CELEX: 62002CJ0034
Social security
Old-age pensions
Recalculation
Recovery of sums paid though not due
Limitation
Law applicable
Detailed procedural rules
Concept

By order of 24 January 2002, received at the Court Registry on 8 February 2002, the Tribunale Ordinario di Roma (Rome District
Court) referred to the Court for a preliminary ruling three questions on the interpretation of Regulation (EEC) No 1408/71
of the Council 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 and updated by Council Regulation (EC) No 118/97
of 2 December 1996 (OJ 1997 L 28, p. 1,
Regulation No 1408/71), and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (
Regulation No 574/72).
Those questions were raised in proceedings between Mr Pasquini and the Istituto Nazionale della Previdenza Sociale (National
Institute of Social Insurance,
the INPS), concerning a decision taken by the INPS requiring Mr Pasquini to repay amounts paid though not due by way of an old-age
pension.
The relevant provisions
The Community legislation
Article 49 of Regulation No 1408/71, which forms part of Chapter 3, headed
Old Age and Death (Pensions), of Title III of that Regulation, lays down the detailed rules for the calculation of benefits, in particular where the person
concerned does not simultaneously satisfy the conditions laid down by all the legislations under which periods of insurance
or residence have been completed.  It provides:
1.
If, at a given time, the person concerned does not satisfy the conditions laid down for the provision of benefits by all the
legislations of the Member States to which he has been subject, taking into account where appropriate the provisions of Article
45 and/or Article 40(3), but satisfies the conditions of one or more of them only, the following provisions shall apply:
(a)
each of the competent institutions administering a legislation whose conditions are satisfied shall calculate the amount of
the benefit due, in accordance with the provisions of Article 46;
...
2.
The benefit or benefits awarded under one or more of the legislations in question, in the case referred to in paragraph 1,
shall be recalculated automatically in accordance with Article 46, as and when the conditions required by one or more of the
other legislations to which the person concerned has been subject are satisfied, taking into account, where appropriate, Article
45 and taking into account once again, where appropriate, paragraph (1).
...
3.
A recalculation shall automatically be made in accordance with paragraph (1), without prejudice to Article 40(2), where the
conditions required by one or more of the legislations concerned are no longer satisfied.
Articles 94, 95, 95a and 95b of Regulation No 1408/71, which are transitional provisions applicable following the entry into
force of the regulation or of amendments to it, each contain similar provisions concerning applications for review of the
calculation of pensions, having regard to the new provisions applicable.  The essence of those provisions is as follows:
─
if the application is submitted within two years from the date of the application of the new provision, the rights acquired
under it are to have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture
or limitation of rights may not be invoked against the persons concerned (Articles 94(6), 95(6), 95a(5) and 95b(6));
─
if the application is submitted after the expiry of the period of two years from the date of the application of the new provision,
rights which have not been forfeited or time-barred have effect from the date of the application, except where more favourable
provisions of the legislation of any Member State apply (Articles 94(7), 95(7), 95a(6) and 95b(7)).
Article 49 of Regulation No 574/72 provides that, in the event of recalculation, withdrawal or suspension of a benefit, the
institution which has taken such a decision must immediately notify the person concerned and each of the institutions on which
the person concerned has a claim, if necessary through the good offices of the investigating institution, that is to say,
in principle, the institution of the place of residence of the person concerned, in accordance with Articles 36 and 41 of
Regulation No 574/72.
Article 111 of Regulation No 574/72 deals with cooperation between the social security institutions of various Member States
with a view to recovering sums paid though not due.  It thus provides,
inter alia
, that an institution of a Member State which has overpaid certain sums to a recipient of benefits may request the institution
of any other Member State responsible for the payment of benefits to that recipient to deduct the amount overpaid from the
amounts which it pays to the said recipient.  The latter institution is to make the deduction under the conditions and within
the limits provided for such setting-off by the legislation which it administers, as if the sums had been overpaid by itself,
and transfer the amount deducted to the creditor institution.
Article 112 of Regulation No 574/72 covers the case where recovery of the amounts overpaid is impossible.  It provides as
follows: When an institution has made payments which are not due, either directly or through another institution, and when their recovery
has become impossible, the amounts in question shall remain finally chargeable to the first institution, save where the payment
which was not due is the result of fraud.
