C-307/96
ECLI:EU:C:1997:297
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BALDONE v INAMI
OPINION OF ADVOCATE GENERAL ELMER delivered on 12 June 1997 *
Introduction laid down the detailed rules for awarding and calculating those benefits.
1. In this case the Tribunal du Travail, Brus- 3. Regulation N o 1408/71 was amended by sels, seeks the Court's interpretation of the Council Regulation (EEC) N o 1248/92 of transitional provisions contained in a regu- 30 April 1992 2 ('the amending Regulation') lation amending Regulation (EEC) N o which, in particular, amended the wording of 1408/71 of the Council on the application of Article 46 and thereby the method of calcu- social security schemes to employed persons, lating benefit payments. In addition, the to self-employed persons and to members of amending Regulation contains the following their families moving within the Commu- transitional provision: nity 1 ('Regulation N o 1408/71'), with regard to the calculation of invalidity benefits.
'Article 95a The relevant Community rules
Transitional provisions for application of [the amending Regulation] 2. Regulation N o 1408/71 lays down rules concerning, inter alia, the rights to benefits of employed or self-employed persons who have been subject, in succession or alter- nately, to the legislation of two or more Member States. Article 46 of the Regulation 1. Under [the amending Regulation], no right shall be acquired for a period prior to 1 June 1992. * Original language: Danish. 1 — OJ, English Special Edition 1971 (II), p. 416) in the version of Council Regulation (EEC) N o 2001/83 of 2 June 1983, OJ 1983 L 230, p. 6. 2 — OJ 1992 L 136, p. 7.
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2. All insurance periods or periods of resi- have not been forfeited or not barred by dence completed under the legislation of a limitation shall have effect from the date on Member State before 1 June 1992 shall be which the application was submitted, except taken into consideration for the determina- where more favourable provisions of the leg- tion of rights to benefits pursuant to [the islation of any Member State apply.' amending Regulation].
Proceedings in the main action and ques- tions referred 3. Subject to paragraph 1, a right shall be acquired under [the amending Regulation] even though relating to a contingency which materialized prior to 1 June 1992.
4. Salvatore Baldone became incapacitated for work in Belgium on 4 May 1970 and has been entided to invalidity benefits since 4 May 1971. He was previously insured suc- 4. The rights of a person to whom a pension cessively in Italy (169 weeks), the Federal was awarded prior to 1 June 1992 may, on Republic of Germany (30 months) and Bel- the application of the person concerned, be gium (2 366 days). reviewed, taking into account the provisions of [the amending Regulation].
5. His rights to benefits were examined by 5. If an application referred to in paragraph Italy, Germany and Belgium under Article 4 is submitted within two years from 1 June 40 of Regulation N o 1408/71 and were 1992, the rights acquired under [the amend- determined in accordance with Article 46 of ing Regulation] shall have effect from that that Regulation. The Institut National date, and the provisions of the legislation of d'Assurance Maladie-Invalidité ('INAMI') any Member State concerning the forfeiture gave a decision on the amount of the Belgian or limitation of rights may not be invoked benefit on 13 September 1985. against the persons concerned.
6. On 1 October 1985 Mr Baldone brought 6. If the application referred to in paragraph an action before the Tribunal du Travail, 4 is submitted after the expiry of the two- Brussels, against INAMI, claiming that the year period after 1 June 1992, rights which benefit had not been correctly calculated.
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However, the court stayed judgment pending the view that the decision of 4 May 1994 is a decision by the Court of Justice in a similar the first correct decision determining case. By judgment of 18 February 1993 3 the Mr Baldone's right to benefits so that, pursu- Court ruled that the Belgian authorities had ant to Article 95a(l) to (3) of the amending not calculated correctly the invalidity ben- Regulation, the new rules of calculation must efits granted to migrant workers. be applied.
9. The Tribunal du Travail, Brussels, accord- ingly decided, by order of 5 September 1996, 7. Following that judgment, on 4 May 1994 to stay the proceedings and to refer the fol- INAMI annulled the decision originally lowing questions to the Court: notified and rectified the amount of Mr Bal- done's invalidity benefit to comply with the judgment. The result of the recalculation in accordance with the rules of Regulation N o 1408/71 which had hitherto applied was favourable to Mr Baldone, by comparison with the amount previously paid. However, ' 1 . Are paragraphs 1 to 3 of Article 95a of INAMI granted him the increased benefit [the amending Regulation] to be interpreted only for the period up to 31 May 1992. For as meaning that if an institution of a Member the period after that date, the benefit was cal- State after 31 May 1992 calculates the rights culated in accordance with the new rules in of an invalid under the regulations, it must the amending Regulation. apply, for the period ending on 31 May 1992, the provisions of Regulation N o 1408/71 (in particular Article 46) ... and, from 1 June 1992, the provisions of [the amending Regu- lation] ?
