C-394/93

ALONSO-PÉREZ ν BUNDESANSTALT FÜR ARBEIT

OPINION OF ADVOCATE GENERAL LÉGER delivered on 13 December 1994

1. Can a transitional provision of Regulation 5. Article 73(2), which excluded the alloca­ (EEC) N o 1408/71 be applied to a subse­ tion of French family benefits to workers quent regulation amending it? ' subject to French legislation as regards the members of their family residing in the terri­ tory of another Member State, was declared invalid by the judgment of 15 January 1986 in Pinna I. 2 That invalidity ab initio 3 was applied ex nunc except as regards work­ ers who, before the date of that judgment, 2. That, essentially, is the main question had commenced legal proceedings or made referred to this Court by the Landessozial­ an equivalent claim. gericht Rheinland-Pfalz.

3. Article 73 of Regulation No 1408/71, to 6. By a second Pinna judgment delivered on which these proceedings relate, has given rise 2 March 1989," the Court held that until to several decisions of this Court to which such time as the Council adopted new rules reference should be made by way of prelim­ which were in conformity with Article 51 of inary. the Treaty, the fact that Article 73(2) of Regulation No 1408/71 had been declared invalid meant that the system for the pay­ ment of family benefits laid down in Article 73(1) of that regulation was of general appli­ cation.

4. Pursuant to Article 73(1), an unemployed person is entitled, for members of his family residing in the territory of another Member State, to the family benefits provided for by the legislation of his State of employment as though they were residing in the territory of 7. Article 60(1) of the Act of Accession the latter State. of Spain and Portugal to the Commu-

An employed or self-employed person sub- ject to the legislation of a Member State shall

11. In its judgment in Yáñez-Campoy, 9a 5 — Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and adjustments to the case which was not covered ratione temporis Treaties (OJ 1985 L 302, p. 23). by Regulation N o 3427/89, 10the Court held 6 — That article was 'deleted' by Article 1(4) of Regulation N o (EEC) N o 3427/89 amending Regulation (EEC) N o that that uniform solution had entered into 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to mem- bers of their families moving within the Community and Regulation (EEC) N o 574/72 laying down the procedure for implementing Regulation (EEC) N o 1408/71 (OJ 1989 L 331, p. 1). It provided: 'Before 1 January 1973 the Council 8 — See Decision N o 145 of 27 June 1990 concerning the pay- shall, on a proposal from the Commission, re-examine the ment of arrears of family benefits due to self-employed per- whole problem of payment of family benefits to members of sons pursuant to Articles 73 and 74 of Regulation (EEC) families who are not residing in the territory of the compe- 1408/71 of the Administrative Commission of the Euro- tent State, in order to reach a uniform solution for all Mem- pean Communities on social security for migrant workers ber States'. See the consolidated text of Regulation (EEC) (OJ 1991 L 235, p. 1). 1408/71 (OJ 1983 L 230, p. 48). 9 — Cited above, note 3. 7 — Cited above, note 6. 10 — See paragraph 7 of the judgment.

13. A question remains upon which the lat- ter regulation is silent: within what period must an insured person lodge his application 18. That regulation contains no provision for the payment of arrears? After what limiting the period within which an insured period does his right of action become time- person may take proceedings to secure the barred?

12 — See the observations of the plaintiff in the main proceed- ings, page 1. 11 — Cited above, note 2. 13 — In response to an application lodged in April 1989.

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payment of arrears of family benefits as from 21. That question falls into two subques- the date of acquisition of his new rights. tions, between which a clear distinction must be drawn.

19. The plaintiff in the main proceedings 22. The first concerns the retroactive effect maintains that that lacuna should be supplied of the application for arrears of family bene- by the analogous application of Article 94(6) fits. It was dealt with by Regulation N o of Regulation N o 1408/71, with the result 3427/89 and by the judgment in Yáñez- that that period would be two years. The Campoy which fixed the earliest date for the starting point of that period would be retroactive effect of applications for arrears 16 November 1989, the date of publication as 15 January 1986, the date on which the of Regulation No 3427/89, failing which uniform solution provided for in Article 13 November 1990, the date on which the 99 of Regulation N o 1408/71 became appli- judgment in Yáñez-Campoy was delivered. cable. 14

26. Article 94(4) and (6) of Regulation No 27. By the combined application of Article 1408/71 provide: 2 16 and Article 60 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties 17 and Article 2(2) of the Council Decision of 11 June 1985, 18 Regulation No 1408/71 partially entered into '(4) Any benefit which has not been force in Spanish territory on 1 January 1986. awarded or which has been suspended Article 94(6) was among the provisions that by reason of the nationality or place of came into force. residence of the person concerned shall, on the application of the person con- cerned, be awarded or resumed with effect from 1 October 1972 or the date of its application in the territory of the Member State concerned provided that the rights previously determined have 28. Applications to enforce rights becoming not given rise to a lump sum payment. available under the regulation had to be sub- mitted within two years from 1 October 1972 for the original Member States of the Community. Similarly, such applications had to be submitted within two years after 1 Jan- uary 1986 in the case of the Kingdom of Spain.

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30. We have seen (1) that Article 73 of that 35. In those circumstances, is it possible to regulation grants employed and self- accept application by analogy of Article employed persons the right to family bene- 94(6), whereby the period of two years runs fits from the State of employment for the not from 15 January 1986 but from the date members of their families residing on the ter- on which it actually became possible for ritory of another Member State, and (2) that, Spanish nationals to enforce their rights? in the case of Spanish workers employed in a Member State other than Spain, the members of whose families reside in Spain, that right does not arise until the date of adoption of a uniform solution, namely 15 January 1986.

