C-323/86
ECLI:EU:C:1987:500
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OPINION OF MR D A CRUZ VILAÇA — C A S E 323/86
O P I N I O N O F MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 19 November 1987*
Mr President, to Mr Collini took into account the seven Members of the Court, years of employment in Italy.
5. Since in Belgium a complete working life 1. The tribunal du travail, Nivelles, has cannot exceed 45 years, the ONPTS applied referred to the Court for a preliminary the Belgian rule against overlapping ruling two questions on the interpretation of benefits, known as the 'external' rule, Article 46 of Regulation No 1408/71 of 14 contained in Article 11 ter of Royal Decree June 1971 on the application of social No 50, and reduced the period of notional security schemes to employed persons and work to which Mr Collini was entitled from their families moving within the eight years to three years, so as to bring the Community. ' total to the maximum possible of 45 years (35 + 7 + 3).
2. The plaintiff in the main proceedings, 6. Thus, the ONPTS awarded Mr Collini a Giuseppe Collini, an Italian national, pension of BFR 300 490, to which was worked for seven years in Italy and then added an Italian pension of BFR 23 829 emigrated to Belgium, where he was payable by Italy in respect of the Italian employed for 35 years. portion of his total working life.
7. Consequently, and as a result of his 3. Under the Belgian legislation, if Mr having previously worked in Italy, Mr Collini's working life had been limited Collini received a pension of BFR 324 319, merely to those 35 years' employment in which was less than he would have been Belgium, he would have been entitled to an entitled to if he had only worked for 35 old-age pension of BFR 326 390, as a result years in Belgium (BFR 326 390). of the addition to the 35 years actual employment of eight additional years of 'notional employment' (Article 11 bis of Royal Decree No 50). 8. He therefore considers that he has been penalized for being a migrant worker and therefore, in the main proceedings, he has challenged the ONFTS's calculation of his old-age pension. 4. However, the Belgian Social Security Institution — the Office national des pensions pour travailleurs salariés (ONPTS) — in calculating the pension due 9. Before the Belgian Tribunal, Mr. Collini maintained that he had become entitled at * Translated from the Portuguese. least to the amount which would be payable 1 — Official Journal, English Special Edition 1971 (II), p. 416. to him under Belgian Legislation if his
COLLINI v ONPTS
working life had been limited to the 35 17. That principle, which was laid down by years which he spent in employment in the Court in relation to the Community Belgium (BFR 326 390). anti-overlapping rule in Article 46 (3), must also be observed with respect to a national rule against overlapping benefits. 10. He also considered that the rule against overlapping benefits to be applied was the Community rule contained in Article 46 (3) of Regulation N o 1048/71, and that his 18. As the Court held, 'the aim of Articles pension should therefore be calculated 48 to 51 would not be attained if, as a according to a formula different from that consequence of the exercise of their right to used by the Belgian institution. freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the laws 11. In his view, the rule contained in Article of a single Member State' (Petroni [1975] 46 (3) applies only in the case of duplication ECR 1149, paragraph 13). of insurance periods in more than one Member State; Mr Collini claims that that is the position in his case. 19. Furthermore, it is also apparent from the case-law of the Court that the 12. In those circumstances, the tribunal du conditions laid down in Article 46 of Regu- travail, Nivelles, referred two questions to lation N o 1408/71 must be applied the Court of Justice for a preliminary ruling whenever to do so is of greater benefit to on the interpretation of Article 46 (3) of the worker than the application of national Regulation No 1408/71. legislation alone, including, where appro- priate, an external rule against overlapping 13. Those questions are reproduced in the benefits. 3 Report for the Hearing.
14. Before I analyse them, it is appropriate 20. It is appropriate briefly to describe the to clarify a preliminary point. provisions of Article 46 and to apply it to the case under review.
15. Both parties to the proceedings before the national court ultimately accepted that 21. By virtue of Article 46 (1), as made Community legislation was applicable, since clear by the Court, 4 the Belgian social it was more favourable than the Belgian security authority calculates the amount to legislation. which the worker would have been entitled under the domestic legislation if he had not 16. That applicability derives from the received a pension under the legislation of principle laid down by the Court 2 according another Member State. For that purpose, to which a limitation on the overlapping of the application of a rule to prevent the over- benefits 'which would lead to a diminution lapping of domestic and foreign benefits is of the rights which the persons concerned already enjoy in a Member State by virtue 3 — Judgment of 13 October 1977 ¡n Case 22/77 FNROM v Mura [1977] ECR 1699, at p. 1708, paragraph 15; of the application of the national legislation judgment of 14 March 1978 in Case 98/77 Max Schaap alone' is incompatible with Article 51. [1978] ECR 707, at p. 714, paragraph 10; judgment of 2 July 1981 in joined Cases 116, 117 and 119 to 121/80 RWPv Cehltre [1981] ECR 1737, at p. 1755, paragraph 15; judgment of 13 March 1986 in Case 296/84 Sinatra v 2 — Judgment of 21 October 1975 in Case 24/75 Petroni v ONPTS [1975] ECR 1149, at pp. 1160 and 1161, FNROM [1986] ECR 1047, paragraph 20. paragraph 21. 4 — See Sinatra, cited above, paragraph 21.
