Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

24 September 1998 (1)

(Old-age pension - Calculation of the theoretical amount of a benefit - Inclusion of the amount necessary to attain the statutory minimum pension)

In Case C-132/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Pretura Circondariale di Roma, Italy, for a preliminary ruling in the proceedings pending before that court between

Antonio Stinco,

Ciro Panfilo

and

Istituto Nazionale della Previdenza Sociale (INPS),

on the interpretation of Article 46(2)(a) 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 amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended in turn by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1) and by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7),

THE COURT (Sixth Chamber),

composed of: H. Ragnemalm, President of the Chamber, G.F. Mancini, P.J.G. Kapteyn, J.L. Murray (Rapporteur) and G. Hirsch, Judges,

Advocate General: F.G. Jacobs,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Antonio Stinco and Ciro Panfilo, by Rosamaria Ciancaglini and Marcella Rossi, of the Rome Bar,

- Istituto Nazionale della Previdenza Sociale (INPS), by Maddalena Pittelli and Carlo de Angelis, of the Rome Bar,

- the Swedish Government, by Erik BrattgÊard, DepartementsrÊad of the Department of Foreign Trade at the Ministry of Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by Peter Hillenkamp, of its Legal Service, and Enrico Altieri, a national civil servant on secondment to its Legal Service, acting as Agents,

having regard to the report for the hearing,

after hearing the oral observations of Antonio Stinco and Ciro Panfilo, represented by Marcella Rossi, of the Istituto Nazionale della Previdenza Sociale (INPS), represented by Carlo De Angelis, of the Spanish Government, represented by Paloma Plaza Garcia, Abogado del Estado, acting as Agent, of the Austrian Government, represented by Gerhard Hesse, 'Magister' at the Federal Ministry of Foreign Affairs, acting as Agent, and of the Commission, represented by Enrico Altieri, at the hearing on 25 June 1997,

after hearing the Opinion of the Advocate General at the sitting on 25 September 1997,

gives the following

Judgment

1. By order of 4 April 1996, received at the Court on 24 April 1996, the Pretura Circondariale di Roma (Magistrate's Court, Rome) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 46(2)(a) 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 amended and updated by Council Regulation (EEC) No 2001/83

   of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter referred to as 'Regulation No 1408/71'), as in turn amended by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1) and by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7).

2. That question was raised in proceedings between Antonio Stinco and Ciro Panfilo ('the claimants'), who are Italian nationals, and the Istituto Nazionale della Previdenza Sociale ('the INPS') in relation to the refusal by the INPS to take into account the amount necessary to attain the minimum pension set by the INPS when calculating the old-age pension under Italian law.

3. Article 46(2)(a) of Regulation No 1408/71, as amended by Regulation (EEC) No 1248/92, provides:

   'The competent institution shall calculate the theoretical amount of the benefit to which the persons concerned could lay claim provided all periods of insurance and/or of residence, which have been completed under the legislations of the Member States to which the employed or self-employed person was subject, have been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the amount shall be regarded as being the theoretical amount referred to in this paragraph.'

4. Under Article 50 of Regulation No 1408/71,

   'A recipient of benefits to whom this Chapter applies may not, in the State in whose territory he resides and under whose legislation a benefit is payable to him, be awarded a benefit which is less than the minimum benefit fixed by that legislation for a period of insurance or residence equal to all the periods of insurance taken into account for the payment in accordance with the preceding Articles. The competent institution of that State shall, if necessary, pay him throughout the period of his residence in its territory a supplement equal to the difference between the total of the benefits payable under this Chapter and the amount of the minimum benefit.'

5. Regulation No 1247/92 inserted Article 10a into Regulation No 1408/71. Article 10a(1) provides that the special non-contributory benefits listed in Annex IIa of Regulation No 1408/71 are not to be transferable to Member States other than the Member State in which the worker is resident. One of the benefits listed in Annex II is, under H (Italy), at (e), the supplement which enables the minimum Italian pension to be attained.

6. According to the case-file, the claimants applied to the INPS for an old-age pension and were each entitled, as from the same date, to an old-age pension from another Member State, namely France and the United Kingdom respectively.

7. Under Article 8 of Law No 153 of 30 April 1969 (Gazzetta Ufficiale della Repubblica Italiana No 111 of 30 April 1969), where entitlement to a pension is acquired by aggregating periods of insurance in accordance with international agreements or conventions in the field of social security, that pension must be supplemented to the level of the minimum pension, taking into account the amount of any pensions paid by other insurance bodies abroad. Under Article 6 of Decree-Law No 463 of 12 September 1983, which became Law No 638 of 11 November 1983, entitlement to the supplement is subject to the recipient's income not exceeding twice the annual amount of the minimum pension.

