Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. These cases come before the Court by way of a preliminary ruling from the Cour du travail [Labour Court], Liège, and the Cour du travail [Labour Court], Mons, in connection with two disputes involving the Office national des pensions pour travailleurs salariés (ONPTS) [National Pension Office for Employed Persons, hereinafter referred to as the Office] on the one hand, and on the other Mr Romano (in Case 58/84) and Mr Ruzzu (in Case 117/84) respectively.

2. Drawing the consequences of the judgment of the Court referred to earlier, the Cour du travail, Liège, in Mr Romano's case, and the Cour du travail, Mons, in Mr Ruzzu's case, held that, as regards the period prior to 1 January 1981, the Belgian underground miner's pension could not be reduced.

3. As the Commission rightly points out, the three questions submitted by the Cour du travail, Liège, as they stand, raise a difficulty concerning the division of powers between the national courts and the Court of Justice.

4. The Office considers that the Court must disclaim jurisdiction on the ground that Mr Romano's and Mr Ruzzu's employment records in Belgium are sufficient to confer upon them entitlement to a pension under Belgian legislation alone. Article 51 and the regulations adopted for its implementation apply only to cases in which national legislation alone is insufficient to confer entitlement to a pension or confers only limited entitlement thereto.

5. Were it not for the adoption of the Belgian Law of 10 February 1981 amending the first subparagraph of Article 10 (2) of Royal Decree No 50 of 21 December 1967, the situation in which Mr Romano and Mr Ruzzu find themselves would be identical to that on which the Court was called upon to give a ruling in the Celestre case.

6. I now turn to the cases before the Court.

7. On the basis of the principle that the benefit referred to in Article 46 (1) of Regulation No 1408/71 is to be calculated by the application of Community law, it follows that the special rule embodied in the last sentence of Article 12 (2) of that regulation, which confirms at Community level that rules against overlapping benefits are inapplicable as regards benefits of the same kind, applies to the benefit at issue.

8. I therefore propose that the Court should answer the questions submitted in the following manner:

1 Translated from the French.

2 Moniteur Belge of 27 October 1967; decree amended by the Law of 26 June 1972 (Monitem Belge of 30 June 1972, p. 7738) and by the Law of 28 March 1975 {Moniteur Belge of 8 April 1975, p. 4108).

3 Article 11 (.Moniteur Belge of 14 February 1981, p. 1699).

4 Judgment of 2 July 1981 in Joined Cases 116, 117, 119, 120 and 121/80 [1981] ECR 1737.

5 Judgment of 21 March 1972 in Case 82/71 Pubblico Mmiltcrov SíJl7[1972] ECR 119, p. 135, paragraph 3 of the decision.

6 Judgment of 21 October 1975 in Case 24/75 [1975] ECR 1149, p. 1160, paragraph 14 of the decision.

7 Emphasis added.

8 Emphasis added.

9 Judgment of 9 June 1964 in Case 92/63 [1964] ECR 281, p. 288.

10 Judgment of 2 July 1981 in Joined Cases 116, 117, 119, 120 and 121/80 [1981] ECR 1737.

11 Judgment of 21 October 1975 in Case 24/75 Petrani v ONPTS [1975] ECR 1149; Judgment of 9 July 1980 in Case 807/79 Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205.

12 Judgment of 13 October 1977 in Case 22/77 FNROM v Mura [1977] ECR 1699; Judgment of 13 October 1977 in Case 37/37 Greco v FNROM ECR 1711; Judgment of 14 March 1978 in Case 98/77 Schaap v Bedrijfsvereniging voor Bank- en Verzekeringswezen [1978] ECR 707; Judgment of 14 March 1978 in Case 105/77 Sociale Verzekeringsbank v Boerboom-Kersjes [1978] ECR 717.

13 Judgment of 16 May 1979 in Case 236/78 FNROM v Mura [1979] ECR 1819.

14 Paragraph (a) of the operative part, and see the judgment of 14 March 1978 in Case 98/77 Schaap [1978] ECR 707.

15 Paragraphs 11 and 12 of the decision and paragraphs (b) and (c) of the operative part, and see the judgment of 15 October 1980 in Case 4/80 D'Amimi ONPTS[1980] ECR 2951.

16 Paragraphs 13 and 14 of the decision and paragraph (d) of the operative part.

17 Judgment of 15 May 1974 in Case 184/73 Nieuwe Algemene Bedrijfsvereniging v Kaufmann [1974] ECR 517, p. 524.

18 Emphasis added.

19 Paragraph 14 of the Celeslre judgment.

20 Fourth recital in the preamble.

21 Third recital in the preamble.

22 Judgment of 13 October 1977 in Case 22/77 Mura v FNROM [1977] ECR 1699, p. 1707, paragraph 9 of the decision.