C-108/89
ECLI:EU:C:1990:56
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OPINION OF MR JACOBS —CASE C 108/89
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 7 February 1990 *
My Lords, application was refused by decision of 23 March 1984
1 The issue in this case is whether Belgian rules against the overlapping of benefits 4 In refusing the applications for early prevent the grant of Belgian early retirement retirement pensions, the Office national pensions to two Italian former migrant relied on Article 25 of Royal Decree No 50 workers who are already in receipt of of 24 October 1967 on old-age and Italian invalidity pensions survivors' pensions for salaried workers in conjunction with Article 64(a)(1) of the Royal Decree of 21 December 1967 laying down general rules for retirement and survivors' pensions for salaried workers, 2 Mr Pian was born on 9 June 1922 He which implements Article 25 of Royal worked in Belgium from 1947 to 1951 as a Decree No 50 The Office national took miner and from 1951 to 1971 in other the view that the effect of those provisions salaried posts After returning to Italy and was that the existence of an Italian invalidity further employment there, he became pension precluded the grant of an early eligible for an Italian invalidity pension on retirement pension 1 March 1974 With effect from 1 March 1978 he was granted a Belgian retirement pension on the basis of his periods of employment as a miner, having reached the special miners' retirement age of 55 years 5 Mr Pian's appeal against the decision of However, his application of 4 June 1982 for the Office national was rejected by an early retirement pension on the basis of judgment of the tribunal du travail, Liège, his further periods of insurance completed of 9 May 1985 The same court upheld in Belgium was refused by the Office Mr Bianchin's appeal on 11 June 1986 The national des pensions (the 'Office national') cour du travail of Liège, on appeals against the judgments at first instance, referred the following questions to the Court:
3 Mr Bianchin was born on 20 February 1920 From 1955 to 1961 he worked in Belgium and then returned to Italy where, '(1) Where a migrant worker has become after a further period of employment, he entitled to a personal invalidity pension became eligible for an invalidity pension on in one Member State, without 1 January 1975 On 25 March 1983 he application of the Community regu applied to the Office national for an early lations, and asserts in another Member retirement pension on the basis of insurance State rights to a benefit on the basis of periods completed in Belgium The his employment, without application of
* Original language: English
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the Community regulations, is it (b) that laid down by the legislation compatible with Articles 48 and 51 of providing for the non-convertible the Treaty of Rome for the institution benefit to which the rules on over in the second State which grants the lapping benefits are applied?' retirement pension to take into account the invalidity pension granted by the first State in order to apply the rules 6 In its first question, the national court in laid down in its own legislation for the effect asks whether, in a case where entit prevention of overlapping benefits, just lement to an old-age pension arises under as it takes into account invalidity the legislation of one Member State alone, benefits granted under its own legis Community law permits the application of lation? the legislation of that Member State relating to the overlapping of benefits The second and third questions essentially ask whether, (2) If so, where the legislation of a if Community law permits the application of Member State treats in a different anti-overlapping legislation, it also permits, manner the overlapping of a retirement for the purposes of that legislation, the pension granted under such legislation application of national rules concerning the with an invalidity benefit or an old-age classification of benefits arising under the benefit, how must an invalidity pension law of another Member State and granted by another Member State concerning the age at which entitlement to a which is not convertible into an old-age retirement pension arises pension be treated: must it be treated as an invalidity benefit or as an old-age benefit? 7 Although the questions are framed in terms of Articles 48 and 51 of the EEC Treaty, it is clear that they must be answered by reference to the legislation Should a distinction possibly be made adopted pursuant to Article 51, in particular according to whether or not the Council Regulation No 1408/71 (Official recipient of the invalidity pension has Journal, English Special Edition 1971 (II), reached retirement age or is receiving p 416; consolidated version, Official an old-age benefit? Journal 1983, L 230, p 8)
Must a distinction be drawn according 8 According to well-established case-law, to whether the retirement pension is where a worker receives a pension by virtue claimed at the normal age or is applied of national legislation alone, the provisions for early (with a reduction of the of Regulation No 1408/71 do not prevent amount)? that legislation from being applied to him in its entirety, including any national rules against the overlapping of benefits (see judgments of 2 July 1981 in Joined Cases (3) With reference to Questions 1 and 2, 116 and 117 and 119 to 121/80 RWP must the retirement age be v Celestre [1981] ECR 1737, paragraph 9, of 6 October 1987 in Case 197/85 ONPTS v Stefanutti [1987] ECR 3855, (a) that prescribed by the legislation paragraph 10, and of 18 April 1989 in Case containing the provision on over 128/88 Di Felice v Inasti [1989] ECR 923, lapping benefits, or paragraph 9)
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9 However, the Court has always qualified legislation' (Article 46(1), first the above ruling with an important proviso, subparagraph) Secondly, it must also which is that if the application of the calculate the benefit that would be due national legislation alone proves to be less under the system of aggregation and appor favourable to the worker than the tionment laid down in Article 46(2)(a) and application of the rules laid down in Article (b) Only the higher of the two amounts 46 of Regulation No 1408/71, the calculated in this way is to be taken into provisions of that article must be applied consideration (Article 46(1), second (see Celestre, cited above, paragraph 9; subparagraph) Stefanutti, cited above, paragraph 11; Di Felice, cited above, paragraph 9) The national court must therefore determine whether the application of national legis 12 In applying Belgian legislation for the lation alone, or the application of the purposes of the first subparagraph of Article provisions of Article 46, will produce a 46(1), the national court is of course result which is more favourable to Mr Pian entitled to consider whether the conditions and Mr Bianchin for the grant of a retirement pension or of an early retirement pension are fulfilled