OPINION OF MR D A CRUZ VILAÇA —CASE 323/86
precluded by the second sentence of Article 27. On the basis of that theoretical amount, 12 (2) of Regulation No 1408/71. a calculation is made (Article 46 (2) (b)) of the effective amount of the Belgian benefit, pro rata to the insurance periods completed under Belgian Legislation before the materi- 22. In the present case, the result would be alization of the risk, having regard to the BFR 326 389, corresponding to 35 years of aggregate duration of the insurance periods actual employment plus eight years of completed before the materialization of the notional employment. risk under the legislation of all the Member States concerned.
23. The ONPTS also calculates the amount 28. Whatever the procedure adopted for of the benefit which would be obtained by calculating the insurance periods involved application of the rules contained in Article here, the amount calculated by application 46 (2) (a) and (b), which is then compared of Article 46 (2) (a) and (b) is, in the with the abovementioned figure so that only present case, always lower than the amount the higher one is taken into account. of the benefit calculated pursuant to Article 46 (1) (BFR 326 390).
24. Thus, pursuant to Article 46 (2) (a), the 29. By virtue of the second sentence of the Belgian institution5 calculates the theoretical second subparagraph of Article 46 (1), only amount of the benefit which the person that amount is to be taken into concerned might claim if all the insurance consideration. periods completed under the legislation of the Member States to which the worker had been subject had been completed in 30. Pursuant to the first subparagraph of Belgium. Article 46 (3), the person concerned is entitled, within the limit of the highest theoretical amount of benefits calculated according to Article 46 (2) (a) — which is 25. If he had completed in Belgium the presumed to be the Belgian benefit insurance periods which he completed in (BFR 336 748) — to the total sum of the Italy, Mr Collini would have had 42 years benefits calculated in accordance with of actual work to his credit, to which would Article 46 (1) and (2) (BFR 326 389 + BFR be added 10 years of notional employment 23 829 = BFR 350 218). (Article 11 bis of Royal Decree No 50). 31. Since that sum exceeds the limit mentioned earlier, the institution applying 26. Pursuant to Article 46 (2) (c), and Article 46 (1) (in this case the Belgian because the maximum period laid down by institution) will adjust its benefit in the Belgian legislation for the award of the accordance with the second subparagraph of full benefit is 45 years, the theoretical Article 46 (3). amount provided for in Article 46 (2) (a) is, in this case, BFR 336 748. 32. I shall now analyse the conditions under 5 — The same procedure was followed by the Italian institution which this adjustment must be carried out, but I assume that in this case the theoretical amount calculated by it was lower than that arrived at under the in response to the questions submitted by Belgian legislation. the national court.
COLLINI v ONPTS
A — Thefirstquestion 38. And, in my opinion, the reply can only be affirmative.
33. The purpose of the first question submitted by the tribunal du travail, 39. As is clear from the eighth recital in the Nivelles, is to determine whether the rule preamble to Regulation No 1408/71, the against overlapping benefits in Article 46 (3) Rule against overlapping benefits in Article of Regulation No 1408/71 applies to all 46 (3) reflects the need 'to avoid unjustified cases of unjustified overlapping of overlapping of benefits which could result in pensions — that is to say, to all cases where particular from the duplication of insurance there is exceeded the limit represented by periods and other periods treated as such' the amount to which the worker would have (emphasis added). Duplication is, therefore, been entitled if he had completed all the merely a typical case chosen for the insurance periods not in different Member purposes of the regulation to illustrate the States but in that whose legislation would situations which might give rise to unjus- entitle him to the highest pension or tified overlapping. whether that rule applies only to cases in which the limit is exceeded because there is a duplication of insurance periods. 40. In its observations, the Commission refers to Articles 76 and 79 (3) of Regu- lation No 1408/71, and also to Article 46 (2) (c) of the same Regulation and Article 34. A reply to that quesion, in the context 10 of Regulation No 574/72, and gives of the main proceedings, only appears to be another specific example of the application strictly necessary if the view is taken that in of the anti-overlapping rule without dupli- the present case there is no duplication of cation of periods: the overlapping of inva- insurance periods. lidity pensions where one of them is acquired under national legislation which takes no account of the length of the insurance period in determining its amount. 35. If there is duplication, there is no doubt as to the applicablity of Article 46 (3).
