Avis juridique important

Judgment of the Court (Third Chamber) of 5 April 1990. - Office national des pensions v Ernesto Bianchin. - Reference for a preliminary ruling: Cour du travail de Liège - Belgium. - Social security for migrant workers - Regulation (EEC) Nº 1408/71 - Belgian social security legislation. - Case C-109/89. European Court reports 1990 Page I-01619 Pub.RJ Page Pub somm

Summary Parties Operative part

++++

1 . Social security for migrant workers - Benefits - National anti-overlapping rules - Entitlement under national legislation alone - Applicability - Limits - Community rules more favourable to the worker

( Council Regulation No 1408/71, Arts 12(2 ) and 46(3 ) )

2 . Social security for migrant workers - Benefits - National anti-overlapping rules - Not applicable to recipients of benefits of the same kind calculated in accordance with Regulation No 1408/71 - Early retirement pension and invalidity pension - Treated as benefits of the same kind

( Council Regulation No 1408/71, Arts 12(2 ) and 46 )

3 . Social security for migrant workers - Benefits - National anti-overlapping rules - Classification, for the purposes of the application of national anti-overlapping rules, of benefits under different national schemes - Matter governed by national law

1 . Where a worker receives a pension by virtue of national legislation alone, the provisions of Regulation No 1408/71 do not preclude that legislation from being applied to him in its entirety, including any national rules against overlapping benefits . However, if the application of national legislation alone proves to be less favourable to him than that of the rules laid down in Article 46 of that regulation, Article 46 must be applied . In the latter case, Article 46(3 ), which is designed to limit the overlapping of acquired benefits, in accordance with the rules laid down in Article 46(1 ) and ( 2 ), is applicable, to the exclusion of the anti-overlapping rules laid down by the national legislation .

2 . An early retirement pension acquired under the legislation of one Member State and an invalidity pension acquired under the legislation of another Member State are to be treated as benefits of the same kind within the meaning of Article 12(2 ) of Regulation No 1408/71, according to which the provisions of the legislation of a Member State for the reduction, suspension or withdrawal of a benefit in cases of overlapping with other social security benefits acquired in that same Member State or under the legislation of another Member State are not to apply when the person concerned receives benefits of the same kind in respect of invalidity, old age, death ( pensions ) or occupational disease paid by the institutions of the different Member States concerned .

3 . When the legislation of only one Member State is applied, the classification, in the light of the anti-overlapping rules contained in that legislation, of an early retirement pension awarded under the legislation of that State alone and of an invalidity pension awarded by another Member State is not governed by Community law .

( The grounds of this judgment are identical to those of the judgment of the same date, 5 April 1990, in Case C-108/89 Pian v Office national des pensions (( 1990 )) ECR 1599 .)

In Case C-109/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the cour du travail ( Labour Court ), Liège, Belgium, for a preliminary ruling in the proceedings pending before that court between

Office national des pensions

and

Ernesto Bianchin

on the interpretation of Articles 48 and 51 of the EEC Treaty on freedom of movement for workers,

THE COURT ( Third Chamber )

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

( the grounds of the judgment are not reproduced )

in answer to the questions submitted to it by the cour du travail, Liège, by judgment of 24 March 1989, hereby rules :

( 1 ) Where an employed or self-employed person receives a pension by virtue of national legislation alone, the provisions of Regulation ( EEC ) No 1408/71 do not preclude that legislation alone from being applied to him in its entirety, including any national rules against the overlapping of benefits, unless the application of that national legislation proves to be less favourable to him than that of the rules laid down in Article 46 of Regulation ( EEC ) No 1408/71 . In the latter case, Article 46 must be applied, account being taken of the fact that provisions for reduction, suspension or withdrawal of benefit laid down by national legislation are inapplicable by virtue of the final sentence of Article 12(2 ) of the regulation, when the person concerned receives benefits of the same kind in respect of invalidity, old age, death ( pensions ) or occupational disease awarded by the institutions of the different Member States . An early retirement pension and an invalidity pension are to be regarded as benefits of the same kind within the meaning of Article 12(2 ) of the regulation .

( 2 ) When the legislation of only one Member State is applied, the classification, in the light of the anti-overlapping rules contained in that legislation, of an early retirement pension awarded under the legislation of that State alone and of an invalidity pension awarded by another Member State is not governed by Community law .