Opinion of the Advocate General — ECLI:EU:C:1998:480
Date: 1998-10-15
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Spain

summary of the relevant rules of national
law and the decisions made by the Court in
Lafuente Nieto and Naranjo Arjona 5 before
even considering the subject-matter of the
proceedings in the national court.
3. Spanish social security is based on a dis­
tributive model of insurance, that is to say, it
is based on risk: the amount of benefits
received is, therefore, independent of the
length of insurance periods completed. In
particular, the amount of the contributory
old-age pension (a benefit which must be dis­
tinguished from the welfare old-age pension)
for employed persons must be calculated —
once the conditions giving rise to the right to
the benefit have been met 6— on the basis of
the so-called 'basic amount' (base regula­
dora). That basic amount consists of the total
of the contribution bases of the worker con­
cerned in the 96 months before materialisa­
tion of the insured risk, 7 divided by a fixed
number (112). 8 If, for all or part of the refer­
ence period, the worker concerned was not
under an obligation to pay social security
contributions, the bases applicable to fill such
gaps will be the minimum bases set annually
by law for adult workers. The basic amount
is then multiplied by a percentage which
varies according to the number of years for
which the worker has made contributions,
with the proviso that the amount of the pen­
sion resulting from this calculation may not
be less than the minimum (or, as the case may
be, more than the maximum) fixed annually
by Spanish law.
4. I would add that under the system of cal­
culation described, the contribution bases for
the 24 months immediately preceding mate-
5 — The legislative background and the relevant case-law is
described in greater detail in my Opinions of 20 June 1996 in
Case C-251/94 (cited above at footnote 1) [1996] ECR I-4190,
in particular, paragraphs 4 and 11 to 18, and of 17 June 1997
in Joined Cases C-31/96, C-32/96 and C-33/96 (cited ibidem)
[1997] ECR I-5503, in particular, paragraphs 6 to 12, 19 to 22,
27 and 28.
6 — Such as those relating to the minimum age (generally 65) and
the minimum period of contributions of the person entitled
(15 years, of which at least two must have been during the
eight years immediately preceding the date on which the right
to the benefit arose).
7 — Under the Spanish general scheme, the contribution basis for
all the so-called joint risks, on which the contributions pay­
able by the employer and by the worker are calculated by
applying percentages fixed annually by the Government (for
1997, those percentages were, respectively, 23.6 and 4.7%),
is determined by the total payment (in any form or denomi­
nation) which an employed person is entitled to receive (or is
actually receiving, if greater than the applicable maximum)
during the reference month. Sums paid at intervals of more
than one month are apportioned over the 12 months of the
year (see Real Decreto Legislativo 1/1994, de 20 de junio, por
el que se aprueba el texto refundido de la Ley General de la
Seguridad Social, Arricies 105(2) and 109(1) (Boletín Oficial
del Estado of 29 June 1994, No 154, p. 20658), and Real
Decreto 2064/1995, de 22 de diciembre, por el que se aprueba
el Regolamento General sobre Cotización y Liquidacíon de
otros Derechos de la Seguridad Social, Articles 8 and 23 (BOE
of 25 January 1996, No 22, p. 2295)). This area was the sub­
ject of a recent legislative reform, which is not relevant for the
purposes of this Opinion (see Ley 241/1997, de 15 de julio,
de Consolidación y Racionalización del Sistema de Seguridad
Social (BOE of 16 July 1997, No 169, p. 21781), Real Decreto
1426/1997, de 15 de septiembre, por el que se modifican deter­
minados artículos de los Reglamentos Generales de Recau­
dación de los recursos del sistema de la Seguridad Social y
sobre Cotización y Liquidación de otros recursos de la Segu­
ridad Social (BOE of 30 September 1997, No 234, p . 28443),
and Real Decreto 1647/1997, de 31 de octubre, por el que se
desarrollan determinados aspectos de la Ley 241/1997, de 15
de julio, de Consolidación y Racionalización del Sistema de
Seguridad Social (BOE of 13 November 1997, p. 33156)).
8 — That figure is the result of multiplying the number of years
in that legal reference period (8) by a factor of 14, which cor­
responds to the number of months' pay received annually.
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GRAJERA RODRÍGUEZ v INSS AND TGSS
rialisation of the risk are assessed at face value,
whereas the remainder — in respect of the
first 72 months of the whole period of 8 years
— are subject to revalorisation in line with
the consumer price index published by the
Instituto National de Estadística. 9
5. The determination of the basic amount of
old-age pensions (and of benefits for perma­
nent total invalidity due to non-occupational
illness), under the system described above, is
less straightforward in the case of migrant
workers who, having completed periods of
contribution in Spain, have worked (and paid
contributions) in another Member State during
the eight years preceding materialisation of
the risk. Before 1 January 1986, the date of
the accession of Spain to the Community, the
determination of the basic amount of benefits
payable to such workers was regulated by a
succession of bi-or multilateral conventions
on social security, concluded by Spain with
almost all the existing Member States (with
the exception of Denmark, Ireland and
Greece) 10 and incorporated into its national
law. The Convenio entre la República Federal
de Alemania y el Estado Español sobre Segu­
ridad Sodai, signed on 4 December 1973
which came into force on 1 November 1977
(hereinafter 'the Convention'), 1 1is of special
interest for present purposes, particularly
Article 25(1)(b) thereof concerning the calcu­
lation by the competent Spanish authorities
of the amount of the old-age pension (and,
under Article 26(1) of the Convention, of
invalidity pensions). That article, which is not
the subject of an express reservation under
Annex III to the Regulation, 12 provides: 'if
the whole or part of the contribution period
chosen by the claimant for the calculation of
his own basic amount of benefits is completed
in the Federal Republic, the competent Spanish
institution shall determine that basic amount
by reference to the contribution bases in force
in Spain during that period or part thereof for
workers in the same category as the person
concerned.'
6. The Convention and other international
agreements concerning social security signed
by Spain ceased to be in force (apart from
provisions which were the subject of express
9 — See Ley 261/1985, de 31 de julio, de medidas urgentes para la
racionalización de la estructura y de la acción protectora de la
Seguridad Social, Article 3 (BOE of 1 August 1985, No 183,
p. 1907); that legislation was subsequently incorporated, with
minor formal amendments, in Articles 140(4), 162(1) and 163
of the Texto Refundido de la Ley General de ¡a Seguridad
Social (cited above at footnote 7). Under the system predating
the entry into force of the Ley 261/1985, it was up to the
worker to choose an uninterrupted period of 24 months
during the 7 years preceding materialisation of the risk; the
basic amount of the benefit was calculated by dividing by 28
the sum total of the contribution bases of the person con­
cerned during that period (sec Decreto 1646/1972, de 23 de
junio, para la aplicación de la Ley 241/1972, de 21 de junio,
en materia de prestaciones del Régimen General de la Segu­
ridad Social, Article 7(1) (DOE of 28 June 1972)).
10 — For a full list of such conventions (updated to 12 March
1997), see Memento práctico Social 1997. Derecho laboral,
seguridad social, Madrid, 1997, pp. 418 and 419.