The Italian legislation
Legislation applicable to migrant workers' pensions
Article 8 of Law No 153 of 30 April 1969 (Ordinary Supplement to GURI No 111 of 30 April 1969) provides: Italian nationals whose insurance records have been transferred from the Istituto Nazionale della Previdenza Sociale to the
Libyan National Institute of Social Insurance pursuant to Article 12 of the Italo-Libyan Agreement of 2 October 1956, ratified
by Law No 843 of 17 August 1957, and who have acquired the right to a pension payable by Libyan insurance before 31 December
1965 shall receive from the INPS as from 1 January 1969, and wholly payable by the Fondo per l'Adeguamento delle Pensioni
(Pensions Adjustment Fund), an increase in the supplement referred to in Article 15 of Law No 1338 of 12 August 1962, in order
to attain the monthly amount of minimum pension provided by compulsory insurance covering invalidity, old-age and the dependants
of employed persons.The minimum pensions referred to in the previous paragraph shall also be payable as from the same date to persons receiving
a pension who have acquired that right by virtue of the aggregation of periods of insurance and contributions provided for
by international agreements or conventions on social insurance.For the purposes of the award of those minimum pensions, account shall be taken of the amount of pension, if any, paid pro
rata by virtue of that aggregation by foreign insurance bodies.Emigrant workers who satisfy the conditions necessary for entitlement to a pension by virtue of the aggregation of periods
of insurance and contributions referred to in the second paragraph shall be entitled,
inter alia
on the basis of the provisional certificate issued by the competent foreign bodies, to the payment of an advance on the pension,
which shall be added to until the minimum pension is reached.  Persons receiving other pensions shall not be entitled to that
supplement and it shall be recovered on the basis of the sums which may have been paid pro rata by the foreign insurance bodies.
The legislation applicable to limitation of actions and recovery of sums paid though not due
Article 2946 of the Italian Civil Code lays down a general limitation period of 10 years in respect of debts.
Article 52(1) of Law No 88 of 9 March 1989 restructuring the National Social Security Office and the National Office of Insurance
against Accidents at Work (Ordinary Supplement to GURI No 60 of 13 March 1989) provides,
inter alia
, that the amount of old-age pensions may be corrected in the event of an error in their award or payment.  In accordance
with Article 52(2), the sums paid though not due are to be recovered only where the pensioner has acted fraudulently.
Article 13(1) of Law No 412 of 30 December 1991 on public finance (GURI No 305 of 31 December 1991), adopted as the authentic
interpretation of Article 52 of Law No 88/89, states that failure to communicate, or incomplete communication, on the part
of the pensioner of facts which are relevant to entitlement to the pension or to its amount and which are not already known
to the competent body authorises the latter to recover the sums paid though not due.
Article 13(2) of Law No 412 provides as follows: Once a year the INPS shall check the income of persons in receipt of pensions and its effect on the amount of or entitlement
to pension benefits; during the course of the following year the INPS shall take steps to recover any sums overpaid.
Article 1(260) to (265) of Law No 662 of 23 December 1996 rationalising public finance (Ordinary Supplement No 233 to GURI
No 303 of 28 December 1996) introduced an exception to the principle that sums paid though not due are to be recovered in
the field of social security.  It provides that pension benefits overpaid by public compulsory insurance bodies in respect
of periods before 1 January 1996 are not to give rise to recovery if in 1995 the persons concerned had taxable personal income
of no more than ITL 16 000 000.  If that taxable personal income is greater than that figure, no recovery is to be made of
up to a quarter of the amount overpaid.  Recovery is made monthly, without interest, in the form of a direct deduction from
the pension, and that deduction may not exceed one fifth of the pension.
Similar provisions were adopted in 2001 with regard to overpayments for periods before 1 January 2001.
The dispute in the main proceedings
Mr Pasquini worked in turn in Italy (140 weeks), France (336 weeks) and Luxembourg (1 256 weeks).
In response to a request submitted on 5 February 1987 Mr Pasquini obtained from the INPS a retirement pension pro rata as
from 1 March 1987.
Additions were made to the amount of that pension to bring it up to the level of the minimum pension referred to in Article
8 of Law No 153/69, namely, ITL 397 400 a month, given that at that time Mr Pasquini was receiving neither a French nor a
Luxembourg pension.
The payment decision stated that, pursuant to the abovementioned provision, the pension as supplemented in order to bring
it up to the level of the minimum pension would be recalculated, and therefore reduced, if another pension payable by a foreign
body were to be awarded.
