61992J0045

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1. Social security for migrant workers ° Equal treatment ° National provision confining the treatment of periods of invalidity as periods of active employment for the purpose of calculating old-age pension to persons who were employed at the time when they stopped work ° Manner of application having the effect of disadvantaging workers who have been employed in more than one Member State ° Not permissible

(EEC Treaty, Arts 48 to 51)

2. Social security for migrant workers ° Old-age and death insurance ° Calculation of benefits in the event of overlapping periods ° Invalidity benefit converted into old-age pension ° Application of Article 15(1)(c) and (d) of Regulation No 574/72 ° Obligations of national courts

(Council Regulations No 1408/71, Art. 46(1), second subpara., and No 574/72, Art. 15(1)(c) and (d))

3. Social security for migrant workers ° Old-age and death insurance ° Calculation of benefits ° Invalidity benefit converted into old-age pension ° Application to notional daily remuneration laid down for periods treated as periods of employment of the same proportion as that used for calculating invalidity pension ° Permissible

1. It would be contrary to Articles 48 to 51 of the Treaty if, as a consequence of the exercise of their freedom of movement, migrant workers were to lose the social security advantages guaranteed to them by the laws of a single Member State, since such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom.

It is therefore incompatible with the requirements of freedom of movement for a migrant worker to be precluded from relying for the calculation of his old-age pension on national legislation treating periods of invalidity as periods of active employment on the sole ground that, when he became incapable of work, he was employed, not in the Member State of the institution by which the benefit is payable, but in another Member State.

Indeed, the prospect of a worker' s losing, in one Member State, the right to have periods of invalidity treated as periods of insurance, which would occur if he went to work in another Member State, is likely in certain circumstances to discourage him from exercising his right to freedom of movement.

2. When calculating the amount of an old-age benefit by reference to the rules set out in the second subparagraph of Article 46(1) of Regulation No 1408/71, it is necessary to apply Article 15(1)(c) and (d) of Regulation No 574/72 concerning the conditions under which periods treated as insurance periods are to be taken into account, in particular where periods overlap. To this end, it is for the national court to ascertain how the legislation of another Member State categorizes periods during which invalidity benefits were paid under that legislation.

3. As Community law stands at present, it merely coordinates social security legislation and there is nothing to preclude the legislation of a Member State which, for the purpose of calculating an old-age pension, provides for a notional daily rate of remuneration in respect of periods treated as periods of employment from applying to that remuneration the same proportion as that on the basis of which the invalidity pension granted earlier was calculated.

In Joined Cases C-45/92 and C-46/92,

REFERENCES to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail, Brussels, for a preliminary ruling in the proceedings pending before that court between

Vito Canio Lepore

and

Office National des Pensions

and between

Nicolantonio Scamuffa

and

Office National des Pensions (ONP),

on the interpretation of Articles 43 and 45 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 and of Article 15 of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71, as amended and consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT (Third Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, F. Grévisse and M. Zuleeg, Judges,

Advocate General: C. Gulmann,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° the plaintiff in the main proceedings in Case C-45/92, by D. Rossini, a trade-union representative,

° the plaintiff in the main proceedings in Case C-46/92, by Franco Agostini, of the Rome Bar,

° the defendant in the main proceedings in both cases, by R. Masyn, General Administrator in the Office National des Pensions,

° the Commission of the European Communities, by Marie Wolfcarius, of its Legal Service, acting as Agent, assisted by Théophile Margellos, a national civil servant on secondment to the Legal Service of the Commission,

having regard to the Report for the Hearing,

after hearing the oral observations of the plaintiff in Case C-46/92 and of the Commission at the hearing on 12 November 1992,

after hearing the Opinion of the Advocate General at the sitting on 16 February 1993,

gives the following

Judgment

1 By two orders of 10 February 1992, received by the Court on 17 February 1992, the Tribunal du Travail (Labour Court), Brussels, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions concerning the interpretation of Articles 43 and 45 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, and of Article 15 of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71, as amended and consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

2 The questions arose in the context of two actions brought by Mr Lepore and Mr Scamuffa respectively against the Belgian Office National des Pensions ("ONP") relating to the calculation of their old-age pensions.

