Report for the Hearing in Case C-275/91
I — Facts and written procedure
1. National legislation
(a) Belgian legislation
Article 70(2) of the Law of 9 August 1963 introducing and organizing a system of compulsory sickness and invalidity insurance (Moniteur Belge, 1 and 2 November 1963, p. 10555) was amended by Article 1(1) of Royal Decree No 19 of 4 December 1978 (Moniteur Belge, 14 December 1978, p. 15512) and became the first subparagraph of Article 76 quater (2) pursuant to Article 44(1) of the Programme Law of 30 December 1988 (Moniteur Belge, 5 January 1989, p. 75). This provision is worded as follows:
‘The benefits provided for under the present law shall be refused when the damage resulting from an illness, injury, functional disorders or death is actually compensated for by virtue of other Belgian legislation, foreign legislation or general law. However, if the sums granted under such legislation or under general law are less than the insurance benefits, the recipient shall be entitled to the difference, which shall be paid by the insurer.’
The third subparagraph of the same article lays down that the benefits are to be granted on the conditions determined by the King pending the actual payment of compensation under other Belgian legislation, foreign legislation or general law.
Pursuant to the latter provision, Article 241(1) of the Royal Decree of 4 November 1963 implementing certain provisions of the Law of 9 August 1963, (Moniteur Belge, 8 November 1963, p. 10886) provides that:
1. The grant of the benefits provided for in Article 70(2) of the Law of 9 August 1963 referred to above shall be subject to the conditions that a person who, on his own behalf or on behalf of his dependants, claims insurance benefits shall enable his insurer to exercise the right referred to in this article and shall notify his insurer: (i) that the damage giving rise to the claim may be covered by general law or by other Belgian or foreign legislation; (ii) of all the factors or circumstances likely to establish whether the damage must be compensated for under general law or under other legislation, including any reports or legal acts relating to him or his dependants with regard to the damage; (iii) of any action or other proceeding instituted with a view to obtaining, for himself or his dependants, compensation for the damage under general law or under other legislation.’ Finally, it is necessary to mention Article 235 bis of the same Royal Decree, as amended by Article 1 of the Royal Decree of 16 December 1969 (Moniteur Belge, 20 December 1969, p. 12330) setting ceilings on the coexistence of old-age pension and benefits for unfitness for work.
(b) Italian legislation
Article 2 duodecies of Law No 114 of 16 April 1974 (Gazzetta Ufficiale, No 113, 2 May 1974) provides that if, when examining a claim for an invalidity pension, the Istituto Nazionale della Previdenza Sociale (National Social Welfare Institution) finds that the worker fulfils the conditions for obtaining an old-age pension, the Institution must proceed directly to pay that benefit.
Formerly Italian legislation did not provide for an invalidity pension to be converted into an old-age pension at the statutory retirement age. This situation was not changed until Law No 222 of 12 June 1984 (Gazzetta Ufficiale, No 165, lojune 1984). One of the invalidity benefits, the assegno di invalidità, is now converted into an old-age pension at the statutory retirement age, viz. 55 for women and 60 for men.
2. Community legislation
Article 40(1) 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, as consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, ‘Regulation No 1408/71’), provides that a worker who has been subject to the legislation of two or more Member States, of which at least one makes the amount of invalidity benefits depend on the duration of periods of insurance, shall receive invalidity benefits in accordance with Article 46 in particular.
That article lays down provisions governing the award of benefits. The first paragraph is worded as follows:
‘1. Where an employed or self-employed person has been subject to the legislation of a Member State and where the conditions for entitlement to benefit have been satisfied, without application of the provisions of Article 45 and/or Article 40(3) being necessary, the competent institution of that Member State shall, in accordance with the provisions of the legislation which it administers, determine the amount of benefit corresponding to the total length of the periods of insurance or residence to be taken into account in pursuance of such legislation. This institution shall also calculate the amount of benefit which would be obtained by applying the rules laid down in paragraph 2(a) and (b). Only the higher of these two amounts shall be taken into consideration.’
