1 BY AN ORDER OF 22 MAY 1981 , WHICH WAS RECEIVED AT THE COURT ON 3 JUNE 1981 , THE BRUGES DIVISION OF THE ARBEIDSHOF ( LABOUR COURT ), GHENT , REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF CERTAIN PROVISIONS 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 THAT QUESTION WAS RAISED IN THE COURSE OF PROCEEDINGS BETWEEN MRS SAELENS , NEE VLAEMINCK , AND THE RIJKSDIENST VOOR WERKNEMERSPENSIOENEN ( NATIONAL PENSIONS OFFICE FOR EMPLOYED PERSONS , HEREINAFTER REFERRED TO AS THE ' ' BELGIAN INSTITUTION ' ' ).
3 MRS SAELENS WAS EMPLOYED IN BELGIUM FROM 1926 TO 1929 AND FROM 1950 TO 1970 , AND IN FRANCE FROM 1931 TO 1936 . HER DECEASED HUSBAND WAS EMPLOYED IN BELGIUM FROM 1926 TO 1929 AND FROM 1940 TO 1942 , AND AS A FRONTIER WORKER IN FRANCE FROM 1930 TO 1939 .
4 IN 1971 THE BELGIAN INSTITUTION GRANTED MRS SAELENS A RETIREMENT PENSION OF /, ACQUIRED AT THE RATE OF / PER ANNUM , CORRESPONDING TO HER 25 YEARS OF EMPLOYMENT IN BELGIUM . THE SAME YEAR , THE CAISSE REGIONALE D ' ASSURANCE MALADIE DU NORD DE LA FRANCE ( REGIONAL SICKNESS INSURANCE FUND OF NORTHERN FRANCE , HEREINAFTER REFERRED TO AS THE ' ' FRENCH INSTITUTION ' ' ) LIKEWISE GRANTED HER A RETIREMENT PENSION ON THE BASIS OF HER PERIOD OF EMPLOYMENT IN FRANCE .
5 IN 1971 THE BELGIAN INSTITUTION ALSO GRANTED MRS SAELENS A SURVIVOR ' S PENSION OF / ON THE BASIS OF THE 17 YEARS OF EMPLOYMENT WHICH HER HUSBAND HAD COMPLETED BOTH IN BELGIUM AND IN FRANCE . THE LATTER PENSION WAS GRANTED TO HER PURSUANT TO ARTICLE 18 ( 6 ) OF BELGIAN ROYAL DECREE NO 50 OF 24 OCTOBER 1967 ON RETIREMENT AND SURVIVOR ' S PENSIONS FOR WORKERS , WHICH PROVIDES , AS REGARDS EMPLOYMENT AS A FRONTIER OR SEASONAL WORKER IN A NEIGHBOURING COUNTRY , THAT THE WIDOW OF THE WORKER MAY OBTAIN A SURVIVOR ' S PENSION EQUAL TO THE DIFFERENCE BETWEEN THE AMOUNT OF THE SURVIVOR ' S PENSION WHICH SHE WOULD RECEIVE IF THAT ACTIVITY HAD BEEN PERFORMED IN BELGIUM AND THE PENSION WHICH IS RECEIVED IN RESPECT OF THE SAME ACTIVITY UNDER THE LEGISLATION OF THE COUNTRY OF EMPLOYMENT . ARTICLE 18 ( 6 ) FURTHER STATES THAT THAT PENSION REPRESENTS A ' ' MINIMUM PENSION ' ' BUT , FOR THE PURPOSES OF ARTICLE 50 OF REGULATION NO 1408/71 , NO ACCOUNT IS TO BE TAKEN OF THE FOREIGN PENSION IN DETERMINING THAT MINIMUM PENSION .
6 IT APPEARS FROM THE EVIDENCE BEFORE THE COURT , AND IN PARTICULAR FROM THE INFORMATION SUPPLIED BY THE BELGIAN INSTITUTION DURING THE COURSE OF THE PROCEDURE , THAT THE BELGIAN INSTITUION CALCULATED THE SURVIVOR ' S PENSION BY ALSO TAKING INTO CONSIDERATION THE 10 YEARS OF EMPLOYMENT COMPLETED BY MR SAELENS AS A FRONTIER WORKER IN FRANCE ON THE GROUND THAT NO RIGHT TO A SURVIVOR ' S PENSION HAD BEEN ACQUIRED IN THAT MEMBER STATE . THE AMOUNT OF THAT PENSION WAS HOWEVER LIMITED , PURSUANT TO THE RULE AGAINST THE OVERLAPPING OF BENEFITS CONTAINED IN ARTICLE 52 OF THE BELGIAN ROYAL DECREE OF 21 DECEMBER 1967 LAYING DOWN GENERAL RULES ON THE RETIREMENT AND SURVIVOR ' S PENSION SCHEMES FOR EMPLOYED WORKERS . BY VIRTUE OF THAT PROVISION A SURVIVOR ' S PENSION MAY OVERLAP WITH ONE OR MORE RETIREMENT PENSIONS ONLY UP TO AN AMOUNT EQUAL TO 110 % OF THE AMOUNT OF THE SURVIVOR ' S PENSION .
