1 BY JUDGMENT OF 2 MAY 1984 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 7 MAY 1984 , THE COUR DU TRAVAIL ( LABOUR COURT ), MONS , REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLES 12 AND 46 OF REGULATION ( EEC ) 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 ) AND OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ).
2 THAT QUESTION WAS RAISED IN A DISPUTE CONCERNING THE REFUSAL OF THE OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( ONPTS ) ( NATIONAL PENSION OFFICE FOR EMPLOYED PERSONS , HEREINAFTER REFERRED TO AS ' THE OFFICE ' ) TO AWARD S . RUZZU , A FORMER MINER OF ITALIAN NATIONALITY , A FULL PENSION OF 30/30THS ON THE GROUND THAT HE RECEIVED A PARTIAL PENSION IN RESPECT OF PERIODS OF EMPLOYMENT COMPLETED IN ITALY .
3 IT IS CLEAR FROM THE DOCUMENTS FORWARDED TO THE COURT OF JUSTICE BY THE COUR DU TRAVAIL THAT , FOLLOWING THE AMENDMENT ON 1 APRIL 1975 OF THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 2 ) OF BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967 , A PERSON WHO HAS WORKED AS AN UNDERGROUND COALMINER FOR 25 YEARS IS ENTITLED TO A FULL PENSION OF 30/30THS . THE FIVE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH HE BENEFITS ARE NOT LOCALIZED IN TIME . HOWEVER , THE OFFICE ' S PRACTICE WAS TO REDUCE THE BENEFIT OF THOSE YEARS OF NOTIONAL EMPLOYMENT BY THE NUMBER OF YEARS OF ACTUAL EMPLOYMENT IN ANOTHER MEMBER STATE . THAT PRACTICE WAS BASED ON THE LAW OF 10 FEBRUARY 1981 WHICH ENTERED INTO FORCE RETROACTIVELY ON 1 JANUARY 1981 AND WHICH PROVIDES FOR A REDUCTION OF THE NUMBER OF ADDITIONAL YEARS THUS TAKEN INTO ACCOUNT IN THE CASE OF A MINER BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE CAN CLAIM A PENSION UNDER ANOTHER BELGIAN SCHEME , EXCLUDING THE SCHEME FOR SELF-EMPLOYED WORKERS , OR UNDER A SCHEME IN A FOREIGN COUNTRY .
4 MR RUZZU WAS EMPLOYED IN ITALY BEFORE HIS EMPLOYMENT IN BELGIUM , FROM 1952 TO 1969 , AS A MINEWORKER UNDERGROUND . FROM 1969 TO 31 OCTOBER 1977 HE RECEIVED INVALIDITY BENEFITS AS AN UNDERGROUND MINER . SINCE THE RELEVANT BELGIAN LEGISLATION TREATS THE LATTER PERIOD AS A PERIOD OF ACTUAL EMPLOYMENT , MR RUZZU WAS ABLE TO CLAIM AN EMPLOYMENT RECORD SPANNING 25 YEARS . ON 1 NOVEMBER 1977 HE RETIRED . THE OFFICE ESTABLISHED , BY DECISION OF 6 FEBRUARY 1981 , THAT MR RUZZU COULD CLAIM AN EMPLOYMENT RECORD SPANNING 30 YEARS FOR THE PURPOSES OF THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 2 ) OF BELGIAN ROYAL DECREE NO 50 WITH A VIEW TO OBTAINING A FULL PENSION , WHICH IT REDUCED HOWEVER , IN ACCORDANCE WITH ITS CONSISTENT PRACTICE , BY 4/30THS CORRESPONDING TO THE FOUR ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT ON THE GROUND THAT THOSE YEARS COINCIDED WITH THE YEARS OF ACTUAL EMPLOYMENT IN ITALY .
