JUDGMENT OF 1. 9. 1982 — CASE 132/81 RIJKSDIENST VOOR VERKNEMERSPENSIOENEN v VLAEMINCK

In Case 132/81 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bruges Division of the Arbeidshof, Ghent, for a preliminary ruling in the case pending before that court between

THE COURT (Third Chamber), composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges, Advocate General: P. VerLoren van Themaat Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations

III — Oral procedure

IV — Reopening of the oral procedure

Decision

Costs

I —. Facts and written procedure

1. Mrs Alice Sarien., ner Vlaeminck. a widow, was m paid emplovment in Belgium from 1926 to 1929 and from 1958 to 1972 and in France from 1931 to 1936 Her late husband workrd in Belgium from 1926 to 1929 and from 1940 to 1942 and worked in France as a frontier worker from 1930 to 1939.

2. Mrs Saelens applied to the Arbeidsrechtbank [Labour Tribunal], Bruges, for an order setting aside the decision adopted by the Belgian Institution on 11 January 1977 reducing her Belgian survivor's pension pursuant to Regulation Nos 1408/71 and 574/72 on the ground that the French pension was neither granted nor paid.

3. The order for reference was received at the Court Registry on 3 June 1981.

II —. Written observations

1. Mrs Saelens refers to her pleadings in the main proceedings. She maintains that by virtue of Article 18 (&) of Royal Decree No 5C she is entitled, as the widow of an employed person, to a survivor's pension equal to the difference between the survivor's pension which she would receive if that activity had been performed in Belgium and the pension which is received in respect of the same activity under the legislation of the countrv of employment. The French survivor's pension ought not to be taken into account since that pension is not in fact being paid as a result of the application of the rules against the overlapping of benefits contained in Regulation No 1408/71.

2. The Italian Government points out that the independent application of the rules against the overlapping of benefits by Member States may lead to distortions which it is necessary to correct and eliminate by defining the limits of application of those rules.

3. The Commission is of the opinion thai the Belgian Institution by replacing the full survivor's pension of 17/17 guaranteed by Article 18 (6) of Royal Decree No 50 by a proportional survivor's pension determined under Article 46 of Regulation No 1408/71, applied no rule against the overlapping of benefits. The reduction in the pension stems rather from the fact that the additional amount of 10/17 is no longer granted since the French survivor's pension has been granted. As a result there is no dual application of the rules against the overlapping of benefits by the Belgian Institution but an application, which in itself is correct, of Article 46 (2) (b) of Regulation No 1408/71.

III —. Oral procedure

IV —. Reopening of the oral procedure

1. The Belgian Institution was invited to explain whether Mrs Saelens, pursuant to the Belgian Institution's decision of 11 January 1977, was receiving a Belgian survivor's pension lower than that which she received previously on the basis of the Belgian Institution's decision of 9 August 1971 and whether Mrs Saelens' retirement pension, also granted by the latter decision, had remained unchanged às a result of the decision to review of 11 January 1977.

2. The French Government was invited, pursuant to the second paragraph of Article 21 of the Protocol on the Statute of the Court of Justice of the EEC, to explain under which provision of national or Community law the French Institution in its decision of 25 November 1976 calculated the survivor's pension due to Mrs Saelens at FF 1418 and reduced that amount to nil.

3. At the sitting on 15 July 1982 the Rijksdienst voor Werknemerspensioenen, represented by Guy Auwerx, acting as Agent, presented supplementary oral argument.

1. By an order of 22 May 1981, which was received at the Court on 3 June 1981, the Bruges Division of the Arbeidshof [Labour Court], Ghent, referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of certain provisions 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. That question was raised in the course of proceedings between Mrs Saelens, née Vlaeminck, and the Rijksdienst voor Werknemerspensioenen [National Pensions Office for Employed Persons, hereinafter referred to as the Belgian Institution].

3. Mrs Saelens was employed in Belgium from 1926 to 1929 and from 1950 to 1970, and in France from 1931 to 1936. Her deceased husband was employed in Belgium from 1926 to 1929 and from 1940 to 1942, and as a frontier worker in France from 1930 to 1939.

4. In 1971 the Belgian Institution granted Mrs Saelens a retirement pension of 25/40, acquired at the rate of 1/40 per annum, corresponding to her 25 years of employment in Belgium. The same year, the Caisse Régionale d'Assurance Maladie du Nord de la France [Regional Sickness Insurance Fund of Northern France, hereinafter referred to as the French Institution) likewise granted her a retirement pension on the basis of her period of employment in France.

