C-128/88

DI FELICE v INASTI

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 2 February 1989 *

My Lords, Mr Di Felice to represent him was competent to do so and on the question of the exact nature of the Italian invalidity benefit which he was receiving. After the further hearing, that court by a judgment of 21 April 1988 fixed the amount of the Belgian retirement pension payable to Mr 1. In this case I can give my view quite Di Felice at BFR 39 007 per year from shortly, since despite certain difficulties 1 May 1984. That amount was calculated which have led the national court to make on the basis of a period of 16 years of a this reference for a preliminary ruling, it potential total of 45 years and taking seems to me that the questions referred can account of a reduction of 5 % for each year be answered on the basis of the previous before his 65th birthday. However the court case-law of the Court and that there is no reason in this case to suggest any departure suspended judgment on the question from the principles established by that whether that pension should actually be case-law. paid until it had resolved its doubt over the effect of the Belgian legislation against overlapping of benefits considered in the light of Community law on social security.

security legislation or under the rules constitute, or could constitute, applicable to the staff of an institution discrimination on grounds of subject to public international law.' nationality as referred to in the first paragraph of Article 7 of the Treaty, whether direct or indirect or based on nationality, through the application of criteria neutral in form but leading in practice to the same result, which is Article 31 of the decree, as amended by that non-nationals are placed at a Article 147(2) of the Law of 15 May 1984, disadvantage owing to a dispropor­ empowers the Belgian executive authorities tionate obstacle; to determine, by way of derogation from that provision, the extent to which benefits may overlap; but at the date of the order for reference in this case no such determination had been made. The Institute refuses payment of the Belgian retirement pension (2) Whether they fall, or could fall, under claimed on the grounds that Article 30 bis the second paragraph of Article 52 and clearly excludes simultaneous entitlement to Article 53 of the Treaty and Belgian retirement pension and Italian inva­ Articles 12(1) and (2) and 43 of Regu­ lidity benefits. lation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their 4. The tribunal du travail, however, is families moving within the Community uncertain whether such legislation and the as well as Chapter III of that regu­ refusal based on it comply with the lation, in particular Articles 44(1) and Community rules on social security. To (2) and 46 thereof; resolve the uncertainty, the tribunal has asked the Court of Justice for a preliminary ruling on the following questions, which in the original are put as one question in three parts but which for convenience I will set out as three questions: (3) Whether the Italian invalidity pension (in this case "ab initio" not yet converted into an old-age pension) and the Belgian early retirement pension for a self-employed person are to be regarded as "benefits of the same '(1) Whether the continuing lack of kind".' provision in Belgian national legislation with regard to overlapping pensions (in this case, individual old-age pensions) for self-employed persons with other retirement benefits or an advantage taking the place thereof (in this case, 5. Observations have been submitted to this an invalidity allowance) granted under Court only by the defendant Institute and a foreign old-age pension scheme, and by the Commission. Observations have not the practice consequently adopted by been submitted by the claimant, who also the competent national paying body, failed to appear before the Belgian court.

9. As to the first question, Article 30 bis of Royal Decree No 72, as amended, contains a particularly extensive provision not merely reducing but — in the absence of dero­ gations — completely excluding payment of benefits under Belgian law when benefits are paid under the law of another Member 7. The Commission submits in essence that State. Such a provision would seriously the matter is covered by Articles 12(2) restrict the social security rights of workers and 46 of Regulation No 1408/71. The who moved between one Member State and two benefits in question are 'benefits of the another, were its operation not circum­ same kind' for the purposes of Article 12(2) scribed by Community provisions, in which therefore excludes the operation of particular Articles 12 and 46 of Regulation Article 30 bis of the Belgian Royal Decree. No 1408/71. That regulation is based inter The claimant is entitled to the amount of alia on Article 7 of the EEC Treaty, and in the Belgian early retirement pension either my view any discriminatory effects of a calculated under Belgian law excluding national rule against overlapping are Article 30 bis of the Royal Decree or apprehended by the regulation and not calculated according to Article 46(2) of the directly by Article 7 of the Treaty. It is regulation, whichever is the higher. sufficient to refer to the Court's case-law to

OPINION OF MR JACOBS —CASE 128/88

10. As regards the second question, in my opinion Articles 52 and 53 of the Treaty are not relevant as they concern the right of establishment rather than free movement of workers and do not form part of the legal basis of Regulation No 1408/71. The 'The provisions of the legislation of a extension of the provisions of that regu­ Member State for reduction, suspension or lation to self-employed persons and their withdrawal of benefit in cases of over­ families was effected not pursuant to the lapping with other social security benefits or chapter of the Treaty on the right of estab­ other income may be invoked even though lishment but by Regulation No 1390/81 the right to such benefits was acquired (Official Journal 1981, L 143, p. 1), which under the legislation of another Member was based on Articles 2, 7, 51 and 235 of State or such income arises in the territory the Treaty. That regulation entered into of another Member State. However, this force on 2 July 1982 with the effect that all provision shall not apply when the person the provisions of Regulation No 1408/71 concerned receives benefits of the same kind here in issue have applied to self-employed in respect of invalidity, old age, death persons since that date and were thus (pensions) or occupational disease which are applicable at the material time in the present awarded by the institutions of two or more case. Member States in accordance with the provisions of Articles 46, 50 and 51 or Article 60(1)(b).'

