61992J0031

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Social security for migrant workers ° Insurance for old-age and death ° Calculation of benefits ° Community rules against overlapping benefits ° Not applicable to a worker who has had to pay contributions in two Member States during the same period

(Council Regulation No 1408/71, Arts 12(2) and 46(3))

Articles 12(2) and 46 of Regulation No 1408/71 do not preclude the application of a national rule against overlapping benefits when determining a pension in accordance with national legislation alone. However, those articles do preclude such application when determining a pension under Article 46.

When calculating a pension under Article 46, the rule against overlapping benefits laid down in Article 46(3), the purpose of which is to avoid unjustified overlapping which could result in particular from the duplication of insurance periods and other periods treated as such, does not apply to a person who worked in two Member States during one and the same period and was compelled to pay old-age pension insurance contributions in both States during that period. In that situation the pension granted to him in one Member State cannot be reduced on the ground that he is simultaneously in receipt of a pension in another Member State.

In Case C-31/92,

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

Marius Larsy

and

Institut National d' Assurances Sociales pour Travailleurs Indépendants (INASTI),

on the interpretation of Articles 12 and 46 of Council Directive (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, consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and of Article 51 of the EEC Treaty,

THE COURT (Sixth Chamber),

composed of: C.N. Kakouris, President of the Chamber, J.L. Murray, G.F. Mancini, F.A. Schockweiler and P.J.G. Kapteyn, Judges,

Advocate General: C.O. Lenz,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° the Commission of the European Communities, by Dimitrios Gouloussis, Legal Adviser, and Maria Patakia, of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 29 April 1993,

gives the following

Judgment

1 By judgment of 28 January 1992, received at the Court on 6 February 1992, the Tribunal du Travail (Labour Court), Tournai, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions concerning the interpretation of Article 51 of the EEC Treaty and Articles 12 and 46 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, consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

2 The questions arose in the course of proceedings relating to the reduction in the pension granted to Mr Larsy by the Institut National d' Assurances Sociales pour Travailleurs Indépendants ("INASTI").

3 Mr Larsy, the plaintiff in the main proceedings, is a Belgian national resident in Belgium close to the French border. He was a self-employed nursery gardener in Belgium and France. The larger part of his land was in Belgium.

4 From 1 January 1944 to 31 December 1988 he paid contributions to the retirement pension scheme under Belgian law. During the period from 1 January 1964 to 31 December 1977 he was compelled, despite his objections, to pay contributions in France also. Moreover, during a shorter period he had to pay social security contributions on his French income in both Belgium and France.

5 On 20 June 1989 INASTI granted Mr Larsy a retirement pension corresponding to a complete insurance record (from 1 January 1944 to 31 December 1988) amounting to BFR 222 333 a year payable from 1 October 1989. On 6 March 1991 INASTI decided that the grant to him of a French pension in respect of the period of insurance from 1 January 1964 to 31 December 1977 justified a reduction in the Belgian pension in accordance with Article 19 of Royal Decree No 72 of 10 November 1967 on retirement and survivors' pensions for self-employed persons (Moniteur Belge, 14 November 1967), as amended in particular by the Law of 6 February 1976 (Moniteur Belge, 11 February 1976) and by the Law of 15 May 1984 (Moniteur Belge, 22 May 1984), with the result that Mr Larsy was then entitled to an annual sum of only BFR 156 225 payable as from 1 October 1989.

6 Mr Larsy brought proceedings against INASTI' s decision of 6 March 1991 before the Tribunal du Travail, Tournai, which found that the dispute raised issues of the interpretation of Community law and referred the following questions to the Court for a preliminary ruling:

"1. Is Article 19 of Royal Decree No 72 of 10 November 1967 on retirement and survivors' pensions for self-employed persons compatible with the objective of Article 12 of Regulation (EEC) No 2001/83 of 2 June 1983?

2. Is Article 19 of Royal Decree No 72 of 10 November 1967 compatible with Article 51 of the Treaty of Rome?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts and legal background of the main proceedings, and to 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.

8 First of all, the Court has consistently held that, whereas it is not for the Court, in the context of Article 177 of the Treaty, to rule on the compatibility of a national law with Community law, it does have jurisdiction to provide the national court with all the elements of interpretation under Community law to enable it to assess that compatibility for the purpose of deciding the case before it (see for example Case 369/89 Piageme v BVBA Peeters [1991] ECR I-2971, paragraph 7).

9 It appears from the grounds of the order for reference that with its first question the national court is essentially asking whether Articles 12(2) and 46 of Regulation No 1408/71 prevent the pension granted to a worker in a Member State from being reduced on the ground that he simultaneously receives a pension in another Member State, in a situation where the person concerned paid pension insurance contributions in both Member States during one and the same period.