In addition, Article 44(2) of the same Regulation provides that:
‘2. Subject to the provisions of Article 49, when a claim for the award of a benefit is lodged, such award must be made having regard to all the legislations to which the employed or self-employed person has been subject. Exception shall be made to this rule if the person concerned expressly asks for postponement of the award of old-age benefits to which he would be entitled under the legislation of one or more Member States.’
Finally, for the purposes of the present proceedings, it should be noted that Article 36(4) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71, as consolidated by Regulation No 2001/83 (‘Regulation No 574/72’), provides that:
‘4. A claim for benefits sent to the institution of one Member State shall automatically involve the concurrent award of benefits under the legislation of all the Member States in question whose conditions the claimant satisfies except where, under Article 44(2) of the Regulation, the claimant asks for postponement of any old-age benefits to which he would be entitled under the legislation of one or more Member States.’
3. The main proceedings and the reference for a preliminary ruling
Mr Iacobelli, an Italian national born on 8 November 1920, was insured in Italy between 1936 and 1964 for 1212 weeks and worked in Belgium under the general workers' scheme from 13 August 1964 onwards. Following an accident at work on 9 December 1977, he applied for an invalidity pension from the Belgian Institut National d'Assurance Maladie-Invalidité (National Sickness and Invalidity Insurance Institution, ‘INAMI’), which examined the claim in accordance with Article 36 of Regulation No 574/72 and forwarded it to the Italian Istituto Nazionale della Previdenza Sociale (National Social Welfare Institution, ‘INPS’). He became an invalid on 9 December 1978. As a result of his claim, he was awarded benefit for unfitness for work from 1 August 1980 under Belgian law alone.
On 24 February 1982 the INPS sent the INAMI a decision granting Mr Iacobelli an old-age pension with effect from 1 December 1980, the date on which he reached the age of 60, the statutory retirement age in Italy. This pension was granted in lieu of the invalidity pension to which he was entitled under Article 46(2)(b) of Regulation No 1408/71. In reply to a letter from the INAMI inquiring as to the reasons for the decision and asking the INPS to adopt a final position with regard to the period from 1 January 1979 to 30 November 1980 (the period between the commencement of the right to an invalidity pension and the grant of the old-age pension), the INPS stated that no invalidity benefit would be granted by Italy as the applicant had expressly waived it by a declaration dated 6 December 1982.
The INAMI contested this decision and asked the INPS to reconsider it as, in its opinion, it was contrary to Community law and Belgian law. No reply was received from the INPS and the INAMI decided to discontinue the benefits to Mr Iacobelli as from October 1983.
On 3 August 1985 he brought an action before the Tribunal du Travail (Labour Court), Brussels, against the discontinuance of his benefits. By an interlocutory judgment of 15 October 1991, the Tribunal du Travail asked the Court for a preliminary ruling on the question:
‘Whether Article 36(4) of Regulation (EEC) No 574/72 and the second subparagraph of Article 46(1) in fine of Regulation (EEC) No 1408/71 which Regulation No 574/72 implements prevent an institution of a Member State to which an institution of another Member State has referred a claim for invalidity pension on the basis of Article 40 of Regulation (EEC) No 1408/71 from awarding a migrant worker an old-age pension instead of an invalidity pension where it appears that the old-age pension to which there is entitlement by virtue of the national legislation alone is more beneficial than the invalidity pension calculated in accordance with the aggregation and apportionment system, that is to say, the defendant's interpretation of Articles 241(1) of the Royal Decree of 4 November 1963, adopted pursuant to the Law of 9 August 1963 introducing and organizing a system of compulsory sickness and invalidity insurance, and the new first subparagraph of Article 76 quater (2) of that law.’
