61997J0143

Social security for migrant workers - Benefits - National rules against overlapping - Incapable of being relied on against recipients of benefits of the same nature paid in accordance with Regulation No 1408/71 - Reduction of a pension supplement by reference to benefits payable to the person concerned under a scheme of another Member State - Not permissible

(Council Regulations No 1408/71, Arts 12(2), 12, 46(3) and 46b, and No 1248/92)

A national rule must be regarded as a provision for reduction of benefit within the meaning of Article 12(2) of Regulation No 1408/71, as amended by Regulation No 2001/83, and within the meaning of Articles 12(2), 46(3) and 46b of that version of Regulation No 1408/71, as amended by Regulation No 1248/92, if the calculation which it requires to be made has the effect of reducing the amount of pension which the person concerned may claim because he receives a benefit from another Member State. Consequently, a national rule which provides that the supplement to a retirement pension is to be reduced by the amount of a retirement pension which the person concerned may claim under a scheme of another Member State constitutes a provision for reduction of benefit within the meaning of those provisions.

In Case C-143/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Cour du Travail de Liège (Belgium) for a preliminary ruling in the proceedings pending before that court between

Office National des Pensions (ONP)

and

Francesco Conti,

on the interpretation of Articles 12(2), 46(3) and 46b of Council Regulation (EEC) No 1408/71 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 (OJ, English Special Edition 1971(II), p. 416), as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7),

THE COURT

(First Chamber),

composed of: P. Jann, President of the Chamber, D.A.O. Edward (Rapporteur) and M. Wathelet, Judges,

Advocate General: S. Alber,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- the Office National des Pensions (ONP), by Gabriel Perl, General Administrator, acting as Agent,

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

having regard to the Report for the Hearing,

after hearing the oral observations of the Office National des Pensions (ONP), represented by Jan C.A. De Clerck, Adviser, acting as Agent; of the Swedish Government, represented by Erik Brattgård, Departementsråd in the Ministry of Foreign Affairs, acting as Agent; and of the Commission, represented by Maria Patakia, at the hearing on 11 December 1997,

after hearing the Opinion of the Advocate General at the sitting on 12 February 1998,

gives the following

Judgment

1 By judgment of 28 March 1997, received at the Court on 16 April 1997, the Cour du Travail (Higher Labour Court), Liège, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Articles 12(2), 46(3) and 46b of Council Regulation (EEC) No 1408/71 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 (OJ, English Special Edition 1971(II), p. 416), as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7).

2 That question was raised in proceedings between Mr Conti and the Office National des Pensions (hereinafter `the ONP') concerning the award of an old-age pension.

Community law

3 Article 12(2) of Regulation No 1408/71, as amended by Regulation No 2001/83, stated:

`The provisions of the legislation of a Member State for reduction ... 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 territory 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).'

4 That provision was amended by Regulation No 1248/92, which entered into force on 1 June 1992. Article 12(2) now reads as follows:

`Save as otherwise provided in this Regulation, the provisions of the legislation of a Member State governing the reduction, suspension or withdrawal of benefits in cases of overlapping with other social security benefits or any other form of income may be invoked even where such benefits were acquired under the legislation of another Member State or where such income was acquired in the territory of another Member State.'

5 Article 46 of Regulation No 1408/71, which lays down the rules for the award of benefits, as amended by Regulation No 2001/83, provided at paragraph 3 that:

`The person concerned shall be entitled to the total sum of the benefits calculated in accordance with the provisions of paragraphs 1 and 2, within the limit of the highest theoretical amount of benefits calculated according to paragraph 2(a).

Where the amount referred to in the preceding subparagraph is exceeded, any institution applying paragraph 1 shall adjust its benefit by an amount corresponding to the proportion which the amount of the benefit concerned bears to the total of the benefits determined in accordance with the provisions of paragraph 1.'

6 Following its amendment by Regulation No 1248/92, Article 46(3) provides that:

`The person concerned shall be entitled to the highest amount calculated in accordance with paragraphs 1 and 2 from the competent institution of each Member State without prejudice to any application of the provisions concerning reduction, suspension or withdrawal provided for by the legislation under which this benefit is due.

Where that is the case, the comparison to be carried out shall relate to the amounts determined after the application of the said provisions.'

7 Regulation No 1248/92 also inserted a new provision - Article 46b - in Regulation No 1408/71 as amended by Regulation No 2001/83. Article 46b lays down special provisions applicable in the case of overlapping of benefits of the same kind under the legislation of two or more Member States. It provides as follows:

`1. The provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State shall not be applicable to a benefit calculated in accordance with Article 46(2) [pro rata].

