61977J0064

SOCIAL SECURITY OF MIGRANT WORKERS - MINIMUM BENEFIT - GRANT - CONDITION

( REGULATION ( EEC ) NO 1408/71 , ARTICLE 50 )

ARTICLE 50 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL IS APPLICABLE ONLY IN CASES IN WHICH PROVISION IS MADE IN THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE WORKER RESIDES FOR A MINIMUM PENSION .

IN CASE 64/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL , LIEGE , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MARIO TORRI

AND

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES , BRUSSELS ,

ON THE INTERPRETATION OF ARTICLE 50 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OJ ENGLISH SPECIAL EDITION 1971 ( II ) P . 416 ),

1 BY A JUDGMENT OF 11 MAY 1977 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 26 MAY , THE TRIBUNAL DU TRAVAIL , LIEGE , REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE TREATY : ' WHAT IS TO BE UNDERSTOOD BY ' ' MINIMUM BENEFIT ' ' WITHIN THE MEANING OF ARTICLE 50 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL ( OJ ENGLISH SPECIAL EDITION 1971 ( II ) P . 416 ) WHERE , IN THE LEGISLATION OF A MEMBER STATE , NO MINIMUM PENSION OF A FIXED AMOUNT IS KNOWN BECAUSE THE CALCULATION OF BENEFITS RESTS ON THE AMOUNT OF WAGE OR SALARY AND ON THE DURATION OF THE INSURANCE PERIODS COMPLETED?

' AND THE SUPPLEMENTARY QUESTION : ' DOES THE MINIMUM BENEFIT CORRESPOND IN THAT CASE TO THE AMOUNT OF THE ' THEORETICAL PENSION ' CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 ( 2 ) ( A ) OF THE REGULATION?

' .

2 THESE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS RELATING TO AN APPLICATION BY A WORKER OF ITALIAN NATIONALITY RESIDING IN BELGIUM WHO WORKED IN ITALY FROM 1926 TO 1942 AND THEN IN 1946 AND 1947 AND IN BELGIUM FROM 1949 TO 1973 AND WHO RECEIVES A BELGIAN RETIREMENT PENSION AND AN ITALIAN RETIREMENT PENSION .

3 IN THE TERMS OF ARTICLE 50 OF THE REGULATION IN QUESTION : ' A RECIPIENT OF BENEFITS TO WHOM THIS CHAPTER APPLIES MAY NOT , IN THE STATE IN WHOSE TERRITORY HE IS PERMANENTLY RESIDENT AND UNDER WHOSE LEGISLATION A BENEFIT IS PAYABLE TO HIM , BE AWARDED A BENEFIT LESS THAN THE MINIMUM BENEFIT DETERMINED BY THAT LEGISLATION FOR A PERIOD OF INSURANCE OR RESIDENCE EQUAL TO ALL THE INSURANCE PERIODS TAKEN INTO ACCOUNT FOR THE PAYMENT IN ACCORDANCE WITH THE PROVISIONS OF THE PRECEDING ARTICLES . THE RESPONSIBLE INSTITUTION OF THAT STATE SHALL , IF NECESSARY , PAY HIM THROUGHOUT THE PERIOD OF HIS RESIDENCE IN ITS TERRITORY A SUPPLEMENT EQUAL TO THE DIFFERENCE BETWEEN THE TOTAL OF THE BENEFITS PAYABLE UNDER THIS CHAPTER AND THE AMOUNT OF THE MINIMUM BENEFIT ' .

4 THE PLAINTIFF IN THE MAIN ACTION TAKES THE VIEW THAT IF NO MINIMUM BENEFIT OF A FIXED AMOUNT IS DETERMINED BY THE BELGIAN LEGISLATION WHICH WAS APPLICABLE TO HIM THE MINIMUM BENEFIT MUST BE UNDERSTOOD AS CORRESPONDING TO THE AMOUNT OF THE THEORETICAL BELGIAN PENSION CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 2 ) ( A ) OF THE REGULATION , THAT IS TO SAY , THE AMOUNT OF THE PENSION WHICH WOULD BE PAYABLE TO HIM IF ALL HIS INSURANCE PERIODS HAD BEEN COMPLETED UNDER THE RELEVANT BELGIAN LEGISLATION .

