C-107/00

INSALACA

O P I N I O N OF ADVOCATE GENERAL LÉGER delivered on 25 October 2001 1

1. This reference for a preliminary ruling I — Facts and main proceedings from the Tribunal du travail (Labour Court) de Mons (Belgium) is concerned with the interpretation of Regulation (EEC) No 1408/71, 2 and more specifically Articles 46a and 46b thereof, relating to provisions on reduction and rules against 3. On 28 October 1997, Ms Insalaca made overlapping, applicable to old-age and an application to the ONP for survivor's survivors' benefits. and retirement pensions chargeable to the social security scheme for employed workers in Belgium. She was widowed in 1981, and since that date she has also received a survivor's pension payable by Italy.

9. Article 46 of the Regulation describes 7. The claimant takes the view that the rules applicable for the award of Article 52(1) of the Royal Decree, as it benefits. has been applied, infringes Articles 46a and 46b of the Regulation.

10. Article 46(1) of the Regulation pro- vides:

II — Legal background

'Where the conditions required by the legislation of a Member State for entitle- A — The Community legislation ment to benefits have been satisfied..., the following rules shall apply:

8. Article 12(2) of the Regulation sets out the principle, according to which:

(a) the competent institution shall calcu- late the amount of the benefit that would be due: 'Save as otherwise provided in this Regu- lation, the provisions of the legislations of a Member State governing the reduction,

'The person concerned shall be entitled to (a) the competent institution shall calcu- the highest amount calculated in accord- late the theoretical amount of the ance with paragraphs 1 and 2 from the benefit to which the persons concerned competent institution of each Member could lay claim provided all periods of State without prejudice to any application insurance and/or of residence, which of the provisions concerning reduction, have been completed under the legis- suspension or withdrawal provided for by lation of the Member States to which the legislation under which this benefit is the employed person or self-employed due. person was subject, have been com- pleted in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of Where that is the case, the comparison to the benefit is independent of the dur- be carried out shall relate to the amounts ation of the periods completed, the determined after the application of the said amount shall be regarded as being the provisions.'

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13. Article 46a of the Regulation lays 16. Article 46a(3) of the Regulation spec- down general provisions relating to reduc- ifies the rules applicable for the application tion, suspension or withdrawal applicable of provisions on reduction, suspension or to benefits in respect of invalidity, old age withdrawal laid down by the legislation of or survivors under the legislations of the a Member State in the case of overlapping Member States. of a benefit in respect of invalidity, old age or survivors with a benefit of the same kind or a benefit of a different kind:

(d) where provisions on reduction, suspen- sion or withdrawal are applicable under the legislation of only one B — The Belgian legislation Member State on account of the fact that the person concerned receives benefits of a similar or different kind payable under the legislation of other Member States or other income 18. Article 52(1) of the Royal Decree auth- acquired within the territory of other orises, up to a certain ceiling in respect of Member States, the benefit payable the amount, overlapping of old-age and under the legislation of the first survivors' pensions. Member State may be reduced only within the limit of the amount of the benefits payable under the legislation or the income acquired within the territory of other Member States.' Survivors' pensions granted under the legis- lation of another Member State are to be taken into account in calculating the ceiling in respect of the amount of old-age and survivors' pensions.

17. Article 46b of the Regulation contains special provisions applicable in the case of overlapping of benefits of the same kind 19. Article 52(1) of the Royal Decree under the legislation of two or more describes a mechanism to limit overlap- Member States: ping.

20. The first subparagraph of this article deals with the situation where 'the surviv- ' 1 . The provisions on reduction, suspension ing spouse can claim both a survivor's or withdrawal laid down by the legislation pension under the pension scheme for

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employed workers and one or more retire- interpretation of Community law, it ment pensions... [T]he s u r v i v o r ' s decided to stay proceedings and refer the pension may be aggregated with the said following questions to the Court for a retirement pensions only up to a sum equal preliminary ruling: to 110% of the amount of the survivor's pension which would have been awarded to the surviving spouse for a complete con- tributions record'. 5

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INSALACA

spouse under the scheme of another 26. In its judgment in Conti the Court held Member State, is a provision on reduction that '[a] national rule must be regarded as a within the meaning of Articles 46a and 46b provision for reduction of benefit if the of the Regulation and whether, if so, those calculation which it requires has the effect articles allow the taking into account a of reducing the amount of the pension benefit from another Member State to have which the person concerned may claim the effect of reducing the ceiling in respect because he receives a benefit from another of the amount of benefits which the person Member State'. 7 concerned is entitled to claim in the Member State where he was employed.

27. Under the terms of this definition, the concept of provision on reduction of bene- IV — Legal analysis fit contains, for our purposes, two main conditions.

A — Classification as a provision on reduction of benefit (first question sub- mitted for a preliminary ruling) 28. The first condition concerns the requirement of an extraneous element. The benefits to which the person concerned is entitled must be covered by the legal systems of two or more Member States. 24. In its first question, the referring court is essentially asking whether a national rule limiting the ceiling in respect of overlap- ping of the old-age pension and the surviv- or's pension, on the ground that the surviv- ing spouse receives a survivor's pension payable by another Member State, consti- tutes a provision on reduction of benefit within the meaning of the Regulation. 29. The second condition relates to the intention of the national rule on calcu- lation. Its chief consequence must be a reduction in the amount of the pension granted to the recipient.