4. Procedure before the Court
The order for reference from the Nineteenth Chamber of the Tribunal du Travail, Brussels, was received at the Court Registry on 23 October 1991.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Mr Iacobelli, the plaintiff in the main proceedings, represented by D. Rossini, trade union representative, by the INAMI, defendant in the main proceedings, represented by Jean-Jacques Masquelin, of the Brussels Bar, by the Commission of the European Communities, represented by Maria Patakia, of its Legal Service, acting as Agent, by the Hellenic Republic, represented by Vasileios Kontolaimos, Assistant Legal Adviser, and Ioannis Chalkias, Legal Attorney, members of the State Legal Council, and by the Italian Republic, represented by Pier Giorgio Ferri, Avvocato dello Stato.
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 preparatory inquiry and to assign the case to the Third Chamber.
II — Written observations submitted to the Court
1. The plaintiff in the main proceedings observes that waiver of the Italian invalidity pension enabled him to claim, under Italian law alone, an old-age pension greater than the invalidity pension and which, moreover, can be paid in addition to the invalidity pension acquired under Belgian law alone, up to a certain maximum (Article 235 bis of the Royal Decree of 4 November 1963). According to Mr Iacobelli, if Article 36(4) of Regulation No 574/72 had to be interpreted as meaning that it did not allow the Italian institution to accept the waiver of the invalidity pension, he would be denied a right acquired under Italian legislation alone, which would be contrary to the case-law of the Court since Case 24/75 Petroni v ONPTS [1975] ECR 1149, paragraph 21. In view of the foregoing, the plaintiff in the main proceedings proposes that the Court should reply as follows to the question put by the national court:
‘Articles 40 and 46(2) of Council Regulation (EEC) No 1408/71 and Article 36(4) of Council Regulation (EEC) No 574/72 must be interpreted as meaning that when a migrant worker is entitled to two benefits under the legislation of a Member State the said articles do not prevent the institution in that State from granting him the more favourable benefit even if the commencement date of that benefit does not coincide with the date of submission of the claim examined under Community regulations.’
2. The defendant in the main proceedings considers that there is no doubt as to the reply to the question from the national court, as phrased. In the defendant's opinion, the Court of Justice has consistently held that Community law does not prevent a competent institution of a Member State from granting a national pension which is more advantageous to the person concerned, instead of an apportioned pension. The main proceedings concern another question, namely whether Mr Iacobelli's waiver of the invalidity pension is contrary to Community law and to the Belgian legislation. On this point the INAMI observes that, under Article 44(2) of Regulation No 1408/71, which is applicable to the applicant pursuant to Article 40(1) thereof, and Article 36(4) of the implementing Regulation No 574/72, when a claim for the award of a benefit is lodged, such award must be made having regard to all the legislation to which the employed or self-employed person has been subject, and that this rule admits of exceptions only as regards old-age benefits to which there is entitlement under the legislation of one or more Member States. According to the INAMI, however, the present case relates not to an old-age pension but to an invalidity pension. The INAMI therefore concludes that the INPS should not have accepted such a waiver.
3. The Commission observes that Mr Iacobelli's invalidity pension is determined in accordance with Article 40(1) of Regulation No 1408/71, under which the provisions of Chapter 3 of that regulation are to be applied by analogy. It follows, in the opinion of the Commission, that Article 44(2) is applicable and that its application by analogy to a field not covered by the said Chapter, which relates to old-age and death pensions, means that the exception for which the last part of that paragraph provides is extended to invalidity benefits. The same reasoning must be followed as regards Article 36(4) of Regulation No 574/72, which contains technical and procedural rules for implementing Regulation No 1408/71. In this connection the Commission points out that the addition of the second paragraph to Article 44 by Council Regulation (EEC) No 2595/77 of 21 November 1977 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 (OJ 1977 L 302, p. 1) is justified by the first recital in the preamble to Regulation No 2595/77 in order that workers are ‘enabled to receive, without any restrictions, a pension acquired under the legislation of a Member State and to have a pension which was awarded under the legislation of another Member State postponed in order to receive the increase in pension due as a result of that postponement’. In the opinion of the Commission, this same justification applies to an invalidity pension. According to the Commission, it is also clear