JUDGMENT OF 15. 10. 1980 — CASE 4/80 D'AMICO v ONPTS
In Case 4/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail [Labour Tribunal], Charleroi, for a preliminary ruling in the action pending before that court between
THE COURT composed of: H. Kutscher, President, P. Pescatore and T. Koopmans (Presidents of Chambers), J. Mertens de Wilmars, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure and the 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 D'Amico, an Italian national residing in Belgium, was first employed in Italy for six years. He then worked from 1952 to 1972 as a miner underground in Belgium. Having been granted an invalidity pension in 1973, he submitted an application on 14 December 1976 in Belgium for a retirement pension with effect from 1 October 1977.
The main provisions governing retirement pensions for miners in Belgium are contained in Arrêté Royal No 50 of 24 October 1967. The provisions in point in Mr D'Amico's case are more precisely these:
Article 4:
“The retirement pension shall take effect from the first day of the month which follows that during which the claimant applies for the pension and not before: ... 3o The first day of the month which follows that in which the claimant: (a) reached the normal retirement age which is 55 or 60 years of age depending on whether a retirement pension is paid in respect of employment either as a mineworker underground or as a mineworker on the surface, or (b) proves that he has been habitually and mainly employed as a mineworker for 25 years in mines or quarries worked underground ... ”,
Article 10 (2):
“In derogation from the second subparagraph of Article 10 (1) a worker: 1o who has been habitually and mainly employed as a mineworker for at least 20 years may receive a retirement pension calculated at one thirtieth for each calendar year of employment as a mineworker. If in aggregate he has not been habitually and mainly employed for 30 calendar years as a mineworker underground in mines or quarries worked underground but can show such employment for at least 25 such years he shall be deemed to have been so habitually and mainly employed for a number of additional calendar years equal to the difference between 30 and the number of calendar years in which he proves that he was so habitually and mainly employed. Each of those additional years shall be considered as years of employment underground in coalmines before 1955”;
Article 25:
“Save in the cases and on the conditions determined by the King the retirement pension and survivor's pension shall be payable only where the recipient thereof is not gainfully employed and not in receipt of benefit for sickness, invalidity or redundancy pursuant to Belgian or foreign social security legislation”.
Following those provisions the Office National des Pensions des Travailleurs Salaries (ONPTS) decided to grant Mr D'Amico a pension of Bfr 254133 a year; that amount was determined on the basis of 25 years of service in mines and five notional years, Mr D'Amico being able to show 25 years of service in mines taking into account years of actual work and years treated as such by reason of the receipt of the invalidity pension.
Since 1 October 1977 Mr D'Amico has also been in receipt of an Italian invalidity pension on the basis of his previous employment in Italy. The amount of that pension is Lit 703230 or Bfr 28293.
The ONPTS took the view that because of that pension four of the five notional years could not be taken into account. In Belgium the full working life of an underground miner is restricted to 30 years: to take into account five notional years in the calculation of the pension would amount to awarding him a pension for 34 years as an underground miner.
Consequently the miner's pension for Mr D'Amico was calculated on the basis of 26/30ths of the full amount: 25 actual years plus one notional year. The ONPTS accordingly granted him a pension of Bfr 234925 from 1 October 1977 plus a cash grant of Bfr 9405.
Mr d'Amico disagreed with those calculations and went before the Tribunal du Travail, Charleroi, in order to obtain the payment of the full pension of Bfr 254133 as well as of the Italian invalidity pension.
The Auditeur du Travail [officer representing the public interest in labour matters] came to the conclusion that Mr D'Amico was not entitled to receive a retirement pension on the following grounds :
Article 12 (2) of Regulation No 1408/71 lays down that the provisions of the legislation of a Member State for suspension of benefit in the case of the overlapping of the benefit with another social security benefit which is not of the same nature may be invoked against the recipient;
There is a rule against overlapping in Article 25 of Arrêté Royal No 50 of 24 October 1967, which provides for the suspension of payment of a Belgian retirement pension when an insured person is in receipt of a foreign invalidity allowance;
Under Italian legislation Mr D'Amico had been granted an invalidity pension constituting a social security benefit of a different nature from the retirement pension. Therefore he is not entitled to receive a pension payable by Belgium.
In the face of that situation the ONPTS contended before the Tribunal du Travail that ministerial circulars and departmental memoranda treat an invalidity pension paid by a foreign country at the normal age at which retirement pension is paid in Belgium as a retirement pension.
