C-342/88
ECLI:EU:C:1990:47
- Súd
- Súdny dvor Európskej únie
- IČS
- 61988CC0342
- Zdroj
- eur-lex.europa.eu ↗
SPITS
OPINION OF MR ADVOCATE GENERAL TESAURO delivered o n 6 February 1990 *
Mr President, benefits in each Member State according to Members of the Court, whether or not the national rules permit entitlement to benefit to be granted without its being necessary to add the relevant years of contribution under the rules of other Member States. The national court — the Arbeidshof Gent (Labour Court, Ghent), Belgium — has referred to the Court for a preliminary ruling a question which, apart from the wording seeking a reply which will directly resolve the dispute, essentially concerns the interpretation of Article 46 of In the second case (Article 46(2)), each the well-known Regulation (EEC) N o national institution must calculate first a 1408/71 ' on the application of social 'theoretical' amount of benefit (Article security schemes to workers moving within 46(2)(a)), determined on the basis of the the Community. total of all the relevant contribution periods under the rules of the Member States concerned as if they had all been completed in the Member State in question. It must Mr Spits, a Netherlands national, had then establish the 'actual' amount of the worked for some years in Belgium and for benefit, which represents the amount many years in the Netherlands. In calculated on the basis of the theoretical particular, the years of work established and amount, in the ratio which the length of the therefore relevant under the Belgian pension period of insurance in the Member State legislation were from 1932 to 1938, the first concerned bears to the total period of two of which preceded his 20th birthday. insurance (Article 46(2) (b)). The relevant years for the purposes of the Netherlands legislation were from 1929 to 1979. The fact that Mr Spits is subject to the rules of two Member States means that Regulation No 1408/71 applies and, in particular, for purposes of calculating the In the first case, by contrast, that is to say two benefits, Article 46. where the national rules provide for a pension to be granted without specifying a minimum number of years of insurance and it is therefore not necessary to add the The wording of this provision is not wholly periods completed abroad, each institution clear; in any event, so far as this case is must, in addition to calculating the 'theor- concerned, paragraphs 1 and 2 respectively etical' amount and the 'actual' or lay down the methods of calculating 'proportionate' amount, also calculate an 'independent' national amount, based solely * Original language: Iulian. on 'national' insurance periods (Article 1 — Council Regulation (EEC) N o 1408/71 of M June 1971 (a 46(1)). T h e benefit which will have to be codified version of which is annexed to Council Regu- lation (EEC) No/2001/83, OJ 1983, L 230, p. 6). finally granted will correspond to whichever
I - 2265
OPINION OF MR TESAURO — CASE C-342/88
of the 'independent' amount and the completed in the Netherlands were added 'proportionate' amount, as provided for in together. the second paragraph of Article 46(1), is higher.
The Commission maintains that in order to In this case, it is not contested that the calculate the 'independent' amount the Belgian institution had to calculate both the national institution must consider only the 'independent' amount and the periods completed in that State, excluding 'proportionate' amount; it is also common periods completed in other Member States, ground that the 'proportionate' amount with the consequence that even the two corresponds to five years out of 45 (which is years preceding that in which the person the maximum number of years which may concerned had his 20th birthday should be be considered). The dispute before the taken into account. That follows from the national court concerns the 'independent' fact that by virtue of Article 12(2) of Regu- amount which according to the Belgian lation (EEC) No 1408/71 the provisions of authorities should correspond to five years national legislation for the reduction of out of 45 whereas, according to Mr Spits benefit in cases of overlapping must not be (and the court of first instance, whose applied for purposes of calculating the judgment is the subject of an appeal on the 'independent' amount referred to in Article part of the Belgian authorities before the 46(1) of the regulation, whereas it is Arbeidshof Gent), it should correspond to precisely such a provision which led the seven years out of 45 (from 1932 to 1938), Belgian institution to exclude 1932 and 1933 with the consequence that this amount from the calculation of the independent should be accepted in so far as it is higher. amount. In its written observations, the Commission supported the view put forward by Mr Spits.
Without considering the question further, it The disagreement arose because the Belgian seems to me that the Commission's interpre- institution had not taken into account in tation must be accepted in its entirety. calculating the 'independent' amount the Moreover, following the arguments put two years preceding that in which Mr Spits forward in the Commission's written obser- had his 20th birthday which under the vations the Belgian institution itself national rules are taken into account only if expressly acknowledged at the hearing that they can be used to complete an it had made a mistake and accepted the 'incomplete' contribution record, which was interpretation of Article 46 put forward by not the case here since the total number of the Commission, in particular as regards the years completed by Mr Spits was over 50, if specific issue of whether the two years in the periods completed in Belgium and those question should be taken into account.
In view of these considerations I p r o p o s e t h a t the C o u r t should reply t o the question submitted t o it by t h e Arbeidshof as follows:
I - 2266
SPITS
'Article 46(1) of Regulation (EEC) No 1408/71 must be interpreted as meaning that the national institution responsible for paying pensions must calculate the benefit on the basis of the periods of contribution to be taken into account under national law, excluding periods of contribution completed in other Member States.'
I - 2267