Report for the Hearing in Joined Cases C-90/91 and C-91/91

I — Legal framework

1. National legal framework

Retirement pensions for mine workers and survivors' pensions for their surviving spouses, in both the cases in which the court is asked to give a preliminary ruling, were governed by Royal Decree No 50 of 24 October 1967 on retirement pensions and survivors' pensions for employed persons (Moniteur Belge of 27 October 1967) (hereinafter the Royal Decree), as amended in particular by the Law of 10 February 1981 (Moniteur Belge of 14 February 1981) and the Law of 15 May 1984 (Moniteur Belge of 22 May 1984).

The Royal Decree provided, in particular, for the award of a retirement pension for employed persons and a survivor's pension for their surviving spouses.

Pursuant to Article 7 of the Royal Decree, the retirement pension is to be calculated according to both the worker's insurance record and the gross remuneration which he has earned during the period covered thereby period and the notional or lumpsum remuneration he has received.

Article 18(2) provides that where a worker has died after his pension became payable his spouse's survivor's pension is in principle to be equal to 80% of the amount of pension granted to the deceased spouse.

Article 18(4) provides that the amount of the retirement pension serving as the basis for the calculation of the survivor's pension is to be equal to the amount of the retirement pension which the spouse would have had if he had drawn his pension until the date when the survivor's pension became payable.

The national provisions at issue before the national court are, first, Article 10(2) (in the 1981 and 1984 versions in the Di Crescenzo case; in the 1984 version in the Casagrande case) and, secondly, Article 11, first, fourth and fifth subparagraphs (in the Casagrande case) of the Royal Decree.

A. Article 10(2)

(1) 1981 version

Article 10(2)(1) of the Royal Decree provides in its first subparagraph that a worker who

Article 10(2)(1) provides in its second and third subparagraphs, however, that

The Law of 10 February 1981, with retroactive effect from 1 January 1981, inserted a new (fourth) subparagraph in Article 10(2)(1) of the Royal Decree, which provides as follows:

Moreover, Article 10(2) of the Royal Decree provides in its penultimate subparagraph that:

(2) 1984 version

Article 10(2) of the Royal Decree, as amended by the Law of 15 May 1984, provides as follows:

B. Article 11

Article 11 of the Royal Decree contains, in its first subparagraph, the following presumption:

However, the fourth subparagraph of Article II provides that

The fifth subparagraph of Article 11 none the less provides that

2. Community legal framework

Article 51 of the EEC Treaty provides, in the field of social security, that arrangements shall be made to secure for migrant workers and their dependants:

In order to implement that provision, the Council adopted Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to workers and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), codified by Regulation (EEC) No 2001/83 (OJ 1983 L 230, p. 6), and its implementing regulation, Council Regulation (EEC) No 574/72 of 27 March 1972 (OJ, English Special Edition 1972 (I), p. 159, codified by Regulation No 2001/83).

Title I of Regulation No 1408/71, embodying general provisions, contains in Article 12 a provision regarding the prevention of overlapping of benefits. Article 12(2), the provision at the centre of the dispute before the national court, provides:

Articles 44 to 51 of the regulation deal with old age and death (pensions).

The first three paragraphs of Article 46, which concerns the detailed rules for calculating the award of the old-age and death benefits of a worker who has been subject to the legislation of two Member States and which constitutes the second provision at the centre of the dispute, are worded as follows:

II — The main proceedings and the reference for a preliminary ruling

1. The facts of the main proceedings

A — The Di Crescenzo case

Mr Di Crescenzo, who was born on 2 January 1920 and is of Italian nationality, worked in Belgium as a miner for 27 years, from 1947 to 1950 and from 1952 to 1974. He had previously pursued an actual activity as an employed person or an activity treated as such, in Italy for 256 weeks.

He was granted a full Belgian miner's pension as from 1 April 1975 and an Italian pension as from 1 July 1980.

By a corrective decision notified on 17 May 1985, the Office National des Pensions pour Travailleurs Salariés (the National Pension Office for Employed Persons, hereinafter the ONPTS), the competent Belgian institution, reduced the amount of his retirement pension to BFR 240634 with effect from 1 July 1980. That amount was obtained on the basis of a calculation in which Mr Di Crescenzo was regarded as having a Belgian insurance record of only 27/30ths instead of the record of 30/30ths which had previously been acknowledged, equivalent to a pension of BFR 263 462.