The Auditeur du Travail dismissed the arguments of the ONPTS and came to the conclusion that Mr D'Amico's application was admissible but unfounded.
In those circumstances the Tribunal du Travail, Charleroi, took the view that it had to stay the proceedings and refer the following question to the Court for a preliminary ruling:
“If a former worker of Italian nationality who is less than 60 years old is resident in Belgium; And if he has been found to be entitled to a full insurance record in Belgium as an underground miner of 30/30ths, on the basis of having worked for 25 years as an underground miner; And if he has been awarded an invalidity pension in Italy on the basis of employment there : 1. Is Article 25 of Arrêté Royal No 50 of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) relating to the retirement and survivor's pension of employed persons compatible with the object of Articles 12, 46 and 50 of Regulation (EEC) No 1408/71 of the Council? 2. Is Article 25 of the Arrêté Royal of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) compatible with Articles 48 to 51 of the Treaty of Rome? 3. Are Articles 12, 46 and 50 of Regulation (EEC) No 1408/71 of the Council compatible with Articles 48 to 51 of the Treaty?”
The order for reference was registered at the Court Registry on 9 January 1980. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were submitted by Mr D'Amico, represented by Mr Rossini, director of the Patronato ACLI and by Mr Calamera, an official of the Patronato INCA/CGIL (social services for Italian workers), by the ONPTS, represented by its general administrator, Mr Masyn, by the Belgian Government, represented by the Secretary General of the Ministry for Foreign Affairs, Mr Nokerman, by the Italian Government, represented by Mr Favara, Avvocato dello Stato, and by the Commission of the European Communities, represented by its Legal Adviser, Jean Amphoux, acting as Agent, and by the Council of the European Communities, represented by John Carbery, its Legal Adviser, acting as Agent.
On 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. The Court did, however, put certain questions to the parties.
II — Observations submitted under Article 20 of the Protocol on the Statute
Mr D'Amico says in his statement of case that it is obvious that the rigid application of rules of incompatibility may have damaging results for a migrant worker if a benefit enjoyed by virtue of the national legislation of a State is reduced to nothing owing to a national rule which comes up against situations which are not contemplated by that national legislation. In such cases it is necessary to determine whether the national provisions cancelling the right to a benefit payable to a migrant worker by virtue of periods of insurance which he has completed in a Member State are compatible with Articles 48 to 51 of the Treaty.
He refers to the case-law of the Court contained in Cases 184/73 Kaufmann [1974] ECR 517 and 83/77 Naselli [1978] ECR 683, according to which Article 11 (2) of Regulation No 3 (to which Article 12 (2) of Regulation No 1408/71 corresponds) is “the counterweight to the advantages which Regulations Nos 3 and 4 procure for workers by enabling them to claim the simultaneous application of the social security laws of several Member States and its purpose is to prevent them from deriving from that application advantages which the national legislation considers excessive; therefore the restrictions referred to in Article 11 (2) only apply to insured persons in so far as the benefits acquired by applying those regulations are concerned”.
In this case the applicant acquired entitlement to the Belgian pension pursuant to the application of Community regulations. Article 12 (2) of Regulation No 1408/71 may not have the effect of reducing the Belgian benefit to nothing and of leaving the applicant, as the counterweight of that loss, the benefit of only the apportioned Italian invalidity pension, especially since he never applied personally for that Italian pension.
Articles 37 and 40 of Regulation No 1408/71 make a distinction in the case of invalidity pensions between legislation based on the risk which does not make the amount of invalidity benefit dependent on the length of the periods of insurance (so-called Type A legislation), and legislation which does make the amount of benefits dependent on the length of the periods of insurance (so-called Type B legislation). The so-called Type B legislation treats invalidity as premature old-age. The Italian legislation on invalidity is of the B type. An invalidity pension has the characteristics and the constituent elements of an early retirement pension and does not undergo any change when retirement age is reached. The Italian invalidity pension can accordingly be regarded as corresponding to an early retirement pension and as such does not bar the grant of the Belgian retirement pension.
Mr D'Amico proposes the following answer to the questions referred to the Court:
“Article 12 (2) of Regulation No 1408/71, which makes application of a national provision such as that set forth in Article 25 of Arrêté Royal No 50 of 24 October 1967 possible, is incompatible with Articles 48 to 51 of the Treaty if its effect is to reduce pensions payable under the legislation of a single Member State to nothing. For the purposes of the application of Article 12 (2) of Regulation No 1408/71 the invalidity benefits which, in accordance with Article 43 of the same regulation, are not converted into old-age pensions on account of their permanent character, are to be regarded as early retirement pensions”.