32. From the documents available in this case, I note that the defendant is applying the second subparagraph of the provision 36. The referring court does not seem to to Ms Insalaca, to the detriment of the first harbour any doubts as to the interpretation subparagraph. The defendant justifies this to be given to Article 52(1) of the Royal choice on the basis of the existence of two Decree. At no time does the court challenge survivor's pensions, which call for the the fact that the defendant has taken into application of the second subparagraph of account a pension of an external nature, Article 52(1) of the Royal Decree. How- namely the Italian survivor's pension, in ever, this provision does not explicitly state calculating the ceiling in respect of the that it is intended to apply to benefits of an authorised amount. 8 It takes the view that external nature, that is, benefits paid on the the defendant acted correctly in applying basis of the legal systems of other Member the second subparagraph, and not the first States. This lack of clarity in the terms used subparagraph, of the article. may have led to divergences of interpre- tation by the parties to the proceedings.

37. It should be borne in mind that the Court has no jurisdiction to interpret

33. The Commission initially objected to the interpretation put forward by the 8 — See order for reference, p. 4.

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INSALA CA

41. To the same effect, I note that none of the parties to the proceedings is challenging the consequences of the second subpara- graph of Article 52(1) of the Royal Decree. All the parties agree in recognising that the application of this provision leads to a 39. In respect of the second condition, it reduction in the amount of benefits granted should be borne in mind that the Court's to the recipient. definition in case-law of the concept of provision on reduction of benefit is unequivocal: a national rule against over- lapping is a provision on reduction if it has the effect of reducing the amount of benefits to which the claimant is entitled. 10 42. Therefore, the response to the question raised by the referring court should be that a national rule governing the calculation of a survivor's pension and providing for a restriction of the ceiling of the old-age pension and the survivor's pension, where the surviving spouse can claim a survivor's 40. It is also very clearly apparent from the pension payable by another Member State, order for reference that the national court constitutes a provision on reduction of benefit within the meaning of the Regu- lation. 9 — Joined Cases C-132/91, C-138/91 and C-139/91 Kutsikas and Others [1992] ECR I-6577, paragraph 39, and Case C-343/96 Dilexport [1999] ECR I-579, paragraph 51. 10 — See Conti, paragraph 25. 11 — See order for reference, p. 4.

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B — Reduction of the ceiling in respect of However, Article 12(2) of the Regulation overlapping of old-age and survivors' pen- provides for the possibility of exceptions. sions because of the existence of a surviv- or's pension granted under a scheme of another Member State (the second ques- tion)

13 — Case 238/81 Van der Bunt-Craig [1983] ECR 1385, paragraph 13; Case 171/82 Valentini [1983] ECR 2157, paragraph 13; Case C-325/93 Del Grosso [1995] ECR I-939, paragraph 24; Case C-98/94 Schmidt [1995] ECR I-2559, paragraph 24; and Case C-366/96 Cordelle [1998] ECR I-583, paragraph 19. See also Case 197/85 Stefanutti [1987] ECR 3855, paragraph 12. 45. Article 12(2) of the Regulation lays 14 — In paragraph 9 of his opinion in Del Grosso, Advocate down the principle by which provisions General Van Gerven took the view that, an 'independent benefit' must be understood to mean a benefit calculated in on reduction may be invoked even where accordance with Article 46(1) of Regulation No 1408/71, that is to say, the amount of which corresponds to the total the benefits concerned were acquired under length of insurance periods or periods of residence to be the legislation of another Member State. taken into account under the legislation of the Member State in which the competent institution is situated, without regard to the periods completed under the legis- lation of other Member States to which the beneficiary has been subject. The contrary inference might be that a 'pro 12 — This objective is made explicit in the first recital in the rata benefit' must be understood to mean a benefit preamble to the Regulation: '... the provisions for coor- calculated in accordance with Article 46(2) of the Regu- dination of national social security legislations fall within lation, that is to say, the amount of which corresponds to the framework of freedom of movement for workers who the total length of insurance periods or periods of residence are nationals of Member States and should contribute to be taken into account under the legislation of the towards the improvement of their standard of living and Member State to which the person concerned has been conditions of employment'. subject.

52. It is clear from the above that Articles 46a and 46b of the Regulation preclude national legislation such as that at 50. Calculation of the amount of benefits is issue in the main proceedings, according to carried out in three stages. First, the which the amount of a survivor's pension competent institution calculates the 'inde- must be reduced because of the existence of pendent' benefit in accordance with the another survivor's pension paid by another first subparagraph of Article 46(1) of the Member State, if the application of the legislation is less favourable than the appli- cation of Articles 46a and 46b of the 15 — Joined Cases 116/80, 117/80, 119/80, 120/80 and 121/80 Regulation would be. Celestre and Others [1981] ECR 1737, paragraph 15; Van der Bunt-Craig, paragraph 15; Case 128/88 Di Felice 1989 ECR 923, paragraph 9; Case C-5/91 Di Prinzio 1992 ECR I-897, paragraph 16; and Case C-31/92 Larsy 1993 ECR I-4543, paragraph 12. 16 — See Di Prinzio, paragraph 19.

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Conclusion

53. Having regard to those considerations, I propose that the Court give the following answers to the questions referred for a preliminary ruling by the Tribunal du travail de Mons:

(1) A national rule governing the calculation of a survivor's pension and establishing a restriction of the ceiling in respect of the amount of the survivor's pension and the old-age pension, where the surviving spouse can claim a survivor's pension payable by another Member State, constitutes a provision on reduction of benefit within the meaning of Articles 46a and 46b of Regulation (EEC) No 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 Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended by Council Regulation (EEC) No 1248/92 of 30 April 1992.