The ONPTS had deemed it necessary to take into consideration, in application of the fourth subparagraph of Article 10(2)(1) of the Royal Decree, the pro rata Italian pension of LIT 329485 (BFR 11937) which had been granted to him since 1 July 1980 for the 256 weeks as an employed worker which he had completed in Italy and which, under the Belgian rules, was equivalent to 3 years.

Taking the view that he was entitled to a full Belgian pension of BFR 263462 corresponding to a complete insurance record of 30/30ths, Mr Di Crescenzo challenged that decision before the Tribunal du Travail (Labour Court), Liège. In support of his action, he claimed that the Belgian provisions against the overlapping of benefits and, in particular, that resulting from the fourth indent of Article 10(2)(1) of the Royal Decree could not be applied to Community nationals owing to the final sentence of Article 12(2) of Regulation No 1408/71. In that respect, he referred to the judgment of the Court of Justice in Case 58/84 ONPTS v Romano [1985] ECR 1679 and also to the judgment of the Cour du Travail (Higher Labour Court), Liège, delivered in the light of that judgment.

By a judgment of 18 November 1986 the Tribunal du Travail upheld his application and acknowledged that he was entitled to a full pension (30/30ths). According to that court, since Mr Di Crescenzo could show that he had 27 years of actual work as an underground miner or work treated as such, he should, on the basis of those years of employment, benefit from three additional notional years, in application of Article 10(2) of the Royal Decree.

In its judgment, the Tribunal du Travail stated:

Whilst indicating its agreement that a full pension should be granted for the period 1 July to 31 December 1980, the Office National des Pensions (National Pension Office, hereinafter the ONP), which succeeded to the rights and obligations of the ONPTS, appealed against that decision, taking the view that as from 1 January 1981, the date of the entry into force of the amendment to Article 10(2)(1) of the Royal Decree, it was necessary to take account of the provision against the overlapping of benefits introduced into the Belgian legislation, in so far as the benefits for which Belgium was responsible were granted solely under the Belgian scheme and were to be calculated by applying the Belgian provisions in their entirety, including the external provisions against the overlapping of benefits, which might be invoked pursuant to Article 12(2) of Regulation No 1408/71. According to the ONP, the case-law of the Court of Justice, and in particular its judgments in Case 24/75 Petroni v ONPTS [1975] ECR 1149, in Case 22/77 FNROM v Mura [1977] ECR 1699, in Case 116/80 Rijksdienst voor Werknemerspensionen v Celestre and Others [1981] ECR 1737, in Case 238/81 Raad van Arbeid v Van der Bunt-Craig [1983] ECR 1385, in Case 117/84 ONPTS v Ruzzu [1985] ECR 1697 and in Case 296/84 Sinatra v FNROM [1986] ECR 1047, established the principle that, as from 1 January 1981, Community law does not prevent national legislation, including national rules against the overlapping of benefits, from being applied in its entirety, provided that the national law does not prove less favourable than Community law, in which case Community law applies.

In its appeal, the ONP claimed that Mr Di Crescenzo's pension must be calculated in three distinct stages:

In his submissions in the appeal, Mr Di Crescenzo challenged the validity of the calculation made by the ONP in application of Article 46(3) of Regulation No 1408/71. In accordance with the judgment of the Court in the Petroni case, previously cited, the reduction provided for in Article 46(3) of Regulation No 1408/71 could not, in his view, be accepted in the light of Article 51 of the EEC Treaty if that reduction infringed the rights acquired by him solely on the basis of his insurance record in Belgium. The Court's judgment in the Collini case, invoked by the ONP, did not have the scope ascribed to it by that institution, since, being concerned solely with Article 46(3), it did not deal with the question referred to the Court in the light of Article 51 of the Treaty and the limitations which, according to the Petroni judgment, that article imposes on the application of Article 46(3) of Regulation No 1408/71. The situation was in fact comparable with that which formed the subject-matter of the judgment in Case 32/77 Giuliani v Landesversicherungsanstalt Schwaben [1977] ECR 1857, where the Court had ruled that a benefit must be considered as acquired solely under national legislation, even if the recipient could take advantage of it only by virtue of the application of the provisions of Community law which waive the condition of residence to which that national legislation makes payment of the benefit in question subject.

