C-301/93

BETTACCINI v FNROM

OPINION OF ADVOCATE GENERAL JACOBS delivered on 14 April 1994 *

My Lords, outset the Belgian national rules against the overlapping of benefits were applied, with the result that the amount of the Belgian pension was reduced in order to take account of the Italian pension. The pension calculated on that basis was paid until December 1989.

1. In this case the Tribunal du Travail, Mons, seeks a preliminary ruling on the interpreta­ tion of Articles 46 and 51 of Council Regu­ lation (EEC) No 1408/71 (as codified by Council Regulation (EEC) No 2001/83 1) on 3. In June 1992 the Commission Adminis­ the application of social security schemes to trative de la Caisse de Prévoyance (hereafter employed persons, to self-employed persons 'the Administrative Commission'), was and to members of their families moving informed that from 1 January 1990 Mr Bet­ within the Community. taccini had been receiving, in addition to his Italian invalidity pension, a new Italian ben­ efit called the assegno per il nucleo familiare (family unit allowance) at the rate of LIT 90 000 per month.

retirement or invalidity pensions granted amount of the Italian invalidity pension under Belgian or foreign legislation so as to the part of the family unit allowance result in the payment of a total amount granted in Italy for a dependent spouse exceeding the annual amount of the pension. pursuant to Law No 153 of 13 The Administrative Commission decided May 1988? that Mr Bettaccini's invalidity pension must be reduced in order to take into account the family unit allowance that he had been receiving in Italy since 1 January 1990. It also decided that the reduction should be applied retroactively and demanded repay­ (2) Does the replacement of family allow­ ment of BFR 450 729 in respect of the period ances or additional family allowances by from 1 January 1990 to 31 October 1992. It the family unit allowance instituted by will be noted that the amount reclaimed by Law No 153 of 13 May 1988 permit, the Administrative Commission greatly pursuant to Article 51 of Regulation exceeded the amount actually received by Mr No 1408/71 a fresh, comparative calcu­ Bettaccini, in the period in question, by way lation to be made and the amounts of of family unit allowance. pensions to be updated on the basis of national law and European law, in particular Article 46 of Regulation No 1408/71?'

5. Mr Bettaccini contested the decision of the Administrative Commission before the Tribunal du Travail, Mons. He contended 7. I propose to deal with question (2) first. that the family unit allowance was a family The purpose of that question is to ascertain benefit which did not form part of the Italian whether, as a result of Mr Bettaccini's invalidity pension and that Article 51 of becoming entitled to the family unit allow­ Regulation No 1408/71 did not permit a ance from 1 January 1990, the Administra­ recalculation of his Belgian invalidity pen­ tive Commission was entitled, or indeed sion. required, by virtue of Article 51(2) of Regu­ lation No 1408/71, to recalculate Mr Bettac­ cini's Belgian invalidity pension in accor­ dance with Article 46 of that regulation. Article 51 of the regulation provides as fol­ lows: 6. The Tribunal du Travail has referred the following questions to the Court:

10. Article 51 is entitled 'revalorization and recalculation of benefits'. The object of the article, which has been interpreted in numer­ 2 ous judgments of the Court, is to determine the circumstances in which benefits calcu­ 8. It is clear from the wording of Arti­ lated in accordance with Chapter 3 must cle 51(2) that it would only be appropriate to be recalculated. The article distinguishes carry out a recalculation in accordance with between two situations. Paragraph (1) deals Article 46 if there had been an alteration in with the situation in which old-age or inval­ 'the method of determining or the rules for idity benefits are adjusted by a fixed percent­ calculating benefits'. It is necessary first of all age or amount in order to take account of a to determine what benefits are referred to change in the cost of living or changes in the here. Does Article 51(2) require a recalcula­ level of wages or salaries: when such an tion when there is an alteration in the adjustment (known as 'index-linking of ben­ method of determining, or in the rules for efits') occurs in one of the countries con­ calculating, any type of benefit received by cerned, the fixed percentage or amount is the person concerned? Or must the alter­ applied to the benefits payable in that coun­ ation affect benefits governed by Chapter 3 try and no recalculation in accordance with of Title III of Regulation No 1408/71 (the Article 46 is effected either in that country or chapter to which Article 51 belongs), the in any other country in which the person amount of which was originally fixed under concerned receives old-age or invalidity ben- Article 46 of the regulation? sfits. Paragraph (2) applies when there is a change in the method of determining the benefits in question or in the rules for calcu­ lating them, as opposed to a mere index- linked adjustment: when such a change