The Office National des Pensions pour Travailleurs Salariés (ONPTS) first goes into the Belgian legislation applicable and the method of calculation adopted by the Office following the judgment of 21 October 1975 in Case 24/75 Petroni [1975] ECR 1149.
Because Mr D'Amico could show 25 years of employment as a miner in Belgium he was able to benefit from the provisions of the first paragraph of Article 10 (2) of Arrêté Royal No 50 and consequently be deemed to have a number of additional calendar years equal to the difference between 30 and 25. He established that he had received benefit for 194 weeks in Italy, from 1 March 1947 to 13 September 1952, which was deemed to be equivalent to six years of work. In the case of a worker who has been employed in Belgium as a mineworker and has been employed abroad otherwise than in mines the Office takes into consideration the fact that according to Belgian law entitlement to the pension is acquired only at l/45th per year and not l/30th and takes only two-thirds of that insurance record into consideration to determine the number of added notional years as a mineworker which must be ignored in order to comply with the 100 % limit rule, or 30/30ths. In Mr D'Amico's case the six years of work in Italy multiplied by 2/3rds produces four. Four added notional years as a mineworker are therefore to be ignored. The Belgian pension is therefore calculated at 26/30ths, or an amount of Bfr 234 925.
The Office believes that the answer to the questions submitted was in large measure given in the judgment by the Court on 19 June 1979 in Case 180/78 Brouwer-Kaune [1979] ECR 2111.
Article 25 of the Arrêté Royal is perfectly compatible with the provisions of Article 12 (2) of Regulation No 1408/71. On the other hand that would not be the case if the benefits were calculated with reference to the aggregation and apportionment rules.
Article 50 of the regulation has no application; a minimum benefit is provided in Belgium only by the legislation on invalidity pensions for mineworkers.
Article 25 of the Arrêté Royal is compatible with Articles 48 to 51 of the Treaty on two grounds: it does not contain any discrimination on the grounds of nationality, and, provided the legislation of a Member State complies with the principle of equal treatment, Articles 48 to 51 of the Treaty do not require Member States to take into account, in their national legislation, characteristics specific to the legislation of other countries.
The Government of the Italian Republic emphasizes in the first place that Mr D'Amico has completed, both in Belgium and in Italy and on the basis of different years which do not overlap, two periods of insurance, each of them sufficient to afford entitlement to respectively an old-age pension in Belgium and invalidity pension in Italy. Therefore he has no need to rely on Community rules in order to bring about the fulfilment of the conditions required by the national legislation of each Member State. The question which arises is whether the rule against overlapping contained in the Belgian legislation may be regarded as being compatible with the Community system and whether it is permitted by Article 12 (2) of Regulation No 1408/71. From the guidelines evinced in the judgment of the Court in Case 34/69 Duffy [1969] ECR 597 it seems obvious that the provisions set forth in the first part of Article 12 (2) of Regulation No 1408/71 has no application at all in this case.
It follows that national legislatures cannot be left to promulgate provisions imposing restrictions on migrant workers which the Community legislature itself is not empowered to impose and which in any event lack any reciprocal arrangements (unlike that provided, pursuant to the Community rules on overlapping, by Regulation No 1408/71).
The Italian Government proposes the following answer to the questions:
“A national rule against overlapping which, in the absence of reciprocal arrangements and Community rules, has the effect of reducing social security benefits granted to a migrant worker under the national law of a single Member State on the ground that such a worker has been granted another social security benefit, which is itself payable under the national law of another single Member State, is not compatible with the EEC Treaty or with Regulation (EEC) No 1408/71”.
The Belgian Government maintains that it is clear from Article 12 (2) of Regulation No 1408/71 that there is no incompatibility between Article 25 of Arrêté Royal No 50 and Article 12 (2) of Regulation No 1408/71. The compatibility of the said Article 25 with the provisions of Articles 46 and 50 of Regulation No 1408/71 is also beyond question.
As regards the compatibility of Article 25 in point with Articles 48 to 51 of the Treaty, foreigners are not treated differently from Belgian nationals and therefore there is no incompatibility.
