C-37/86

Mr President, 4. This is the background to the Members of the Court, proceedings pending before the Arbeid­ srechtbank, Antwerp. Considering that an A — The facts interpretation of Community law was necessary before it could give its judgment, 1. The case on which I now deliver my that court stayed the proceedings by order Opinion also concerns the application of the of 6 February 1986 1 and referred the provisions of the Belgian Royal Decree of following question to the Court of Justice 21 December 1967, which has already been for a preliminary ruling under Article 177 of considered in Case 197/85, according to the EEC Treaty: which, when a Belgian survivor's pension overlaps with an old-age pension, even a foreign old-age pension, benefits may not exceed a certain maximum amount. 'Should or should not the following be regarded as benefits of the same kind within the meaning of Article 12 (2) of Regulation 2. Those provisions assume importance for No 1408/71 entailing possible consequences Mrs van Gastel whose late husband, a with regard to the application of Article 46 Netherlands national resident in Belgium, of Regulation No 1408/71 and Articles 7 had received from November 1976 a and 46 of Regulation No 574/72: a Belgian old-age pension solely by virtue of "survivor's pension" awarded under the Belgian law and a Netherlands old-age Belgian legislation on employed persons' pension from October 1976. The latter pensions to the surviving spouse on the basis pension was based on voluntary contri­ of the period in employment of the butions which he had paid from January deceased spouse or of the periods of 1957 and which continued to be paid until insurance completed by him or her and an the 65th birthday of Mrs van Gastel in "old-age pension" granted under the August 1979. Netherlands pensions legislation (General law on old age) to a woman who has been 3. After the death of her husband in married and who attains the age of 65 but February 1983, Mrs van Gastel at first has not been employed herself or completed continued to receive her husband's periods of insurance in the Netherlands but Netherlands pension and then, from May whose deceased husband has completed 1983, received her own Netherlands old-age periods of insurance under the pensions pension on the basis of the voluntary contri­ legislation of the Netherlands?' butions already mentioned. Initially, she also received a Belgian survivor's pension from March 1983. However, in April 1984 the Belgian rules against overlapping benefits 5. After studying the observations submitted were applied with the effect that, in view of on behalf of the defendant in the main the maximum limit on overlapping benefits, proceedings, the Netherlands Government the Belgian pension ceased to be paid and and the Commission of the European the repayment was demanded of the sums Communities, my views are as follows. already paid. 1 — Entered in the Register of the Court of Justice on 12 * Translated from the German. February 1986.

7. In this regard reference may be made to 8. 2. The Commission has also correctly the case-law (for example, the judgment in pointed out that the fact that the point that Case 171/82 Valentini 2), according to for the purpose of applying Article 12 (2) of which social security benefits must be the regulation, invalidity, old-age and regarded, irrespective of characteristics widows' pensions were to be regarded as peculiar to the various national laws, as benefits of the same kind was inserted in being of the same kind when their purpose Annex VI to Regulation No 1408/71 after and object together with the basis on which the accession of Denmark, the United they are calculated and the conditions for Kingdom and Ireland (in the case of granting them are identical. However, Denmark under B point 8, in the case of characteristics which are purely formal must Ireland under F point 4 and in the case of not be considered relevant criteria for the the United Kingdom under J point 9) is of classification of the benefits. It should also no assistance in resolving the present be added, as the Commission has correctly problem. From that fact it cannot in fact be pointed out, that several judgments have concluded that the benefits of other made it clear that the concept concerned Member States, which are not similarly should be interpreted in a broad manner. Of specified, can never be regarded as being of 3 relevance in this respect is Case 4/80, the same kind as the abovementioned according to which invalidity benefits benefits. In this respect, reference may be converted into an old-age pension and inva­ made to the judgment in Case 238/81 Van lidity benefits not yet converted into an der Bunt-Craig in which the Court first dealt old-age pension are to be regarded as with the abovementioned point concerning benefits of the same kind. Equally pertinent the United Kingdom and then stressed that, irrespective of the characteristics peculiar to the various national laws, social security 2 — Judgment of 5 July 1983 in Case 171/82 Biagio Valentini v Assedic, Lyon [1983] ECR 2157, paragraph 13 at p. 2170. 3 — Judgment of 15 October 1980 in Case 4/80 Remo d'Amico v Office national des pensions pour travailleurs salariés 4 — Judgment of 5 May 1983 in Case 238/81 Raad van Arbeid [1980] ECR 2951, at p. 2954. v Van der Bunt-Craig [1983] ECR 1385, at p. 1397 et seq.

