C-52/99

CAMAROTTO AND VIGNONE

OPINION OF ADVOCATE GENERAL ALBER delivered on 29 June 2000 1

I — Introduction those who had already brought proceedings prior to the change in the legal situation.

2. The present case concerns the interpre- tation and application of the transitional provisions laid down in Article 95a of 1. In each of the main actions (which have Regulation (EEC) No 1408/71 — as been pending since 1987) the dispute a m e n d e d by R e g u l a t i o n (EEC) initially related to the amount of the No 1248/92 — on the application of pensions in issue on account of reduction social security schemes to employed per- clauses in the form of national rules sons, to self-employed persons and to preventing overlapping. However, Arti- members of their families moving within cle 46 of Regulation No 1408/71, 2which the Community.4 is relevant to the case in this regard, was amended by Regulation No 1248/92, 3 which entered into force on 1 June 1992, with the result that the parties now assume, according to the order for reference, that the plaintiffs have a right to a pension II — Legal framework without reduction. However, the primary point of dispute is now the date from which the plaintiffs have enjoyed that right, because this may depend on the date on 3. The transitional rule contained in Arti- which the application was made. The cle 95a of Regulation No 1408/71 reads as referring court asks whether such an appli- follows: cation for an increased pension may be made only by recipients of pensions where the decision granting the pension was final at the time of the entry into force of the amendment introduced in 1992 or also by '1. Under Regulation (EEC) No 1248/92 no right shall be acquired for a period prior to 1 June 1992. 1 — Original language: German. 2 — Consolidated version of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed 4 — Regulation (EEC) No 1408/71 or the Council of 14 June persons and to members of their families moving within the 1971, as amended by Council Regulation No 1248/92 of Community (OJ 1992 C .325, p. 1). 30 April 1992, consolidated version of the regulation 3 —OJ 1992 L 136, p. 7. (OJ 1992 C 325, p. 1).

(1) Case C-52/99 (Camarotto) 4. The rights of a person to whom a pension was awarded prior to 1 June 1992 may, on the application of the person concerned, be reviewed, taking into account the provisions of Regulation 4. In 1984 Mr Sutto — the husband, who (EEC) No 1248/92. died in 1994, of Mrs Camarotto, who has succeeded him as a party to the proceed- ings — was notified of a decision granting a Belgian old-age pension on the pro rata basis of a period of insurance of 37/45. Mr Sutto objected to that decision and claimed a Belgian pension of 42/45 with no reduc- tion. He was successful at first instance. 5. If an application referred to in paragraph The Office National des Pensions (National 4 is submitted within two years from Pension Office), the defendant and appel- 1 June 1992 the rights acquired under lant in the main proceedings (hereinafter Regulation (EEC) No 1248/92 shall have 'the ONP'), lodged an appeal. The pro- effect from that date, and the provisions of ceedings, which primarily concerned the the legislation of any Member State con- application of national rules against over- cerning the forfeiture or limitation of rights lapping, were stayed pending the outcome may not be invoked against the persons of other test cases. The proceedings were concerned. resumed on 5 January 1996.

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7. Lastly, there is a letter from the ONP, dated 22 September 1994, which was sent to its own legal representative, but which 9. In each case the national court referred was also received via an indirect route by identical questions to the Court of Justice: the pension claimant, in which the pension was calculated on the basis of the rules applicable from 1 June 1992. The increased pension thus calculated was not paid out, however, since the ONP took the view that an application was required for that pur- '1. Does Article 95a of Regulation pose. However, the plaintiff and respondent No 1408/71, as amended by Regula- was not made aware of that requirement by tion No 1248/92, laying down transi- the ONP. She objects that she was misled tional provisions for application of by the letter. Regulation No 1248/92, refer solely

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to recipients of pensions where the 1 1 . l i l e VAUIUL Ul J J u s t i c e auuicsacu a. ųuca- decision granting the pension was final tion to the parties in advance regarding the at the time of the entry into force of the significance of the letter of 22 September amendment, or does it relate also to 1994, which was to be answered at the recipients of pensions who before the hearing. entry into force of the amendments introduced by the new regulation had already brought proceedings before a national court seeking to obtain pre­ cisely the right to the pension by contesting the application of the national rules against overlapping, a final decision in those proceedings not V — Arguments of the parties yet having been given at the time of the entry into force of the new provisions?

