JUDGMENT OF THE COURT (Fifth Chamber)

18 November 1999 (1)

(Social security — Regulation (EEC) No 1408/71 (as amended by Regulation(EEC) No 1248/92) — Benefits of the same kind payable under the legislation oftwo or more Member States — Provision on reduction, suspension or withdrawallaid down by the legislation of a Member State — National legislationacknowledging periods in accordance with a legal presumption ('war yearspresumption‘) where no pension right payable under another scheme (includinga foreign scheme) is established for them)

In Case C-161/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Tribunal du Travail, Mons, Belgium, for a preliminary ruling in theproceedings pending before that court between

Georges Platbrood

and

Office National des Pensions (ONP),

on the interpretation of Council Regulation (EEC) No 1408/71 of 14 June 1971 onthe application of social security schemes to employed persons, to self-employedpersons and to members of their families moving within the Community, asamended by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L136, p. 7),

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward (Rapporteur), President of the Chamber,J.C. Moitinho de Almeida, L. Sevón, J.-P. Puissochet and M. Wathelet, Judges,

Advocate General: S. Alber,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    the Office National des Pensions (ONP), by G. Perl, General Administrator,

—    the Commission of the European Communities, by M. Wolfcarius, of itsLegal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Office National des Pensions (ONP),represented by J.-P. Lheureux, Assistant Advisor, and of the Commission,represented by M. Wolfcarius, at the hearing on 24 March 1999,

after hearing the Opinion of the Advocate General at the sitting on 18 May 1999,

gives the following

Judgment

1.

    By judgment of 21 April 1998, received at the Court on 27 April 1998, the Tribunaldu Travail (Labour Court), Mons, referred to the Court for a preliminary rulingunder Article 177 of the EC Treaty (now Article 234 EC) a question on theinterpretation of Council Regulation (EEC) No 1408/71 of 14 June 1971 on theapplication of social security schemes to employed persons, to self-employedpersons and to members of their families moving within the Community, asamended by Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L136, p. 7; 'Regulation No 1408/71‘).

2.

    That question was raised in proceedings between Georges Platbrood and the OfficeNational des Pensions (the National Pensions Office, hereinafter 'the ONP‘)concerning the award of an old-age pension.

Community law

3.

    Article 46(1) of Regulation No 1408/71 states:

'1. Where the conditions required by the legislation of a Member State forentitlement to benefits have been satisfied without having to apply Article 45[consideration of other periods of insurance or of residence] or Article 40(3)[invalidity benefits], the following rules shall apply:

(a)    the competent institution shall calculate the amount of the benefit thatwould be due:

    (i)    on the one hand, only under the provisions of the legislation which itadministers;

    (ii)    on the other hand ...‘

4.

    Regulation No 1248/92 inserted, inter alia, Article 46b in Regulation No 1408/71,which contains special provisions applicable in the case of overlapping of benefitsof the same kind payable under the legislation of two or more Member States.Article 46b(2) provides:

'The provisions on reduction, suspension or withdrawal laid down by the legislationof a Member State shall apply to a benefit calculated in accordance with Article46(1)(a)(i) only if the benefit concerned is:

(a)    either a benefit, which is referred to in Annex IV, part D, the amount ofwhich does not depend on the length of the periods of insurance or ofresidence completed; or

(b)    a benefit, the amount of which is determined on the basis of a creditedperiod deemed to have been completed between the date on which the riskmaterialised and a later date. In the latter case, the said provisions shallapply in the case of overlapping of such a benefit:

    (i)    either with a benefit of the same kind, except where an agreement hasbeen concluded between two or more Member States providing thatone and the same credited period may not be taken into account twoor more times;

    (ii)    or with a benefit of the type referred to in (a).

The benefits and agreements referred to in (b) are mentioned in Annex IV,part D.‘

5.

    The amendments made by Regulation No 1248/92 to Regulation No 1408/71 wereconcerned with delimiting the application of national rules against overlappingbenefits and did not affect the principle of their operation (Case C-143/97 ONP vConti [1998] ECR I-6365, paragraph 19).

Belgian law

6.

    The main proceedings concern the application of Article 32(1) of the Royal Decreeof 21 December 1967 laying down general rules concerning retirement andsurvivor's pensions for employed persons (Moniteur Belge of 16 January 1968).