13 However, the Court has consistently 10 In applying the provisions of national held that, where the provisions of Article 46 legislation, the national court is plainly are applied, it follows from the final entitled to apply that legislation in its sentence of Article 12(2) of the regulation entirety, including not only, as already that national rules against overlapping of mentioned, any provisions against the over benefits must be left out of account when lapping of benefits, but also provisions the person concerned receives benefits of concerning the classification of benefits the same kind in respect of invalidity, old obtained under foreign legislation or age or death (see Celestre, paragraph 12; conditions concerning the age at which Stefanutti, paragraph 12) Where benefits entitlement to a retirement pension arises are of the same kind, national rules against Since at this stage these issues are governed overlapping are excluded even where the by national law, no question of Community first subparagraph of Article 46(1) is law arises applied In Di Felice, which was decided after the present cases had been referred, the Court ruled at paragraph 16 that an early retirement pension to which entit lement arises under the legislation of one 11 Next it is necessary to consider the Member State, and an invalidity pension to application of Article 46 Where, as here, a which entitlement arises under the legis person's entitlement to benefit arises lation of another Member State, are to be without its being necessary to have recourse regarded as benefits of the same kind within to insurance periods completed in other the meaning of Article 12(2) of Regulation Member States, there are two main stages in No 1408/71 the application of Article 46 First, the national court must, in accordance with its own legislation, 'determine the amount of benefit corresponding to the total length of 14 It follows that in calculating the amount the periods of insurance or residence to be of benefit to which Mr Pian and taken into account in pursuance of such Mr Bianchin would be entitled under
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Article 46(1), first subparagraph, the the resulting amount must be reduced in national court must leave out of accordance with Article 46(3), which places consideration the rules against overlapping a ceiling on the amount of benefit which a contained in Article 25 of Royal Decree worker can acquire pursuant to Article 46, a No 50 of 24 October 1967 and Article ceiling which corresponds to the highest 64(1) of the Royal Decree of 21 December theoretical amount of benefits calculated 1967 The amount to be taken into according to Article 46(2)(a) Article 46(3) consideration under that provision is applies to the exclusion of national rules therefore the amount to which they would against overlapping (see judgment of 5 May be entitled under Belgian legislation if they 1983 in Case 238/81 Raad van Arbeid v were not in receipt of an Italian invalidity Van der Bunt-Craig [1983] ECR 1385, pension (judgment of 13 March 1986 in paragraph 15; Di Felice, paragraph 9) Case 296/84 Sinatra v FNROM [1986] ECR 1047; Celestre, paragraph 12) Since only Belgian legislation is taken into 16 Finally, the national court must consideration, and since the national rules compare the benefit which would be payable against overlapping are excluded, the under Belgian legislation in its entirety, further questions raised by the national including its rules against overlapping, with court, namely the applicable pension age that which would be payable under the and the classification of foreign benefits, do provisions of Article 46 If the latter is more not at this stage arise favourable to Mr Pian and Mr Bianchin, that is the benefit to which they are entitled Since the application of Belgian legislation 15 As already mentioned, the national in its entirety, including the rules against court must then proceed to apply Article overlapping, would result in their not being 46(2)(a) and (b) and to apply the higher of entitled to a Belgian early retirement the two amounts resulting from the pension, it is to be expected that the application of those provisions and the application of Article 46, which excludes the application of Anicie 46(1), first operation of those rules, will prove more subparagraph, respectively If appropriate, favourable to them
17 Accordingly, I would give the following answers to the questions referred by the national court:
'(1) Where a person is entitled to a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not prevent that legislation from being applied to him in its entirety, including any national rules against over lapping benefits and any national rules concerning the classification of benefits which he receives under the legislation of another Member State or concerning the age at which entitlement to the pension arises If, however, the application of that national legislation proves to be less favourable to him than application of the provisions laid down in Article 46 of Regulation No 1408/71, the provisions of that article must be applied In the latter
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circumstances, Article 46(3) is applicable to the exclusion of the rules against overlapping of benefits contained in the national legislation
(2) An early retirement pension to which a person is entitled under the legislation of one Member State, and an invalidity pension to which he is entitled under the legislation of another Member State, are to be regarded as benefits of the same kind within the meaning of Article 12(2) of Regulation No 1408/71 Consequently, for the purpose of determining the amount referred to in the first subparagraph of Article 46(1) of Regulation No 1408/71, the application of national rules against overlapping is precluded '
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