1.1.

Mrs Saelens, née Vlaeminck, a widow, worked in Belgium from 1926 to 1929 and from 1950 to 197C and in France from 1931 to 1936. Her late husband worked in Belgium from 1926 to 1929 and from 1940 to 1942 and as a frontier worker in France from 1930 to 1939. By a decision of 9 August 1971 she was granted a retirement pension by the Belgian Institution. That pension was acquired on the basis of the fraction ( 1 )1/40 per calendar year and so the period of eligible service was calculated at 25/40 by virtue of the 23 years of employment in Belgium. In addition, in 1971 she was granted a French retirement pension, on the basis of the period of employment in France, by the Caisse Régionale d'Assurance Maladie du Nord de la France [Regional Sickness Insurance Fund of Northern France, hereinafter referred to as “the French Institution”]. At the same time the Belgian Institution granted her a survivor's pension. As in the case of the Belgian retirement pension the grant of that benefit was based on Royal Decree No 50 on retirement and survivor's pensions for employed persons (Belgisch Staatsblad of 27 October 1967). It appears from the information supplied by the Belgian Institution that that survivor's pension was granted not merely in respect of the period of years worked by her husband in Belgium but also in respect of the period spent as a frontier worker in France (1930 to 1939). Instead of 7/17 the period of eligible service was fixed at 17/17 on the basis of Article 18 (6) of the abovementioned Royal Decree. That paragraph provides as follows:

“Notwithstanding anything to the contrary in the foregoing paragraphs and in the case of the activities specified in the fifth paragraph of Article 10 (seasonal or frontier work in an adjacent country) the widow of an employed person may receive a survivor's pension equal to the difference between the survivor's pension which she would receive if that activity had been performed in Belgium and the pension which is received in respect of the same activitv under the legislation of the country of employment.

That pension shall represent a minimum pension. However, tor the purposes of Article 50 of Regulation No 1408/71 of the Council of the European Communities on the application of social security schemes to employed persons and their families moving within the Community, no account shall be taken of the foreign pension in determining that minimum pension.”

As is clear from that provision, the absence of any right to a survivor's pension in France was the ground upon which the Belgian Institution took into account the years of frontier work in that country pursuant to Article 18 (6) of the Royal Decree.

However, the Royal Decree of 21 December 1967 contains a provision against the overlapping of benefits, which reads as follows:

“A survivor's pension granted pursuant to Royal Decree No 50 may only overlap with one or more retirement pensions or any other equivalent benefits granted under Belgian or foreign legislation or under a pension scheme for officials of a body established under international law up to an amount equal to 110 % of the amount of the survivor's pension granted to the widow multiplied by the fraction, inverted and if necessary reduced to unity, used to calculate the retirement pension which forms the basis for calculating the survivor's pension.”

The survivor's pension granted, which was calculated as from 1 September 1971 at BFR 359910, thus results in a cumulative limit of BFR 65901 (BFR 59910 x 17/17 x 110 %). After deduction of the total of the Belgian and French retirement pensions, amounting to BFR 45437. the resulting amount to be paid bv way of survivor's pension was BFR 20464.

1.2.

The French Institution, however, decided on 25 November 1976 also to grant Mrs Saelens a survivor's pension of BFR 11554 (FF 1418) with effect from 1973. It appears from the information before the Court that that is a proportional pension, calculated pursuant to Article 46 (2) (a), (b). (c) and (d) of Regulation No 1408/71, in respect of the period 1930 to 1939, which period was also taken as the basis for calculating the Belgian survivor's pension. The decision of the French Institution further stated that that pension was reduced to nil pursuant to Article 12 of Regulation No 1408/71 and Article 7 of Regulation No 574/71.

From the reference to those provisions it may be deduced that the decision that no payment was due in respect of that pension was arrived at as a result of the application of a national provision against the overlapping of benefits. Which national rule was in fact applied is however not immediately clear. The Commission thought that it was Article 90 of Decree No 45-0179 of 29 December 1945 (inserted by Decree No 75-109 of 24 February 1975). However, even the text of that provision, which was quoted by the Commission, is not sufficient to explain the decision of the French Institution. As a result of the granting of the French survivor's pension, but certainly not as a result of its reduction to nil, the Belgian Institution undertook on its own initiative a review of the Belgian survivor's pension paid to Mrs Saelens. On this occasion, instead of the period of employment expressed as the fraction 17/17 determined pursuant to Article 18 (6) of the abovementioned Royal Decree No 50, solely the years worked in Belgium by her husband were taken into account (1926 to 1929 and 1940 to 1942), with the result that the fraction was fixed at Vi?. The theoretical amount of the pension was calculated at BFR 76315, which resulted in a proportional pension of BFR 30312. According to the statement of the Belgian Institution in its supplementary information, that proportional survivor's pension is higher than the suvivor's pension which would be granted solely by the application of national (Belgian) law. After application of the aforementioned rule against the overlapping of benefits the amount to be granted was only BFR 25761. The rule contained in Article 18 (6) was thus no longer applicable.

