FranklinWillemen/mapa_plus huggingface dataset:
The general rules emerging from those cases could thus be described as follows : ( i ) non-application of new rules to ‘ definitive situations ’ , which arose and were adjudicated upon under the old rules , and ( ii ) application of new rules to future effects of ‘ existing situations ’ , which produce ongoing effects .
The taking into account of older facts for a fresh legal assessment under the new rules will , furthermore , be carried out only if such an assessment is provided for or necessary by the nature or structure of the new rules . 48 .
The same approach is also reflected in the context of an accession of a new Member State to the European Union , ( 11 ) both with regard to the national application of ( new ) EU rules as well as the jurisdiction of the Court on preliminary rulings to answer questions relating to such situations .
Past facts ( that is , facts pre-dating accession ) may be taken into account if they are relevant and need to be ( freshly ) assessed in the process of the application of the new law ( s ) post-accession . ( 12 ) Thus , for example , it was not for the Court to essentially start substantively re-assessing , post-accession , whether or not some terms in a consumer contract concluded prior to accession were unfair , even if that contract is effectively being enforced after accession . ( 13 ) By contrast , the Court was competent to assess whether or not national legislation capping interest for late payments that related to a legal transaction concluded well before accession , but with ongoing effects ( and their ultimate calculation ) after accession , was compatible with EU law . ( 14 ) ( b ) Ciola 49 .
In their written as well as oral submissions , both the Appellant and the Commission relied extensively on the decision of this Court in Ciola . ( 15 ) That decision should indeed be looked at in detail , because it demonstrates how the general guidance outlined in the previous section is applied in the context of a specific case . 50 .
The magic date in Ciola was 1 January 1995 , when Austria acceded to the European Communities .
At that date , of course besides any explicit derogations , EC law , including free movement rules , entered into force in full and became applicable immediately in that new Member State . 51 .
Mr Ciola ’ s company owned and rented 200 moorings for pleasure boats , situated in the Austrian part of Lake Constance .
An administrative decision from 1990 stated that a maximum of 60 moorings could be rented to foreign residents . ( 16 ) A list of the moorings granted to foreign residents was to be provided on an annual basis . ( 17 ) 52 .
On 10 July 1996 ( 18 months after accession ) , a new individual administrative decision was adopted , finding the company guilty of renting two moorings to foreign residents in January and May 1995 , in excess of the quota of 60 .
Mr Ciola was fined for each of these infringements of the administrative decision of 1990 . ( 18 ) Mr Ciola appealed against the decision of 1996 to impose a penalty .
The case was referred to this Court , with the second question raised by the referring court explicitly asking about the temporal scope of application of that preclusion , given that the original administrative decision became final prior to accession . 53 .
The Court began its reasoning by confirming that the foreign resident mooring quota was precluded by the rules on free movement of services .
However , the Court added that ‘ the dispute concerns not the fate of the administrative act itself , in this case the decision of 9 August 1990 , but the question of whether such an act must be disregarded when assessing the validity of a penalty imposed [ after the date of accession ] for failure to comply with an obligation thereunder , because of its incompatibility with the principle of freedom to provide services ’ . ( 19 ) The Court concluded that such an act must be disregarded . 54 .
In the present case , the Appellant cites Ciola as holding effectively that a person suffering the negative effects of an administrative decision has a right to have those effects neutralised if , hypothetically , the administrative decision would have been incompatible with new legal rules if it had been adopted after the entry into force of those new rules . 55 .
Yet such a conclusion does not follow from the Ciola judgment .
In Ciola the applicant was challenging the validity of a fine that was imposed by a decision post-dating the entry into force of the free movement rules in Austria .
Moreover , the fine was imposed for actions carried out by Mr Ciola ’ s company — the rental of moorings in January and May 1995 — which themselves post-dated accession . 56 .
Thus , it is therefore rather clear that in Ciola , there was a new application of the new law post-dating accession , which was logically necessary in order to assess a new situation .
Post-accession facts ( rental of moorings ) were to be evaluated and matched with new post-accession law ( national law prospectively adapted to be compliant with newly applicable EU rules ) .
Moreover , there was clearly no ‘ neutralisation ’ of ( past ) effects of the 1990 decision in the sense suggested by the Appellant .
The Court did not state that that decision had to be revisited or that any compensation for its previous existence had to be paid .
Instead , what was required was simply that that old decision , which became incompatible with the new laws post - 1995 , could no longer be applied in a new , fresh application of the law in the context of imposing administrative penalties post-accession . 2 .
Specific case-law on pensions 57 .
The general approach outlined in the previous section also applies in the context of Directive 2000 / 78 and pension schemes . ( 20 ) However , precisely how those rules apply in individual cases is not necessarily self-evident .
The particularities of pension schemes cannot be ignored .