benefits had to be considered as being of the paid contributions and on the basis of his same kind when their purpose and basis of gross salary. calculation were the same (see paragraphs 12 and 13 of the decision). Also relevant is the judgment in Case 171/82 Valentini, in which, as regards the legal position in France, the Court did not simply conclude 10. Since the Court does not have to make that benefits were not of the same kind such an assessment, I would merely suggest merely because there was no corresponding that several factors support the argument of provision in Annex VI but, as already the Commission which focuses on the fact shown, laid down criteria for determining that the benefits concerned basically have when benefits are benefits of the same kind the same object and the same basis for within the meaning of Article 12 of Regu calculation and regards the differences

When in Gastel herself should be regarded as being the spring of 1982 the Belgian representative personally insured on the basis of the drew attention to the fact that under contributions paid by her husband (which Netherlands law a widow who had attained were paid on the basis of their joint the age of 65 would no longer receive a income), that voluntary contributions were widow's pension but a personal old-age made on her account even after her husband pension instead and that this could lead to a had reached the age of 65, and that the considerable reduction of a Belgian widow's purpose of the Netherlands old-age pension pension because of the Belgian rules against to which the wife is personally entitled is to overlapping benefits which apply only to ensure a sufficient income whereas the old-age pensions, the Administrative Belgian widow's pension does not have that Commission came unanimously to the purpose but is assessed purely on the basis conclusion in July 1982 that, in order to of the period during which the husband avoid any financial loss, a Belgian widow's

12. 4. However, as the Commission has also 15. As was made clear in Case 238/81 Van shown, the matter cannot be left to rest with der Bunt-Craig and Case 296/84 Sinatra v the observations made so far. Fond national de retraite des ouvriers mineurs [1986] ECR 1047, the national court must make a comparison. On the one hand, it must calculate the amount of benefit payable under national law, taking into account national rules against overlapping benefits. On the other hand, the amount of 13. (a) In view of the facts made known to benefit must be calculated in accordance the Court — a Belgian widow's pension is with Article 46 of Regulation No 1408/71. payable solely on the basis of Belgian law First of all, the amount to which the worker without reference to Community law or the would be entitled under national legislation taking into account of periods of insurance if he were not in receipt of a pension by abroad — it is appropriate to refer to the virtue of the legislation of another Member case-law, according to which, in such cases, State is calculated (in other words, this national legislation, including the national calculation excludes the national provisions rules against the overlapping of benefits, against overlapping benefits). 7Then, the pro may be applied in its entirety. 5Accordingly, rata benefit under Article 46 (2) must be in a case such as this, Article 12 of Regu­ calculated. If the sum of both amounts lation No 1408/71 and in particular the exceeds the highest theoretical amounts scope of the second sentence of Article 12 calculated in accordance with Article 46 (2) (2) are, initially at least, irrelevant, and it is (a), a corresponding reduction must be the task of the national court, when made, and, according to the judgment in applying national law, to examine whether Case 238/81, Article 46 (3) must be applied or not the relevant rules against overlapping to the exclusion of provisions of national benefits go too far as regards the protection law against overlapping benefits (paragraph of fundamental rights or the respect of basic 15). principles of law. 6 — See paragraph 9 of the decision in Joined Cases 116, 117, 5 — Judgment of 2 July 1981 in Joined Cases 116, 117, 119 to 119 to 121/80, cited above. 121/80 Rijksdienst voor Werhiemerspensiocnen v Celeitre 7 — Judgment in Joined Cases 116, 117, 119 to 121/80, and Others [1981] ECR 1737, at p. 1753. Celesire, paragraph 12.

21. If pensions are payable solely on the basis of one Member State's legislation (without reference to Community law and to periods of insurance completed in another Member State), Regulation No 1408/71 does not exclude the application

8 _ Judgment of 14 March 1978 in Case 98/77 Schaap v Bestuur van de Bedrijfsvereniging voor Bank- en Verzeke- ringswezen, Groothandel en Vrije Beroepen [1978] ECR 707, at p. 713. 9 — Judgment of 5 April 1979 in Case 176/78 Schaap v Bestuur van de Bedrijfsvereniging voor Bank- en Verzekeringswezen, Groothandel en Vrije Beroepen [1979] ECR 1673, paragraph 10 at p. 1685.

VAN GASTEL v RIJKSDIENST AND RIJKSKAS

of national law in its entirety, including its rules against overlapping benefits. However, if this leads to a result which is less favourable than that produced by the application of Article 46 of Regulation No 1408/71, Article 46 is applicable.

22. For the purposes of Article 46 (3) of Regulation No 1408/71, benefits which correspond to a period of optional insurance may not be taken into account in accordance with Article 46 (2) of Regulation No 574/72.