C-83/87
ECLI:EU:C:1988:146
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OPINION OF MR DARMON — CASE 83/87
OPINION OF M R ADVOCATE GENERAL DARMON delivered o n 9 M a r c h 1988 *
Mr President, (b) From 1 August 1963, a Belgian inva- Members of the Court, lidity pension at the married rate, subject to a deduction pursuant to the national rules against overlapping benefits. 1. This reference for a preliminary ruling raises the question of the temporal application of the Community regulations on social security for migrant workers. In substance the Court is asked to state Under Article 94 (5) of Regulation N o whether, where pension rights were initially 1408/71, migrant workers who had been awarded before 1 October 1972, the date on awarded a pension prior to the entry into which the repeal of Regulations Nos 3 and force of the regulation were entitled to 4 1 took effect, the provisions of those regu- apply for the review of their rights taking lations continue to apply in respect of the into account the new provisions. Mr Viva recalculation of pension rights after that did not avail himself of this possibility. date following an alteration in the personal Following the death of his wife on 2 circumstances of the recipient or whether, November 1983, the Fund, on its own on the contrary, Regulations Nos 1408/71 2 initiative, altered his Belgian pension rights and 574/72 3 apply in such a situation. by applying the 'single' rate. On the ground that he had made no application pursuant to Article 94 (5), the Fund considered that Regulations Nos 3 and 4 continued to 2. The dispute in the main proceedings is apply. Mr Viva does not contest the between Mario Viva, a migrant worker of application of the 'single' rate, but submits Italian nationality, and the Fonds national that the Fund was bound, with regard to the de retraite des ouvriers mineurs (National question of overlapping benefits, to apply Pension Fund for Miners — hereinafter the rules which were in force when, on its referred to as 'the Fund'). Mr Viva was in own initiative, it reassessed his rights receipt of the following pensions: following the alteration in his personal circumstances, namely the provisions of Regulations Nos 1408/71 and 574/72.
(a) From 1 June 1963, an Iulian invalidity pension calculated on a proportional basis pursuant to Regulations Nos 3 and 4; 3. As the national court noted, whereas, as regards the temporal application of these * Translated from the French. regulations, the possibility of an application 1 — Journal officiel 30, 16.12.1958, pp. 561 and 597. Journal by the insured person for a review of his officiel, 20.4.1963, p. 1314. 2 — Regulation N o 1408/71 of 14 June 1971 on the application rights was expressly envisaged in Article 94 of social security schemes to employed persons and their (5), that of a review on the initiative of the families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416). competent institution following an alteration 3 — Council Regulation N o 574/72 of 21 March 1972 fixing in the personal circumstances of the person the procedure for implementing Regulation (EEC) N o in receipt of the pension was not expressly 1408/71 (Official Journal, English Special Edition 1972 (I), p. 159). provided for. However, the two regulations
VIVA v FNROM
which have been in force since 1972 and the 8. The position adopted by the Fund, rules to be found in previous decisions of namely that the provisions of Regulations the Court provide the basis for a reply to all Nos 3 and 4, which were repealed with the questions submitted by the national effect from 1 October 1972, should be court. applied to alterations after that date affecting the situation of a person in receipt of an invalidity pension, is in fact based on 4. As the Commission pointed out, there is, a questionable use of a contrario reasoning. in the first place, a striking similarity between the facts of this case and those of the case which gave rise to the first Sinatra judgment. 4
5. In that decision, the Court ruled that 9. The Fund took the view that despite the Article 46 of Regulation N o 1408/71 express repeal (Article 100 of Regulation applied where a Belgian miner's invalidity No 1408/71) of Regulations Nos 3 and 4, pension awarded before the repeal of Regu- those regulations continued to govern lations Nos 3 and 4 and the entry into force pensions awarded before their repeal, in of Regulation No 1408/71 and calculated at accordance with Article 94 (5) of Regu- that time at the 'married' rate provided for lation No 1408/71, which provides that 'the under Belgian law, was altered, after the rights of a person to whom a pension was entry into force of that regulation, by the awarded prior to 1 October 1972 . . . may, application of the 'single' rate provided for on the application of the person concerned, in Belgian law, because the pensioner's wife be reviewed, taking into account the engaged in a gainful occupation. provisions of this regulation'. If an express application from the person in receipt of a pension awarded prior to 1 October 1972 is 6. The question now before the Court is required for the review of that pension to be whether Article 46 of Regulation N o carried out in accordance with the 1408/71 must apply where a miner's inva- provisions of Regulation N o 1408/71, that lidity pension awarded before the repeal of means, according to the Fund, that where Regulations Nos 3 and 4 and the entry into no such application is made an alteration force of Regulation No 1408/71 and affecting the pension cannot entail the calculated at the 'married' rate is altered, application of Regulation N o 1408/71, and after the entry into force of that regulation, that Regulations Nos 3 and 4, which were by the application of the 'single' rate as a in force when the pension was awarded, result of the death of the pensioner's wife. must apply.
