Opinion of Advocate General Darmon delivered on 13 May 1993

1 Original language: French.

2 Regulation NO 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self employed persons and to members ol their families moving within the Community, as amended and updated by Council Regulation (LLC) NO 2021/83 of 2 June 1983 (OJ 1983 L. 230, p 6, Annex I).

3 Monitem Belge of 27 October 1967, p 11258, amended bv Article 2 of the law of 26 June 1972 (.Moniteur Belge of 30 June 1972, p 7718) and bv Article 1 of the 1 aw of 28 March 1975 {Moniteur Belge of 8 April 19'5, p 4108)

4 The wording of the preliminary questions is contained in the Report for the Hearing (II).

5 See Article 46(1), first subparagraph, and the judgments in Joined Cases 116/80, 117/80, 119/80, 120/80 and 121/80 RWP v Celestre [1981] ECR 1737, paragraph 12, and Case 296/84 Sinatra [1986] 1407, paragraph 21. The amount of the benefit referred to in Article 46(1) is acquired not strictly pursuant to national legislation but by application of Community law in so far as it neutralizes the effects of the national antiverlapping provision.

6 See the judgment in Case C-5/91 Di Prinzio [1992] ECR I-897, paragraph 39.

7 Sec Article 46(2)(a)

8 Cited in footnote 5.

9 These circumstances are wholly analogous: the worker con cerned is entitled to a complete pension under national law alone; the autonomous benefit — no account being taken of national ami overlapping provisions - is equal to a com plctc pension, namely 30/30ths

10 Paragraphs 25 and 26. emphasis added, sec also paragraphs 43 and 48 of the same judgment. See, to the same effect, paragraph 19(b) of the Opinion of Advocate General Lenz in Case C-31/92 Lany, pending before the Court

11 Di Prmzio cited above, paragraphs 39, 44, 48 and 58.

12 Article 46(2)(c).

13 Which is incontestable —sec p. 14 of the Commission's observations.

14 Case 126/77 Frangtamore v Office National de Emploi [1978] ECR 725

15 Paragraph 9, emphasis added. See also, with regard to Council Regulation No 3 of 25 September 1958 on social security for migrant workers, the judgment in Case 2/72 Murru [1972] ECR 333

16 See my Opinion in Di Pnnzto, cited above, paragraph 62

17 Di Priīizio, cited above, paragraph 49, emphasis added.

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

19 Paragraphs 18 and 35, emphasis added.

20 Sec the judgment in Joined Cases 116/80 to 121/80 RWP v Celestre, cited above, paragraph 15d.

21 Paragraph 21 of the judgment in Di Crescenzo and Casa grande, cited above Sec also paragraph 36 of Di Prtnzio, cited above, citing the judgments in Case 58/84 Romano 1985: ICR 1679 and Case 117/84 K::2?u 1985] ECR 1697

22 Cued in footnote 2C

23 This provision was inserted in Royal Decree No SC by Article 2 of Royal Decree No 2CS of 29 August 1983

24 Sec paragraph 8 of the judgment in Case 37/86 Van Gastel [1987] ECR 3589.

25 See the judgments in Romano (paragraph 15) and in Ruzzu (paragraph 16), cited in footnote 20.

26 Case C-108/89 [1990] LCR I-1599.

27 Paragraph 16, emphasis added.

28 See the judgment in Di Prinzio, cited above, paragraphs 38, 46 and 55, and the judgment in ONP v Di Crescenzo and Casagrande, cited above, paragraphs 20 and 27 This rule was embodied in Article 46(b)(1) of Council Regulation (EEC) No 1248/92 of 13 April 1992 amending Regulation (EEC) No 1438/71 on the application ot social security schemes to employed persons, sell employed persons and members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1992 L 136, p. 7).

29 Case 305/87 Commission v Greece [1989] ECR 1461

30 Case C-349/87 Paraschi v Landesversicherungsanstalt Württemberg [1991] ECR I-4501. See also my Opinion in Case C-165/91 S. J. M. Van Munster, paragraphs 37 to 40, now pending before the Court.

31 See, to that effect, the Opinion of Advocate General Jacobs in Case C-199/88 Cabrat [1990] ECR I-1044.

32 See paragraphs 15 to 17 of the judgment in ONP v Di Crescenzo and Casagrande, cited above.

33 That is the position in the Del Grosso case. For another example, see the judgment in Sinatra, cited above, paragraph 13.

34 See Article 4 of that regulation and the new Article 95a(4) of Regulation No 1408/71