C-104/83

JUDGMENT OF THE COURT (SECOND CHAMBER) 1 MARCH 1984 '

Salvatore Calciuolo v Union Nationale des Fédérations Mutualistes Neutres and Institut National d'Assurance Maladie-Invalidité (reference for a preliminary ruling from the Tribunal du Travail, Brussels)

(Social security — Recalculation of benefits)

Case 104/83

Social security for migrant workers — Old-age and suwhors' insurance — Benefits — Adjustment — Recalculation — Scope of the system (Regulation No 1408/71 of the Council, Art. 51)

Article 51 of Regulation No 1408/71 any subsequent adjustments to which must be interpreted as applying to might again affect that pension. It is benefits such as those in respect of therefore not necessary to recalculate the accidents at work or occupational pension pursuant to Article 46 if an disease which, by virtue of the national adjustment is made to such a benefit on rules against overlapping of benefits, account of the general evolution of the originally affected the amount of the economic and social situation. pension fixed pursuant to Article 46 and

2. INSTITUT-NATIONAL D'ASSURANCE MALADIE-INVALIDITÉ

1 — Language of the Case: French.

JUDGMENT OF 1. 3. 1984— CASE 104/83

on the interpretation of Article 51 (1) 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 ),

THE COURT ( Second Chamber )

composed of: K. Bahlmann , President of Chamber , P. Pescatore and O . Due , Judges ,

CINCIUOLO / UNION NATIONALE DES FÉDÉRATIONS MUTUALISTES NEUTRES

of a Belgian provision against over­ the regulation and therefore did not have lapping was more favourable to the to be recalculated on the basis of plaintiff than that resulting from the alterations occurring by reason of an application of the principles of aggre­ increase in the cost of living or the level gation and apportionment provided for of wages or salaries in the amount of the in Article 46 (2) of Regulation No benefits paid by the institution of another 1408/71 and is not challenged by the Member State which had been taken into plaintiff in the main action. account pursuant to the rule against overlapping, and that that was so Following the increase as from 1 July whatever the nature of the benefits. 1977 in the Italian occupational disease benefit the Institut National d'Assurance Maladie-Invalidité (hereinafter referred The Institut National insisted that there to as "the Institut National") reduced was no connection between Article 46 the Belgian benefit from the same date. and Article 12 of the regulation in After a further increase in the Italian question and observed that Article 51 of benefit on 1 July 1980 the Institut the latter made no reference to Article National again reduced the Belgian 12, which related to the prevention of benefit. the overlapping of benefits.

JUDGMENT OF 1. 3. 1984 — CASE 104/83

The order making the reference was When Article 51 contemplates the received at the Court Registry on 3 June possibility of recalculation of the benefits 1983. it refers to Article 46. That in turn is directly connected with Article 12 which lays down the rules against overlapping Pursuant to Article 20 of the Protocol on of benefits. It is as a result of the the Statute of the Court of Justice of the combined application of those two EEC written observations were lodged at articles with Article 7 (1) (c) of Regu­ the Court by the plaintiff in the main lation No 574/72 of the Council of 21 action, represented by D. Rossini, Trade March 1972 laying down the procedure Union Delegate from the Patronato for implementing the aforesaid Regu­ ACLI (Social and Legal Service for lation No 1408/71 (Official Journal, Italian Workers), by the defendant, the English Special Edition 1972 (I), p. 159) Institut National d'Assurance Maladie- that the invalidity benefit due solely Invalidité, represented by J. J. Masquelin under the Belgian legislation was re­ of the Brussels Bar, and by the duced when it was. Accordingly, changes Commission, represented by J. Griesmar, in the Italian benefits ought not now to a member of its Legal Department, affect the Belgian benefits. Mr Cinciuolo acting as Agent, assisted by F. Herbert of refers on that issue to the judgment of the Brussels Bar. the Court of 2 February 1982 in Case 7/81 Sinatra, [1982] ECR 137).