According to Mr Di Crescenzo, the judgment under appeal, in so far as it acknowledged that he was entitled to a full pension and disregarded the provisions against overlapping in the Belgian legislation, should therefore be upheld. In a judgment of 28 November 1988, dismissing the appeal brought by the ONP against the abovementioned judgment of the Cour du Travail, Liège, of 25 April 1986 in the Romano case, the Belgian Cour de Cassation (Court of Cassation) had confirmed the argument that the provisions against overlapping set out in the Law of 10 February 1981 could not be accepted with regard to Community nationals and that such provisions were suspended by Article 12(2) of Regulation No 1408/71.

The Ministère Public (Public Attorney's Office), after analysing in its Opinion the relevant Community and national case-law, drew a number of conclusions. It considered that examination of the case-law revealed, in particular, a certain shift of position as to whether Article 46(3) of Regulation No 1408/71 could be invoked.

Whereas the Petroni judgment was more cautious on that point, more recent judgments, in particular the Collini judgment, appeared to favour a stricter application of Article 46;

Paragraph (1) Calculation of the independent pension: entitlement arises without recourse to the Community regulations;

Paragraph (2) Each of the competent institutions calculates as follows:

Paragraph (3) Entitlement, within the limit of the highest of the theoretical amounts referred to in paragraph (2)(a), to the total sum of benefits calculated in accordance with paragraphs (1) and (2). If the theoretical amount is exceeded, the amount for which each institution is responsible is adjusted according to the ratio between the benefits paid.

According to the Ministère Public, it was thus necessary to consider whether there had been a radical change in the case-law. In order to shed light on that point, the Ministère Public asked the Cour du Travail to refer a question to the Court of Justice for a preliminary ruling.

In its interim judgment of 28 September 1991, the Cour du Travail, Liège, indicated that it agreed in principle with the request that it should seek a fresh preliminary ruling from the Court of Justice.

According to the Cour du Travail, the question also arose whether that — possible — shift in the Court's position and the change that had come about in its analysis were not due, at least in part, to a certain confusion between rules and situations which were apparently fundamentally different, in particular as concerned, first, the calculation of the retirement pension of a retired underground miner according to his actual insurance periods and certain periods treated as such, and, secondly, the invalidity pension of miners who have ceased working in mining undertakings owing to disease causing incapacity for work (Article 1(1) of the Royal Decree of 19 November 1970) and who, if they satisfied the conditions specified, benefited, according to the categories set out in Article 4(1), from the same amount of pension irrespective of their insurance record, the word pension in those rules having the meaning of indemnity or allowance.

Before referring the matter to the Court, however, the Cour du Travail considered it necessary to order the discussions to be reopened in order to allow the parties to comment on the Opinion of the Ministère Public and to put forward suggestions regarding the questions to be referred to the Court of Justice for a preliminary ruling.

In his further submissions, Mr Di Crescenzo repeated his point of view that the Court's judgment in the Collini case had ruled on the technicalities of the application of Article 46(3) of Regulation 1408/71 but had not disposed of the question whether or not the reduction provided for therein should be accepted in the case of, on the one hand, a retirement pension acquired solely by virtue of periods coming within the legislation of one Member State and, on the other hand, a pension of the same kind acquired in another Member State. According to Mr Di Crescenzo, the philosophy of the Petroni judgment precluded the operation of the reduction provided for in Article 46(3).

In its further submissions, the ONP, after drawing attention to an arithmetical error in the statement of Mr Di Crescenzo's entitlement to a pension as presented in the appeal (incorrect calculation of the theoretical pension), claimed that, owing to the case-law of both the Court of Justice and the Belgian courts, the calculation of the old-age and death benefits of persons covered by the scheme of Regulation No 1408/71 was subject to compliance with the five fundamental principles mentioned below, which had been strictly applied in the new statement of Mr Di Crescenzo's entitlement:

I — Grant of the most favourable scheme

First principle: a worker or his surviving spouse is entitled to benefit under the scheme which is most favourable to him, either that of the Belgian national scheme or that of the Community scheme. Mr Di Crescenzo is entitled, as from 1 January 1981, to the retirement pension under the Community scheme, which, at BFR 262169, is more advantageous for him than that of the Belgian national scheme, which amounts to BFR 250 356.

