C-85/89

RAVIDA

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 7 February 1990 *

My Lords, 4. Subsequently, the Italian retirement pension was increased as a result of indexation. When the Belgian social security institution (the Office national des pensions, hereafter 'the Office national') learnt of this it reduced Mrs Ravida's survivor's pension 1. This case arises out of a request for a by a corresponding amount as from July preliminary ruling on the interpretation of 1986. Anicie 51 of Council Regulation (EEC) No 1408/71 as amended (see Annex I to Council Regulation (EEC) No 2001/83, Official Journal 1983, L 230, p. 6). That provision concerns the recalculation of 5. Mrs Ravida challenged this decision social security benefits. before the tribunal du travail, Nivelles, contending that Anicie 51 of Regulation No 1408/71 prevented the Belgian survivor's pension from being recalculated (and reduced) in such circumstances.

2. Mrs Ravida, like her husband, worked both in Italy and in Belgium. She became entitled to a retirement pension in Italy as from 1 April 1978 and in Belgium as from 6. The Belgian coun referred the following 1 April 1980. In addition, following the question to the Coun of Justice: death of her husband, she was granted a survivor's pension both in Italy and in Belgium (as from 1 April 1980).

9. Article 51 has been considered in a 7. Article 51 of Regulation No 1408/71 number of cases before the Court, in belongs to Chapter 3 of Title III of that particular Case 7/81 Sinatra v FNROM regulation. The provisions of that chapter [1982] ECR 137, Case 104/83 Cinciuolo apply not only to retirement pensions but v Union nationale des federations mutualistes also to survivors' pensions. That is so neutres [1984] ECR 1285 and judgment of because Article 44(1), the first article of 12 July 1989 in Case 141/88 Caisse Chapter 3, provides that: nationale d'assurance vieillesse v Jordan [1989] ECR 2387. The effect of the article, as construed by the Court, is to distinguish between two types of situation: (a) those in which the alteration in the benefits is due to 'The rights to benefits of an employed or events unconnected with the personal self-employed person who has been subject circumstances of the insured and to the to the legislation of two or more Member general evolution of the economic and States, or of his survivors, shall be social situation; (b) those in which the determined in accordance with the alteration takes place either because of a provisions of this chapter.' change in the personal circumstances of the insured or because of an amendment to the rules for calculating the benefits. In the former case, Article 51(1) precludes a recal­ culation, whereas in the latter case Article 8. Article 51 provides as follows: 51(2) makes a recalculation mandatory.

11. However, the Office national maintains spouse who has attained a certain age and that neither paragraph of Article 51 is to whom the pensions are awarded on the applicable. Instead, Article 12(2) of Regu­ basis of the periods of insurance completed by lation No 1408/71 applies. It provides as the deceased spouse has the means of follows: subsistence'. In Stefanutti the Court held that an invalidity pension based on the recipient's own insurance record and a survivor's benefit based on her deceased husband's insurance record cannot be benefits of the same kind, within the meaning of Article 12(2) of Regulation 'The provisions of the legislation of a No 1408/71, and that national rules against Member State for reduction, suspension or the overlapping of benefits may therefore be withdrawal of benefit in cases of over­ applied. lapping with other social security benefits or other income may be invoked even though the right to such benefits was acquired under the legislation of another Member State or such income arises in the territory of another Member State. However, this provision shall not apply when the person 13. Mrs Ravida and the Commission do concerned receives benefits of the same kind not mention those judgments, but cite in respect of invalidity, old age, death instead the Cinciuolo case, which I have (pensions) or occupational disease which are already mentioned. That case concerned a awarded by the institutions of two or more man who received invalidity pensions in Member States in accordance with the Belgium and in Italy, together with an occu­ provisions of Articles 46, 50 and 51 or pational disease benefit in Italy. The Italian Article 60(l)(b).' benefits were deducted from the Belgian benefit pursuant to a Belgian rule against overlapping, since that was more favourable to him than the application of Article 46 of Regulation No 1408/71. The Belgian institution subsequently reduced its benefit following an index-linked increase in the 12. The Office national argues that the Italian benefits. It was in those circum­ benefits at issue in the present case are not stances that the Court ruled that: of the same kind because one of them (the survivor's pension) was granted in respect of insurance periods completed by the recipient's spouse, whereas the other (the retirement pension) was granted in respect of insurance periods completed by the 'Article 51 of Regulation No 1408/71 must recipient herself. The Office national cites be interpreted as applying to benefits such Case 37/86 Van Gastel, née Coenen as those in respect of accidents at work or v Rijksdienst and Rijkskas [1987] occupational disease which, by virtue of the ECR 3589 and Case 197/85 ONPTS national rules against the overlapping of v Stefamttti [1987] ECR 3855. In Van benefits, originally affected the amount of Gastel the Court held that a survivor's the pension fixed pursuant to Article 46 and pension and an old-age pension are benefits any subsequent adjustments to which might of the same kind 'in so far as both pensions again affect that pension. It is therefore not are intended to ensure that the surviving necessary to recalculate the pension