11 — See BOE of 28 October 1977, No 258, p. 2295, and Bundes­
gesetzblatt, 1977, II, p. 687.
12 — See below, footnotes 13 and 14 and the parts of the text to
which they relate. Article 25(1)(b) of the Convention, cited
below in the body of this Opinion, provides as follows in
the original: 'Cuando todo o parte del periodo de cotización
elegido por el solidante para el cálculo de su base reguladora
de prestaciones se hubiera cumplido en la República Federal,
el Organismo competente español determinará dicha base
reguladora sobre las bases de cotización vigentes en Espaita,
durante dicho periodo o fracción, para los trabajadores de la
misma categoría profesional que la persona interesada.' The
provision in the rule just cited for the worker to choose the
period of contribution for the calculation of his own basic
amount — an option which the Spanish social security leg­
islation in force docs not offer — can obviously be explained
by the history of the social security system in force in Spain
at the time when the Convention was concluded (sec above,
footnote 9).
I - 8649
OPINION OF MR LA PERGOLA — CASE C-153/97
reservation 13) on 1 January 1986, when, as I
have said, the Regulation became part of
Spanish law. Under Article 6 of the Regula­
tion, it replaced, as a matter of principle, 14
and only as regards its scope rattorte personae
et materiae, any previous social security con­
vention which was exclusively binding on two
or more Member States.
7. Under the Regulation, Article 47(1) is
applicable in all cases in which the acquisi­
tion, retention or recovery by a migrant
worker of the right to an invalidity or old-age
pension results, in the legislation of a Member
State, from the application of the mechanism
under Article 45 of the Regulation for aggre­
gating all periods of insurance or residence
completed by the worker in question in the
various Member States concerned. For the
purposes of administrative simplicity, the
Community legislature set out, in Article 47(1)
of the Regulation, additional criteria for the
calculation of the theoretical amount of the
benefit 15 and the actual pro rata amount by
each social security institution concerned.
8. When Spain (and Portugal) acceded to the
Community, 16 Article 47(1) of the Regula­
tion was extended by the addition of a new
provision, subparagraph (e) (now subpara­
graph (g)), according to which, where the
national legislation to which the competent
social security institution is subject requires it
to calculate benefits on the basis of average
contributions, that average is to be deter­
mined 'by reference only to those periods of
insurance completed under the legislation of
the said State.'
9. More specifically, the competent Spanish
institution is required to calculate the theo­
retical benefit 'on the basis of the actual con­
tributions of the insured person during the
years immediately preceding payment of the
last contribution to the Spanish social secu­
rity.' Moreover, the 'increases and revalorisa­
tions calculated for each year after and up to
the year preceding the materialisation of the
risk for pensions of the same kind' (emphasis
added) must be applied to the theoretical
benefit resulting from the above calculation.
This was the wording the Community legis­
lature decided on in 1992, when it inserted a
new paragraph 4 in Heading D of Annex VI
13 — See Case 82/72 Walder [1973] ECR 599, paragraphs 6 and 7.
14 — With the exception — for the purposes of this Opinion — of
the 'international provisions not affected by this Regulation'
mentioned in Article 7 of the Regulation, including the spe­
cific provisions of social security conventions which 'the
provisions of Article 6 notwithstanding ... continue to apply'
where they are the subject of an express reservation men­
tioned in Annex III to the Regulation itself (see Article
7(2)(c)).
15 — Article 46(2) of the Regulation, which is the provision appli­
cable where the conditions laid down by the legislation of a
Member State for the acquisition of the right to benefits are
met only after application of Article 45, provides as follows:
'(a) the competent institution shall calculate the theoretical
amount of the benefit to which the persons concerned could
lay claim provided all periods of insurance and/or of resi­
dence, which have been completed under the legislations of
the Member States to which the employed person or self-
employed person was subject, have been completed in the
State in question under the legislation which it administers
on the date of the award of the benefit. If, under this legisla­
tion, the amount of the benefit is independent of the dura­
tion of the periods completed, the amount shall be regarded
as being the theoretical amount referred to in this para­
graph.'
16 — See Article 26 and Chapter VIII of Annex I to the Act of
Accession, cited above at footnote 2.
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GRAJERA RODRÍGUEZ v INSS AND TGSS
to the Regulation, in order to ensure its cor­
rect interpretation. 17
10. In its ruling on interpretation in Lafuente
Nieto, which concerned the calculation of
social security benefits payable to a Spanish
worker who became incapacitated for work
in Germany and who had paid no contribu­
tions under the Spanish legislation during the
requisite period for the determination of the
average contribution basis, 18 the Court laid
down two important principles. First of all, it
made clear that Article 47(1)(e) (now sub­
paragraph (g)) of the Regulation in fact con­
cerns a method for calculating benefits based
on average contributions like that provided
for by Spanish law (see paragraphs 16 to
29). 19
The rule at issue, the Court added, is in con­
formity with Articles 48 and 51 of the Treaty,
but should be properly interpreted in the light
of the objectives of those articles. They require
migrant workers to be protected from any
17 — According to the Court, the new provisions inserted by
Regulation No 1248/92 in Heading D, paragraph 4, of Annex
VI to the Regulation arc confined to clarifying, without
altering, the content of Article 47(1)(g) thereof, and 'are
intended only to ensure the compatibility thereof with the
principles set out in Article 51 of the Treaty' (see Case
C-251/94, cited above at footnote 1, paragraph 42, and Joined
Cases C-31/96 to C-33/96, cited above ibidem, paragraph
24), The need to specify the methods of applying Article 47
of the Regulation for Spain is, moreover, explicitly men­
tioned in the preamble to Regulation No 1248/92 (see the
thirty-second recital). Note that subparagraph (b) of para­
graph 4, cited above, was amended by Council Regulation
(EC) No 1223/98 of 4 June 1998 amending Regulation (EEC)
No 1408/71 on the application of social security schemes to
employed persons, to self-employed persons and to mem­
bers of their families moving within the Community and
Regulation (EEC) No 574/72 laying down the procedure for
implementing Regulation (EEC) No 1408/71 (OJ 1998
L 168, p. 1; see below, point 21).
18 — Mr Lafuente Nieto was employed in Spain (until 1969) and
then in Germany (until July 1990), where he became wholly
and permanently incapacitated for work. The competent
social security institution calculated the amount of the con­
tested pension as if contributions had been paid on the
minimum basis for the years in which he had worked and
paid contributions in Germany (that ís to say, for the whole
of the reference period for the purposes of the calculation
of the basic amount), taking the view that during that period
he was under no obligation to pay social security contribu­
tions (sec above, point 3). However, Mr Lafuente Nieto
argued that the quotient for the calculation of the Spanish
pension should have taken account of the contribution bases
used to calculate the contributions paid in Germany during
the period immediately preceding materialisation of his inval­
idity, provided those contribution bases did not exceed the
maximum applicable in Spain during that period, and calcu­
lating the minimum contribution basis only for the months
when he did not pay contributions in Germany. I would
point out, in passing, that the fact that this case concerns a
different benefit (Spanish old-age pension) from that at issue
in Lafuente Nieto does not mean that this precedent is irrel­
evant in the present context. Under Article 40(1) of the
Regulation, the provisions of Tide III, Chapter 3, of the
Regulation laying down specific provisions concerning
old-age pensions and death are to be applied by analogy to
workers who become incapacitated and who — likeMr Lafu­
ente Nieto — have been successively subject to the legisla­
tion of two or more Member States, at least one of which is
based on a distributive model of insurance (such as the
Spanish system).
