the minimum benefit, Forman and Pieter Jan Kuyper, members namely in the present case BFR 73 617. of its Legal Department, acting as Agents. 2. The Italian Government points out On hearing the report of the Judge- that the independent application of the Rapporteur and the views of the rules against the overlapping of benefits Advocate General, the Court decided, by by Member States may lead to order of 25 November 1981, to assign distortions which it is necessary to the case to the Third Chamber, pursuant correct and eliminate by defining the to Article 95 of the Rules of Procedure limits of application of those rules. and to open the oral procedure without any preparatory inquiry. It none the less requested the Rijksdienst voor Werk- Previous decisions of the Court seem to nemerspensioenen to supply further be based on the notion that there is no information about the calculation of the interference between the relevant pensions received by Mrs Saelens. Community rules and national rules. It does not, however, follow that the manner in which the national institutions recognize rights to pensions acquired autonomously can have no importance II — W r i t t e n o b s e r v a t i o n s for the Community rules.

Anicie 46 of Regulation N o 1408/71, In the light of that judgment the applied no rule against the overlapping Commission puts forward two arguments of benefits. The reduction in the pension militating against the view that the stems rather from the fact that the present case involves a minimum benefit additional amount of l0/u is no longer within the meaning of Anicie 50 of granted since the French survivor's Regulation No 1408/71. pension has been granted. As a result there is no dual application of the rules Initial support may be gleaned from the against the overlapping of benefits by the fact that the provision contained in Belgian Institution but an application, Article 18 (6) of Royal Decree No 50 which in itself is correct, of Article 46 (2) does not appear in the declaration made (b) of Regulation N o 1408/71. by Belgium pursuant to Anicie 5 of Regulation N o 1408/71. By virtue of that provision Member States are to Proceeding on that assumption, the specirjNmfer alia the minimum benefits Commission considers that the question referred to in Anicie 50 in declarations to be resolved in the present case is to be notified and published. whether the grant of a proportional French survivor's pension which was not paid owing to the application of rules Further support may be found in the fact against the overlapping of benefits gives that the minimum spension by virtue of the Belgian Institution a legitimate Belgian legislation coincides with the reason for itself awarding a proportional theoretical amount ofv benefit under survivor's pension instead of the full Article 46 (2) (a) of Regulation No pension guaranteed by Article 18 (6) of 1408/71. In the judgmcniXrnentioned Royal Decree No 50. The problem thus above the Court rejected the argument seems to be reduced to the question what that the minimum pension must bé^eaual that guaranteed pension is composed of, to the theoretical pension. but that question is not one of Community law but one of national law. The Commission concludes that the "minimum pension" referred in Anicie 18 (6) of Royal Decree No 50 does not In the first place, it should be constitute a minimum benefit within the remembered that the "minimum meaning of Anide 50 of Regulation No pension" of the Belgian rules is not a 1408/71. In any event, the question of Community pension and cannot be the composition of that minimum determined by applying Community pension and of the size of the additional rules. It is for the Member States to lay amount to be paid by the Belgian down the minimum benefits within the Institution is not a question of meaning of Anicie 50 of Regulation No Community law but of national law and 1408/71 on the basis of their national therefore is a matter for the national legislation. courts.

European Communities, represented by Januarv 1977 involved the payment of a Pieter Jan Kuyper, a member of its Legal survivor's pension (BFR 30 312) higher Department, acting as Agent, presented than that which had been granted pre- oral argument. viously (BFR 25 761). In fact, although in the decision of 9 August 1971 the survivor's pension was calculated on the The Advocate General delivered his basis of BFR 73 617, that amount was opinion at the sitting on 25 March 1982. then reduced to BFR 25 761 in application of the rule against the over- lapping of benefits contained in Article 52 of the Royal Decree of 21 December 1967. On the other hand, the pro- IV — R e o p e n i n g of the oral portional survivor's pension, calculated procedure at BFR 30 312 by the reviewed decision of 11 January 1977, was not reduced in application of that rule, whose effect on the proportional pension is limited by By order of 28 May 1982 the Court Anicie 7 (1) (b) of Regulation No (Third Chamber) decided to reopen the 574/72. By virtue of that provision the oral procedure and instructed the Judge- benefit which gives rise to the application Rapporteur to carry out the necessary of the rule against the overlapping of preparator)· measures. The Judge-Rap- benefits may be taken into account only porteur put supplementary questions to in respect of the part of the amount the Belgian Institution and to the French which is determined by multiplying the Government. amount in question by the proportion on the basis of which the benefit to which the rule against overlapping is to be 1. The Belgian Institution was invited applied was calculated. As a result of the to explain whether Mrs Saelens, pursuant application of that Community provision to the Belgian Institution's decision of 11 in the present case the overlapping limit January 1977, was receiving a Belgian laid down by national law (BFR survivor's pension lower than that which 73 617 x 110% = BFR 80 979) was she received previously on the basis of exceeded. the Belgian Institution's decision of 9 August 1971 and whether Mrs Saelens' retirement pension, also granted by the In conclusion the Belgian Institution latter decision, had remained unchanged states that the reviewed decision of 11 às a result of the decision to review of Januar.· 1977 granted Mrs Saelens a 11 January 1977. proportional survivor's pension higher than that which had been granted by the decision of 9 August 1971. having regard In its reply the Belgian Institution stated to the Belgian rules against the over- that the decision of 11 January 1977 had lapping of benefits and to the provisions left intact the retirement pension granted of the regulations which apply in the to Mrs Saelens by the decision of 9 present case. August 1971. That pension, calculated according to the relevant index, amounts to BFR 49 572. 2. The French Government was invited, On the other hand, the Belgian pursuant to the second paragraph of Institution stated that the decision of 11 Article 21 of the Protocol on the Statute

