C-275/91

My Lords, with the aggregation and apportionment sys­ tem, that is to say, the defendants' interpre­ tation of Articles 241(1) of the Royal Decree 1. This case concerns the problem of the of 4 November 1963, adopted pursuant to overlapping of social security benefits the Law of 9 August 1963 introducing and awarded under the legislations of two differ­ organizing a system of compulsory sickness ent Member States. The question it raises is and invalidity insurance, and the new first whether a Member State is entitled to reduce subparagraph of Article 76 quater (2) of that the amount of invalidity benefit awarded law.' under its own legislation, in order to take into account invalidity benefit to which the claimant would have been entitled under the legislation of another Member State, but which he has renounced in order to receive The reference is made in the course of an an old-age pension from the latter. appeal by Mr Iacobelli ('the applicant') against a decision to discontinue his invalid­ ity benefit, as from 1 October 1983, which was taken by the Institut National 2. The case arises by way of a reference for a d'Assurance Maladie-Invalidité ('INAMI'). preliminary ruling made by the Tribunal du INAMI is the first defendant in the main Travail, Brussels, which asks the Court: proceedings, and has submitted written observations to the Court as well as being represented at the hearing. The second 'whether Article 36(4) of Regulation (EEC) defendant, the Union Nationale des Fédéra­ No 574/72 and the second subparagraph of tions Mutualistes Neutres, has taken no part Article 46(1) in fine of Regulation (EEC) No in the proceedings before the Court. 1408/71 which Regulation No 574/72 imple­ ments prevent an institution of a Member State to which an institution of another Member State has referred a claim for inval­ idity pension on the basis of Article 40 of Regulation (EEC) No 1408/71 from award­ The background to the case ing a migrant worker an old-age pension instead of an invalidity pension where it appears that the old-age pension to which there is entitlement by virtue of the national 3. The applicant was born on 8 November legislation alone is more beneficial than the 1920, and worked in Italy until 1964. From invalidity pension calculated in accordance 13 August 1964, he was employed in Bel­ gium. On 27 December 1976 he suffered an accident at work, for which he was awarded * Original language: English. compensation, and as a result of which he

4. It appears that, as a result of an amend­ ment made in July 1984, the applicable Ital­ ian legislation now makes provision for the conversion of invalidity benefit into old-age The applicable provisions of Community benefit. Prior to that date, however, the only law option open to a claimant who wished to receive the latter benefit, when he reached the appropriate age, was to renounce any claim to invalidity benefit. The result of such a renunciation in the present case was that the applicant was unable to receive either kind of benefit under Italian law in respect 6. The relevant provisions of Community of the period 1 January 1979 to 30 Novem­ legislation are to be found in Council Regu­ ber 1980. However, the more advantageous lation No 1408/71, as amended, on the appli­ terms of the old-age benefit to which the cation of social security schemes to applicant then became entitled made it worth employed persons, to self-employed persons his while retrospectively to forgo invalidity and to members of their families moving benefit for that period. within the Community, and Council Regu­ lation No 574/72, as amended, laying down the procedure for implementing Regulation No 1408/71. Texts of the two regulations are contained in Annex I and Annex II respec­ 5. By a letter to INAMI dated 4 June 1985, tively of Council Regulation No 2001/83 of the applicant requested application to him of 2 June 1983 amending and updating Regula­ Article 235 bis of the Royal Decree of tions No 1408/71 and No 574/72 (OJ 4 November 1963, which permits the cumu­ 1983 L 230, p. 8). I shall refer to those two lation, up to a certain limit, of invalidity ben­ regulations as 'the regulation' and 'the imple­ efit and old-age benefit. INAMI refused Mr menting regulation' respectively, a terminol­ Iacobelli's request, on the ground that he had ogy which is followed in the regulations only obtained the Italian old-age benefit by themselves. Subsequent amendments to the renouncing invalidity benefit. In the view of regulations, and in particular the substantial INAMI, the applicable Belgian legislation, amendments made by Council Regulation