11. Having regard to those provisions, the first step is to establish the amount of the pension due under Belgian legislation 12. The criteria for deciding whether (including its rules against overlapping) and benefits are of the same kind can be found

in the past case-law of the Court. In from the order for reference for the criteria paragraph 13 of the judgment in Case developed in the Court's case-law to be 171/82 Valentini [1983] ECR 2157, at applied, since the national court does p. 2170, confirmed in paragraph 10 of the include in the course of its reasoning a judgment in Van Gastel, née Coenen, statement that the Italian benefit was already cited, the Court held that benefits calculated on the basis of a period of were of the same kind when their purpose insurance, namely 8.69 years of a potential and object together with the basis on which total of 45 years, which makes it possible to they were calculated and the conditions for deduce how the provisions of the regulation granting them were identical and that are to be applied. What does not emerge characteristics which were purely formal from the order for reference is whether the were not to be considered relevant. The real Italian benefit was calculated on the basis of difficulty which the national court appears a period of insurance completed in Italy to have had in this case was to establish the alone, or on the basis of aggregation and exact nature of the Italian benefit in apportionment. But in either event, it is question. The national court was unable to clear in my view that the provisions of obtain further information about the nature Article 46 must be applied, and that the of the Italian pension from the claimant, benefits are benefits of the same kind. In the who did not appear and was not represented instant case both benefits are designed to before it. But it should not be forgotten that ensure the means of subsistence of a person the national social security institution is who is no longer able, or no longer fully always in a position to obtain relevant infor­ able, to work, and the amount of both mation by using the machinery for benefits is established, as I have explained, cooperation between social security according to the insurance periods of the institutions in different Member States: see same person, as in Van Gastel, née Coenen, Article 84 of Regulation No 1408/71 and paragraphs 11 and 12. The position might Article 7(2) of Regulation No 574/72 as be different if one of the benefits were amended (Official Journal 1983, L 230, based on the contributions of another p. 86). person, as in the judgment of 6 October 1987 in Case 197/85 Stefanutti [1987] ECR 3855. In Case 4/80 D'Amico [1980] ECR 2951 the Court held that where a person is in receipt of invalidity benefits converted into an old-age pension under the legis­ lation of one Member State and of inva­ lidity benefits not yet so converted under the legislation of another Member State, those benefits were to be regarded as being of the same kind. At point (b) of the ruling in Celestre the Court again held that where a worker is in receipt of invalidity benefits converted into an old-age pension under the legislation of one Member State and of invalidity benefits not yet converted into an old-age pension under the legislation of another Member State the old-age pension and the invalidity benefits were to be regarded as being of the same kind for the purposes of Article 12(2) of Regulation 13. However, the nature of the Italian No 1408/71. benefit in this case does emerge sufficiently

14. The present case concerns an invalidity in the light of the past case-law I take the pension acquired under the legislation of view that two benefits such as those at issue one Member State and an early retirement in the present case are to be considered as pension under the legislation of another 'benefits of the same kind' for the purposes Member State. However, it has not been of Article 12(2) of the regulation. suggested, either in the order for reference Moreover, it seems to me that any other or in the observations submitted to the result, allowing the application of the Court, that the fact that the retirement national anti-overlapping provisions in a pension is paid early makes any material case such as the present, would be wholly difference to the law applicable. Nor in my inconsistent with the purposes of the view is there any such difference. The effect Community legislation and of Article 51 of of early payment is simply that the amount the Treaty. of the pension is discounted by 5 % for each of the years of anticipation on normal pensionable age in Belgium. That it makes 16. It may then be necessary to calculate no such difference is also indicated indi­ the aggregated and apportioned amount in rectly by the approach that the Court took accordance with Article 46(2) of the regu­ to a German early old-age pension in lation, but no question has been referred on Case 180/78 Brouwer-Kaune [1979] the interpretation of those provisions. ECR 2111. Again, the position might be Whether or not that calculation is necessary, different if the scheme were designed to the essential point is that the national provide a guaranteed income on early provisions excluding the overlapping of retirement, a scheme of the kind in issue in benefits cannot be applied in any event. the Valentini case already cited. But the benefit in the present case is a normal retirement pension paid at a discount in 17. The result therefore is that the national anticipation of the normal retirement age. anti-overlapping provisions do not apply and that the amount referred to in Article 46(1) is the amount to which the person 15. On that basis, D'Amico and Celestre would be entitled under national legislation suggest strongly that the two types of if he did not have a pension under the legis­ benefit at issue in this case are 'of the same lation of another Member State (Celestre, at kind' for the purposes of Article 12(2); and p. 1754, paragraph 12).