41. Moreover, the question was dealt with in the Sinatra judgment of 13 March 1986: 36. The national Court does not, however, ask for a ruling on the scope of the term 'duplication of insurance periods'. . . . 'Article 46 of Regulation No 1408/71 is applicable where the amount of the benefits due by virtue of national legislation is 37. I may therefore confine myself to unrelated to the periods completed and suggesting a direct answer to the question where the period giving rise to entitlement submitted — the usefulness of such an under that legislation has been completed'.6 answer being obvious, particularly because, if it should be affirmative, it will enable the 6 — The same view is eloquently expressed in paragraph 5 of national court to resolve immediately the the judgment of 19 June 1979 in Case 180/78 Brouwer-Kaune [1979] ECR 2111, at p. 2119; see also the question of the applicablity of Article 46 (3) judgments in FNROM v Mura, supra, and Greco (judgment of 13 October 1977 in Case 37/77 [1977] ECR 1711). See without the need to interpret any other also the opinion of Mr Advocate General Lenz in Case concept before doing so. 197/85 Stefanutti [1987] ECR. paragraph 19.
OPINION OF MR DA CRUZ VILAÇA —CASE 323/86
42. In the same way, Article 46 (3) will 47. As is apparent from the observations of apply to cases where the limit fixed in that the various parties, there are two questions provision is exceeded as a result of the here which require clarification. addition to periods of actual work of notional periods, which cannot be related to 48. The first is whether the pro rata pension a specific period and in respect of which, let (in this case, that awarded by Italy) is also a me say straight away, it is difficult to benefit liable to be reduced; the second is to consider that there is any duplication. determine which method of reduction is to be applied.
B — The second question 49. As regards the first question, the O N P T S , although acknowledging that the Administrative Commission on Social 43. T h e purpose of the second question Security for Migrant Workers adopted a submitted by the tribunal du travail, decision to the contrary (Decision No 91 of Nivelles, is to establish exactly how the 12 July 1973 7)> contends that the Italian adjustment factor provided for in Article 46 pension should also be subject to the (3) of Regulation N o 1408/71 is to be reduction. determined. 50. The principal support for that view is the judgment of this Court in Sinatra, in which it is stated that 'the amount found to 44. T h e doubt raised by the national court be higher, on the basis of the comparison derives in particular from the fact that the prescribed in the second subparagraph of first subparagraph of Article 46 (3) refers Article 46 (1), is to be reduced where back to Article 46 (1) and (2), whereas appropriate in accordance with Article 46 Article 46 (2) refers only to Article 46 (1). (3)'. According to the O N P T S , it follows from the fact that Article 46 (3) refers to both subparagraphs of Article 46 (1) that 45. Accordingly, the court asks how the the amount of the pro rata pension is also adjustment factor is to be calculated where subject to the reduction provided for only one of the benefits concerned is therein. determined in accordance with Article 46 (1), that is to say where only one of them is 51. In the view of Mr Collini and the a benefit to which, under the applicable Commission, on the other hand, only the national legislation, the worker is entitled 'independent' benefit (the Belgian pension) without its being necessary to take account, must be adjusted, since it is the only one in accordance with Article 45, of the whose amount was determined in insurance periods completed under the accordance with Article 46 (1). legislation of any other Member State ('independent' benefit). 52. It seems to me that the latter view is correct. 46. In the main proceedings, the Belgian pension is such a benefit but the Italian 53. It should be noted that the reduction pension, which may be classified as a pro referred to in Article 46 (3) is to be carried rata benefit of the kind referred to in Article 46 (2) (b), is not. 7 — Official Journal 1974, C 86,20.7.1974.