19 — The Court thus dismissed the plaintiffs arguments that the
method for calculating invalidity benefits under Spanish law
falls within the rule in Article 47(1)(b) of the Regulation
which applies where, under the national legislation: (i) ben­
efits are calculated on the basis of the amount of earnings,
contributions or increments and (ii) the periods of insurance
or residence completed in another Member State. As the
Court rightly pointed out, under the Spanish social security
system calculation of the benefits is not based on the amount
of earnings, contributions or increases received by the worker
concerned during the whole of the insurance or residence
periods completed by him (see Case C-251/94, cited above
at footnote 1, paragraph 21). The Court also rejected the
Commission's argument that the rules in Article 47(1)(c) do
not apply to the Spanish legislation. The Commission had
pointed out that the provision in question laid down specific
rules valid only in the circumstances expressly contemplated
thereby, while it is still possible for national social security
schemes not contemplated by any of the rules to exist (see
Case 181/83 Weber [1984] ECR 4007); further, as confirmed
by the Court in Case C-406/93 Reichling [1994] ECR I-4061,
Article 46(2)(a) of the Regulation [see above, footnote 13)
provides that, in the calculation of the theoretical amount of
benefit, account must be taken of the earnings of the worker
when the risk materialised in another Member State, Dis­
missing that argument, the Court pointed out, first, that the
circumstances in which the rule in Article 47(1)(c) was
inserted into the Regulation 'indicate that it was intended
precisely to cover a system of calculating invalidity benefits
such as that laid down by the Spanish legislation, which
effectively provides that, unless specified otherwise, benefits
arc to be calculated on the basis of average contributions'
(ibid., paragraph 23). Second, the Court found that the addi­
tions made by Regulation No 1248/92 (see above, paragraph
9) to Annex VI to the Regulation, even if they entered into
force after the events in issue in that case, confirmed the fact
that Article 47(1) 'which refers precisely to the calculation
of the theoretical amount of the benefit, contains rules which
concern the Spanish legislation' (ibid., paragraph 28).
I - 8651
OPINION OF MR LA PERGOLA — CASE C-153/97
adverse effect stemming from the exercise of
their right to freedom of movement, such as
the possible reduction in the amount of social
security benefits payable to them. Article
47(1)(e) (now subparagraph (g)) of the Regu­
lation cannot therefore be interpreted, not
even by way of exception, so as to allow the
use, to the detriment of migrant workers, of
a method of calculation based on minimum
rather than average contributions.20 Nor,
according to the same judgment, can that cal­
culation be based on the amount of contribu­
tions paid in the Member State of emigra­
tion. 21 The reference contribution basis must
always be that provided for by the national
legislation which would have been applicable
if the person concerned had retained an obli­
gation to pay contributions under the legisla­
tion of the Member State responsible for pay­
ment. However, the theoretical amount of the
benefit thus obtained is to be duly revalorised
and increased as if the person concerned had
continued to work under the same conditions
in the Member State in question (see para­
graphs 30 to 43). 22
11. Following the judgment in Lafuente
Nieto, the Tribunal Supremo referred the
questions set out above (see point 1) to the
Court of Justice. Mr Graj era Rodríguez, the.
plaintiff in this case, became entitled to a
Spanish old-age pension on 2 February 1993,
having completed periods of contribution to
the Spanish social security system (from 1953
to 1961 and from 1967 to 1969) and to the
German system (from 1961 to 1967 and from
1969 to 1993). Therefore he did not pay con­
tributions under Spanish law during the period
laid down by the social security legislation
for the determination of his average contribu­
tion basis (3 February 1985 to 2 February
1993). As is clear from the order for refer­
ence, the pension awarded to him by the INSS
amounting to PTA 5 141 per month (includ­
ing the increments applicable) was calculated
from a basic amount of PTA 2 873, resulting
from the sum of the contribution bases cor­
responding to the contributions actually paid
by Mr Grajera Rodriguez during the 96
months immediately prior to 30 June 1969
(date of payment of his last Spanish social
security contribution before he emigrated to
Germany) and the division of the amount
thereby obtained by 112. At first instance, the
Juzgado de lo Social (Social Court), Madrid,
granted Mr Grajera Rodriguez's application
and ordered the INSS to use a basis of PTA
149 988 for calculation of the monthly amount,
apparently set by reference to the maximum
statutory annual bases for manual workers in
the period from 1 February 1985 to 31 January
1993 inclusive; this was because the average
monthly wages actually received by the plain-
20 — See above, footnote 18.
21 — As I observed in paragraph 22 of my Opinion in Joined
Cases C-31/96 to C-33/96 (cited above at footnote 5):
'Account must be taken of the wage disparities still existing
between the Member States (in our case, between Spain and
Germany). Article 47(1)(e) (now (g)) cannot therefore be
interpreted as meaning that, when trying to match a social
security benefit to the earning capacity of a worker in the
period immediately prior to the materialisation of the risk,
the theoretical amount should be calculated by reference to
the contribution bases of the person concerned in the last 96
months of employment, even where this was pursued in a
different Member State, where wages are higher than in the
country of origin. If this were the case migrant workers
would have an advantage over non-migrant workers.'
22 — In other words, and in line with my argument in the Opinion
in Case C-251/94 (cited above at footnote 5), paragraph 40
of the judgment provides that it is the 'amount [of contribu­
tions paid] [which] must be updated and revalorised so as to
correspond with what the person concerned would have
paid had he continued to work under the same conditions
in the Member State in question (emphasis added). That
statement follows on from paragraph 39, according to which,
in order to guarantee a migrant worker in the same situa­
tion as Mr Lafuente Nieto social security benefits which are
not less than he would have received if he had not emi­
grated, his average basis for contributions must be 'the same
for [him] as if he had remained under the obligation to pay
contributions under the legislation concerned.'