II — Calculation of the benefit under the Belgian domestic scheme

Second principle: the Belgian legislation, including its provisions against the overlapping of benefits, is applied in its entirety. The Belgian external provisions against overlapping referred to in Article 10(2)(1) of the Royal Decree, which entered into force on 1 January 1981, is applied to Mr Di Crescenzo, who has completed a period of employment, or an activity treated as such, in Italy. As the period of employment in Italy, 256 weeks, is equivalent to three years, the number of additional notional years is reduced (3-3=0 years). His retirement pension under the Belgian national arrangement thus takes into account the 27 years of normal and principal employment which he completed in Belgium from 1947 to 1950 and from 1952 to 1974, without any additional notional year, which corresponds to a pension of 27/30ths, amounting to BFR 250356 as at 1 January 1981.

Third principle: the Community provision against the overlapping of benefits in Article 46(3) is not applied.

III — Calculation of the benefit under the Community scheme

Fourth principle: If Belgium and the other Member State grant benefits of the same kind then, pursuant to the second sentence of Article 12(2), Belgium's external rules against overlapping are not applied. Since Belgium and Italy do grant benefits of the same kind, Belgium does not apply its external rules against overlapping when calculating the Community pension, the amount of which is determined without any reduction of the three additional notional years. Mr Di Crescenzo's independent and theoretical pensions are thus both based on an insurance record as underground miner of 30/30ths and correspond to a sum of BFR 274106 on 1 January 1981. His pro rata pension amounts to BFR 247 255.

Fifth principle: the independent pension is adjusted, where necessary, pursuant to the Community rule against the overlapping of benefits in Article 46(3), according to which the total of benefits granted by all the Member States may not exceed the highest theoretical amount of the pension.

In Mr Di Crescenzo's case, since the total of the independent Belgian pension (BFR 274106) and the Italian pro rata pension (BFR 11937), that is BFR 286043, exceeds the highest theoretical amount of the pension (BFR 274106), the amount of the independent Belgian pension must be adjusted by applying a corrective factor corresponding to the ratio between BFR 262169 (BFR 274106-BFR 11937) and BFR 274106, or 0.9564511539, which finally gives a retirement pension of BFR 262 169.

In the ONP's opinion, in the contested decision of the Tribunal du Travail, only the third principle had been applied: the principle that in the Community scheme, pursuant to the second sentence of Article 12(2) of Regulation No 1408/71, the external provisions against overlapping in the national legislation are not applied. On the other hand, the decision failed to take account of not only the first and second principles but also the fourth and fifth principles.

According to the ONP, if the application of the Community rule against overlapping benefits in Article 46(3) (the fourth principle) resulted in a lower benefit under the Community scheme lower than under the domestic scheme, then the latter benefit must be granted (the first principle). The Court of Justice had never stated that Article 46(3) could never apply. Following the Petroni judgment there had not been a complete change in the Court's case-law; the Court had clarified and supplemented the operative part of that judgment.

Similarly, the question concerning the invalidity pension of miners referred to in the interim judgment appeared to be superfluous for the following three reasons:

B — The Casagrande case

Mrs Casagrande's late husband, Mr Barel, an Italian national born on 13 April 1903, died on 16 January 1983, after the date on which his retirement pension became payable, namely 1 May 1968.

From 1947 to 1967, that is for 21 years, he pursued a normal and principal activity as underground miner. He had previously pursued in Italy an activity as an employed person or one treated as such for 14 years.

On 30 September 1983 the ONPTS, the competent Belgian institution, notified his widow, Mrs Casagrande, of a provisional decision acknowledging her entitlement to an employed person's survivor's pension of BFR 247561. That amount was arrived at on the basis of a calculation of Mr Barel's retirement pension in which he was acknowledged as having a Belgian insurance record as a miner of 21/30ths, to which was added, in application of the first subparagraph of Article 11 and the penultimate subparagraph of Article 10(2) of the Royal Decree, an insurance record of 14/45ths corresponding to 14 presumed years of normal and principal occupation as an employed person in Italy.

By a final decision of 12 October 1984 the ONPTS reduced the annual amount of Mrs Casagrande's survivor's pension to BFR 186474 with effect from 1 February 1983.

