61980J0004

SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES AGAINST OVERLAPPING BENEFITS - NON-APPLICABILITY TO RECIPIENTS OF SIMILAR KINDS OF BENEFITS AWARDED IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 3 OF REGULATION NO 1408/71 - INVALIDITY BENEFITS CONVERTED INTO OLD-AGE PENSIONS AND UNCONVERTED INVALIDITY BENEFITS - ASSIMILATION TO BENEFITS OF THE SAME KIND

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 12 ( 2 ) AND CHAPTER 3 )

WHERE A WORKER IS IN RECEIPT OF INVALIDITY BENEFITS CONVERTED INTO AN OLD-AGE PENSION BY VIRTUE OF THE LEGISLATION OF A MEMBER STATE AND OF INVALIDITY BENEFITS NOT YET CONVERTED INTO AN OLD-AGE PENSION UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , THE OLD-AGE PENSION AND THE INVALIDITY BENEFITS ARE TO BE REGARDED AS BEING OF THE SAME KIND . IN SUCH A CASE THE PROVISIONS OF CHAPTER 3 OF REGULATION NO 1408/71 ARE APPLICABLE FOR THE PURPOSE OF DETERMINING THE RIGHTS OF THE WORKER , AND , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF THE REGULATION , THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING IS PRECLUDED .

IN CASE 4/80

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

REMO D ' AMICO

AND

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( NATIONAL PENSION OFFICE FOR EMPLOYED PERSONS )

ON THE INTERPRETATION OF THE COMMUNITY REGULATIONS APPLYING TO SOCIAL SECURITY ,

1 BY AN ORDER OF 3 JANUARY 1980 WHICH WAS RECEIVED AT THE COURT ON 9 JANUARY 1980 THE TRIBUNAL DE TRAVAIL ( LABOUR TRIBUNAL ), CHARLEROI , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY A QUESTION AS TO THE INTERPRETATION OF ARTICLES 12 , 46 AND 50 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 ).

2 THE QUESTION HAS BEEN RAISED IN THE CONTEXT OF A DISPUTE CONCERNING THE CALCULATION BY THE COMPETENT BELGIAN INSTITUTION OF AN OLD-AGE PENSION DUE TO AN ITALIAN WORKER WHO , HAVING WORKED IN ITALY BETWEEN 1948 AND 1952 , MOVED TO BELGIUM WHERE HE WAS EMPLOYED AS A MINER UNDERGROUND FROM 1952 TO 1972 .

3 ACCORDING TO THE ORDER BY THE TRIBUNAL DE TRAVAIL IT SEEMS THAT FROM 1973 TO 1977 HE RECEIVED A BELGIAN INVALIDITY PENSION . IN DECEMBER 1976 HE APPLIED IN BELGIUM FOR A RETIREMENT PENSION WITH EFFECT FROM 1 OCTOBER 1977 .

4 THE OFFICE NATIONAL DES PENSIONS DES TRAVAILLEURS SALARIES ( ONPTS ) DECIDED TO GRANT THE CLAIMANT A RETIREMENT PENSION OF BF 254 133 A YEAR FROM THAT DATE PURSUANT TO NATIONAL LEGISLATIVE PROVISIONS , THE AMOUNT OF THE PENSION BEING DETERMINED ON THE BASIS OF 25 YEARS OF SERVICE IN THE MINES AND FIVE NOTIONAL YEARS . SINCE 1 NOVEMBER 1975 THE CLAIMANT HAS ALSO BEEN IN RECEIPT OF AN ITALIAN INVALIDITY PENSION . ON 1 OCTOBER 1977 THAT PENSION WAS LIT 705 830 A YEAR .

5 THE ONPTS TOOK THE VIEW THAT BECAUSE OF THE ITALIAN PENSION FOUR OF THE FIVE NOTIONAL YEARS COULD NOT BE TAKEN INTO ACCOUNT . THE FULL WORKING LIFE OF A MINER UNDERGROUND IS RESTRICTED TO 30 YEARS IN BELGIUM . TO TAKE THE FIVE NOTIONAL YEARS INTO ACCOUNT IN THE CALCULATION OF THE PENSION WOULD AMOUNT TO AWARDING HIM A PENSION OF 34 YEARS AS A MINER UNDERGROUND AFTER THE ITALIAN PENSION IS TAKEN INTO ACCOUNT . FOR THAT REASON THE ONPTS TREATED THE SIX YEARS ' EMPLOYMENT IN ITALY AS FOUR YEARS AS A MINER UNDERGROUND ; IT CALCULATED THE CLAIMANT ' S PENSION ON THE BASIS OF 26/30THS OF THE FULL AMOUNT - 25 ACTUAL YEARS PLUS ONE NOTIONAL YEAR - AND REDUCED HIS PENSION FROM BF 254 133 TO BF 234 925 A YEAR WITH EFFECT FROM 1 OCTOBER 1977 .

6 MR D ' AMICO MADE AN APPLICATION TO THE TRIBUNAL DU TRAVAIL , CHARLEROI , SEEKING THE PAYMENT OF THE FULL PENSION OF BF 253 133 WITHOUT PREJUDICE TO THE ITALIAN INVALIDITY PENSION .

