61989J0085

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Social security for migrant workers - Old-age and survivors' insurance - Benefits - Adjustments - Recalculation - Conditions

( Council Regulation No 1408/71, Art . 51 )

Article 51 of Regulation No 1408/71 is to be interpreted as meaning that when, under national rules against the overlapping of benefits, the pension paid to a worker by a Member State has been calculated at an amount such that, when added to the amount of a benefit of a different kind paid by another Member State, it does not exceed a certain ceiling, the pension is not to be recalculated in order to prevent that ceiling from being exceeded if subsequent adjustments are made to the other benefit on account of the general evolution in the economic and social situation .

In Case C-85/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal du travail ( Labour Tribunal ), Nivelles, for a preliminary ruling in the action pending before that court between

Maria Ravida

and

Office national des pensions ( National Pensions Fund )

on the interpretation of Article 51 of Council Regulation ( EEC ) No 1408/71 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 ( version codified by Council Regulation ( EEC ) No 2001/83 of 2 June 1983, Official Journal 1983, L 230, p . 6 ),

THE COURT ( Third Chamber )

composed of : M . Zuleeg, President of Chamber, J . C . Moitinho de Almeida and F . Grévisse, Judges,

Advocate General : F . G . Jacobs

Registrar : D . Louterman, Principal Administrator

after considering the observations submitted on behalf of

Mrs Ravida, by D . Rossini, union delegate;

the Office national des pensions, by R . Masyn, General Director; and

the Commission of the European Communities, by J.-C . Séché, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Ravida, of the Office national des pensions, represented by R . Masyn and J . P . Lheureux, Administrative Secretary, and of the Commission at the hearing on 9 January 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 7 February 1990,

gives the following

Judgment

1 By judgment dated 7 March 1989, which was received at the Court on 15 March 1989, the tribunal du travail, Nivelles, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 51 of Council Regulation ( EEC ) No 1408/71 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 ( version codified by Council Regulation ( EEC ) No 2001/83 of 2 June 1983, Official Journal 1983, L 230, p . 6 ).

2 That question arose in a dispute between Mrs Ravida, the plaintiff in the main proceedings, and the Office national des pensions ( hereinafter referred to as "the ONP "), which is the competent Belgian authority for the payment of old-age benefits .

3 It is apparent from the documents in the case that Mrs Ravida has been employed in Italy and Belgium, as was her husband .

4 Mrs Ravida' s working career in Italy entitled her to an Italian retirement pension in her own right as from 1 April 1978 . When her husband died in September 1978, she was also granted an Italian survivor' s pension on the basis of his working career .

5 Mrs Ravida' s entitlement to a Belgian retirement pension on the basis of her own, and a Belgian survivor' s pension on the basis of her husband' s, employment in Belgium commenced on 1 April 1980 .

6 On that date, the combined amount of the retirement and survivor' s pensions paid to Mrs Ravida by the competent Italian institution came to BFR 20 997 . The Caisse nationale des pensions de retraite et de survie ( National Retirement and Survivors' Pensions Fund ), hereinafter referred to as "the CNPRS", the predecessor of the ONP, should have paid BFR 87 962 and BFR 95 543 in respect of the Belgian retirement and survivor' s pensions respectively . Mrs Ravida would therefore have received a total of BFR 204 502 .

7 However, Article 52 of the Belgian Royal Decree of 21 December 1967 lays down a rule against overlapping under which a survivor' s pension may be aggregated with one or more retirement pensions or other benefits awarded in their stead under Belgian or foreign legislation only up to a certain ceiling .

8 In Mrs Ravida' s case, the ceiling was BFR 197 057 . The survivor' s pension calculated by the Belgian institution was therefore reduced by BFR 7 445 in order to bring the total amount of the Belgian retirement and survivor' s pensions to BFR 176 060 so that the aggregate of the Belgian and Italian pensions was equal to the maximum permitted amount of BFR 197 057 .

9 According to the national court' s judgment, the decisions fixing Mrs Ravida' s pension entitlements calculated in the above manner were notified to her on 10 December 1982 and were not contested within the prescribed period .

10 The CNPRS subsequently found that, pursuant to the Italian rules relating to the index-linking of pensions, the Italian retirement pension paid to Mrs Ravida had increased, with the result that the combined amount of the four pensions was in excess of the ceiling laid down by the Belgian legislation . It therefore decided to reduce the amount of the Belgian survivor' s pension paid to the recipient with effect from July 1986, in order to comply with that ceiling .

11 Mrs Ravida then brought an action before the tribunal du travail, Nivelles, claiming that such a decision was contrary to Article 51(1 ) of Regulation No 1408/71 .

12 In those circumstances, the tribunal du travail decided to stay the proceedings until the Court had given a preliminary ruling on the following question :

"Where the legislation of a Member State provides for a ceiling where retirement and survivor' s pensions overlap ( in the present case Article 52 of the Royal Decree of 21 December 1967 ) and that ceiling has been determined at the date when the pension was first paid taking into consideration also the benefit payable by another Member State, is the competent institution of the first State justified in taking account of adjustments to the benefit granted by the other Member State in order to recalculate and reduce, by implicitly applying Article 51(2 ) of Regulation ( EEC ) No 1408/71, the amount of the pension originally granted, if at any given time the national ceiling is exceeded because of an increase in the benefit paid by the other State?"