Rights are accrued and pensions are paid out for decades , during which laws can change significantly .
The fact that pension-related disputes can involve such significant sums of money for the individual and , in aggregate , the state and private pension funds , makes it more sensitive . 58 .
That is indeed a significant feature that can be seen running through the judgments that will be discussed in this section in relation to pensions .
The large majority of those cases involve decisions on pensions that have been adopted after the new rules have come into force .
( a ) Old facts , new law and the need for a new decision 59 .
There are many judgments relating specifically to pensions where the Court has confirmed that , in establishing the right to a pension , facts predating the entry into force of new rules prohibiting discrimination ( in particular , periods of service ) must be considered . 60 .
Thus , for example , the Bruno and O ’ Brien cases ( 21 ) concerned equal treatment of part-time and full-time workers , which is provided for in Directive 97 / 81 / EC . ( 22 ) The Court held in those cases that , in establishing whether an individual qualifies for a pension , periods of part-time service predating the entry into force of that directive needed to be considered . ( 23 ) In both Bruno and O ’ Brien the entitlement to a pension was to be determined after the entry into force of the directive . ( 24 ) 61 .
That was also true of the Barber ( 25 ) and Ten Oever ( 26 ) cases , where alleged sex discrimination in breach of Article 119 EC was at issue .
In those cases , the entitlement to a pension was determined after the entry into force of Article 119 EEC . ( 27 ) 62 .
In Maruko ( 28 ) the issue was refusal of a right to a survivor ’ s pension resulting from alleged discrimination on grounds of sexual orientation in breach of Directive 2000 / 78 .
As in Ten Oever , ( 29 ) the relevant event occurred , and new decision was made ( death of a partner and decision to refuse a survivor ’ s pension ) after the deadline for transposition had expired . ( 30 ) 63 .
The Kauer and Duchon cases effectively involved discrimination on grounds of nationality . ( 31 ) In those cases the applicants applied for a pension in Austria after accession and requested that certain facts occurring in other Member States and before accession be taken into account ( in the case of Kauer , child-rearing periods in Belgium and in the case of Duchon , a work-related accident in Germany leading to incapacity ) . 64 .
To summarise , the above cases on pensions all involve situations where facts pre-dating new law are taken into account when adopting a decision post-dating the new law .
That fits the pattern of the general case-law cited above perfectly : there is an ongoing factual situation in relation to which a fresh legal assessment has to be carried out following the entry into force of a new law .
In such situations , it is entirely logical , in particular in the social security context , that all the relevant factual elements pre-dating the new law are to be taken into account . 65 .
For that reason , that case-law is in my view not transposable to the present case , where the facts , the applicable law , as well as the administrative decision itself pre-date the new law .
The only facts post-dating the new law are the pension payments made to the Appellant . 66 .
That is all the more so since the alleged discriminatory decision in the present case involves the assessment and application of law to facts that in themselves are not directly related to pension entitlement or calculation .
The alleged discrimination relates to a disciplinary decision which , having confirmed the guilt of the Appellant , has imposed a twofold disciplinary sanction on him . ( 32 ) There is of course no denying that that decision has had repercussions on the Appellant ’ s pension . ( 33 ) However , unlike the cases discussed in this section , the present case does not involve , for example , objective conditions of entitlement pertaining to personal situations or periods of service .
Instead , it concerns an underlying and separate disciplinary decision relating to a specific set of facts .
( b ) Existing pensions , new law and current situations 67 .
The judgment in Römer , ( 34 ) which has been cited by all parties , does not fit the above pattern quite so well .
It therefore deserves to be considered in more detail . 68 .
In that case , the applicant was in fact already retired and drawing his pension when in 2001 ( so prior to the expiry of the deadline for transposing Directive 2000 / 78 ) he entered into a life partnership with his male companion .
Mr Römer was denied the tax classification which would normally have been applied in case of a ( heterosexual ) marriage , ( 35 ) and would have given him higher pension payments . 69 .
The Court in substance held that , to the extent there was discrimination , Mr Römer could claim equal tax treatment as from the expiry of the deadline for transposition of Directive 2000 / 78 .
Unlike the other cases cited above , however , in Römer the applicant ’ s entitlement to a pension was decided before the new rules entered into force .
The issue was about ongoing discrimination in relation to subsequent payments and the applicant ’ s tax position . 70 .
However , that case is different from the present one , for two reasons in particular . 71 .
First , it is true that Mr Römer ’ s tax position had been determined prior to the expiry of the transposition period of Directive 2000 / 78 , so in that sense it was a ‘ final ’ decision .
However , it is also the case that relevant national law provided for a review of tax treatment in case of a change in personal circumstances .
Thus , as confirmed by the Court , under the applicable national law ‘ if the conditions [ for more favourable tax classification ] are not satisfied until after payment of the retirement pension has commenced , the latter provision has to be applied from that date if the party concerned so requests ’ . ( 36 ) 72 .
