delivered on 5 March 1985 (*1)

Mr President,

Members of the Court,

1.These cases come before the Court by way of a preliminary ruling from the Cour du travail [Labour Court], Liège, and the Cour du travail [Labour Court], Mons, in connection with two disputes involving the Office national des pensions pour travailleurs salariés (ONPTS) [National Pension Office for Employed Persons, hereinafter referred to as ‘the Office’] on the one hand, and on the other Mr Romano (in Case 58/84) and Mr Ruzzu (in Case 117/84) respectively.

Mr Romano

—31.3.1927 — 31.12.1940: worked as an employed person in Italy

Entitlement to a reduced pension in each of those two countries

—13.10.1947 — 28.2.1959: worked as an underground miner in Belgium

—Retired on 1.1.1973

Employment record recognized in Belgium: 25 years

—Pension awarded on 26.10.1979 by the Office as from. 1.4.1975 amounting to 25/30ths of the total entitlement to a Belgian pension, plus reduced pro rata German and Italian pensions

Since the factual and legal circumstances in which Mr Romano and Mr Ruzzu find themselves are virtually identical, it is possible to submit a single opinion for both cases.

Mr Romano and Mr Ruzzu, both of whom are of Italian origin, left their country in order to work as underground miners in Belgium, after being employed for periods of varying duration in Italy and then in Germany (in the case of Mr Romano) and in Italy alone (in the case of Mr Ruzzu).

The comparative table set out below shows the similarity between the two cases:

Mr Ruzzu

—1937 to 1952: worked as a farm labourer for a period of just over 5 years in Italy

Entitlement to a reduced Italian pension

—3.11.1952 — 3.2.1969: worked as an underground miner in Belgium

—Retired on 1.11.1977

Employment record recognized in Belgium: 26 years

—Pension awarded on 6.2.1981 by the Office as from 1.11.1977 amounting to 26/30ths of the total entitlement to a Belgian pension, plus a reduced pro rata Italian pension

The Belgian legislation applicable to Mr Romano and Mr Ruzzu concerning the acquisition and establishment of pension rights upon retirement was Article 10 (2) of Royal Decree No 50 of 24 October 1967 (1) which provides that a miner who

‘has not completed a total of 30 calendar years regularly and principally employed as an underground coalminer, but has completed at least 25 years, ... is required to establish that he was regularly and principally employed in that capacity for a number of extra calendar pay years equal to the difference between 30 and the number of calendar years in respect of which a regular and principal employment in that capacity is proved. Each of those extra years shall be taken into account as a year of employment as an underground miner before 1955’.

The Law of 10 February 1981, which took effect retroactively from 1 January 1981, inserted in the first paragraph of Article 10 (2) of Royal Decree No 50 a new subparagraph which reads as follows :

‘However, those extra years shall be reduced by the number of years in respect of which the worker may claim a retirement pension or other benefit in lieu thereof, by virtue of another Belgian scheme except the scheme for self-employed persons, by virtue of a scheme in a foreign country or by virtue of a scheme applicable to the staff of an institution governed by public international law.’ (2)

Before 1981, therefore, underground miners who had actually carried on their occupation in Belgium for at least 25 years received a kind of premium under Belgian law consisting of the grant of a maximum of five extra years of notional employment as compensation for doing work which damaged their health prematurely. After 25 years of employment miners were awarded a pension of 30/30ths, usually corresponding to 30 years of work in that occupation.

However, even before the relevant legislation was amended in 1981, the Office awarded Mr Romano only 25/30ths of the total pension to which he was entitled on the ground that he had acquired entitlement to a reduced pension in other Member States, and it recognized only 26/30ths of a full employment record in the case of Mr Ruzzu on the ground that he had acquired entitlement to a reduced pension in Italy. Those decisions were based on an administrative practice which the Court had already been asked to review in ONPTS v Celestre. (3)

Mr Romano and Mr Ruzzu contested those decisions before the competent national courts. The Office appealed against the judgments given by those courts.

2.Drawing the consequences of the judgment of the Court referred to earlier, the Cour du travail, Liège, in Mr Romano's case, and the Cour du travail, Mons, in Mr Ruzzu's case, held that, as regards the period prior to 1 January 1981, the Belgian underground miner's pension could not be reduced.

