61993J0301

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Social security for migrant workers ° Invalidity insurance ° Benefits ° Alteration ° Recalculation ° Grant in another Member State of a family benefit within the meaning of Article 1(u)(i) of Regulation 1408/71 ° Excluded

(Council Regulation No 1408/71, Arts 1(u)(i), 46 and 51)

Where benefits paid in one Member State by way of an invalidity pension are calculated in accordance with Article 46 of Regulation No 1408/71, Article 51 of that regulation is to be interpreted as precluding a recalculation of the benefits in question in the event of the grant in another Member State of an allowance which is in the nature of a family benefit for the purposes of Article 1(u)(i) of the regulation or which, being granted automatically to families meeting certain objective criteria, relating in particular to their size, income and capital resources, may be considered a family benefit.

It is apparent from the wording, structure and objective of Article 51 that it relates only to benefits governed by Chapter 3 of Title III of Regulation 1408/71, which applies to pensions in respect of old age, death and invalidity. Since family benefits fall within the scope of Chapter 7 of Title III of the regulation, they are outside that of Chapter 3. It follows that the grant of a family benefit does not give rise to the application of Article 51 of the regulation and neither obliges nor authorizes the Administrative Commission to recalculate an invalidity pension in accordance with Article 46 of the Regulation.

In Case C-301/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail, Mons, for a preliminary ruling in the proceedings pending before that court between

Lio Bettaccini

and

Fonds National de Retraite des Ouvriers Mineurs (National Pension Fund for Miners, hereinafter "the FNROM"),

on the interpretation of Articles 46 and 51 of Regulation (EEC) No 1408/71 of the Council 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 codified by Regulation (EEC) No 2001/83 of the Council of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT (Second Chamber),

composed of: G.F. Mancini, President of the Chamber, F.A. Schockweiler and J.L. Murray (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

° Lio Bettaccini, by Daniele Rossini, trade-union representative,

° the Italian Government, by Professor Luigi Ferrari Bravo, Head of the Diplomatic Contentious Affairs Department in the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato,

° the Commission of the European Communities, by Maria Patakia, of the Legal Service, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 14 April 1994,

gives the following

Judgment

1 By judgment of 18 May 1993, received at the Court on 1 June 1993, the Tribunal du Travail (Labour Court), Mons (Belgium), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 46 and 51 of Regulation (EEC) No 1408/71 of the Council 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 codified by Regulation (EEC) No 2001/83 of the Council of 2 June 1983 (OJ 1983 L 230, p. 6).

2 Those questions were raised in proceedings between Mr Bettaccini ("the plaintiff") and the FNROM concerning the calculation of an invalidity pension awarded by that authority.

3 The plaintiff is an Italian national now resident in Italy who has, since 1 March 1962, received an invalidity pension payable by the competent Belgian institution. He also receives an invalidity pension in Italy.

4 In Belgium, the plaintiff satisfied all the conditions imposed by national law for entitlement to an invalidity pension, without any need to rely on periods of insurance completed in another Member State. In contrast, his Italian invalidity pension is a pro rata benefit, acquired by aggregating the periods of insurance completed in Italy and Belgium. From the beginning, the application of the anti -overlapping rules laid down in Belgian municipal law has involved a reduction in the amount of the Belgian pension, in order to take account of the Italian pension. The pension, as determined in that way, was paid until December 1989.

5 In June 1992 the Commission Administrative de la Caisse de Prévoyance (Administrative Commission of the Contingency Fund, hereinafter the "Administrative Commission"), Charleroi, was informed that, as from 1 January 1990, the plaintiff had been receiving in Italy, in addition to his Italian invalidity pension, a new benefit called a "family unit allowance" (assegno per il nucleo familiare) of LIT 90 000 a month, in respect of the family unit consisting of himself and his wife.

6 The family unit allowance was introduced into the Italian social security system with effect from 1 January 1988 by Decree-Law No 69 of 13 March 1988 (Official Gazette of the Italian Republic No 61 of 14 March 1988), subsequently converted into Law No 153 of 13 May 1988 (Official Gazette of the Italian Republic No 112 of 14 May 1988, hereinafter "Law No 153"). That allowance replaced, for, among others, employed persons, persons entitled to pensions and economic contingency benefits as a result of their employment, family allowances, additional family allowances and all other family benefits of whatever designation. According to that Law, the "family unit" is composed of spouses who are not legally separated and children under the age of 18; no age limit is set for handicapped children. Where the family unit allowance is paid to a person who is in receipt of an invalidity pension, the amount of the allowance does not depend on the amount of the invalidity pension but is fixed according to the family income and the number of persons making up the family unit. The amount is then equivalent to what would be paid to employed workers, unemployed persons or old-age pensioners receiving the same income and forming part of a family unit of the same size.

7 Taking the view that the family unit allowance was an integral part of the Italian pension, the Administrative Commission considered it appropriate to re-examine the rights of the plaintiff to the Belgian invalidity pension as from 1 January 1990, applying Article 51(2) of Council Regulation No 1408/71.

8 Article 51, headed "Revalorization and recalculation of benefits", is worded 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."

