C-5/91

4. Mrs Di Prinzio, the plaintiff in the main 'However, the said number of additional proceedings, the widow of Mr Guerrino, years shall be reduced by the number of was notified on 2 March 1984 by the years for which the worker can claim a Belgian Office National des Pensions ('the retirement pension or benefit in lieu thereof O N P ' ) of decisions fixing her husband's under another Belgian scheme, with the exception of the scheme for self-employed * Original language: French. 1 — Regulation (EEC) No 1408/71 of the Council on the 2 — Moniteur Belge of 27 October 1967 — amended by the Law application of social security schemes to employed persons of 26 June 1972 (Moniteur Belge of 30 June 1972, p. 7738) and their families moving within the Community (OJ, and by the Law of 28 March 1975 (Moniteur Belge of English Special Edition 1971 (II), p. 416). 8 April 1975, p. 4108).

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9. Since the two years spent as a worker under the general scheme in Italy corre­ 13. The second and third questions may be sponded to one year under the Belgian considered and answered together. I mineworkers' scheme, 4 one additional propose that they be reformulated in the notional year was discounted and the following terms: what are the conditions for pension was calculated on the basis of an applying Article 46 — in particular insurance record of 29/30. paragraph 3 thereof — of Regulation No 1408/71 in circumstances where notional years are added to years of actual employment to create a full retirement 10. It is the use of that calculation method pension in one Member State and an inva­ to determine the length of the insurance lidity pension not converted into an old-age record by reference to which the retirement pension is payable in another Member and survivor's pension were fixed that is State? contested by the plaintiff in the main proceedings. She . contends that her husband's insurance record must be taken to 14. Consideration of the first be 30/30 without the deduction of a question — which is thus intended to notional year, even after the entry into force determine whether Article 46 is applicable of the Law of 10 February 1981. to the present case — must be preceded by the following statement: the effect of the 3 — Article 11 of lhe Law, Moniteur Belge of 14 February 1981, Belgian national anti-overlapping clause has p. 1699. been to create a situation in which a person 4 — Pursuant to Article 32 quinquies of the Royal Decree of 21 December 1967. who has worked in two Member States

21. How is the pro rata benefit provided for 17. Regulation No 1408/71, which was in Article 46(2) calculated? That provision adopted on the basis of Article 51 of the covers situations in which a person's entit- EEC Treaty, was designed precisely to lement to benefits arises only in respect of eliminate such obstacles. the periods of insurance completed in more than one Member State. It provides that the institution that awards the benefit in the 18. Article 46 of that regulation, which lays first State must first calculate the theoretical down the conditions for the award of amount of the benefit to which the person benefits where a worker has been subject to concerned could expect to receive if all the the legislation of two or more Member periods of insurance completed by him in States, takes account of the requirements of the different Member States had been Article 51 of the EEC Treaty by providing completed in the Member State in question, for the aggregation of the periods of and then the actual amount7 'on the basis of insurance completed in different Member the theoretical a m o u n t . . . in the ratio which States and for calculation of the benefit payable by each Member State pro rata 5 — First subparagraph of Article 46(1). temporis to the length of the period of 6 — Judgment in Case 296/84 Sinatra [1986] ECR 1047, paragraph 21. insurance completed in each State. 7 — Or pro rata amount.

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22. Having thus recalled the terms of Article 46, let us determine its scope: appearing as it does in Chapter 3 of Regu- 25. The Court held in the d'Amico™ and lation No 1408/71, which is entitled 'Old Celestre14 cases, relying in particular on Age and Death (Pensions)', does it apply to Articles 48 to 51 of the EEC Treaty, that the award of all benefits? Does it apply more particularly where a retirement pension overlaps with an invalidity pension, as in the present case? 'where a worker is in receipt of invalidity benefits converted into an old-age pension by virtue of the legislation of a Member State and of invalidity benefits not yet converted into an old-age pension under the 23. Where a person receives invalidity, legislation of another Member State, the old-age or death benefits of the same kind old-^age pension and the invalidity benefits (for example, two invalidity pensions) are to be regarded as being of the same awarded by the institutions of two or more kind, the provisions of Chapter 3 of Regu- Member States, the Court has upheld the lton No 1408/71 are applicable for the following principle: the worker is entitled, purpose of determining the rights of the in the Member State where the award is sought, to the higher of (a) the benefit to 11 — Which provides that provisions for the reduction of which he would be entitled under the legis- benefit do not apply where the person concerned receives benefits of the same kind. 12 — Judgments in Case 22/77 Mura I [1977] ECR 1709, Case 8 — Retirement or death. 236/78 Mura II [1979] ECR 1819, Case 37/77 Greco [1977] ECR 1711 and Case 98/77 Schaap [1978] ECR 9 — Article 46(2)(b). 707. 10 — Which imposes a ceiling on the amount which may be received by a worker under Article 46, namely the higher 13 — Case 4/80 [1980] ECR 2951. of the theoretical amounts calculated in accordance with H _ Joined Cases 116, 117, 119, 120 and 121/80 [1981] ECR Article 46(2)(a). • 1737.