I - 8652
GRAJERA RODRÍGUEZ v INSS AND TGSS
tiff in Germany in the last eight years of his
career were far higher than (in fact more than
double) those Spanish maximum bases. The
judgment at first instance was quashed by the
Tribunal Superior de Justicia (High Court of
Justice), Madrid, which essentially confirmed
that the calculation made by the INSS was
correct, whereupon Mr Grajera Rodríguez
lodged an appeal in cassation with the refer­
ring court to ensure uniformity of the law
(para la unificación de doctrina), arguing that
the judgment appealed against conflicted with
judgments recently handed down by other
Spanish courts of law and with the decision
of that court of 27 March 1995. 23
12. The Tribunal Supremo acknowledges that
the criterion applied in this case by the INSS
is that laid down in Heading D, paragraph 4,
of Annex VI to the Regulation, but takes the
view that the method of calculation under the
Regulation appears likely to lead to a dif­
ferent outcome from that intended by Articles
48 and 51 of the Treaty. The mere revalorisa­
tion of the theoretical amount does not ensure
equality of treatment for migrant and non-
migrant workers where the person concerned
ended his working life in another Member
State and the periods of contribution in Spain
were completed a long time ago. In many
cases the historical bases corresponding to the
contributions paid by the worker during the
period referred to in Heading D, paragraph 4,
to Annex VI are not even known. 24 Apart
from that — the Tribunal Supremo points out
— there has been a significant improvement
in the level of social protection provided by
the Spanish system only in the last few decades,
through increases in salaries as a result of
overall economic growth and the gradual
bringing of contribution bases into line with
actual wages. 25 On the other hand, according
to the national court, the array of criteria for
revalorisation (single and uniform percent­
ages, lump-sum increments, mixed improve­
ments) applied to pensions in the Sixties and
in the first half of the Eighties has resulted in
a 'concentration' of social protection on min­
imum pensions, with a marked trend for the
23 — Sala 4a, Ar. 2560.
24 — See the circular of the INSS of 20 July 1992 (cited by A.
Desdentado Bonete, La Seguridad Social de los trabajadores
migrantes de la Unión European en la unificación de doct­
rina, in Noticias de la Unión Europea, No 157, 1998, p. 95,
footnote 26), in which the social security institution laid
down the monthly bases to be taken into account for the
period from 1936 to June 1963, in place of the historical
bases for those concerned for which there was no longer any
means of proof or with reference to contribution periods
during which the insurance system in force provided for
bases or quotas of a different nature from those used cur­
rently. The tenor of that document (a copy of which the
plaintiff in this case appended to his own written observa­
tions before the Court) gives rise to doubts over the accu­
racy of the Spanish Government's statement in its written
replies of 10 June 1998 to one of the specific questions put
to it by the Court under the second paragraph of Article 21
of the EEC Statute of the Court ('las vases de cotización
reales de los trabajadores se conocen siempre, aún cuando
correspondan a periodos muy lejanos*).
25 — As the Spanish Government in its written replies (see above,
footnote 24) and the national court point out, in the period
from 1944 to 1958, characterised by a strict incomes policy
which allowed the two social partners no room for contrac­
tual independence, social security contributions reflected
salaries fixed by law, according to branch of activity and
professional category. Subsequently, from the time of the
Ley de Convenios Colectivos of April 1958, the tendency for
contributions to reflect actual wages disappeared because,
whilst wages could be subject to increases negotiated by col­
lective bargaining, contributions were still linked to the
minimum wage. Following the 1963 reform which intro­
duced a general minimum wage, the Spanish legislature — in
order to halt the progressive decline in standards of social
protection caused by the disparity between actual salaries
and notional salaries for the purposes of contributions
— established a tariff of uniform bases for each professional
category not linked to the actual wages of individual workers
and subject to periodic revision. A mixed system of tariff
bases and supplementary individual bases (as a percentage of
the former) was introduced in 1972 in order gradually to
bring contributions into line with actual wages. And it is
only since 1979 that Spanish law has used the current system
of contributions calculated on the basis of actual total pay,
subject to minimum and maximum limits. See also M. A.
Olea-J. L. Tortuero Plaza, Instituciones de Seguridad Social,
Madrid, 1992 (13th edition, revised), pp. 449 and 450.
I - 8653
OPINION OF MR LA PERGOLA — CASE C-153/97
average pension to be reduced to the level of
the minimum pension. 26 Finally, the guar­
antee of automatic annual increases in pen­
sions to bring them into line with the con­
sumer price index, introduced by Law No 26
of 1985 — after the Spanish legislature had
laid down general criteria for the revalorisa­
tion of pensions for the first time in 1974 —
was only partial and only concerned pensions
maturing after the new legislation came into
force. 27
13. The order for reference states that this
case cannot be decided on the basis of the
principles laid down by the Court in Lafu-
ente Nieto. That judgment concerned the
interpretation and validity of Article 47(1) of
the Regulation in the version predating Regu­
lation No 1248/92 28 (see above, point 8);
moreover, it requires the relevant revalorisa­
tions and increases to be applied to the theo­
retical amount of the benefit payable to the
person concerned of 'as if the person con­
cerned had continued to work under the same
conditions in the Member State in question.'
Otherwise, the national court points out, the
pension 'cannot be revalorised as if the worker
had continued pursuing his activity in Spain
because that type of updating, which is in fact
updating of the contribution bases (see above,
point 4), cannot be applied to the pension.' 29
As is clear from the second question referred
for a ruling, the Tribunal Supremo takes the
view, in line with its own case-law on the
point,30 that, in order to achieve full updating
on objective bases of the benefit payable to
the worker concerned in circumstances such
as those described, the contribution basis to
be taken into account for the determination
of the social security benefit at issue should
be an average between the maximum and the
minimum bases set by the provisions in force
in Spain during the reference period — that
is to say, during the 96 months prior to mate­
rialisation of the risk — for the relevant pro­
fessional category. 'Given that it is impossible
in practice to reconstruct the elements of an
insurance career in Spain, the average basis
constitutes [again, according to the Tribunal
Supremo] an amount weighted in accordance
with the remuneration of an average worker
from the appropriate professional category.'
However, the national court points out that
it is not on the question whether the average
contribution bases of the last eight years
should be used (rather than those prior to
26 — See Desdentado Bonete (op. cit. supra, footnote 24), p. 95,
footnote 29 (with reference to L. E. de la Villa-A. Desaden-
tado Bonete, Informe sobre L· reforma del sistema español de
la Seguridad Social, Madrid, 1983, pp. 94 to 98). Note, inci­
dentally, that the author is the Magistrado of the Tribunal
Supremo who drafted the order for reference in the main
proceedings.
27 — Law No 26 of 1985 provides: 'Las pensiones que se causen
con aplicación de las modificaciones introducidas en la pre­
sente Ley, serán revalorizados al comienzo de cada año'
(Article 4); the fact remains that 'las deviaciones que pud­
ieran producirse, sobre las previsiones de inflación para cada
año (...), serán tenidas en cuenta en el año siguiente para
mejorar todas las pensiones del sistema que sean inferiores al
salario mínimo interprofesional' (fifth additional provision).
As regards the frequency of revalorisations of pensions,
decreed by ordenes ministeriales from 1956— after an interval
of eight years before the second (in 1964) — they occurred
every two years from 1964 to 1970, and annually thereafter
(except in 1976 and 1978 when revalorisation took place
twice a year): see A. Desdentado Bonete-B. Fernández
Fernández-E. González-Sancho López, La reforma de las
pensiones de la Segundad Sodai, Madrid, 1986, p. 128.
28 — However, following the entry into force of Council Regula­
tion No 1248/92 (cited above, footnote 3), subparagraph (e)
of Article 47(1), although renumbered subparagraph (g), was
left unchanged.