On 26 July 1988 the INPS notified to Mr Pasquini a second decision recalculating his Italian pension as from 1 March 1987
because of the award to him on that date of a pro rata French pension.  That decision reduced the Italian pension to the monthly
sum of ITL 259 150.
The decisions adopted by the INPS on 20 October 1987 and 26 July 1988 mention the number of weeks that Mr Pasquini worked
in Italy (140), France (336) and Luxembourg (1 256).
By a third decision adopted on 30 March 2000, the INPS once again recalculated the applicant's Italian pension as from 1 March
1987 and reduced its amount as from 1 July 1988, the date on which his Luxembourg pension began, from ITL 287 750 to ITL 7 500
a month.  That third decision provided for the recovery of overpayments in the amount of ITL 56 160 950 (EUR 29 005) in respect
of the period from 1 March 1987 to 30 April 2000.
The administrative appeal brought by Mr Pasquini before the INPS on 30 October 2000 was rejected on 13 December 2000 on the
ground that
Article 13 of Law No 412/91 is not applicable to recovery of sums paid though not due in connection with the withdrawal of
the supplement bringing the total up to the level of the minimum pension as a result of the award of a foreign pension, since
at the time of assessment the beneficiary was informed that the amount of the pension was provisional, as provided for by
Article 8 of Law No 153/69.  By contrast, the decision of 13 December 2000 provided for application of Law No 662/96 and required Mr Pasquini to produce
a document relating to his income for 1995.
On 26 April 2001 Mr Pasquini brought an action before the Tribunale Ordinario di Roma challenging the non-applicability to
his situation of the Italian rules concerning recovery of sums paid though not due.  He claimed that the Italian legislation
was contrary to Regulations Nos 1408/71 and 574/72.
Those were the circumstances in which the Tribunale Ordinario di Roma decided to stay proceedings and refer the following
questions to the Court of Justice for a preliminary ruling:
1.
Is a provision of national law, which provides, without any time-limit and thus in breach of the principle of legal certainty,
for the recovery of an undue payment arising from the application of Community legislation, compatible with the objectives
of Regulation (EEC) No 1408/71 of the Council 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, and Council Regulation (EEC) No 574/72
of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71?
2.
Are the Community provisions cited above not to be interpreted as precluding the application of a provision of national law
which does not lay down time-limits for the recovery of undue payments arising from the belated or improper application of
the relevant Community provisions?
3.
Is it not possible, given that the transitional rules for the application of the social security regulations provide for a
time-limit of two years in which to claim, with retrospective effect, the rights conferred by those regulations, to apply
a contrario
the same time-limit of two years from notification of recovery of undue payment in cases of reduction of rights previously
conferred, except where more favourable time-limits are laid down by national law, and provided that the person concerned
is not guilty of improper conduct?
Consideration of the questions referred
The three questions referred by the national court may appropriately be considered together.
Observations submitted to the Court
Mr Pasquini refers to the national provisions applicable to recovery of sums paid though not due and observes that no criticism
may be made of him with regard to the sum which has been overpaid to him.  He draws attention to a letter sent on 18 October
1988 by the Luxembourg workers' social assistance body
Patronato ACLI to the INPS, informing the latter of the award of the Luxembourg pension and requesting it to reexamine without delay the
amount of Mr Pasquini's Italian pension so as to avoid there being any overpayment.  He notes that although the INPS was perfectly
au fait
with his pension position, which was apparent from the mention of Luxembourg on the pension forms as a place where a pension
had been granted, it waited until 30 March 2000 before recalculating his Italian pension, with 13 years' retrospective effect,
contrary to Article 49 of Regulation No 574/72.
He maintains that in the case in the main proceedings the non-applicability to his situation of the Italian legislation concerning
recovery of sums paid though not due is contrary to the general principles enshrined in Regulations Nos 1408/71 and 574/72.
He submits that, unlike recovery of a sum paid though not due arising pursuant to a provision solely of national legislation,
which is a matter of purely national law, recovery of a sum paid though not due arising from application of Community provisions
is a matter of Community law, because the Council, in the exercise of the powers which it holds under Article 42 EC, has the
power to lay down detailed rules for the exercise of rights to social benefits which the persons concerned derive from the
EC Treaty (Case 24/75
Petroni
[1975] ECR 1149, paragraph 20).