2.1.

As a result of the reduction of her Belgian survivor's pension Mrs Saelens applied to the Arbeidsrechtbank [Labour Tribunal] to have the revised decision of the Belgian Institution quashed. That court set aside the decision on the ground that it was not based on reasons susceptible of review. The Belgian Institution appealed to the Arbeidshof [Labour Court], Ghent, against thai judgment. That court referred to the Court of Justice the question:

“Whether pursuant to Regulation No 1408/71 the rules against the overlapping of benefits may once more be applied in Belgium to a survivor's pension awarded in France to a Belgian but not made payable.”

The Arbeidshof pointed out that:

“The claimant was awarded a survivor's pension of FF 1418 from 1 January 1973 in France but bv virtue of Article 12 of Regulation (EEC) No 1408/71 and Article 7 of Regulation (EEC) No 574/72 it was declared not to be payable; the Rijksdienst voor Werknemerspensioenen awarded the claimant an unchanged retirement pension but the survivor's pension was reduced by the French survivor's pension pursuant to the rule against the overlapping of benefits contained in the aforesaid EEC regulations.”

2.2.

It is immediately apparent from the further information given by the Belgian Institution that this question is based on several misapprehensions. In the first place, no Belgian rule against the overlapping of benefits was applied to the French survivor's pension which was granted but reduced to nil. The rule in question was merely applied to the Belgian and French retirement pensions and to the overlapping of the Belgian and French retirement pensions with the revised Belgian survivor's pension. In respect of the latter Mrs Saelens remained in receipt of the higher proportional payment. In the second place, the Belgian survivor's pension has not been reduced by the French survivor's pension which was reduced to nil. On the contrary, the grant of the French survivor's pension caused the Belgian Institution to reassess the Belgian survivor's pension, but the amount of the French pension did not affect the fixing of the Belgian pension. What did happen was that the beneficial rule in Article 18 (6) of Royal Decree No 50 in favour of frontier workers was replaced by a normal pro rata provision whereby only her husband's period of employment in Belgium was relevant. Thus it may be seen that this case does not involve a possible dual application of national rules against the overlapping of benefits but the abandonment of the rule in the Royal Decree, by which the period of employment was expressed as the fraction 17/17 in favour of a pro rata provision by which the fraction was fixed at 7/17 with the result that the Belgian survivor's pension was reduced accordingly.

2.3.

That such a misunderstanding came about may perhaps be explained on account of the nature of the French decision, which, as the Commission observed, is unclear. It would be for the competent French courts alone to determine the correctness of that decision. The question arises whether the reconsideration by the Belgian Institution of the Belgian survivor's pension may be a ground upon which the French Institution may also apply a pro rata rule to the French survivor's pension without applying any rule against the overlapping of benefits, now that, as far as may be gleaned from the facts, the ground for applying the French rule against the overlapping of benefits no longer subsists. As I have stated, the Court need not rule on that question in these proceedings.

3.1.

In the light of the above, the question raised by the Arbeidshof should be construed as concerning the conformity with Community law of the conversion of the survivor's pension granted pursuant to Article 18 (6) of Royal Decree No 50 into a pro rata survivor's pension. Tested against the provisions of Regulation No 1408/71, the grant of a proportional survivor's pension of BFR 303127/175 of the theoretical pension of BFR 73615) may be regarded as a correct application of Article 46 (2) (b) of that regulation. The grant of a pro rata benefit is in itself likewise in compliance with Regulation No 1408/71, since that regulation contains no provisions to the contrary as regards retirement and survivor's pensions for frontier workers.

As far as the application of the provision in Article 12 (2) of Regulation No 1408/71 is concerned, it may be said that both the Belgian retirement and survivor's pensions and the French retirement pension are proportional benefits determined on the basis of the provisions of Regulations Nos 3 and 4 and 1408/71. The second sentence of Article 12 (2) relating to benefits “of the same kind” determined on the basis of Article 46, 50, 51 or 60 of Regulation No 1408/71 is not applicable, because what is involved is the overlapping of retirement pensions on the one hand and a survivor's pension on the other; therefore the application of the Belgian rule against the overlapping of benefits is justified.

3.2.

As regards the possible applicability of Aside 50 of Regulation No 1408/71 concerning a minimum pension, I share the opinion of the Commission, which convincingly demonstrated in its written observations that the pension awarded pursuant to Article 18 (6) of Royal Decree No 50 is not a minimum pension within the meaning of Article 50 of the regulation. But even if such a proposition is accepted, the question of the computation of the minimum pension is a matter for Belgian law upon which the Court of Justice is not competent to pronounce. I refer the Court in that connection to its recent judgment in Case 22/81 (R. v Social Security Commissioner, ex parte Browning [1981] ECR 3357) and in particular to paragraph 10 thereof.