30. As Mr Advocate General Caporioni stated in his Opinion in the Brouwer-Kaune 27. From this the Court inferred that a case : 2 0 worker in receipt of an early retirement pension in Belgium and an Italian invalidity pension not yet converted into a retirement pension (since the person concerned had not 'If the case concerns national rules against yet reached the retirement age laid down the overlapping of benefits which take into for such conversion) was the recipient of consideration the old-age pension drawn by two benefits of the same kind within the the insured person in another State, for the meaning of Article 12(2) of Regulation No purpose of reducing his invalidity pension, 1408/71 and the application of the national the different nature of the two concurrent anti-overlapping rules was precluded. 17 pensions must not be used to render inap- plicable those Community principles or rules which guarantee the worker's entitlement to benefits, acquired in the State in which the 28. The d'Amico 18 a n d Di Felice19 aforesaid rules against overlapping are in judgments thus show that the two types of force, at least within the limits of the appor- tionment provided for in Article 46.' 21 15 — D'Amico, above, paragraph 18, emphasis added. 16 — Case 128/88 [1989] ECR 923, paragraph 14. 17 — Ibid., paragraphs 13 and 16; see also the judgment in Case C-108/89 Pian [1990] ECR 1611. 18 — In which the factual circumstances were exactly the same 31. The fact that in the present case the as in the present case: the Belgian invalidity pension' granted to Mr d'Amico under the special scheme for Italian invalidity pension cannot be miners was converted into a retirement pension pursuant to Royal Decree No 50 of 24 October 1967. Mr d'Amico also received an Italian invalidity pension which could not 20 — Case 180/778 judgment at [1979] ECR 2111, Opinion at p. be converted into a retirement pension. 2123. 19 — Above. 21 — Ibid., at p. 2129.

38. The theoretical benefit is, it will be 34. It should be remembered that where a remembered, the one that the person worker is entitled to a pension without concerned might claim if all the periods of having to rely on the periods completed in insurance completed by him under the legis- other Member States, the application of lation of more than one Member State had Article 46 involves calculation first of the been completed within, and under the legis- independent benefit and then of the actual lation of, only one Member State. benefit under Article 46(2)(b), the higher being awarded to the person concerned.

39. Must the notional years be taken into account? Pursuant to Article 15(l)(e) of Regulation No 574/72, 'where it is not 35. The independent benefit is, as we have possible to determine accurately the period seen, fixed by application of the national of time in which certain periods of law alone, disregarding anti-overlapping insurance or residence were completed provisions. 23 — Case 58/84 ONPTS v Romano [1985] ECR 1679. 22 — For details of the calculation, see below, paragraph 36. 24 — Ibid., paragraph 15 and operative part; emphasis added.

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44. Is 'apportionment' appropriate where there has been no 'aggregation' of the 41. What about the years worked in periods of insurance? another Member State? Under Belgian law, the years during which the person concerned worked under the general scheme, in particular abroad, in addition to 45. The O N P maintains, in its written a complete insurance record as a miner, do observations, that since there was no not entail an increase in the pension 'aggregation' of all the periods of insurance calculated on the basis of a fraction of completed in all the Member States, 30/30. 'apportionment' is not appropriate. The theoretical benefit (equal to the full Belgian pension) is not therefore subject to the reduction resulting from the apportionment and from the application of Article 46(3). 42. Pursuant to Article 46(2)(c) of Regu- lation N o 1408/71, the addition of periods of insurance — needed to calculate the theoretical amount — is subject to the ceiling of the maximum period required for 46. In fact, the aggregation of the periods receipt of full benefit by the legislation of of insurance is limited by: the State where the institution responsible for payment is located. The theoretical pension will therefore be equal to the full pension in the first Member State, without (1) the correcting effect of Article 46(2)(c) account being taken of the years worked in (which, as we have seen, provides that, if the total length of the periods of 25 — Council Regulation No 574/72 laying down the procedure insurance is greater than the maximum for implementing Regulation No 1408/71 (OJ, English Special Edition 1972 (I), p. 159). period required by the legislation of one 26 — Celestre, above, paragraph 15. of those States for receipt of full

49. Whenever a worker is entitled to a full 54. In its judgment in d'Amico,31 the Court pension in a Member State, the aggregation stated more specifically that Chapter 3 of is reduced to the maximum period required Regulation No 1408/71—and therefore for that pension to be obtained, without its Article 46 in its entirety, including the being possible for the years worked abroad to be taken into account. 28 — Article 46(2)(c), emphasis added. 29 — Above. 27 — See the judgment in Case 323/86 Collini [1987] ECR 5489, 30 — Paragraph 30 and operative part. end of paragraph 10, which covers precisely such a case. 31 — Above.

