Jozef Strehl v Nationaal Pensioenfonds voor Mijnwerkers (62/76)

Contents

In Case 62/76Reference to the Court under Article 177 of the EEC Treaty by the Arbeidsrechtbank of Hasselt for a preliminary ruling in the action pending before that court betweenJOZEF STREHL, 6, Nieuwe Markt, 3580 Neerpelt,andNATIONAAL PENSIOENFONDS VOOR MIJNWERKERS, 6, Stefaniaplein, 1050 Brussels,THE COURTcomposed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges,Advocate-General: J.-P. WarnerRegistrar: A. Van Houttegives the following

Judgment

Facts

The judgment making the reference and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I —Facts and written procedure

Mr Strehl, who is of Belgian nationality and lives in Belgium, was employed in Belgium as an underground miner and in Germany outside mining. Since 1 December 1969 he has been in receipt of an invalidity pension under the Belgian scheme for miners. All that appears from the file is that since his rights in respect of the competent German institution were altered with effect from 1 July 1974 as a result of his health, the defendant, the competent Belgian institution, reassessed his invalidity pension due to him under the Belgian legislation, applying Article 46 of Regulation No 1408/71 and Decision No 91 of the length Commission.The Belgian law on invalidity is of type A, that is to say the benefits are calculated independently of the length of the insurance periods. The German law on the other hand is of type B under which the amount of benefits varies according to the length of the insurance periods.The provisions of Article 46 of Regulation No 1408/71 relating to the calculation of old-age pensions are by virtue of Article 40 of that Regulation applicable by analogy to invalidity pensions in cases where a worker has been successively subject to the legislations of type A and type B or only of type B. The said provisions are therefore applicable in a case such as that in the main action.The system established by this article is as follows:— If the person concerned fulfils under the legislation to which he has been subject the conditions entitling him to a pension without aggregation being necessary, the institution of the Member State in question shall determine on the one hand the amount of the benefit due under this legislation having regard, if necessary, to the length of periods completed by the worker and on the other hand shall calculate the amount of the benefit due as a result of applying the system of aggregation and apportionment. Only the higher amount shall be taken into consideration (Article 46 (1)):— Where the right arises only after aggregation the amount of the benefit is calculated on an apportioned basis in respect of the insurance periods completed under the legislation in question in relation to the total duration of the periods completed under the legislation of all the Member States concerned (Article 46 (2)).— The person concerned is entitled to the total sum of the benefits calculated as above, within the limit, however, of the highest theoretical amount, that is to say within the limit of the higher amount which he would have obtained if he had completed his career entirely in one of the Member States in question. Where the amount referred to in the first subparagraph is exceeded, any institution applying paragraph 1 shall adjust its benefit by an amount corresponding to the proportion which the amount of the benefit concerned bears to the total of the benefits determined in accordance with paragraph 1 (Article 46 (3)).Decision No 91 of the Administrative Commission provides that ‘Article 46 (3), second subparagraph … shall only apply to benefits the amount of which, calculated in accordance with the provisions of paragraph 1, first subparagraph, of this article, exceeds the amount that would be obtained by applying the rules of paragraphs 2 (a) and (b) of the said article to the calculation of these benefits’.By Decision dated 12 May 1975, the competent Belgian institutions awarded Mr Strehl a pension of FB 82013, being the difference between the highest theoretical amount (FB 172016) and the apportioned amount (FB 90048) awarded in Germany. Mr Strehl then brought the matter before the Arbeidsrechtbank for Hasselt claiming that he should be granted a sum at least equal to the Belgian apportioned amount, that is FB 129272.That court took the view that a question of the interpretation of a Community measure arose and by judgment dated 25 June 1976 stayed the proceedings and referred the following questions on the interpretation of Article 46 of Regulation No 1408/71 and Decision No 91 of the Administrative Commission to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:(a) It is to be noted that Decision No 91 refers to the second subparagraph of Article 46 (3) (calculation of the adjustment) whilst the principle of the limitation of the total of the various benefits is laid down in the first subparagraph of Article 46 (3). Does this mean that the principle of the first subparagraph of Article 46 (3) is not affected by Decision No 91, or is it to be assumed that where Decision No 91 lays down the method of calculation by which any amount in excess of the maximum benefit must be adjusted, it also implies a possibility of exceeding the highest theoretical amount operative in this connexion?(b) Must the national amounts which have been calculated be compared, first, with the theoretical amount and, secondly, with the apportioned amount?(c) Or is a comparison made only between the national amount and the apportioned amount?(d) Must a national insurance institution compare only its own amounts with one another (national, theoretical and/or apportioned amount)?(e) Or must the figures from the foreign institution also be included in this comparison?(f) What is the position in the case of the hypothesis under Question (d) where Decision No 91 is applicable for one country and not for the other?(g) Is it in an appropriate case unnecessary for the total of the apportioned amounts to be compared with the national amounts?The order making the reference was registered at the Court Registry on 6 July 1976.After hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral procedure without a preparatory inquiry.

