C-143/97

1. This reference for a preliminary ruling from the Cour du Travail (Higher Labour Court), Liège, concerns the interpretation of Articles 12(2), 46 and 46b of Regulation ( EEC ) 1 No 1408/71 in relation to the calculation of a miner's retirement pension increased by a supplement under Belgian law and to the Article 3(6), first subparagraph, of the Law possible reduction of the supplement to take provides that 'the amount of the retirement account of retirement benefits acquired in pension of an employed worker who has not other Member States. completed a total of 30 calendar years of normal and principal occupation as an under­ ground mineworker or a quarry worker employed underground, but has completed at least 25 years, shall be increased by a supple­ ment'. 2. The facts of the main proceedings are as follows: the plaintiff and respondent ('the plaintiff') was born in Italy, where he was first employed. He was then employed in the Federal Republic of Germany and finally worked as an underground mineworker for 26 years in Belgium. Article 3(6), second subparagraph, provides that 'that supplement shall be equal to the difference between the amount of the retire­ ment pension he would have obtained had he actually been in normal and principal occupa­ 3. Miners' retirement pensions are calculated tion underground in the said undertakings for on the basis of a presumed working life of 30 calendar years and the total amount of the retirement pensions or benefits in lieu thereof which he can claim under one or more of the * Original language: German. schemes referred to in paragraph 1, first sub­ 1 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on paragraph, point (a)'. the application of social security schemes to employed per­ sons, to self-employed persons and to members of their fami­ lies moving within the Community, in the consolidated ver­ sion in OJ 1992 C 325, p. 1; see also Regulation (EEC) No 1408/71 as amended by Council Regulation (EEC) No 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6. 2 — Moniteur Belge, 15 August 1990.

7. At first instance the plaintiff's action was successful and the ONP lodged an appeal on the ground that the Belgian provision in ques­ 6. Before the Belgian courts the plaintiff tion was purely a rule for calculating the ben­ contended that Article 3(6), second subpara­ efit payable and that it was applied before the graph, contains a reduction provision which, benefit could be 'reduced, suspended or with­ under Articles 12(2) and 46(3) of Regulation drawn'.

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8. The national court has referred the fol­ is clear from the order for reference that this lowing question to the Court of Justice for a was mentioned by the plaintiff in the pro­ preliminary ruling: ceedings before the national courts. The Com­ mission also rightly took this circumstance into account in its arguments.

10. First of all, it must be observed that the relevant provisions of Regulation No 1408/71 Finally, at the hearing the ONP representa­ were amended with effect on 1 June 1992. It tive stated that the supplement constituted

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the difference in amount necessary to reach The Commission finds support for its view in the minimum benefit laid down by Belgian the Court's case-law and explains the differ­ law, for the calculation of which, under Article ence between external and internal rules 50 of Regulation No 1408/71, retirement ben­ against concurrent benefits. It states that the efits payable from other sources are included rule in question in the present case is an in the total of the benefits payable under the external rule against concurrent benefits and chapter of the Regulation concerning pen­ it must be disregarded in the calculation of a 3 sions. benefit payable under the legislation of a Member State.

The legal position under Regulation No 1408/71 until 31 May 1992 13. At the hearing, the Swedish Government took the view in essence that the Belgian pro­ vision in question should not be classified as a provision for the reduction of benefit within the meaning of Regulation No 1408/71, but 15. The relevant provisions of Regulation No purely as a rule of calculation. However, even 1408/71 in the version in force until 31 May if the Court were to regard the rules for 1992 are in Article 12(2), the wording of determining the amount of the benefit as a which is given above, and in Article 46(3), provision for reduction, Articles 12(2), 46(3) which provides as follows: and 46b of the Regulation should not be applied because this would have negative repercussions.

'A national provision which reduces the addi­ 16. The Court delivered the Romano judg­ tional years of notional employment from 5 ment while these provisions were in force. which a worker may benefit by the number The question referred for a preliminary ruling of years in respect of which he may claim a in that case was whether the Belgian provi­ pension in another Member State constitutes sions then in force for taking account of or a provision for reduction of benefit within leaving out of account notional years of the meaning of Article 12(2) of Regulation employment for calculating a retirement pen­ No 1408/71 which, by virtue of the last sen­ sion for miners should be regarded as a pro­ tence of Article 12(2), is not to be applied vision for the reduction of benefit within the when the amount of the pension is calculated meaning of Article 12(2). Under certain cir­ under Article 46(1) of that regulation'. 7 6 cumstances, workers in the mining industry were credited with a notional period of employment until a full working life was reached, calculated on the basis of 30 years' employment. For calculating the pensions of migrant workers, these notional years were normally reduced by the number of years of actual employment in another Member State. 19. The question arising in this context in the present case is whether this assessment applies similarly to the amended Belgian provisions covering the period from 1 January 1991 to 31 May 1992.

