Gervais Larsy v Institut national d'assurances sociales pour travailleurs indépendants (INASTI).
Date: 2001-06-28
29 The Court has already held that the purpose of Article 95a(4) is to enable the person concerned to ask for the benefits awarded under the unamended regulation to be reviewed where it appears that the rules of Regulation No 1248/92 are more favourable to him and to have benefits awarded under the provisions of the unamended regulation maintained where these appear more advantageous than those resulting from Regulation No 1248/92 (Case C-307/96 Baldone [1997] ECR I-5123, paragraph 15).
34 First of all, it should be recalled that liability for loss and damage caused to individuals as a result of breaches of Community law attributable to a national public authority constitutes a principle, inherent in the system of the EC Treaty, which gives rise to obligations on the part of the Member States (see Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, paragraph 31; Case C-392/93 British Telecommunications [1996] ECR I-1631, paragraph 38; Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 24; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraph 20; Case C-127/95 Norbrook Laboratories [1998] ECR I-1531, paragraph 106; and Case C-424/97 Haim [2000] ECR I-5123, paragraph 26).
35 It is for each Member State to ensure that individuals obtain reparation for loss and damage caused to them by non-compliance with Community law, whichever public authority is responsible for the breach and whichever public authority is in principle, under the law of the Member State concerned, responsible for making reparation (Case C-302/97 Konle [1999] ECR I-3099, paragraph 62, and Haim, cited above, paragraph 27).
36 As regards the conditions to be satisfied in order for a Member State to be required to make reparation for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible, it is clear from the case-law of the Court that there are three: the rule of law infringed must have been intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the loss or damage sustained by the injured parties (see the cases cited above of Brasserie du Pêcheur and Factortame, paragraph 51; Dillenkofer and Others, paragraphs 21 and 23; Norbrook Laboratories, paragraph 107, and Haim, paragraph 36; see also Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 37).
38 In that regard, it must be recalled, first, that a breach of Community law is sufficiently serious where a Member State, in the exercise of its legislative powers, has manifestly and gravely disregarded the limits on its powers (see Brasserie du Pêcheur and Factortame, paragraph 55; British Telecommunications, paragraph 42; and Dillenkofer and Others, paragraph 25) and, secondly, that where, at the time when it committed the infringement, the Member State in question had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (see Hedley Lomas, paragraph 28; Norbrook Laboratories, paragraph 109, and Haim, paragraph 38).
39 In order to determine whether such an infringement of Community law constitutes a sufficiently serious breach, all the factors which characterise the situation put before the national court must be taken into account. Those factors include, in particular, the clarity and precision of the rule infringed, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by a Community institution may have contributed towards the adoption or maintenance of national measures or practices contrary to Community law (Haim, paragraphs 42 and 43).
43 As regards Articles 12 and 46 of Regulation No 1408/71, the Court of Justice held, at paragraphs 19 and 22 of the Larsy judgment, cited above, that overlapping pensions to the benefit of a person who has, during the same period, worked in two Member States and who has during that period been obliged to pay old-age insurance contributions in both of those Member States cannot be deemed unjustified. The factual and legal situation on which that judgment is based is comparable in every respect to that which gave rise to the main proceedings.
44 In that connection, it must be recalled that a breach of Community law will be sufficiently serious if it has persisted despite a preliminary ruling from the Court from which it is clear that the conduct in question constituted an infringement (Brasserie du Pêcheur and Factortame, cited above, paragraph 57).
48 Furthermore, as the Commission observed in its submissions and the Advocate General pointed out at point 87 of his Opinion, paragraphs (4), (5) and (6) of Article 95a Regulation No 1408/71 are worded in terms similar to paragraphs (5), (6) and (7) of Article 94 of the same regulation. The Court had already held, well before Inasti adopted its decision on the basis of Article 95a, that the transitional provisions in Regulation No 1408/71, which include Article 94(5), are based on the principle that benefits awarded under the old version of Regulation No 1408/71 are not to be reduced. The purpose of that provision is therefore to give the person concerned the right to request the review in his favour of benefits payable under the old version of Regulation No 1408/71 (see Case 83/87 Viva [1988] ECR 2521, paragraph 10).
51 Suffice it to observe in that regard that the Court has held that 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 those requirements, which are the very essence of Community law (Cases 106/77 Simmenthal [1978] ECR 629, paragraph 22, and C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 20).
52 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, to that effect, Cases 48/71 Commission v Italy [1972] ECR 529, paragraph 7, and C-101/91 Commission v Italy [1993] ECR I-191, paragraph 24).