COIXINI v ONPTS
out by the 'institution applying paragraph 59. The second subparagraph of Article 46 (1)', which 'shall adjust its benefit'. (3) provides that 'any institution applying paragraph (1) shall adjust its benefit by an amount corresponding to the proportion which 54. In this case, the institution responsible the amount of the benefit concerned hears to for applying Article 46 (1) is the Belgian the total of the benefits determined in O N P T S , since it is that institution which accordance with... paragraph (1)' (my has awarded an 'independent' benefit, that emphasis). is to say a benefit to which the worker is entitled regardless of the conditions laid 60. It seems to me that, as far as the inter- down in Article 45. pretation of that subparagraph is concerned, the only correct view is — beyond any doubt — that expressed by the Commission. 55. It is true that the second subparagraph of Article 46 (1) refers to Article 46 (2) (a) and (b); but it does so only for the purposes 61. The subparagraph in question purports of the comparison provided for therein to govern the apportionment of the amount between the amounts of the same benefit by which the higher theoretical amount is calculated according to the national rules exceeded as between the various national and the Community rules, with a view to institutions applying Article 46 (1), where a determining the higher amount, the only worker has been subject to the legislation of one which will be taken into consideration. two or more Member States which grant independent benefits.
56. The correction required by the second 62. Accordingly, the amount of the subparagraph of Article 46 (3) does not excess — being the difference between the therefore relate to the pro rata benefit; sum of all the independent and pro rata moreover, it is not readily apparent how the benefits and the highest theoretical Belgian social security institution (the amount — must be multiplied by a factor 'institution applying paragraph (1)') could corresponding to the relationship between reduce the amount paid by the Italian social the 'amount of the benefit concerned' (that security institution. is to say, the highest amount to be taken into account for the purposes of the comparison to be carried out under the 57. That is what the legislature intended to second subparagraph of Article 46 (1) — in say by requiring adjustment of its benefit, this case BFR 326 389 — a n d not the that is to say the benefit which that highest theoretical amount, as Mr Collini institution is required to pay. As the thinks) and 'the total of the benefits Commission emphasizes, the intention of determined in accordance with the legislature was not to reduce pro rata . . . paragraph (1)' (that is to say, the sum of pensions. 8 all the independent benefits, and not the sum of both the independent and the pro rata benefits, as claimed by Mr Collini). 58. I shall therefore now consider in detail the second aspect of the problem, namely the applicable method of adjustment. 63. This leads to the result, as advocated by the Commission, that each institution 8 — The same view is expressed in the opinion of Mr Advocate granting an independent benefit reduces it General Warner in the /Wroni case, [1975J ECR 1165, and by deducting from it a portion of that in Decision No 91 of the Administrative Commission, cited earlier. difference reflecting the proportion which
OPINION OF MR DA CRUZ VILAÇA — C A S E 323/86
its benefit bears to the toul sum of the inde- 67. The Commission is therefore right and pendent benefits. the calculation formula used in Form E 209 produced by it as an annex to its obser- vations is correct (even though it might perhaps be said that the method of calcu- 64. It is clear that, if only one of the lation which I have used to reach the same institutions awards an independent benefit, result shows more clearly the nature of the 'the total of the benefits determined in relationship referred to in the second accordance with . . . paragraph (1)' is equal subparagraph of Article 46 (3)). to that benefit (in this case, BFR 326 389).
68. Consequently, Mr Collini will be 65. The factor to be applied to the amount entitled to BFR 312 919 from Belgium (a of the difference (in this case BFR 13 470) larger amount than the benefit calculated is equal to 1 (326 389/326 389) and the under the Belgian legislation, including the difference is therefore deducted in its external rule against overlapping entirety from the independent benefit. benefits — BFR 300 490) and BFR 23 829 from Italy, giving a total of BFR 336 748.
66. No unusual result thus follows from the fact that only one of the institutions applies 69. The result is that the 'limit of the Article 46 (1), since the method of calcu- highest theoretical amount' imposed uncon- lation is precisely the same as if there were ditionally by the first subparagraph of two or more institutions. Article 46 (3) is scrupulously observed.9
70. I therefore propose that the Court should give a ruling in answer to the questions submitted by the tribunal du travail, Nivelles, in the following terms:
(1) T h e adjustment provided for in the second subparagraph of Article 46 (3) of Regulation N o 1408/71 applies whenever the highest theoretical amount of the benefits calculated in accordance with Article 46 (2) (a) is exceeded by the sum of the benefits calculated in accordance with Article. 46 (1) and (2), regardless of whether or not there is any duplication insurance periods;
(2) Where the adjustment provided for in the second subparagraph of Article 46 (3) is to be made and only one of the benefits in question is determined in accordance with Article 46 (1), the insitution responsible for paying that benefit will deduct from the amount thereof the full amount corresponding to the difference between the highest theoretical amount and the sum of the benefits calculated in accordance with Article 46 (1) and (2).
9 — The same view is expressed in Sinatra, cited »bove, paragraph 23.