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provision concerning apportionment — was 59. Where they come before the materiali- applicable to the case of a miner receiving a zation of the risk, as in the present case, full pension in Belgium and an unconverted they must be treated, in accordance with the Italian invalidity pension. letter of Article 46, as 'periods of insurance completed before the risk materialized'.

55. The Court also recognized in the 60. They will therefore be taken into important Collini judgment 3 2 that Article 46 account for the calculation both of the total applied in its entirety even where the aggre- length of the periods of insurance in the gation of periods of insurance is in fact different Member States and of the total limited to the maximum period required for length of the periods of insurance in the a full pension in the first Member State. first Member State.

61. It will be seen that a contrary course of action would have the effect of placing a 56. It is therefore clear — to reply to a migrant worker at a disadvantage by precise question from the national comparison with a national worker under court — that, where aggregation results in a conditions that were incompatible with period of the length required for a full Article 51 of the Treaty. pension in a Member State without its being necessary to take account of the periods of insurance completed in another Member State, apportionment is nevertheless 62. It is not therefore appropriate to deduct applicable. a number of notional years equal to the number of years worked in the second Member State when carrying out the following calculation:

65. An unjustified overlapping of benefits may occur where a worker is in receipt of 66. The effect of applying Article 46(3) is several independent benefits — which, ex therefore to bring about a reduction in a hypothesi, have not been apportioned or, benefit acquired under national law alone: therefore, made to reflect the length of the the independent benefit. period of insurance. A provision for reduction is contained in the second subparagraph of Article 46(3) for such cases. In Collini the Court laid down the conditions for the application of that article, 67. In circumstances such as those described where only one independent benefit — as in by the national court, if Belgian national this case — is to be paid: law is applied the full Belgian pension will be reduced by the effect of the national anti-overlapping provision and, if Community law is applied, the sum of the independent benefit and the Italian inva- 'The second subparagraph of Article 46(3) is lidity benefit will be reduced by the effect of thus intended to apportion the amount by the second subparagraph of Article 46(3), as which the ceiling referred to in the first interpreted by the Collini judgment. subparagraph is exceeded amongst the various institutions paying independent benefits. That apportionment entails the determination of reduction factors depending on the proportion which each 68. The application of the latter article may independent benefit bears to the total sum prove more favourable to the worker than of the independent benefits. the application of the national anti-over- lapping rules.

Member State, the application of the legis- would have to prevail in accordance with lation of that State alone would have been the Petroni principle.37 less favourable than that of the conditions laid down in Article 46 of Regulation No 1408/71. 71. Thus interpreted, Article 46 of Regu- lation No 1408/71 duly attains the objective set by Article 51 of the Treaty, provided that it can be applied only if it enables a 70. In the present case, if the national court migrant worker to be granted a benefit of finds that the sum of the Belgian inde- an amount at least as high as that due to him pendent benefit and the Italian invalidity under national legislation alone. pension (the ceiling for the total being the higher of the theoretical amounts, namely the full Belgian pension) is higher than the national pension, account being taken of the 73. As Mr Advocate General Jocobs national anti-overlapping rules, it must indicated in his Opinion in the Cabras apply Community law. case,38 Article 51 does not mean that 'a person who has worked in more than one Member State must be better off, in terms of social security, than a person who has spent his entire working life in one Member 71. On the other hand, if it were to find State. That view is surely mistaken: Article that the Community benefit were of a lesser 51 merely requires that the former should amount than the national benefit, the latter not be worse off than the latter'.

74. I therefore propose that the Court reply as follows to the questions submitted:

(1) Where a worker is entitled to an old-age pension under the legislation of a Member State and an invalidity pension which has not been converted under the legislation of another Member State, the award of those pensions is a matter within the purview of Article 46 of Regulation No 1408/71. For the application of that article, the fact that the person has not reached the retirement age prescribed for the award of the benefits in the second Member State is immaterial.

(d) Where the aggregate period is equal to the maximum number of years' insurance required for entitlement to the full pension in the first Member State without the addition of other periods of insurance completed in other Member States, apportionment is nevertheless applicable.

(e) Where only one institution provides an independent benefit within the meaning of Article 46(1) of Regulation No 1408/71, only that institution must reduce its benefit under the second subparagraph of Article 46(3); it must effect that reduction by deducting from the independent benefit the amount by which the sum of the benefits calculated in accordance with Article 46(1) and (2) exceeds the ceiling referred to in the first subparagraph of Article 46(1).

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