C-366/96

CORDELLE v ONP

OPINION OF ADVOCATE GENERAL LEN2 delivered on 16 September 1997 *

A — Introduction of employment, plus 48 trimesters attributed to her for having raised six children. This pension was further increased by 10% on account of the plaintiff's children. In 1989 the Belgian social security authority, the 1. In the present reference for a preliminary Office National des Pensions (hereinafter ruling the Tribunal du Travail (Labour 'the ONP'), calculated the pension and, Court), Charleroi, has referred to the Court applying the Royal Decree of 21 December a question on the compatibility with Com- 1967 (hereinafter 'the Royal Decree'), estab- munity law of national rules against overlap- lished a maximum amount for the Belgian ping. survivor's pension and the French old-age pension. In 1994, when the O N P became aware of the amount of the French old-age pension, the Belgian survivor's pension was 2. According to the information provided reduced in accordance with the Royal by the national court and the parties, the dis- Decree and repayment of the amount of pute at the origin of the proceedings may be BFR 42 460 already paid was demanded. summarised as follows: the plaintiff in the main proceedings, Mrs Cordelle, is a citizen of the Union. She receives a survivor's pen- sion paid by the Belgian insurance scheme and three old-age pensions, two of which are paid by the Belgian social security scheme and one by the French social security 4. The plaintiff challenges that decision. She scheme. claims that the national rule against overlap- ping in Article 52 of the Royal Decree is not applicable to her French pension, since the increased amount payable on the ground that she had raised children is a benefit which 3. Mrs Cordelle receives her survivor's pen- does not exist under Belgian legislation and, sion on the basis of her late husband's full accordingly, cannot be taken into consider- working career for insurance purposes, com- ation for the purposes of the Belgian rule pleted exclusively in Belgium. The pension is against overlapping. calculated solely according to Belgian law, without Community law being applied. In addition to two Belgian old-age pensions the plaintiff also receives a French old-age pen- sion, calculated on the basis of 27 trimesters

9. According to the consistent case-law of the Court, to which the Commission also Having regard to the benefits paid in accord- refers in this context, in proceedings brought ance with French law by the Caisse Région- under Article 177 of the EC Treaty the ale d'Assurance Maladie Nord Picardie and Court has no jurisdiction to apply the rules of Community law to a specific case nor, consequently, to classify provisions of 1 — According to the information provided by the Belgian Gov- national law with respect to such a rule. It ernment, the full passage reads as follows: '... une pension de survie (de travailleur salarié) ne peut être may, however, provide the national court cumulée avec une ou plusieurs pensions de retraite ou tout autre avantage en tenant lieu, octroyés en vertu d'une législa- with an interpretation of all relevant provi- tion belge ou étrangère ou en vertu d'un régime de pension sions of Community law which might be du personnel d'une institution de droit international public, qu'à concurrence d'une somme égale à 110% du montant de la pension de survie accordée au conjoint survivant, multi- pliée par la fraction inverse de celle, limitée le cas échéant à unité, qui a été utilisée pour le calcul de la pension de retraite servant de base au calcul de la pension de survie.' 2 — In the original French: 'la norme prohibitive de cumul'.

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useful in assessing the effects of such provi- and the O N P ' s demand for repayment con- sions of national law. 3The Court may there- cerns the period following its entry into fore interpret the Community rules in order force. At the hearing the Commission came to determine whether they preclude the to the conclusion that the calculation of the application of national rules against overlap- pensions is subject to the pre-1992 system, ping. that is to say the 'old' version of the regu- lation, since the plaintiff's pensions were established in 1989.

3 — Case 37/86 Van Gastel v Rijksdienst and Rijkskas [1987] ECR 3589, paragraph 8. 4 — OJ, English Special Edition 1971 (II), p. 416. 5 — Council Regulation (EEC) N o 2001/83 of 2 June 1983 amending and updating Regulation (EEC) N o 1408/71 on the application of social security schemes to employed per- sons, to self-employed persons and to members of their families moving within the Community and also amending and updating Regulation (EEC) N o 574/72 laying down the procedure for implementing Regulation (EEC) N o 1408/71 (OJ 1983 L 230, p. 6). 6 — Council Regulation (EEC) N o 1248/92 of 30 April 1992 13. The Court has not been told whether the amending Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self- plaintiff made such an application for her employed persons and to members of their families moving within the Community and Regulation (EEC) N o 574/72 rights to be recalculated. All that is certain is laying down the procedure for implementing Regulation that the overlapping of the pensions was (EEC) N o 1408/71 (OJ 1992 L 136, p. 7). established pursuant to Article 52 of the 7 — The relevant provisions of both versions of the Regulation arc set out in the annex to this Opinion. Royal Decree in 1989 and therefore in

