Report for the Hearing delivered in Case C-85/89

I — Facts and procedure

Mrs Ravida has been employed in Italy and Belgium. On 1 April 1978 in Italy and on 1 April 1980 in Belgium, she acquired rights to retirement pensions in respect of that employment.

Her husband, who had also worked in Italy and Belgium, died on 2 September 1978. Following his death, Mrs Ravida was granted an Italian survivor's pension; she has also received a Belgian survivor's pension since 1 April 1980.

At that date, the amounts of the pensions to which Mrs Ravida was entitled were as follows (in Belgium francs):

Belgian retirement pension: BFR 87962

Italian retirement pension: BFR 14956

Belgian survivor's pension: BFR 95543

Italian survivor's pension: BFR 6041

However, Article 52 of the Belgian Royal Decree of 21 December 1967 laying down general rules governing retirement and survivors' pensions for employed persons provides that ‘a survivor's pension granted under Royal Decree No 50 may overlap with one or more retirement pensions or any other benefits in its stead awarded under Belgian or foreign legislation only up to a sum equal to 110% of the amount of the survivor's pension awarded to the widow, multiplied by the inverse fraction thereof, limited where applicable to one, used to calculate the retirement pension forming the basis for calculating the survivor's pension’.

In Mrs Ravida's case, the limit on the overlapping of the Belgian survivor's pension and the other pensions calculated in that manner amounted, on 1 April 1980, to BFR 197057, whereas the total amount of the abovementioned pensions was BFR 204502, thus exceeding the limit by BFR 7445. The amount of the Belgian survivor's pension awarded to Mrs Ravida was therefore limited to BFR 88098 (that is to say 95543 less 7445). The total amount payable by the competent Belgian institution in respect of the retirement and survivor's pensions was therefore BFR 176060 (that is to say 88098 plus 87962). Decisions to that effect were notified to Mrs Ravida by the competent Belgian institution on 10 December 1982, and Mrs Ravida did not contest those decisions within the prescribed period.

In March 1985, the Caisse nationale des pensions de retraite et de survie (National Retirement and Survivors' Pensions Fund), the Belgian institution responsible for the payment of the benefits (replaced in 1987 by the Office national des pensions), received from the competent Italian institution the sum of BFR 124423 corresponding to the arrears of the Italian pension due in respect of the period from 1 April 1978 to 31 January 1984. It asked the Italian institution for a detailed statement showing the monthly breakdown of that sum which, in the meantime, it retained in its possession. On receiving that statement, which showed a revalorization of the Italian retirement pension, the Caisse nationale des pensions de retraite et de survie reduced the amount of the Belgian survivor's pension as from July 1986, in order to comply with the limit laid down by the national rules.

Mrs Ravida then brought proceedings before the tribunal du travail, Nivelles, on the one hand challenging the adjustment of the amount of the Belgian pension in order to take the revalorization of the Italian benefit into account and on the other hand seeking payment of the abovementioned sum of BFR 124423.

By a judgment of 3 May 1988, the tribunal du travail, Nivelles, granted the plaintiff's second application and ordered further submissions on the first head of claim.

In that regard, Mrs Ravida referred to Article 51 of Council Regulation (EEC) No 1408/71 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 (version codified by Council Regulation (EEC) No 2001/83 of 2 June 1983, Official Journal 1983, L 230, p. 6). In Mrs Ravida's submission, the provisions of paragraph 1 of that article prohibited the recalculation of the Belgian survivor's pension following the adjustment made to the Italian pension on account of the general evolution of the economic and social situation.

In those circumstances, by judgment of 7 March 1989, the tribunal du travail, Nivelles, stayed the proceedings and referred the following question to the Court for a preliminary ruling:

‘Where the legislation of a Member State provides for a ceiling where retirement and survivor's pensions overlap (in the present case Article 52 of the Royal Decree of 21 December 1967) and that ceiling has been determined at the date when the pension was first paid taking into consideration also the benefit payable by another Member State, is the competent institution of the first State justified in taking account of adjustments to the benefit granted by the other Member State in order to recalculate and reduce, by implicitly applying Article 51(2) of Regulation (EEC) No 1408/71, the amount of the pension originally granted, if at any given time the national ceiling is exceeded because of an increase in the benefit paid by the other State?’

The judgment of the tribunal du travail, Nivelles, was received at the Court Registry on 15 March 1989.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations have been submitted by Mrs Ravida, plaintiff in the main proceedings, represented by D. Rossini, union delegate; by the Office national des pensions, represented by R. Masyn, its General Director; and by the Commission of the European Communities, represented by its Legal Adviser, J.-C. Séché, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preliminary inquiry.

By a decision of 14 November 1989, the Court assigned the case to the Third Chamber.

