C-144/96

1. In the present case the Cour du Travail reduce the amount of the Belgian pension (Higher Labour Court), Brussels, has received by Mrs Cirotti by the amount of referred to the Court a question concerning that increase. the interpretation of Articles 46 and 51 of Council Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (hereinafter 'the Regulation'). ' The national court is essen- tially asking whether it is consistent with 3. Article 46 lays down rules on the award those provisions for a separated spouse's of old-age and death (pensions) benefits for share of her husband's old-age pension to be workers who have been subject to the legis- recalculated on the ground that an index- lation of two or more Member States. In linked invalidity benefit to which she is brief, the rules confer on a worker who has entitled under the legislation of another completed insurance periods in more than Member State has been increased. one Member State the right to old-age ben- efits determined in accordance with a calcu- lation which I have explained in some detail in my Opinion in Cabras 2 if the benefits so calculated are higher than those which the worker would otherwise receive from the Member States concerned. 2. That issue arises because Mrs Cirotti, who is Italian, was in receipt of both half her hus- band's Belgian old-age pension and an Italian invalidity benefit. When the Belgian pensions office first assessed Mrs Cirotti's entitlement to the Belgian pension, they reduced the amount to which she was prima facie entided by the amount of the Italian benefit. Since 4. The right thus conferred on the migrant then, the amount of the Italian benefit, worker to benefit from the most favourable which is index-linked, has increased. The system implies in principle that, whenever Belgian pensions office is seeking further to there is an alteration in the benefits granted under that system, a fresh calculation is to be carried out in accordance with Article 46 in * Original language: English. 1 — See for the consolidated version applicable at the material time Annex I of Council Regulation (EEC) N o 2001/83, OJ 1983 L 230, p. 6. The Regulation, and in particular Article 2 — Case C-199/88 [1990] ECR 1-1023, paragraphs 10 to 15 of 46, was amended by inter aUa Council Regulation (EEC) N o the Opinion. See also the Opinion of Advocate General Dar- 1248/92 of 30 April 1992, OJ 1992 L 136, p. 7. The latest mon in Case C-5/91 Di Prinzio [1992] ECR 1-897, para- consolidated version is published as Part I of Annex A to graphs 16 to 21, and, for a worked example, the Opinion of Council Regulation (EEC) N o 118/97 of 2 December 1996, Advocate General Da Cruz Vilaça in Case 323/86 CoUini v OJ 1997 L 28, p. 1. ONPTS [1987] ECR 5489, paragraphs 20 to 31.

'The scheme of Article 51 of Regulation N o 1408/71 is to distinguish between two situations: (i) index-linked adjustments and 2. O n the other hand, if the method of (ii) adjustments due to a change in the determining or the rules for calculating ben- method of calculation. In the latter situation efits should be altered, a recalculation shall a complete recalculation takes place. In the be carried out in accordance with the provi- former situation a fixed percentage or sions of Article 46'. amount is added to the benefits hitherto pay- able and, apart from that adjustment, no recalculation takes place. Article 51 does not envisage a third possibility whereby an index-linked increase in one Member State may be taken into account in another Mem- 6. Thus in order to reduce the administrative burden which a fresh examination of the worker's situation following every alteration of benefits would represent, Article 51(1) 4 — Case C-93/90 Cassamdi [1991] ECR 1-1401, paragraphs 15 to 16 of the judgment. Sec also Sinatra, cited in note 3, Case excludes a recalculation of benefits in 104/83 CinciuoÌo v Union Nationale des Fédérations Mutualistes Neutres [1984] ECR 1285, Case 141/88 Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés v Jordan [1989] ECR 2387, Case C-85/89 Ravida [1990] ECR 1-1063 and Case C-193/92 Bogana v Union Nationale des Mutualités Socialistes [1993] ECR 1-755. 3 — Case 7/81 Sinatra v FNROM [1982] ECR 137, paragraph 8 of the judgment 5 — Cited in note 4, paragraph 12.

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11. When Mrs Cirotti claimed part of that pension paragraphs (2)(d) and (3)(B) of 8. Although Article 51(1) is not couched in Article 74 of the Royal Decree were applied terms of an express prohibition ('without the by the Office national des pensions (National need for a recalculation ...'), the Court has Pensions Office, hereinafter ' O N P ' ) . The interpreted it as a prohibition. 6 effect of those provisions was to grant Mrs Cirotti payment of half of her husband's pension (at the rate for married men; amounting to BF 11 243 per month), less the 6 — See for example Cosiamoli, cited in note 4, paragraph 17 of amount she herself received by way of inval- the judgment, and my comments in my Opinion in that case, paragraphs 9 and 10. idity pension in Italy (amounting to the

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equivalent of BF 7 368), resulting in net Article 3(1) of the regulation provides for monthly benefits of BF 3 875. She also equal treatment of all nationals of the Mem- received a heating allowance of BF 586. ber States?' Mrs Cirotti accepted that calculation.

