FURTHER OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 15 JULY 1982 (*1)

Mr President,

Members of the Court,

In the present case, in which I delivered an opinion on 25 March 1982, the Court decided to reopen the oral procedure. It wished to obtained further information about the nature, background and consequences of the decision of the French Institution of 23 November 1976 to grant a survivor's pension to Mrs Saelens and immediately to reduce it to nil in reliance on Article 12 of Regulation No 1408/71 and Article 7 of Regulation No 374/72. That decision gave rise to a number of misunderstandings underlying the reference made bv the Belgian court which I dealt with under point 2.2 of my earlier opinion. Those misunderstandings relate to the supposition that a rule against the overlapping of benefits was also applied by the Belgian Institution to the French survivor's pension which was reduced to nil. That is incorrect, as may be seen once more from the well-documented replies of the Belgian Institution. From those replies it may be seen that under the new decision of 11 January 1977 Mrs Saelens receives, in addition to the retirement pension itself, a higher survivor's pension than was granted under the earlier decision of 9 August 1971.

As regards the French decision itself, I expressed the view in my earlier opinion, partly as a result of the Commission's observations, that what is involved is the application of a national rule against the overlapping of benefits. The reply by the French Government confirms that view. The question whether that decision is correct under French law is not a matter which the Court of Justice may decide in the context of these proceedings. What is important is that no fanors can be discerned from the replies of the French Government which might give cause to doubt the correctness of the decision of the Belgian Institution. Accordingly, I see no reason for modifying the view which I expressed in my first opinion.

On the basis of the further information as to the facts now received and the provisions of Community law applied in the present case, that view might be expressed in the Court's reply to the cuestión raised as follows:

Provided that account is taken of the provision contained in Article 7 (1) (b) of Regulation No 574/72, Article 12 of Regulation No 1408/71 does not preclude the application of a national rule against the overlapping of benefits in respect of retirement and survivor's pensions, irrespective of what another Member State may have decided under its own national law with regard to the application of a similar rule against overlapping.

* * *

(*1) Trmtlitrd Ironi the Dutch