OPINION OF ADVOCATE GENERAL VAN GERVEN

delivered on 27 April 1994 (*1)

1.In this case, the Ninth Chamber of the Brussels Labour Court has referred various questions to the Court concerning the interpretation of Regulation (EEC) No 1408/71 of the Council 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 (1) and, in particular, of Article 46(3) thereof.

I — Facts and procedure

2.Mr Del Grosso, of Italian nationality, was insured in Italy from 1938 to 1946 and subsequently covered by Belgian social security for employed persons. He was declared unfit for work as from 10 January 1977 and received sickness benefits (designated a ‘primary incapacity allowance’) for one year from the start of his unfitness for work and invalidity allowance from 10 January 1978. From 1 November 1978 to 8 March 1979 he tried to resume work (and accordingly stopped receiving the compensation) but was again declared unfit for work from 9 March 1979. He therefore received a primary incapacity allowance for one year again and an invalidity allowance from 9 March 1980.

3.After he first became unfit for work on 10 January 1978, a claim for invalidity benefit was forwarded by the Belgian Institut National d'Assurance Maladie-Invalidité (National Institute of Sickness and Invalidity Insurance; hereinafter ‘INAMI’) to the competent institution in Italy within the meaning of Regulations No 1408/71 and (EEC) No 574/72, (2) namely the Istituto Nazionale della Previdenza Sociale (National Institute for Social Welfare; hereinafter ‘INPS’) of Parma. That body decided on 13 September 1979 to grant an invalidity benefit taking effect on 1 February 1978. After Mr Del Grosso became unfit for work a second time, a fresh application was lodged by the INAMI with the Parma INPS. That body took a new decision on 12 November 1980 from which it is apparent that Mr Del Grosso continued to receive his Italian invalidity benefit without interruption from 10 January 1978, and thus even when he had resumed work in Belgium or was receiving the primary incapacity allowance in accordance with Belgian law. The amount of his benefit is recalculated in the decision and, as is there stated, ‘for the period from 1 November 1978 to 30 March 1980 the benefit is granted at the minimum rate laid down by the Italian legislation on the ground that for that period Belgium suspended payment of the benefits for which it is liable.’

4.On receipt of that decision, the INAMI by decision of 23 December 1980 recalculated for its part the benefits payable, this time for the period from 9 March 1979 to 31 December 1980, applying a national anti-overlapping provision in Article 70(2) (which has since become Article 76c(2) of Royal Decree No 19 of 4 December 1978) of the Law of 9 August 1963 establishing and organizing a system of compulsory insurance against sickness and invalidity, the first subparagraph of which provides:

‘The benefits provided for under this statute shall be refused where the loss arising from sickness, injuries, functional disorders or death is effectively compensated by virtue of any other Belgian legislation, foreign legislation or ordinary law. However, where the sums granted pursuant to that legislation or law are lower than the insurance benefits, the recipient shall be entitled to the difference, at the expense of the insurance institution.’

5.On 6 April 1982, the Union Nationale des Mutualités Socialistes (the National Union of Socialist Mutual Insurance), an insurance body for the purposes of Belgian law, brought an action before the Brussels Labour Court for recovery of the amount overpaid to Mr Del Grosso for the period from 9 March 1979 to 31 December 1980. The documents before the Court indicate that the amount so claimed was calculated in accordance with several different laws:

—from 9 March 1979 to 8 March 1989 (overlap between the Belgian primary incapacity allowance and the Italian invalidity benefit), under Article 76c(2) of the Belgian Law of 9 August 1963;

—from 9 March 1980 to 31 March 1980 (overlap between the Belgian invalidity allowance and the Italian invalidity benefit), also under Article 76c(2) of the Belgian Law of 9 August 1963;

—from 1 April 1980 to 31 December 1980, under Article 46(3) of Regulation No 1408/71.

6.Mr Del Grosso disputed the amount overpaid for the period from 9 March 1979 to 31 March 1980, arguing that the benefit supplement which the INPS had granted him to bring his benefit up to the minimum laid down by the Italian legislation was a concession on the part of the Italian State and not compensation for loss, that its effect was to convert the Italian invalidity benefit into an independent benefit, and that if an anti-overlapping rule should apply it should be that laid down in Article 46(3) of Regulation No 1408/71.