5 MR RUZZU CHALLENGED THE OFFICE ' S DECISION BEFORE THE COMPETENT NATIONAL COURTS . WHEN THE DISPUTE CAME BEFORE IT ON APPEAL , THE COUR DU TRAVAIL , MONS , CONSIDERED THAT THE LAW OF 10 FEBRUARY 1981 WAS IMMEDIATELY APPLICABLE AS FROM 1 JANUARY 1981 . HOWEVER , IT RAISED THE QUESTION WHETHER , HAVING REGARD TO THE CASE-LAW OF THE COURT AND , IN PARTICULAR , TO THE JUDGMENT OF 2 JULY 1981 IN JOINED CASES 116 , 117 , 119 , 120 AND 121/80 ONPTS V CELESTRE ( 1981 ) ECR 1737 , THE REDUCTION PROVIDED FOR BY THE AFORESAID LAW WAS IN CONFORMITY WITH COMMUNITY LAW . ACCORDINGLY , THE NATIONAL COURT REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' IS THE INTERPRETATION TO BE PLACED ON ARTICLE 51 OF THE EEC TREATY AND ON REGULATIONS NO 1408/71 ( IN PARTICULAR , ARTICLES 12 AND 46 THEREOF ) AND NO 574/72 OF THE COUNCIL SUCH THAT THE AIMS OF THE TREATY AND THE REQUIREMENTS OF THE REGULATIONS ADMIT OF A PROVISION IN THE LEGISLATION OF A MEMBER STATE WHICH REDUCES THE ADDITIONAL INSURANCE PERIODS TAKEN INTO ACCOUNT BY THAT LEGISLATION ON THE BASIS OF NATIONAL LEGISLATION ALONE AND WITHOUT RECOURSE TO APPORTIONMENT ( TYPE A LEGISLATION ) BY THE NUMBER OF YEARS ( WHICH DO NOT OVERLAP WITH THE PREVIOUS PERIODS ) IN RESPECT OF WHICH A WORKER MAY , IN ANOTHER MEMBER STATE , CLAIM AN INVALIDITY PENSION IN ACCORDANCE WITH COMMUNITY RULES ( TYPE B LEGISLATION ), THUS ENTAILING A REDUCTION IN THE RETIREMENT BENEFIT PAYABLE UNDER NATIONAL LEGISLATION ALONE ( TYPE A LEGISLATION ) AS A RESULT OF THE AWARD OF THE APPORTIONED INVALIDITY BENEFIT IN ANOTHER MEMBER STATE ( TYPE B LEGISLATION)? IT SHOULD BE ADDED THAT THE TWO BENEFITS ARE TO BE REGARDED AS BEING OF THE SAME KIND ( SEE THE CELESTRE CASE ) AND THAT THE REDUCTION WHICH THE PROVISION IN QUESTION ENTAILS IS A REDUCTION OF THE RETIREMENT BENEFIT ACQUIRED INDEPENDENTLY OF COMMUNITY LAW ( SEE THE JERZAK CASE ). WOULD AN AFFIRMATIVE REPLY NOT CAUSE THE MIGRANT WORKER TO FORFEIT THE BENEFIT OF AN ADDITIONAL INSURANCE PERIOD IN THE MEMBER STATE HAVING TYPE A LEGISLATION? AND WOULD IT NOT IMPLY THAT THE APPLICATION , UNDER ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 , OF A PROVISION AGAINST OVERLAPPING BENEFITS WOULD ALSO BE WARRANTED IF THE BENEFIT TO BE REDUCED WAS ACQUIRED SOLELY UNDER NATIONAL LEGISLATION ( TYPE A)?
'
6 THE QUESTION REFERRED TO THE COURT OF JUSTICE BY THE COUR DU TRAVAIL , MONS , IS CONCERNED WITH A PROBLEM INVOLVING THE INTERPRETATION OF COMMUNITY LAW AND IS DESIGNED ESSENTIALLY TO ASCERTAIN WHETHER A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 WHICH , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ), IS NOT TO BE APPLIED WHEN THE AMOUNT OF THE PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION .
7 THE OFFICE CONTENDS THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 CANNOT BE RELIED UPON IN THE CASE OF A BENEFIT AWARDED IN ACCORDANCE WITH ARTICLE 46 ( 1 ) OF THAT REGULATION . THE TITLE OF ARTICLE 12 IS ' PREVENTION OF OVERLAPPING OF BENEFITS ' WHILST , ACCORDING TO THE OFFICE , ARTICLE 46 ( 1 ) AUTHORIZES A STATE TO DETERMINE THE PERIODS OF INSURANCE OR RESIDENCE TO BE TAKEN INTO ACCOUNT IN PURSUANCE OF ITS LEGISLATION . THE POWER OF THE NATIONAL LEGISLATURES TO DETERMINE PERIODS OF INSURANCE IS ALSO CONFIRMED BY ARTICLE 1 ( R ) OF REGULATION NO 1408/71 . THE OFFICE TAKES THE VIEW THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 REFERS EXCLUSIVELY TO BENEFITS , NOT TO PERIODS OF INSURANCE . IT FOLLOWS , IN ITS VIEW , THAT WHEN ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 IS APPLIED , ACCOUNT MUST BE TAKEN OF A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE .
8 MR RUZZU CONSIDERS THAT THE SOLUTION OF THE DISPUTE MUST BE SOUGHT IN THE INTERPRETATION OF ARTICLE 12 ( 1 ) OF REGULATION NO 1408/71 , NOT ARTICLE 12 ( 2 ). HE CLAIMS THAT THE BELGIAN PENSION CANNOT BE REDUCED BY THE APPLICATION OF THAT PROVISION SINCE , IN THIS CASE , THERE IS NO DUPLICATION OF INSURANCE PERIODS FOR THE PURPOSES OF ARTICLE 12 ( 1 ).