The Commission takes the view that Article 50 of Regulation No 1408/71 does not enter into this case for the reasons explained by the ONPTS.
Where the compatibility of the Community provisions in question is concerned, if there is a problem of compatibility it is rather the result of a lacuna in the Community rules. It is apparent from the case-law of the Court that although the Court recognizes the applicability of national rules against overlapping in the case of benefits payable to a worker under the national legislation of a single Member State, it nevertheless views Article 46 (1) as a provision restricting the effect of national rules against overlapping. National provisions, including rules against overlapping, may have application provided only that the effect thereof is more advantageous to a worker than that obtained by applying Article 46 of the regulation. Situations are at issue which are expressly referred to by that article, either directly or by way of reference made by other provisions of the regulation (Article 40 (1), Article 43).
The problem is different with regard to the rule against overlapping contained in Article 25 of Arrêté Royal No 50 which contemplates a situation in which there are concurrent benefits and which is not expressly dealt with by the Community rules. It prohibits the overlapping of benefits of a different nature. The payment of retirement pension is suspended on account of the grant to the individual concerned of an invalidity benefit.
An application of Article 25 of Arrêté Royal No 50 which deprives the individual concerned of the whole of the retirement pension acquired by virtue of 25 years of work as a miner underground in Belgium owing to a small invalidity pension which he receives in another Member State may hardly be regarded as being compatible with the general objectives of Articles 48 to 51 of the Treaty and with the scheme of Regulation No 1408/71, particularly in the light of the case-law of the Court.
The observations of Mr Advocate General Capotorti in Case 180/78 cited above showed that in situations such as this the proper view to be taken is that the fact that the benefits in question are of different content does not fix the limits resulting from Article 46 of Regulation No 1408/71 in the case of the application of national rules against overlapping. Mr Advocate General Capotorti stated that
“the effects of the national provisions against the overlapping of benefits must be restricted even in the case of the award, in different States, of concurrent invalidity and old-age pensions to which the worker is entitled as a result of insurance periods completed mainly at different times in the two States concerned”.
The Advocate General concluded :
“If the case concerns national rules against the overlapping of benefits which take into consideration the old-age pension drawn by the insured person in another State, for the purpose of reducing his invalidity pension, the different nature of the two concurrent pensions must not be used to render inapplicable those Community principles or rules which guarantee the worker's entitlement to benefits, acquired in the State in which the aforesaid rules against overlapping are in force, at least within the limits of the apportionment provided for in Article 46”.
In its judgment in the same case the Court of Justice ruled:
“The absence of any express provision covering that type of case must be regarded as a lacuna. There is no objective reason to apply in that type of case a rule different from that applied in the cases expressly referred to. The protection of the rights which the person concerned possesses by virtue of national legislation alone, without having recourse to the system of aggregation and apportionment, and respect for any advantages resulting from that system, are mandatory principles applying equally in all situations. Consequently, the systematic interpretation of the provisions of the regulation enables Article 40 (1) to be applied by analogy to cases such as the present one. If it were not possible to adopt that solution, it could even be said that the Council had failed to carry out completely the duty incumbent upon it, by virtue of Article 51 of the Treaty, to adopt such measures in the field of social security as are necessary to provide freedom of movement for workers”.
The problem is in different terms in this case inasmuch as the relevant national rule against overlapping is not concerned with what happens to the individual's invalidity benefit but with what happens to his retirement pension and it is decidedly more difficult to find the solution by reference to an express provision of Regulation No 1408/71. Yet the requirements are strictly the same and the considerations taken into account in the Brouwer-Kaume case may be applied here. There is every reason to believe that the scheme of Article 46, which it appears should be seen as embodying a rule of common law, should also be capable of application, if only by analogy, in a situation such as this.
In all the circumstances, national authorities should treat old-age pensions and invalidity pensions on the same footing. Indeed, such treatment is expressly provided for by Regulation No 1408/71 in the case of certain Member States where the application of Article 12 (2) is concerned. Following the accession of the three new Member States provisions to that effect were inserted in Annex V to the regulation.
That point of view was precisely the one adopted by the responsible Belgian authorities in their circulars and departmental memoranda sent by the Minister of Social Security to the ONPTS. Those instructions require the social security organizations concerned to treat a foreign invalidity pension, granted at the normal pensionable age in Belgium, as a retirement pension.
