Report for the Hearing in Case C-275/91

I — Facts and written procedure

1. National legislation

(a) Belgian legislation

Article 70(2) of the Law of 9 August 1963 introducing and organizing a system of compulsory sickness and invalidity insurance (Moniteur Belge, 1 and 2 November 1963, p. 10555) was amended by Article 1(1) of Royal Decree No 19 of 4 December 1978 (Moniteur Belge, 14 December 1978, p. 15512) and became the first subparagraph of Article 76 quater (2) pursuant to Article 44(1) of the Programme Law of 30 December 1988 (Moniteur Belge, 5 January 1989, p. 75). This provision is worded as follows:

The third subparagraph of the same article lays down that the benefits are to be granted on the conditions determined by the King pending the actual payment of compensation under other Belgian legislation, foreign legislation or general law.

Pursuant to the latter provision, Article 241(1) of the Royal Decree of 4 November 1963 implementing certain provisions of the Law of 9 August 1963, (Moniteur Belge, 8 November 1963, p. 10886) provides that:

1. The grant of the benefits provided for in Article 70(2) of the Law of 9 August 1963 referred to above shall be subject to the conditions that a person who, on his own behalf or on behalf of his dependants, claims insurance benefits shall enable his insurer to exercise the right referred to in this article and shall notify his insurer:

(b) Italian legislation

Article 2 duodecies of Law No 114 of 16 April 1974 (Gazzetta Ufficiale, No 113, 2 May 1974) provides that if, when examining a claim for an invalidity pension, the Istituto Nazionale della Previdenza Sociale (National Social Welfare Institution) finds that the worker fulfils the conditions for obtaining an old-age pension, the Institution must proceed directly to pay that benefit.

Formerly Italian legislation did not provide for an invalidity pension to be converted into an old-age pension at the statutory retirement age. This situation was not changed until Law No 222 of 12 June 1984 (Gazzetta Ufficiale, No 165, lojune 1984). One of the invalidity benefits, the assegno di invalidità, is now converted into an old-age pension at the statutory retirement age, viz. 55 for women and 60 for men.

2. Community legislation

Article 40(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, Regulation No 1408/71), provides that a worker who has been subject to the legislation of two or more Member States, of which at least one makes the amount of invalidity benefits depend on the duration of periods of insurance, shall receive invalidity benefits in accordance with Article 46 in particular.

That article lays down provisions governing the award of benefits. The first paragraph is worded as follows:

In addition, Article 44(2) of the same Regulation provides that:

Finally, for the purposes of the present proceedings, it should be noted that Article 36(4) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71, as consolidated by Regulation No 2001/83 (Regulation No 574/72), provides that:

3. The main proceedings and the reference for a preliminary ruling

Mr Iacobelli, an Italian national born on 8 November 1920, was insured in Italy between 1936 and 1964 for 1212 weeks and worked in Belgium under the general workers' scheme from 13 August 1964 onwards. Following an accident at work on 9 December 1977, he applied for an invalidity pension from the Belgian Institut National d'Assurance Maladie-Invalidité (National Sickness and Invalidity Insurance Institution, INAMI), which examined the claim in accordance with Article 36 of Regulation No 574/72 and forwarded it to the Italian Istituto Nazionale della Previdenza Sociale (National Social Welfare Institution, INPS). He became an invalid on 9 December 1978. As a result of his claim, he was awarded benefit for unfitness for work from 1 August 1980 under Belgian law alone.

On 24 February 1982 the INPS sent the INAMI a decision granting Mr Iacobelli an old-age pension with effect from 1 December 1980, the date on which he reached the age of 60, the statutory retirement age in Italy. This pension was granted in lieu of the invalidity pension to which he was entitled under Article 46(2)(b) of Regulation No 1408/71. In reply to a letter from the INAMI inquiring as to the reasons for the decision and asking the INPS to adopt a final position with regard to the period from 1 January 1979 to 30 November 1980 (the period between the commencement of the right to an invalidity pension and the grant of the old-age pension), the INPS stated that no invalidity benefit would be granted by Italy as the applicant had expressly waived it by a declaration dated 6 December 1982.

The INAMI contested this decision and asked the INPS to reconsider it as, in its opinion, it was contrary to Community law and Belgian law. No reply was received from the INPS and the INAMI decided to discontinue the benefits to Mr Iacobelli as from October 1983.

On 3 August 1985 he brought an action before the Tribunal du Travail (Labour Court), Brussels, against the discontinuance of his benefits. By an interlocutory judgment of 15 October 1991, the Tribunal du Travail asked the Court for a preliminary ruling on the question:

4. Procedure before the Court

The order for reference from the Nineteenth Chamber of the Tribunal du Travail, Brussels, was received at the Court Registry on 23 October 1991.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Mr Iacobelli, the plaintiff in the main proceedings, represented by D. Rossini, trade union representative, by the INAMI, defendant in the main proceedings, represented by Jean-Jacques Masquelin, of the Brussels Bar, by the Commission of the European Communities, represented by Maria Patakia, of its Legal Service, acting as Agent, by the Hellenic Republic, represented by Vasileios Kontolaimos, Assistant Legal Adviser, and Ioannis Chalkias, Legal Attorney, members of the State Legal Council, and by the Italian Republic, represented by Pier Giorgio Ferri, Avvocato dello Stato.

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 and to assign the case to the Third Chamber.

II — Written observations submitted to the Court

1. The plaintiff in the main proceedings observes that waiver of the Italian invalidity pension enabled him to claim, under Italian law alone, an old-age pension greater than the invalidity pension and which, moreover, can be paid in addition to the invalidity pension acquired under Belgian law alone, up to a certain maximum (Article 235 bis of the Royal Decree of 4 November 1963).

2. The defendant in the main proceedings considers that there is no doubt as to the reply to the question from the national court, as phrased. In the defendant's opinion, the Court of Justice has consistently held that Community law does not prevent a competent institution of a Member State from granting a national pension which is more advantageous to the person concerned, instead of an apportioned pension.

3. The Commission observes that Mr Iacobelli's invalidity pension is determined in accordance with Article 40(1) of Regulation No 1408/71, under which the provisions of Chapter 3 of that regulation are to be applied by analogy. It follows, in the opinion of the Commission, that Article 44(2) is applicable and that its application by analogy to a field not covered by the said Chapter, which relates to old-age and death pensions, means that the exception for which the last part of that paragraph provides is extended to invalidity benefits. The same reasoning must be followed as regards Article 36(4) of Regulation No 574/72, which contains technical and procedural rules for implementing Regulation No 1408/71.

4. The Greek Government, relying on the Court's case-law, points out that Community law cannot eliminate or reduce benefits acquired under national legislation alone. If the application of Community law leads to a less favourable result than would be obtained by virtue of national legislation, it is the latter that is applied (see Case 733/79 Laterza [1980] ECR 1915, Case 24/75 Petroni, cited above, and Case 100/78 Rossi [1979] ECR 831, Case 807/79 Gravina [1980] ECR 2205 and Case 320/82 D'Amaria [1983] ECR 3811).

5. The Italian Government points out that the application of Article 36(4) of Regulation No 574/72 cannot have the effect of compelling an institution of a Member State to set aside a rule of national law where it appears that this is more favourable to the recipient of the benefit.

1 Language of the case: French.