3 Mr Lepore and Mr Scamuffa, who are Italian nationals, worked in Belgium from 1951 to 1954 and from 1951 to 1959 respectively.

4 Mr Lepore, who also worked in Italy, Germany and Luxembourg, became unfit for work on the ground of invalidity in 1986 when he was employed in Luxembourg. Since then he has received invalidity benefits from Luxembourg and Germany which have been converted into old-age benefits. Since 1 February 1985 he has also received an Italian old-age pension and, since June 1987, a pro-rata Belgian invalidity benefit, which was converted into an old-age pension in 1990.

5 Mr Scamuffa became unfit for work in 1978 when he was employed in Italy. Since then he has received Italian invalidity benefits and, since 1980, he has also been paid a pro-rata Belgian invalidity benefit, which was converted into an old-age pension in 1990.

6 Under Article 34(2) of the Belgian Royal Decree of 21 December 1967 on general regulations for the scheme for the retirement pension and survivors' pension for employed persons (Moniteur Belge, 27 October 1967), periods of incapacity for work are treated as periods of employment for the purposes of determining entitlement to a retirement pension only if, in particular, the person concerned is subject to the Decree-Law of 28 December 1944, that is to say, the Belgian social security scheme for employed persons, or, failing this, proves that he was an employed person at the time of the interruption of his work.

7 When calculating the plaintiffs' old-age pensions, the ONP refused to treat the periods during which they received invalidity benefits from the ONP as periods of employment on the ground, in particular, that they were not employed persons in Belgium at the time of the interruption of their work.

8 The plaintiffs brought an action against this refusal on the part of the ONP before the Tribunal du Travail, Brussels, which decided to stay the proceedings and to refer the following questions, which are the same in both cases, to the Court for a preliminary ruling:

"1. Where an employed person who has worked in several Member States of the European Communities receives, under the legislation of the State in which he resides, invalidity benefits the amount of which is determined by the duration of his periods of insurance and part of which is accordingly paid, pursuant to Articles 40 and 45 of Regulation (EEC) No 1406/71, by the competent institution of another Member State proportionally to the duration of that person' s period of insurance in that State, and where that person may, on reaching the normal age for retirement under the legislation of that State, claim a retirement pension payable by the competent institution of that State, whilst his invalidity benefits are not converted into old-age benefits in accordance with the legislation of the State in which he resides, is it necessary, for the purpose of establishing the retirement pension payable by the competent institution of the other State ° whose legislation provides that, subject to certain conditions, periods covered by invalidity benefits are to be treated as periods of active employment and thus as periods of insurance for retirement purposes ° to consider that it is to be concluded from Article 43(1) or Article 45(1) of Regulation (EEC) No 1408/71 that a retirement pension obtained by conversion of an invalidity pension must accommodate the period covered by that benefit, retaining the principle of aggregation governing the establishment of the benefit, notwithstanding the fact that at the time of the interruption of his work due to invalidity the claimant of the retirement pension was no longer an employed person in the State of the institution responsible for payment and was no longer subject to the social security scheme for employed persons in that State, but having regard to the fact that the person concerned was still at that time an employed person in a Member State of the European Communities?

2. If Article 45(1) of Regulation (EEC) No 1408/71 applies to the situation described, must it be considered, for the purposes of Article 15(1) of Regulation (EEC) No 574/72: that there is no overlapping of periods of insurance (Article 15(1)(a), first sentence); that there is to be separate aggregation (Article 15(1)(a), second sentence), irrespective of any other rules laid down in Article 15(1); that a period of insurance other than a period treated as such coincides with a period treated as such (Article 15(1)(c)); that two periods treated as periods of insurance coincide (Article 15(1)(d)); or that Article 15 does not cover such a situation?