2. The provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State shall apply to a benefit calculated in accordance with Article 46(1)(a)(i) only if the benefit concerned is:

(a) either a benefit, which is referred to in Annex IV, part D, the amount of which does not depend on the length of the periods of insurance or of residence completed; or

(b) a benefit, the amount of which is determined on the basis of a credited period deemed to have been completed between the date on which the risk materialised and a later date. In the latter case, the said provisions shall apply in the case of overlapping of such a benefit:

(i) either with a benefit of the same kind, except where an agreement has been concluded between two or more Member States providing that one and the same credited period may not be taken into account two or more times;

(ii) or with a benefit of the type referred to in (a).

The benefits and agreements referred to in (b) are mentioned in Annex IV, part D.'

The Belgian legislation

8 The Belgian Law of 20 July 1990 introduced a flexible retirement age for employed persons and brought pensions for employed persons into line with improvements in the general standard of living (Moniteur Belge of 15 August 1990). Article 3(2) of that Law provides that `a worker who has been normally and principally engaged in the occupation of miner for at least 20 years may obtain a retirement pension acquired on the basis of one thirtieth for each calendar year of his occupation as a miner'.

9 Article 3(6), first subparagraph, provides that `[t]he amount of the retirement pension of an employed worker who has not completed a total of 30 calendar years of normal and principal occupation as an underground mineworker or a quarry worker employed underground, but has completed at least 25 years, shall be increased by a supplement'.

10 Article 3(6), second subparagraph, of that Law provides that `[t]hat supplement shall be equal to the difference between the amount of the retirement pension which he would have obtained had he actually been [so engaged] ... for 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 schemes referred to in paragraph 1, subparagraph 1(a)'. Article 3(1), subparagraph 1(a), specifies both Belgian and foreign schemes.

The dispute in the main proceedings

11 Mr Conti, who was born in Italy on 26 October 1934, worked successively in Italy, in Germany, and in Belgium. In Belgium he worked, normally and principally, as an underground mineworker for 26 years between 1965 and 1990.

12 By an administrative decision notified to Mr Conti on 23 August 1994, the ONP granted him, with effect from 1 January 1991, a miner's retirement pension of BFR 449 417 per annum indexed at 360.12 on the consumer prices index and calculated on the basis of a 26/30 employment record.

13 That decision also states that Mr Conti is entitled to an annual supplement of BFR 40 591 indexed at the same rate, but adds that `this supplement will be reduced by the amount of the other retirement pensions or benefits taking the place thereof to which [he] could also be entitled under a Belgian or foreign scheme'.

14 The supplement was reduced to zero because Mr Conti already received two retirement pensions, one in Italy from 1 November 1989 of LIT 101 619 per month, the other in Germany from 1 January 1991 of DM 3 208.80 per annum.

15 By act of 22 September 1994, Mr Conti contested that decision before the Tribunal du Travail (Labour Court), Liège, primarily on the ground that the ONP `disregards the European regulations'. His action was upheld on the ground that Article 3(6) of the Law of 20 July 1990 constituted a provision for reduction of benefit within the meaning of Article 12 of Regulation No 1408/71.

16 On 26 April 1996 the ONP lodged an appeal against that decision before the Cour du Travail, Liège. It maintained that, in order for there to be a reduction, suspension or withdrawal of benefit in the case of overlapping with a benefit paid in another Member State, there had first to be a determination of the first benefit in accordance with the Belgian legislation, and that the provisions for reduction of benefit referred to in Article 46b of Regulation No 1408/71, as amended, related to a benefit which had already been granted.

The question submitted for a preliminary ruling

17 Since the Cour du Travail, Liège, had doubts concerning the interpretation of Articles 12(2), 46(3) and 46b of Regulation No 1408/71, as amended, it stayed proceedings in order to refer the following question to the Court of Justice for a preliminary ruling:

`Is the concept of a provision for reduction of benefit in Articles 12(2), 46(3) and 46b of Regulation (EEC) No 1408/71 to be interpreted as covering a legislative provision of a Member State which, in providing that the amount of the retirement pension of an employed person who has not completed a total of 30 years of employment but has completed at least 25 years is to be increased by a supplement, states that that supplement is to be equal to the difference between the amount of the retirement pension which the worker would have received if he had in fact been employed for 30 years and the total amount of the retirement pensions which he can claim under a national scheme or a scheme of another Member State?'

18 The sole purpose of that question is to ascertain whether a national rule which provides that the supplement to a mineworker's retirement pension is to be reduced by the amount of a retirement pension to which the worker concerned is entitled under another Member State's scheme constitutes a provision for reduction of benefit within the meaning of Regulation No 1408/71, as amended.

19 First of all, the meaning of the expression `a provision for reduction of benefit', used in Article 12(2) of Regulation No 1408/71 as amended by Regulation No 2001/83, was not changed by Regulation No 1248/92. The amendments made to Article 12(2) by Regulation No 1248/92 were concerned with delimiting the application of national rules against overlapping benefits and did not affect the principle of their operation (see, to that effect, Case C-366/96 Cordelle [1998] ECR I-583, paragraph 12). Consequently, in order to reply to the question referred, there is no need to distinguish between the period before 1 June 1992 and the period thereafter.

