Opinion of the Advocate General — ECLI:EU:C:2001:174
Date: 2001-03-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 
1. Social security for migrant workers — Old age and death insurance — Benefits — 
Amendment of the calculation rules by Regulation No 1248/92 — Application of the 
new calculation rides — Transitional provisions — Scope — Application by the 
person concerned for review under the provisions of Regulation No 1248/92 
(Council Regulation No 1408/71, Art. 95a(4) to (6) and No 1248/92) 
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SUMMARY — CASE C-118/00 
2. Community law — Direct effect — Primacy — National provision prohibiting the 
court having jurisdiction from setting aside national provisions that impair the 
effectiveness of Community law — Obligations and powers of national courts and 
tribunals 
3. Social security for migrant workers — Old age and death insurance — Benefits — 
National rules against overlapping — Unenforceability pursuant to a judgment of the 
Court of justice — Limitation of the effects of a review of rights to the detriment of 
the person concerned — Serious breach of Community law 
(Council Regulation No 1408/71, Art. 95(a)(4) to (6) and No 1248/92) 
1. In order for the right to review pro­
vided for in Article 95a of Regulation 
No 1408/71, as amended by Regula­
tion No 1248/92, to be capable of 
applying to a given situation, the 
application made to that effect must 
be based on the new provisions inserted 
by Regulation No 1248/92. Accord­
ingly, Article 95a(4), (5) and (6) of 
Regulation No 1408/71, as amended, 
does not apply to an application for 
review of a retirement pension, the 
amount of which has been limited 
under an anti-overlapping rule applic­
able in a Member State, on the ground 
that the person receiving that pension 
has also been awarded a retirement 
pension paid by the competent institu­
tion of another Member State, where 
the application for review is based on 
provisions other than those in Regula­
tion No 1248/92. 
(see paras 28, 32 
and operative part 1) 
2. Any provision of a national legal 
system and any legislative, administra­
tive or judicial practice which might 
impair the effectiveness of Community 
law by withholding from the national 
court having jurisdiction to apply such 
law the power to do everything neces­
sary at the moment of its application to 
set aside national legislative provisions 
which might prevent, even temporarily, 
Community rules from having full 
force and effect are incompatible with 
requirements that are the very essence 
of Community law. That principle of 
the primacy of Community law means 
that not only the lower courts but all 
the courts of the Member State are 
under a duty to give full effect to 
Community law. 
(see paras 51-52) 
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LARSY 
3. The application by the competent 
institution of a Member State of Arti­
cle 95a(4), (5) and (6) of Regulation 
No 1408/71, as amended by Regula­
tion No 1248/92 to a request for 
review of a retirement pension, thus 
limiting the retroactivity of the review 
to the detriment of the person con­
cerned, constitutes a serious breach of 
Community law if those provisions are 
not applicable to the application in 
question and if it follows from a 
judgment delivered by the Court of 
Justice before the decision by the 
competent institution that the institu­
tion wrongly applied an anti-overlap-
ping rule of that Member State, and 
where it cannot be inferred from that 
judgment that the retroactive effect of 
such a review could be limited. 
(see para. 55 and operative part 2) 
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