7. Chapter 2 (Articles 37 to 43) of Title III of the regulation contains special provisions relating to invalidity benefits. Article 40(1) 2. Any institution of a Member State which provides as follows: is responsible for providing invalidity bene­ fits shall, where a person receiving invalidity benefits can, by virtue of the provisions of Article 49 [which applies where the person concerned does not simultaneously satisfy 'An employed or self-employed person who the conditions laid down by all the legisla­ has been successively or alternately subject tions to which he has been subject], establish to the legislations of two or more Member a claim to old-age benefits under the legisla­ States, of which at least one is not of the type tion of other Member States, continue to referred to in Article 37(1) [i. e. legislations provide such person with the invalidity ben­ according to which the amount of invalidity efits to which he is entitled under the legis­ benefits is independent of the duration of lation which it administers until the provi­ insurance periods], shall receive benefits sions of paragraph 1 become applicable as under the provisions of Chapter 3, which regards that institution. shall apply by analogy ...'.

...`

It is common ground that Article 40(1) applies in the circumstances of the present case, Belgian, but not Italian, invalidity ben­ efit being independent of the duration of 9. As we have seen, in the present case, insurance periods. It follows therefore that Chapter 3 (Articles 44 to 51) of Title III of the rules for the calculation of the applicant's the regulation, entitled 'Old age and death

'The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits 11. Article 49 of the regulation applies conditional upon the completion of periods where the claimant satisfies the conditions of of insurance or residence shall take into some, but not all, of the legislations to which account, to the extent necessary, periods of he has been subject. Article 49(1) provides insurance or residence completed under the that:

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OPINION OF MR JACOBS — CASE C-275/91

t Member State. However, this provision shall not apply when the person concerned receives benefits of the same kind in respect of invalidity, old age, death (pensions) or (a) each of the competent institutions admin­ occupational disease which are awarded by istering a legislation whose conditions are the institutions of two or more Member satisfied shall calculate the amount of the States in accordance with the provisions of benefit due, in accordance with the provi­ Articles 46, 50 and 51 or Article 60(l)(b).' sions of Article 46;

'The provisions of the legislation of a Mem­ ber State for reduction, suspension or with­ drawal of benefit in cases of overlapping 'where a worker receives a pension pursuant with other social security benefits or other to national legislation alone, the provisions income may be invoked even though the of Regulation No 1408/71 do not prevent right to such benefits was acquired under the that national legislation from being applied legislation of another Member State or such to him in its entirety, including any national income arises in the territory of another rules against overlapping benefits.

I-536

IACOBELLI v INAMI

13. Chapter 3 (Articles 35 to 59) of Title IV of the implementing regulation is entitled 'Invalidity, old age and death (pensions)'. 14. The investigation of claims for benefits According to Article 36(1): in the cases covered by Article 36 of the implementing regulation is dealt with in Articles 41 to 50. By Article 43(1), the inves­ tigating institution (in the present case, INAMI) enters on the appropriate form the 'In order to receive benefits under Articles periods of insurance or residence completed 40 to 51 of the Regulation ... the person con­ under the legislation which it administers, cerned shall submit a claim to the institution and forwards a copy of the form to the com­ of the place of residence in accordance with petent institutions of other Member States the procedure provided for by the legislation with which the claimant has been insured. administered by that institution ...'. By Article 43(2):

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OPINION OF MR JACOBS — CASE C-275/91

16. If Mr Iacobelli were entitled only to invalidity benefits, the application of the rel­ 'In the case provided for in Article 37(d) of evant Community provisions would present the implementing Regulation, the institu­ no particular difficulties. The submission of tions of the Member States to whose legisla­ his claim to the Belgian institution under tion the claimant has been subject but to Article 36(1) of the implementing regulation which he has applied for the postponement would entail a concurrent award of Italian of the award of the benefits shall enter on invalidity benefit, pursuant to Article 36(4). the form ... only the periods of insurance or The competent institutions would be residence completed by the claimant under required to perform the calculations pro­ the legislation which they administer.' vided for in Article 46 of the regulation, and INAMI would be permitted to apply Belgian rules against the overlapping of benefits only if the result of applying Belgian legislation alone, including those rules, was at least as Consideration of the question referred favourable to the applicant as an award of benefits under Article 46. In order to deter­ mine the final amount of benefits, the pre­ 15. It is to be noted that the problem of scribed form is forwarded by INAMI to the determining the applicant's entitlement to competent Italian institution, pursuant to