5 ARTICLE 50 COVERS CASES WHERE THE PERIODS OF EMPLOYMENT OF THE WORKER UNDER THE LEGISLATION OF THE STATES TO WHICH HE WAS SUBJECT WERE RELATIVELY SHORT WITH THE RESULT THAT THE TOTAL AMOUNT OF THE BENEFITS PAYABLE BY THOSE STATES DOES NOT PROVIDE A REASONABLE STANDARD OF LIVING .

6 IN ORDER TO REMEDY THAT SITUATION THE ARTICLE IN QUESTION PROVIDES THAT WHERE THE LEGISLATION OF THE STATE OF RESIDENCE LAYS DOWN A MINIMUM BENEFIT , THE BENEFIT PAYABLE BY THAT STATE SHALL BE INCREASED BY A SUPPLEMENT EQUAL TO THE DIFFERENCE BETWEEN THE TOTAL OF THE BENEFITS PAYABLE BY THE DIFFERENT MEMBER STATES TO THE LEGISLATION OF WHICH THE WORKER WAS SUBJECT AND THE MINIMUM BENEFIT .

7 MOREOVER ARTICLE 5 OF THE REGULATION PROVIDES THAT THE MEMBER STATES SHALL SPECIFY IN THE DECLARATIONS REFERRED TO IN THAT ARTICLE ' THE MINIMUM BENEFITS REFERRED TO IN ARTICLE 50 ' ; THAT PROVISION ACCORDS WITH THE HYPOTHESIS THAT NOT ALL THE SYSTEMS OF LEGISLATION NECESSARILY INCLUDE MINIMUM BENEFITS OF THE TYPE IN QUESTION BUT IT WOULD SCARCELY BE COMPREHENSIBLE IF THE INTERPRETATION PUT FORWARD BY THE PLAINTIFF IN THE MAIN ACTION WERE CORRECT .

8 ACCORDING TO THE DECLARATION MADE BY THE KINGDOM OF BELGIUM A MINIMUM BENEFIT EXISTS ONLY IN THE CONTEXT OF THE LAWS RELATING TO INVALIDITY PENSIONS FOR MINEWORKERS .

9 IT IS FOR THE NATIONAL COURT TO ASSESS WHETHER THAT DECLARATION IS COMPLETE HAVING REGARD TO ALL THE NATIONAL LEGISLATION IN QUESTION .

10 MOREOVER , THE VIEW OF THE PLAINTIFF IN THE MAIN ACTION IS NOT IN ACCORDANCE WITH THE OTHER PROVISIONS OF CHAPTER III OF THE REGULATION .

11 INDEED , WHILE THOSE PROVISIONS SERVE TO ENSURE THAT PENSIONED WORKERS WHO HAVE WORKED FOR IDENTICAL PERIODS UNDER IDENTICAL SYSTEMS OF LEGISLATION RECEIVE IDENTICAL PENSIONS , THE CONSEQUENCE OF THE PLAINTIFF ' S VIEW WOULD BE THAT THOSE WORKERS WOULD RECEIVE DIFFERENT PENSIONS ACCORDING TO THEIR PLACE OF RESIDENCE AS THOSE LIVING IN THE MEMBER STATE WITH THE HIGHEST LEVEL OF PENSIONS WOULD RECEIVE A HIGHER PENSION THAN WORKERS WHO HAD THE SAME INSURANCE RECORD .

12 THE INTERPRETATION WHICH IS THEREBY PROPOSED WOULD RESULT IN GIVING ARTICLE 50 AN EFFECT WHICH , GOING BEYOND ITS LIMITED OBJECT , WOULD BRING IT IN TO CONFLICT WITH THE GENERAL OBJECTIVE OF CHAPTER III OF NOT INFLUENCING THE FREE CHOICE OF THE PLACE OF RESIDENCE WHICH ARTICLE 48 ( 3 ) ( D ) OF THE TREATY GUARANTEES TO A FORMER WORKER .

13 IT MUST THEREFORE BE CONCLUDED THAT ARTICLE 50 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL IS APPLICABLE ONLY IN CASES IN WHICH PROVISION IS MADE IN THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE WORKER RESIDES FOR A MINIMUM PENSION .

14 A REPLY TO THIS EFFECT SHOULD THEREFORE BE GIVEN TO THE QUESTIONS REFERRED TO THE COURT .

COSTS

15 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

16 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , LIEGE , BY JUDGMENT OF 11 MAY 1977 , HEREBY RULES :

ARTICLE 50 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL IS APPLICABLE ONLY IN CASES IN WHICH PROVISION IS MADE IN THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY THE WORKER RESIDES FOR A MINIMUM PENSION .