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person entitled to make the claim. The legal (2) The plaintiffs and respondents criterion is therefore the 'award' 6 of the pension, which means the process of mak- ing the pension payable — that is to say the calculation of the amount to be paid and the payment itself -— irrespective of 14. The plaintiffs and respondents argue whether or not the administrative act that, in order to answer the questions awarding it is final. referred for a preliminary ruling, consid- eration must be given both to Community law and to national law.

6 — The French text of Article 95a(4) of the regulation refers to la liquidation d'une pension', whilst the German text reads 'feststellen der Rente and the Englishtext states 'a pension 16. In the present case the parties did was awarded'. submit the necessary application, although

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not within the two-year period. 7In the — it is for the national legal order of each context of the applicability of Articles 807 Member State to lay down the proce- and 808, the court may attach retroactive dural rules governing actions designed effect to that application. Articles 807 and to ensure the protection of the rights 808 of the Judicial Code have moreover which individuals acquire through the been the subject of several judgments by the direct effect of Community law, pro- Cour de Cassation. In a judgment of vided that such rules are not less 22 May 1978, the Cour de Cassation found favourable than those governing simi- as follows: In a legal dispute concerning lar domestic actions and are not framed rights based on law, the court hearing the in such a way as to render impossible in case may not only decide on rights existing practice the exercise of rights conferred at the time when the application was by Community law; 9 submitted, but may also take into consid- eration circumstances arising after the contested administrative decision, if they are capable of increasing the rights of the insured person. 8

— Community law precludes the applica- tion of a national rule under which the retroactive effect of a claim based on Article 119 of the EC Treaty (Arti- cles 117 to 120 of the EC Treaty have 17. In the present case, having regard to been replaced by Articles 136 EC to Article 95a(4), it should also be observed 143 EC) is limited to two years; 10 that, since proceedings are pending before a court, reference should be made, strictly speaking, not to a 'review' (révision de droits), but to a 'determination of rights' (fixation de droits). The preclusive period does not therefore come into play.

19. It is proposed by the plaintiffs and review, it is for the national legislature to respondents that the following answer be lay down the procedural measures for the given to the request for a preliminary exercise of the right. This must clearly be ruling: done without rendering the exercise of the rights impossible in practice or excessively difficult. Thus, the Member States' proce- dural rules could provide that the applica- tion for review may also be made to the court before which the dispute has been brought. Article 95a of Regulation No 1408/71 must be interpreted as meaning that the two-year period referred to in Arti- cle 95a(5) is not applicable in the case of persons who have brought proceedings and who are able, on the basis of the national legal order, to claim the retroactive applic- ability to 1 June 1992 of the rules of Regulation No 1248/92 which are favour- able to them. 22. With regard to the two-year period provided for in Article 95a(5) and (6), the Commission points out that, whilst the legal order of the Member State concerned cannot provide for a shorter period, it can certainly allow a longer period.

(3) Commission

20. In the view of the Commission, the present case is covered by Article 95a(4). That provision affords a right of review to all those to whom a pension award decision 23. Article 95a should be understood, as is is addressed under Regulation No 1408/71 apparent from the Vetroni judgment 12 and prior to its amendment by Regulation the subsequent case-law, as meaning that No 1248/92, including those who had the employee concerned is to be granted the already brought proceedings prior to the most favourable conditions. Since the ben- entry into force of the amending regulation. eficiary is accorded the sole right of initia- tive, one is bound to question, under the circumstances of the present case, the effectiveness of the rules. At all events, the national court is free to apply the most favourable rules in each case.