8. O n 30 May 1994 Mr Baldone brought a second action against INAMI before the Tri- bunal du Travail, Brussels. He considers that 2. If so, are the provisions applicable in the the decision of 4 May 1994 cannot be regarded as the first decision to grant a right same way: to benefits so that, under Article 95a(4) to (6) of the amending Regulation, the competent institution cannot on its own initiative reduce his benefit. INAMI, however, takes (a) if the decision in question is the first cal- culation of the insured person's rights 3 — Case C-193/92 Bogana [1993] ECR 1-755. under the regulations by that institution;
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(b) if a first decision made before 1 June applicable in determining the rights of a per- 1992 did not correctly calculate the son entitled to invalidity benefits where the rights under the regulations and has to person concerned was awarded the right to be annulled and replaced after 1 June such benefits before 31 May 1992 in accord- 1992 by a rectification decision, the latter ance with the rules of Regulation N o thus being the first to calculate the rights 1408/71 which were applicable at that time, under the regulation correctly; but where the benefits were rectified by the decision in question after 31 May 1992 as a result of the Court's finding that the original calculation was incorrect.
(c) if a first decision made before 1 June 1992 and otherwise correct has to be annulled and replaced after 1 June 1992 because another institution concerned has made a rectification decision? Procedure before the Court
3. If the first two questions are answered in the affirmative, may the recalculation of the 11. Mr Baldone contends that where, benefit on 1 June 1992 have the consequence because of an earlier mistake in the calcula- of reducing the benefit due, compared with tion of benefits, a competent institution is the amount due on 31 May 1992 on the basis obliged to review, after 1 June 1992, a work- of the provisions applicable until that date, er's rights to invalidity benefits previously given that Regulation N o 1248/92 did not awarded on the basis of the rules of Regu- amend or supplement the provisions of lation N o 1408/71, that institution cannot, Articles 118 to 119a of Regulation N o for the period after 1 June 1992, reduce, on 574/72 4 to make them applicable on 1 June its own initiative and on the basis of the new 1992?' rules of the amending Regulation, the benefit previously awarded.
10. With these questions, the national court in reality seeks to ascertain which rules are
12. INAMI and the Belgian Government 4 — The national court is no doubt referring to Council Regu- point out that where, after 31 May 1992, a lation (EEC) N o 574/72, as amended on 2 June 1983, laying competent institution of a Member State down the procedure for implementing Regulation (EEC) N o 1408/71 on the application of social security schemes t o determines the rights of a person entitled to employed persons, to self-employed persons and to mem- bers of their families moving within the Community ( O J invalidity benefits, it must, with regard to 1983 L 230, p. 6). the period up to 31 May 1992, apply the
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provisions of Regulation N o 1408/71 which at a date after the entry into force of the were previously in force and, with regard to amending Regulation. the period subsequent to 1 June 1992, apply the new provisions of the amending Regu- lation. This applies even if a decision previ- ously taken is rescinded after 1 June 1992 and replaced by a rectification decision.
15. On the other hand, Article 95a(4) to (6) of the amending Regulation relate to rights already awarded prior to the entry into force 13. The Commission takes the view that the of the amending Regulation. Under para- rules in question in Article 95a(l) to (3), of graph 4, benefits awarded under the rules the amending Regulation do not apply to previously in force are not affected by the benefits awarded before 1 June 1992 and that amended rules, save where the persons con- the rule in Article 95a(4) means that a com- cerned themselves apply for a review of ben- petent institution cannot on its own initiative efits awarded under the rules previously in review rights to benefits awarded before that force. Such application must be submitted date. within two years. If the application is sub- mitted after the expiry of that period, rights are to have effect from the date on which the application was submitted, provided that the rights have not been forfeited or barred b y limitation by that time (paragraphs 5 and 6). Observations
14. The first three paragraphs of Article 95a of the amending Regulation provide that no 16. Therefore the question whether a par- right to benefits can be acquired under the ticular situation is governed by paragraphs 1 amending Regulation for the period prior to to 3 or paragraphs 4 to 6 of Article 95a of the entry into force of the Regulation (para- the amending Regulation depends on the graph 1), but that rights in the course of date when the authorities of a Member State being acquired before that date in respect of took a decision on whether a former worker insurance periods or periods of residence has a right to benefits or not. Where, prior to (paragraph 2) or of a contingency which the entry into force of Article 95a of the materializes (paragraph 3) must be taken into amending Regulation, a decision was taken consideration for the determination of rights to the effect that the person concerned has to benefits pursuant to the amending Regu- such a right, paragraphs 4 to 6 apply. In this lation. Therefore these rules relate to benefits connection it must be deemed immaterial which are to be awarded for the first time that the authorities of the Member State
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subsequently rectify their assessment of the 18. Consequently it follows from Article 95a right to benefits. For example, it is possible that paragraphs 1 to 3 envisage rights to be to imagine a situation where the authorities awarded after 1 June 1992, whereas para- of a Member State found, before the amend- graphs 4 to 6 envisage rights awarded before ing Regulation came into force, that a former that date. It appears, from the information worker was entitled to benefits, but that the supplied by the national court in the present amount of those benefits at the time in ques- case, that Mr Baldone was awarded a right to tion was nil. If circumstances were to change benefits by INAMI's decision of 13 Decem- in the future, assessment of his entitlement ber 1985, but that the calculation (assess- could also undergo a change, since the right ment) was incorrect. If a question concerning to benefits continues to exist. the calculation of the benefit in accordance with the rules applying up to that date had not been pending, and the benefit had been correctly determined from the beginning, the Belgian authorities would not have had occa- sion to re-examine the benefit paid to Mr Baldone after 1 June 1992 because there had been no change in his situation. The benefit •which had been awarded would sim- ply have had to be continued. In such a case, there would be no doubt that the situation fell within Article 95a(4) to (6).