7 THE AUDITEUR DU TRAVAIL ( OFFICER REPRESENTING THE PUBLIC INTEREST IN LABOUR MATTERS ) AT THE TRIBUNAL CAME TO THE CONCLUSION THAT THE CLAIMANT COULD NOT RECEIVE A BELGIAN RETIREMENT PENSION OWING TO THE COMBINED EFFECT OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 , WHICH PROVIDES THAT THE LEGISLATIVE PROVISIONS OF A MEMBER STATE FOR THE SUSPENSION OF BENEFIT IN THE CASE OF THE OVERLAPPING OF ONE BENEFIT WITH ANOTHER SOCIAL SECURITY BENEFIT WHICH IS NOT OF THE SAME NATURE MAY BE INVOKED AS AGAINST THE RECIPIENT , AND OF ARTICLE 25 OF ARRETE ROYAL NO 50 OF 24 OCTOBER 1967 ( AS AMENDED BY ARTICLE 10 OF THE LAW OF 27 JULY 1971 ) WHICH PROVIDES FOR THE SUSPENSION OF THE PAYMENT OF A BELGIAN RETIREMENT PENSION WHEN AN INSURED PERSON IS IN RECEIPT OF A FOREIGN INVALIDITY PENSION .

8 IN THOSE CIRCUMSTANCES THE TRIBUNAL DU TRAVAIL TOOK THE VIEW THAT IT HAD TO STAY THE PROCEEDINGS AND REFER THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' ' IF A FORMER WORKER OF ITALIAN NATIONALITY WHO IS LESS THAN 60 YEARS OLD IS RESIDENT IN BELGIUM ;

AND IF HE HAS BEEN FOUND TO BE ENTITLED TO A FULL INSURANCE RECORD IN BELGIUM AS AN UNDERGROUND MINER OF 30/30THS , ON THE BASIS OF HAVING WORKED FOR 25 YEARS AS AN UNDERGROUND MINER ;

AND IF HE HAS BEEN AWARDED AN INVALIDITY PENSION IN ITALY ON THE BASIS OF EMPLOYMENT THERE :

1 . IS ARTICLE 25 OF ARRETE ROYAL NO 50 OF 24 OCTOBER 1967 ( AS AMENDED BY ARTICLE 10 OF THE LAW OF 27 JULY 1971 ) RELATING TO THE RETIREMENT AND SURVIVOR ' S PENSION OF EMPLOYED PERSONS COMPATIBLE WITH THE OBJECT OF ARTICLES 12 , 46 AND 50 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL?

2 . IS ARTICLE 25 OF THE ARRETE ROYAL OF 24 OCTOBER 1967 ( AS AMENDED BY ARTICLE 10 OF THE LAW OF 27 JULY 1971 ) COMPATIBLE WITH ARTICLES 48 TO 51 OF THE TREATY OF ROME?

3 . ARE ARTICLES 12 , 46 AND 50 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL COMPATIBLE WITH ARTICLES 48 TO 51 OF THE TREATY?

' '

9 IT APPEARS THAT THE NATIONAL COURT WISHES TO KNOW WHETHER , WHEN A WORKER IS IN RECEIPT OF INVALIDITY BENEFITS CONVERTED INTO AN OLD-AGE PENSION BY VIRTUE OF THE LEGISLATION OF A MEMBER STATE AND INVALIDITY BENEFITS NOT YET CONVERTED INTO AN OLD-AGE PENSION UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , THE APPLICATION OF A NATIONAL RULE AGAINST OVERLAPPING ACCORDS WITH COMMUNITY LAW .

10 ARTICLE 12 OF REGULATION NO 1408/71 CONCERNS THE NON-OVERLAPPING OF BENEFITS . ARTICLE 12 ( 2 ) PROVIDES THAT ' ' THE PROVISIONS OF THE LEGISLATION OF A MEMBER STATE FOR REDUCTION , SUSPENSION OR WITHDRAWAL 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 45 , 50 , 51 OR ARTICLE 60 ( 1 ) ( B ). ' '

11 THE PROBLEM WHICH ARISES IN THIS CASE IS TO DETERMINE WHICH PROVISIONS APPLY WHEN A WORKER IS IN RECEIPT IN ONE MEMBER STATE OF AN INVALIDITY PENSION CONVERTED INTO AN OLD-AGE PENSION AND AN UNCONVERTED INVALIDITY PENSION IN ANOTHER MEMBER STATE AND IN PARTICULAR WHETHER IN SUCH A CASE THE BENEFITS ARE OF THE SAME NATURE OR MUST BE SO REGARDED .

12 ARTICLE 40 ( 1 ) OF REGULATION 1408/71 PROVIDES IN REGARD TO INVALIDITY BENEFITS THAT A WORKER WHO HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATIONS OF TWO OR MORE MEMBER STATES , OF WHICH AT LEAST ONE IS NOT OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) ( THAT IS TO SAY IN WHICH THE AMOUNT OF INVALIDITY BENEFITS IS INDEPENDENT OF THE LENGTH OF PERIODS OF INSURANCE ), SHALL RECEIVE BENEFITS UNDER THE PROVISIONS OF CHAPTER 3 ( OLD-AGE AND DEATH PENSIONS ), WHICH SHALL APPLY BY ANALOGY . IT IS APPARENT FROM ANNEX III TO THE REGULATION THAT THE ITALIAN INVALIDITY PENSION IS NOT OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) OF THE REGULATION .