That amount was arrived at on the basis of a calculation of Mr Barel's retirement pension in which he was acknowledged as having a Belgian insurance record as a miner of only 21/30ths. In that respect, the ONPTS considered that the Italian survivor's pension granted to Mrs Casagrande, amounting to LIT 1105579, must be taken into account.

By a decision notified on 21 February 1985, the Caisse Nationale des Pensions de Retraite et de Survie (the National Office for Retirement and Survivors' Pensions, hereinafter referred to as the CNPRS) informed Mrs Casagrande that her survivor's pension was further reduced owing to an increase in her Italian survivor's pension, the annual amount of which had been increased to LIT 1194700 on 1 February 1983.

Taking the view that she was entitled to a full Belgian survivor's pension of BFR 247561 as from 1 February 1983, Mrs Casagrande challenged those decisions before the Tribunal du Travail, Liège. In support of her application she claimed that, pursuant to the final part of Article 12(2) of Regulation No 1408/71, the Belgian provisions against the overlapping of benefits could not be applied to Community nationals. In that respect, she referred to the judgment of the Court in the Romano case, previously cited, and to the judgment of the Cour du Travail, Liège, of 25 April 1986 delivered in the light of that judgment.

By two judgments of 26 November 1986 the Tribunal du Travail, Liège, granted her application and allowed her a full pension as from 1 February 1983 without any reduction owing to the fact that she received a foreign pension. In its judgment, the Tribunal du Travail accepted the argument submitted by Mrs Casagrande.

The ONP, which succeeded to the rights and obligations of the CNPRS and the ONPTS, appealed against those decisions, relying on the same submissions as in the Di Crescenzo case.

In its appeal, the ONP claimed that Mrs Casagrande's pension must be calculated as follows:

In its Opinion, the Ministère Public, after reviewing the facts of the case, expressed the view that the reference to the Cour d'Appel was premature. According to the Ministère Public, it would have been preferable to dispose of the Di Crescenzo case before embarking on the Casagrande case.

For the remainder, he referred to the Opinion delivered in the Di Crescenzo case, in particular to the operative part, in which he had suggested that the Cour d'Appel should refer a number of questions to the Court of Justice for a preliminary ruling.

In its interim judgment of 28 September 1991, the Cour du Travail, Liège, indicated that it agreed in principle with the suggestion that a fresh preliminary ruling should be sought from the Court of Justice.

However, the court ordered the reopening of the discussions in order to allow the parties to comment on the Opinion of the Ministère Public.

In its further submissions, the ONP, as it had done in the Di Crescenzo case, claimed that, pursuant to the case-law both of the Court of Justice and of the Belgian courts, the calculation of old-age and death benefits of persons covered by the scheme of Regulation No 1408/71 was subject to compliance with the five fundamental principles mentioned below, which had been strictly applied in the new statement of Mrs Casagrande's entitlement, a copy of which was annexed to its submissions:

First principle: Grant of the most favourable scheme.

The amount of Mrs Casagrande's pension under the internal Belgian scheme as from 1 February 1981, BFR 206840, is equal to the amount of the retirement pension under the Community scheme.

Second principle: Calculation of the benefit under the internal Belgian scheme.

The Belgian legislation, including its external rules against the overlapping of benefits, is applied in its entirety.

Since Mr Barel died on 16 January 1983, that is after the date on which his retirement pension became payable, Mrs Casagrande's survivor's pension must be calculated in accordance with Article 18(2) and (4) of the Royal Decree. As Mr Barel worked in Belgium for 21 years, that activity entitled her to a survivor's pension of 21/30ths. Under the Community scheme Mrs Casagrande can also benefit, in respect of the years 1932 to 1945, from the presumption of employment contained in Article 11 of the Royal Decree. However, pursuant to the penultimate subparagraph of Article 10(2) of the Royal Decree, the maximum number of years calculated in 45ths which may be added to 21/30ths is 45-(21 x 1, 5) = 45 -31, 5 = 45 -31 = 14. The external Belgian provision against overlapping, namely the new fourth subparagraph of Article 11 of the Royal Decree, introduced with effect from 1 July 1970 by the Law of 5 June 1970, must be applied to Mrs Casagrande. Her survivor's pension under the domestic Belgian scheme is thus increased to BFR 206840, that amount being obtained by deducting the amount of the Italian pension transferred to her following her husband's death, BFR 40721, from the amount of her Belgian survivor's pension calculated on the basis of an insurance record of 21/30ths +14/45ths, BFR 247 561.

