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URL: http://www.bailii.org/eu/cases/EUECJ/1984/R10483.html
Cite as: [1984] EUECJ R-104/83

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61983J0104
Judgment of the Court (Second Chamber) of 1 March 1984.
Salvatore Cinciuolo v Union Nationale des Fédérations Mutualistes Neutres and Institut National d'Assurance Maladie-Invalidité.
Reference for a preliminary ruling: Tribunal du travail de Bruxelles - Belgium.
Social security - Recalculation of benefits.
Case 104/83.
European Court reports 1984 Page 01285

SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE AND SURVIVORS ' INSURANCE - BENEFITS - ADJUSTMENT - RECALCULATION - SCOPE OF THE SYSTEM
( REGULATION NO 1408/71 OF THE COUNCIL , ART . 51 )

ARTICLE 51 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS APPLYING TO BENEFITS SUCH AS THOSE IN RESPECT OF ACCIDENTS AT WORK OR OCCUPATIONAL DISEASE WHICH , BY VIRTUE OF THE NATIONAL RULES AGAINST OVERLAPPING OF BENEFITS , ORIGINALLY AFFECTED THE AMOUNT OF THE PENSION FIXED PURSUANT TO ARTICLE 46 AND ANY SUBSEQUENT ADJUSTMENTS TO WHICH MIGHT AGAIN AFFECT THAT PENSION . IT IS THEREFORE NOT NECESSARY TO RECALCULATE THE PENSION PURSUANT TO ARTICLE 46 IF AN ADJUSTMENT IS MADE TO SUCH A BENEFIT ON ACCOUNT OF THE GENERAL EVOLUTION OF THE ECONOMIC AND SOCIAL SITUATION .

IN CASE 104/83
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL ( LABOUR COURT ), BRUSSELS , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
SALVATORE CINCIUOLO
AND
1 . UNION NATIONALE DES FEDERATIONS MUTUALISTES NEUTRES
AND
2 . INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE

ON THE INTERPRETATION OF ARTICLE 51 ( 1 ) 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 ),

1 BY A JUDGMENT OF 26 MAY 1983 , WHICH WAS RECEIVED AT THE COURT ON 3 JUNE 1983 , THE TRIBUNAL DU TRAVAIL , BRUSSELS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 51 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 WAS RAISED IN PROCEEDINGS BETWEEN SALVATORE CINCIUOLO , AN ITALIAN NATIONAL , AND , INTER ALIA , THE INSTITUT NATIONAL D ' ASSURANCE MALADIE-INVALIDITE ( HEREINAFTER REFERRED TO AS THE ' ' INSTITUT NATIONAL ' ' ), A BELGIAN SOCIAL SECURITY INSTITUTION .

3 MR CINCIUOLO HAS BEEN RECEIVING SINCE 1 FEBRUARY 1977 AN INVALIDITY ALLOWANCE UNDER BELGIAN LEGISLATION . HE ALSO RECEIVES TWO ITALIAN BENEFITS , NAMELY AN APPORTIONED INVALIDITY PENSION CALCULATED ACCORDING TO THE AGGREGATION AND APPORTIONMENT PRINCIPLES CONTAINED IN ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 AND AN OCCUPATIONAL DISEASE BENEFIT .

4 THE TWO ITALIAN BENEFITS WERE SET OFF AGAINST THE BELGIAN BENEFIT PURSUANT TO ARTICLE 70 ( 2 ) OF THE BELGIAN LAW OF 9 AUGUST 1963 . THAT REDUCTION , PURSUANT TO A BELGIAN PROVISION AGAINST THE OVERLAPPING OF BENEFITS , WAS MORE FAVOURABLE TO MR CINCIUOLO THAN THAT RESULTING FROM THE APPLICATION OF THE AGGREGATION AND APPORTIONMENT PRINCIPLES CONTAINED IN ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 AND IS NOT CHALLENGED BY HIM .

5 FOLLOWING THE INCREASE AS FROM 1 JULY 1977 IN THE ITALIAN OCCUPATIONAL DISEASE BENEFIT THE INSTITUT NATIONAL REDUCED THE BELGIAN BENEFIT BY A CORRESPONDING AMOUNT AS FROM THE SAME DATE . AFTER A FURTHER INCREASE IN THE ITALIAN BENEFIT ON 1 JULY 1980 THE INSTITUT NATIONAL AGAIN REDUCED THE BELGIAN BENEFIT .

