C-93/90
ECLI:EU:C:1991:20
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CASSAMALI
O P I N I O N O F M R A D V O C A T E G E N E R A L JACOBS delivered on 16 January 1991 *
My Lords, or foreign legislation, beyond a certain limit. That limit was exceeded by the five pensions to which Mrs Cassamali was entitled, and so her survivor's pension was reduced by the amount of the excess. It should be noted that recourse to the Belgian rule against the 1. In this case the Court is asked by the overlapping of benefits was permissible by Tribunal du Travail, Brussels, to give a virtue of Article 12(2) of Regulation preliminary ruling on the interpretation of No 1408/71. Article 51 of Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (a consolidated version of which is contained in Annex 1 to Council Regulation (EEC) No 2001/83, Official Journal 1983 4. On 3 December 1980 the Italian social L 230, p. 6). security institution sent the competent Belgian institution (the predecessor to the Office National des Pensions) information about the subsequent adjustments made to the Italian old-age pension. That pension had increased considerably: on 1 October 2. Mrs Cassamali is an Italian national who 1976 it stood at LIT 57 000 a month, worked both in Italy and in Belgium, as did whereas by 1 July 1980 it had risen to LIT her late husband. Since 1 December 1970 240 600 a month. Surprising though it may she has received an Italian survivor's seem, that increase was due solely to pension. Since 1 October 1976 she has, in indexation, as was confirmed by the Italian addition, been entitled to an Italian old-age institution in response to a question put to it pension, two Belgian retirement pensions by the Belgian institution. (one for an employed person and one for a self-employed person) and a Belgian survivor's pension.
5. The Belgian institution thereupon reduced the Belgian survivor's pension so as 3. For the calculation of the Belgian to ensure that the upper limit prescribed by survivor's pension, account was taken of a the aforesaid Belgian rule against over- Belgian provision against the overlapping of lapping was not exceeded. Mrs Cassamali benefits, according to which a survivor's challenged that decision on the ground that pension cannot be combined with one or it was contrary to Article 51 of Regulation more retirement pensions or any other No 1408/71. Article 51, it will be recalled, benefit 'en tenant lieu' paid under Belgian provides as follows:
* Original language: English
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OPINION OF MR JACOBS — CASE C-93/90
'1. If, by reason of an increase in the cost Pensions, in which the Court gave judgment of living or changes in the level of wages on 21 March 1990. There the Court ruled or salaries or other reasons for that Article 51 of Regulation No 1408/71 adjustment, the benefits of the States must be interpreted as meaning that, where concerned are altered by a fixed by virtue of national rules against the over- percentage or amount, such percentage lapping of benefits a pension is fixed at such or amount must be applied directly to an amount that, when added to a benefit of the benefits determined under the a different kind paid by another Member provisions of Article 46, without the State, it does not exceed a certain limit, the need for a recalculation in accordance pension must not be recalculated, so as to with the provisions of that Article. avoid exceeding that limit, in the event of subsequent alterations to the other benefit that take place as a result of the general evolution of the economic and social 2. On the other hand, if the method of situation. determining or the rules for calculating benefits should be altered, a recalcu- lation shall be carried out in accordance with the provisions of Article 46.'
8. In the Ravida case, as in the present case, the person concerned was in receipt of 6. According to the observations of the retirement pensions and survivor's pensions Office National des Pensions (hereafter 'the both in Italy and in Belgium. Her Belgian Office National'), Mrs Cassamali's action survivor's pension was calculated having was brought before the Tribunal du Travail, regard to the same rule against the over- Brussels, on 19 March 1981. By judgment of lapping of benefits. In her case too the 19 March 1990 the Tribunal du Travail, Italian retirement pension was increased as a Brussels, referred the following questions to result of indexation and her Belgian the Court: survivor's pension was reduced by a corre- sponding amount. There is, so far as I can discern, no material difference between that case and the present case. Moreover, the Ravida judgment was no more than an 'Does Article 51 of Regulation No 1408/71 application of the Court's previous case-law, enable a Belgian pension to be recalculated in particular the judgments in Case 7/81 as a result of an increase in an Italian Sinatra v FNROM [1982] ECR 137 and pension which is due solely to cost of living Case 104/83 Cinciuolo v Union Nationale increases? des Federations Mutualistes Neutres [1984] ECR 1285.
If not, does any other provision of Community law authorize such a recalcu- lation?' 9. The Office National develops in considerable detail an argument that it adumbrated at the oral hearing in Ravida. 7. The facts of the present case are That argument would, if now accepted by remarkably similar to those of Case the Court, lead the Court to reverse its C-85/89 Ravida v Office National des decision in Ravida. The argument is as
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follows. What is prohibited by Article 51(1) objection, namely that it does not take of Regulation No 1408/71, in the event of account of the terms of Article 51(1) or of an index-linked adjustment in the level of the structure of the article as a whole. benefit, is a recalculation in accordance with Article 51(1) clearly prescribes that where a Article 46 of the regulation. But the Office benefit is altered by a fixed percentage or National did not carry out such a recalcu- amount, that percentage or amount must be lation; it simply continued to deduct from applied directly to the amount of the the Belgian survivor's pension whatever sum benefits in question as determined by the it was necessary to deduct in order to bring initial calculation made under Article 46. Mrs Cassamali's total benefits within the maximum limit fixed by the Belgian rule against overlapping.