Third principle: the Community provision against the overlapping of benefits in Article 46(3) is not applied in the internal Belgian scheme.

Fourth principle: calculation of the benefit under the Community scheme.

If Belgium and the Member State or States grant benefits of the same kind then, pursuant to the second sentence of Article 12(2), Belgium's external provisions against overlapping are not applied.

Since Belgium and Italy do grant benefits of the same kind, Belgium does not apply its external rules against overlapping for the calculation of the Community pension. The Community pension is therefore calculated without any reduction in the presumption of 14 years, from 1932 to 1945, and without deducting the Italian pension transferred to her (furthermore, the application of the rule against overlapping in the new fourth subparagraph of Article 11 is prohibited by the fifth subparagraph of that article). The benefit is determined as follows:

Since the amount of the proportional pension, BFR 153287, is less than the amount of the independent pension, BFR 247561, it is the amount of the independent pension which is taken into consideration pursuant to the second subparagraph of Article 46(1) of Regulation 1408/71.

Fifth principle: the independent pension is corrected, where necessary, pursuant to the Community provision against overlapping in Article 46(3), according to which the sum of the benefits granted by all the Member States may not exceed the highest theoretical amount of the pension.

In the opinion of the ONP, in the contested decision of the Tribunal du Travail, only the third principle was applied.

According to the ONP, in the light of the case-law of the Court of Justice, it was superfluous to refer to it any questions for a preliminary ruling, since the five principles invoked above actually clearly follow from the Court's case-law, recently confirmed in Case C-108/89 Pian v ONP [1990] ECR I-1599 and Case C-109/89 ONP v Bianchiti [1990] ECR I-1619. Similarly, the question regarding the miners' invalidity pension mentioned in the interim judgment was superfluous.

2. The references for a preliminary ruling

It was in that context that the Cour du Travail, Liège, by judgments of 22 February 1991, referred the following three questions to the Court for a preliminary ruling:

III — Procedure before the Court

The judgments making the reference were lodged at the Court Registry on 12 March 1991.

By order of 24 April 1991 the Court decided, pursuant to Article 43 of the Rules of Procedure, to join Cases C-90/91 and C-91/91 for the purposes of the procedure and judgment.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, written observations were submitted on 6 June 1991 by the Office National des Pensions, represented by R. Masyn, Administrator General, and by the Commission of the European Communities, represented by Dimitrios Gouloussis and Maria Patakia, of its Legal Service, and on 10 June 1991 by Mr Di Crescenzo and Mrs Casagrande, represented by J. Raskin, of the Liège Bar.

By decision of 22 October 1991, taken in application of Article 95(1) and (2) of the Rules of Procedure, the Court assigned the case to the Fifth Chamber.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

IV — Summary of the written observations submitted to the Court

The first and third questions

According to the ONP, the appellant in the main proceedings, the first and third questions have as their objective the interpretation to be given to Article 46 on the award of old-age and death benefits and the evolution of the Court's case-law since the Petroni case.

According to the ONP, that case-law, as laid down in the judgments in the Mura, Romano, Ruzzu, and Sinatra cases, in Case 37/86 Coenen v ONPTS [1987] ECR3589, Case 323/86 Collini v ONPTS [1987] ECR 5489, Case 128/88 Di Felice v Inasti [1989] ECR 923, Case C-199/88 Cabras v Institut National d'Assurance Maladie-Invalidité [1990] ECR I-1023, and in the Pian and Bianchin cases, establishes that the most favourable scheme must be granted: either the national domestic scheme, pursuant to which the national legislation alone, including its external provisions against overlapping, is applied in its entirety, or the Community scheme, pursuant to which the provisions of the legislation of a Member State on reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits or with other income cannot be invoked where benefits of the same kind are granted in respect of invalidity, old age, death (pensions) or occupational disease which are none the less awarded and reduced in accordance with the Community provisions.

In the opinion of the ONP, there is no doubt that the case-law established in the Petroni judgment has retained its whole raison d'être in so far as it laid down the principle that Article 46(3) of Regulation No 1408/71 cannot impose a reduction in the amount of the benefit payable under national legislation alone, but on the other hand does apply where the benefit is calculated under the Community provisions in order to ensure that the highest benefit is granted.