Upon hearing the report of the Judge- Rapporteur and the views of the On the other hand, account must be Advocate General, the Court decided to taken for the purpose of recalculating open the oral procedure without any the benefits of, for example, any preparatory inquiry. worsening of the party's incapacity and any increase in the degree of invalidity. Article 51 (2) and the procedure referred By order dated 9 November 1983 the to in Article 49 of Regulation No 574/72 Court, in application of Article 95 (1) apply in such a case. and (2) of the Rules of Procedure, assigned the case to the Second In view of the foregoing Mr Cinciuolo Chamber. considers that the answer to be given to the question referred to the Court for a preliminary ruling might be as follows:

In the opinion of the Institut National the aforegoing analysis, which is rather of a formal nature, may be confirmed by citing reasons appertaining more to the Whereas it may be presumed that merits than to the form. adjustment made in the case of benefits of the same kind as a result of a reassessment due to an increase in the cost of living would give an equivalent It must not be forgotten that Article 12 result, on the whole, it appears obvious refers to benefits or income presumed to that such a procedure cannot be used be quite different from the benefits of when the calculation of the benefit the same kind to which Article 46 (and involves factors or matters which cannot Chapter 2 to Title III) relates. It is not be compared or assimilated to a benefit only a question of benefits of a different of the same kind, such as income from a kind (Article 12 (2)) but also income or trade or professional activity resumed salary arising from a professional or part-time or benefits of a different kind trade activity, which is referred to in such as, for example, those awarded for Article 12 (3) (see also Article 7 (1) (b) an accident at work or for occupational and (c) of Regulation No 574/72 which disease which are of a special nature relates to the application of Article 12 (2) (since subsequent developments may and (3)). necessitate a revision of the percentage fixed) and scarcely compatible with the adjustment procedure provided for in Article 51. The Institut National considers that the profoundly different nature of income received from pursuit of a professional or trade activity (in comparison with benefits of the same kind within the ambit of Chapter 2 of Title III) makes The Institut National is therefore of the it incompatible with the application, for opinion that Article 51 refers solely to the purposes of an adjustment, of a benefits of the same kind awarded in the procedure such as that provided for in States in question pursuant to Article 46 Article 51. In the case of an invalid for example, income from a professional or and does not apply to the aforesaid trade activity resumed part-time is a very benefits when they are reduced because variable factor as regards both increase the beneficiary also receives a benefit of and reduction. a different kind or other income or salary. Any re-assessment of such ben-

efits or income may thus involve a recal­ sensu, or given a wider interpretation so culation and, if necessary, a further as to include benefits of a different kind reduction. which by reason of the national provisions against overlapping are also involved in the operation of the The Institut National concludes that the procedure provided for by Article 46. question referred to the Court for a pre­ liminary ruling should be answered as follows : In the Commission's view, the present case is indeed concerned with benefits of a different kind. It appears from the "Subsequent adjustments of a benefit of case-law of the Court that when, as in a different kind, such as benefits relating the present case, a worker enjoys an to accidents at work or occupational "independent" benefit in a Member State disease, which originally affected the he is entitled to the highest benefit out amount of the invalidity, old-age or of, on the one hand, that which he may survivors' pension awarded pursuant to claim under the legislation of that Article 46 of Regulation No 1408/71 are Member State in its entirety, including not covered by the provisions of Article any provision against overlapping which 51 (1) and (2) of Regulation No 1408/ it may contain, and on the other hand 71 ." the benefit which he may claim pursuant to the provisions of Regulation No The Commission refers first to the 1408/71 in its entirety. The part of the aforesaid judgment in the Sinatra case in calculation relating to the "Community" which the Court emphasized that the benefit is based on Article 46 as a whole, main objective of Article 51 was to including paragraph (3) thereof (see the simplify administration. judgments of the Court of 16 May 1979 in Case 236/78 Fonds National de Retraite v Mura [1979] ECR 1819 and It observes that Article 46 of Regulation 5 May 1983 in Case 238/81 Van der No 1408/71 involves a comparison Bunt [1983] ECR 1385). between the "independent" benefits based solely on national law and "Community" benefits, namely those It follows that in calculating the obtained as a result of aggregating Community pension pursuant to Article periods as provided for in Article 45 7 (1) (c) of Regulation No 574/72 thereof. account is to be taken of the national provisions against overlapping. Thus the original calculation is to be made, It is for the purpose of avoiding having according to Article 46, taking into to make a new comparison to determine account the benefits of a different kind the most advantageous scheme at each covered by the national provisions alteration of one or more of the benefits against overlapping. granted that Article 51 restricts the need for a recalculation to the cases mentioned in its paragraph (2), namely In the Commission's view it follows that an alteration in the method of de­ in view of the ratio legis of Article 51 as termining the benefits or in the rules for interpreted by the Court in the aforesaid calculating them. Sinatra case the article must, as a provision implementing Article 46, be The problem to be resolved is whether taken to refer to all benefits included Article 46 must be interpreted strictu in the original calculations, including