12. However, by a decision of 21 December 14. Although that question refers generally 1988 the O N P reduced the amount of to Articles 46 and 51 of the Regulation, it is Mrs Cirotti's benefits, taking into account apparent from the facts of the case and the the increases since 1981 in her Italian invalid- arguments of the parties that the referring ity pension. Those increases are apparendy court seeks a reply to the question whether index-linked. Mrs Cirotti brought an action Article 51(1) precludes or Article 51(2) against that decision before the Tribunal du requires recalculation of the benefits to Travail (Labour Court), Brussels. In a judg- which Mrs Cirotti is entitled. ment of 7 June 1993 the Tribunal du Travail ruled in favour of Mrs Cirotti, on the grounds that Article 51(1) of the Regulation did not permit a recalculation of benefits.

17. It is also clear from the case-law of the Court that it is irrelevant whether the benefit which is sought to be reduced by reason of index-linked increases in another benefit was itself calculated under the national rules alone or under Article 46. Either way, the 20. Levatino concerned the rights of former benefit must not be affected by those Mr Levatino's mother, Mrs Milazzo, who increases. 9 had been resident in Belgium and who had received Italian and Belgian retirement pen- sions. In addition she had received a benefit under the guaranteed income scheme equal to the difference between the minimum resources guaranteed by Belgian law and her retirement pensions. Following an increase in 18. Since, therefore, for the reasons given Mrs Milazzo's Italian pension as a result of above the benefits in question clearly fall indexation, the O N P decided to recalculate within Article 51, since the increase in the the amount of her guaranteed income ben- Italian benefit is index-linked and since efit. Mrs Milazzo contested that decision on Article 51(1) prohibits recalculation in such the basis of Article 51(1) of the Regulation. circumstances, the O N P may not recalculate Mrs Cirotti's share of her husband's pension.

24. In my view the Court's decision in Levatine was wholly exceptional. The above paragraphs explicitly distinguish between the guaranteed income benefit and old-age pen- sions. Mrs Cirotti receives an old-age pen- 22. The Court stressed again the variable sion. It is true that it is a share of the pension nature of the guaranteed income benefit ' 2 awarded to her husband. I fail to see how- and added: 13 ever in what way that circumstance could alter the character of that benefit as an old- age pension, rather than a guaranteed income benefit. From the information available to the Court it appears that Mrs Cirotti was entitled to a share of her husband's retire- ment pension under much the same condi- tions as those governing a personal retire- ment pension: it was a fixed share of her husband's pension (therefore depending on 'In this regard, a benefit such as the guaran- his working career), and it was subject to teed income differs from old-age pensions, rules on the overlapping of benefits which since the nature and manner of determina- appear to be similar to those applying in the tion of old-age pensions are — unlike the case of a personal retirement pension. , 5 In guaranteed income benefit — not affected by those circumstances there is no reason not to the provisions of Article 51(1), even if this apply Article 51(1) to index-linked adjust- may put the migrant worker at an advan- ments to a benefit awarded under the legisla- tage.' tion of another Member State.

11 — Paragraphs 33 to 36 of the judgment. 14 — Paragraph 39. 12 — Paragraph 37. 15 — See, for example, the rules in issue in Di Prinzio, cited in 13 — Paragraph 38. note 2.

26. The fallacy in that argument is obvious. Article 51 can be applied only where a migrant worker receives more than one ben- efit from more than one Member State. It serves no purpose whatsoever in the absence The O N P takes the view that the application of rules (in the Regulation, or under national of Article 51(1) systematically benefits the law) on the overlapping of benefits. It is only spouse living separated to the disadvantage where there is such overlapping that of the spouse from whose pension benefits a Article 51 will apply. According to the judg- share is awarded. It contends that that ment in Levatino the criterion for amounts to discrimination prohibited by Article 51(1) not to be applied is that its Article 3(1). application would alter the purpose and dis- rupt the scheme of the national legislation in question. I do not see how it could be sug- gested that in the present case there is any such risk. The fact that index-linked adjust- ments to Mrs Cirotti's invalidity pension cannot lead to a recalculation of her share of her husband's pension does not in any way alter the purpose of the Belgian scheme enti- tling a spouse living separated from her hus- 28. The O N P puts the argument very suc- band to part of his pension, nor does it dis- cinctly, and I fail to see (a) how the applica- rupt that scheme. tion of Article 51(1) could lead to any sys-

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16 — Case 22/77, cited in paragraph 7 above, paragraphs 8 to 10 of the judgment 18 — Case C-98/94 [1995] ECR 1-2559. 17 — See further my Opinion in Levatóio, cited in note 10, para- 19 — At paragraph 16. graphs 19 and 20. 20 — Cited in note 4, see paragraph 23 of the judgment.

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ONP ï ć m o m

Conclusion

32. I am therefore of the opinion that the question referred by the Cour du Travail should be answered as follows:

Article 51 of Regulation (EEC) N o 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed per­ sons and to members of their families moving within the Community precludes a recalculation of benefits in the event of alterations, made on account of the general evolution of the economic and social situation, to an invalidity benefit calculated under the legislation of one Member State, overlapping with an old-age benefit, calculated under the legislation of another Member State, which grants a separated spouse a share of the employed person's old-age benefit payable to the other spouse.