occurs a full recalculation must be carried 13. The Tribunal du Travail discusses the out in accordance with Article 46. According nature of the family unit allowance in rela­ to the Sinatra judgment, 3 paragraph (2) tion to its first preliminary question, rather applies, not just when benefits are altered as than in relation to the second question. It a result of an amendment to the relevant leg­ notes that under Belgian legislation 'the part islation, but also when benefits are adjusted of the family unit allowance granted in as a result of a change in the personal cir­ respect of the spouse cannot be treated as a cumstances of the person concerned. family allowance, but must instead be regarded as an integral part of the Italian invalidity pension. That characterization of the family unit allowance may have led the Tribunal du Travail to take the view that Article 51(2) may be applicable in the cir­ cumstances of the present case. Certainly, if 11. There is nothing in the wording of Arti­ the family unit allowance were to be cle 51 to suggest that it is concerned with regarded as an integral part of Mr Bettacci­ anything other than the recalculation of ben­ ni's invalidity pension, it would be logical to efits governed by the chapter in which it is treat the granting of that allowance as an located. In particular, there is nothing in the alteration in the rules governing the calcula­ wording of Article 51(2) to suggest that the tion of his invalidity pension. recalculation referred to there should be set in motion by anything other than a change in the method of determining, or the rules for calculating, the benefits governed by that chapter. If there is a change in the rules for calculating some other types of benefit, such as family benefits, that should not bring into play Article 51.

15. On this point the judgment of the Court (though no age limit is fixed for handicapped in INAMI v Viola, which is cited in the children). Where the family unit allowance is order for reference, is not in my view rele­ paid to a person receiving an invalidity pen­ vant. There the Court held that, in applying sion, the amount of the allowance is not national rules against the overlapping of ben­ dependent on the amount of the invalidity efits, it was for the national court to classify pension but is determined by the family's benefits granted in another Member State in income and by the number of persons who accordance with the applicable national legis­ constitute the family unit. The same amount lation 'taking account of the rules relating to would be paid to active workers, to unem­ the conflict of laws' and that the Community ployed persons and to persons entitled to an provisions were not relevant. It does not fol­ old-age pension, if their income and the low from that ruling that a benefit must be composition of their family unit were the classified solely in accordance with national same. law for the purpose of applying a provision of Community law, such as Article 51 of Regulation No 1408/71.

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OPINION OF MR JACOBS — CASE C-301/93

operation and does not require, or permit, It should be noted that that rule against the Administrative Commission to recalcu­ overlapping has now been repealed as a late Mr Bettaccini's invalidity pension in result of Council Regulation (EEC) accordance with Article 46 of the regulation. No 1248/92 of 30 April 1992, 6 which Question (2) must therefore be answered in entered into force, in accordance with Arti­ the negative. cle 4 thereof, on 1 June 1992. That regulation inserted into Regulation No 1408/71 Arti­ cles 46a, 46b and 46c, which contain new rules against overlapping. If a recalculation of Mr Bettaccini's pension were required by Article 51, the provisions of Article 46c would appear to be relevant, since they deal 18. If question (2) is answered in the manner with overlapping between, on the one hand, that I have proposed, question (1) will cease benefits in respect of invalidity, old age and to be relevant, since there will be no reason survivors and, on the other hand, benefits of to carry out any recalculation under Arti­ a different kind. However, the national court cle 46 of Regulation No 1408/71. I will has not referred any question about the merely observe that it follows from what I interpretation of Article 46c and it would have said in relation to question (2) that the not, in my view, be appropriate to examine family unit allowance cannot be included in the possible effects of that provision on any the Italian invalidity pension· for the purpose recalculation of Mr Bettaccini's invalidity of applying the rule against the overlapping pension, especially since no such recalcula­ of benefits formerly laid down in the second tion is necessary in view of my answer to paragraph of Article 46(3) of the regulation. question (2).