Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. By a judgment of 5 December 1983 the cour du travail [Labour Court], Mons, has for the second time requested a preliminary ruling from this Court in the dispute between Mr Antonino Sinatra and the Fonds national de retraite des ouvriers mineurs [Mine-Workers' National Pension Fund].

2. Mr Sinatra, both in his written observations and at the hearing, argued that a distinction had to be drawn between the aggregation of

3. Repeating its main arguments from the proceedings before the national court, the Fund contends that it observed the principles laid down by the abovementioned case-law of this Court, because the rule governing aggregation — and hence apportionment as well — was in its view inapplicable by virtue of the unequivocal terms of Article 45 (2) of the regulation.

4. According to the Italian Government, which has submitted observations to the Court, this case might induce the Court to revise its case-law on the matter. The safeguard provided by the Community system of calculation may prove ineffective where insurance periods are completed under different schemes, since in those circumstances Article 46 (2) of the regulation may not apply in view of the rule established by Article 45 (2) thereof. Once that safeguard disappears, the matter turns on the national rules against overlapping benefits, which may be freely introduced by Member States, enabling them to appropriate benefits from another State. There are thus grounds for revising the interpretation given to Article 12 of the regulation.

5. The Commission begins by observing that until 1 September 1983 Article 23 (1) of the Royal Decree of 19 November 1970 did not refer to overlapping with benefits obtained abroad; hence until that date it covered only domestic benefits and was later amended to cover foreign benefits.

6. I would point out straight away that this case appears to raise a spurious problem and cannot possibly cast doubt on the previous case-law of the Court on the subject.

7. In the light of the foregoing observations I propose that the following reply be given to the cour du travail, Mons:

1 Translated from the French.