II — The questions referred

With a view to resolving the dispute before it, the Brussels Labour Court by judgment of 17 June 1993 referred the following questions to the Court of Justice:

(1) Whether the Italian social security benefit know as an ‘invalidity benefit’ may be categorized as an ‘independent benefit’;

(2) whether Article 46(3) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons ... moving within the Community applies where such a benefit — calculated in accordance with the system of aggregation and apportionment in order to bring the benefit, by means of a supplement, up to the level of the minimum monthly pension provided for by the compulsory sickness and old-age pension scheme for employed persons — overlaps with a Belgian sickness and invalidity allowance (known as a ‘primary’ allowance); or

(3) whether or not the Italian invalidity pension ‘supplement’ constitutes compensation for the same loss within the meaning of Article 70(2) (subsequently renumbered 76c(2) pursuant to paragraph 3 of Article 30 of the (Belgian) Law of 30 December 1988) of the Law of 9 August 1963 introducing and governing compulsory sickness and invalidity cover, as amended by Article 1(1) of Royal Decree No 19 of 4 December 1978, and whether it is therefore of the same kind (and thus whether it may overlap therewith). (3)

8.I should point out that this action is separate from that in which the Court gave judgment on 15 December 1993, (4) which concerned the calculation of Mr Del Grosso's old-age pension.

III — Consideration of the questions submitted

9.The term ‘independent benefit’ does not occur in the Community regulations. It has however been used in the case-law of the Court concerning the overlapping of benefits since the judgment in CoBmi (5) as meaning the benefit calculated in accordance with the first subparagraph of Article 46(1) of Regulation No 1408/71, namely the full benefit provided for by the legislation of the Member State of the competent institution, under that legislation alone and without taking into account periods completed under the legislation of other Member States to which the person concerned has been subject.

The Court has therefore used the term to refer to a method of calculating a specific benefit, that mentioned in the first subparagraph of Article 46(1) of Regulation No 1408/71.

10.In this case, the defendant himself accepts that the right to his Italian invalidity benefit was acquired on the basis of his being consecutively subject to the Italian and Belgian schemes and, consequently, in accordance with the system of aggregation of insurance periods and apportionment of benefits. However, the fact that the apportioned benefit is brought up, by the addition of a supplement, to the level of the minimum pension provided for by the Italian legislation, and that that level is also the amount which would have been obtained had it been an independent benefit, had in his view the effect of converting the apportioned benefit into an independent benefit.

11.The fact that two benefits, each calculated according to specific rules, are of an identical amount does not mean that they must be assumed to have been calculated according to identical methods.

The concept of independent benefit refers to the method of calculation described in the first subparagraph of Article 46(1) of Regulation No 1408/71, which is different from the method of calculation based on the system of aggregation and apportionment. Since the effect of adding a supplement to an original apportioned benefit is that the resultant amount is the same as that which would have been obtained by another method of calculation does not call in question the method of calculating that original benefit and the ensuing classification.

In its second and third questions, the referring court is asking essentially whether the second subparagraph of Article 46(3) of Regulation No 1408/71 applies where there is an overlap between an invalidity benefit calculated by aggregation of insurance periods and apportionment, increased by a supplement to bring it up to the minimum amount laid down by Italian law, and a Belgian sickness benefit (second question) and whether the ‘supplement’ to the Italian invalidity benefit constitutes compensation for the same loss within the meaning of the Belgian law, in other words, whether it is of the same kind as (and accordingly whether it may overlap with) the latter (third question).

The third question, read literally, is concerned solely with how to classify, under the Belgian anti-overlapping rules, the invalidity benefit supplement granted by Italy in order to bring that benefit up to the minimum laid down by the Italian legislation. As the Court stated in Stefanutti, such a question of classification is governed by national law and it is for the national court to determine the substance of, and to interpret the provisions of, its own legislation as regards the overlapping of benefits. This is certainly not the answer expected by the national court.

