JUDGMENT OF 14. 3. 1978 — CASE 83/77 NASELLI v CAISSE AUXILIAIRE D'ASSURANCE MALADIE-INVALIDITÉ

In Case 83/77 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail (Labour Tribunal), Brussels, for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and written procedure

II — Observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

Decision

First Question

Second Question

Costs

I —. Facts and written procedure

1. Should Article 11 (2) of Regulation No 3 be interpreted as meaning that the plaintiff, having regard to the provisions of Article 70 (2) of the Law of 9 August 1963, could not draw the full amount of his Belgian pension as well as his Iulian pension, although his right to his Belgian pension was acquired independently of the regulations of the European Economic Community, that is, in other words, is the Belgian institution authorized or not to apply the national provisions prohibiting plurality in conjunction with Article 11 (2) of Regulation No 3 for the purpose of reducing the pension paid by virtue of the Belgian legislation alone?

2. Does Article 9 (2) of Regulation No 4 apply only to a case where the benefit that is to be reduced because it overlaps with another benefit or other income, is awarded by virtue of aggregation of insurance periods, that is, in other words, did the Belgian institution have to take into account a fraction and not the whole of the Iulian pension for the purpose of reducing the Belgian benefit although that benefit was acquired without having to apply regulations of the European Economic Community?

II —. Observations submitted to the Court under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

(1). Provisions in the legislation of one Member Sute for the reduction or suspension of benefits overlapping other social security benefits only apply under Article 11 (2) of Regulation No 3 to insured persons as far as concerns the benefits acquired by applying the said regulation.

(2). Article 9 (2) of Regulation No 4 must be interpreted as meaning that where a pension awarded in pursuance of Article 28 of Regulation No 3 may be reduced under Article 11 (2) of the same regulation the amount to be deducted shall be apportioned in the same proportions as the benefit has itself been reduced pursuant to Article 28 of the regulation.

1. By order of 23 June 1977 which was received at the Court on 5 July 1977 the Tribunal du Travail, Brussels, referred to the Court, pursuant to Article 177 of the EEC Treaty, for a preliminary ruling two questions relating to the interpretation of Article 11 (2) of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561) and of Article 9 (2) of Regulation No 4 of the Council of 3 December 1958 on implementing procedures and supplementary provisions in respect of Regulation No 3 concerning social security for migrant workers (Journal Officiel 1958, p. 597).

2. These questions have been raised in an action concerning the calculation by the competent Belgian institution of the invalidity pension of an Italian national, Mr Naselli, the plaintiff in the main action, who has worked in Italy and Belgium.

3. Since Mr Naselli had been disabled he was granted an apportioned invalidity pension in Italy, as from 1 October 1958, apparently pursuant to the provisions of a Convention between Italy and Belgium.

4. Having worked again in Belgium in 1964 and 1965 Mr Naselli fell ill and obtained, as from 23 June 1965, sickness benefit, converted later on into an invalidity pension, payable under Belgian insurance.

5. He fulfilled the requisite conditions in Belgium under national legislation for entitlement to an invalidity pension without availing himself of Articles 27 and 28 of Regulation No 3.

6. The Belgian institution, relying on the rules against the overlapping of benefits laid down by its national legislation, reduced with retroactive effect the amount of the pension which it had previously awarded Mr Naselli and claimed repayment of the amount overpaid.

7. The first question referred is:

8. The second question referred is:

9. The Court has already held in its judgment of 6 December 1973 in Case 140/73 Direction régionale de la sécurité sociale de la région parisienne and Caisse régionale d'assurance maladie de Paris v Carmela Mancuso and Caisse nationale d'assurance vieillesse des travailleurs salariés [1973] ECR 1449 that the application by analogy of Article 27 and 28 of Regulation No 3 to the cases referred to in Article 26 (1) implies that benefits may only be apportioned if it has been necessary, in order to give rise to entitlement, to aggregate beforehand the periods completed under different legislations.

10. Therefore the provisions of Articles 27 and 28 of Regulation No 3 do not have be applied in the case of a pension acquired in pursuance of a national law alone.

11. Article 11 (2) of the said regulation reads Provisions in the legislation of one Member State for the reduction or suspension of benefit where there is plurality with other social insurance benefits, or other income, or because of gainfull employment, shall apply to a beneficiary even in respect of benefits acquired under a scheme in another Member State, or in respect of income derived from, or employment in, the territory of another Member State; provided that this rule shall not apply where benefits of the same kind are acquired in accordance with the provisions of Article 26 and 28 of this regulation.

12. As the Court has already held, with special reference to its judgment of 15 May 1974 in Case 154/73 Bestuur van de Nieuwe Algemene Bedrijfsvereniging v H. W. Kaufmann [1974] ECR 517 this article, interpreted in the light of Article 48 to 51 of the Treaty, is the counterweight to the advantages which Regulations Nos 3 and 4 procure for workers by enabling them to claim the simultaneous application of the social security laws of several Member States and its purpose is to prevent them from deriving from that application advantages which the national legislation considers excessive.

13. Therefore the restrictions referred to in Article 11 (2) only apply to insured persons in so far as the benefits acquired by applying those regulations are concerned.

14. On the other hand consideration of the other provisions of Regulation No 3 shows that none of them precludes the application to benefits acquired by virtue of national legislation alone of national rules against the overlapping of benefits.

15. Nevertheless the Belgian institution draws attention to the provisions of Article 70 of the Belgian Law of 9 August 1963 on sickness and invalidity insurance which read as follows: The benefits provided for by this Law shall be granted only under conditions determined by the King, if the incapacity in respect of which a claim for benefits is made falls within the general law or some other legislation. In such cases insurance benefits shall not be added to the compensation arising under the other legislation; they shall be the responsibility of the social insurance institutions to the extent to which the incapacity covered by that law is not in fact made good. In every case the recipient must receive amounts which are not less than the amount of the insurance benefits.

16. It is for the national court to consider the question whether this provision is a rule against the overlapping of benefits applicable to the benefits in a case such as the one in the main action or whether it is on the other hand only a provision granting the right of subrogation.

17. It is also for the national court to consider whether under this provision the reduction óf a Belgian pension by taking account of benefits acquired under the system of another Member State is possible without invoking the provisions of Article 11 (2) of Regulation No 3.

18. Article 9 (2) of Regulation No 4 provides: The provisions of the preceding paragraph notwithstanding and, subject to the provisions of the second sentence of Article 11 (2) of the regulation would entail reduction or suspension of an invalidity, old-age or death benefit (pensions), calculated according to the provisions of Article 28 of the regulation by the institution of a Member State, that institution shall take into account, for the purposes of the reduction or suspension, only a fraction of the benefits or income or remuneration giving rise to the reduction or suspension. Such fraction shall be determined in proportion to the length of the periods completed in accordance with Article 28 (1) (b) of the regulation: in calculating the amount for accounting purposes according to the said provision, the benefit or income or remuneration giving rise to the reduction or suspension of the pension shall not be taken into account.

19. It emerges clearly from the wording of this provision that it only applies when the benefit in question has been awarded through the application of the processes of aggregation and apportionment.

20. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

21. 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 questions referred to it by the Tribunal du Travail, Brussels, by judgment of 23 June 1977 hereby rules:

1 Consideration of the provisions of Regulation No 3 shows that none of them precludes the application to benefits acquired by virtue of national legislation alone of national rules against the overlapping of benefits.

2 Article 9 (2) of Regulation No 4 applies only when the benefit in question has been awarded through the application of the processes of aggregation and apportionment.