61987J0083

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Social security for migrant workers - Community legislation - Temporal application - Benefits determined before entry into force of Regulation No 1408/71 - Recalculation made necessary by a change in the personal circumstances of the insured person - Application of Regulation No 1408/71

( Council Regulation ( EEC ) No 1408/71, as amended by Regulation No 2001/83, Arts 94 ( 5 ) and 100 ).

The principle deriving from Article 94 ( 5 ) of Regulation No 1408/71 that the competent institution of a Member State cannot on its own initiative, in the absence of any request from the insured person, carry out a review of the rights acquired by that person prior to the entry into force of that

regulation, does not apply, by virtue of Article 100 of the regulation, to situations which automatically entail a new determination of rights to benefits .

Consequently, the recalculation of an invalidity pension awarded before the entry into force of Regulation No 1408/71, made necessary by changes in the personal circumstances of the insured person which have occurred after its entry into force, must be effected in accordance with the provisions of Regulation No 1408/71 .

In Case 83/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the cour du travail ( Labour Court ), Mons ( Belgium ), for a preliminary ruling in the proceedings pending before that court between

Mario Viva

and

Fonds national de retraite des ouvriers mineurs ( National Pension Fund for Miners )

on the interpretation of Articles 94 ( 5 ) and 100 of Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community ( Official Journal 1983, L 230, p . 8 ),

THE COURT ( Third Chamber )

composed of : J . C . Moitinho de Almeida, President of Chamber, U . Everling and Y . Galmot, Judges,

Advocate General : M . Darmon

Registrar : J . A . Pompe, Deputy Registrar

after considering the observations on behalf of

Mr Viva, by D . Rossini, a trade union representative,

the fonds national de retraite des ouvriers mineurs, by E . Stein, Avocat, in the oral proceedings

the Italian Government, by P . G . Gerri, Avvocato dello Stato, acting as Agent, in the written proceedings,

the Commission of the European Communities, by its Legal Adviser D . Gouloussis, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 20 January 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 9 March 1988,

gives the following

Judgment

By a decision of 18 March 1987, which was received at the Court on 20 March 1987, the cour du travail, Mons, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question concerning the interpretation of Articles 94 ( 5 ) and 100 of Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended ( Official Journal 1983, L 230, p . 8 ).

This question was raised in proceedings between Mr Viva, a migrant worker of Italian nationality, and the fonds national de retraite des ouvriers mineurs ( hereinafter referred to as "the Fund "). Mr Viva was employed as an underground miner in Belgium for 10 years . From 1 June 1963 he received an Italian invalidity pension calculated on a proportional basis pursuant to Regulations Nos 3 and 4 of the Council on social security for migrant workers ( Journal officiel 1958, pp . 561 and 597 ), and from 1 August 1963 a Belgian invalidity pension fixed at the "married" rate and subject to a deduction pursuant to the national rules against overlapping benefits .

Following the death of Mr Viva' s wife on 2 November 1983, the Fund, on its own initiative, altered the Belgian pension rights by applying to them the "single" rate . This new calculation was carried out on the basis of the formerly applicable legislation, Regulations Nos 3 and 4 . The Fund considered that these regulations continued to apply in view of the fact that Mr Viva had not submitted an application under Article 94 ( 5 ) of Regulation No 1408/71 requesting that the provisions of the new legislation, Regulation No 1408/71, be applied .

In view of the conflicting views of the parties in the main proceedings regarding the temporal application of Regulations Nos 3 and 4 on the one hand and of Regulations Nos 1408/71 and 574/72 on the other, the cour du travail, Mons, stayed the proceedings and referred to the Court for a preliminary ruling on the following question :

"In a case in which an institution of a Member State awarded a pension to a migrant worker before 1 October 1972 on the basis of national legislation alone and the migrant worker has not applied for a review of his pension rights vis-à-vis that institution under Article 94 ( 5 ) of Regulation No 1408/71, but nevertheless his personal or family situation has changed since 1 October 1972 in that he has become a widower, which entails a revision of his pension rights by the institution on its own initiative, must Regulation No 1408/71 of the Council, in particular Articles 94 ( 5 ) and 100 thereof, be interpreted as meaning that notwithstanding the repeal by Article 100 of Regulation No 1408/71 of Regulations Nos 3 and 4, continued application of Regulations Nos 3 and 4 is justified by Article 94 ( 5 ) of Regulation No 1408/71 for the purpose of determining the migrant worker' s pension rights in that situation vis-à-vis the institution after 1 October 1972?