8. The INPS awarded the claimants pro rata pensions in accordance with Article 46(2) of Regulation No 1408/71 calculated by reference to the notional pensions which they would have received if they had worked in Italy throughout their working life. The amount of the notional pensions was such that, had they in fact been entitled to domestic pensions of that amount, they would have been awarded the statutory Italian pension supplement so as to reach the minimum pension level.

9. The national court states that the pension actually received by them was not, however, supplemented to meet the statutory minimum because the total pension received by each of them after taking into consideration the pensions paid in France and the United Kingdom respectively was above the level triggering payment of the supplement under Italian law.

10. The objections made by the claimants against those decisions were dismissed; they then brought separate proceedings in the Pretura Circondariale di Roma, which joined the two cases. They claimed before that court that Article 46(2)(a) of Regulation No 1408/71 requires that, where a notional pension is used as a starting point for the calculation of the pro rata pension, the notional pension must include the supplement provided for under Italian law.

11. Uncertain as to the correct interpretation of Article 46(2)(a), the Pretore del Lavoro di Roma decided to suspend the proceedings and ask the Court 'whether, in order to determine the amount of an Italian pro rata pension, the INPS must base its calculations on the notional or theoretical pension alone or on the notional or theoretical pension supplemented to meet the statutory minimum'.

12. By its question, the national court is essentially asking whether Article 46(2)(a) of Regulation No 1408/71 must be interpreted as requiring the competent institution, when determining the theoretical amount of the pension on the basis of which the pro rata pension is calculated, to take into account a supplement intended to bring the pension to the level of the statutory minimum.

13. In order to reply to that question, it should be noted that, as the Court held in paragraph 24 of its judgment in Levatino (Case C-65/92 [1993] ECR I-2005), the provisions of Article 46 of Regulation No 1408/71 apply to non-contributory old-age benefits such as the income guaranteed to the elderly under Belgian law.

14. In this case, however, the INPS and the Austrian Government argue that, since the supplement provided for under Italian law amounts to a special non-contributory benefit, under Article 4(2a) of Regulation No 1408/71 as amended by Regulation No 1247/92, it cannot, under Article 10a, be taken into account in the determination of the theoretical amount of an individual's pension under Article 46(2)(a).

15. In this respect, it should be noted that, under Article 10a of Regulation No 1408/71 as amended by Regulation No 1247/92, the special non-contributory benefits set out in Annex IIa of Regulation No 1408/71 are not transferable to Member States other than the Member State in which the worker resides.

16. As Article 10a is a derogation from a regulation which is intended to improve the situation of employed persons, self-employed persons and members of their families moving within the Community, it calls for a strict interpretation.

17. The possibility of exporting a benefit such as the supplement provided for under Italian law is not in any way connected with the question of determining the theoretical amount of a pension.

18. It follows that a benefit such as that at issue in the main proceedings cannot be considered to be excluded from the scope of Article 46 of Regulation No 1408/71 by reason of the adoption of Article 10a.

19. The INPS and the Swedish Government further claim that Article 50 of Regulation No 1408/71 is the sole provision intended to guarantee a minimum income to pensioners and that national legislation setting a minimum pension should only be taken into account in the circumstances set out in Article 50.

20. In this respect, it must be noted that, as the Court pointed out in its judgment in Browning (Case 22/81 [1981] ECR 3357, paragraphs 13 and 14), the method of calculation referred to in Article 46(2)(a) of Regulation No 1408/71, which relates to the determination of the theoretical amount of a pension, is distinct from the situation referred to in Article 50, which relates to the award of a supplementary payment in excess of the minimum payable in application of the normal rules under a particular national legal system.

21. It follows that a statutory minimum benefit set by a Member State must be taken into account in calculating the theoretical amount referred to in Article 46(2)(a) of Regulation No 1408/71.

22. Accordingly, the answer to the question referred is that Article 46(2)(a) of Regulation No 1408/71 must be interpreted as requiring the competent institution, in determining the theoretical amount of the pension on which the calculation of

    the pro rata pension is based, to take into account a supplement intended to bring the pension to the level of the statutory minimum.

    Costs

23. The costs incurred by the Spanish, Austrian and Swedish Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber),

in answer to the question referred to it by the Pretura Circondariale di Roma by order of 4 April 1996, hereby rules:

Article 46(2)(a) 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 amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended in turn by Council Regulation (EEC) No 1247/92 of 30 April 1992 and by Council Regulation (EEC) No 1248/92 of 30 April 1992, must be interpreted as requiring the competent institution, in determining the theoretical amount of the pension on which the calculation of the pro rata pension is based, to take into account a supplement intended to bring the pension to the level of the statutory minimum .

RagnemalmMancini Kapteyn Murray Hirsch

Delivered in open court in Luxembourg on 24 September 1998.

R. Grass H. Ragnemalm

Registrar President of the Sixth Chamber

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1: Language of the case: Italian.