'Whereas, to protect migrant workers and their survivors against an excessively strin- gent application of the national provisions concerning reduction, suspension or with- drawal, it is necessary to include a provi- sion in Regulation (EEC) No 1408/71 lay- ing down strict rules for the application of these provisions'.

2. It is for the national legislature to lay down the procedural conditions for the application for review and, in particu- 26. It must be assumed that application of lar, to provide whether the application the new provisions may be more favourable must be made to the competent social for those entitled to a pension. However, security institution or to the court this consequence is by no means inevitable. before which the dispute has been brought, without rendering the exercise of the right to a review impossible in 13 — See the first recital in the preamble to Regulation practice or excessively difficult. No 1248/92.

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'when [a] ... benefit has been awarded prior to the entry into force of the amending regulation, Article 95a(1) to (3) of Regula- tion No 1408/71, as amended, is not applicable. 'The purpose of Article 95a(4) is to enable the person concerned to ask for the benefits awarded under the unamended regulation to be reviewed where it appears that the rules of the amending regulation are more favourable to him and to benefit from the benefits awarded in accordance with the Such situations fall instead under Arti- provisions of the unamended regulation cle 95a(4) to (6) thereof.' 15 being maintained where they appear more advantageous than those resulting from the amending regulation. 14 — Case C-307/96 Baldone v Institut National d'Assurance Maladie-Invalidité [1997] ECR I-5123. 15 — Case C-307/96 Baldone (cited in footnote 14, paragraphs 16 — Case C-307/96 Baldone (cited in footnote 14, paragraph 11 and 12). 13); emphasis added.

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30. It does not necessarily follow from those words that there is an absolute requirement to submit an application under Article 95a(4) of the regulation, but merely that there is an express prohibition on 33. However, since the Court, in the Bal- dispensing with the requirement to submit done judgment, 18 took as its basis the date an application to the detriment of the when the rights were acquired, cases in person concerned. which rights have not been finally deter- mined may also be subsumed under Arti- cle 95a(4). This interpretation is also pre- ferable in order to prevent the pension recipient from being deprived of his right of initiative, something to which strict atten- 31. The question could now be asked tion must be paid, particularly in cases whether, in accordance with the wording where there may be detrimental effects. and purpose of Article 95a(4), an applica- tion is essential, inasmuch as the periods prescribed and procedural consequences laid down in Article 95a(5) and (6) are as such linked to the requirement of the submission of an application.

34. On the other hand, it should be borne in mind that Article 95a(4) to (6) is designed to apply to the normal case of 32. The German text of the provision refers pensions awarded prior to 1 June 1992. In to 'feststellen' (determination) of rights. interpreting the provisions, account should This could certainly be understood to mean be taken of the nature of pending proceed-

17 — Case C-307/96 Baldone (cited in footnote 14, paragraphs 18 — Case C-307/96 Baldone (cited in footnote 14, paragraph 15 and 16); emphasis added. 13).