6 MR CINCIUOLO CHALLENGED THE TWO REDUCTIONS BEFORE THE TRIBUNAL DU TRAVAIL , BRUSSELS , ON THE GROUND THAT THEY HAD BEEN MADE IN BREACH OF ARTICLE 51 ( 1 ) OF REGULATION NO 1408/71 . THE INSTITUT NATIONAL CONTENDED THAT ARTICLE 51 APPLIED ONLY TO PENSIONS AND THAT THERE WAS NO QUESTION OF EXTENDING ITS APPLICATION TO BENEFITS OF ANOTHER KIND .

7 THE TRIBUNAL DU TRAVAIL STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' ' DOES ARTICLE 51 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 OF 14 JUNE 1971 APPLY SOLELY TO THE INVALIDITY , OLD-AGE AND SURVIVOR ' S PENSIONS REFERRED TO IN ARTICLE 46 OR DOES IT ALSO APPLY TO BENEFITS OF A DIFFERENT NATURE , SUCH AS THOSE IN RESPECT OF ACCIDENTS AT WORK OR OCCUPATIONAL DISEASE , WHICH , BY VIRTUE OF THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , ORIGINALLY AFFECTED THE AMOUNT OF THE PENSION FIXED PURSUANT TO ARTICLE 46 AND ANY SUBSEQUENT ADJUSTMENTS TO WHICH MIGHT AGAIN AFFECT THAT PENSION?

IN OTHER WORDS , IS IT NECESSARY TO RECALCULATE THE PENSION PURSUANT TO ARTICLE 46 IN THE EVENT OF AN ADJUSTMENT BEING MADE TO THE AMOUNT OF A BENEFIT IN RESPECT OF OCCUPATIONAL DISEASE WHICH IS NOT AGGREGABLE OR IS PARTIALLY AGGREGABLE WITH THE PENSION?
' '
8 IN ORDER TO ANSWER THAT QUESTION IT IS NECESSARY TO INTERPRET ARTICLE 51 OF REGULATION NO 1408/71 IN THE LIGHT OF ITS WORDING , CONTEXT AND OBJECTIVES .

9 ARTICLE 51 ( 1 ) PROVIDES THAT IF , BY REASON OF AN INCREASE IN THE COST OF LIVING OR CHANGES IN THE LEVEL OF WAGES OR SALARIES OR OTHER REASONS FOR ADJUSTMENT , THE BENEFITS OF THE STATES CONCERNED ARE ALTERED BY A FIXED PERCENTAGE OR AMOUNT , SUCH PERCENTAGE OR AMOUNT MUST BE APPLIED DIRECTLY TO THE ' ' BENEFITS DETERMINED UNDER THE PROVISIONS OF ARTICLE 46 ' ' , WITHOUT THE NEED FOR A RECALCULATION IN ACCORDANCE WITH THE PROVISIONS OF THAT ARTICLE . ON THE OTHER HAND , ARTICLE 51 ( 2 ) PROVIDES THAT IF THE METHOD OF DETERMINING , OR THE RULES FOR CALCULATING , BENEFITS SHOULD BE ALTERED , A RECALCULATION IS TO BE CARRIED OUT . IN VIEW OF THE TERMS USED IN ARTICLE 51 ( 1 ) FOR THE REFERENCE TO ARTICLE 46 , IT MUST BE OBSERVED THAT THE ONLY CASE COVERED EXPRESSLY BY ARTICLE 51 IS THAT OF AN ALTERATION IN ONE OF THE BENEFITS WHICH HAVE BEEN DETERMINED UNDER THE PROVISIONS OF ARTICLE 46 .
10 ARTICLE 46 DETERMINES THE RULES GOVERNING THE AMOUNT OF BENEFITS FOR WORKERS WHO HAVE BEEN SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES . IN PARTICULAR , IT SPECIFIES THE CALCULATIONS WHICH ARE REQUIRED IN ORDER TO DETERMINE WHETHER THE APPLICATION OF THE NATIONAL LEGISLATION , INCLUDING ITS PROVISIONS AGAINST OVERLAPPING , IS MORE FAVOURABLE TO THE WORKER IN QUESTION THAN THE SYSTEM OF AGGREGATION AND APPORTIONMENT PROVIDED FOR IN ARTICLE 46 ( 2 ). IT FOLLOWS THAT THE CALCULATIONS MADE PURSUANT TO ARTICLE 46 MAY TAKE INTO ACCOUNT NOT ONLY BENEFITS THE AMOUNT OF WHICH MUST BE DETERMINED ACCORDING TO THAT ARTICLE BUT ALSO , AS A RESULT OF THE NATIONAL RULES AGAINST OVERLAPPING , OTHER BENEFITS WHICH MAY SUBSEQUENTLY BE ALTERED .