5. In 1971 the Belgian Institution also granted Mrs Saelens a survivor's pension of 17/17 on the basis of the 17 years of employment which her husband had completed both in Belgium and in France. The latter pension was granted to her pursuant to Article 18 (6) of Belgian Royal Decree No 50 of 24 October 1967 on retirement and survivor's pensions for workers, which provides, as regards employment as a frontier or seasonal worker in a neighbouring country, that the widow of the worker may obtain a survivor's pension equal to the difference between the amount of the survivor's pension which she would receive if that activity had been performed in Belgium and the pension which is received in respect of the same activity under the legislation of the country of employment. Article 18 (6) further states that that pension represents a minimum pension but, for the purposes of Article 50 of Regulation No 1408/71, no account is to be taken of the foreign pension in determining that minimum pension.

6. It appears from the evidence before the Court, and in particular from the information supplied by the Belgian Institution during the course of the procedure, that the Belgian Instituion calculated the survivor's pension by also taking into consideration the 10 years of employment completed by Mr Saelens as a frontier worker in France on the ground that no right to a survivor's pension had been acquired in that Member State. The amount of that pension was however limited, pursuant to the rule against the overlapping of benefits contained in Article 52 of the Belgian Royal Decree of 21 December 1967 laying down general rules on the retirement and survivor's pension schemes for employed workers. By virtue of that provision a survivor's pension may overlap with one or more retirement pensions only up to an amount equal to 110 % of the amount of the survivor's pension.

7. In 1976 the French Institution granted Mrs Saelens a proportional survivor's pension, payable under Article 46 of Regulation No 1408/71, on account of Mr Saelens' period of employment in France. That pension was, however, reduced to nil, in application of the rules against the overlapping of personal old-age benefits and survivor's benefits laid down by French legislation.

8. The acquisition of the right to receive a survivor's pension in France, even though the pension was reduced to nil, prompted the Belgian Institution to review the Belgian survivor's pension. By a decision of 11 January 1977 the Belgian Institution granted Mrs Saelens a survivor's pension corresponding to the fraction 7i7, that is to say, on the basis of Mr Saelens' seven years of employment in Belgium to the exclusion of the 10 years of employment in France. That pension constitutes a proportional pension calculated in accordance with Article 46 of Regulation No 1408/71, in which therefore the additional amount of 10/17, calculated in accordance with Article 18 (6) of Royal Decree No 50, is no longer included, but which, on the other hand, is not reduced in accordance with the rule against the overlapping of benefits contained in Article 52 of the Royal Decree of 21 December 1967. According to the information given by the Belgian Institution, the proportional pension was paid since it was higher than the pension which would have been payable under Belgian law alone. That pension was consequently higher than the survivor's pension which the claimant received before the contested decision was adopted.

9. Mrs Saelens applied to the Arbeidsrechtbank [Labour Tribunal, Bruges], for an order setting aside the Belgian Institution's decision of 11 January 1977. Such an order was granted on the ground that there was an absence of reasoning susceptible of judicial review. The Belgian Institution appealed to the Arbeidshof [Labour Court], Ghem.

10. Considering that a ruling by the Coun of Justice was necessary to enable it to give judgment, the Bruges Division of the Arbeidshof, Ghent, referred to the Court the question:

11. It is clear from the foregoing that the survivor's pension granted to Mrs Saelens by the decision of the Belgian Institution of 11 January 1977 results not from the application of a rule against the overlapping of benefits, dependent upon the acquisition of a right to a survivor's pension in France, but constitutes a proportional pension based on the application, which in itself is correct, of Article 46 of Regulation No 1408/71. Contrary to the assumption made by the national coun, there was not therefore dual application of the rules against the overlapping of benefits.

12. It is also clear from the foregoing considerations that Mrs Saelens' survivor's pension was reduced proponionaiely pursuant to Article 46 of Regulation No 1408/71, since the pension thus calculated was higher than the pension which would have been received under Belgian legislation alone, that is to sav increased by the additional amount of 10/17, pursuant to Article 18 (6) of Rovai Decree No 5C, but then reduced in application of the rule against the overlapping of benefits contained in Article 52 of the Royal Decree of 21 December 1967.

13. In view of that factual situation the preliminary question appears to lack any purpose. It is not possible to glean from it the factors necessary for an interpretation of Community law which the national court might usefully apply in order to resolve, in accordance with that law. the dispute before it.

14. It follows that in the light of the factual and legal circumstances of the main proceedings no question of Community law is raised in the present case, so that the Court is unable to give a ruling, in the context of proceedings under Article 177, on the question referred to it by the Arbeidshof, Ghent.

15. In those circumstances no reply need be given to the question referred bv the national court.

16. The costs incurred by the Italian and French Governments and by the Commission, which have submitted obsenations to the Court, are not recoverable. As 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 Arbeidshof, Ghent, bv order of 11 May 1981, hereby rules: