61969J0068

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1 . MEASURES ADOPTED BY COMMUNITY INSTITUTIONS - AMENDMENT OF AN EARLIER PROVISION - SITUATIONS ARISING UNDER THE LATTER - FUTURE EFFECTS - APPLICATION OF THE AMENDING RULE

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - GERMAN LEGISLATION - APPLICATION TO PENSIONS FALLING DUE WITH EFFECT FROM 1 JANUARY 1964

( REGULATION NO 3, ANNEX G/I - B, ( 1 ) REGULATION EEC NO 130/63, ARTICLE 6 )

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - PENSIONS - AUTOMATIC REVIEW UNDER NATIONAL LAW - PERMISSIBILITY - PROCEDURES

( REGULATION NO 3, ARTICLE 53 )

1 . AMENDING LEGISLATION APPLIES, EXCEPT WHERE OTHERWISE PROVIDED, TO THE EFFCTS IN THE FUTURE OF SITUATIONS WHICH HAVE ARISEN UNDER THE LAW AS IT STOOD BEFORE AMENDMENT .

2 . THE PROCEDURE INTRODUCED BY PARAGRAPH ( 1 ) OF ANNEX G/I - B TO REGULATION NO 3 AS AMENDED BY ARTICLE 6 OF REGULATION EEC NO 130/63, APPLIES TO PENSIONS AND ARREARS OF PENSIONS WHICH HAVE FALLEN DUE AS FROM 1 JANUARY 1964, EVEN IF THESE PENSIONS ARE PAID IN RESPECT OF RISKS WHICH MATERIALIZED BEFORE THAT DATE .

3 . BOTH IN ITS NEW AND PREVIOUS VERSIONS REGULATION NO 3 PROVIDES FOR A REVIEW OF PENSIONS ONLY AT THE REQUEST OF THE PERSONS CONCERNED . THERE IS, HOWEVER, NOTHING IN COMMUNITY RULES TO PREVENT AN AUTOMATIC REVIEW UNDER NATIONAL LAW, IF ITS PROVISIONS ARE MORE FAVOURABLE TO INSURED PERSONS . IN SUCH CIRCUMSTANCES IT IS FOR THE NATIONAL LEGISLATIVE SYSTEM TO DETERMINE THE EFFECTS OF THIS MORE FAVOURABLE TREATMENT WITHOUT HOWEVER ADVERSELY AFFECTING THE RIGHTS WHICH THE INSURED PERSON DERIVES DIRECTLY FROM REGULATION NO 3 .

IN CASE 68/69

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT, KASSEL, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BUNDESKNAPPSCHAFT, BOCHUM,

AND

ELISABETH BROCK, 24, HARSEFELDER STRASSE, STADE,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF THE EEC OF 25 SEPTEMBER 1968 .

1 BY ORDER OF 30 OCTOBER 1969 THE BUNDESSOZIALGERICHT HAS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC TWO QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, AS AMENDED BY REGULATION NO 130/63 OF THE COUNCIL OF 18 DECEMBER 1963 .

THE FIRST QUESTION

2 THE COURT IS ASKED FIRST TO RULE WHETHER THE PROCEDURE SET FORTH IN PARAGRAPH ( 1 ) OF HEAD B OF PART I OF ANNEX G TO REGULATION NO 3, AS AMENDED BY ARTICLE 6 OF REGULATION NO 130/63, APPLIES TO PENSIONS PAID IN RESPECT OF RISKS WHICH MATERIALIZED BEFORE 1 JANUARY 1964, THE DATE WHEN THE AMENDED TEXT ENTERED INTO FORCE .

3 THE OBJECT OF THIS AMENDMENT IS TO ASSIMILATE TO THE CONTRIBUTIONS PAID UNDER GERMAN LAW AND TO AFFILIATION TO THE GERMAN PENSIONS INSURANCE SCHEME AFFILIATION AND CONTRIBUTION TO A PENSIONS INSURANCE SCHEME OF ANOTHER MEMBER STATE FOR THE PURPOSE OF DETERMINING WHETHER THE INSURED PERSON FULFILS THE MINIMUM REQUIREMENTS RELATING TO CONTRIBUTIONS AND AFFILIATION REQUIRED BY GERMAN LAW FOR TAKING INTO ACCOUNT " INTERRUPTED PERIODS " IN CALCULATING HIS PENSION .

4 ACCORDING TO PARAGRAPH ( 2 ) OF THE SAID ARTICLE 6 THIS AMENDMENT TOOK EFFECT ON 1 JANUARY 1964 .

5 THE ORDER FOR REFERENCE CALLS ATTENTION TO THE FACT THAT ACCORDING TO THE BUNDESKNAPPSCHAFT THE LAW APPLICABLE TO SOCIAL SECURITY BENEFITS IS GENERALLY THAT IN FORCE WHEN THE RISK MATERIALIZES AND THAT ALTHOUGH ARTICLE 53 OF REGULATION NO 3 MADE AN EXCEPTION TO THIS PRINCIPLE IN THE CASE OF THE NEW PROCEDURES INTRODUCED ON 1 JANUARY 1959 IT DOES NOT MAKE ANY SUCH EXCEPTION IN THE CASE OF LATER AMENDMENTS TO THIS REGULATION . THEREFORE, IT SAYS, PENSIONS IN RESPECT OF WHICH THE RISK MATERIALIZED BEFORE 1 JANUARY 1964 CANNOT FALL WITHIN THE PROVISIONS BROUGHT INTO FORCE ON THIS DATE AND CONTINUE, EVEN AS REGARD THE FUTURE, TO BE SUBJECT TO THE FORMER PROVISIONS .

6 UNDER ARTICLE 53 ( 3 ) OF REGULATION NO 3, " BENEFIT SHALL BE PAYABLE UNDER THIS REGULATION EVEN IF IT RELATES TO AN EVENT BEFORE THE DATE ON WHICH IT COMES INTO FORCE ". ON THE OTHER HAND UNDER PARAGRAPH ( 4 ) OF THAT ARTICLE THE RIGHTS OF PERSONS FOR WHOM A PENSION WAS CALCULATED BEFORE REGULATION NO 3 ENTERED INTO FORCE MAY BE REVIEWED AT THEIR REQUEST .

7 ALTHOUGH THESE PROVISIONS ORIGINALLY GOVERNED THE SITUATION EXISTING ON 1 JANUARY 1959, THE DATE WHEN THE REGULATION WAS BROUGHT INTO FORCE IN ITS ORIGINAL FORM, THEY ARE NEVERTHELESS GENERAL IN SCOPE SO THAT THEY ALSO APPLY TO THE AMENDED VERSION OF THAT REGULATION AND IN PARTICULAR TO ANNEX G, AS AMENDED BY REGULATION NO 130/63, WITH THE RESERVATION THAT THE DATE WHEN THEIR RULES TAKE EFFECT IS BROUGHT FORWARD TO 1 JANUARY 1964, THE DATE WHEN THAT AMENDMENT ENTERED INTO FORCE . THIS PROVISION IS IN FACT ONLY AN APPLICATION OF THE PRINCIPLE THAT AMENDING LEGISLATION APPLIES, EXCEPT WHERE OTHERWISE PROVIDED, TO THE EFFECTS IN THE FUTURE OF SITUATIONS WHICH HAVE ARISEN UNDER THE LAW AS IT STOOD BEFORE AMENDMENT .

8 AS REGULATION NO 130/63 DOES NOT DISTINGUISH BETWEEN PENSIONS IN RELATION TO WHICH THE RISK MATERIALIZED BEFORE 1 JANUARY 1964 AND THOSE IN RELATION TO WHICH IT MATERIALIZED AFTER THAT DATE, IT DOES NOT CONSTITUTE AN EXCEPTION TO THIS PRINCIPLE .

9 IT THEREFORE HAS TO BE ACCEPTED THAT THE NEW RULES TAKE EFFECT AS FROM 1 JANUARY 1964 FOR ALL PENSIONS WITHOUT DISTINCTION . THE ANSWER MUST THEREFORE BE THAT THE PROCEDURE INTRODUCED BY PARAGRAPH ( 1 ) ANNEX G/I - B TO REGULATION NO 3, AS AMENDED BY ARTICLE 6 OF REGULATION EEC NO 130/63, APPLIES TO PENSIONS AND ARREARS OF PENSION WHICH FELL DUE AS FROM 1 JANUARY 1964, EVEN IF THOSE PENSIONS ARE PAID IN RESPECT OF RISKS WHICH MATERIALIZED BEFORE THAT DATE .

THE SECOND QUESTION

10 SHOULD THE ANSWER TO THE FIRST QUESTION BE IN THE AFFIRMATIVE, THE BUNDESSOZIALGERICHT ASKS IN ADDITION WHETHER THE PENSIONS ARE TO BE REVIEWED AUTOMATICALLY OR ONLY AT THE REQUEST OF THE INDIVIDUAL CONCERNED AND WITH EFFECT FROM WHAT DATE .

11 UNDER ARTICLE 53 ( 4 ) OF REGULATION NO 3, " THE RIGHTS OF PERSONS FOR WHOM A PENSION WAS CALCULATED BEFORE THIS REGULATION CAME INTO FORCE MAY BE REVIEWED AT THEIR REQUEST ".

12 THIS PROVISION APPLIES TO CASES REFERRED TO IN ARTICLE 6 OF REGULATION NO 130/63 WHICH AMENDS ANNEX G/I - B AND GOVERNS THEREFORE THE REVIEW OF PENSIONS ARISING OUT OF THIS AMENDMENT . REGULATION NO 3 IN ITS NEW AND PREVIOUS VERSION THEREFORE PROVIDES FOR A REVIEW OF PENSIONS ONLY AT THE REQUEST OF THE PERSONS CONCERNED .

13 HOWEVER ARTICLE 53 DOES NOT PREVENT INSURED PERSONS FROM TAKING ADVANTAGE OF SOLUTIONS UNDER NATIONAL LEGISLATIVE SYSTEMS WHICH MAY BE MORE FAVOURABLE TO THEM . ON THE CONTRARY, PARAGRAPH ( 5 ) OF THAT ARTICLE SECURES, AT LEAST IN CERTAIN RESPECTS, THAT INSURED PERSONS MAY HAVE THE BENEFIT OF ANY SUCH MORE FAVOURABLE SOLUTIONS ARISING OUT OF NATIONAL LEGISLATIVE SYSTEMS . THERE IS THEREFORE NO OBJECTION TO AN AUTOMATIC REVIEW UNDER NATIONAL LAW .

14 FINALLY, IT IS APPARENT FROM ARTICLE 53 ( 4 ) AND ( 5 ) THAT A REVIEW AT THE REQUEST OF THE INSURED PERSON RELATES BACK TO 1 JANUARY 1964, PROVIDED THAT THE REQUEST HAS BEEN SUBMITTED WITHIN TWO YEARS, AND TO THE DATE OF THE REQUEST IF IT IS MADE AFTER THIS PERIOD .

15 WITH REGARD TO ANY AUTOMATIC REVIEWS WHICH MAY BE CARRIED OUT IT IS FOR THE NATIONAL LEGISLATIVE SYSTEM TO DETERMINE THE EFFECTS OF THIS MORE FAVOURABLE TREATMENT WITHOUT HOWEVER ADVERSELY AFFECTING THE RIGHTS WHICH THE INSURED PERSON DERIVES DIRECTLY FROM REGULATION NO 3 .

16 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT UNDER COMMUNITY LAW PENSIONS ARE TO BE REVIEWED AT THE REQUEST OF THE PERSON CONCERNED AND THAT THE REVIEW OPERATES RETROACTIVELY WITH EFFECT FROM 1 JANUARY 1964 OR FROM THE DATE OF THE REQUEST ACCORDING TO THE DISTINCTION MADE IN ARTICLE 53 ( 4 ) AND ( 5 ) WITHOUT PREJUDICE TO ANY NATIONAL PROVISIONS WHICH MAY BE MORE FAVOURABLE TO INSURED PERSONS .

17 - 18 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EEC WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE BUNDESSOZIALGERICHT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING BY THE JUDGMENT OF 30 OCTOBER 1969 BY THE BUNDESSOZIALGERICHT HEREBY RULES :

1 . THE PROCEDURE INTRODUCED BY PARAGRAPH ( 1 ) OF ANNEX G/I - B TO REGULATION NO 3, AS AMENDED BY ARTICLE 6 OF REGULATION NO 130/63, APPLIES TO PENSIONS AND ARREARS OF PENSIONS WHICH HAVE FALLEN DUE AS FROM 1 JANUARY 1964, EVEN IF THESE PENSIONS ARE PAID IN RESPECT OF RISKS WHICH MATERIALIZED BEFORE THAT DATE;

2 . UNDER COMMUNITY LAW PENSIONS ARE TO BE REVIEWED AT THE REQUEST OF THE PERSON CONCERNED AND THE REVIEW OPERATES RETROACTIVELY WITH EFFECT FROM 1 JANUARY 1964 OR FROM THE DATE OF THE REQUEST ACCORDING TO THE DISTINCTION MADE IN ARTICLE 53, WITHOUT PREJUDICE TO ANY NATIONAL PROVISIONS WHICH MAY BE MORE FAVOURABLE TO INSURED PERSONS .