9 THE COMMISSION CONSIDERS THAT A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 AND THAT , WHEN THE BENEFIT IS CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 1 ), THAT NATIONAL PROVISION IS NOT TO BE APPLIED , HAVING REGARD TO THE LAST SENTENCE OF ARTICLE 12 ( 2 ).
10 THE BELGIAN GOVERNMENT CONSIDERS THAT THE LAW OF 10 FEBRUARY 1981 CAN IN NO WAY BE DESCRIBED AS A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 . IN ITS VIEW THAT LAW MERELY LAYS DOWN DETAILED RULES FOR TAKING INTO ACCOUNT THE INSURANCE PERIODS COMPLETED BY A WORKER WITH A VIEW TO DETERMINING HIS ENTITLEMENT TO A PENSION . THE QUESTION SUBMITTED AMOUNTS TO A REQUEST FOR A DECISION ON A PROBLEM WHICH IS A MATTER FOR NATIONAL LAW ALONE .
11 THE ITALIAN GOVERNMENT INFERS FROM THE OPERATIVE PART OF THE COURT ' S JUDGMENT OF 2 JULY 1981 IN THE CELESTRE CASE THAT ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 PRECLUDES THE APPLICATION OF A NATIONAL RULE TO THE CALCULATION OF A PENSION AWARDED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION WHICH REDUCES THE BENEFIT OF THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT BY THE YEARS OF INSURANCE COMPLETED IN ANOTHER MEMBER STATE .
12 IT MUST BE POINTED OUT IN THE FIRST PLACE THAT THE AMOUNT OF THE PENSION AWARDED TO A WORKER WHO HAS BEEN SUBJECT TO THE LEGISLATION OF MORE THAN ONE MEMBER STATE MUST , IN THE MEMBER STATE IN WHICH ' THE CONDITIONS FOR ENTITLEMENT TO BENEFIT HAVE BEEN SATISFIED , WITHOUT APPLICATION OF THE PROVISIONS OF ARTICLE 45 BEING NECESSARY ' , BE CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46 ( 1 ).
13 IN ITS JUDGMENT OF 2 JULY 1981 IN THE CELESTRE CASE THE COURT STATED THAT : ' IT IS CLEAR FROM THE LAST SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 THAT WHERE THE PROVISIONS OF ARTICLE 46 OF THE REGULATION ARE APPLIED , NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION , SUSPENSION OR WITHDRAWAL DO NOT APPLY . IT FOLLOWS THAT THE AMOUNT REFERRED TO IN ARTICLE 46 ( 1 ) IS THE AMOUNT TO WHICH THE WORKER WOULD BE ENTITLED UNDER NATIONAL LEGISLATION IF HE WERE NOT IN RECEIPT OF A PENSION BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE ' .
14 IT FOLLOWS FROM THE AFORESAID JUDGMENT THAT , PURSUANT TO ARTICLE 12 ( 2 ) AND ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , THE AMOUNT OF A MIGRANT WORKER ' S PENSION MUST BE DETERMINED IN ACCORDANCE WITH THE RELEVANT NATIONAL LEGISLATION , IRRESPECTIVE OF ANY ENTITLEMENT TO A PENSION WHICH MAY ARISE UNDER THE LEGISLATION OF ANY OTHER MEMBER STATE .
15 THE FACT THAT THE REDUCTION OF THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE IS NOW EFFECTED AT NATIONAL LEVEL ON THE BASIS OF A STATUTORY PROVISION , AND NO LONGER BY THE APPLICATION OF A MERE ADMINISTRATIVE PRACTICE , CANNOT ALTER THAT CONCLUSION .
16 FOR THOSE REASONS , THE ANSWER TO THE QUESTION SUBMITTED BY THE NATIONAL COURT MUST BE THAT A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) 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 WHICH , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ), IS NOT TO BE APPLIED WHEN THE AMOUNT OF THE PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION .
COSTS
17 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT , THE ITALIAN GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE 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 ( FIFTH CHAMBER ),
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE COUR DU TRAVAIL , MONS , BY JUDGMENT OF 2 MAY 1984 , HEREBY RULES :
A NATIONAL PROVISION WHICH REDUCES THE ADDITIONAL YEARS OF NOTIONAL EMPLOYMENT FROM WHICH A WORKER MAY BENEFIT BY THE NUMBER OF YEARS IN RESPECT OF WHICH HE MAY CLAIM A PENSION IN ANOTHER MEMBER STATE CONSTITUTES A PROVISION FOR REDUCTION OF BENEFIT WITHIN THE MEANING OF ARTICLE 12 ( 2 ) OF REGULATION ( EEC ) 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 WHICH , BY VIRTUE OF THE LAST SENTENCE OF ARTICLE 12 ( 2 ), IS NOT TO BE APPLIED WHEN THE AMOUNT OF THE PENSION IS CALCULATED UNDER ARTICLE 46 ( 1 ) OF THAT REGULATION .