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of Regulation N o 1408/71 do not preclude N o 1408/71 does not preclude the applica- that national legislation from being applied tion of national rules against overlapping. 11 to him in its entirety, including the anti- overlapping rules'. 8 It is clear from the same case-law, however, that 'if the application solely of the legislation of the Member State in question proves less favourable to the worker than that of the Community rules in Article 46 of Regulation N o 1408/71, it is the provisions of the latter article that must be 18. That, again according to the Court's applied in their entirety'. 9 case-law, means that the difference between benefits of the same kind and benefits of a different kind is decisive. The Court has con- sistently held that social security benefits must be regarded as being of the same kind when their purpose and object as well as the basis on which they are calculated and the conditions for granting them are identical. 12 The Court has considered that this require- ment is not met in the case of a personal invalidity pension based on the recipient's own employment record in one Member State and a survivor's pension based on the employment record of the recipient's 17. As regards the application of Article 46, deceased husband in another Member it must be borne in mind that national rules State. 13 against overlapping are not applicable where the person concerned receives benefits of the same kind, for example in respect of old age, as provided for in the second sentence of Article 12(2). 10 That is not the case, how- ever, where the beneficiary receives benefits of a different kind. In that case Regulation

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the benefits in this case, too, cannot be Regulation N o 1248/92 do not affect the regarded as benefits of the same kind. principle of Regulation N o 1408/71 but lay down precise limits to the applicability of national rules against overlapping in the con- text of the calculation of pensions. That pre- miss will be examined below.

20. Further support for that conclusion may be found in Article 46a of Regulation N o 1408/71, which was inserted by Regulation N o 1248/92. 14 As the 21st recital in the pre- amble to the latter regulation states, Article 46a reflects the case-law of the Court of Jus- tice. Article 46a was therefore inserted solely to bring the legislation into line with the pre- 22. Article 12 of the regulation was amended vious case-law of the Court of Justice and, as follows: the second sentence of Article accordingly, can also be invoked here. It fol- 12(2) was removed and the rule in the first lows that benefits are of the same kind if sentence applies '[s]ave as otherwise pro- they are payable in respect of invalidity, old vided in this Regulation'. Therefore the age and survivors and are calculated on the question whether Regulation N o 1408/71 basis of periods of insurance completed by provides for an exception to the applicability one and the same person. Since the benefits of a national rule against overlapping in in the present case were calculated on the respect of survivors' and old-age pensions is basis of periods of insurance completed by to be examined in the light of Chapter 3 of different persons, however, they are not ben- the regulation, entitled O l d age and death efits of the same kind. It must therefore be (pensions)'. Articles 46a, 46b and 46c were concluded that in the present case Regulation inserted into that chapter. N o 1408/71 does not prevent the application of a national provision against overlapping such as Article 52 of the Royal Decree.

27. It must be concluded, therefore, that in 25. However, Article 46a, which is headed the case of overlapping of benefits of differ- 'General provisions relating to reduction, ent kinds national provisions against over- suspension or withdrawal applicable to ben- lapping such as Article 52 continue to apply efits in respect of invalidity, old age or survi- under the new version of Regulation N o vors under the legislation of the Member 1408/71, although the reductions provided States', contains rules which may be appli- for therein are subject to a limit. cable in the present case. First, under para- graph 3(a), the application of national provi- sions against overlapping is permitted only where they provide for benefits or income acquired abroad to be taken into account. Since Article 52 of the Royal Decree permits both national pensions and foreign pensions to be taken into account, paragraph 3(a) does not preclude its application. 28. I shall conclude by dealing briefly with the argument put forward by the plaintiff in the main proceedings that the increase in the French pension on account of the fact that she had brought up children is an advantage which does not exist in Belgium and is there- fore not covered by Article 52. As the O N P and the Belgian Government rightly main- tain, it is for the national court, in applying 26. Paragraph 3(d), however, provides that the provisions against overlapping, to classify where provisions against overlapping are the benefits in question in conformity with applicable under the legislation of only one the applicable national legislation, taking Member State on account of the fact that the account of the rules relating to the conflict of person concerned receives benefits of a dif- laws, to the extent that the Community pro- ferent kind payable under the legislation of visions are not relevant. 16 Furthermore, I do other Member States, the benefit payable not consider that that question is of any rel- under the legislation of the first Member evance to the answer to the question referred State may be reduced only within the limit to the Court. of the amount of the benefits payable under the legislation of other Member States. In the present case that means that the survivor's pension awarded under Belgian legislation 16 — Viola, cited in footnote 8, paragraphs 16 to 19.

Annex

A — The wording of the relevant provisions as amended by Regulation N o 2001/83 (OJ 1983 L 230, p. 6) (referred to in the Opinion as the 'old version')

Article 12(2) provides:

'The provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits or other income may be invoked even though the right to such benefits was acquired under the legislation of another Member State or such income arises in the terri- tory of another 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 occupational disease which are awarded by the institutions of two or more Member States in accordance with the provisions of Articles 46, 50 and 51 or Article 60(1 )(b).'

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CORDELLE v ONP

Article 46b, also incorporated into the regulation at that point, contains special provisions applicable in the case of overlapping of benefits of the same kind under the legislation of two or more Member States.

17 — Pursuant to Article 4, the regulation entered into force on 1 June 1992.

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