I-538 lACOBELLI v INAMI

Article 43(1) of the implementing regulation, of another Member State, pursuant to Arti­ and returned to INAMI when the Italian cles 36 and 43 of the implementing regu­ institution has entered details of the periods lation, is required to take into account, in of insurance or residence completed, and of determining the amount of benefit to be the amounts of benefit calculated in accord­ awarded, an old-age pension awarded by the ance with Article 46(2) of the regulation. latter institution, rather than an invalidity pension which might have been awarded in its place, but which the claimant has renounced pursuant to the legislation of the latter Member State.

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OPINION OF MR JACOBS — CASE C-275/91

44(2) was inserted by Council Regulation ment in 1977. It appears that the purpose of No 2595/77 of 21 November 1977 (OJ the original provision, reaffirmed by the 1977 L 302, p. 1). In the original version of amendment, was to make it clear that a Regulation No 1408/71 (see OJ, English Spe­ claimant is not obliged to draw immediately cial Edition 1971 (II), p. 416), that sentence an old-age pension to which he has become read as follows: entitled, if he can obtain increased pension rights by continuing to work and thereby accumulating further insurance periods. That principle had in fact already been established by the case-law of the Court in judgments interpreting Regulations No 3 and No 4 of 'Exception shall be made to this rule [con­ the Council, which did not make any express cerning the award of benefit] if the person provision for the postponement of pension concerned expressly asks for postponement rights: see Case 9/67 Colditz v Assurance of the award of old-age benefits to which he Vieillesse Paris [1967] ECR 229 and Case would be entitled under the legislation of 11/67 ONPO v Couture [1967] ECR 379. It one or more Member States, provided that seems that the provision for the postpone­ the periods completed under that legislation ment of benefits contained in Article 44(2) or those legislations are not taken into was included in Regulation No 1408/71 in account for the purpose of acquiring the order to give effect to those judgments. right to benefit in another Member State.'

The first recital to Regulation No 2595/77 explains the purpose of the amend­ ment as follows:

23. Thus, the question of what benefits are available under the legislation of a particular Member State is, in principle, a matter for 22. However, in my view it is clear, equally, national law alone. Accordingly, where that no such extension is necessary in the national legislation requires a claimant to present case; for Article 36(4) of the imple­ make a choice between two alternative bene­ menting regulation cannot have the effect of fits, the benefit to be taken into account, preventing the applicant from renouncing his pursuant to the first sentence of Article 44(2) Italian invalidity benefit. Here the same of the regulation, and for the purposes of the reasoning applies as that which guided the calculations to be performed under Article Court in its interpretation of the provisions 46, is simply the benefit which the claimant for the award of benefits contained in Regu­ elects to receive. It follows that, where a lations No 3 and No 4 of the Council: see claimant applying for invalidity benefit in the Colditz and Couture cases, cited in para­ one Member State is able, under the legisla­ graph 20 above. Thus, the requirement in tion of another Member State, to elect to Article 36(4) that a claim for benefits 'shall receive old-age benefit under that legislation automatically involve the concurrent award in place of invalidity benefit, he must be of benefits under the legislation of all the treated as a person who can establish a claim Member States ... whose conditions the to old-age benefit under the legislation of the claimant satisfies' is a procedural provision latter Member State, and not as someone in which could not impose a requirement to receipt of invalidity benefit there. award benefit additional to any laid down in Article 44(2) of the regulation, which Article 36(4) implements: compare Couture, at p. 389 of the judgment, and see the Opinion of Advocate General Roemer in the Colditz case, at p. 239. As far as the regulation itself is concerned, Article 44(2) stipulates only that the award of benefit must 'be made hav­ 24. In such circumstances, the provision of ing regard to all the legislations to which the the regulation which is most in point would employed or self-employed person has been seem to be Article 43(2), which was cited subject'. It does not seem to me that that above in paragraph 8. According to that

