OPINION OF MRS ADVOCATE GENERAL ROZÈS

DELIVERED ON 22 OCTOBER 1981 ( 1 )

Mr President,

Members of the Court,

The case before the Court concerns the interpretation of Article 51 of Regulation 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 (Official Journal, English Special Edition 1971 (II), p. 416).

The case is complicated by the interplay of the various rules for determining the amount of the benefits due.

Let us briefly recall the facts of the case.

Antonino Sinatra, a married Italian national, first worked from 1948 to 1956 as an employed person in Italy then from 1957 to 1970 as an underground mine-worker in Belgium, thus for more than 10 years.

That record of employment entitled him to an Italian invalidity pension, a Belgian invalidity pension and, in addition, to pension payments solely under Belgian ¡aw for occupational disease contracted in Belgium.

The amounts of those benefits have since 1970 been subject to variations, some of them the result of normal adjustments, other owing to changes in the claimant's family situation and others, finally, owing to the decision of the Mine-workers' National Pension Fund which, having conducted a comprehensive review of Antonino Sinatra's case, established that he had received an “overpayment” of BFR 38000 in respect of the period from January 1976 to January 1979. Those are the facts which led to the plaintiff's bringing a claim before the Tribunal du Travail [Labour Tribunal], Charleroi, and then to his appeal to the Cour du Travail [Labour Court], Mons. and thence to the questions referred to the Court of Justice by that court.

I — I think it would be helpful, for an understanding of this case, which involves difficult questions of interpretation of the rules against the overlapping of benefits, to set out in chronological order the history of the benefits paid.

II — Antonino Sinatra brought the matter before the Tribunal du Travail [Labour Tribunal], Charleroi, for he contested, essentially, the taking into consideration the amount of the Italian benefits as from 1 January 1976.

The Tribunal dismissed his claim, holding that “it is of little importance that in this case the Italian benefit was not altered and it is sufficient that an alteration could have been made, as frequently occurs in all pension schemes following a change in civil status”.

The claimant appealed to the Cour du Travail [Labour Court], Mons, and requested that court to refer to the Court of Justice the following preliminary question:

“Where, in accordance with the legislation of a Member State, a pension granted at the ‘household’ rate is transformed into a pension at the ‘single’ rate, must a fresh calculation of all benefits be carried out in accordance with the provisions of Article 46 of Regulation No 1408/71 even though the alteration effected by the institution of the State concerned has no effect on the pension paid in another State?” (emphasis added).

The questions which have been referred to this Court are concerned in their essentials to ascertain whether:

III — Article 51 of Regulation No 1408/71 which appears in Chapter 3 thereof entitled “Old-age and death (pensions)” but which also applies by analogy to Section 2 of Chapter 2 concerning “invalidity” is headed “Revalorization and recalculation of benefits” (emphasis added). It provides as follows:

“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 Article 46, without the need for a recalculation in accordance with the provisions of that Article.

2.   On 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 Article 46” (emphasis added).

That article thus clearly distinguishes, by treating them separately, between the case of revalorization where there is no need for a recalculation under Article 46, and the case of a fresh payment made necessary by an alteration in the method of determining benefits or in the rules for calculating them, in which case there must be a recalculation under Article 46. Article 51 (1) is concerned with those variations which, whilst not fundamentally altering benefits, have the effect of increasing them since the cost of living and the level of wages have a general tendency to rise.

The conversion of a pension at the “married” rate into one at the “single” rate, that is to say, in the case of the Belgian legislation, into a pension of a man “not having a dependent child under the age of 16 years, whose spouse is in receipt of income from a trade or profession or other social advantages which exceed those resulting from the permitted activity”, entails an alteration downwards of the benefit and comes within Article 51 (2), even if that alteration results from the application of a provision of internal law “relating to the amount of the pension” and even if “as such” the internal rules of law “relating to the method of determining benefits” have not changed.

It is thus clear that, to adopt the terms used by the national court, the revalorization referred to in the heading to Article 51 of Regulation No 1408/71 of 14 June 1971 constitutes the normal area of application of paragraph (1) of that article with the result that the instances referred to in paragraph (2) mainly cover cases where a recalculation of the benefits results in a less favourable situation.

If the method of determining, or the rules for calculating the benefits should be altered, which appears to be the case here, a recalculation must be carried out in accordance with the provisions of Article 46 as interpreted by the case-law of this Court in particular in its judgment of 13 October 1977, Greco v Fonds National de Retraite des Ouvriers Mineurs [1977] ECR 1711 and in its judgment of 16 May 1979 in Mura v Fonds National de Retraite des Ouvriers Mineurs [1979] ECR 1819. In this respect it is of little importance that the alteration affects the portion of benefits paid in one Member State. The recalculation must be carried out as regards the benefits of all the Member States concerned.

However, in order to reply usefully to the questions of the court making the reference, I would add that, whilst the provisions of Regulation No 1408/71 do not prevent national laws, including their rules against the overlapping of benefits (in this instance Article 23 (3) of the Royal Decree of 19 November 1970), from being applied in their entirety to a recipient of a pension in the appellant's situation, it is not permissible, on the pretext of applying Article 51 (2) of that regulation, to take into consideration, in order to reduce the “independent” national benefit, the re-assessments of a pension paid by another Member State which come under Article 51 (1). Nor may the provisions of Article 46 (3) and of its corollary Article 7 (1) (c) of Regulation No 574/72 be used for such a purpose. Such procedures go beyond the objective of coordination enshrined in Article 51 of the Treaty and properly belong to the sphere of the harmonization of national laws.

In other words when, in accordance with the legislation of one Member State (Belgium), an invalidity pension (acquired by virtue of Belgian law alone) granted at the “household” rate is convened into a pension at the “single” rate and that conversion has no effect upon another invalidity pension (acquired in Italy by virtue of Regulation No 1408/71), it is not permissible to take into consideration the revalorizations of one pension (the Italian pension) even if that were done in order to carry out a recalculation required in such a case by Belgian law in order to avoid an undue overlapping of benefits.

It is not permissible to reduce the Belgian benefit (which is payable solely by virtue of Belgian law) by taking into account the pension paid in Italy, by virtue of the Community rules (and of increases made in that pension).

In the light of the foregoing observations I conclude that, in reply to the questions submitted to this Court by the Cour du Travail [Labour Court], Mons, the following ruling should be given:

( 1 ) Translated from the French.