7.

    Article 15(3) of Royal Decree No 50 of 24 October 1967 (Moniteur Belge of 27October 1967) provides:

'The King shall determine the way in which evidence is to be adduced ofemployment giving entitlement to a retirement pension and the arrangements underwhich periods not established are assimilated to periods of employment.‘

8.

    Article 32(1) of the Royal Decree of 21 December 1967, adopted pursuant toRoyal Decree No 50, provides:

An employed person who was in employment in the period between 1 January 1938and 31 December 1944 shall be deemed to have continued to be an employedperson under the same conditions as regards duration throughout the periodbetween the date on which his employment ceased and 31 December 1945; thispresumption may be rebutted only for periods of employment in respect of whichthe person concerned can claim a pension under another Belgian scheme, with theexception of the scheme for self-employed persons, or under a scheme of a foreigncountry.

9.

    The presumption thus laid down is called 'the [statutory] war years presumption‘.

10.

    The provisions of Article 32 of the Royal Decree of 21 December 1967 wererepealed by Article 50(1)(1) of the Royal Decree of 4 December 1990 (MoniteurBelge of 20 December 1990), but remained applicable to pensions which, like MrPlatbrood's pension, actually became payable before 1 January 1991.

The main proceedings

11.

    Mr Platbrood, who was born in 1922, worked as an employed person in Belgiumin 1941 and 1942. He was deported and forced to work at Luchenwalde, Germany,from 29 March 1943 to 30 April 1945. He then completed his military service from3 December 1945 to 3 December 1946 before working, from 1 October 1947, in thepublic sector. The years of work in the public sector are not, however, the subject-matter of the main proceedings.

12.

    By decision of 30 September 1986, the ONP awarded Mr Platbrood, with effectfrom 1 July 1986, a retirement pension payable under the scheme for employedpersons calculated on the basis of an employment record covering the years 1941to 1946. In order to calculate that pension, the ONP took account of (1) the years1941 and 1942 by reason of his work in Belgium which had involved payment ofcontributions; (2) the years 1943, 1944 and 1945, pursuant to Article 32(1) of the

Royal Decree of 21 December 1967 establishing the war years presumption; and(3) the year 1946, having regard to the military service completed from 3 December1945 to 3 December 1946.

13.

    On 4 May 1994, following German reunification in 1990, Mr Platbrood lodged anapplication at the Landesversicherungsanstalt Rheinprovinz (Regional InsuranceOffice for Rhine Province), Düsseldorf, for a retirement pension covering theperiod from 29 March 1943 to 30 April 1945. That institution awarded him thepension with effect from 1 January 1992.

14.

    That decision led the ONP to recalculate Mr Platbrood's Belgian pension. Bydecision of 31 July 1995, the ONP granted Mr Platbrood a retirement pensionpayable by the Kingdom of Belgium with effect from 1 January 1992 on the basisof an employment record covering the years 1941, 1942, 1945 and 1946, the years1943 and 1944 giving rise to entitlement to a German pension. The ONP thereforeconsidered that the war years presumption was rebutted since Mr Platbrood hadbeen awarded a retirement pension under a foreign scheme covering the years ofdeportation and forced labour.

15.

    The ONP also calculated the pension rights under domestic law on the basis of anemployment record of 6/45ths; that calculation, required by Article 46(1) ofRegulation No 1408/71, resulted in the award of an additional pension to offset thedifference between the total of the two pensions received (4/45 plus 2/45) and theamount of a Belgian pension awardable for the same years (6/45).

16.

    On 30 January 1996, referring to Regulations No 1408/71 and 1248/92, MrPlatbrood claimed, with effect from 1 June 1992, the retention of the full Germanpension in addition to his Belgian pension, since he had worked for a Germanemployer for at least one year during the Second World War. That application wasrejected by the ONP on 16 April 1996.

17.

    Mr Platbrood challenged the ONP's decision before the Tribunal du Travail, Mons.Relying on Community law and the case-law of the Court of Justice he sought toshow that the reduction in his Belgian pension was incompatible with the rules onprovisions against overlapping in Regulation No 1408/71 and, in particular, withArticle 46b(2) of that regulation.