II —Written observations submitted to the Court

The Commission observes first of all that depending on whether Mr Strehl's German invalidity pension was paid before or after 1 October 1972 (which is not clear from the file) it would have been paid under the provisions of Regulation No 3 or those of Regulation No 1408/71. It is therefore for the court trying the action to determine the facts which enable the Community rules to be applied.Assuming that Regulation No 1408/71 is applicable to the case the system of Article 46 would give the following results:With regard to the first paragraph, since Mr Strehl fulfils the requisite conditions entitling him to a pension both under the Belgian legislation and under the German legislation, the two competent institutions would have determined on the one hand the amount of the benefit due in accordance with the legislation which they administer (that is FB 137352 under the Belgian legislation and FB 86383 under the German legislation) and on the other hand the apportioned amount (that is FB 129272 in respect of the Belgian pension and FB 90048 in respect of the German pension). It is the higher of the two amounts which would have applied in both cases, that is to say the national amount in respect of the Belgian pension and the apportioned amount in respect of the German pension.Article 46 (2) does not apply to the present case.With regard to the application of the third paragraph, since the sum of the Belgian and German benefits exceeds the highest theoretical amount, it is proper to reduce the amount of one or both benefits in respect of which the amount has been fixed without its being necessary to have recourse to aggregation.It is at this point that Decision No 91 of the Administrative Commission applies in accordance with the logic of the system established by Article 46 (3) which is to reduce the benefits due under the domestic legislation. This decision states that Article 46 (3), second subparagraph, shall only apply to benefits the amount of which, calculated in accordance with the provisions of pararaph 1, first subparagraph, of the said article, exceeds the amount that would be obtained by applying the rules of aggregation and apportionment. In the main action only the Belgian pension would have been reduced, in the proportions necessary to prevent the sum of the Belgian and German benefits exceeding the highest theoretical amount.If Regulation No 1408/71 applies, the competent Belgian and German institutions have correctly applied the Community rules. Moreover Decision No 91 does not alter the rights of parties who, quite apart from the question of the apportionment of the burden between the institutions, would not in any event be entitled under Article 46 (3) to a total amount of benefits higher than the highest theoretical amount. This decision concerns the interpretation of Article 46 (3). In its judgment of 21 October 1975 in Case 24/75 (Petroni [1975] ECR 1149) the Court ruled: ‘Article 46 (3) of Regulation No 1408/71 of the Council is accordingly incompatible with Article 51 of the Treaty to the extent to which it imposes a limitation on the overlapping of two benefits acquired in different Member States by a reduction in the amount of the benefit acquired under national legislation alone’.The question raised by the court making the reference does not therefore arise.The Commission considers that the reply to be given to the question referred for a preliminary ruling might be as follows: ‘In view of the fact that Article 46 (3) of Regulation No 1408/71 of the Council is incompatible with Article 51 of the Treaty to the extent to which it imposes a limitation on the overlapping of two benefits acquired in different Member States by a reduction in the amount of a benefit acquired under national legislation alone, this provision and Decision No 91 of the Administrative Commission on social security for migrant workers, which concerns its interpretation, have been of no effect since Regulation No 1408/71 entered into force. It follows that the question raised by the Arbeidsrechtbank of Hasselt does not arise’.At the hearing on 25 November 1976 the Commission, represented by its Agent, A. Haagsma, submitted oral argument.The Advocate-General delivered his opinion at the hearing on 15 December 1976.

Law

1By judgment dated 25 June 1976, received at the Court Registry on the following 6 July, the Arbeidsrechtbank of the judicial district of Hasselt, Belgium, referred under Article 177 of the EEC Treaty several questions on the interpretation of Article 46 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 (OJ English Special Edition 1971 (II), p. 416) and Decision No 91 of the Administrative Commission on Social Security for migrant workers concerning the interpretation of Article 46 (3) of the said regulation (OJ C 86 of 20. 7. 1974, p. 8).