3. If Article 45(1) of Regulation (EEC) No 1408/71 applies to the situation described and it is necessary, pursuant both to the applicable European legislation and to the national legislation which the institution competent as regards retirement pensions must apply, to take into consideration the period covered by the proportional invalidity benefits, and if, furthermore, the abovementioned national legislation provides that a notional daily remuneration is to be taken into consideration for periods treated as periods of insurance (for example, Article 24a of the Belgian Royal Decree of 21 December 1967), then must it be considered that such remuneration is to be taken into account subject to the application of the same proportion as that on the basis of which the invalidity benefits themselves were awarded?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts and the legal background of the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

First question

10 By the first question the national court essentially seeks to establish whether it is incompatible with Community law for a migrant worker to be precluded from relying for the calculation of his old-age pension on national legislation treating periods of invalidity as periods of employment on the sole ground that, when he became incapable of work, he was not employed in the Member State in question but in another Member State.

11 According to Article 45(1) of Regulation No 1408/71, the institution of a Member State whose legislation makes the acquisition of the right to old-age benefits subject to the completion of insurance periods must take account of periods completed under the legislation of any other Member State as if they were periods completed under the legislation which it administers.

12 The national court wonders whether it is possible to infer a principle requiring periods of invalidity to be treated as periods of insurance for the purpose of calculating old-age benefits where the conditions laid down to that end by the national legislation are not fulfilled because the person concerned became incapacitated when he was working in another Member State.

13 In this connection it is sufficient to observe that Article 45(1) provides for periods of insurance to be aggregated solely for the purposes of the acquisition, retention or recovery of the right to old-age benefits, whereas the disputes in the main proceedings are concerned with the determination of the amount of such benefits.

14 The national court also wonders whether such a principle may not be inferred from Article 43(1) of Regulation No 1408/71.

15 That provision reads as follows:

"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 Chapter 3."

16 Consequently, the rules of Chapter 3 are applicable to the award of old-age benefits resulting from the conversion of invalidity benefits.

17 On this point it should be observed that, under Article 46 of Regulation No 1408/71, the amount of benefits has to be calculated in several stages, namely the competent institution must first calculate the so-called "independent" benefit in accordance with the first subparagraph of Article 46(1) and then, under the second subparagraph, the so-called "pro-rata" benefit in accordance with the provisions of paragraph 2(a) and (b) of Article 46. The higher of those two amounts is applied (see, to this effect, Joined Cases C-90/91 and C-91/91 Di Crescenzo and Casagrande [1992] ECR I-3851, paragraph 19).

18 Article 46(1) provides as follows:

"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."

19 The term "period of insurance" is defined by Article 1(r) of Regulation No 1408/71 as "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 insurance periods".

20 It follows that, for in order to calculate the independent benefit, account must be taken of periods of insurance determined under national legislation alone, in particular periods treated as periods of insurance by that legislation, provided however that Articles 48 to 51 of the Treaty are observed (see, to this effect, Case C-302/90 Faux [1991] ECR I-4875, paragraphs 25 to 28).

21 In accordance with the case-law of the Court (see, in particular, Case C-349/87 Paraschi v Landesversicherunganstalt Wuerttemberg [1991] ECR I-4501, paragraph 22), it would be contrary to Articles 48 to 51 of the Treaty if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the advantages in the field of social security guaranteed to them by the laws of a single Member State; such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom.

22 As the Advocate General observes in section 17 of his Opinion, as far as the legislation in question is concerned. Indeed the prospect of a worker' s losing, in one Member State, the right to have periods of invalidity treated as periods of insurance, which would occur if he went to work in another Member State, is likely, in certain circumstances, to discourage him from exercising his right to freedom of movement.

23 Therefore the requirements of freedom of movement mean that, for the purpose of calculating the independent benefit, the periods of invalidity in question must be treated as insurance periods. This also applies to the calculation of pro-rata benefit in accordance with Article 46(2) of Regulation No 1408/71.

24 Consequently, the reply to the first question from the national court should be that it is incompatible with Community law for a migrant worker to be precluded from relying for the calculation of his old-age pension on national legislation treating periods of invalidity as periods of active employment on the sole ground that, when he became incapable of work, he was employed, not in the Member State in question, but in another Member State.

Second question

25 By its second question the national court seeks to establish whether, in the event that periods of invalidity have to be treated as periods of insurance, Article 15(1)(a), (c) and (d) of Regulation No 574/72 is applicable and, if so, how those provisions should be interpreted.