29 — My translation (as are subsequent quotations from this
document).
30 — See, in particular, the judgment cited above at footnote 23
and the relevant part of the text.
I - 8654
GRAJERA RODRÍGUEZ v INSS AND TGSS
emigration) that it seeks a ruling from the
Court of Justice: 'the choice of such factors
[for updating] is a matter for national law.'
The doubts raised by the Tribunal Supremo
concerning the validity of Heading D, para­
graph 4, of Annex VI to the Regulation relate
to another matter: given that, according to
the case-law of the Court of Justice, a Spanish
migrant worker has the right to the same
treatment for the purposes of social security
as he would have received had he continued
to work in Spain, under the same conditions,
until materialisation of the risk, is a system of
calculation founded on historical contribu­
tion bases, such as the Spanish system, which
revalorises the resulting pension only if pen­
sions of the same kind existing on the date of
the payment of the last contribution before
emigration have been revalorised, in confor­
mity with the objectives set out in Articles 48
and 51 of the Treaty? The national court
makes clear that it is inclined to answer that
question in the negative and points out that,
under the system of updating laid down by
the provision in issue, a migrant worker is
placed on the same footing as a non-migrant
worker in a piecemeal and arbitrary fashion.
It would therefore be very difficult for such a
system to make good the reduced value of
benefits deriving from a calculation based on
contributions in the distant past.
14. The Court delivered its judgment in
Naranjo Arjona after the written stage of
these proceedings was concluded. As is well
known, that judgment, also cited above (see
footnote 1), confirms — with reference to
Article 47(1)(e) of the Regulation, now sub­
paragraph (g) in the version amended by
Regulation No 1248/92 — the principles of
interpretation laid down in the earlier judg­
ment in Lafuente Nieto, which I have
described above (sec point 10). The Court
also stated — and this is of relevance to the
judgment in this case — that where applica­
tion of that provision 'so interpreted proves
less advantageous, for workers who were
already employed in another Member State
before the Regulation entered into force in
the first Member State, than the application
of a previous convention between those two
States, the competent court should, by way of
exception, apply the rules laid down by that
convention.' 31
II — Legal analysis and answer to the ques­
tions referred
15. I have already referred to the case-law of
the Court on the objective of Articles 48 to
31 — The plaintiffs in Joined Cases C-31/96, C-32/96 and C-33/96
were all Spanish nationals who, having been employed in
Spain for some years, emigrated to Germany, where their
working life came to an end. As they had exercised their
right to freedom of movement before 1 January 1986, the
Court, following my Opinion of 17 June 1997 on this point
(cited above, footnote 5, paragraph 32), held that the prin­
ciples it had laid down in Rönfelat (Case C-227/S9 [1991]
ECR I-323) and Tbévenon (Case C-475/93 [1995] ECR
I-3813) were applicable to workers in the position of
Mr Naranjo Artona, Mr Vicente Mateos and Mrs García
Lázaro. According to that case-law, the Community rules
on social security cannot be applied in such a way as to
reduce the benefits due to a migrant worker under the law
of a Member State, because, if that were the case, the objec­
tives of the Treaty provisions on freedom of movement for
workers would be frustrated. That principle is also appli­
cable to benefits which may be payable under bilateral or
multilateral conventions between Member States incorpo­
rated into their national law, provided that the worker con­
cerned exercised his right to freedom of movement at a time
before the Community legislation came into force, as a result
of subsequent accessions to the Community or otherwise, in
all the Member States signatory to the relevant convention
in which he had completed periods of contribution. The
Court held that it could not be ruled out that application of
the provision contained in Article 25(1)(b) of the Conven­
tion (see above, footnote 12) might result in more favourable
treatment for the plaintiffs than that provided for by the
Regulation and concluded that it was for the national court
to ascertain whether that was the case.
I - 8655
OPINION OF MR LA PERGOLA — CASE C-153/97
51 of the Treaty. Those provisions, as the
Court has held in numerous judgments, fur­
ther the establishment of the greatest possible
freedom of movement for Community
workers and are therefore intended to ensure
that those workers do not lose the social
security advantages guaranteed by their
national legislation following emigration to
another Member State. Such an effect might
dissuade a Community worker from exer­
cising his fundamental right to freedom of
movement and would therefore constitute an
obstacle to such freedom. 32 The essential aim
of Regulation No 1408/71, adopted under
Article 51 of the Treaty, is to ensure that social
security schemes governing workers in each
Member State who move within the Commu­
nity are applied in accordance with uniform
Community criteria. To that end it lays down
a whole set of rules founded, in particular,
upon the prohibition of discrimination on
grounds of nationality or residence and upon
the maintenance by a worker of the rights
acquired by virtue of the social security
schemes which are or have been applied to
him. 33 That principle of equal treatment pro­
hibits not only overt discrimination but also
all covert forms of discrimination which, by
applying distinguishing criteria other than citi­
zenship or residence, in fact achieve the same
result. 34 However, still according to the settled
case-law of the Court, breach of the general
principle of equality presupposes the applica­
tion of the same rule to different situations or
of different rules to comparable situations
without objective justification. 35
16. In the present case it is not disputed that
the provision of the Regulation which requires
the basic amount of the Spanish old-age pen­
sion to be determined on the basis only of the
insurance periods actually completed under
the Spanish legislation — regardless of whether
such periods were in the recent or distant
past — covers both migrant and non-migrant
workers without distinction.
As has been observed, however, the order for
reference points, albeit tentatively, to a pos­
sible disparity in the treatment of the two
categories of worker. Such discrimination,
were it to exist, would concern only some,
but none the less presumably the majority of
migrant workers. It seems to be a common
trend in Europe for Spanish migrant workers
to spend the last years of their insurance
career abroad and to have achieved in their
host country (especially if, as is often the case
in proceedings brought before the Spanish
courts, the host country is Germany) a level
of earnings far higher than either the Spanish
average salary or the minimum contribution
bases applicable for the professional category
32 — Sec inter alia Case C-12/93 Drake [1994] ECRI-4337,para­
graph 22.
33 — See Case 69/79 Jordens-Vosters [1980] ECR 75, paragraph
11.
34 — See inter alia Case 41/84 Pinna [1980] ECR 1, paragraph 23.
35 — See inter alia Case 810/79 Oberschar [1980] ECR 2747, para­
graph 16. See also the recent judgment in Case C-394/96
Brown [1998] ECR I-4224, paragraph 30, on the subject of
equal treatment for men and women.
I - 8656
GRAJERA RODRÍGUEZ v INSS AND TGSS
in question. 36 Thus all migrant workers who
have spent the last years of their working life
and final contribution periods outside Spanish
territory would be placed at a possible disad­
vantage by Community legislation on the
determination of contribution bases and the
period of payment to be taken into account
— where they acquire the right to a Spanish
old-age pension following application of the
aggregation mechanism mentioned above (see
above, point 7). That is precisely the position
of the plaintiff in the present case. According
to the case-law of the Court, any discrimina­
tion is not eliminated by the mere fact that
there is no such discrimination against other
migrant workers who find themselves in the
reverse situation (last eight contributory years
spent in Spain). 37
17. Why is the Tribunal Supremo asking the
Court for a ruling on the compatibility with
the objective of Article 51 of the Treaty of the
rules implementing the Spanish legislation on
old-age pensions laid down in Heading D,
paragraph 4, of Annex VI to the Regulation?
Looking at the grounds of the order for refer­
ence, it seems to me that the reasons that can
be discerned are twofold. There are also two
ways in which non-migrant workers are
favoured by the Regulation in conjunction
with the provisions of Spanish law. As I have
said several times, in contrast to the position
regarding (most) migrant workers, the basic
amount for non-migrant workers can be cal­
culated from the contribution bases (and thus
from actual remuneration) in the last eight
years of their working life immediately pre­
ceding the attainment of pensionable age.
Accordingly, the bases used for the calcula­
tion will, as a rule, have reached their highest
level in the whole of the working life of the
person concerned.
In addition, the calculation of the benefit will
not be hampered by the administrative and
statistical problems which inevitably compli­
cate such operations in the case of social
security contributions made decades earlier.
Difficulties of that sort seem, on the contrary,
to be unheard of at the current stage of leg­
islative development of the Spanish social
security system, which began with the reform
of 1979. 38 More specifically, taking the most
recent remuneration as the basis for the cal­
culation of the average remuneration means
that problems do not arise over the lack of
verifiable data regarding contribution bases in
the distant past, nor over the technical com­
plexities inherent in updating the pensions
resulting from the calculation, which requires
a case-by-case analysis of a series of legisla­
tive instruments and administrative decisions
dating back over a long period and often con­
cerning benefits of a different type. 39 In other
words, according to the national court, the
system of updating laid down by the relevant
provisions of Annex VI to the Regulation is
not only discriminatory in theory but inef-
36 — See Desdentado Bonete (op. cit. above, footnote 24),
page 91, footnote 11.
37 — See Case 20/85 Roviello [1988] ECR 2805, paragraph 16.
38 — See above, footnote 25, and the relevant section of the text.
39 — See Desdentado Bonete (op. cit. above, footnote 24),
page 95.
I - 8657
OPINION OF MR LA PERGOLA — CASE C-153/97
fective in practice: this, one might say, adds
insult to the injury already suffered by migrant
workers.
18. It cannot be denied that the problems
highlighted by the Tribunal Supremo are gen­
uine and serious. However, I do not believe
that they are capable of affecting the validity
of Heading D, paragraph 4, of Annex VI to
the Regulation. On this point I think I can
endorse the line of argument pursued by the
Commission in these proceedings: according
to that institution, intervening in these pro­
ceedings, it is not possible to speak of the
invalidity of the method of updating laid
down by the provision in question because in
fact it does not prescribe any particular method.
That interpretation of the provision at issue
is, moreover, confirmed by the judgments in
Lafuente Nieto and Naranjo Arjona. In those
judgments the Court decided that the basic
amount should be calculated on the basis of
contributions actually paid by the migrant
worker under the relevant national legislation
alone. On the other hand, the Court has held
that the implementation of the Regulation can
under no circumstances result in a reduction
in the value of the social security benefits due
to the person concerned under the national
law of a Member State. The Court, therefore,
confined itself to indicating a starting point
and target which the competent social secu­
rity institution (or, in cases of dispute, a
national court) should bear in mind when
applying the Community rules. The selection
and use of the most suitable instruments of
national law for achieving the complete revalo­
risation of the benefit due to the worker
taking that starting point as a basis is, how­
ever, another matter. It seems to me that such
operations cannot but fall within the exclu­
sive jurisdiction of the national courts; the
referring court in the present case, moreover,
clearly demonstrates that it takes the same
view when it states that the selection of the
most suitable method of updating is a matter
for national law (see above, point 13).
In my view, it follows that the possible dearth
of reliable objective data on earlier contribu­
tion bases 40 cannot constitute an obstacle to
the implementation of Heading D, paragraph
4, of Annex VI to the Regulation, and still
less an obstacle such as to render the provi­
sion invalid. Furthermore, where it is genu­
inely the case that no reliable data are avail­
able, the general rules on evidence in force in
the Spanish social security system will be
applicable. 41 The same conclusion must be
drawn as regards the technical complexity of
the calculations necessary to update a pension
paid as though it had matured at the time of
emigration to another Member State. If the
national court considers the recognition and
interpretation of the whole complex of instru­
ments — some of which are of a composite
nature inasmuch as they cover both personal
40 — The 'replacement' bases fixed in 1992 by the INSS in the
circular cited above cannot of course be considered to be
such (see above, footnote 24 and relevant section of text).
41 — I would point out, for instance, that in the written replies of
the Spanish Government (see above, footnote 24) reference
is made to the individual employment card (cartilla del tra­
bajador), which workers were obliged to hold and keep up
to date in order to provide evidence of the professionai cat-
egory to which they belonged (and thus, before 1963, of the
relevant uniform contribution basis). That document had to
contain a chronological record of a worker's employers and
his professional category in each successive job. If a cartilla
were lost the Spanish social security institutions would
accept any other means of proof, such as production of wage
slips or salary statements. As regards the determination of
contribution bases according to category, introduced by the
legislature in 1963, the Spanish authorities state that such
bases were published annually in the BOE.
I - 8658
GRAJERA RODRÍGUEZ v INSS AND TGSS
and substantive aspects — adopted periodi­
cally by the legislature to be an impractical
solution, it will have to achieve by other
means the objective laid down in Article 51
of the Treaty of guaranteeing full maintenance
of the purchasing power of the theoretical
benefit payable to the worker: the provision
at issue is, therefore, lawful from the point of
view considered here. It is not for the Court
to provide information on the various theo­
retical solutions provided for by the national
legal system concerned. That point has already
been made. Iwould merely observe, in passing,
that both the adjustment of the pension in
line with the consumer prices index recorded
after payment of the last contribution to the
Spanish social security authority and the
updating and revalorisation of the amount of
the contributions themselves paid at the time
under the relevant legislation, as described by
the Court in the grounds of its judgment in
Lafuente Nieto, 42 may be considered equi­
table criteria that are sufficiently easy for the
national court to apply.