In my view, the third question cannot be answered in a way which is useful to the national court unless it, together with the second question, is considered in the context of the proceedings brought before that court. The point of those two questions is to determine whether the anti-overlapping provision in Article 76c(2) of the Belgian Law of 9 August 1963 may be invoked against the defendant in accordance with the first sentence of Article 12(2) of Regulation No 1408/71. Under that provision, national anti-overlapping provisions may be invoked against the recipient of benefits not falling within the exception set out in the second sentence of Article 12(2). By virtue of that exception, the anti-overlapping provision of national law may not be invoked ‘when the person concerned receives benefits of the same kind in respect of invalidity, old age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States in accordance with the provisions of Articles 46, 50 and 51 or Article 60(1)(b)’. In other words, Article 46(3), applied in conjunction with the two other prerequisites of the exception in the second sentence of Article 12(2) (benefits of the same kind; inclusion in the benefits listed), would preclude the application of any national anti-overlapping provision.

Whether a national anti-overlapping provision may be invoked against the recipient of the benefits accordingly depends on whether it can be shown that the situation is not within the exception in the second sentence of Article 12(2) of Regulation No 1408/71. That provision requires three facts to be ascertained:

(1) whether the benefits received by the defendant are ‘of the same kind’ (it is to this term which the national court refers in its third question),

(2) whether each of the benefits is equivalent to benefits ‘in respect of invalidity, old age, death (pensions) or occupational disease’

and

(3) whether those benefits are ‘awarded ... in accordance with ... Articles 46, 50 and 51 or Article 60(1)(b).’

The Court has consistently held that social security benefits must be regarded as being of the same kind when the subject-matter and purpose together with the basis on which they are calculated and the conditions for granting them are identical. Such benefits must be considered and classified in the light of the Community rules. In making a comparative analysis of such benefits, the structure of Regulation No 1408/71 should be taken into account and, in particular, the different chapters constituting Title III which contain the provisions specific to the different categories of benefits.

If the benefit received by the defendant under Belgian law for the period for which the overpayment is disputed, namely from 9 March 1979 to 8 March 1980, is studied, it will be seen that it is a sickness benefit termed ‘primary invalidity allowance’, representing a proportion (60%) of the remuneration lost by the employee because he was unfit for work, for each working day of the period of one year running from the date on which his unfitness for work began (see Article 46 of the Law of 9 August 1963). It is accordingly a sickness benefit in the nature of ‘cash benefits’ within the meaning of Article 19 et seq. in Chapter 1 of Title III of Regulation No 1408/71, concerning sickness and maternity, namely ‘cash payments to help the person concerned maintain his income while he is unfit for work due to sickness’. Such a benefit is to be calculated in accordance with Article 23 of the regulation.

It is already apparent that the Belgian benefit in question here does not satisfy the two last conditions of the second sentence of Article 12(2), since

(1) unlike the Belgian ‘invalidity allowance’ which was granted to the defendant during the last period mentioned in paragraph 5 above it is not a benefit in respect of ‘invalidity, old age, death (pensions) or occupational disease’

and

(2) nor is it a benefit awarded ‘in accordance with ... Articles 46, 50 and 51 or Article 60(1)(b)’

since, as I have just stated, it is a benefit awarded in accordance with Article 23.

Furthermore, the Belgian and Italian benefits are not ‘of the same kind’. While the Belgian benefit in question is a sickness benefit calculated in accordance with Article 23 of Regulation No 1408/71, it is not disputed that the Italian benefit is an invalidity benefit calculated in accordance with Article 46(3) of the regulation. That provision is part of Chapter 3 of Title III of the regulation, concerning old age and death (pensions), but is applicable by analogy with the invalidity benefits granted in accordance with the Italian legislation. Chapter 2 of Title III of Regulation No 1408/71, concerning invalidity, distinguishes between two types of legislation: that under which the amount of invalidity benefits is independent of the duration of periods of insurance (Section 1, Articles 37 to 39) and that under which the amount of invalidity benefit depends on that duration (Section 2, Article 40). The Italian legislation is of the second type, and this is confirmed by Annex IV of the regulation. Article 40(1) of the regulation provides that benefits granted under such legislation are to be calculated in accordance with the provisions of Chapter 3 of Title III of the regulation, concerning old age and death.

To summarize, if the two benefits received by Mr Del Grosso are compared it will be noted that they are not of the same kind. One is a cash benefit in respect of sickness, calculated in accordance with Article 23 of Regulation No 1408/71, while the other is an invalidity benefit, calculated in accordance with Article 46.

The only doubt which may still need to be resolved is as to the effect of the benefit supplement granted under Italian law on the conclusion which I have just reached.