The fact that the national external provisions against the overlapping of benefits cannot be invoked is laid down in the second sentence of Article 12(2) of the regulation with regard to benefits of the same kind which are paid in accordance with the provisions of Community law. That award brings into play the provision for reduction set out in Article 46(3). The first subparagraph of that provision determines the absolute limit on the award of benefits, namely the highest theoretical amount of benefits calculated according to Article 46(2)(a). The person concerned is to be entitled, within that Umit alone, to the total sum of the benefits calculated in accordance with the provisions ot Article 46(1) and (2). The second subparagraph of Article 46(3) authorizes any institution applying Article 46(1) to adjust the amount payable by it by the amount by which the highest theoretical amount is exceeded. In other words, where independent benefits are granted, and in so far as the limit is exceeded, those benefits may be reduced solely according to a reduction factor of the benefits determined by that subparagraph. According to the ONP, that reduction factor is equal to one where there is only one institution awarding an independent benefit and, thus, that single benefit will be reduced by the total amount which exceeds the limit fixed in the first subparagraph of Article 46(3).

The ONP points out, moreover, that the Court held in the Collini case that where there is only one institution providing an independent benefit for the purposes of Article 46(1), that institution alone must reduce its benefit pursuant to the second subparagraph of Article 46(3), and must reduce it by the full amount by which the total sum of the benefits calculated in accordance with Article 46(1) and (2) exceeds the limit referred to in the first subparagraph of Article 46(3). Furthermore, the Court stated in its judgment in the Cabras case that the provisions of Article 46(3) must be interpreted as meaning that the highest theoretical amount of benefits, calculated according to Article 46(2)(a), constitutes the limit of the benefits which a migrant worker may claim under Community legislation, even where that theoretical amount is equal to the full benefit payable under the legislation of one Member State alone. As so interpreted, the provisions in question are not incompatible with Article 51 of the Treaty, since Article 46 may be applied only if it allows a migrant worker to be granted a benefit as least as high as that payable under the legislation of one State alone.

The ONP considers that the conditions for the application of the reduction factor laid down in the second subparagraph of Article 46(3) are confined to the award of independent benefits under Article 46(1). The limit fixed in the first subparagraph of Article 46(3), on the other hand, is to be applied wherever Community benefits are awarded, including the award of pro rata benefits alone.

It follows, according to the ONP, that the suspension of the external provision against overlapping benefits takes effect only where the benefits are awarded in accordance with Community provisions, including the provision for reduction of benefit laid down in Article 46(3), which is aimed in particular at the independent benefit determined according to the provisions of national legislation where the necessary conditions for the acquisition of the right are satisfied without its being necessary to have recourse to aggregation, and the acquired rights, the principle of which is established in the Petroni judgment, are those determined by applying national legislation alone, including its external provisions against overlapping, in its entirety.

The Commission considers that the first and third questions are essentially aimed at ascertaining whether it is appropriate to proceed to the calculation under Article 46 of Regulation No 1408/71 in its entirety, even where the right to a benefit is acquired on the basis of national legislation alone and there is thus no need to have recourse to the aggregation of insurance periods completed in another Member State.

As a preliminary point, the Commission considers it appropriate to point out that the Court has stated in its judgments on a number of occasions that the aim of Articles 48 to 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the laws of a single Member State and inferred therefrom, in Case 807/79 Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205, the principle that the application of the Community rules cannot bring about a reduction in the benefits awarded by virtue of the legislation of a single Member State.

According to the Commission, the application of that principle has been made possible in respect of rules against overlapping by the Petroni judgment, where the Court held that Article 46(3) is incompatible with Article 51 of the Treaty to the extent to which it imposes a limitation on the overlapping of two benefits acquired in different Member States by a reduction in the amount of a benefit acquired under national legislation alone (the Petroni principle, see judgment in that case).

The Petroni judgment gives specific form to the principle that social security rights acquired by individuals on the basis of national legislation are inviolable. In this case national legislation is understood as also covering national provisions against the overlapping of benefits, as is explained in the judgment in the Mura case, cited above, where it is stated that so long as a worker is receiving a pension by virtue of national legislation (an independent pension), the provisions of Regulation No 1408/71 do not prevent the national legislation, including the national rules against the overlapping of benefits, from being applied in its entirety.

