Keywords

Summary



Keywords

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 rules - 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)

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)

Summary

1. In order for the right to review provided for in Article 95a of Regulation No 1408/71, as amended by Regulation 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. Accordingly, 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 applicable in a Member State, on the ground that the person receiving that pension has also been awarded a retirement pension paid by the competent institution of another Member State, where the application for review is based on provisions other than those in Regulation No 1248/92.

( see paras 28, 32 and operative part 1 )

2. Any provision of a national legal system and any legislative, administrative 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 necessary 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 )

3. The application by the competent institution of a Member State of Article 95a(4), (5) and (6) of Regulation No 1408/71, as amended by Regulation 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 concerned, 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 institution wrongly applied an anti-overlapping 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 )