9 In re-examining the plaintiff' s entitlement, the Administrative Commission applied the Belgian anti-overlapping rule which is laid down in Article 23(1) of the Royal Decree of 19 November 1970, and according to which an invalidity pension awarded under the decree may be aggregated with one or more retirement or invalidity pensions granted pursuant to Belgian or foreign legislation only up to a maximum of the annual amount of the pension. Accordingly, the Administrative Commission reduced the plaintiff' s invalidity pension on the basis of the family unit allowance which he had been receiving in Italy since 1 January 1990 and claimed from the plaintiff repayment of BFR 450 729 for the period between 1 January 1990 and 31 October 1992.

10 The plaintiff challenged that decision before the Tribunal de Travail, Mons, claiming in particular that the family unit allowance is a family benefit which does not form an integral part of the Italian invalidity pension, and that Article 51 of Regulation No 1408/71 does not, therefore, permit his Belgian invalidity pension to be recalculated.

11 Since it was uncertain whether the part of the family unit allowance granted in respect of a dependent spouse could constitute a pension increase governed by Chapter 3 of Title III of Regulation No 1408/71, the Tribunal du Travail, Mons, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

"1. In making the calculation required by Article 46(3) of Regulation No 1408/71, may the Belgian State include in the amount of the Italian invalidity pension the part of the family unit allowance granted in Italy for a dependent spouse pursuant to Law No 153 of 13 May 1988?

2. Does the replacement of family allowances or additional family allowances by the family unit allowance instituted by Law No 1408/71 of 13 May 1988 permit, pursuant to Article 51 of Regulation No 1408/71, a fresh, comparative calculation to be made and the amounts of pensions to be updated on the basis of national law and European law, in particular Article 46 of Regulation No 1408/71?"

12 It is appropriate to consider first the second question referred by the national court.

13 That question seeks in essence to ascertain whether, where benefits paid in one Member State in respect of an invalidity pension are calculated in accordance with Article 46 of Regulation No 1408/71, Article 51 of that regulation must be interpreted as precluding a recalculation of the benefits in question in the event of the grant in another Member State of an allowance such as the family unit allowance provided for by Law No 153.

14 According to Article 51(2) of Regulation No 1408/71, there is no need to carry out a recalculation in accordance with Article 46 unless "the method of determining, or the rules for calculating benefits should be altered".

15 It is therefore necessary to establish what benefits are referred to by that provision.

16 It is apparent from the wording, structure and objective of Article 51 that it relates only to benefits governed by Chapter 3 of Title III of Regulation 1408/71, which applies to old-age and death pensions, that is to say, to survivors' and invalidity pensions. Furthermore, the wording of Article 51(2) of Regulation No 1408/71 does not any way suggest that the recalculation authorized by it should be the consequence of anything other than an alteration in the method of determining or the rules for calculating the benefits governed by that chapter.

17 It follows that where the rules for calculating other kinds of social security benefits, such as family benefits, are altered, Article 51 should not apply.

18 The family unit allowance, described at paragraph 6 above, is in the nature of a family benefit within the meaning of Article 1(u)(i) of Regulation 1408/71. Under that provision, the term "family benefits" means all benefits in kind or in cash intended to meet family expenses under the legislation provided for in Article 4(1)(h) of Regulation 1408/71. Moreover, a benefit which is granted automatically to families meeting certain objective criteria, relating in particular to their size, income and capital resources, must be considered a family benefit for the purposes of Article 4(1)(h) of Regulation No 1408/71 (see judgment in Case C-78/91 Hughes v Chief Adjudication Officer [1992] ECR I-4839).

19 Accordingly, the family unit allowance falls within the scope of Chapter 7 (entitled "Family benefits and family allowances") of Title III of Regulation No 1408/71 and outside that of Chapter 3. The award of such an allowance to the plaintiff does not therefore give rise to the application of Article 51 of the regulation and neither obliges nor authorizes the Administrative Commission to recalculate his invalidity pension in accordance with Article 46 of the regulation.

20 The answer to be given to the second question must therefore be that where benefits paid in one Member State by way of an invalidity pension are calculated in accordance with Article 46 of Regulation No 1408/71, Article 51 of that regulation is to be interpreted as precluding a recalculation of the benefits in question in the event of the grant in another Member State of an allowance which is in the nature of a family benefit for the purposes of Article 1(u)(i) of Regulation No 1408/71 or which, being granted automatically to families meeting certain objective criteria, relating in particular to their size, income and capital resources, may be considered a family benefit.

21 Having regard to the reply given to the second question, there is no need to consider the first.

Costs

22 The costs incurred by the Italian Government and the Commission of the European Communities, 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 (Second Chamber),

in answer to the questions referred to it by the Tribunal du Travail, Mons, by judgment of 18 May 1993, hereby rules:

Where benefits paid in one Member State in respect of an invalidity pension are calculated in accordance with Article 46 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and their families moving within the Community, as codified by Regulation (EEC) No 2001/83 of the Council of 2 June 1983, Article 51 of that regulation must be interpreted as precluding a recalculation of the benefits in question in the event of the grant in another Member State of an allowance which is in the nature of a family benefit for the purposes of Article 1(u)(i) of Regulation No 1408/71 or which, being granted automatically to families meeting certain objective criteria, relating in particular to their size, income and capital resources, may be considered a family benefit.