In Römer there was therefore a mechanism for adopting fresh decisions , taking new , and for the purposes of social security calculations , relevant changes in personal circumstances into account . 73 .
Secondly , and more fundamentally , leaving aside the aforementioned review clause , the judgment in Römer concerns the way in which new rules ( Directive 2000 / 78 ) might apply to the current personal situation of an individual , in order to review a decision on their pension rights . 74 .
That is , in my opinion , completely different from the type of temporal application argued for by the Appellant in the present case .
In the present case , what is proposed is not the ( legally provided for ) taking into account of personal circumstances for a future adjustment , but a review in the light of new rules of law of a closed set of facts taking place many years ago and a disciplinarydecision adopted in relation to them , with the purpose of altering knock-on effects for pension rights .
( c ) Exceptions to the rule ?
It is true that there are isolated judgments of the Court where the decision on granting a pension and all relevant facts appear to predate the new rules .
In other words , a decision has been taken to grant ( or not ) a pension and concerning the level of entitlement , but new rules are apparently invoked to reopen that decision , without there being any new facts or any change to personal circumstances . 76 .
However , such judgments are in practice rare and , on a closer inspection , they can easily be distinguished .
In P . ( 37 ) the applicant was the divorcee of a Commission official .
At the time the official died , P . had no right to a survivor ’ s pension because ‘ fault ’ for the divorce had not been placed solely on the deceased husband .
Only a few months after the death , new rules entered into force , under which P . would have had a right to a survivor ’ s pension . ( 38 ) The Court effectively applied the new rules , which created a right for P . to a pension from the date of entry into force of those new rules . 77 .
In the P . case , there were nonetheless some peculiar features .
The Commission in fact argued strongly in favour of application of the new rules ( it contested the payment of a pension on other grounds ) .
Other institutions applied the rules with immediate effect , and failure to do so would , according to the Commission , result in discrimination between officials .
Moreover , the original decision refusing the pension to P . was in practice taken some days after the new rules entered into force ( even though the death of the ex-husband ’ s death was prior to this ) . 78 .
In the case of Brock , the applicant had been granted an invalidity pension in 1958 .
In 1961 that was transformed into an old age pension . ( 39 ) The question was essentially whether new rules requiring the taking into account of contributions in other Member States and entering into force on 1 January 1964 applied .
The Court held that they did . 79 .
It is in my view significant that in that case the relevant legislation included a provision that explicitly provided for review of pensions that were calculated before entry into force of that legislation . 80 .
However , the most important element distinguishing P . and Brock from the present case is that the relevant decisions in those casesconcerned the assessment of the conditions for granting the pension under new rules of law . 81 .
That is obviously different from the assessment of past behaviour under new rules of law , for the purposes of determining how different a ( disciplinary ) decision would have been , and its knock-on effects on subsequent pension rights . 82 .
Thus , for example , in P . the divorcee did not request the reassessment of her divorce , to determine whether her ex-husband was solely responsible .
In Brock , the incapacitated party did not request a reassessment of the circumstances of his accident to determine whether it could be classed as an accident at work .
Any decisions on responsibility for the divorce or the accident were final , just as the disciplinary decision in the present case is also final . 83 .
In sum , judgments such as P . and Brock do have a ‘ more strongly retroactive flavour ’ to them at first sight than other cases , such as those discussed above .
However , apart from the fact that they are relatively old and isolated cases , they can clearly be distinguished from the present case .
In any event , it is , in my view , clear that such judgments cannot be read as meaning that the adoption of any new rules gives rise to an absolute right to have any underlying and previous administrative decisions , which have otherwise become definitive , reviewed in the light of those new rules and for corresponding adjustments to be made to pension payments .
( d ) Transitional provisions 84 .
Finally , another line of case-law in the pension context worth addressing relates to Directive 79 / 7 / EEC . ( 40 ) That directive required Member States to implement the principle of equal treatment of men and women in matters of social security .
As part of that process , Member States changed national rules on benefits to remove discrimination on grounds of sex . 85 .
Those legislative changes led to a number of references to this Court .
To the extent relevant here , the cases concerned female claimants who , on the basis of discriminatory national rules , had been refused social security benefits by a decision adopted prior to the deadline for transposition of the directive .
They sought , in effect , to obtain those benefits after the transposition deadline by application of the new non-discriminatory rules . 86 .
The judgments adopted by the Court repeatedly confirmed that the effects of the discrimination had to be removed after expiry of the transposition deadline .
However , on closer inspection , those cases are again very different from the present one . 87 .
For example , in the Borrie Clarke case , ( 41 ) national law imposed an additional condition on women applying for an invalidity pension , as compared with men ( the inability to do housework ) .
The claimant did not meet that additional condition and her request for a pension was rejected in 1983 .
