Johann Franz Duchon v Pensionsversicherungsanstalt der Angestellten.
Date: 2002-04-18
21 In that regard, it should be borne in mind that it is settled case-law that the principle of legal certainty precludes a regulation from being applied retroactively, regardless of whether such application might produce favourable or unfavourable effects for the person concerned, unless a sufficiently clear indication can be found, either in the terms of the regulation or its stated objectives, which allows the conclusion to be drawn that the regulation was not merely providing for the future (Case 234/83 Gesamthochschule Duisburg [1985] ECR 327, paragraph 20, and Case C-28/00 Kauer [2002] ECR I-1343, paragraph 20). Although the new law is thus valid for only for the future, it also applies, according to a generally recognised principle, in the absence of a provision to the contrary, to the future effects of situations which came about during the period of validity of the old law (see, to that effect, Case 96/77 Bauche and Delquignies [1978] ECR 383, paragraph 48; Case 125/77 Koninklijke Scholten-Honig and De Bijenkorf [1978] ECR 1991, paragraph 37; Case 40/79 P. v Commission [1981] ECR 361, paragraph 12; Case 270/84 Licata v Economic and Social Committee [1986] ECR 2305, paragraph 31; Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraphs 49 and 50; and Kauer, cited above, paragraph 20).
22 By providing that no right is to be acquired in respect of a period prior to the date of its application in the territory of the Member State concerned, Article 94(1) of Regulation No 1408/71 is in full accord with the principle of legal certainty mentioned earlier.
23 Equally, in order to enable Regulation No 1408/71 to apply to the future effects of situations arising under the period of validity of the old law, Article 94(2) imposes the obligation to take into consideration, for the purposes of determining rights to benefit, all periods of insurance, employment or residence completed under the legislation of any Member State before 1 October 1972 or before the date of its application in the territory of that Member State. It follows, therefore, from that provision that a Member State is not entitled to refuse to take into account periods of insurance completed in the territory of another Member State, for the purposes of establishment of a retirement pension, for the sole reason that they were completed before the entry into force of the regulation in its regard (Case C-227/89 Rönfeldt [1991] ECR I-323, paragraph 16, and Kauer, paragraph 22).
28 In that respect, it is appropriate, as a first step, to review the legality of a provision such as Paragraph 235(3)(a) of the ASVG in the light of Community law as it would apply if the accident at work had occurred after the accession to the European Union of the Republic of Austria.
31 On the latter point, it must be remembered that it is for the national court to apply Community law in full and to protect the rights that it confers on individuals, if necessary by not applying a provision where its application, in the circumstances of the case before it, would lead to a result contrary to Community law (Case C-262/97 Englebrecht [2000] ECR I-7321, paragraph 40).
32 Second, where, as in the case in the main proceedings, the national legislation applies to the acquisition of the right to a pension for incapacity for work resulting from an accident at work which occurred before the date of entry into force of Regulation No 1408/71 in the Member State where the pension is claimed, it must be pointed out, first, that the determination of a pension entitlement acquired after the accession of the Republic of Austria to the European Union, even as the result of a contingency which materialised before that date, must be effected by the Austrian authorities in accordance with the provisions of the Treaty on freedom of movement for workers (see, to that effect, Kauer, cited above, paragraph 45).
38 In that regard, as the Austrian Government and the Commission point out, it already follows from the Court's case-law that even if, formally, legislation of the type in question in the main proceedings applies without distinction as to nationality to all Community workers, who may accordingly, under the conditions which it lays down, benefit from the prolongation of the reference period, such legislation, in so far as it makes no provision for the possibility of prolongation of the reference period where events or circumstances, such as the payment of accident benefits, corresponding to those which enable the period to be prolonged occur in another Member State, is liable to have a much greater adverse effect on migrant workers, since they above all, particularly in the case of invalidity, tend to return to their countries of origin (see, to that effect, Case C-349/87 Paraschi, cited above, paragraph 24).
39 That being so, Article 48(2) and 51 of the Treaty preclude national legislation which permits, in certain circumstances, the reference period to be prolonged, but does not provide for the possibility of a prolongation where events or circumstances corresponding to those which would enable it to be granted occur in another Member State (Paraschi, paragraph 27).
43 In that respect, it must be pointed out that the case in the main proceedings does not concern the acquisition of a pension entitlement in respect of a period prior to the entry into force of the EEA Agreement in the Republic of Austria, but concerns the acquisition of such entitlement with effect from 1 January 1998.
44 As the Court has already held in its judgment in Case C-195/98 Österreichischer Gewerkschaftbund [2000] ECR I-10497, paragraph 55, the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241 p. 21, and OJ 1995 L 1, p. 1) contains no transitional provisions concerning the application of Article 48 of the Treaty. The provisions of that article must be considered to be immediately applicable and binding as regards the Republic of Austria as from the date of its accession to the European Union, that is to say 1 January 1995. Since that date, they may be relied on by migrant workers from any Member State and be applied to the present and future effects of situations arising before the accession of the Republic of Austria to the European Union.