26 It follows from Article 43(1) in conjunction with Article 46(2)(d) of Regulation No 1408/71 that Regulation No 574/72 is applicable for the purpose of calculating the old-age benefit resulting from the conversion of an invalidity benefit.

27 According to Article 46(1) of Regulation No 574/72, the rules laid down in Article 15(1)(b), (c) and (d) of Regulation No 574/72 are applicable for the purposes of the calculation of the theoretical and the actual amount of benefit in accordance with the provisions of Article 46(2) of Regulation No 1408/71.

28 Article 15 of Regulation No 574/72 contains rules on the aggregation of periods, some of which may have a bearing on this case. The rules in question are the provisions of paragraph (1)(c) and (d) mentioned by the national court.

29 The provisions in question read as follows:

"(c) When a period of insurance or residence, other than a period treated as such, completed under the legislation of one Member State coincides with a period treated as such under the legislation of another Member State, only the period other than the period treated as such shall be taken into account;

(d) Any period treated as such under the legislations of two or more Member States shall be taken into account only by the institution of the Member State under whose legislation the insured person was last compulsorily insured prior to the said period; where the insured person has not been compulsorily insured under the legislation of a Member State before the said period, the latter shall be taken into account by the institution of the Member State under whose legislation he was compulsorily insured for the first time after the said period."

30 For the purpose of the application of those provisions, the national court must ascertain whether the periods during which invalidity benefits were paid in Luxembourg and Italy are to be regarded as periods of insurance or treated as such in accordance while the legislation of those countries.

31 With regard to Article 15(1)(a), also mentioned by the national court, it must be held that the exclusion of the overlapping of periods of insurance mentioned therein does not concern periods treated as insurance periods which are dealt with by the specific rules set out in paragraph 29 of this judgment.

32 The reply to the national court should therefore be that, for calculating the amount of an old-age benefit in accordance with the second subparagraph of Article 46(1) of Regulation No 1408/71, Article 15(1)(c) and (d) of Regulation No 574/72 is applicable. For this purpose, it is for the national court to ascertain whether the periods during which invalidity benefits were paid in other Member States are to be regarded as insurance periods or treated as such in accordance with such States' legislation.

Third question

33 By its third question the national court seeks to establish whether Community law precludes a Member State' s legislation which, for the purposes of calculating an old-age pension, provides for a notional daily rate of remuneration in respect of periods treated as periods of employment, from applying to that remuneration the same proportion as that on the basis of which the invalidity pension granted earlier was calculated.

34 As the Commission correctly observes, this question, which relates to the practical operation of calculating an old-age pension in accordance with national legislation, falls within the jurisdiction of the national authorities. As Community law stands at present, it merely coordinates social security legislation and there is no principle or provision of Community law which imposes on a Member State a particular rule permitting the same principles of apportionment as those applicable to the invalidity benefit previously granted to be applied to the notional remuneration provided for in national legislation.

35 The reply to the national court should therefore be that Community law does not preclude a Member State' s legislation which, for the purpose of calculating an old-age pension, provides for a notional daily rate of remuneration in respect of the periods treated as periods of employment, from applying to that remuneration the same proportion as that on the basis of which the invalidity pension granted earlier was calculated.

Costs

36 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Third Chamber),

in answer to the questions referred to it by the Tribunal du Travail, Brussels, by two orders of 10 February 1992, hereby rules:

1. It is incompatible with Community law for a migrant worker to be precluded from relying for the calculation of his old-age pension on national legislation treating periods of invalidity as periods of active employment on the sole ground that, when he became incapable of work, he was employed, not in the Member State in question, but in another Member State.

2. For calculating the amount of an old-age benefit in accordance with the second subparagraph of Article 46(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, Article 15(1)(c) and (d) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 is applicable. For this purpose, it is for the national court to ascertain whether the periods during which invalidity benefits were paid in other Member States are to be regarded as insurance periods or treated as such in accordance with such States' legislation.

3. Community law does not preclude a Member State' s legislation which, for the purposes of calculating an old-age pension, provides for a notional daily rate of remuneration in respect of the periods treated as periods of employment, from applying to that remuneration the same proportion as that on the basis of which the invalidity pension granted earlier was calculated.