pursuant to Article 46 if an adjustment is 16. Secondly, the only difference between made to such a benefit on account of the the facts of the Cinciuolo case and the general evolution of the economic and present case is that Mrs Ravida's retirement social situation.' pensions are based on insurance periods completed by her and her survivor's pensions are based on insurance periods completed by her husband, whereas all Mr Cinciuolo's pensions were based on insurance periods completed by him. That difference is not of course entirely without 14. In that judgment the Court repeated an significance. It is clear from the Stefanutti observation made in the Sinatra judgment judgment that a retirement pension based on (cited above) to the effect that the purpose the recipient's own insurance record and a of Article 51 was to 'reduce the adminis­ survivor's pension based on the insurance trative burden which a fresh examination of record of the recipient's deceased spouse are the insured's situation following every not benefits of the same kind, within the alteration in the benefits received would meaning of Article 12(2). Therefore, entail'. It then stated (in paragraph 13) that: national rules against overlapping could be applied to the original calculation of Mrs Ravida's pensions and to any subsequent recalculation required by Article 51(2). That does not, however, mean that Article 12(2) has the effect of ousting the application of Article 51(1), which, according to the Sinatra, Cinciuolo and Jordan judgments, 'The same grounds of simplification and precludes a recalculation from being stability argue against a recalculation each effected when one of the benefits is adjusted time a benefit which influenced the original on account of the general evolution of the calculation of benefits, by virtue of the economic and social situation. For the national rules against overlapping, is altered application of Article 51, it makes no as a result of the same general evolution. In difference if one pension is based on the fact, the distinction made by Article 51, person's own working career, the other (the depending on whether the alteration in survivor's) on that of her husband. benefits is due to the general evolution in Article 51 applies to all benefits calculated the economic situation or to an alteration in in accordance with Article 46. the method of determining the benefits or in the rules for calculating them, is just as suitable for application to benefits other than those determined pursuant to Article 46.'

chapter that includes Article 51). In the case, so as to preclude a recalculation and present case all the benefits concerned, that reduction in the amount of the Belgian is to say, retirement pensions and survivor's survivor's pension, Article 12(2) would be pensions, fall within the scope of Chapter 3 emptied of its substance. However, it would, by virtue of Article 44(1), which I have in my opinion, be more accurate to say that already quoted. If Article 51 applies when if Article 12(2) were applied Article 51(1) one of the benefits concerned lies outside its would be emptied of its substance. There is scope, it must, in my opinion, apply a in fact no conflict between Article 12(2) and fortiori when all the benefits concerned Article 51. Each has its own sphere of clearly lie within its scope. application. Article 12(2) permits the application, in certain circumstances, of national rules against overlapping to the original calculation of benefit and to a subsequent recalculation. Article 51 18. The Office national maintains that if determines the circumstances in which such Article 51(1) were applied in the present a recalculation is to be effected.

19. I am therefore of the opinion that the question referred to the Court by the tribunal du travail, Nivelles, should be answered as follows:

'Where a person is in receipt of a survivor's pension in one Member State and a retirement pension in another Member State, calculated in accordance with Article 46 of Regulation No 1408 / 71 , Article 51(1) of that regulation precludes the institution of one Member State from recalculating and reducing the survivor's pension, if an adjustment is made to the retirement pension in the other Member State on account of the general evolution of the economic and social situation; for this purpose , it makes no difference whether the pensions are based on the same person's working career.'