Mr Pasquini wonders whether the Community regulations on social security adopted by the Council might not be incompatible
with the objectives of Article 42 EC, inasmuch as they contain no specific provisions for the detailed rules governing the
recovery of sums paid though not due and, in particular, the limitation of actions.
It is his view that, in order to guarantee legal certainty, the questions must be settled in the context of Article 49 of
Regulation No 574/72 and the period of two years laid down in Articles 94, 95, 95a and 95b of Regulation No 1408/71 must be
applied by analogy.
Article 49 of Regulation No 574/72 requires the competent institutions to notify immediately to the person concerned decisions
recalculating, withdrawing or suspending the benefit received.  If the competent social security body does not observe that
rule, leaving the insured persons in legal uncertainty indefinitely, it must, in Mr Pasquini's submission, bear all the consequences,
in that it may not require repayment of sums overpaid through its own error or negligence.
Mr Pasquini notes that Articles 94, 95, 95a and 95b of Regulation No 1408/71 allow the persons concerned a period of two years
to assert their rights when that regulation is amended in their favour.  That period of two years could reasonably apply by
analogy where the regulation is amended unfavourably, so that the possibility of bringing an action for recovery of sums paid
though not due would be limited in time where the recipient acted in good faith.
The INPS and the Italian Government submit, first, that the questions referred lack reasoning and are inadmissible and, second,
that the Italian legislation is not incompatible with Regulations Nos 1408/71 and 574/72.
They point out that the decisions calculating the amount of the pension and granting a supplement to bring it up to the level
of the minimum pension, taken in accordance with Article 8 of Law No 153/69, were adopted provisionally and, pursuant to that
article, contain the warning that the pension paid by the Italian body could be reduced and that any sums overpaid since the
payment of the foreign pension could be recovered.
The Italian Government states that in their judgment No 1967 of 22 February 1995 the Sezioni Unite Civili (Joint Civil Chambers)
of the Supreme Court of Cassation, Italy, held that Article 8 of Law No 153/69 governs a specific mechanism for the determination
of pensions, a feature of which is a provisional determination the purpose of which is to grant an advance on the pension
and to recover the supplement paid in order to bring it up to a minimum level, taking into account any sums paid pro rata
by foreign social insurance bodies.  According to the Supreme Court of Cassation,
[w]ith regard to pensions paid, pursuant to international conventions, by reason of the aggregation of contributions paid
in Italy and those paid by a foreign country, the recovery of sums which are no longer payable as a result of the payment
of the foreign pension is provided for as a premiss inherent in the rule laid down in the relevant legislation, in Article
8 of Law No 153 of 30 April 1969, and it therefore constitutes specific and autonomous recovery.
The INPS and the Italian Government challenge the statement made in the questions referred for a preliminary ruling that there
is in Italian law no rule on the limitation of actions, and refer to the period of 10 years laid down in Article 2946 of the
Civil Code.
Furthermore, the INPS observes that, in accordance with the system established by Article 1(260) to (265) of Law No 662/96,
applicable in the case in the main proceedings, the sums overpaid to Mr Pasquini will be quite safe from any recovery if in
1995 his income was no more than ITL 16 000 000, or that only three quarters of the amount of those sums may be recovered
if his income was greater than that ceiling.  Low-income pensioners are accordingly protected by the Italian Law.
The INPS and the Italian Government conclude that, with regard to sums paid though not due, former migrant workers now in
receipt of a pension are treated in the same way as Italian pensioners who have not been migrant workers.
At the hearing, in response to a question put by the Court, the INPS's legal adviser stated that, so far as concerns persons
in receipt of a pension on account of their insurance under more than one Italian social security scheme, the INPS was bound
to undertake an annual review of total income and of the validity of the amount paid by way of pension.  As regards former
migrant workers, such annual review was made possible only by legislation adopted in 1996.
At the hearing the INPS also stated that it had not received the letter of 18 October 1988 from the Patronato ACLI informing
it of the award of the Luxembourg pension.  It was not until it received a notice of 17 November 1999 from the Luxembourg
institution Établissement d'Assurance contre la Vieillesse et l'Invalidité (Old-age and Invalidity Insurance Establishment,
the EAVI), that it was informed that Mr Pasquini had been receiving an anticipatory Luxembourg old-age pension since 1 July 1988.