17. The national court before which the case was brought requested the Court of Justice for a preliminary ruling on the question whether the relevant Belgian provisions were 20. The ONP takes the view that the method rules against overlapping benefits within the of calculation introduced by the Law of 20 meaning of Regulation No 1408/71, with the July 1990 differs in principle from that to consequences which that entailed for calcu­ which the Romano case relates, so that the lating the pension. reply given by the Court in that case is not a precedent for assessing the new legal position.

21. The Commission, on the other hand, con­ i. e. in accordance with the technique of siders that the position under national law in increasing the pension to a full pension, by the Romano case is substantially the same as reducing the notional periods which are ini­ that in the main proceedings in the present tially taken into account or by reducing the case. calculated amount of the supplement. In so far as a particular category of workers (for whatever reason) is granted an improved posi­ tion by comparison with the general rule, because the pension benefit they have earned by contributions is increased to a full pen­ sion, the earlier and the later situations in law are comparable. The benefits from other sources which must be taken into account for this purpose are also comparable. Under both 22. It is clear that the Belgian provisions on systems benefits granted under specified miners' pensions, both in the version applying national schemes and those under schemes of in the Romano case and in the version now foreign countries must be included. 8 in force, lay down a special advantage for workers in the mining industry. This consists, firstly, in the fact that a full working life of 30 years is presumed, that is to say, a much shorter period than is generally the case. Sec­ ondly, under the rules for persons in that cat­ egory, after actual employment of at least 25 years, the pension benefit payable is increased to a full benefit by law. This applies to both 24. The Court has found that the 'external' of the legal situations in question, but the rule against concurrent benefits which was technique of applying the increase differs. contained in the former (national) rule against Whereas under the former Law the periods to such benefits was a 'provision for reduction be taken into account were completed by of benefit' within the meaning of Article 12(2) reckoning notional periods, the present posi­ of Regulation No 1408/71. Because of its tion is that a supplement is granted and the similar structure and purpose the new provi­ reference pension is based on 30 years' sion should be regarded in the same way. employment.

28. It will be noted immediately that the second sentence of Article 12(2) has been deleted: this qualified the general principle set The legal position under Regulation No out in the first sentence and excluded reduc­ 1408/71 as from 1 July 1992 tion where the person concerned received benefits of the same kind in respect of inval­ idity, old age, death (pensions) or occupa­ tional disease which were awarded by the institutions of two or more Member States. The new version begins with the words 'save as otherwise provided in this Regulation'. In 27. The relevant provisions of the Regulation these other provisions, e. g. Articles 46a to were amended in order to consolidate it and 46c, the general sense of the passage deleted from Article 12 is repeated and given effect.

9 — See Article 45 of Regulation No 1408/71. 10 — Article 12(2) of Regulation No 1408/71. 12 — See the judgment in Case 24/75 Petrani [1975] ECR 1149. 11 — Tide of Article 46 of Regulation No 1408/71. 13 — Emphasis added.

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Therefore the special provisions concerning two or more Member States' was added. This overlapping benefits in Chapter 3 of the Regu­ reads as follows: lation are applicable.

29. Article 46 was completely recast. The Community-law rule against overlapping ben­ '1 . The provisions on reduction, suspension efits in the former version of Article 46(3) or withdrawal laid down by the legislation of was deleted and Article 46(3) now reads as a Member State shall not be applicable to a follows: benefit calculated in accordance with Article 46(2).

32. In so far as pension benefits under for­ eign schemes must be deducted when calcu­ lating the pension under national law, this is an external rule against concurrent benefits. In any case, the amendment of Regulation No 1408/71 has not caused the national pro­ 35. Article 46a(3)(a) reads as follows: vision to lose its character as a provision for the reduction of benefit. Its nature as an external rule against concurrent benefits is likewise not altered by the fact that it forms part of an internal rule against such benefits which, under Article 46(3), may be applied when calculating an independent benefit for 'Account shall be taken of the benefits acquired the purpose of Article 46(1)(a)(i) of Regula­ under the legislation of another Member State tion No 1408/71 and a pro rata pension, based or of other income acquired in another on Community law, for the purpose of Article Member State only where the legislation of 46(2). the first Member State provides for the taking into account of benefits or income acquired abroad.'