13 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

14 In the light of the documents transmitted by the national court, its question must be understood as seeking to ascertain whether Article 51 of Regulation No 1408/71 is to be interpreted as meaning that when, under national rules against the overlapping of benefits, the pension paid to a worker by a Member State had been calculated at an amount such that, when added to the amount of a benefit of a different kind paid by another Member State, it does not exceed a certain ceiling, the pension is to be recalculated in order to prevent that ceiling from being exceeded if subsequent adjustments are made to the other benefit as a consequence of the general evolution in the economic and social situation .

15 First, it must be pointed out that, in its observations submitted to the Court in reliance on the fact that a survivor' s pension paid to a worker by reason of his or her spouse' s working career is not of the same kind as a retirement pension paid by reason of the worker' s own career, the ONP maintains that a situation such as that at issue in the main proceedings is governed by the first sentence of Article 12(2 ) of Regulation No 1408/71 .

16 In the ONP' s submission, the effect of that sentence is to enable an institution responsible for paying out a survivor' s pension subject to a ceiling under national rules against overlapping to take account of adjustments made for whatever reason to a benefit of another kind paid to the same worker in order to ensure that the ceiling laid down in the national rules is observed at all times . The national court is therefore wrong in referring to Article 51 of Regulation No 1408/71 .

17 That argument must be rejected . Although it is true that the provisions to which the ONP refers make it possible to apply rules against overlapping under national legislation to a worker when a pension overlaps with benefits of a different kind, those provisions are to be taken into consideration when determining the method of calculating and, where applicable, recalculating the pension but not when ascertaining the circumstances in which a recalculation is appropriate . Those circumstances are laid down in Article 51 of Regulation No 1408/71, which the Court must interpret in this case .

18 When calculating the amount of the old-age benefits payable to a worker who has been subject to the legislation of two or more Member States, the competent institution in each Member State must draw a comparison between the amount payable under the national legislation alone, including any rules against overlapping, and the amount resulting from the application of Article 46 of Regulation No 1408/71 . For the calculation of each benefit, the worker must enjoy the benefit of whichever system is most favourable to him .

19 As the Court pointed out in its judgment of 2 February 1982 in Case 7/81 Sinatra v FNROM (( 1982 )) ECR 137, any subsequent alteration in any one of the benefits implies in principle that a fresh comparison is to be carried out, for each benefit, between the national system and the Community system in order to determine which is the more advantageous to the worker following the alteration .

20 In the same judgment, however, the Court specified that, in order to reduce the administrative burden which a fresh examination of the worker' s situation following every alteration of benefits would represent, Article 51(1 ) of Regulation No 1408/71 excluded a recalculation of benefits in accordance with Article 46 and, hence, a fresh comparison between the national system and the Community system when the alteration resulted from events unconnected with the worker' s personal circumstances and was the consequence of the general evolution of the economic and social situation .

21 In its judgment of 1 March 1984 in Case 104/83 Cinciuolo v Union nationale des fédérations mutualistes neutres (( 1984 )) ECR 1285, the Court also specified that Article 51(1 ), interpreted in that manner, applied not only when the adjustment concerned a benefit whose amount had been fixed pursuant to Article 46 but also when it concerned a benefit which, by virtue of national rules against overlapping, had originally affected the calculation of old-age benefits .

22 Only when the adjustment is due to an alteration of the method of determining or the rules for calculating a benefit by reason, inter alia, of a change in the worker' s personal circumstances is it necessary under Article 51(2 ) to carry out a recalculation of the old-age benefits .

23 It follows that the mere fact that the benefit adjusted as a consequence of the general evolution of the social and economic situation is not of the same kind as old-age benefits cannot serve as a reason for not applying Article 51(1 ) of Regulation No 1408/71 and cannot justify applying Article 51(2 ), even "implicitly", as the national court suggests in its judgment requesting a preliminary ruling .

24 Consequently, even if, in a situation such as that at issue in the main proceedings, the survivor' s pension paid by a Member State to a worker has been limited to a certain ceiling, by virtue of rules against overlapping contained in that State' s legislation, in order to take account of a retirement pension paid by another Member State to the same worker, Article 51(1 ) prohibits the recalculation of the survivor' s pension as a result of revalorizations of the retirement pension when those revalorizations are a consequence of the general evolution of the economic and social situation .

25 The answer to the national court' s question must therefore be that Article 51 of Regulation No 1408/71 is to be interpreted as meaning that when, under national rules against the overlapping of benefits, the pension paid to a worker by a Member State has been calculated at an amount such that, when added to the amount of a benefit of a different kind paid by another Member State, it does not exceed a certain ceiling, the pension is not to be recalculated in order to prevent that ceiling from being exceeded if subsequent adjustments are made to the other benefit on account of the general evolution in the economic and social situation .

Costs

26 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings 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 ( Third Chamber ),

in answer to the question referred to it by the tribunal du travail, Nivelles, by judgment of 7 March 1989, hereby rules :

Article 51 of Council Regulation ( EEC ) No 1408/71 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 is to be interpreted as meaning that when, under national rules against the overlapping of benefits, the pension paid to a worker by a Member State has been calculated at an amount such that, when added to the amount of a benefit of a different kind paid by another Member State, it does not exceed a certain ceiling, the pension is not to be recalculated in order to prevent that ceiling from being exceeded if subsequent adjustments are made to the other benefit on account of the general evolution in the economic and social situation .