10 In order to reply to this question it is necessary to examine first the conditions under which it is permitted, in accordance with Articles 12(2) and 46 of Regulation No 1408/71, to apply a national rule against the overlapping of benefits.

11 It is settled law (see most recently Joined Cases 90 and 91/91 Office National des Pensions v Di Crescenzo and Casagrande [1992] ECR I-3851, paragraph 15) that when a migrant worker receives a pension solely by virtue of the legislation of one Member State, the provisions of Regulation No 1408/71 do not preclude that national legislation from being applied to him in its entirety, including the anti-overlapping rules.

12 However, it is clear from the same case-law (see Di Crescenzo and Casagrande paragraph 16) that if the application solely of the legislation of the Member State in question proves less favourable to the worker than that of the Community rules in Article 46 of Regulation No 1408/71, it is the provisions of the latter article that must be applied in their entirety.

13 Therefore the competent institution must compare the benefits which would be payable solely under national legislation, including its anti-overlapping rules, with those which would be payable under Community law, including the anti-overlapping rule in Article 46(3), and grant the migrant worker the higher of the two amounts.

14 Pursuant to Article 12(2) of Regulation No 1408/71, the provisions of the legislation of a Member State for the reduction of benefit in cases of overlapping with other social security benefits acquired under the legislation of another Member State are not applicable when the person concerned receives old-age benefits of the same kind awarded in accordance with Article 46 of that regulation.

15 The calculation of the benefit in accordance with Article 46(1) and (2) of Regulation No 1408/71 must be carried out in three stages, which are described in paragraph 19 of the Di Crescenzo and Casagrande judgment.

16 In the fourth stage, it is necessary to apply the anti-overlapping rule in Article 46(3) of Regulation No 1408/71, according to which the sum of all the independent and pro rata benefits to which the worker may be entitled must not exceed the highest amount of benefits which would be payable by one of the Member States if the worker had completed his entire working life in that State.

17 In the present case it is necessary to consider whether this anti-overlapping rule must also be applied if the recipient of the old-age pension paid contributions in more than one Member State during the same period.

18 The anti-overlapping rule in Article 46(3) serves the objective mentioned in the eighth recital of the preamble to Regulation No 1408/71 of avoiding unjustified overlapping which could result in particular from the duplication of insurance periods and other periods treated as such.

19 If a worker was compelled to pay old-age pension contributions in two Member States for one and the same period, the coexistence of the two pensions to which he is entitled by virtue of those contributions cannot be considered unjustified.

20 It is true that the Court has ruled that the anti-overlapping rule in Article 46(3) of Regulation No 1408/71 applies in all cases where the total sum of the benefits calculated in accordance with Article 46(1) and (2) exceeds the limit of the highest theoretical amount of pension, even if the exceeding of that limit is not due to the duplication of insurance periods (Case 323/86 Collini v ONPTS [1987] ECR 5489, paragraph 13).

21 However, as the Advocate General observed in points 29 and 30 of his Opinion, the facts of the dispute which gave rise to that judgment are quite different from those of the present case in that they related to a problem of notional years of insurance and their relationship with periods of insurance under the law of another Member State.

22 It must therefore be found that the objective of Article 46(3) of Regulation No 1408/71 precludes the application of the anti-overlapping rule of that provision where a person has worked in two Member States during the same period and has had to pay old-age pension contributions in both States during that period.

23 The reply to be given to the question submitted by the national court must therefore be that Articles 12(2) and 46 of Regulation No 1408/71 do not preclude the application of a national rule against overlapping benefits when determining a pension in accordance with national legislation alone. However, those articles do preclude the application of the rule when determining a pension under Article 46. Article 46(3) of Regulation No 1408/71 must be interpreted as meaning that the rule against overlapping benefits in that provision does not apply where a person has worked in two Member States during one and the same period and has been obliged to pay old-age pension insurance contributions in those States during that period.

24 In view of the reply to the first question it is unnecessary to rule on the second.

Costs

25 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber),

in answer to the questions referred to it by the Tribunal du Travail, Tournai, by judgment of 28 January 1992, hereby rules:

Articles 12(2) and 46 of Regulation No 1408/71 do not preclude the application of a national rule against overlapping benefits when determining a pension in accordance with national legislation alone. However, those articles do preclude the application of the rule when determining a pension under Article 46. Article 46(3) of Regulation No 1408/71 must be interpreted as meaning that the rule against overlapping benefits in that provision does not apply where a person has worked in two Member States during one and the same period and has been obliged to pay old-age pension insurance contributions in those States during that period.