40. The result also seems fair. Theoretically, it is possible that a migrant worker whose pension benefit is calculated in accordance with Belgian law would be in a slightly more 37. The Commission considers that this pro­ favourable situation than a worker who has vision, which is the basis for its opinion that spent his entire working life in the Belgian the Member States' provisions on the reduc­ scheme. However, this could not be regarded tion of benefits are not applicable, applies to as preferential treatment because a Belgian the present case. migrant worker would also, by virtue of the Community rules, avoid the reduction provi­ sions laid down by the legislation of Member States. Furthermore, the calculation of benefit in accordance with Belgian law is one step in the calculation by reference to the Commu­ nity rules of the benefit to which a migrant worker is entitled. The present proceedings are not concerned with the final result after carrying out all the calculation steps in the complicated system laid down in Chapter 3 of the Regulation. 38. In the present context, however, we would be in the situation of calculating an indepen­ dent benefit under Article 46(l)(a)(i) as the 26 years' employment taken into account by the Member State's institution were completed under the Belgian legislation alone. There­ fore, Article 46b(2), which provides that pro­ 41. There is no doubt that, in revising Regu­ visions on reduction, suspension or with­ lation No 1408/71 by means of, in particular, 14 drawal of benefits are to apply only subject Regulation (EEC) No 1248/92, the purpose to very precise conditions, would apply. Those of the Community legislature was to create a conditions are that the amount of the benefit does not depend on the length of the period of insurance or residence and that the benefit 14 — Council Regulation (EEC) No 1248/92 of 30 April 1992 is referred to in Annex IV, part D , of the amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self- Regulation. Neither condition is fulfilled in employed persons and to members of their families moving the present case, so that the reduction provi­ within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation sion in question cannot be applied. (EEC) No 1408/71 (OJ 1992 L 136, p. 7).

Finally, the 18th recital states that 'it is neces­ sary to list in Annex IV, D , the types of ben­ efits to which the aforesaid provisions can be applied in the case of overlapping of benefits 42. The considerations underlying the of the same kind'. amending Regulation are set out in the pre­ amble, the 15 th recital of which reads as fol­ lows: 'Whereas, in accordance with the con­ sistent case law of the Court of Justice, the Council is not deemed competent to enact rules imposing a restriction on the overlap­ ping of two or more pensions acquired in dif­ 43. Rules adopted in this way by the Com­ ferent Member States by a reduction of the munity legislature are binding. amount of a pension acquired solely under the national legislation; whereas, according to the Court of Justice, it is for the national leg­ islator to enact such rules, bearing in mind that it is for the Community legislator to fix the limits within which the national provi- 44. Finally it is necessary to examine the sions concerning reduction, suspension or with- argument which the ONP put forward at the 15 drawal are to be applied. ...' hearing, to the effect that Article 50 of the Regulation is applicable.

The 16th and 17th recitals then state: 'Whereas, to protect migrant workers and their survi­ 45. Article 50 regulates the 'award of a supple­ vors against an excessively stringent applica­ ment where the total of benefits payable under tion of the national provisions concerning the legislations of the various Member States reduction, suspension or withdrawal, it is does not amount to the minimum laid down necessary to include a provision in Regula­ by the legislation of the State in whose terri­ tion (EEC) No 1408/71 laying down strict tory the recipient resides'. The article reads as rules for the application of these provisions. follows:

47. The ONP's reasoning cannot be accepted for several reasons. Firstly, there is no 'mini­ mum benefit' within the meaning of Article 50, which is defined by the Court in the Browning judgment as 'a specific guarantee the object of which is to ensure for recipients 49. Consequently the Belgian legislation con­ of social security benefits a minimum income cerning miners' pensions cannot be regarded which is in excess of the amount of benefit as granting a 'minimum benefit'. which they may claim solely on the basis of

18 — See the Opinion in Case 22/81, p. 3377 ff., cited in footnote 17 — Browning [1981] ECR 3357. 17.

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50. There is a further reason why Article 50 with regard to Article 46b, the calculation in of Regulation No 1408/71 does not apply. It the present case does not relate to an inde­ necessarily presupposes that benefits are cal­ pendent benefit solely on the basis of periods culated in accordance with the Community of employment completed under the Belgian rules for the purpose of Article 46(2) of the system. 19 Regulation. However, as I have already said

C — Conclusion