In my view, the classification of the Italian invalidity benefit as an ‘apportioned benefit’ rather than an ‘independent benefit’, as I have suggested above (paragraph 11), has no effect on the outcome of the proceedings since the Belgian primary invalidity allowance (sickness benefit) and the Italian invalidity benefit (independent or apportioned) will in any event remain benefits of a different kind for the purposes of the first sentence of Article 12(2) of Regulation No 1408/71.

I accordingly conclude from the various points set out above that the conditions for the application of the second sentence of Article 12(2) are clearly not satisfied and that the national anti-overlapping rule may be invoked against the defendant in accordance with the first sentence of Article 12(2) of Regulation No 1408/71.

IV — Conclusion

For the reasons set out above, I propose that the Court give the following answers to the questions submitted by the Brussels Labour Court in its judgment of 17 June 1993:

As far as concerns benefits granted in accordance with Regulation No 1408/71, the term ‘independent benefit’ is used to mean the benefit calculated in accordance with the first subparagraph of Article 46(1), namely the full benefit provided for by the legislation of the Member State of the competent institution, under that legislation alone and without taking into account periods completed under the legislation of other Member States to which the person concerned has been subject. Consequently, that term may not be used to mean an Italian social security benefit called ‘invalidity benefit’, even supplemented in order to take it up to the level of the minimum pension provided for by the Italian legislation, since that benefit was originally calculated in accordance with the system of aggregation of insurance periods and apportionment.

2.The first sentence of Article 12(2) of Regulation No 1408/71 does not preclude the application of an anti-overlapping provision in national legislation under which a migrant worker receives cash benefits in respect of sickness, intended to compensate for the loss of income suffered by reason of unfitness for work due to sickness, where he also receives an invalidity benefit in another Member State, awarded in accordance with Article 46 of Regulation No 1408/71 and whether or not increased by a supplement set by the legislation of that other Member State in order to bring it up to the level of the minimum pension provided for by that legislation.

*1 Original language: French.

1 As consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

2 Council Regulation (EEC) No 574/72 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71, as consolidated by Council Regulation No 2001/83 of 2 June 1983 (OJ L 230, p. 86). Sec the list of competent institutions in Annex 2 to Regulation (EEC) No 574/72 (OJ L 230, p. 133).

3 Question set out as corrected in accordance with the letter of 29 June 1993 from the President of the Ninth Chamber of the Labour Court to the Court of Justice.

4 Judgment of 15 December 1993, Fabrizzi and Others v Office National des Pensions (C-113/92, C-114/92 and C-156/92 [1993] ECR I-6707).

5 Case 323/86 Collini v Office National des Pensions pour Travailleurs Salar iés [1987] ECR 5489, at paragraphs 10 and 15; Case C-199/88 Cabras v Institut National d'Assurance Maladie-Invalidité [1990] ECR I-1023; Case C-342/88 Rijksdienst voor Pensioenen v. Spits [1990] ECR I-2259, at paragraph 12; Case C-5/91 Di Prinzio v. Office National des Pensions [1992] ECR I-897, at paragraph 34; Joined Cases C-90 and C-91/91 Di Crescenzo and Casagrande v. Office National des Pensions [1992] ECR I-3851, at paragraph 19.

6 Case C-197/85 Offia NdBauű its Pensom pour Trausliem StJďriit v Safomm [1987] ECU 3855, at paragraph 16.

7 This exception is easier to understand if it is borne in mind that Articles 46, 50, 51 and 60(1)(b) are themselves designed to determine the maximum amount of benefits which may be received.

8 Most recently in Case C-102/91 Knock v Bundesanstalt für Arbeit [1992] ECRI-4341, at paragraph 40.

9 In other words, I am here concerned with only the first of the three periods which I differentiated in paragraph 5 above, namely the period during which a ‘primary invalidity allowance’ within the meaning of Belgian law was granted to the defendant.

10 S. Van Raepenbusch, La sécurité sociale des personnes qui circulent h l'intérieur de la Communauté économique européenne, 1991, p. 396, no. 254. See also Tables IV-I and IV-2 in the section ‘Sickness — Financial Compensation’ of the Comparative Tables of Social Security Systems Applicable in the Member States of the European Communities, 15th Edition (1 July 1988), General Scheme (employed persons in industry and commerce), edited by the Commission of the European Communities, pp. 44 and 46.