Moreover, the EAVI acknowledged by letter of 15 May 2002 that it had not earlier communicated to the INPS the decision determining
the amount of the Luxembourg pension because Mr Pasquini lived in Luxembourg.  Given that no provision of national law required
the INPS to review the award of foreign pensions but, rather, that the Community social security regulations required the
Luxembourg institution to inform the INPS of the grant of the Luxembourg pension, it submits that it cannot be criticised
for any delay.  It notes that it recalculated Mr Pasquini's pension four months after receiving the relevant information.
The Austrian and Portuguese Governments observe that, in the absence of applicable provisions of Community law, it is domestic
law which determines the detailed rules and conditions for an action for recovery of sums paid though not due, so long as
the principles of effectiveness and equivalence have been observed.
The Portuguese Government, not being familiar with the law applicable to recovery of a sum paid though not due under Italian
social security law alone, submits that it does not have enough information available to it to ascertain whether the principle
of equivalence has been observed in the case in the main proceedings.  On the other hand, it considers that the principle
of effectiveness is not observed if there is no time-barring of the national competent body's right to require repayment of
a sum paid though not due, especially when such recovery means the reduction of previously recognised rights and is caused
by late or incorrect application of the relevant Community rules.  It submits that there has been a breach of the obligation
imposed by Article 49(2) of Regulation No 574/72 and of the fundamental principle of legal certainty, which is a principle
inherent in the Community legal order protecting not only the authorities but also individuals.
The Portuguese Government observes, furthermore, that according to the wording of the first recital in the preamble to Regulation
No 1408/71, the provisions for coordination of national social security legislation fall within the framework of freedom of
movement for workers and ought to contribute towards the improvement of their standard of living and conditions of employment.
The possibility of requiring repayment at any time of sums paid though not due would jeopardise that aim.
Noting that Article 94(6) of Regulation No 1408/71 gives expression to the fundamental principle of legal certainty and is
intended to protect the social security institutions, the Portuguese Government suggests that that provision ought to be interpreted
as precluding, pursuant to national law, the possibility of bringing an action for recovery of sums paid though not due for
a period of more than the last two years, from the date of notification of recovery, where the overpayment was made because
of late or incorrect application of the relevant Community rules.
The Austrian Government, noting that problems frequently arise in Austria in connection with the recalculation of Italian
pensions and the recovery of substantial sums paid though not due, submits that it is worth considering the question whether
it is possible to deduce in a general way from the transitional provisions of Regulation No 1408/71 that retrospective effect
is limited to two years in respect of all the legal consequences of those recalculations for migrant workers.
In its view, it is exactly when periods of insurance have been completed in more than one Member State that the persons concerned
are placed at a disadvantage, as a result of the juxtaposition of various legal orders, compared to workers who have been
employed in only one Member State.  From that point of view there is justification for special protection of migrant workers'
legitimate expectations, which might be assisted by limitation to two years of the retrospective effects of recalculation
provided for by national law.
The Austrian Government submits that it is difficult to accept that, although they have done nothing wrong, migrant workers
should nevertheless be penalised as such, in that they can be required to repay, without temporal limitation, overpayments
of benefits, when those sums are largely the result of the overlapping of the differing and extremely complex social security
laws of the various Member States and not of their own personal actions.
The Commission notes that Regulations Nos 1408/71 and 574/72 did not establish a common social security system but simply
set up a system for the coordination of national laws in the field of social security.
After rejecting the idea that Articles 111 and 112 of Regulation No 574/72 might be applicable, the Commission submits that
at first sight all adjustments in the field of social security are the exclusive responsibility of the Member States, which
are free to enact provisions in that area and that Regulations Nos 1408/71 and 574/72 do not impose the slightest restriction.
It notes, however, that the system established by the regulations is founded on the overriding need to ensure that equal treatment
of migrant workers and resident workers in the field of social security is achieved in actual practice, in particular ensuring
that migrant workers are not less favourably treated than resident workers.
The Commission submits that the answer to be given to the questions referred must therefore be that on a proper construction
of Regulations Nos 1408/71 and 574/72 provisions of national law which preclude recovery of sums paid though not due to persons
receiving benefits under certain national social security schemes apply also to persons receiving benefits under the similar
social security schemes taken into consideration by those regulations.
The Court's answer
It is important to bear in mind that the system set up by Regulation No 1408/71 is based on mere coordination of national
laws in the field of social security and is not intended to harmonise them (see, to that effect, Case 313/86
Lenoir
[1988] ECR 5391, paragraph 13).