19. The foregoing observations should be
qualified further, as follows. In its order for
reference, the Tribunal Supremo also referred
to the 'social and economic conditions' which,
in the distant past, shaped the Spanish legisla­
tion on minimum wages and contribution
bases which did not reflect actual remunera­
tion. The national court also touched on the
policy pursued by Spanish governments until
1985 of concentrating on the minimum levels
of periodical revalorisations for pension pur­
poses. In the light of those factors, the pos­
sibility cannot be ruled out· that — even after
the complete revalorisation of the pension due
to the worker 'as though he had continued to
work in Spain', carried out by the national
court in the most favourable manner allowed
by national law — the final amount of the
benefit resulting from the calculation may be
very small. That possibility, it is almost super­
fluous to point out, arises because of the fea­
tures of — and, I would even say, from the
very ideology and political philosophy behind
— the Spanish social security legislation of a
previous era; it cannot, therefore be said to
have any implications for the assessment of
the validity of Heading D, paragraph 4, of
Annex VI to the Regulation. Its aim is not
the harmonisation but the coordination of the
national legislation of theMember States on
social security. TheRegulation allowed dif­
ferent national schemes to exist 'creating dif­
ferent claims on different institutions against
which the claimant possesses direct rights by
virtue either of national law alone or of
national law supplemented, where necessary,
by Community law.'43 Accordingly, the sub­
stantive and procedural differences between
the social security systems of the individual
Member States, and thus in the rights of the
persons employed there, are unaffected by
Article 51 of the Treaty. 44 Moreover, for a
worker in the same position as the plaintiff in
the present case, theapplication of the Regu­
lation is definitely an advantage, since, under
Spanish legislation alone (disregarding, for the
time being, the implementing provisions of
the Convention; sec below, point 22), he
would have had no right to the disputed pen­
sion as he would not have completed suffi­
cient insurance periods.
42 — See above, footnote 22 and relevant section of the text.
43 — See inter alia Case 733/79 Laterza [1980] ECR 1915, para­
graph 8, and Case C-146/93McLachlan [1994] ECR 1-3229,
paragraph 29.
44 — See Case 313/86 Lenoir v Caisse d'allocation?familiales des
Alpes-Mańtimes [1988] ECR 5391, paragraph 13.
I - 8659
OPINION OF MR LA PERGOLA — CASE C-153/97
20. I now turn to the other ground on which
the national court considers that the provi­
sion in issue may be contrary to Article 51 of
the Treaty. As the Tribunal Supremo points
out, the Court held in Lafuente Nieto that a
migrant worker who receives a pension must
be treated as if he had continued to work
under the same conditions in his Member
State of origin (see above, point 10); that con­
dition is intended to ensure that the migrant
worker's treatment as regards pension rights
complies with Article 51. On the other hand,
Heading D of Annex VI to the Regulation
contains a provision requiring the calculation
of the theoretical amount to be linked to the
contributions the worker paid to the compe­
tent social security institution before he emi­
grated. The amount of such contributions
would, however, notwithstanding their sub­
sequent updating, still bear no relation to the
salary the person concerned received when
the risk materialised. Heading D, paragraph
4, of Annex VI to the Regulation, it is argued,
is thus invalid because the means chosen by
the Community legislature are incapable of
achieving the objective pursued.
I have serious misgivings about this line of
argument. In establishing the criterion
according to which a migrant worker's career
must — for pension purposes, which is what
we are concerned with here — be deemed to
have been spent without interruption in the
Member State of origin, the Court wished to
use a formula — a legal fiction, as it were —
which serves to ensure the effectiveness of the
social security safety net. It is a formula obvi­
ously intended to meet the need to update the
benefit due to a worker who has made con­
tributions to the social security system long
before materialisation of the risk. However,
this fiction, it must be said, is to be treated
with caution. When interpreting it, it is nec­
essary not to lose sight of the fundamental
characteristics of the so-called contributory
model of financing under the social security
system, whereby it is ultimately the contribu­
tions made by the insured which determine
the amount of the benefits paid. As the Spanish
Government has pointed out in this case,
'under a time-honoured principle of our social
security system, the amount (of contributory
pensions) is closely bound up with consider­
ations relating to contributions and propor­
tionality in order that financial benefits should
reflect faithfully the contributions made in
the past, with the result that those who have
paid similar contributions receive a similar
level of benefits.' 45
Moreover, the criterion which requires a
migrant worker to be treated as though he
had continued to work in his Member State
of origin cannot be relied on in support of his
claim for a pension of an amount reflecting
the most recent salary received (in the State
of emigration) during a period when he was
not under an obligation to pay contributions
(nor indeed paid any) to the body responsible
for payment (in the State of origin). Let us
suppose that, to meet such a claim, the ben­
efit in issue is determined on the basis of the
arithmetical average of the maximum and
minimum contribution bases laid down for
the relevant professional category by Spanish
law in the eight years before materialisation
45 — On the other hand, it can be seen that the financing of the
Spanish social security system through taxation generally,
which in 1990 covered approximately 30% of social security
expenditure (compared with 4% in 1976), served from 1986
onwards essentially to support the cost of minimum (non-
contributory) pensions and of benefits paid by sickness
insurance (see Commission of the European Communities,
La protection sociale en Europe, Luxembourg, 1994, p. 28).
I - 8660
GRAJERA RODRÍGUEZ v INSS AND TGSS
of the risk. This is what the Tribunal Supremo
proposes. However, that solution would give
a migrant worker an undue advantage over a
hypothetical non-migrant worker in the same
professional category. A worker who remained
in his native country and one who went to
work in another Member State would, on that
hypothesis, each receive a pension in line with
the salary received in the final years of their
working lives; however, during the period
under consideration, only the non-migrant
worker would have contributed to the
financing of the social security system to
which the benefit is to be charged. Above all,
on the basis of that reasoning, the remunera­
tion received by a migrant worker while
abroad would unjustifiably be allowed to
have a twofold effect: to use the example of
the present case, the contributions paid in the
last eight years of employment by a worker
in a position similar to that of Mr Graj era
Rodriguez would be taken into account in
the calculation of both the German pension 46
and the Spanish one.
For that reason I believe that the Community
legislature made correct use, on the points
referred by the Tribunal Supremo, of the dis­
cretion which it has as regards the implemen­
tation of the principle of freedom of move­
ment for workers. Having regard to the
principles of fair distribution, of respect for
the economic and financial balance of national
social security systems and, therefore, of the
very effectiveness of social security protec­
tion, principles which govern the operation
of the system set up by the Regulation, the
questions referred in the present case must in
my view be answered in the negative.
21. However, that does not conclude the
analysis of the present case. As is clear from
the case-law, 47 even where the Court con­
siders that the complaints made by the plain­
tiff in the main proceedings against the mea­
sure alleged to be invalid, are unfounded, it
46 — Under the German legislation, the amount of the old-age
pension (Altersrente) depends on: (i) the individual basis of
calculation (that is to say, the relation between the annual
income of the person concerned and the average incomes of
all the insured m the reference year); (ii) the general basis of
calculation, fixed by law on the basis of the average annual
income of all the insured and subject to annual alignment
with salary increases; (iii) the number of annual insurance
periods completed by the worker (including any substitute
periods (Ersatzzeiten, during which there is no obligation to
contribute, for example, during military service or whilst
rearing children) as well as possible periods of interruption
(Ausfallszeiten) and additional periods (Zurechnungszeiten),
during which the insured was unfit to work or otherwise
prevented from working), and (iv) a fixed multiplier. Sec D.
Pictcrs in Social Security Law in the Fifteen Member States
of the European Union, Antwcrpcn-Apcldoorn, 1997,
p. 118, and Administrative Commission of the European
Communities on Social Security for Migrant Workers, Social
security for migrant workers. Guide No 1. F. R. of Germany,
Luxembourg, 1975, pp. 48 and 49.