II — Summary of the written observations submitted to the Court

1. The plaintiff in the main proceedings, Mrs Ravida, points out that the amount of the retirement and survivor's pensions payable by the competent Belgian institution was BFR 176060. In her submission, she should have continued to be paid that amount, subject to the index-linked adjustments provided for under the Belgian rules, without there being any need to alter it, as the Belgian institution did as from July 1986, in order to take the revalorization of the Italian pension into account. Mrs Ravida accepts that, when her rights to benefits were first calculated, the Italian pension affected the Belgian pension, which was reduced to take it into account. But she adds that her position is governed by Article 51(1) of Regulation No 1408/71, which prohibits account being taken of adjustments to the Italian pension in order to reduce the amount of the Belgian pension in so far as those adjustments reflect economic and social changes. In support of that submission, the plaintiff refers to the Court's judgments of 2 February 1982 in Case 7/81 Sinatra v FNROM [1982] ECR 137, and of 1 March 1984 in Case 104/83 Cinciuolo v Union nationale des federations mutualistes neutres [1984] ECR 1285. It is true that the first of those judgments concerned the overlapping of two benefits of the same kind arising from the working career of one and the same person and the second the overlapping of two benefits of a different kind also resulting from the working career of the same person, whereas the present case relates to the overlapping of different kinds of benefits arising from two different working careers; however, in Mrs Ravida's view, that difference in the situation does not justify the non-application of the principles laid down by the Court in those judgments. The plaintiff adds that to allow the competent institutions to carry out periodic reviews without any statutory basis with the result that the amount of benefits previously awarded is reduced would have the effect of leaving those in receipt of pensions in a position of legal uncertainty and would deprive them of part of their rights under Community rules. Mrs Ravida proposes, therefore, that the question raised by the tribunal du travail, Nivelles, should be answered in the negative.

2. The defendant in the main proceedings, the Office national des pensions, considers that the problem of the limit placed on the overlapping of a retirement pension and a survivor's pension does not arise out of ‘implicitly applying’ Article 51(2) of Regulation No 1408/71 because there has been no change, in the present case, in the method of determining or the rules for calculating the benefits to which Mrs Ravida is entitled. The Office national des pensions relies, on the contrary, on Article 12(2) of Regulation No 1408/71 which establishes the principle that a national provision against overlapping, such as Article 52 of the Royal Decree of 21 December 1967, may apply to recipients of benefits payable under the legislation of another Member State and imposes restrictions on that principle only when the person concerned receives benefits of the same kind awarded in accordance with Articles 46, 50 and 51 of the regulation. However, the Court has held (judgments of 24 September 1987 in Case 37/86 Van Gastei v Rijksdienst and Rijkskas [1967] ECR 3589 and of 6 October 1987 in Case 197/85 O MTPS v Stefanutti [1987] ECR 3855) that a retirement pension payable by virtue of the beneficiary's own working career is not of the same kind as a survivor's pension arising out of the deceased spouse's working career. The defendant, which refers also to an answer given by the Commission to a question in the European Parliament (Written Question No 2455/87, Official Journal 1988, C 244, p. 37), concludes that, pursuant to the first sentence of Article 12(2) of Regulation No 1408/71, the anti-overlapping rule provided for in Belgian law should be applied. The Office national des pensions denies that the judgments in Sinatra and Ciucinolo, which relate to situations where the right to benefits arose out of the working career of one and the same person, are relevant in the present case, and adds that the first sentence of Article 12(2) does not preclude the application of the national rule against overlapping when one of the benefits awarded to the recipient of the pension has undergone an index-linked adjustment. Any other interpretation of that provision would render it nugatory and would infringe the principle of equal treatment. The Office national des pensions proposes, therefore, that the national court's question should be answered in following terms:

‘Where the legislation of a Member State provides for a ceiling where retirement and survivors' pensions overlap, as in Article 52 of the Royal Decree of 21 December 1967, the competent institution of the State responsible for payment of the benefit liable to reduction, suspension or increase must take account of adjustments to the benefit currently being paid by the other Member State, in accordance with Article 12(2) of Regulation No 1408/71.’

3. The Commission points out that, in its judgment in Cinciuolo, the Court defined the scope of Article 51 of Regulation No 1408/71 in cases where Article 46 applies. It notes that the Court drew no distinction between benefits for the purposes of the application of Article 51. Nor does that article establish any such distinction, inasmuch as it refers to ‘benefits of the States concerned determined in accordance with Article 46’. That reference is to Article 46 in its entirety, including paragraph 3 under which benefits of different kinds may be taken into consideration when calculating the pension, in so far as they are covered by the rules against overlapping in Article 12 of Regulation No 1408/71. The Commission proposes that the following answer should be given to the question raised:

‘Article 51 of Regulation No 1408/71 must be interpreted as applying also to survivors' and old-age pensions, regardless of whether those benefits arise out of the same working career or out of different working careers, when the amounts of those pensions originally, by virtue of the national rules against overlapping of benefits, affected each other pursuant to Article 46 of Regulation No 1408/71 and when subsequent adjustments may have an effect on one of them.

It is therefore not necessary to recalculate the pensions pursuant to Article 46 if an adjustment is made to one of those benefits on account of the general evolution in the economic and social situation.’

F. Gravisse

Judge-Rapporteur

1 Language of the case: French.