When the Italian pension rose, the amount of the deduction rose accordingly. It adds that Article 51, far from prohibiting any new calculation, merely permits it to refrain from carrying out the new calculation referred to in Article 46. 12. The scheme of Article 51 of Regulation No 1408/71 is to distinguish between two situations: (i) index-linked adjustments and (ii) adjustments due to a change in the method of calculation. In the latter situation a complete recalculation takes place.
In the 10. The answer to the last point is, in my former situation a fixed percentage or view, that Article 51 cannot be interpreted amount is added to the benefits hitherto as merely permitting the social security payable and, apart from that adjustment, no institutions of the Member States either to recalculation takes place. Article 51 does not carry out a new calculation or to refrain envisage a third possibility whereby an from doing so. That would be contrary both index-linked increase in one Member State to legal certainty and to the requirement may be taken into account in another that the legislation should be uniformly Member State for the purposes of a national interpreted by the social security institutions rule against the overlapping of benefits. of all the Member States. In any event, it is Article 51(1) lays down the principle of the clear in my view, for the reasons given autonomous development of social security below, both from the terms of Article 51(1) benefits. Once benefits have been calculated and from the structure of the article as a in accordance with Article 46, they develop whole that Article 51(1) precludes a recalcu- autonomously in each of the Member States lation in the circumstances referred to in concerned; an adjustment in one Member that provision. State does not affect the benefit paid in the
other. Article 51(2) lays down an exception to the principle where there are changes in the method of calculating benefit. That exception is necessary because the effect of such changes might be to put the person 11. The Office National is on stronger concerned in a position where a different ground in contending that what is precluded formula would be more favourable to him. by Article 51(1) is a recalculation in In this regard, it must be remembered that accordance with the provisions of Article 46, Article 46 has consistently been interpreted while no such recalculation was called for, by the Court as entitling the individual to or was made, in the present case. None the the application of either the whole of less that argument also is open to the same national legislation or the whole of
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OPINION OF MR JACOBS — CASE C-93/90
Community legislation, including their adopted in Ravida is unlikely to lead to respective rules against overlapping, anomalous results. whichever is more favourable (see, for example, Case 22/77 FNROM v Mura [1977] ECR 1699). It is unlikely that the circumstances referred to in Article 51(1), i.e. an adjustment of benefits due to an increase in the cost of living or in the level of wages or salaries, would affect the outcome of the comparison between the two alternatives.
14. The question of currency fluctuations is also indirectly relevant for another reason. Although the present case is concerned with increases in the Italian benefit due to cost- of-living adjustments, exactly the same problems would arise if the value of the Italian benefit, expressed in Belgian currency, rose as a result of monetary devel- opments. A 10% increase in the value of the lira, as against the Belgian franc, has the 13. The present case is anomalous because same effect as a 10% increase in the Italian an exceptionally large increase in benefits pension, at least as regards the value of the followed from indexation alone. It appears Italian pension in Belgium. It would be from the Cabras case (Case 199/88, logical therefore for the Belgian institution judgment of 21 March 1990) that that to apply the same rule whenever the value exceptionally large increase was due to an of the Italian pension changes, irrespective error in the interpretation of the Italian of whether the change is due to an index- provisions on indexation. Normally the linked adjustment or to monetary devel- interpretation which the Court adopted in opments. In this regard, Decision No 99 of Ravida is unlikely to have such far-reaching 13 March 1975 of the Administrative financial consequences as in the present Commission on Social Security for Migrant case. Where social security benefits, and any Workers (Official Journal 1975 C 150, ceiling imposed under rules against over- p. 2) is of interest. That decision deals with lapping, are increased to take account of the interpretation of Article 107 of Regu- increases in prices or wages, differences lation No 574/72, which prescribes a between Member States in the rate of quarterly reference period for determining increase will be due largely to differences in the rate of conversion into one national the rate of inflation. Even if the latter currency of amounts shown in another differences do not diminish with increasing national currency, inter alia for the purpose economic convergence between the Member of implementing Article 12(2) of Regulation States they are likely to be largely offset by No 1408/71. The decision interprets Article currency fluctuations. Thus if inflation in 107 as determining the rate of conversion Italy is higher than in Belgium, Italian applicable when benefits are fixed or when pensions may increase more than Belgian they are recalculated in accordance with pensions but the gain is likely to be offset by Article 51(2) of Regulation N o 1408/71. It the depreciation of the lira. In normal goes on to state that, on the other hand, circumstances, therefore, the interpretation Article 107 'involves no obligation to recal-
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culate current benefits (especially pensions) the Belgian institution should not take such every three months by applying the rate of an increase into account except in the conversion specified in Article 107'. Thus circumstances referred to in Article 51(2) of the decision makes it clear that, if the value Regulation No 1408/71 (i.e. when the of Mrs Cassamali's Italian pensions were to method of determining or the rules for increase as a result of currency appreciation, calculating benefits is altered).
15. For all of the above reasons, I am of the opinion that the Court should confirm the ruling given in the Ravida judgment, and I would answer the questions referred by the Tribunal du Travail, Brussels, as follows:
(1) Article 51 of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons, and to members of their families moving within the Community is to be interpreted as meaning that where, under national rules against the over- lapping of benefits, the pension paid to a worker by a Member State has been calculated at an amount such that, when added to the amount of a benefit paid by another Member State, it does not exceed a certain ceiling, the pension is not to be recalculated in o r d e r to prevent that ceiling from being exceeded, if subsequent adjustments are m a d e to the other benefit on account of the general evolution in the e c o n o m i c and social situation.
(2) N o other provision of C o m m u n i t y law permits such a recalculation to be made in the said circumstances.
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