The Commission proposes the following answers to the questions put by the Tribunal du Travail:
“1. A rule against overlapping contained in the national legislation of a Member State the effect of which is to bar entitlement to an old-age pension acquired under that legislation when the interested party may claim a benefit under the legislation of another Member State by reason of periods of employment completed by him under the legislation of that State is incompatible with Articles 48 to 51 of the Treaty establishing the European Economic Community. 2. Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Articles 12, 46 and 50 of Regulation No 1408/71, as the meaning and scope thereof have been defined by the Court of Justice”.
The Council contends in its observations that an application of Article 25 of Arrêté Royal No 50 such as in the instant case, whereby the interested party is deprived of the entire retirement pension to which his 25 years of work in the Belgian mines entitle him because he is in receipt of an Italian invalidity pension by reason of his having worked in Italy, is unacceptable and even incompatible with the objectives of Articles 48 to 51 of the Treaty, particularly in the light of the case-law of the Court. It advances arguments similar to those put forward by the Commission and believes that the scheme of Article 46 of the regulation must be applied by analogy in this case.
III — Oral procedure
Mr D'Amico, represented, by D. Rossini and M. Calamera, officers of the social services Patronato ACLI and Patronato INCA/CGIL, the Office National des Pensions pour Travailleurs Salariés, represented by J. Peitot, Deputy Adviser, the Belgian Government, represented by A. Stroobants, Deputy Adviser at the Ministry of Social Security, and P. Goblet, Secretary of Administration at the Ministry of Social Security, the Commission of the European Communities, represented by its Legal Adviser, J. Amphoux, and the Council of the European Communities, represented by its Legal Adviser, J. Carbery, presented oral argument at the hearing on 24 June 1980.
The Advocate General delivered his opinion at the sitting on 16 September 1980.
Decision
1. By an order of 3 January 1980 which was received at the Court on 9 January 1980 the Tribunal de Travail [Labour Tribunal], Charleroi, referred to the Court for a preliminary ruling under Article 177 of the Treaty a question as to the interpretation of Articles 12, 46 and 50 of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).
2. The question has been raised in the context of a dispute concerning the calculation by the competent Belgian institution of an old-age pension due to an Italian worker who, having worked in Italy between 1948 and 1952, moved to Belgium where he was employed as a miner underground from 1952 to 1972.
3. According to the order by the Tribunal de Travail it seems that from 1973 to 1977 he received a Belgian invalidity pension. In December 1976 he applied in Belgium for a retirement pension with effect from 1 October 1977.
4. The Office National des Pensions des Travailleurs Salariés (ONPTS) decided to grant the claimant a retirement pension of BF 254133 a year from that date pursuant to national legislative provisions, the amount of the pension being determined on the basis of 25 years of service in the mines and five notional years. Since 1 November 1975 the claimant has also been in receipt of an Italian invalidity pension. On 1 October 1977 that pension was Lit 705830 a year.
5. The ONPTS took the view that because of the Italian pension four of the five notional years could not be taken into account. The full working life of a miner underground is restricted to 30 years in Belgium. To take the five notional years into account in the calculation of the pension would amount to awarding him a pension of 34 years as a miner underground after the Italian pension is taken into account. For that reason the ONPTS treated the six years' employment in Italy as four years as a miner underground; it calculated the claimant's pension on the basis of 26/30ths of the full amount — 25 actual years plus one notional year — and reduced his pension from BF 254133 to BF 234925 a year with effect from 1 October 1977.
6. Mr D'Amico made an application to the Tribunal du Travail, Charleroi, seeking the payment of the full pension of BF 253133 without prejudice to the Italian invalidity pension.
7. The Auditeur du Travail [officer representing the public interest in labour matters] at the Tribunal came to the conclusion that the claimant could not receive a Belgian retirement pension owing to the combined effect of Article 12 (2) of Regulation No 1408/71, which provides that the legislative provisions of a Member State for the suspension of benefit in the case of the overlapping of one benefit with another social security benefit which is not of the same nature may be invoked as against the recipient, and of Article 25 of Arrêté Royal No 50 of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) which provides for the suspension of the payment of a Belgian retirement pension when an insured person is in receipt of a foreign invalidity pension.
