Opinion of Advocate General Lenz delivered on 29 April 1993

1 Original language: German.

2 The calculation was obviously based on the full amount in effect at the time of the change, which was slightly higher than the amount applying in 1989 (see paragraph 21 below).

3 In the version resulting from Article 142 of the Law of 15 May 1984 (Moniteur Belge, 22 May 1984, p. 7335, at p. 7093). The text of this provision is reproduced in the Report for the Hearing.

4 Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed per sons, to self employed persons and to members of their fam ilies moving within the Community (OJ, English Special Edition 1971 (II), p. 416), as amended by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6)

5 See section II below.

6 The Auditeur du Travail is a representative of the public interest who assists the Tribunaux du Travail in the performance of their duties (see Articles 145 and 152 of the Belgian Code Judiciaire and, for more detail, J. Petit, De rechtspleging voor de arbeidsgerechten, No 75 ff. in: R. Blanplain (ed.), Arbeidsrecht (as at September 1992)).

7 In his submissions, the Auditeur du Travail commented on the proposed questions as follows: In other words, is the application of a national rule against coexisting benefits compatible with Community law where a person who has been covered by the social security schemes of two Member States concurrently for a given period can claim old-age benefits from each of them in respect of that same period?

8 Joined Cases 141/81 to 143/81 Holdijk [1982] ECR 1299, paragraph 6.

9 See the remarks of the Court in the Holdijk case (cited above in footnote 7), paragraph 7.

10 Case 369/89 Pialeme [1991] ECR I-2971, paragraph 7.

11 Settled case law; sec most recently Case 280/91 Viessmatm [1993] ECR I 971, paragraph 17.

12 Case 108/89 [1990] ECR I 1599.

13 Case 5/91 [1992] ECR I 897.

14 Joined Cases 90/91 and 91/91 [1992] ECR I-3851.

15 OJ 1992 L 136, p. 7. Λ consolidated version of Regulation No 1408/71 is printed in OJ 1992 C 325.

16 Regulation No 1248/92 came into force on this date in accordance with Article 4 of the regulation itself.

17 Joined Cases 116/80, 117/80 and 119 121/80 Ccleslre [1981] ECR 1737, paragraph 9. This case law also applies to self employed persons (sec Case 128/88 Dt Felice [1989] ECR 923, paragraph 9).

18 Di Prinzio (cited in footnote 12), paragraph 18.

19 Di Prinzio (cited in footnote 12), paragraphs 34-35.

20 Di Prinzio (cited in footnote 12), paragraphs 25-26 and 43-44.

21 This calculation may be illustrated by an example: If the person concerned has worked in Member State Λ for 30 years and in Member State Β for 10 years (and completed corresponding periods of insurance), the amount to be calculated in accordance with Article 46(2)(b) in Member State A is three-quarters of the theoretical amount (to be determined by reference to the law of Member State A in conjunction with Article 46(2)(a)) and in Member State Β one-quarter of the theoretical amount, to be calculated according to the law of Member State Β in conjunction with Article 46(2)(a).

22 Di Prinzio (cited in footnote 12), paragraphs 60 et seq.

23 The Belgian institution calculated the actual amount due by taking the periods of insurance completed under Belgian law and in total to be 45 years and applying the resulting ratio (45/45ths) to the theoretical amount, so that here the independent, theoretical and actual amounts arc identical. I consider this to be correct. The remark made by the Court in Dt Prinzioo (cited above in footnote 12), paragraph 58, that in such a case the actual amount is of necessity less than the independent amount, is not, in my opinion, gener ally true.

24 Sec Case 186/90 Durghello [1991] ECR I-5773. paragraph 8. Incidentally, it should be noted that the letter from the defendant in the main proceedings produced by the Bel gian Government is inaccurate on at least one point: it states that application of the national rule against coexisting benefits led to a pension of BFR 126549, or 28.21/45lhs of the full amount (sec paragraph 6 above).

25 See Case 322/90 Faux [1991] ECR I-4875. para graphs 27 28

26 Eighth recital in the preamble to Regulation No 1408/71 (see OJ. English Special Edition 1971 (II). p. 416).

27 Whether the disadvantageous effect for Mr Larsy could have been compensated for in some other way, for example by a refund of his contributions to the French institution, is not under examination here.

28 Case 323/86 [1987] ECR 5489. paragraph 13 (emphasis added)