18.

    In those circumstances, the Tribunal du Travail, Mons, decided to stay proceedingsand to refer the following question to the Court for a preliminary ruling:

'Do the new provisions of Regulation (EEC) No 1248/92 require Belgium to granta beneficiary the right to a retirement pension calculated on the basis of anemployment record comprising in part years in the course of which presumed ornotional contributions must be taken into account — unless the person concernedcan claim a pension under a foreign scheme for those periods of employment(principle that there is a legal presumption in respect of the war years, as laid downby Article 32(1) of the Royal Decree of 21 December 1967 establishing generalrules for the retirement and survival pension scheme for employed persons priorto its repeal by the Royal Decree of 4 December 1990 — although it remainsapplicable to retirement pensions which became payable for the first time before1 January 1991) in circumstances where, specifically, the person concerned hasbeen awarded a retirement pension payable by Germany on the basis of actualcontributions corresponding to the presumed or notional contributions which maybe taken into account under the Belgian legislation?

In other words, must the new provisions of Regulation (EEC) No 1248/92 beinterpreted as authorising overlapping, without reduction, suspension or withdrawal,of a retirement pension awarded to a Belgian national, payable by Belgium andcalculated on the basis of presumed or notional contributions by virtue of theprinciple that there is a legal presumption in respect of the war years, as laid downby Article 32(1) of the Royal Decree of 21 December 1967 (subject to thereservation contained in that provision whereby the person concerned may not,

however, claim a pension under a foreign scheme for those periods of employment)with a retirement pension payable by Germany calculated on the basis of actualcontributions covering the same period or, on the contrary, does the exceptionprovided for by Article 32(1) of the Royal Decree of 21 December 1967 (no legalpresumption in respect of the war years if the person concerned can claim apension under a foreign scheme for those periods of employment) not constitutea provision on reduction, suspension or withdrawal declared inapplicable by thenew provisions of Regulation No 1248/92?‘

The question referred for a preliminary ruling

19.

    By its question the national court asks in substance whether a national provisionsuch as that at issue in the main proceedings under which an employed person who,between 1 January 1938 and 31 December 1944, was in employment is deemed tohave continued to be an employed person under the same conditions as regardsduration throughout the period between the date on which his employment ceasedand 31 December 1945, but under which that presumption is not applicable toperiods of employment for which the person concerned receives a pension undera scheme of another State, constitutes a provision on reduction, suspension orwithdrawal within the meaning of Regulation No 1408/71.

20.

    The ONP and the Commission take the view that that question should be answeredin the negative.

21.

    The ONP contends, in particular, that a distinction should be drawn betweenprovisions on reduction of a benefit and provisions conferring entitlement to thatbenefit. In order for there to be a reduction of a benefit in a case of overlappingwith a foreign benefit, it is necessary first to determine that benefit in accordancewith the national legislation applicable.

22.

    The national provision at issue in the main proceedings governs the way in whichevidence is to be adduced by means of a rebuttable presumption. In order to avoidthe award of two pensions in respect of the same period, that presumption isdeemed to be rebutted if the award of a pension payable by another State inrespect of the same period shows that the person concerned did not work inBelgium under the employed persons' scheme during the said period.

23.

    The Commission adds that the present case is clearly different from Case 58/84ONPTS v Romano [1985] ECR 1679 and ONP v Conti, cited above, in which it hadsupported the argument that the national provisions then at issue had to be treatedas provisions on reduction. The first case concerned the question whether anational provision which reduced the number of notional years credited, which wererequired in order to reach a full employment record of 30 years, by the number ofyears in respect of which the person concerned could claim a pension in anotherMember State constituted a provision on reduction. The second case concerned thecharacterisation of a provision which reduced a supplement to the partial pensionof a mineworker who had worked for at least 25 years as an undergroundmineworker because of other pensions drawn under another Belgian or foreignscheme.

24.

    According to the Commission, the 'periods‘ of notional years or of supplementcould not be localised in time. There was no question, therefore, of doubleapplication of two sets of legislation during 'the same period‘. By contrast, in thepresent case, there is a presumption which is related to a specific period (theSecond World War) and is rebuttable by the production of evidence. The provisionat issue here in the main proceedings does not, therefore, according to theCommission, constitute a provision on reduction.