The rules on limitation or on recovery of sums paid though not due must therefore be sought in the national law of the Member
State concerned (with regard to the limitation of actions, see Case 35/74
Rzepa
[1974] ECR 1241, paragraphs 12 and 13, in relation to Regulation No 3 of the Council of 25 September 1958 concerning social
security for migrant workers (Journal Officiel 1958 30, p. 561), and to Regulation No 4 of the Council of 3 December 1958
laying down detailed rules for the implementation of and supplementing the provisions of Regulation No 3 (Journal Officiel
1958 30, p. 597), but the result of which is applicable by analogy to Regulations Nos 1408/71 and 574/72).
The rules under Articles 94, 95, 95a and 95b of Regulation No 1408/71 cannot be applied to the case in the main proceedings.
They are in fact transitional provisions which apply only following the entry into force of Regulation No 1408/71 or of amendments
thereto.  The period of two years laid down by those provisions is a period taking effect from the date of application of
a new legislative provision and during which an interested party may request the application of that provision in his favour,
and no provision of national law laying down shorter periods for lapse or limitation of actions may be relied upon against
him.  That time-limit of two years cannot therefore be applied to a decision of the institution competent to recover sums
paid though not due.
The same holds good for Articles 111 and 112 of Regulation No 574/72, which deal exclusively with the relations between the
social security institutions of different Member States with a view to the recovery of sums paid though not due or to determining
which institution must support the cost where recovery of such a sum has become impossible.
Although national law is applicable to a situation arising from the overpayment of a pension supplement by reason of the authorised
maximum income's having been exceeded, it must however be stated that, with regard to a situation concerning a worker who
has exercised his right to freedom of movement under the Treaty, it is a requirement of Community law that the detailed procedural
rules governing that situation should observe the principles of equivalence and effectiveness (see, to that effect, Case C-261/95
Palmisani
[1997] ECR I-4025, paragraph 27 and Case C-231/96
Edis
[1998] ECR I-4951, paragraph 34).
In accordance with the principle of equivalence, the procedural rules governing such cases must be no less favourable than
those governing purely internal situations (see, to that effect,
Palmisani
, paragraph 32, and
Edis
, paragraph 34). Otherwise, there would be a breach of the principle of equal treatment for workers who have exercised their
right to freedom of movement and those who have spent their entire working life in a single Member State.
In accordance with the principle of effectiveness, those procedural rules must not render virtually impossible or excessively
difficult the exercise of rights conferred by Community law (see, to that effect,
Palmisani
, paragraphs 28 and 29, and
Edis
, paragraph 34).
It would be contrary to the principle of equivalence for a situation arising from the exercise of a Community freedom to be
classified or treated differently from a purely internal situation when they are similar and comparable, and for the situation
of Community origin to be subjected to special rules less favourable to the worker than those applicable to a purely internal
situation, the only reason being that difference in classification or treatment.
In their written observations, the INPS and the Italian Government stated that certain rules of Italian law on the limitation
of actions and recovery of sums paid though not due were applicable to Mr Pasquini's situation, in particular the 10-year
limitation period prescribed by Article 2946 of the Civil Code and the rules providing for an exception to the principle of
recovery of sums paid though not due in the field of social security and limiting the amounts which may be recovered in step
with the income of the persons concerned.
Application of those rules both to situations arising from the exercise of freedom of movement for persons and to purely internal
situations satisfies the requirement of the principle of equivalence.
However, it must be stated that that principle must be applied not only with regard to provisions of national law on limitation
of actions and recovery of sums paid though not due, but also to all procedural rules governing the treatment of comparable
situations, whether administrative or judicial.
Provisions making it possible to take into account the good faith of the person concerned must thus be applied in an equivalent
manner, whether the person is a former migrant worker who has been a member of social security schemes in more than one Member
State or a former worker who has been a member of more than one scheme under domestic law.
In that connection, the fact that Mr Pasquini was informed, on being granted the Italian pension supplement, that the amount
of the supplement was liable to be reviewed when a foreign pension was awarded, does not appear to justify his receiving treatment
different from that afforded to an Italian pensioner in receipt of one or more exclusively Italian pensions.  That warning
would not seem to be capable of making his situation different from that of an Italian pensioner who has been a member of
several Italian social security schemes and who is in receipt of such a pension supplement and who must expect to have that
amount reviewed if he is subsequently awarded a pension under another scheme or if the authorised upper limit of income is
exceeded.