7 IN 1976 THE FRENCH INSTITUTION GRANTED MRS SAELENS A PROPORTIONAL SURVIVOR ' S PENSION , PAYABLE UNDER ARTICLE 46 OF REGULATION NO 1408/71 , ON ACCOUNT OF MR SAELENS ' PERIOD OF EMPLOYMENT IN FRANCE . THAT PENSION WAS , HOWEVER , REDUCED TO NIL , IN APPLICATION OF THE RULES AGAINST THE OVERLAPPING OF PERSONAL OLD-AGE BENEFITS AND SURVIVOR ' S BENEFITS LAID DOWN BY FRENCH LEGISLATION .
8 THE ACQUISITION OF THE RIGHT TO RECEIVE A SURVIVOR ' S PENSION IN FRANCE , EVEN THOUGH THE PENSION WAS REDUCED TO NIL , PROMPTED THE BELGIAN INSTITUTION TO REVIEW THE BELGIAN SURVIVOR ' S PENSION . BY A DECISION OF 11 JANUARY 1977 THE BELGIAN INSTITUTION GRANTED MRS SAELENS A SURVIVOR ' S PENSION CORRESPONDING TO THE FRACTION /, THAT IS TO SAY , ON THE BASIS OF MR SAELENS ' SEVEN YEARS OF EMPLOYMENT IN BELGIUM TO THE EXCLUSION OF THE 10 YEARS OF EMPLOYMENT IN FRANCE . THAT PENSION CONSTITUTES A PROPORTIONAL PENSION CALCULATED IN ACCORDANCE WITH ARTICLE 46 OF REGULATION NO 1408/71 , IN WHICH THEREFORE THE ADDITIONAL AMOUNT OF /, CALCULATED IN ACCORDANCE WITH ARTICLE 18 ( 6 ) OF ROYAL DECREE NO 50 , IS NO LONGER INCLUDED , BUT WHICH , ON THE OTHER HAND , IS NOT REDUCED IN ACCORDANCE WITH THE RULE AGAINST THE OVERLAPPING OF BENEFITS CONTAINED IN ARTICLE 52 OF THE ROYAL DECREE OF 21 DECEMBER 1967 . ACCORDING TO THE INFORMATION GIVEN BY THE BELGIAN INSTITUTION , THE PROPORTIONAL PENSION WAS PAID SINCE IT WAS HIGHER THAN THE PENSION WHICH WOULD HAVE BEEN PAYABLE UNDER BELGIAN LAW ALONE . THAT PENSION WAS CONSEQUENTLY HIGHER THAN THE SURVIVOR ' S PENSION WHICH THE CLAIMANT RECEIVED BEFORE THE CONTESTED DECISION WAS ADOPTED .
9 MRS SAELENS APPLIED TO THE ARBEIDSRECHTBANK ( LABOUR TRIBUNAL , BRUGES ), FOR AN ORDER SETTING ASIDE THE BELGIAN INSTITUTION ' S DECISION OF 11 JANUARY 1977 . SUCH AN ORDER WAS GRANTED ON THE GROUND THAT THERE WAS AN ABSENCE OF REASONING SUSCEPTIBLE OF JUDICIAL REVIEW . THE BELGIAN INSTITUTION APPEALED TO THE ARBEIDSHOF ( LABOUR COURT ), GHENT .