Decision

1 By an order of 22 May 1981, which was received at the Court on 3 June 1981, the Bruges Division of the Arbeidshof [Labour Court], Ghent, referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of certain provisions of Regulation 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).

RIJKSDIENST VOOR WERKNEMERSPENSIOENEN v VLAEMINCK

2 That question was raised in the course of proceedings between Mrs Saelens, née Vlaeminck, and the Rijksdienst voor Werknemerspensioenen [National Pensions Office for Employed Persons, hereinafter referred to as the "Belgian Institution"].

3 Mrs Saelens was employed in Belgium from 1926 to 1929 and from 1950 to 1970, and in France from 1931 to 1936. Her deceased husband was employed in Belgium from 1926 to 1929 and from 1940 to 1942, and as a frontier worker in France from 1930 to 1939.

4 In 1971 the Belgian Institution granted Mrs Saelens a retirement pension of "/40, acquired at the rate of '/40 per annum, corresponding to her 25 years of employment in Belgium. The same year, the Caisse Régionale d'Assurance Maladie du Nord de la France [Regional Sickness Insurance Fund of Northern France, hereinafter referred to as the "French Institution") likewise granted her a retirement pension on the basis of her period of employment in France.

7 In 1976 the French Institution granted Mrs Saelens a proportional survivor's pension, payable under Article 46 of Regulation No 1408/71, on account of Mr Saelens' period of employment in France. That pension was, however, reduced to nil, in application of the rules against the overlapping of personal old-age benefits and survivor's benefits laid down by French legislation.

8 The acquisition of the right to receive a survivor's pension in France, even though the pension was reduced to nil, prompted the Belgian Institution to review the Belgian survivor's pension. By a decision of 11 January 1977 the Belgian Institution granted Mrs Saelens a survivor's pension corresponding to the fraction 7i7, that is to say, on the basis of Mr Saelens' seven years of employment in Belgium to the exclusion of the 10 years of employment in France. That pension constitutes a proportional pension calculated in accordance with Article 46 of Regulation No 1408/71, in which therefore the additional amount of '%7, calculated in accordance with Article 18 (6) of Royal Decree No 50, is no longer included, but which, on the other hand, is not reduced in accordance with the rule against the overlapping of benefits contained in Article 52 of the Royal Decree of 21 December 1967. According to the information given by the Belgian Institution, the pro- portional pension was paid since it was higher than the pension which would have been payable under Belgian law alone. That pension was consequently higher than the survivor's pension which the claimant received before the contested decision was adopted.

ii It is clear from the foregoing that the survivor's pension granted to Mrs Saelens by the decision of the Belgian Institution of 11 January 1977 results not from the application of a rule against the overlapping of benefits, dependent upon the acquisition of a right to a survivor's pension in France, but constitutes a proportional pension based on the application, which in itself is correct, of Article 46 of Regulation No 1408/71. Contrary to the assumption made by the national coun, there was not therefore dual application of the rules against the overlapping of benefits.

12 It is also clear from the foregoing considerations that Mrs Saelens' survivor's pension was reduced proportionately pursuant to Anicie 46 of Regulation No 1408/71, since the pension thus calculated was higher than the pension which would have been received under Belgian legislation alone, that is to say increased bv the additional amount of ' % . · , pursuant to Anicie 18 (6) of Rovai Decree Ńo 5C, but then reduced in application of the rule against the overlapping of benefits contained in Amele 52 of the Royal Decree of 21 December 1967.

1 3 In view of that factual situation the preliminary question appears t olack any purpose. It is not possible to glean from it the factors necessary for an in­ terpretation of Community law which the national coun might usefully apply in order to resolve, in accordance with that law, the dispute before it.

JUDGMENT OF lé. 9. 1982 — CASE 132/81

M It follows that in the light of the factual and legal circumstances of the main proceedings no question of Community law is raised in the present case, so that the Court is unable to give a ruling, in the context of proceedings under Article 177, on the question referred to it by the Arbeidshof, Ghent.

No reply need be given to the question referred by the national court.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 16 September 1982.

J. A. Pompe A. Touffait Deputy Registrar President of the Third Chamber