JUDGMENT OF 14. 4. 1970 — CASE 68/69 BUNDESKNAPPSCHAFT v BROCK

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

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi, W. Strauß and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations of the parties submitted pursuant to Article 20 of the Protocol

A — Mrs Brock's observations

B — Observations of the Commission of the European Communities and of the Federal Republic of Germany

1 — The first question

2 — The second question

Grounds of judgment

The first question

The second question

Costs

I —. Facts and procedure

1. Does the procedure adopted by paragraph (1) of Annex G/I-B to Regulation No 3 as amended by Article 5 of Regulation EEC No 130/63 also apply to pensions within the meaning of Regulation No 3 paid in respect of risks which materialized before this amendment entered into force (1 January 1964)?

2. If so, are these pensions to be reviewed automatically or only at the request of the person concerned and from what date?

II —. Observations of the parties submitted pursuant to Article 20 of the Protocol

A —. Mrs Brock's observations

B —. Observations of the Commission of the European Communities and of the Federal Republic of Germany

1 —. The first question

(i). Under the case-law of the Court (OJ of9.12.1965, Case44/65, Hessische Knappschaft v Singer [1965] E.C.R. 972) in the absence of an express provision to the contrary, and there is none in this case, a new regulation must be regarded as taking effect as soon as it enters into force, as it determines in the present legal consequences of actions in the past.

(ii). An examination of Articles 50 and 53 of Regulation No 3 leads to the same conclusion. According to Article 50 the provisions of Annex G in their original version or as amended or supplemented from an integral part of the regulation. For this reason the transitional and final provisions of Article 53 are applicable to paragraph (1) of Section B of Annex G, as amended, provided it is understood however that this amended version takes effect, according to the distinctions which it draws, partly on 1 January 1959 and partly — in particular in the case of the disputed provision — on 1 January 1964.

2 —. The second question

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.

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 Januray 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.

10. Should the anwer 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 ystems. 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.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur ; Upon hearing the oral observations of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General ; Having regard to the Treaty establishing the European Economic Community, especially Articles 48, 51 and 177; Having regard to Regulations Nos 3 and 130/63 of the Council; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, 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.