8. In those circumstances the Tribunal du Travail took the view that it had to stay the proceedings and refer the following question to the Court for a preliminary ruling:
“If a former worker of Italian nationality who is less than 60 years old is resident in Belgium;
And if he has been found to be entitled to a full insurance record in Belgium as an underground miner of 30/30ths, on the basis of having worked for 25 years as an underground miner;
And if he has been awarded an invalidity pension in Italy on the basis of employment there:
1) Is Article 25 of Arrêté Royal No 50 of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) relating to the retirement and survivor's pension of employed persons compatible with the object of Articles 12, 46 and 50 of Regulation (EEC) No 1408/71 of the Council?
2) Is Article 25 of the Arrêté Royal of 24 October 1967 (as amended by Article 10 of the Law of 27 July 1971) compatible with Articles 48 to 51 of the Treaty of Rome?
3) Are Articles 12, 46 and 50 of Regulation (EEC) No 1408/71 of the Council compatible with Articles 48 to 51 of the Treaty?”
9. It appears that the national court wishes to know whether, when a worker is in receipt of invalidity benefits converted into an old-age pension by virtue of the legislation of a Member State and invalidity benefits not yet converted into an old-age pension under the legislation of another Member State, the application of a national rule against overlapping accords with Community law.
10. Article 12 of Regulation No 1408/71 concerns the non-overlapping of benefits. Article 12 (2) provides that “the provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in cases of overlapping with other social security benefits or other income may be invoked even though the right to such benefits was acquired under the legislation of another Member State or such income arises in the territory of another Member State. However, this provision shall not apply 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 45, 50, 51 or Article 60 (1) (b).”
11. The problem which arises in this case is to determine which provisions apply when a worker is in receipt in one Member State of an invalidity pension converted into an old-age pension and an unconverted invalidity pension in another Member State and in particular whether in such a case the benefits are of the same nature or must be so regarded.
12. Article 40 (1) of Regulation 1408/71 provides in regard to invalidity benefits that a worker who has been successively or alternately subject to the legislations of two or more Member States, of which at least one is not of the type referred to in Article 37 (1) (that is to say in which the amount of invalidity benefits is independent of the length of periods of insurance), shall receive benefits under the provisions of Chapter 3 (old-age and death pensions), which shall apply by analogy. It is apparent from Annex III to the regulation that the Italian invalidity pension is not of the type referred to in Article 37 (1) of the regulation.
13. Article 43 (1) provides that invalidity benefits shall be converted into old-age benefits, where appropriate, under the conditions laid down by the legislation or legislations under which they were granted, and in accordance with the provisions of Chapter 3.
14. Paragraph (2) of the same article provides that any institution of a Member State which is responsible for providing invalidity benefits shall, where a person receiving invalidity benefits can by virtue of the provisions of Article 49, establish a claim to old-age benefits under the legislation of other Member States, continue to provide such person with the invalidity benefits to which he is entitled under the legislation which it administers until the provisions of paragraph (1) become applicable as regards that institution.
15. Although that provision only expressly refers to the obligation of an institution, responsible for providing the invalidity benefits which have not been converted into old-age benefits, to continue to provide benefits to a person receiving the invalidity benefits, when account is taken of Articles 48 to 51 of the Treaty that provision implies that an institution providing invalidity benefits which have been converted into old-age benefits is not empowered to stop granting those benefits on the ground that the recipient thereof is also in receipt of invalidity benefits which have not yet been converted.
16. It is accordingly permissible to conclude that invalidity benefits converted into old-age pensions and unconverted invalidity benefits are to be regarded as being of the same nature and that it follows that the provisions of Chapter 3 are applicable to them.
17. In those circumstances the last sentence of Article 12 (2) of the regulation precludes the application of national rules against overlapping.
18. Therefore the answer to the question raised by the Tribunal du Travail must be that where a worker is in receipt of invalidity benefits converted into an old-age pension by virtue of the legislation of a Member State and of invalidity benefits not yet converted into an old-age pension under the legislation of another Member State, the old-age pension and the invalidity benefits are to be regarded as being of the same kind, the provisions of Chapter 3 of Regulation No 1408/71 are applicable for the purpose of determining the rights of the worker, and, by virtue of the last sentence of Article 12 (2) of the regulation, the application of national rules against overlapping is precluded.
Costs
19. The costs incurred by the Belgian Government, the Italian Government, the Commission of the European Communities and the Council of the European Communities, which have submitted observations to the Court, are not recoverable. 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.
On those grounds, THE COURT in answer to the question referred to it by the Tribunal du Travail, Charleroi, by order of 3 January 1980, hereby rules: