C-144/96

JUDGMENT OF 2. 10. 1997 — CASE C-144/96

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 2 October 1997"

In Case C-144/96,

R E F E R E N C E to the Court under Article 177 of the E C Treaty by the Cour du Travail de Bruxelles for a preliminary ruling in the proceedings pending before that court between

Office National des Pensions (ONP)

and

ONP v emoin

Advocate General: F. G. Jacobs, Registrar: H . A. Rühi, Principal Administrator,

after considering the written observations submitted on behalf of:

— the Office National des Pensions (ONP), by Gabriel Perl, General Adminis- trator,

— Mrs Cirotti, by Jules Raskin, of the Liège Bar, and Franco Agostini, of the Rome Bar,

— the Commission of the European Communities, by Maria Patakia and Peter Hillenkamp, both of its Legal Service, acting as Agents,

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preliminary ruling under Article 177 of the EC Treaty a question on the interpre- tation of Articles 46 and 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 persons and to members of their families moving within the Com- munity (OJ, English Special Edition 1971 (II), p. 416), as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6; here- inafter 'Regulation N o 1408/71')·

2 The question was raised in proceedings between Mrs Cirotti and the Office National des Pensions (National Pensions Office; 'the O N P ' ) concerning the cal- culation of the share of her husband's employed person's retirement pension to which she was entitled under Belgian law.

3 Mrs Cirotti is an Italian national entitled to an invalidity pension in Italy. From July 1981 she received in Belgium a share of the employed person's retirement pension paid to her husband, from whom she was living apart, on the basis of Article 74(2) of the Belgian Royal Decree of 21 December 1967 laying down gen- eral rules for the retirement and survivors' pensions of employed persons, as amended by the Royal Decree of 3 December 1970 (Moniteur Belge of 23 Decem- ber 1970).

4 As it stood on 1 July 1981, that provision stated:

(d) she does not receive a Belgian or foreign retirement or survivor's pension or advantage in lieu thereof, or a benefit in respect of loss of limb or the use thereof of such an amount that application of paragraph 4 does not result in any charge on her husband's pension being made in her favour.'

5 As amended by the Royal Decree of 21 May 1991 (Moniteur Belge of 27 June 1991), that article provides:

'One spouse living apart or judicially separated from the other may obtain pay- ment of part of the retirement pension of that other, provided that:

(a) that spouse has not been deprived of parental authority or convicted of an attempt on the life of the other;

(b) his or her residence abroad, or the application of Article 70, does not prevent payment of an employed person's pension;

(c) he or she has ceased all occupational activity other than as authorized under Article 64, and does not receive benefit on account of sickness, invalidity or

7 By application of 17 January 1989, Mrs Cirotti challenged that decision of the O N P before the Tribunal du Travail de Bruxelles (Labour Court, Brussels), which ruled in her favour by a judgment of 17 June 1993, in which it applied by analogy to the present case the interpretation given by the Court of Justice in Case C-93/90 Cassamali v Office National des Pensions [1991] ECR 1-1401. In that judgment, the Court ruled that where, under national rules against the overlapping of benefits, the pension paid to a worker by a Member State has been calculated at an amount such that, when added to the amount of a benefit of any kind paid by another Member State, it does not exceed a certain maximum, neither Article 51(1) of Regulation (EEC) N o 1408/71 nor any other provision of Community law allows the amount of that pension to be adjusted in order to prevent that maxi- mum from being exceeded, in the event of subsequent alterations being made to the other benefit on account of general economic and social developments.

8 By application of 9 July 1993, the O N P appealed against that judgment before the Cour du Travail de Bruxelles, challenging the Tribunal's reasoning by analogy. In its submission, the spouse's right to a share of the employed person's pension (at issue in the main action here) is to be regarded as analogous not to a person's own survivors' pension, but to a guaranteed level of income. That share should there-

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ONP v cmoTTi

fore be evaluated in such a way as to take account of changes in the spouse's resources and should vary by reference to other social security advantages received, possibly in another Member State.

JUDGMENT OF 2. 10. 1997 — CASE C-144/96

This institution shall also calculate the amount of benefit which would be obtained by applying the rules laid down in paragraph (2) (a) and (b). Only the higher of these two amounts shall be taken into consideration.

2. Where an employed or self-employed person has been subject to the legislation of a Member State and where the conditions for entitlement to benefits are not satisfied unless account is taken of the provisions of Article 45 and/or Article 40(3), the competent institution of that Member State shall apply the following rules:

(a) the institution shall calculate the theoretical amount of benefit that the person concerned could claim if all the periods of insurance or residence completed under the legislation of the Member States to which the employed or self- employed person has been subject had been completed in the Member State in question and under the legislation administered by it on the date the benefit is awarded. If, under that legislation, the amount of the benefit does not depend on the length of the periods completed then that amount shall be taken as the theoretical amount referred to in this subparagraph;

(b) the institution shall then establish the actual amount of the benefit on the basis of the theoretical amount referred to in the preceding subparagraph, and in the ratio which the length of the periods of insurance or residence com- pleted before the risk materializes under the legislation administered by that institution bears to the total length of the periods of insurance and residence completed under the legislations of all the Member States concerned before the risk materialized;

4. When in a case of invalidity, old age or survivors' pensions, the total of the benefits due from two or more Member States, under the provisions of a multilat- eral social security convention referred to in Article 6 (b), is lower than the total which would be due from such Member States under paragraphs 1 and 3, the per- son concerned shall benefit from the provisions of this chapter.'

i2 Article 51 of Regulation N o 1408/71 provides:

' 1 . If, by reason of an increase in the cost of living or changes in the level of wages or salaries or other reasons for adjustment, the benefits of the States concerned are altered by a fixed percentage or amount, such percentage or amount must be applied directly to the benefits determined under the provisions of Article 46, without the need for a recalculation in accordance with the provisions of that article.

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2. O n the other hand, if the method of determining or the rules for calculating benefits should be altered, a recalculation shall be carried out in accordance with the provisions of Article 46.'

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ONP v ćmom

particular the condition that the spouse requesting such share must, subject to cer­ tain exceptions, have ceased all occupational activity.

i6 Such a benefit must therefore be regarded as an 'old-age benefit' within the meaning of Regulation N o 1408/71, and the rights of the beneficiary must, in accordance with Article 44 of that regulation, be determined in accordance with Chapter 3 of Title III of the regulation, of which Articles 46 and 51 form part.

i7 Next, when calculating the amount of the old-age benefits payable to a worker who has been subject to the legislation of two or more Member States, the com­ petent institution in each Member State must compare the amount payable under the national legislation alone, including any rules against overlapping, and the amount resulting from the application of Article 46 of Regulation N o 1408/71. For the calculation of each benefit, the worker must enjoy the benefit of whichever system is most favourable to him (see, in particular, the judgment in Case C-85/89 Ravida v Office National des Pensions [1990] E C R 1-1063, paragraph 18).

is As the Court pointed out in Case 7/81 Sinatra v FNROM [1982] E C R 137, at paragraph 8, any subsequent alteration in one of the benefits implies in principle that a fresh comparison is to be carried out, for each benefit, between the national system and the Community system in order to determine which is the more advantageous to the worker following the alteration.

23 In that case, the Court took the view that, whilst the provisions of Articles 46 and 51(2) of Regulation N o 1408/71 were applicable to the determination and adjust- ment of the amount of a benefit such as the guaranteed income for elderly persons, those of Article 51(1) were not.

2-t In the O N P ' s submission, the same applies in relation to the rights of separated spouses provided for by Belgian legislation.

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ONP v CIROTTI

25 As the Advocate General pointed out in paragraph 24 of his Opinion, the Court's reasoning in the Levatine judgment was based on the special nature of the guar- anteed income for elderly persons and is therefore not applicable by analogy to the benefit at issue in the main proceedings.

26 In Levatine, having found that the purpose of the guaranteed income was to offset the inadequacy of the resources of the person concerned so as to enable him to attain the minimum level of resources guaranteed by the statute (paragraph 34), the Court held that to apply Article 51(1) would result in any increase in that person's resources as a result of the increase in his foreign pension not being taken into account, and in his systematically receiving income in excess of the minimum income guaranteed by the statute (paragraph 35).

3i In relation to the same provision, the national court asks whether the application of Article 51(1) to a case such as this might not give migrant workers an advantage over non-migrant workers.

32 O n that point, the first observation to be made is that Article 3(1) is concerned with equality between the nationals of one Member State and the nationals of other Member States. By contrast, it does not preclude the application of national legislation treating non-migrant workers less favourably than migrant workers.

33 Moreover, as the judgment in Case 22/77 FNROM v Mura [1977] ECR 1699 dem- onstrates, it is beside the point to argue that the application of Community rules on the coordination of social security schemes would favour migrant workers over those who have never left their own country, since no discrimination can arise in legal situations which are not comparable. Furthermore, any such differences in treatment which do exist result from the lack of a common social security scheme.

34 It follows that Articles 46 and 51(1) of Regulation N o 1408/71 must be interpreted as precluding the share of an employed person's old-age pension granted to that person's separated spouse under the legislation of a Member State from being

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ONP v CIROTTI

Articles 46 and 51(1) 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 persons and to members of their families moving within the Com- munity, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983, must be interpreted as precluding the share of an employed

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person's old-age pension granted to that person's separated spouse under the legislation of a Member State from being recalculated by reference to alter- ations arising from general economic and social developments in an invalidity benefit received by that separated spouse under the legislation of another Member State.

Mancini Murray Kapteyn

Hirsch Ragnemalm