11 IT MUST BE EMPHASIZED THAT ARTICLE 51 DOES NOT CONSTITUTE AN EXCEPTION IN RELATION TO ARTICLE 46 BUT A PROVISION GOVERNING ITS APPLICATION . THE FACT THAT A PARTICULAR SITUATION IS NOT EXPRESSLY COVERED BY SUCH A PROVISION DOES NOT PREVENT THE PROVISION FROM APPLYING TO IT IF THAT IS IN ACCORDANCE WITH ITS OBJECTIVES .

12 AS THE COURT RECOGNIZED IN ITS JUDGMENT OF 2 FEBRUARY 1982 ( CASE 7/71 , SINATRA V FONDS NATIONAL , ( 1982 ) ECR 137 ), ARTICLE 51 WAS INTENDED TO REDUCE THE ADMINISTRATIVE BURDEN WHICH A FRESH EXAMINATION OF THE INSURED ' S SITUATION FOLLOWING EVERY ALTERATION IN THE BENEFITS RECEIVED WOULD ENTAIL . THE REGULATION WAS THUS INTENDED TO EXCLUDE A FRESH CALCULATION WHERE THE ALTERATION IN THE BENEFITS RESULTS FROM EVENTS UNCONNECTED WITH THE PERSONAL CIRCUMSTANCES OF THE INSURED AND IS A CONSEQUENCE OF THE GENERAL EVOLUTION OF THE ECONOMIC AND SOCIAL SITUATION .

13 THE SAME GROUNDS OF SIMPLIFICATION AND STABILITY ARGUE AGAINST A RECALCULATION EACH TIME A BENEFIT WHICH INFLUENCED THE ORIGINAL CALCULATION OF BENEFITS , BY VIRTUE OF THE NATIONAL RULES AGAINST OVERLAPPING , IS ALTERED AS A RESULT OF THE SAME GENERAL EVOLUTION . IN FACT , THE DISTINCTION MADE BY ARTICLE 51 , DEPENDING ON WHETHER THE ALTERATION IN BENEFITS IS DUE TO THE GENERAL EVOLUTION IN THE ECONOMIC SITUATION OR TO AN ALTERATION IN THE METHOD OF DETERMINING THE BENEFITS OR IN THE RULES FOR CALCULATING THEM , IS JUST AS SUITABLE FOR APPLICATION TO BENEFITS OTHER THAN THOSE DETERMINED PURSUANT TO ARTICLE 46 .
14 THEREFORE THE ANSWER TO THE QUESTION MUST BE THAT ARTICLE 51 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS APPLYING TO BENEFITS SUCH AS THOSE IN RESPECT OF ACCIDENTS AT WORK OR OCCUPATIONAL DISEASE WHICH , BY VIRTUE OF THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , ORIGINALLY AFFECTED THE AMOUNT OF THE PENSION FIXED PURSUANT TO ARTICLE 46 AND ANY SUBSEQUENT ADJUSTMENTS TO WHICH MIGHT AGAIN AFFECT THAT PENSION . IT IS THEREFORE NOT NECESSARY TO RECALCULATE THE PENSION PURSUANT TO ARTICLE 46 IF AN ADJUSTMENT IS MADE TO SUCH A BENEFIT ON ACCOUNT OF THE GENERAL EVOLUTION OF THE ECONOMIC AND SOCIAL SITUATION .

COSTS
15 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS 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 ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , BRUSSELS , BY A JUDGMENT OF 26 MAY 1983 , HEREBY RULES :
ARTICLE 51 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 MUST BE INTERPRETED AS APPLYING TO BENEFITS SUCH AS THOSE IN RESPECT OF ACCIDENTS AT WORK OR OCCUPATIONAL DISEASE WHICH , BY VIRTUE OF THE NATIONAL RULES AGAINST OVERLAPPING OF BENEFITS , ORIGINALLY AFFECTED THE AMOUNT OF THE PENSION FIXED PURSUANT TO ARTICLE 46 AND ANY SUBSEQUENT ADJUSTMENTS TO WHICH MIGHT AGAIN AFFECT THAT PENSION . IT IS THEREFORE NOT NECESSARY TO RECALCULATE THE PENSION PURSUANT TO ARTICLE 46 IF AN ADJUSTMENT IS MADE TO SUCH A BENEFIT ON ACCOUNT OF THE GENERAL EVOLUTION OF THE ECONOMIC AND SOCIAL SITUATION .