However, in their view, the amendment adopted in 1981 was capable of raising a problem of interpretation which they submitted to the Court by way of a request for a preliminary ruling on the following questions:

Cour dit travail, Liège

‘(1) In view of the inclusion of new wording:

(a) in subparagraph (1) of Article 10 (2) of Royal Decree No 50 of 24 October 1967 by Article 11 of the Law of 10 February 1981;

(b) in the Royal Decree of 21 December 1967 by the addition of Article 32 quinqué by Article 3 of the Royal Decree of 30 March 1981,

does subparagraph (1) of Article 10 (2), thus supplemented, constitute a rule against overlapping benefits within the meaning of Article 12 of Regulation (EEC) No 1408/71?

(2) In the event of an affirmative answer to Question 1, is the rule thus laid down by the said new subparagraph (1) of Article 10 (2) compatible with the Treaty of Rome and with the Community regulations concerned, in particular Regulations (EEC) Nos 1408/71 and 574/72?

(3) Is it appropriate to apply Article 12 (2) of Regulation No 1408/71, on the basis of Article 46 (1), and according to what provisions or procedures in the specific case of the respondent, in consequence of the new rules resulting from the Law of 10 February 1981 and the Royal Decree of 13 March 1981 and the interpretation given to the judgment in ONPTS v Celestre of 2 July 1981 by the appellant which reiterates the view that the provisions against overlapping benefits apply only if the pension is calculated and awarded under Article 46 (2) (a) and (b) of Regulation No 1408/71?’

Cour du travail, Mons

‘Is the interpretation to be placed on Article 51 of the EEC Treaty and on Regulations No 1408/71 (in particular, Articles 12 and 46 thereof) and No 574/72 of the Council such that the aims of the Treaty and the requirements of the regulations admit of a provision in the legislation of a Member State which reduces the additional insurance periods taken into account by that legislation on the basis of national legislation alone and without recourse to apportionment (Type A legislation) by the number of years (which do not overlap with the previous periods) in respect of which a worker may, in another Member State, claim an invalidity pension in accordance with Community rules (Type B legislation), thus entailing a reduction in the retirement benefit payable under national legislation alone (Type A legislation) as a result of the award of the apportioned invalidity benefit in another Member State (Type B legislation)? It should be added that the two benefits are to be regarded as being of the same kind (see the Celestre case) and that the reduction which the provision in question entails is a reduction of the retirement benefit acquired independently of Community law (see the Jerzak case).

Would an affirmative reply not cause the migrant worker to forfeit the benefit of an additional insurance period in the Member State having Type A legislation? And would it not imply that the application, under Article 12 (2) of Regulation No 1408/71, of a provision against overlapping benefits would also be warranted if the benefit to be reduced was acquired solely under national legislation (Type A)?’

3.As the Commission rightly points out, the three questions submitted by the Cour du travail, Liège, as they stand, raise a difficulty concerning the division of powers between the national courts and the Court of Justice.

In order to remain within the limits set by Article 177 of the EEC Treaty, the Court refuses to give a ruling on the interpretation of national legislation, on its compatibility with Community law or on the application of provisions of Community law in a specific case.

In those circumstances, the Court endeavours to provide the competent court, where necessary by rewording the question submitted by the latter, with the elements of interpretation which it needs to enable it to decide the dispute before it.

The Court has accordingly held that:

‘Although the Court has no jurisdiction within the framework of the application of Article 177 of the Treaty to decide upon the compatibility of a national provision with Community law, it may nevertheless extract from the wording of the questions formulated by the national court, having regard to the facts stated by the latter, those elements which come within the interpretation of Community law for the purpose of enabling that court to resolve the legal problem which it has before it.’ (4)

Adopting in substance the proposal made by the Commission, I suggest that the Court should reword the questions submitted by the Cour du travail, Liège, in the following manner:

(1) Must the second sentence of Article 12 (2) of Regulation No 1408/71 be interpreted as encompassing within its field of application a national provision of a Member State which, for the calculation of a retirement pension, excludes from the notional periods of employment taken into account a number of years equal to that in respect of which a worker may claim a retirement pension or a benefit in lieu thereof under a scheme in another Member State?

(2) If Question 1 is answered in the affirmative, must the relevant provisions of Regulations Nos 1408/71 and 574/72 be interpreted as precluding in principle the implementation of a national provision such as that described above?

(3) More particularly, in what manner and at what stage in the application of Article 46 of Regulation No 1408/71 should a national provision of that kind be taken into account?

The questions submitted by the Cour du travail, Mons, correspond in substance to the second and third questions, as newly formulated.