25.

    It should be recalled first of all that the Court has held that a national rule mustbe regarded as a provision for reduction of benefit if the calculation which itrequires to be made has the effect of reducing the amount of pension which the

person concerned may claim because he receives a benefit from another MemberState (ONP v Conti, paragraph 25).

26.

    In that same judgment, the Court stressed that provisions for reduction of benefitscannot be rendered exempt from the conditions and limits of application laid downin Regulation No 1408/71 by categorising them as rules for calculating the amountpayable (ONP v Conti, paragraph 24).

27.

    Such national provisions cannot, furthermore, be exempt from the conditions andlimits of application laid down in Regulation No 1408/71 by categorising them asrules of evidence.

28.

    However, in the present case, the war years presumption is part of legislationwhose purpose is to reduce the damaging effects of the Second World War on thepension rights of workers subject to Belgian legislation.

29.

    To that end, an employed person who was in employment in Belgium during theperiod between 1 January 1938 and 31 December 1944 is deemed to havecontinued to be an employed person under the same conditions as regards durationthroughout the period between the date on which his employment ceased and 31December 1945.

30.

    That presumption operates, in particular, in favour of a worker who, having workedin Belgium, is not in a position to provide evidence of having paid sufficientcontributions during all the years at issue because of the destruction or loss ofdocuments and of a person who, as a result of the events of the War, could notcontinue his employment record in Belgium.

31.

    It should be emphasised that the presumption at issue is a presumption thatcontributions were paid into the Belgian scheme under consideration and not a

presumption of employment in Belgium. In a case such as that of the applicant inthe main proceedings, the presumption could not therefore be rebutted by themere fact that he had worked in Germany for a certain time. On the other hand,once a pension had been awarded to him in respect of the periods of employmentin Germany, the considerations which led the Belgian legislature to lay down thewar years presumption for his benefit ceased to be valid for him.

32.

    In those circumstances, a national provision which in such a situation provides thatthe war years presumption is not applicable to periods of employment in respectof which the person concerned receives a pension under another social securityscheme cannot be categorised as a provision on 'reduction‘ within the meaning ofRegulation No 1408/71. Such a provision merely gives due effect to the fact that,for all or part of the periods of employment in respect of which the personconcerned is not in a position to prove payment of sufficient social securitycontributions under the Belgian scheme in question, he is already receiving apension under another scheme.

33.

    The answer to the question must therefore be that a national provision such as thatat issue in the main proceedings under which an employed person who, between1 January 1938 and 31 December 1944, was in employment is deemed to havecontinued to be an employed person under the same conditions as regards durationthroughout the period between the date on which his employment ceased and 31December 1945, but under which that presumption is not applicable to periods ofemployment for which the person concerned receives a pension under a scheme ofanother State, does not constitute a provision on reduction, suspension orwithdrawal within the meaning of Regulation No 1408/71.

Costs

The costs incurred by the Commission, which has submitted observations to theCourt, are not recoverable. Since these proceedings are, for the parties to the mainproceedings, a step in the proceedings pending before the national court, thedecision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Tribunal du Travail, Mons, byjudgment of 21 April 1998, hereby rules:

A national provision such as that at issue in the main proceedings under which anemployed person who, between 1 January 1938 and 31 December 1944, was inemployment is deemed to have continued to be an employed person under thesame conditions as regards duration throughout the period between the date onwhich his employment ceased and 31 December 1945, but under which thatpresumption is not applicable to periods of employment for which the personconcerned receives a pension under a scheme of another State, does not constitutea provision on reduction, suspension or withdrawal within the meaning of CouncilRegulation (EEC) No 1408/71 of 14 June 1971 on the application of social securityschemes to employed persons, to self-employed persons and to members of theirfamilies moving within the Community, as amended by Council Regulation (EEC)No 1248/92 of 30 April 1992.

EdwardMoitinho de Almeida Sevón         Puissochet                            Wathelet

Delivered in open court in Luxembourg on 18 November 1999.

R. Grass

D.A.O. Edward

Registrar

President of the Fifth Chamber

1: Language of the case: French.