7. This comparison of the facts of the two cases might be sufficient in itself to justify the conclusion that in the abovementioned Sinatra judgment the Court resolved by implication the question which it has been 10. This construction seeks to make a rule asked to determine in this case. Legal of an exception. Article 94 (5) gives a analysis of the position strengthens that person in receipt of a pension awarded conclusion. before 1 October 1972 the right to obtain, on demand, the review of those rights in 4 — Judgment of 2 February 1982 in Case 7/81 [1982] ECR 137. accordance with the provisions of Regu¬
OPINION OF MR DARMON — CASE 83/87
lation N o 1408/71, in other words in 12. On the basis of Article 94 (1) of Regu- accordance with provisions which in lation N o 1408/71, Article 118 (1) of its principle do not apply to him. Article 94 (1) implementing regulation, Regulation N o of Regulation N o 1408/71 provides that 'no 574/72, provided, where a contingency right shall be acquired under this regulation arose before 1 October 1972 and the claim in respect of a period prior to 1 October for a pension had not yet been awarded 1972'. This is the express application by the before that date, for a double award in Community legislature of the principle laid accordance with the provisions of: down in the Court's judgment of 5 May 1977 in Jansen v Landesversicherungsanstalt Rheinprovinz, 5 according to which a new provision of a Community regulation — in (a) Regulation No 3 or agreements in force that case Article 10 (2) of Regulation N o between the Member States concerned, 1408/71 — cannot be extended to facts for the period prior to 1 October 1972; which occurred outside the period covered by the regulation. Article 94 (5) creates an exception from the principle laid down in Article 94 (1) by making it possible to rely (b) Regulation No 1408/71, for the period on the provisions of the new regulation commencing 1 October 1972. merely by submitting an application, irres- pective of the occurrence of any objective fact subsequent to its entry into force. On the other hand, alterations to the pension as These specific provisions do not apply to the a result of events subsequent to the date of case before the Court, where a pension the entry into force of Regulation N o actually awarded before 1 October 1972 is 1408/71 give rise to the application of that affected by an event altering the family regulation's provisions in the normal way, in circumstances of the recipient after 1 accordance with the 'generally accepted October 1972. However, for the purposes of principle' expressly cited in the Court's legal analysis, it may be noted that they do judgment of 15 February 1978 in Bauche v not seek in principle to extend beyond 1 Administration des douanes, 6 according to October 1972 the effects of the old regu- which new rules apply, 'save as otherwise lation, since such a 'survival' is envisaged provided, to the future effects of situations only by way of derogation, in the last which arose under the previous law'. subparagraph of paragraph 1 of Article 118, in order to enable the recipient of the pension to retain the benefit of the most favourable calculation.
11. Neither examination of specifically transitional Community provisions other 13. However, once again it is above all the than those already considered, in the Court's judgment in Sinatra, cited above, relevant sphere, nor study of the Court's which shows clearly that where a situation judgment in Sinatra leads to the conclusion which gave rise to the award of a pension that in this case the normal principles before the entry into force of Regulation governing the temporal application of the No 1408/71 changes, the provisions of that law should be discarded. regulation apply. The Court found that the application under a decision of June 1976 of 5 — Case 104/76 [1977] ECR 829. the 'single' rate to an invalidity pension 6 — Case 96/77 [1978] ECR 383. calculated originally at the 'married' rate by
VIVA v FNROM
virtue of the decision of 10 May 1971 comparison between the national rules and awarding the pension, with effect from 1 the system of aggregation and appor- April 1971, required 'a recalculation in tionment in order to determine which is the accordance with the provisions of Article 46 most favourable, that the argument arose of Regulation No 1408/71'. before the national court which led it to refer a question to the Court in this case. 14. It was precisely on the question whether Accordingly, in replying to the question Mr Viva could, following the alteration in referred to it by the cour de travail, Mons, his personal circumstances, claim the benefit the Court should be guided by the same of the provisions of Article 46 of Regulation principles which were the basis for its No 1408/71, which provides for a decision in the first Sinatra judgment.
15. In the light of these observations, the Court should, in my view, rule as follows :
A recalculation in accordance with the provisions of Article 46 of Regulation N o 1408/71 is necessary where an invalidity pension awarded by a Member State prior to the date of the entry into force of Regulation N o 1408/71 at the 'married' rate is, as a result of an event subsequent to that date affecting the individual circumstances of its recipient, altered by application of the 'single' rate.