17. Under Article 95a(4) of the amending Regulation, the person concerned must him- self submit an application for review of the benefits previously awarded in order for the new calculation rules of the amending Regu- lation to apply to rights awarded before it came into force. It is clear that the new method of calculation may entail an increase or a reduction in the benefits previously paid. The rules for calculating benefits for 19. In my opinion, the circumstance that at a •workers who have previously been later date — nine full years after Mr Baldone employed in more than one Member State brought an action concerning the calculation are very complicated under both Article 46 of his benefits — after 1 June 1992, when the of Regulation N o 1408/71 and Article 46 of amending Regulation came into force, the the amending Regulation. Therefore the per- Belgian authorities realized that the original son concerned can hardly be expected to calculation of the rights to benefit awarded master those rules himself and to know to the person concerned was wrong, cannot whether a calculation under the new rules alter the fact that the rights were awarded as will produce a favourable outcome. In my early as 1985. INAMI's decision of 4 May opinion, therefore, a person with a right to 1994 only meant that the Belgian authorities benefits must be able to submit a conditional awarded Mr Baldone a benefit calculated in application for review, which means that he accordance with what he had always been would ask for the benefit previously paid to entitled to under Community law. The be reassessed only if the amount of the ben- decision did not alter the fact that he had efit is higher under the new calculation rules. been awarded a right to benefit with effect
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from 1985. The fact that the Belgian authori- payable under the new [Regulation, shall ties originally miscalculated the benefit and not be reduced (paragraph 15). waited nine years before rectifying the error must not have an adverse effect for the per- son concerned.
The aim of the provision is to give a person to whom benefits were awarded under the old regulation the right to request the review, in his favour, of such benefits (paragraph 16). 20. I therefore consider that the present case falls within the transitional provision of Article 95a(4), because the award to Mr Bal- done of rights to benefits dates back to (well) before 1 June 1992. As stated above, in a case of that kind only the person entitled to the It would be contrary to this aim to acknowl- benefits can apply for a review of the ben- edge that the competent institution has the efits awarded. O n the other hand, the above- power to review such benefits of its own mentioned provision does not confer power motion and to the detriment of the person on the competent authority to reduce on its concerned (paragraph 17). own initiative a benefit already granted under the rules •which previously applied.
The reply to be given to the ... question referred is, therefore, that Article 94(5), must 21. In accordance with the above, in a judg- be interpreted as meaning that the competent ment of 13 October 1976, 5 in a case con- institution of a Member State is not entitled cerning the interpretation of Article 94(5) of to substitute itself for an insured person with Regulation N o 1408/71, which was in identi- regard to the review of the rights which that cal terms to Article 95a(4) the Court stated person acquired before the [Regulation as follows: came into force' (paragraph 18).
22. For the sake of completeness, I should 'The transitional provisions of the [Regu- mention that, in the course of the proceed- lation, including the abovementioned para- ings, the parties referred to Article 51 of graph, are based on the principle that ben- Regulation N o 1408/71. However, I consider efits awarded under [the rules previously in that it is unnecessary to examine this provi- force], which are more favourable than those sion in detail since, according to the infor- mation available, there has been no change in the Belgian rules relating to the determina- 5 — Case 32/76 Saieva [1976] ECR 1523. tion or calculation of benefits.
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Conclusion
23. In view of the foregoing, I propose that the Court reply as follows to the ques- tions from the national court:
The rules contained in Article 95a(l) to (3) of Council Regulation (EEC) N o 1248/92 of 30 April 1992 amending Regulation (EEC) N o 1408/71 of the Council on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving within the Commu- nity and Regulation (EEC) N o 574/72 laying down the procedure for implement- ing Regulation (EEC) N o 1408/71 must be interpreted as not applying where the right to a benefit was awarded before the abovementioned Regulation came into force, notwithstanding the fact that the decision to that effect was subsequently rescinded and replaced by another decision in order to rectify an incorrect calcula- tion of the amount of the benefits under the rules previously applicable.
The rule in Article 95a(4) of Regulation N o 1248/92 precludes the authorities of a Member State from reducing on their own initiative benefits granted before the Regulation came into force.
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