10 CONSIDERING THAT A RULING BY THE COURT OF JUSTICE WAS NECESSARY TO ENABLE IT TO GIVE JUDGMENT , THE BRUGES DIVISION OF THE ARBEIDSHOF , GHENT , REFERRED TO THE COURT THE QUESTION :
' ' . . . WHETHER PURSUANT TO REGULATION NO 1408/71 THE RULES AGAINST THE OVERLAPPING OF BENEFITS MAY ONCE MORE BE APPLIED IN BELGIUM TO A SURVIVOR ' S PENSION AWARDED IN FRANCE TO A BELGIAN BUT NOT MADE PAYABLE . ' '
THE ARBEIDSHOF POINTED OUT THAT :
' ' THE CLAIMANT WAS AWARDED A SURVIVOR ' S PENSION OF FF 1 418 FROM 1 JANUARY 1973 IN FRANCE BUT BY VIRTUE OF ARTICLE 12 OF REGULATION ( EEC ) NO 1408/71 AND ARTICLE 7 OF REGULATION ( EEC ) NO 574/72 IT WAS DECLARED NOT TO BE PAYABLE ; THE RIJKSDIENST VOOR WERKNEMERSPENSIOENEN AWARDED THE CLAIMANT AN UNCHANGED RETIREMENT PENSION BUT THE SURVIVOR ' S PENSION WAS REDUCED BY THE FRENCH SURVIVOR ' S PENSION PURSUANT TO THE RULE AGAINST THE OVERLAPPING OF BENEFITS CONTAINED IN THE AFORESAID EEC REGULATIONS . ' '
11 IT IS CLEAR FROM THE FOREGOING THAT THE SURVIVOR ' S PENSION GRANTED TO MRS SAELENS BY THE DECISION OF THE BELGIAN INSTITUTION OF 11 JANUARY 1977 RESULTS NOT FROM THE APPLICATION OF A RULE AGAINST THE OVERLAPPING OF BENEFITS , DEPENDENT UPON THE ACQUISITION OF A RIGHT TO A SURVIVOR ' S PENSION IN FRANCE , BUT CONSTITUTES A PROPORTIONAL PENSION BASED ON THE APPLICATION , WHICH IN ITSELF IS CORRECT , OF ARTICLE 46 OF REGULATION NO 1408/71 . CONTRARY TO THE ASSUMPTION MADE BY THE NATIONAL COURT , THERE WAS NOT THEREFORE DUAL APPLICATION OF THE RULES AGAINST THE OVERLAPPING OF BENEFITS .
12 IT IS ALSO CLEAR FROM THE FOREGOING CONSIDERATIONS THAT MRS SAELENS ' SURVIVOR ' S PENSION WAS REDUCED PROPORTIONATELY PURSUANT TO ARTICLE 46 OF REGULATION NO 1408/71 , SINCE THE PENSION THUS CALCULATED WAS HIGHER THAN THE PENSION WHICH WOULD HAVE BEEN RECEIVED UNDER BELGIAN LEGISLATION ALONE , THAT IS TO SAY INCREASED BY THE ADDITIONAL AMOUNT OF /, PURSUANT TO ARTICLE 18 ( 6 ) OF ROYAL DECREE NO 50 , BUT THEN REDUCED IN APPLICATION OF THE RULE AGAINST THE OVERLAPPING OF BENEFITS CONTAINED IN ARTICLE 52 OF THE ROYAL DECREE OF 21 DECEMBER 1967 .
13 IN VIEW OF THAT FACTUAL SITUATION THE PRELIMINARY QUESTION APPEARS TO LACK ANY PURPOSE . IT IS NOT POSSIBLE TO GLEAN FROM IT THE FACTORS NECESSARY FOR AN INTERPRETATION OF COMMUNITY LAW WHICH THE NATIONAL COURT MIGHT USEFULLY APPLY IN ORDER TO RESOLVE , IN ACCORDANCE WITH THAT LAW , THE DISPUTE BEFORE IT .
14 IT FOLLOWS THAT IN THE LIGHT OF THE FACTUAL AND LEGAL CIRCUMSTANCES OF THE MAIN PROCEEDINGS NO QUESTION OF COMMUNITY LAW IS RAISED IN THE PRESENT CASE , SO THAT THE COURT IS UNABLE TO GIVE A RULING , IN THE CONTEXT OF PROCEEDINGS UNDER ARTICLE 177 , ON THE QUESTION REFERRED TO IT BY THE ARBEIDSHOF , GHENT .
15 IN THOSE CIRCUMSTANCES NO REPLY NEED BE GIVEN TO THE QUESTION REFERRED BY THE NATIONAL COURT .
COSTS
16 THE COSTS INCURRED BY THE ITALIAN AND FRENCH GOVERNMENTS AND BY THE COMMISSION , 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 ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE ARBEIDSHOF , GHENT , BY ORDER OF 22 MAY 1981 , HEREBY RULES :
NO REPLY NEED BE GIVEN TO THE QUESTION REFERRED BY THE NATIONAL COURT .