20 Secondly, in its judgment in Case 58/84 Romano [1985] ECR 1679, the Court ruled that a national provision which reduces the additional years of notional employment from which a worker may benefit by the number of years in respect of which he may claim a pension in another Member State constitutes a provision for reduction of benefit within the meaning of Article 12(2) of Regulation No 1408/71.

21 The ONP contends that the provision of national law applicable in the case before the national court is fundamentally different from the provision which applied at the time of Romano, for it does not reduce a benefit which has already been determined but increases a pension through the addition of a supplement. Furthermore, in its view, it is clear from the provision that the calculation of the amount of the supplement, made by reference to the total amount received by way of retirement pensions, both Belgian and foreign, is made before any provision for reduction of benefit is applied. The provision in question is therefore a rule for calculating the benefit payable, not a provision for reduction of a national benefit. On the other hand, the effect of the provisions for reduction of benefit referred to in Article 46b of Regulation No 1408/71, as amended, is to reduce benefits which have already been awarded.

22 The Swedish Government supports that interpretation and adds that the taking of other retirement pensions into account in order to determine the supplement is a necessary step in its calculation. In the event that the Belgian provision is considered to be a provision for reduction of benefit within the meaning of Regulation No 1408/71, as amended, the Swedish Government maintains that the coordination scheme established by that regulation would entail such negative consequences for Belgian supplementary benefits that Community law would permit its application to be waived in the case of benefits of that kind.

23 The Commission, on the other hand, considers that the legal situation existing at the time of Romano is similar to that in the present case. It disputes the argument that Article 46b of Regulation No 1408/71 concerns provisions for reduction of a benefit which has already been awarded. Article 46(3) expressly provides that the award of the benefit based on a comparison of the amounts determined in accordance with the procedure laid down in Article 46(1) and (2) is made `after the application of the said provisions'. The ONP must therefore proceed first with calculating the benefit in accordance with the procedure laid down in Article 46(3).

24 The Court considers it important to stress that national provisions for reduction of benefits cannot be rendered exempt from the conditions and limits of application laid down in Regulation No 1408/71 by categorising them as rules for calculating the amount payable.

25 A national rule must be regarded as a provision for reduction of benefit if the calculation which it requires to be made has the effect of reducing the amount of pension which the person concerned may claim because he receives a benefit from another Member State.

26 Legislation such as the Belgian legislation governing mineworkers' pensions - both in the version in force at the time of Romano and in the version applicable in the present case - provides for special advantages for persons employed in that sector. On completion of a minimum period of 25 years' actual employment, the amount of the pension is raised to the level of a pension calculated on the basis of 30 years' employment. The upgraded pension is then reduced by reference to any other pension benefits which the person concerned may claim.

27 Whilst the legislation applicable at the time of Romano provided for periods of actual employment to be supplemented by notional periods, which were then reduced according to the number of years in respect of which the worker could claim another pension, the new legislation provides for payment of a supplement which is also reduced, but by virtue of other pension benefits.

28 Thus, both sets of rules lead to the same result: the only difference, as the Advocate General points out in paragraphs 22 and 23 of his Opinion, lies in the method used for upgrading the pension.

29 It follows from the foregoing that legislation such as that at issue in the main proceedings constitutes, as in Romano, a provision for reduction of benefit within the meaning of Regulation No 1408/71 as amended.

30 The reply to the question referred by the national court must therefore be that a national rule which provides that the supplement to a mineworker's retirement pension is to be reduced by the amount of a retirement pension which the person concerned may claim under a scheme of another Member State constitutes a provision for reduction of benefit within the meaning of Article 12(2) of Regulation No 1408/71, as amended by Regulation No 2001/83, and within the meaning of Articles 12(2), 46(3) and 46b of that version of Regulation No 1408/71, as amended by Regulation No 1248/92.

Costs

31 The costs incurred by the Swedish Government and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(First Chamber),

in answer to the question referred to it by the Cour du Travail, Liège, by judgment of 28 March 1997, hereby rules:

A national rule which provides that the supplement to a mineworker's retirement pension is to be reduced by the amount of a retirement pension which the person concerned may claim under a scheme of another Member State constitutes a provision for reduction of benefit within the meaning of Article 12(2) of Council Regulation (EEC) No 1408/71 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 by Council Regulation (EEC) No 2001/83 of 2 June 1983, and within the meaning of Articles 12(2), 46(3) and 46b of that version of Regulation No 1408/71, as amended by Council Regulation (EEC) No 1248/92 of 30 April 1992.