Opinion of Mr Advocate General Darmon delivered on 10 December 1991

1 Original language: French.

2 Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).

3 Moniteur Belge of 27 October 1967 — amended by the Law of 26 June 1972 (Moniteur Belge of 30 June 1972, p. 7738) and by the Law of 28 March 1975 (Moniteur Belge of 8 April 1975, p. 4108).

4 Article 11 of lhe Law, Moniteur Belge of 14 February 1981, p. 1699.

5 Pursuant to Article 32 quinquies of the Royal Decree of 21 December 1967.

6 First subparagraph of Article 46(1).

7 Judgment in Case 296/84 Sinatra [1986] ECR 1047, paragraph 21.

8 Or pro rata amount.

9 Retirement or death.

10 Article 46(2)(b).

11 Which imposes a ceiling on the amount which may be received by a worker under Article 46, namely the higher of the theoretical amounts calculated in accordance with Article 46(2)(a).

12 Which provides that provisions for the reduction of benefit do not apply where the person concerned receives benefits of the same kind.

13 Judgments in Case 22/77 Mura I [1977] ECR 1709, Case 236/78 Mura II [1979] ECR 1819, Case 37/77 Greco [1977] ECR 1711 and Case 98/77 Schaap [1978] ECR 707.

14 Case 4/80 [1980] ECR 2951.

15 Joined Cases 116, 117, 119, 120 and 121/80 [1981] ECR 1737.

16 D'Amico, above, paragraph 18, emphasis added.

17 Case 128/88 [1989] ECR 923, paragraph 14.

18 Ibid., paragraphs 13 and 16; see also the judgment in Case C-108/89 Pian [1990] ECR 1611.

19 In which the factual circumstances were exactly the same as in the present case: the Belgian invalidity pension' granted to Mr d'Amico under the special scheme for miners was converted into a retirement pension pursuant to Royal Decree No 50 of 24 October 1967. Mr d'Amico also received an Italian invalidity pension which could not be converted into a retirement pension.

20 Above.

21 Case 180/778 judgment at [1979] ECR 2111, Opinion at p. 2123.

22 Ibid., at p. 2129.

23 For details of the calculation, see below, paragraph 36.

24 Case 58/84 ONPTS v Romano [1985] ECR 1679.

25 Ibid., paragraph 15 and operative part; emphasis added.

26 Council Regulation No 574/72 laying down the procedure for implementing Regulation No 1408/71 (OJ, English Special Edition 1972 (I), p. 159).

27 Celestre, above, paragraph 15.

28 See the judgment in Case 323/86 Collini [1987] ECR 5489, end of paragraph 10, which covers precisely such a case.

29 Article 46(2)(c), emphasis added.

30 Above.

31 Paragraph 30 and operative part.

32 Above.

33 Above.

34 Case 793/79 [1980] ECR 2085.

35 Which is necessarily the case when the pro rata benefit is calculated on the basis of a theoretical benefit equal to the independent benefit.

36 For another example in which, in a case of invalidity, the independent benefit and the theoretical benefit are equal to the full benefit due under the législation of one Member State alone, see the judgment in Case C-199/88 Cabras [1990] ECR 1049.

37 Paragraphs 15 and 16, emphasis added.

38 According to which the Community rules may be applied only if to do so is more favourable to the migrant worker than to apply, in its entirety, onh/national law, including the anti-overlapping rules thereof — see the judgment in Case 24/75 Petroni [1975] ECR 1149, paragraph 13.

39 Case C-199/88, judgment at [1990] ECR 1023.