4.The Office considers that the Court must disclaim jurisdiction on the ground that Mr Romano's and Mr Ruzzu's employment records in Belgium are sufficient to confer upon them entitlement to a pension under Belgian legislation alone. Article 51 and the regulations adopted for its implementation apply only to cases in which national legislation alone is insufficient to confer entitlement to a pension or confers only limited entitlement thereto.

That argument cannot be upheld.

It is true, as the Court stated in its judgment in Petroni v ONPTS, (5) that

‘Article 51 of the Treaty deals essentially (6) with the case in which the laws of one Member State do not by themselves allow the person concerned the right to benefits by reason of the insufficient number of periods completed under its laws, or only allow him benefits which are less than the maximum.’

However, the Court has never interpreted that provision in the restrictive manner advocated by the Office, which would be contrary to both the letter and the spirit of the provision in question.

Article 51 provides that the Council is to make arrangements to secure for migrant workers

‘the aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit (7) of all periods taken into account under the laws of the several countries’.

Accordingly, the scope of Article 51 is broader than the Office maintains. Moreover, the Court has consistently emphasized the ambit of that provision. Thus, in its judgment in Nonnenmacher v Sociale Verzekeringsbank, (8) it pointed out:

‘that [Articles-48 to 51 of the Treaty] are designed to establish the greatest possible freedom of movement for workers. This aim includes the elimination of legislative obstacles which could handicap migrant workers.

In case of doubt the abovementioned articles and the measures taken in implementation of them must therefore be construed so as to avoid placing migrant workers in an unfavourable legal position, particularly with regard to social security’.

Article 51 can therefore be relied upon where a worker who is a national of a Member State provides evidence of periods of employment in several Member States of the Community. The objection raised by the Office to the effect that the Court lacks jurisdiction must therefore be rejected.

5.Were it not for the adoption of the Belgian Law of 10 February 1981 amending the first subparagraph of Article 10 (2) of Royal Decree No 50 of 21 December 1967, the situation in which Mr Romano and Mr Ruzzu find themselves would be identical to that on which the Court was called upon to give a ruling in the Celestre case. (9)

Prior to that judgment, the Court had, by systematically interpreting the provisions of Regulation No 1408/71 in the light of Articles 48 to 51 of the EEC Treaty, established the following rules :

—Where entitlement to a benefit is acquired in a Member State under national legislation alone, Community legislation, and in particular Article 46 (3), cannot have the effect of reducing that benefit. (10)

—However, a migrant worker may always claim the benefit of the application of the Community rules laid down by Article 46 of Regulation No 1408/71. (11)

—The rules laid down by Article 46 of Regulation No 1408/71 must be understood as meaning the application of the provisions of that article in their entirety, including paragraph 3 thereof. (12)

In the Celestre judgment the Court referred to or laid down the following rules :

(1) Where a worker receives a pension by virtue of national legislation alone, the Community rules do not prevent that national legislation, including the national rules against the overlapping of benefits, from being applied to him in its entirety. However, the resulting system cannot be less favourable than the Community rules laid down by Article 46 of Regulation No 1408/71. (13)

(2) An old-age pension and invalidity benefits are to be regarded as being of the same kind. The provisions of Articles 44 to 51 of Regulation No 1408/71 are applicable for the purpose of determining the rights of workers. By virtue of Article 12 (2) of the regulation, national rules against overlapping may not be applied. It follows that the amount referred to in Article 46 (1) is the amount to which the worker would be entitled under national legislation if he were not in receipt of a pension by virtue of the legislation of another Member State. (14)

Article 15 (1) (e) of Regulation No 574/72 provides that where it is not possible to determine accurately the periods of insurance completed under the legislation of one Member State, such periods are presumed not to overlap with periods of insurance completed under the legislation of another Member State. They must therefore be taken into account. (15)

The Court thus supplemented the machinery for the application of Regulation No 1408/71 and, more particularly, it defined the scope of Article 46 (1).

The benefit referred to in that paragraph is not acquired strictly by virtue of national legislation since Community legislation is also applied in so far as it neutralizes the effects of the national provision against overlapping benefits.

If this rule is set in the context of that comprehensive machinery, it is necessary, since the provisions of Article 46 are interdependent, to compare the amount of the benefit thus calculated with the amount resulting from the application of the rules embodied in paragraphs 2 and 3 of Article 46 and hence to apply, if appropriate, the reduction provided for by paragraph 3.