13 ARTICLE 43 ( 1 ) PROVIDES THAT INVALIDITY BENEFITS SHALL BE CONVERTED INTO OLD-AGE BENEFITS , WHERE APPROPRIATE , UNDER THE CONDITIONS LAID DOWN BY THE LEGISLATION OR LEGISLATIONS UNDER WHICH THEY WERE GRANTED , AND IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 3 .

14 PARAGRAPH ( 2 ) OF THE SAME ARTICLE PROVIDES THAT ANY INSTITUTION OF A MEMBER STATE WHICH IS RESPONSIBLE FOR PROVIDING INVALIDITY BENEFITS SHALL , WHERE A PERSON RECEIVING INVALIDITY BENEFITS CAN BY VIRTUE OF THE PROVISIONS OF ARTICLE 49 , ESTABLISH A CLAIM TO OLD-AGE BENEFITS UNDER THE LEGISLATION OF OTHER MEMBER STATES , CONTINUE TO PROVIDE SUCH PERSON WITH THE INVALIDITY BENEFITS TO WHICH HE IS ENTITLED UNDER THE LEGISLATION WHICH IT ADMINISTERS UNTIL THE PROVISIONS OF PARAGRAPH ( 1 ) BECOME APPLICABLE AS REGARDS THAT INSTITUTION .

15 ALTHOUGH THAT PROVISION ONLY EXPRESSLY REFERS TO THE OBLIGATION OF AN INSTITUTION , RESPONSIBLE FOR PROVIDING THE INVALIDITY BENEFITS WHICH HAVE NOT BEEN CONVERTED INTO OLD-AGE BENEFITS , TO CONTINUE TO PROVIDE BENEFITS TO A PERSON RECEIVING THE INVALIDITY BENEFITS , WHEN ACCOUNT IS TAKEN OF ARTICLES 48 TO 51 OF THE TREATY THAT PROVISION IMPLIES THAT AN INSTITUTION PROVIDING INVALIDITY BENEFITS WHICH HAVE BEEN CONVERTED INTO OLD-AGE BENEFITS IS NOT EMPOWERED TO STOP GRANTING THOSE BENEFITS ON THE GROUND THAT THE RECIPIENT THEREOF IS ALSO IN RECEIPT OF INVALIDITY BENEFITS WHICH HAVE NOT YET BEEN CONVERTED .

16 IT IS ACCORDINGLY PERMISSIBLE TO CONCLUDE THAT INVALIDITY BENEFITS CONVERTED INTO OLD-AGE PENSIONS AND UNCONVERTED INVALIDITY BENEFITS ARE TO BE REGARDED AS BEING OF THE SAME NATURE AND THAT IT FOLLOWS THAT THE PROVISIONS OF CHAP- TER 3 ARE APPLICABLE TO THEM .

17 IN THOSE CIRCUMSTANCES THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF THE REGULATION PRECLUDES THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING .

18 THEREFORE THE ANSWER TO THE QUESTION RAISED BY THE TRIBUNAL DU TRAVAIL MUST BE THAT WHERE A WORKER IS IN RECEIPT OF INVALIDITY BENEFITS CONVERTED INTO AN OLD-AGE PENSION BY VIRTUE OF THE LEGISLATION OF A MEMBER STATE AND OF INVALIDITY BENEFITS NOT YET CONVERTED INTO AN OLD-AGE PENSION UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , THE OLD-AGE PENSION AND THE INVALIDITY BENEFITS ARE TO BE REGARDED AS BEING OF THE SAME KIND , THE PROVISIONS OF CHAPTER 3 OF REGULATION NO 1408/71 ARE APPLICABLE FOR THE PURPOSE OF DETERMINING THE RIGHTS OF THE WORKER , AND , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF THE REGULATION , THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING IS PRECLUDED .

19 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT , THE ITALIAN GOVERNMENT , THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE COUNCIL OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . 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 QUESTION REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , BY ORDER OF 3 JANUARY 1980 , HEREBY RULES :

WHERE A WORKER IS IN RECEIPT OF INVALIDITY BENEFITS CONVERTED INTO AN OLD-AGE PENSION BY VIRTUE OF THE LEGISLATION OF A MEMBER STATE AND OF INVALIDITY BENEFITS NOT YET CONVERTED INTO AN OLD-AGE PENSION UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , THE OLD-AGE PENSION AND THE INVALIDITY BENEFITS ARE TO BE REGARDED AS BEING OF THE SAME KIND , THE PROVISIONS OF CHAPTER 3 OF REGULATION NO 1408/71 ARE APPLICABLE FOR THE PURPOSE OF DETERMINING THE RIGHTS OF THE WORKER , AND , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF THE REGULATION , THE APPLICATION OF NATIONAL RULES AGAINST OVERLAPPING IS PRECLUDED .