36. For the sake of clarity, it is appropriate to distinguish between the conditions for the application of that provision to Community nationals other than Spaniards, on the one 31. The entry into force of Article 73 within hand, and, on the other, to Spaniards. Spanish territory was therefore delayed until that date.

A — The application of Article 94(2) of Regulation No 1408/71 to Community 32. We should conclude from this that, with nationals other than Spaniards effect from that date, Spanish nationals had a period of two years in which to bring pro- ceedings for the payment of arrears of family benefits.

37. For such persons, the application for payment of arrears of family benefits is based not on Article 73 of Regulation No 33. That would certainly have been the case 1408/71, as initially drafted, but on Article if the Spanish workers had, on that same day, 1 of Regulation No 3427/89 which amended been aware of the new rights conferred on it. them on 15 January 1986.

40. Furthermore, even if Article 94(6) of Regulation N o 1408/71 could be combined with Regulation No 3427/89, and invoked with that regulation, it is not applicable by analogy here. (2) that regulation contains no provisions similar to Article 94(4) and (6) for the simple reason that it does not change the substantive rights of insured persons who could already rely upon Article 73.

41. Ratione materiae, Article 94(6) provides for a period of two years for an application to be lodged for review of pensions deter­ mined before 1 October 1972 (Article 94(5)) or for payment of the benefits claimable by 43. In order for the system to be consistent, insured persons as from 1 October therefore, there can be no transitional provi-

19 — Sec, to that effect, paragraph 16 of the German Govern­ 20 — Sec the judgments in Pinuti Ī and /ƒ mentioned in para- ment's observations. graphs 5 ana 6 hereof.

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sion in Regulation N o 3427/89 similar to 46. On 1 January 1989, on which date the Article 94(6). transitional period laid down in Article 60 of the Act of Accession expired, Spaniards became entitled to call for the application of Article 73 without thereby having any right to claim any retroactive effect as from 15 Jan- uary 1986. Β —· The application of Article 94(6) of Regulation No 1408/71 to Spaniards

45. In my opinion, it cannot be contended that Spanish nationals could (and should) have inferred from Pinna I that a uniform solution had existed since that date. The 48. Since Spanish nationals were never enti- Pinna II judgment was needed to settle that tled to rely on Article 73 with retroactive question. Moreover, pursuant to the now effect to 15 January 1986 before the entry repealed Article 99 of Regulation N o into force of Regulation N o 3427/89, 23 that 1408/71, that solution had to take the form regulation creates new rights for their bene- of a measure adopted by the Council. It was fit. Is it not therefore legitimate to grant the thus not until the entry into force of Regu- benefit, by analogy, of the transitional provi- lation N o 3427/89 (which refers to that arti- sions which were available to the other cle 21) that they knew for certain that they Community nationals since the date on had been entitled to rely on Article 73 since which Regulation N o 1408/71 entered into 15 January 1986. 22 force or the date of the Pinna I judgment?

21 — First recital in the preamble. 23 — By virtue of Article 60(1) of the Act of Accession, Article 22 — It will be remembered that the Yáñez-Campoy judgment is 73 could be relied on as from 1 January 1989 (see paragraph based solely on the Pinna I judgment and not on Regu- 46 above). Spanish nationals nevertheless were unaware, lation N o 3427/89, because the latter was adopted in the until the adoption of Regulation N o 3427/89, that that arti- course of those proceedings. cle applied with retroactive effect from 15 January 1986.

52. By then, Article 94(6) had ceased to be 57. All Community nationals other than directly applicable since 1 January 1988, that those working in France and Spain enjoyed is to say two years after the entry into force family benefits from the State of employ- of Regulation No 1408/71 on Spanish terri- ment as from the date of entry into force of tory. Regulation No 1408/71 and had a period of two years as from that date to bring pro- ceedings for payment of arrears, without any possibility of being frustrated by national limitation periods. In the case of French fam- ily benefits, a period of two years for bring- 53. It would have been applicable if Span- ing proceedings for the payment of arrears iards had known, since 15 January 1986, that was fixed by Decision No 143 of the Admin- they could invoke Article 73. istrative Commission of the European Com-

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munities on social security for migrant under Regulation (EEC) No 3427/89 shall be workers as from 1 April 1990. 24 acquired and the provisions of the legislation of any Member State relating to the lapse or barring of the rights may not be applied to the persons concerned.'

58. Similarly, Spanish nationals must be able to bring proceedings to secure payment of 60. There is, it seems to me, a twofold basis arrears of family benefits within a period of for this possibility of, so to speak, 'reviving' two years as from the day on which the ret- Article 94(6) of Regulation N o 1408/71. roactive applicability, of Article 73, as from 15 January 1986, was brought to their notice, namely on 16 November 1986. Otherwise, Spanish nationals would be vested with a right which it was impossible to exercise. 61. In order to ensure the effectiveness of retroactivity, the insured person must have a sufficient period in which to take action.

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ALONSO-PÉREZ ν BUNDESANSTALT FÜR ARBEIT

64. In conclusion, I suggest that the Court rule as follows:

Community law, and in particular Article 94(6) of Regulation (EEC) N o 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, precludes the application of a rule of national law, such as that contained in para- graph 9(2) of the Bundeskindergeldgesetz, which limits to six months the retroac- tive effect of an application for family benefits lodged by a worker established in Germany whose children reside in Spanish territory, where the person concerned based his application on Council Regulation (EEC) N o 3427/89 of 30 October 1989 amending Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) N o 574/72 laying down the procedure for implementing Regulation (EEC) 1408/71, where he did so before 16 November 1991, where the right to such benefits was awarded to him as from 15 January 1986 and where he had notice of such retroactive effect only by virtue of Regulation (EEC) N o 3427/89.

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