Therefore, contrary to the argument relied upon by the Office, there was no ‘change of direction’ in the Court's decisions between the Petrom judgment and the Mura and Greco judgments. Nor has the Court created a ‘third category’ as regards the method for the calculation of benefits. The only distinction that must be made is between the national system viewed in isolation and the same system as adapted to meet the requirements of Community coordination, as the most favourable solution must be adopted.

6. I now turn to the cases before the Court.

The fundamental problem in these cases is the application of Article 46 (1) of Regulation No 1408/71 in conjunction with Article 12 (2) thereof. That difficulty also arose in the Celestre case. Therefore it is necessary to ascertain whether there are any new factors in the cases under consideration.

As I said earlier, the only difference to be taken into account is that in the Celestre case, as the Belgian courts concluded, there was no valid legislative provision against overlapping benefits, whereas in the case of Mr Romano and Mr Ruzzu such a provision exists.

Whether the national rule against overlapping benefits is based on administrative practice or is laid down by law or regulation is of scant importance. The Court has established the principle that if there is a national provision against overlapping benefits, which is for the national courts to determine, it has no effect in relation to a benefit acquired under Community law. In so doing, the Court was referring to the substance, not the form of the rule.

The Office and the Belgian Government argue, however, that Article 12 (2) of Regulation No 1408/71 relates to the overlapping or otherwise of benefits and that a national provision which refers only to the insurance periods to be taken into account falls outside the scope of Article 12 (2). That argument is allegedly supported by the wording of Article 1 (r) of the regulation in question which provides that:

‘“periods of insurance” means periods of contribution or periods of employment or self-employment as defined or recognized as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance’.

That provision could lend weight to their argument only if it were possible, in order to justify an exception to the rule embodied in Article 12, to dissociate the concept of benefits from that of insurance periods.

Those concepts cannot, it seems, be dissociated. Entitlement to benefits depends necessarily and directly on the actual or notional periods of insurance taken into account for the purpose of determining such entitlement.

In any event, it does not seem possible to interpret Article 1 (r) as containing an exception to the rule embodied in the last sentence of Article 12 (2) of the regulation in question.

Moreover, in the Kaufmann judgment (16) the Court ruled that

‘Article 11 (2) of Regulation No 3 [now Article 12 (2)of Reggulation No 1408/71] covers all national legislative provisions for reduction or suspension of benefit intended to prevent overlapping, without distinction as to whether the provisions concern the entitlement to benefit or the provision thereof.’

In my view, therefore, the first question submitted by the Cour du travail, Liège, as newly formulated, should be answered in the affirmative.

7. On the basis of the principle that the benefit referred to in Article 46 (1) of Regulation No 1408/71 is to be calculated by the application of Community law, it follows that the special rule embodied in the last sentence of Article 12 (2) of that regulation, which confirms at Community level that rules against overlapping benefits are inapplicable as regards benefits of the same kind, applies to the benefit at issue.

The amount of the benefit must be determined in accordance with the relevant national legislation, independently of any entitlement to benefits which may be conferred by the legislation of any other Member State. Community law seeks to give effect in full to every insurance period completed in every Member State, as is clear from the first part of the eighth recital in the preamble to Regulation No 1408/71 which states that:

‘to this end, persons entitled to benefits for invalidity, old age and death [pensions] must be able to enjoy all the benefits which have accrued to them in the various Member States...’ (17)

Entitlement to old-age benefits is acquired in the cases now before the Court by virtue of Belgian national legislation alone. Such entitlement would not be taken into account in toto if it were reduced as a result of entitlement to benefits of the same kind arising in another Member State. However, such entitlement is not absolute. Entitlement, without any possible reduction as a result of the application of a national rule against overlapping benefits, is taken into account in full where:

‘... in order to avoid unjustified overlapping of benefits, which could result in particular from the duplication of insurance periods and other periods treated as such, it is necessary to limit the benefits to the greatest amount which would have been due to a worker from one of these States if he had spent all his working life there’ (second part of the eighth recital).