The Court subsequently defined the scope of the Petroni judgment. Thus, in Case 236/78 FNROM v Mura [1989] ECR 1819 (the Mura I I case), it made the position clearer by stating that where the provisions of Article 46 ... are more favourable to the worker than the provisions of national legislation alone, by virtue of which the worker receives a pension, the provisions of that article must be applied in their entirety.

In the Commission's opinion, the application of Article 46 in its entirety, including paragraph 3, does not contradict the Petroni judgment, since while Article 46(3) is incompatible with Article 51 of the Treaty in so far as it imposes a reduction in a benefit acquired by virtue of national law alone, it remains valid where its application proves more favourable than the application of the national provisions against overlapping. An illustration may be found in the Collini judgment, where the application of Belgian legislation, including its provisions against overlapping, proved less favourable than those of the scheme under Article 46.

According to the Commission, the Court, in Case C-108/89 Pian, and in Case C-342/88 Rijksdienst voor Pensioenen v Spits [1990] ECR I-2259, merely repeated the method for calculating pensions pursuant to Article 46 in a way consistent with its previous case-law.

In fact, according to the Commission, a worker's pension must be determined by the competent institution in two stages. First of all, the institution must calculate the pension (a) pursuant to national legislation alone, including its provisions against overlapping, without taking account of Article 46, and (b) pursuant to Article 46 in its entirety. Within the framework of that calculation, and with a view to determining the independent pension provided for in paragraph 1, the provisions against overlapping are not taken into account, pursuant to the second sentence of Article 12(2). On the other hand, the resulting amount is adjusted in accordance with Article 46(3). Secondly, the institution compares the amounts resulting from the abovementioned calculations and grants the person concerned the more favourable of them.

The Commission concludes by suggesting that the first and third questions should be answered as follows:

According to the respondents in the main proceedings, the first and third questions raise the problem of ascertaining whether, in the light of the Petroni judgment, Article 46(3) may bring about a reduction in the benefits acquired in a Member State solely by virtue of periods of employment in that State where it has not been necessary for the persons concerned to have recourse to aggregation with other insurance periods in order to acquire the right to those benefits.

The philosophy of the Petroni judgment, in their view, is that Regulation No 1408/71 cannot have the effect of reducing the advantages which a Community national is entitled to obtain solely by virtue of benefits awarded in one Member State on the ground that he also obtains certain benefits under the legislation of another Member State.

After pointing out that the Court, in its judgment in the Romano case, declared that the provisions against overlapping introduced into Belgian legislation by the Law of 10 February 1981 were not applicable to Community nationals on the ground that they constituted provisions against overlapping within the meaning of Article 12(2) of Regulation No 1408/71, the respondents state that the Court has apparently not yet resolved the problem as posed by the first and third questions. The judgment in the Giuliani case, was, however, delivered in a similar case. In that judgment, the Court declared that Article 46(3) was applicable only in cases where, for the purpose of acquiring the right to benefit within the meaning of Article 51 of the Treaty, it is necessary to have recourse to the arrangements for aggregation of insurance periods and that since the waiving of residence clauses pursuant to Article 10 of Regulation No 1408/71 has no effect on the acquisition of the right to a benefit, it cannot involve the application of Article 46(3) of that regulation.

According to the respondents, the judgment of the Court in the Collini case, to which the ONP refers, does not necessarily have the scope which the ONP ascribes to it, since, being concerned solely with Article 46(3), it did not deal with the question referred to the Court in the light of Article 51 of the Treaty and the limitations which, according to the Petroni judgment, that article imposes on the application of Article 46(3) of Regulation No 1408/71.

The respondents consider that it is appropriate to reply to the first and third questions as follows:

The second question

The Commission takes the view that by its second question the national court is referring to legislations of type A and B. It considers that a reply to that question is to be found in the judgment in the Collini case, where the Court declared:

The respondents in the main proceedings consider that the second question, which concerns the scheme applied where an invalidity pension is granted by the Fonds National de Retraite des Ouvriers Mineurs (FNROM), is irrelevant to both disputes forming the subject-matter of the reference for a preliminary ruling.

1 Language of the case: French.