Report for the Hearing in Case C-193/92
I — Facts and procedure
(a) Facts of the main proceedings
Mr Bogana, an Italian national, worked as an employed person in Italy and in Belgium.
When he became incapacitated for work he was granted in both States entitlement to receive invalidity benefits with effect from 1 November 1981.
The Italian invalidity benefit was calculated in accordance with the rules on aggregation and apportionment laid down in Article 46(2) 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 (OJ, English Special Edition 1971(11), p. 416; consolidated version contained in OJ 1983 L 230, p. 6).
The Belgian invalidity benefit was determined in accordance with the provisions of national law. In view of the rule against overlapping set out in Article 76c(2) of the Belgian Law of 9 August 1963 establishing and organizing a scheme of compulsory sickness and invalidity insurance, in the version laid down by Royal Degree No 19 of 14 December 1978, the benefit paid to Mr Bogana by the competent Belgian institution was fixed at an amount equal to that of the full Belgian benefit, less the apportioned Italian benefit.
The Belgian benefit was revised with effect from 1 October 1986 in order to take account of changes in the Belgian legislation with regard to the method of calculating invalidity benefits. There is no dispute with regard to that revision.
It is common ground that on the date when the Belgian pension took effect, that is to say, 1 November 1981, and at the date when that pension was revised, that is to say, 1 October 1986, the amount of the benefit determined under Belgian legislation alone, including the rule against overlapping set out in Article 76c(2) of the Law of 9 August 1963, was equal to the amount of the pension calculated under Article 46 of Regulation No 1408/71, including the rule against overlapping set out in Article 46(3).
On 1 November 1981 the invalidity benefit paid to Mr Bogana by way of the Belgian pension came to BFR 472.23 per diem and that paid by way of the Italian pension to BFR 27.21 per diem. As from 1 October 1986, those benefits were fixed at BFR 606.64 and BFR 35.79 per diem respectively.
The Belgian invalidity benefit was adapted in accordance with the rules set out in Article 241a(2)(a) and (b) of the Royal Decree of 4 November 1963 implementing the Law of 9 August 1963, in the version laid down by the Royal Decree of 30 July 1981.
According to that article, the calculation of the amount of benefit paid under Article 76c(2) of the Law of 9 August 1963 is to be revised:
(a) where the benefit [granted by foreign law] ... changes by 2% in relation to the amount taken into account on the occasion of the initial or preceding calculation; the new calculation shall be made at the exchange rate ruling in the quarter in which the day on which the change in the benefit occurred ...; (b) where the average exchange rate for the foreign currency changes by 2% in relation to the exchange rate taken into account on the occasion of the initial or preceding calculation, the revision shall be carried out with effect from the first day of the quarter during which the exchange rate which has changed by 2% is applicable; ....
Union Nationale des Mutualités Socialistes (hereinafter UNMS), the Belgian institution responsible for the payment of benefits, found that those provisions had not been correctly applied to Mr Bogana between 1 January 1987 and 28 February 1991 and consequently claimed from him the sums of BFR 4572 and BFR 39093, which it considered he had been unduly paid during that period.
(b) Procedure before the national court
Mr Bogana brought an action against that decision in the Tribunal du Travail (Labour Court), Brussels.
Institut National d'Assurance Maladie-Invalidité (National Sickness and Invalidity Insurance Institution, hereinafter referred to as INAMI), intervened as a defendant in support of the form of order sought by UNMS.
In the Tribunal du Travail, Mr Bogana argued that the application of the provisions of Article 241a(2)(a) and (b) of the Royal Decree of 4 November 1963, cited above, was contrary to the provisions of Article 51 of Regulation No 1408/71, Article 107 of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ, English Special Edition 1972(1), p. 159; version consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6) and Decision No 99 of 13 March 1975 of the Administrative Commission of the European Communities on Social Security for Migrant Workers (OJ 1975 C 150, p. 2).
The Tribunal du Travail, Brussels, took the view that the outcome of the proceedings depended on the interpretation of provisions of Community law and, by judgment of 5 May 1992, stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
(c) Procedure before the Court
The judgment of the Cour de Travail, Brussels, was received at the Court Registry on 14 May 1992.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were lodged by Mr Bogana, represented by Franco Agostini, of the Rome Bar, by INAMI, represented by Emmanuel Degrez, of the Brussels Bar, and by the Commission of the European Communities, represented by Dimitrios Gouloussis, Legal Adviser, acting as Agent.
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.
By decision of 18 November 1992, the Court decided to refer the case to the Third Chamber.
II — Summary of the written observations submitted to the Court
1. The plaintiff in the main proceedings, Mr Bogana, argues in the first place that the application to his situation of the provisions of Article 241a of the Royal Degree of 4 November 1963 is contrary to the provisions of Article 51(1) of Regulation No 1408/71, as interpreted by the Court of Justice (see, inter alia, the judgments in Case C-85/89 Ravida v Office National des Pensions [1990] ECR I-1063 and in Case C-93/90 Cassamali v Office National des Pensions [1991] ECR I-1401).
2. The party intervening on the defendant's side in the main proceedings, INAMI points out in the first place that the Court has consistently held that as long as the worker receives a pension under national legislation alone, the provisions of Regulation No 1408/71 do not prevent that national legislation, including its rules against overlapping, from applying in full, and the provisions of Article 46 of the regulation should be applied only if the national legislation turns out to be less favourable to the worker.
3. The Commission points out in the first place that the system of Article 51 of Regulation No 1408/71 results in a distinction's being drawn between the adaptation of benefits as a result of indexation and the adaptation of benefits owing to changes in calculation methods. In the first case, a percentage or a specific amount is added to the benefits due up until that time and no fresh calculation is carried out. In the second case, a full fresh calculation is carried out. Since Article 51 contemplated no other possibility for altering the benefit, paragraph 1 of that provision lays down the principle of the independent evolution of social security benefits. According to that principle, once benefits have been calculated in accordance with Article 46, they must evolve independently in each of the Member States concerned, and any adaptation made in one or other of them must not affect benefits paid in the other States.
1 Language of the case: French.