That limit is set by Article 46 (3) of the regulation, and reference must be made in that regard, as the Court recalled in the Celestre judgment, to the provisions of Article 15 (1) (e) of Regulation No 574/72. (18)

The possibility that a migrant worker and an established worker may therefore find themselves in different situations is of no consequence in that respect. That difference, which in this case relates to pension rights, merely reflects the difference which distinguished the parties concerned during their periods of employment. I would remind the Court, moreover, that the objective of Regulation No 1408/71 is not to harmonize but merely to coordinate different social security schemes which are characterized by ‘considerable differences’ (19) and that the resulting simplification is therefore workable only ‘to some extent’. (20)

That regulation, which was adopted for the implementation of Articles 48 to 51 of the Treaty, must always be viewed in the light of the principle of the free movement of workers within the territory of the Community. The benefits which that regulation is said to confer on migrant workers are based on that principle and the Court has already ruled that:

‘the charge that migrant workers obtain an advantage over workers who have never left their own country cannot be accepted, since no discrimination can arise in legal situations which are not comparable’. (21)

8. I therefore propose that the Court should answer the questions submitted in the following manner:

—to the Cour du travail, Liège :

The last sentence of Article 12 (2) of Regulation (EEC) No 1408/71 must be interpreted as encompassing within its field of application a national provision of a Member State which, for the calculation of a retirement pension, excludes from the notional periods of employment taken into account a number of years in respect of which a worker may claim a retirement pension or a benefit in lieu thereof under a scheme in another Member State.

—to the Cour du travail, Liège, and the Cour du travail, Mons :

So long as a worker is receiving a pension by virtue of national legislation alone, the provisions of Regulation (EEC) No 1408/71 do not prevent national legislation alone, including the national rules against the overlapping of benefits, from being applied to him in its entirety, provided that if the application of such national legislation proves less favourable to the worker than the application of the rules laid down by Article 46 of Regulation (EEC) No 1408/71 viewed as a whole, the provisions of that article must be applied;

The calculation of the Community benefit on the basis of Article 46 of Regulation (EEC) No 1408/71 implies that at every stage in the application of that article, including paragraph 1 thereof, the last sentence of Article 12 (2), which precludes the application of provisions for reduction, suspension or withdrawal, must also be applied.

*1 Translated from the French.

1 Moniteur Belge of 27 October 1967; decree amended by the Law of 26 June 1972 (Moniteur Belge of 30 June 1972, p. 7738) and by the Law of 28 March 1975 (Moniteur Belge of 8 April 1975, p. 4108).

2 Article 11 (Moniteur Belge of 14 February 1981, p. 1699).

3 Judgment of 2 July 1981 in Joined Cases 116, 117, 119, 120 and 121/80 [1981] ECR 1737.

4 Judgment of 21 March 1972 in Case 82/71 Pubblico Ministero v Kaufmann [1972] ECR 119, p. 135, paragraph 3 of the decision.

5 Judgment of 21 October 1975 in Case 24/75 [1975] ECR 1149, p. 1160, paragraph 14 of the decision.

6 Emphasis added.

7 Emphasis added.

8 Judgment of 9 June 1964 in Case 92/63 [1964] ECR 281, p. 288.

9 Judgment of 2 July 1981 in Joined Cases 116, 117, 119, 120 and 121/80 [1981] ECR 1737.

10 Judgment of 21 October 1975 in Case 24/75 Petrani v ONPTS [1975] ECR 1149; Judgment of 9 July 1980 in Case 807/79 Gravina v Landesversicherungsanstalt Schwaben [1980] ECR 2205.

11 Judgment of 13 October 1977 in Case 22/77 FNROM v Mura [1977] ECR 1699; Judgment of 13 October 1977 in Case 37/37 Greco v FNROM [1977] ECR 1711; Judgment of 14 March 1978 in Case 98/77 Schaap v Bedrijfsvereniging voor Bank- en Verzekeringswezen [1978] ECR 707; Judgment of 14 March 1978 in Case 105/77 Sociale Verzekeringsbank v Boerboom-Kersjes [1978] ECR 717.

12 Judgment of 16 May 1979 in Case 236/78 FNROM v Mura [1979] ECR 1819.

13 Paragraph (a) of the operative part, and see the judgment of 14 March 1978 in Case 98/77 Schaap [1978] ECR 707.

14 Paragraphs 11 and 12 of the decision and paragraphs (b) and (c) of the operative part, and see the judgment of 15 October 1980 in Case 4/80 D'Amimi v ONPTS [1980] ECR 2951.

15 Paragraphs 13 and 14 of the decision and paragraph (d) of the operative part.

16 Judgment of 15 May 1974 in Case 184/73 Nieuwe Algemene Bedrijfsvereniging v Kaufmann [1974] ECR 517, p. 524.

17 Emphasis added.

18 Paragraph 14 of the Celestre judgment.

19 Fourth recital in the preamble.

20 Third recital in the preamble.

21 Judgment of 13 October 1977 in Case 22/77 Mura v FNROM [1977] ECR 1699, p. 1707, paragraph 9 of the decision.