47 — See Case 41/72 Getreide-Import [1973] ECR 1, paragraph 5,
and Case 158/80 Rewe [1981] ECR 1805, paragraphs 19 to
27. It has been observed that such a solution can be justified
on the ground that the principle of legality is a matter of
public policy and implies that the Court can consider of its
own motion any other matters liable to affect the validity of
the act in issue, albeit solely on the basis of the documents
on the court file (sec J. Doulois, Appréciation de validité
(Renvoi en), in C. Gavalda-R. Kovar (dir.), Répertoire de
droit communautaire Dalîoz, Paris, 1992 — (and loose-lcaf
edition, April 1992), Volume I, paragraph 52). The Court has
also stated that 'If it appears that the real purpose of the
questions submitted by a national court is concerned rather
with the validity of Community measures than with their
interpretation, it is appropriate for the Court to inform the
national court at once of its view without compelling the
national court to comply with purely formal requirements
which would uselessly prolong the procedure under Article
177 and would be contrary to its very nature. Although this
S'pc of strict adherence to formal requirements may be
cfended in the case of litigation between two parties whose
mutual rights must be subject to strict rules, it would be
inappropriate to the special field of judiciai cooperation
under Article 177 which requires the national court and the
Court of Justice, both keeping within their respective juris­
diction, and with the aim of ensuring that Community law
is applied in a unified manner, to make direct and comple­
mentary contributions to the working out of a decision.'
(Sec Case 16/65 C. Schwarze [1965] ECR, in particular,
p. 886; sec also Case 145/79 Roquette Frères [1980] ECR
2917, paragraph 7)). The Court has thus not baulked at
declaring an instrument invalid of its own motion when it
was only required to interpret it (see Case 62/76 Slrehl
[1977] ECR 211, paragraphs 10 to 18).
I - 8661
OPINION OF MR LA PERGOLA — CASE C-153/97
remains free to ascertain whether the act com­
plained of is vitiated by other factors, as it is
not bound from that point of view by the
order for reference.
As regards the present case, I have already
pointed out several times that in Lafuente
Nieto and Naranjo Arjona the Court dis­
cussed the objective of Heading D, paragraph
4, of Annex VI to the Regulation. I have also
observed that, although that provision came
into force after the events in issue in those
two cases — and thus remains, in both cases,
irrelevant to the subject-matter of the ques­
tions referred — the Court cited it in support
of the interpretation it gave in both judg­
ments of the provision laid down in Article
47(1 )(e), (now (g)), of the Regulation (see
above, footnote 17). 48 The Court wished to
make clear that effective and uninterrupted
updating of the theoretical amount had to be
a criterion, so that it met as effectively as pos­
sible the objective of protecting the person
concerned as though he had continued to
work in the Member State in question. Only
in that way is it possible to ensure the com­
patibility with the principles laid down by
Article 51 of the Treaty of the provisions of
the Regulation requiring the average contri­
bution basis of the migrant worker to be
determined only according to the contribu­
tions actually paid to the social security insti­
tution responsible for payment.
That said, in my view the rule contained in
paragraph 4(b), cited above, which limits the
relevant period for the updating of the pen­
sion of a migrant worker in circumstances
such as those of the plaintiff in the present
case to the year preceding materialisation of
the risk — disregarding, without reasonable
justification, the actual year during which the
risk materialises — is incompatible with
Article 51. The conclusion to which I am now
drawing the Court's attention is, moreover,
confirmed by the new version of the provi­
sion in question which the Community leg­
islature introduced — specifically 'pursuant
to the case-law of the Court of Justice (in
particular the judgment in ... Lafuente Nieto),
to adapt [the existing legislation] in line with
internal provisions, where the basic pension
amount is calculated on the basis of past con­
tributions' 49 — in Regulation No 1223/98. 50
With effect from 1 July 1998, paragraph 4(b)
of Section D of Annex VI reads: 'the amount
of the pension obtained shall be increased by
the amount of the increases and revalorisa­
tions calculated for each subsequent year [thus
including the year in which the risk materia­
lises], for pensions of the same nature' (see
Article 1(8)(b) and Article 3(1)). The version
of the Regulation which must be applied in
the present case is that predating the amend­
ment I have cited and is thus, in my view,
partially invalid as I have explained.
22. To conclude this analysis, and pursuant
to the Court's judgment in Naranjo Arjona
48 — See Lafuente Nieto (cited above at footnote 1, paragraphs 41
and 42,) and Naranjo Arjona (cited ibidem, paragraphs 23
and 24).
49 — SeeRegulationNo 1223/98 (cited above, footnote 17), eighth
recital.
50 — See above, footnote 17 and related section of text.
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GRAJERA RODRÍGUEZ v INSS AND TGSS
(see above, point 14), one matter remains to
be clarified. This is the principle of the main­
tenance of advantages secured for migrant
workers through the joint action of national
law and conventions concluded between
Member States in the field of social security,
which were subsequently replaced by dif­
ferent, less favourable, Community legisla­
tion. The possibility cannot be ruled out that
in the main proceedings the calculation of the
contested benefit may in practice lead to dif­
ferent results, according to whether the system
of calculation provided for by the Regulation
(see Article 47(1 )(c) and Heading D, para­
graph 4, of Annex VI interpreted as I pro­
pose), or that provided for by Article 25 (1)(b)
of the Convention (see above, point 14), is
used. It is therefore for the national court to
ascertain — by comparing the results sepa­
rately obtained using the two methods —
'whether application of that convention would
in practice be more or less advantageous for
the workers concerned than application of
the Regulation. In the former case, by way of
exception and in accordance with the prin­
ciple stated in the Rönfeldt judgment cited
above, 51 the rules laid down by the conven­
tion should be applied. In the latter case, it is
the rules laid down by the Regulation, as
interpreted by the Court, that must be
applied.' 52
III — Conclusion
23. In the light of the considerations set out above, I propose that the Court should
answer to the questions referred by the Tribunal Supremo for a preliminary ruling
as follows:
(1) In so far as Heading D , paragraph 4, of Annex VI to Council Regulation (EEC)
No 1408/71 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 by Council Regulation (EEC) No
1248/92 of 30 April 1992, provides that, in situations such as that in the main
proceedings, the amount of the theoretical Spanish benefit, calculated on the
basis of actual contributions paid by the worker in the years immediately pre­
ceding payment of the last contribution under the relevant legislation, is to be
the subject of appropriate revalorisation for each subsequent year only until the
year before materialisation of the risk, it is incompatible with Article 51 of the
51 — See above, footnote 31 and related section of text.
52 — Sec Naranjo Arjona (cited above, footnote 1), paragraph 29.
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OPINION OF MR LA PERGOLA — CASE C-153/97
Treaty and therefore, to that extent, invalid. Consideration of the questions
referred has not disclosed any other factors of such a kind as to to affect the
validity of that provision.
(2) Where application of the provision in question, as interpreted, proves, for a
worker who was already employed in another Member State before the entry
into force of the Regulation in Spain, less advantageous than an earlier conven­
tion concluded with that State, the national court must, by way of derogation,
apply the provisions of that convention.
I - 8664