Nevertheless, it is for the court making the reference to establish whether, in that respect, Mr Pasquini's situation is comparable
to that of an Italian pensioner.
It must in any case be stated that, so far as Italian pensions received because of the beneficiary's membership of different
schemes under domestic law are concerned, Italian law requires the INPS to monitor the payment of pensions and, if need be,
adjust the amount.  Accordingly, Article 13(2) of Law No 412/91 requires that body once a year to check pensioners' income
and its effect on entitlement to or the amount of pension benefits.
On the other hand, as regards Italian pensions paid to former migrant workers who have to receive several pensions because
they belonged to social security schemes in various Member States, it is clear from the documents before the Court that for
a long time no such check was carried out, leaving certain overpayments to build up for many years, as in Mr Pasquini's case.
It must be held that, if the duty to check the payment of pensions had been performed in the same way with regard to pensions
awarded to former migrant workers as to former workers who had been members of more than one scheme under national law exclusively,
the overpayment recoverable to be repaid by a former migrant worker would amount at the most to the sums received by him,
though not due, during one year.
Therefore, even if Mr Pasquini cannot be considered as having acted in good faith within the meaning of the Italian Law, according
to what has been stated in paragraphs 62 and 63 above, the principle of equivalence would in any case prevent the claiming
of more than the equivalent of a year of pension supplements paid though not due.
In this respect it is of small importance that in the case in the main proceedings one of the institutions of a Member State,
the EAVI, having adopted a decision awarding a pension, failed to fulfil its obligation under Article 49 of Regulation No
574/72 to notify that decision without delay to the INPS.  The principle of equivalence, which requires that two comparable
situations, one of Community origin and the other purely internal, should be subject to the same procedural rules, is in fact
simply the expression of the principle of equal treatment, which is one of the fundamental principles of Community law.  Article
49 of Regulation No 574/72, the sole purpose of which is to regulate relations between social security institutions of the
various Member States, and not to determine the rights of the persons concerned
vis-à-vis
those institutions, may not be interpreted as allowing derogation from that principle of equal treatment.
On the contrary, the persons concerned may draw from that article the legitimate expectation that their situation will be
treated with due care and attention by the social security institutions of the various Member States in which they have worked,
and that they will not be required to satisfy themselves that administrative information concerning them has been communicated
by one of those institutions to another.
In that regard it must be stated that, as is made clear by the references in the decisions adopted by the INPS on 20 October
1987 and 20 July 1988, that body was aware of the fact that Mr Pasquini had worked in Luxembourg for 1 256 weeks, that is
to say the greater part of his working life.
Having regard to all those considerations, the answer to be given to the questions referred by the national court must be
the following: Since Regulation No 1408/71 does no more than ensure coordination of provisions of national legislation in the field of social
security, it is national law which is applicable to a situation arising out of the payment of sums not due, made to a person
in receipt of more than one pension by virtue of his belonging to social security schemes in various Member States, in the
form of a pension supplement where the maximum authorised income is exceeded.  The two-year time-limit referred to in Articles
94, 95, 95a and 95b of Regulation No 1408/71 cannot be applied by analogy to such a situation.National law must, however, observe the Community principle of equivalence, in accordance with which the detailed procedural
rules governing the treatment of situations arising out of the exercise of a Community freedom must be no less favourable
than those governing purely internal situations, and the Community principle of effectiveness, in accordance with which those
procedural rules must not render virtually impossible or excessively difficult the exercise of rights arising out of the situation
of Community origin.Those principles apply to all the procedural rules governing the treatment of situations arising out of the exercise of a
Community freedom, whether those rules are administrative or judicial, such as the provisions of national law applicable to
the limitation of actions and the recovery of sums paid though not due or those requiring the competent institutions to take
account of the good faith of the persons concerned or to carry out proper checks of their situation with regard to pensions.
Costs
The costs incurred by the Italian, Austrian and Portuguese Governments, and by the Commission, which have submitted observations
to the Court, are not recoverable.  Since these proceedings are, for the parties to the main proceedings, a step in the action
pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the Tribunale Ordinario di Roma by order of 24 January 2002, hereby rules:
Wathelet
Timmermans
Edward
Jann
Rosas
Delivered in open court in Luxembourg on 19 June 2003.
R. Grass
M. Wathelet
Registrar
President of the Fifth Chamber
–
Language of the case: Italian.