Report for the Hearing delivered in Case 83/87

I — Facts and procedure

Mr Viva, a migrant worker of Italian nationality, was employed as an underground miner in Belgium for 10 years. By decision of the Fonds national de retraite des ouvriers mineurs (National Pension Fund for Miners), hereinafter referred to as ‘the Fund’, of 23 October 1963, he was awarded a miner's invalidity pension at the ‘married’ rate as from 1 June 1963. He also receives an Italian pension under Council Regulations Nos 3 and 4 on social security for migrant workers (Journal officiel 1958, pp. 561 and 597). By a decision of 19 April 1966, the Fund reduced the Belgian invalidity pension to take account of the Italian part pension in accordance with a Belgian provision prohibiting overlapping benefits. According to the findings of the national court, the Fund's decisions of 23 October 1963 and 19 April 1966 were formally based solely on the Belgian legislation, without any reference being made to the application of Regulations Nos 3 and 4.

With effect from 1 October 1972, Regulations Nos 3 and 4 were replaced by Regulation No 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 (see the current version in Official Journal 1983, L 230, p. 8). Article 100 of Regulation No 1408/1 expressly repeals Regulations Nos 3 and 4. 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 its application in the territory of the Member State concerned may, on the application of the person concerned, be reviewed taking into account the provisions of the regulation.

The Fund carried out, on its own initiative, a new calculation of the miner's invalidity pension following the death of Mr Viva's wife on 2 November 1983. By decision of 14 March 1984, the Fund modified the miner's invalidity pension which Mr Viva received under Belgian law, with effect from 1 December 1983, in two respects:

First, pursuant to Article 4 (1), fourth subparagraph, of the Royal Decree of 19 November 1970, the invalidity pension was to be paid at the ‘single’ rate;

Secondly, pursuant to Article 23 (1) of the Royal Decree of 19 November 1970, the invalidity pension was calculated by taking account of the actual amount of the Italian pension as at 1 December 1983.

In order to justify its method of calculation, the Fund argued before the national court that it followed from the judgment of 2 February 1982 of the Court of Justice of the European Communities (Case 7/81 Sinatra v FNROM [1982] ECR 137) that changes in the individual's circumstances entail a ‘recalculation’ by analogy with the provisions of Article 51 (2) of Regulation No 1408. Since Mr Viva had not sought a review within the meaning of Article 94 (5) of Regulation No 1408/71, and since the pension in question had been fixed on 1 August 1963, Regulations Nos 3 and 4 continued to apply in relation to the decision of 14 March 1984. Unlike Article 46 of Regulation No 1408/71, Article 27 of Regulation No 3 did not require a double calculation and the choice of the result most favourable to the migrant worker.

Before the national court, Mr Viva submitted, on the other hand, that his rights to the Belgian invalidity pension had to be determined pursuant to the European regulations, which required a double calculation of the benefit, under national law and under European Community law, and the retention of the result most favourable to the migrant worker. In his view this double calculation is required under both Regulations Nos 1408/71 and 574/72 and Regulations Nos 3 and 4. In the alternative, he requested the application of Article 46 (3) of Regulation No 1408/71, the reduction clause.

On the basis of these facts the cour du travail (Labour Court), Mons, by a judgment of 18 March 1987, referred to the Court a question on the interpretation of Articles 94 (5) and 100 of Regulation No 1408/71. The question is worded as follows:

‘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.’

The judgment making the reference was registered at the Court on 20 March 1987.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Mr Viva, the plaintiff in the main proceedings, represented by D. Rossini, union representative, by the Government of the Italian Republic, represented by P. G. Ferri, acting as Agent, and by the Commission of the European Communities, represented by D. Gouloussis, a member of its Legal Department, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided on 11 November 1987 to assign the case to the Third Chamber and to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

Mr Viva submits that the new Community legislation, Regulation No 1408/71, should apply, subject to the retention of such rights acquired under the former rules as may prove to be more favourable. The Belgian institution's decision to modify his pension rights was taken at a time when the provisions of Regulation No 3 had been repealed. Clearly the provisions of that regulation remained applicable, but only where the situation of the person concerned had been definitively established prior to 1 October 1972, the date of entry into force of Regulation No 1408/1. Where it is necessary to make a new calculation after 1 October 1972, the provisions of the new regulation must be applied.

Moreover, the obligation to make a double calculation, under national law and Community law, is provided for both in Regulation No 1408/71 and in the old legislation, Regulation No 3. In this case the invalidity pension should be calculated pursuant to Article 46 (3) of Regulation No 1408/71.

The Italian Government takes the view that the purpose of applying Regulation No 1408/71 to an existing pension pursuant to the rules laid down in Article 94 (5) appears to be to accord more favourable treatment to the migrant worker. The fact that this rule is to be applied only following an application by the worker clearly presupposes that applying the new Community provisions to the pension already awarded leads to a result which is more favourable to the worker.

In this case, the effect of applying the Belgian provisions prohibiting overlapping benefits is that the full amount of the Italian benefit is deducted from the Belgian pension. Such a result does not, in the Italian Government's view, appear compatible with Article 51 of the EEC Treaty, according to which the objective is to preserve existing rights and, by aggregation, to protect the worker's existing situation generally.

Accordingly, the Italian Government takes the view that the question of the temporal application of the relevant provisions cannot be treated separately from questions regarding the interpretation and application of Article 46 of Regulation No 1408/71. That provision precludes the application of national rules against overlapping benefits where such rules are applied in breach of the aggregation rule laid down in the Treaty as a basic right for migrant workers.

The Commission considers that Regulation No 1408/71 applies in this case. Article 100 of the regulation repealed Regulations Nos 3 and 4, which means that situations which arise after the entry into force of Regulation No 1408/71 are governed by its provisions. The situation in question arose after the date (1 October 1972) of the entry into force of Regulation No 1408/71, inasmuch as Mr Viva's personal circumstances were altered (his wife's death). Consequently, Regulation No 1408/71 should apply for the purpose of recalculation of Mr Viva's invalidity pension, notwithstanding the fact that the initial pension was awarded under Regulations Nos 3 and 4.

Regulation No 1408/71 is immediately applicable even though Mr Viva had submitted no application for review within the meaning of Article 94 (5) of the regulation. The purpose of such an application is to alter pension rights determined prior to 1 October 1972, but it is not conditional on an alteration in the family circumstances or any other circumstances of the person concerned arising after 1 October 1972.

U. Everling

Judge-Rapporteur

1 Language of the Case: French.