from the title of Article 36 of Regulation No 574/72, ‘Claims for old-age and survivors’ benefits (excluding orphans' benefits) and invalidity benefits in cases not referred to in Article 35 of the implementing Regulation', that the possibility of postponement provided for in paragraph 4 of that article must be extended, by analogy, to invalidity pensions. If this interpretation were not accepted, the result would be an obstacle to the freedom of movement of workers incompatible with Article 51 of the Treaty. The worker, knowing that exercising his right to freedom of movement would prevent him from opting to postpone payment of the invalidity pension, would decide instead to remain in his country of origin. Moreover, doubt would be cast upon the Court's case-law the effect that, if the application of the national legislation alone is more favourable to the migrant worker than that of the Community regulations, that legislation alone should govern the particular case (Petroni principle). Finally, the Commission observes that this reasoning also applies where the worker has not asked to postpone payment of the invalidity pension but has clearly waived his right to it. The exercise of that right stems solely from national law and is not precluded by any Community provision. The Commission therefore proposes the following reply to the question referred by the national court:
‘The second subparagraph of Article 46(1) in-fine of Regulation (EEC) No 1408/71 and Article 36(4) of Regulation (EEC) No 574/72, which is applicable by analogy to the payment of invalidity pensions, must be interpreted as meaning that they do not prevent the legislation of a Member State from allowing a worker to waive the national right to an apportioned invalidity pension in order subsequently to obtain a more favourable independent old-age pension.
Such waiver must be notified in good time to the institutions of the other Member States concerned in order to enable them to calculate the benefits due in accordance with the principles established by Community regulations.’
4. The Greek Government, relying on the Court's case-law, points out that Community law cannot eliminate or reduce benefits acquired under national legislation alone. If the application of Community law leads to a less favourable result than would be obtained by virtue of national legislation, it is the latter that is applied (see Case 733/79 Laterza [1980] ECR 1915, Case 24/75 Petroni, cited above, and Case 100/78 Rossi [1979] ECR 831, Case 807/79 Gravina [1980] ECR 2205 and Case 320/82 D'Amaria [1983] ECR 3811). The Greek Government considers that the reply to the question referred by the national court should be as follows:
‘— If the Court follows its existing case-law, it must be found that Articles 36(4) of Regulation (EEC) No 574/72 and 46(1) of Regulation (EEC) No 1408/71 do not prevent an insurance institution of a Member State to which an institution of another Member State has referred a claim for invalidity pension on the basis of Article 40 of Regulation (EEC) No 1408/71 from granting a migrant worker an old-age pension instead of an invalidity pension where it appears that the old-age pension to which there is entitlement by virtue of the national legislation alone is higher than the invalidity pension calculated in accordance with the system for aggregating and apportioning periods of insurance;
— the reply will naturally be different if the Court adopts a stricter interpretation of the above-mentioned articles of the Regulations and links this interpretation to the principle of the primacy of Community law, which principle, in so far as it has unfavourable effects in such circumstances, may nevertheless be considered as infringing Article 51 of the EEC Treaty, which requires the adoption of such measures in the field of social security as are necessary to provide freedom of movement of workers and provides, for the purposes of acquiring and retaining the right to social benefits and of calculating such rights, for the aggregation of all periods taken into account under different national legislations, without any loss of social security advantages.’
5. The Italian Government points out that the application of Article 36(4) of Regulation No 574/72 cannot have the effect of compelling an institution of a Member State to set aside a rule of national law where it appears that this is more favourable to the recipient of the benefit. As regards Article 2 duodecies of Italian Law No 114 of 16 April 1974 on the payment of pensions, the Italian Government contends that this provision is in conformity with the principles of Community law aimed at guaranteeing the most favourable benefit for migrant workers. The Italian Government adds that the case-law of the Court gives rise to a principle whereby Regulation No 1408/71, which is designed essentially to guarantee and protect the social security rights of workers moving within the Community, cannot be interpreted or applied in a way which would have the effect of reducing or eliminating more favourable benefits due under national legislation.
J. C. Moitinho de Almeida
Judge-Rapporteur
1 Language of the case: French.