3 Mr Cinciuolo has been receiving since 1 February 1977 an invalidity allowance under Belgian legislation. He also receives two Italian benefits, namely an apportioned invalidity pension calculated according to the aggre­ gation and apportionment principles contained in Article 46 (2) of Regu­ lation No 1408/71 and an occupational disease benefit.

4 The two Italian benefits were set off against the Belgian benefit pursuant to Article 70 (2) of the Belgian Law of 9 August 1963. That reduction, pursuant

JUDGMENT OF 1. 3. 1984 — CASE 104/83

to a Belgian provision against the overlapping of benefits, was more favourable to Mr Cinciuolo than that resulting from the application of the aggregation and apportionment principles contained in Article 46 (2) of Regulation No 1408/71 and is not challenged by him.

5 Following the increase as from 1 July 1977 in the Italian occupational disease benefit the Institut National reduced the Belgian benefit by a corresponding amount as from the same date. After a further increase in the Italian benefit on 1 July 1980 the Institut National again reduced the Belgian benefit.

6 Mr Cinciuolo challenged the two reductions before the Tribunal du Travail, Brussels, on the ground that they had been made in breach of Article 51 (1) of Regulation No 1408/71. The Institut National contended that Article 51 applied only to pensions and that there was no question of extending its application to benefits of another kind.

amount, such percentage or amount must be applied directly to the "benefits determined under the provisions of Article 46", without the need for a recal­ culation in accordance with the provisions of that article. On the other hand, Artide 51 (2) provides that if the method of determining, or the rules for calculating, benefits should be altered, a recalculation is to be carried out In view of the terms used in Article 51 (1) for the reference to Article 46, it must be observed that the only case covered expressly by Article 51 is that of an alteration in one of the benefits which have been determined under the provisions of Article 46.

10 Article 46 determines the rules governing the amount of benefits for workers who have been subject to the legislation of two or more Member States. In particular, it specifies the calculations which are required in ' order to determine whether the application of the national legislation, including its provisions against overlapping, is more favourable to the worker in question han the system of aggregation and apportionment provided for in Article 46 (2), lt follows that the calculations made pursuant to Article 46 may take into account not only benefits the amount of which must be determined according to that article but also, as a result of the national rules against overlapping, other benefits which may subsequently be altered.

11 It must be emphasized that Article 51 does not constitute an exception in relation to Article 46 but a provision governing its application. The fact that a particular situation is not expressly covered by such a provision does not prevent the provision from applying to it if that is in accordance with its objectives.

Costs

is The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings 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 (Second Chamber),

in answer to the question referred to it by the Tribunal du Travail, Brussels, by a judgment of 26 May 1983, hereby rules:

Article 51 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 must be interpreted as applying

OPINION OF MR ADVOCATE GENERAL MANCINI DELIVERED ON 9 FEBRUARY 1984 '

Mr President, to determine whether, in the light of Members of the Court, Article 51 (1), it is necessary to recal­ culate a pension determined in ac­ cordance with Article 46 when the amount of one or more benefits taken 1. In these proceedings the Court is into account in the original calculation asked to give a preliminary ruling on the has been adjusted to compensate for an interpretation of Regulation No 1408/71 increase in the cost of living. 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 Salvatore Cinciuolo, the plaintiff in the Journal, English Special Edition 1971 main action, worked in Italy and (II), p. 416). In particular, it is necessary Belgium. On 27 January 1976, while in

1 — Translated from the Italian.