To comply with the directive , national law was subsequently changed .
The invalidity pension was replaced with disability allowance and new conditions were imposed , which were the same for both sexes .
However , as part of the transition , people who had been granted invalidity pensions prior to the new law automatically received disability allowance without needing to meet the new conditions .
The transitional provisions thus effectively reaffirmed and perpetuated the discrimination . 88 .
The Court held that ‘ if , as from [ the transposition deadline ] , a man in the same position as a woman was automatically entitled to the new severe disability allowance under the aforesaid transitional provisions without having to re-establish his rights , a woman was also entitled to that allowance without having to satisfy an additional condition applicable before that date exclusively to married women ’ . ( 42 ) 89 .
In my view , the situation in Borrie Clarke is similar to the other pensions cases already discussed above in Section ( a ) .
The transitional provisions effectively constituted a new application ( or at the least a renewal of the past decision under the new law ) of the discriminatory rules for the future .
As a result , that line of case-law can again clearly be distinguished from the present case . 90 .
The same type of situation can be seen in other judgments , albeit relating to different kinds of benefits . ( 43 ) 3 .
Ongoing relations 91 .
In its written submissions , the Commission also referred to the Österreichischer Gewerkschaftsbund case , ( 44 ) drawing a parallel with ongoing discrimination regarding the payment of monthly salaries .
That chimes with the Appellant ’ s arguments , which repeatedly refer to the ongoing discrimination in the form of reduced pension payments , which are made on a regular basis . 92 .
To the extent that the reference to this line of case-law could be seen as supporting an argument different to the one explored in the previous section , I do not see how it could help the claims made by the Appellant .
In my view , that case-law is again simply different . 93 .
In Österreichischer Gewerkschaftsbund , ( 45 ) for the purposes of calculating pay for contracted teachers , Austrian law fully took into account previous teaching experience gained in Austria .
Teaching experience in other Member States was only taken into account to a limited extent .
The Court held that limitation to be contrary to the free movement of workers .
It also held that , to remedy the discrimination , teaching experience in other Member States had to be taken into account fully , even if it was acquired before Austrian accession . 94 .
Österreichischer Gewerkschaftsbund is in fact one of a number of judgments where the Court has essentially held that , in employment relationships , facts predating the entry into force of new rules may need to be taken into account in determining pay for employees if they are relevant for that assessment under the new legal regime . ( 46 ) Thus , for example , in a series of cases beginning with Hütter , the Court held that Austrian rules taking into account professional experience obtained before the age of 18 in fixing civil servants ’ pay grades were contrary to the prohibition on discrimination on grounds of age under Directive 2000 / 78 . ( 47 ) Pay grades had to be adjusted to remove the discrimination , including where the relevant experience was acquired before expiry of the deadline for transposing that directive . 95 .
In my view it is not possible to draw direct parallels between such cases , involving adjustments of salaries to remedy discrimination and , cases like the present one for a simple reason : the employment relationship in cases such as Österreichischer Gewerkschaftsbund was an ongoing one , with current reciprocal rights and obligations .
The employee has a grade or rank and a specific number of years of relevant experience , which is used each month as a basis to calculate his salary .
Thus , there is a ‘ renewal ’ each month , a renewed application of the extant laws for the purposes of the appropriate salary calculations , necessitating ongoing adjustments in the light of new law and changes to personal situation . ( 48 ) That is indeed similar in some ways to the scenario in Römer , where specific legislative provisions relating to a change in the personal situation of the claimant allowed for a similar ‘ renewal ’ . ( 49 ) 96 .
By contrast , in cases such as the present one , the employment relationship had come to an end ( 50 ) , all pension rights were accumulated well before that time and a disciplinary decision on the 25% reduction had been taken in 1975 on the basis of past events and become definitive .
The practical effects of that decision continue to be felt , as may be the situation with any and every past event , but there is no longer any ongoing relationship that would require a fresh ( re ) assessment under the new law .
There are no continuously relevant past facts .
In this sense , legal effects of the past facts have indeed been exhausted . 4 .
Reopening past decisions 97 .
Finally , to provide a complete overview , it ought to be added that there also exists , under EU law , in addition to the rules concerning temporal applicability of new rules to past facts and / or ongoing legal relationships , the limited duty to reopen past decisions if they are incompatible with EU law . 98 .
The Court ’ s case-law underlines the importance of the principle of res judicata for reasons of stability of the law and legal relations , as well as the sound administration of justice .
Decisions which have become final after all rights of appeal have been exhausted or after expiry of the time limits provided for in that regard can no longer be called into question . ( 51 ) That is so even if to do so would enable a national court to remedy an infringement of EU law by the decision at issue . ( 52 ) 99 .
It is true that final decisions may be reopened , but that is only the case if there are truly exceptional circumstances .