2These questions are raised in the context of an action relating to the calculation by the relevant Belgian institution of the invalidity pension of a Belgian national, the plaintiff in the main action, who worked partly in Belgium as an underground miner and partly in the Federal Republic of Germany outside the mining sector.

3This worker fulfilled in Belgium all the conditions required by the national legislation to entitle him to an invalidity pension under the system applying to miners.

4On the other hand to entitle him to benefit in the Federal Republic of Germany he had to rely on the provisions of Article 45 of Regulation No 1408/71 and for the calculation of this benefit the periods completed in the two Member States were aggregated and the German benefit apportioned.

5Taking advantage of the rule limiting the overlapping of benefits provided in different Member States, which is laid down by Article 46 (3) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission, the Belgian institution by decision dated 12 May 1975 reduced the invalidity pension from FB 137352 to which he was entitled under Belgian legislation alone to FB 82013.

6This sum represents the difference between the highest theroretical amount, namely that of the German pension (FB 172016) and the German apportioned amount (FB 90048).

7The plaintiff in the main action claims that he should be awarded at least the Belgian apportioned amount (FB 129272).

8This method of calculation by the Belgian institution is intended to put into practice a principle according to which the migrant worker is assured of receiving in total, by virtue of the various pensions granted to him by the various Member States, an amount equal to the highest benefit he would have obtained if he had spent his whole working life subject to the legislation of one or other of the Member States concerned.

9The following questions are asked:(a) It is to be noted that Decision No 91 refers to the second subparagraph of Article 46 (3) (calculation of the adjustment) whilst the principle of the limitation of the total of the various benefits is laid down in the first subparagraph of Article 46 (3). Does this mean that the principle of the first subparagraph of Article 46 (3) is not affected by Decision No 91, or is it to be assumed that where Decision No 91 lays down the method of calculation by which any amount in excess of the maximum benefit must be adjusted, it also implies a possibility of exceeding the highest theoretical amount operative in this connexion?(b) Must the national amounts which have been calculated be compared, first, with the theoretical amount and, secondly, with the apportioned amount?(c) Or is a comparison made only betwen the national amount and the apportioned amount?(d) Must a national insurance institution compare only its own amounts with one another (national, theoretical and/or apportioned amount)?(e) Or must the figures from the foreign institution also be included in this comparison?(f) What is the position in the case of the hypothesis under Question (d) where Decision No 91 is applicable for one country and not for the other?(g) Is it in an appropriate case unnecessary for the total of the apportioned amounts to be compared with the national amounts?

10Before considering these questions it is well to consider the question of the validity of the regulation and decision the interpretation of which is requested.

11As has already been stated in other contexts and lastly by the judgment in Case 24/75 (Petroni [1975] ECR 1149), the regulations in the fields of social security for migrant workers have as their basis, their framework and their bounds Articles 48 to 51 of the Treaty.

12Article 51 requires the Council to adopt in the field of social security such measures as are ‘necessary’ to provide freedom of movement for workers, providing for the aggregation, in particular for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the various national laws.

13The aim of Articles 48 to 51 would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose advantages in the field of social security guaranteed to them in any event by the laws of a single Member State.

14Article 46 (3) takes the form of a rule limiting overlapping and the Council, in the exercise of the powers which it holds under Article 51 concerning the coordination of the social security schemes of the Member States, has the power, in conformity with the provisions of the Treaty, to lay down detailed rules for the exercise of rights to social benefits which the persons concerned derive from the Treaty.

15Decision No 91 of the Administrative Commission on social security for migrant workers is intended to interpret the said article.

16A limitation on the overlapping of benefits which would lead to a diminution of the rights which the persons concerned already enjoy in a Member State by virtue of the application of the national legislation alone is incompatible with Article 51.

17It is therefore proper to conclude that Article 46 (3) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission are incompatible with Article 51 of the Treaty to the extent to which they impose a limitation on the overlapping of two benefits acquired in different Member States by a reduction of the amount of the benefit acquired under national legislation alone.

18The above findings on the validity of the said regulation and decision render superfluous an answer to the questions on their interpretatation.

Costs

19The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds.THE COURTin answer to the questions referred to it by the Arbeidsrechtbank of the judicial district of Hasselt by judgment of 25 June 1976 hereby rules: ‘Article 46 (3) of Regulation No 1408/71 and Decision No 91 of the Administrative Commission are incompatible with Article 51 of the Treaty to the extent to which they impose a limitation on the overlapping of two benefits acquired in different Member States by a reduction of the amount of the benefit acquired under national legislation alone.’

Delivered in open court in Luxembourg on 3 February 1977.