In other words, must Regulation No 1408/71 be interpreted as meaning that in the situation described the institution is justified in recalculating the invalidity pension solely on the basis of national legislation, including a rule against foreign overlapping benefits, without making a comparison between the amount of the pension as calculated on the basis of national legislation, including the national rule against overlapping benefits, and the amount of the benefit as calculated under European Community law in accordance with Article 46 ( 1 ), ( 2 ) and ( 3 ) of Regulation No 1408/71, in order to determine which result is more favourable to the migrant worker .

Again in other words, is Community law to be interpreted in such a way that solely by virtue of Article 94 ( 5 ) of Regulation No 1408/71 and notwithstanding Article 100 of that regulation, the general rule of law that measures have immediate effect and the principle that new legislation is by definition presumed to be better than old legislation, in reviewing the migrant worker' s pension on its own initiative the competent institution is to apply new national legislation in force after 1 October 1972, including a rule against foreign overlapping benefits, but also the former Community rules, namely Regulations Nos 3 and 4?"

Reference is made to the Report for the Hearing for a more detailed account of the facts, the provisions of Community law in question and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

This question raises essentially the problem of the temporal application of various Community regulations concerning the social security of migrant workers . The national court asks whether the recalculation of an invalidity pension awarded under Regulations Nos 3 and 4, made necessary by changes in the personal circumstances of the insured person which occurred after the entry into force of Regulation No 1408/1, must be carried out in accordance with the provisions of that regulation or, on the contrary, pursuant to the earlier legislation, Regulations Nos 3 and 4, where the insured person has not submitted an application for the review of his pension rights pursuant to Article 94 ( 5 ) of Regulation No 1408/71 .

Mr Viva, the Italian Government and the Commission maintain that Regulation No 1408/71 applies in the present case because the material event, the death of Mr Viva' s wife, occurred after the entry into force of Regulation No 1408/71 .

The Fund, on the other hand, points out that under Article 94 ( 5 ) of Regulation No 1408/71, Regulations Nos 3 and 4 continue to apply where the worker was awarded his pension prior to 1 October 1972 . The applicability of Regulation No 1408/71 is conditional on the submission of an application by the person concerned .

It must be observed, first of all, that Regulations Nos 3 and 4 were repealed by Article 100 of Regulation No 1408/1 with effect from 1 October 1972 . They can therefore no longer constitute the legal basis for the award of pension rights after that date .

With regard to rights determined under the old provisions, Article 94 ( 5 ) of Regulation No 1408/71 provides that "the rights of a person to whom a pension was awarded prior to 1 October 1972 or to the date of (( the )) application (( of this regulation )) in the territory of the Member State concerned may, on the application of the person concerned, be reviewed, taking into account the provisions of this regulation ". As the Court held in its judgment of 13 October 1976 in Case 32/76 Saieva v Caisse de compensation des allocations familiales (( 1976 )) ECR 1523, the transitional provisions of Regulation No 1408/71, including Article 94 ( 5 ), are based on the principle that benefits awarded under the old regulation which are more favourable than those payable under the new ones are not to be reduced . The aim of this provision is thus to give the person concerned the right to request the review in his favour of benefits payable under the old regulation . Consequently, the competent institution of a Member State is not entitled to substitute itself for an insured person with regard to the review of the rights which that person acquired before Regulation No 1408/71 came into force .

However, that principle does not apply to situations which entail automatically a new determination of rights to benefits . In accordance with Article 100 of Regulation No 1408/71, such situations are governed by the provisions of Regulation No 1408/71 . As the Court held in its judgment of 2 February 1982 ( Case 7/81 Sinatra v FNROM (( 1981 )) ECR 137 ), a recalculation in accordance with the provisions of Article 46 of Regulation No 1408/71 is necessary in respect of any alteration in benefits paid by a Member State, save where such alteration is due to one of the "reasons for adjustment" provided for in Article 51 of Regulation No 1408/71, which do not include supervening changes in the personal circumstances of the insured person . This recalculation must therefore be carried out in accordance with the provisions of Regulation No 1408/71 even if the person concerned has made no request to this effect .

Consequently, the reply to the question referred to the Court by the cour du travail, Mons, must be that the recalculation of an invalidity pension awarded before the entry into force of Regulation No 1408/71, made necessary by changes in the personal circumstances of the insured person which have occurred after its entry into force, must be effected in accordance with the provisions of Regulation No 1408/71 .

Costs

The costs incurred by the Italian Government and the Commission of the European Communities, which submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision as to costs is a matter for that court .

On those grounds,

THE COURT ( Third Chamber ),

in answer to the question referred to it by the cour du travail, Mons, by a judgment of 18 March 1987, hereby rules :

The recalculation of an invalidity pension awarded before the entry into force of Regulation No 1408/71, made necessary by changes in the personal circumstances of the insured person which have occurred after its entry into force, must be effected in accordance with the provisions of Regulation No 1408/71 .