25. It is true that, as the Court pointed out in the Brouwer-Kaune case, at paragraph 3 of the judgment, Article 43(2) of the regulation 'The protection of the rights which the per­ presupposes a situation in which invalidity son concerned possesses by virtue of benefits are acquired in two Member States, national legislation alone, without having and subsequently converted into old-age recourse to the system of aggregation and benefit in one of the Member States, in apportionment [laid down by Article 46 of accordance with Article 43(1). Article 43(2) the regulation], and respect for any advan­ is not therefore primarily intended to apply tages resulting from that system, are manda­ to a situation in which a claimant is required tory principles applying equally in all situa­ to make a choice between the two kinds of tions.' benefit, rather than being permitted to con­ vert one into the other. It is equally clear, however, that Article 43(2) is not to be inter­ preted restrictively. Thus, in the D'Amico case, the Court adopted an extensive inter­ 26. In Brouwer-Kaune, Article 43 was held pretation of Article 43(2), holding, in para­ to be inapplicable because the claimant graph 15 of the judgment, that: became entitled to invalidity benefit in the first Member State after the date on which the invalidity benefit awarded by the second Member State was converted into an old-age pension. In contrast, in the present case the 'Although that provision only expressly applicant established his claim to Italian old- refers to the obligation of an institution, age benefit after he became entitled to

28. It remains to consider the position which obtains during the brief period in which the applicant was not yet receiving Italian old- age benefit, but was entitled to (without receiving) the Italian invalidity benefit which he later renounced. As we have already seen, the applicant must, from the end of that period, be treated as someone entitled to Italian old-age benefit, and cannot be regarded as any longer entitled to the Italian 27. It seems to me, in fact, that it is Article invalidity benefit which he has renounced. It 43(2) which must be taken to apply in the seems to me, however, that it would be present case. It is clear that a claimant should inconsistent with that analysis to treat the not be disadvantaged by the fact that applicant any differently in respect of the national legislation has required him to make earlier period. Thus, in the light of his a choice between receiving invalidity benefit renunciation of invalidity benefit, the appli­ or old-age benefit, rather than allowing him cant must be treated throughout as someone to convert one into the other: it would defeat who does not satisfy the conditions for the the clear purpose of Article 43 for a claimant award of invalidity benefit in Italy. By Arti­ to be penalized in such circumstances. As I cle 49(1 )(a) and (b)(ii) of the regulation, have already mentioned, it appears that the therefore, the Belgian institution must calcu­ failure of the Italian legislation to provide for late the amount of benefit due under the such a conversion has subsequently been provisions of Belgian law alone, in accord­ remedied by an amendment of the relevant ance with Article 46(1). It follows that the provisions in July 1984. It does not seem to Belgian institution is not permitted to apply me that the applicant's position should be national rules against the overlapping of ben­ affected by the fact that the relevant legisla­ efits, which in this case would be bound to tion did not yet make such provision when lead to a result less favourable to the appli­ he established his claim to an Italian old-age cant.

Council Regulation No 1408/71 must be interpreted as meaning that, where a worker is required under the legislation of one Member State to renounce a claim to invalidity benefit in order to establish a claim to old-age benefit, an institution of a second Member State which is responsible for awarding invalidity benefit under Article 40(1) of the regulation is prevented from taking into account, for the pur­ poses of that award, the invalidity benefit which has been so renounced, and must take into account instead the award of old-age benefit. Where such a claim to old- age benefit has been established in the first Member State, the provisions of Chapter 3 of Title III of the regulation are applicable for the purpose of determining the amounts of old-age and invalidity benefits to be awarded in the two Member States; and, by virtue of Article 12(2) of the regulation, the application of national rules against overlapping is precluded unless the result of applying the national legisla­ tion, including those rules, proves more favourable than the application of the scheme laid down by Article 46.

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