37. The principle of most favourable treat- 35. In this connection, it must first be ment is clearly enshrined in that wording. assumed that the applicable substantive In this respect, it is not necessary to have provisions are provisions of a regulation recourse to the case-law of the Court of which — as the Commission's representa- Justice 19 establishing that principle with tive expressly pointed out at the hearing — regard to the procedural enforcement of are, by their nature, directly applicable. It is rights conferred by Community law, since therefore perfectly proper not to apply the that rule of favourable treatment is preclusive period provided for in Arti- expressly incorporated into Article 95a(6). cle 95a(5) in pending proceedings. The two-year preclusive period laid down for reasons of legal certainty is appropriate, where the pension files are closed. During that period, it is possible to check whether the rules applicable from 1 June 1992 38. Against the background of the case-law might result in a more favourable calcula- of the Court, under which the most favour- tion and, if so, an application for review able treatment principle must be applied, in can be submitted. both substantive20 and procedural law,21 to legal situations in which legal positions conferred by Community law are in dis- pute, it is even conceivable that an ex officio review may be conducted in pending proceedings if and in so far as it is favourable to the person entitled to the pension. 36. The fact that the Community legislator certainly did not intend the two-year period during which an application for review may be made with retroactive effect to be an absolute preclusive period is confirmed by Article 95a(6). That provision states that if the application is submitted after 39. However, that is not important in the the expiry of the two-year period after present case, since, according to the sub- 1 June 1992, rights are to have effect from the date on which the application was submitted. This provision is, first of all, an 19 — See the judgments cited in footnote 5. expression of the principle of legal cer- 20 — C ^ e 24/75 Petrom (cited in footnote 5) and Case C-208/90 hnmott v Minister fur Social Welfare and tainty. Secondly, it provides a suitable Attorney General [1991] ECR I-4269. means of maintaining the financial balance 2 1 — C a s e 33/76 Rewe v Lamlinrtscbaftskammer [1976] ECR 1989, Case 199/82 Amministrazione Saarland delle between the insurance schemes in question. finanze dello Stalo v San Giorgio [1983] LCR 3595 and Case C-246/96 Magornan anil Cunningham (cited in Nevertheless, this rule applies only 'except footnote 9).

40. In the light of the specific facts of the 42. If the ONP made the effort to carry out present case, the question also arises whe- a recalculation and to send that calculation ther it may not have been an abuse of the to the person entitled, the question arises law by the ONP to take as the formal basis whether it was required, as part of a duty to the date when the application was submit- take due care and to provide assistance, to inform the persons entitled to the pensions, before the expiry of the two-year period 22 — See point 16 above. and with reference to that period, that they 23 — The Cour de Cassation ruled: 'Saisi d'un litige ayant pour might be entitled to apply for a review. In objet des droits résultants (de la loi concernant les allocations aux handicapés) ... (le juge du travail) a le the case of Mrs Camarotto, this question is pouvoir non seulement de statuer sur les droits des handicapés existants lors de l'introduction de la demande particularly relevant since, in all likelihood, qu'il a formé par l'application de ladite loi, mais doit tenir a review of the pension took place in any compte des circonstances survenues postérieurement à la décision administrative rendue lorsque ces éléments, ..., case in the light of the death of her husband sont de nature à augmenter ces droits.' Quoted from Journal des Tribunaux du Travail (cited in footnote 8). on 28 January 1994, given that, as a result

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43. Ultimately, however, these considera- tions are not important in the present case since, according to the approach adopted above, the application for a review of the pension submitted in the judicial proceed- ings may be recognised to have retroactive effect pursuant to the Member States' procedural rules, with the result that the increased survivor's pension can be claimed as from 1 June 1992. 45. The second question referred by the national court should therefore be answered to the effect that Community law does not prescribe any form for an application under Article 95a(4). It is thus for the legal order of the Member State 44. For the purposes of responding to the concerned to lay down rules prescribing the request for a preliminary ruling, it must be conditions and procedure for obtaining a presumed, with regard to the first question, review. It is therefore perfectly possible for that, in accordance with the judgment in the application to be made not only to the Baldone, 24 the transitional rules contained competent social security institution, but in Article 95a of Regulation No 1408/71 also — in accordance with the applicable are applicable in principle to all rights rules of procedure — to the court before acquired before 1 June 1992. Article 95a which the dispute has been brought. In the therefore applies not only to recipients of case of pending proceedings, account is to pensions where the decision granting the be taken of this particular situation in pension was final at the time of the entry interpreting Article 95a(5) and (6). The into force of the amendment, but also to two-year period is not in that respect to be regarded as absolute, with the result that an application submitted after the expiry of 24 — Case C-307/96 Billdone (cited in footnote 14, paragraph that period can certainly also have retro- 13). active effect.

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