Opinion of the Advocate General — ECLI:EU:C:2002:345
Date: 2002-06-06
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 Judgment 
1. Social security for migrant workers — Insurance relating to old age and death — 
Periods to be taken into account — Periods treated as periods of insurance — 
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SUMMARY — CASE C-347/00 
Additional periods granted by national law to protect rights which were in the course 
of being acquired under previous old-age insurance schemes — Whether included 
(Arts 39 and 42 EC; Council Regulation No 1408/71, Art. l(r) and (s)) 
2. Social security for migrant workers — Insurance relating to old age and death — 
Calculation of benefits — Article 46(2)(b) of Regulation No 1408/71 — Taking into 
account of additional periods granted by national law to protect rights in the course of 
being acquired under previous old-age insurance schemes 
(Arts 39 and 42 EC; Council Regulations Nos 1408/71, Art. 46(2)(b), and 574/72, 
Art. 15(l)(e)) 
3. Preliminary rulings — Interpretation — Temporal effects of judgments ruling on 
interpretation — Retroactive effect — Limits — Legal certainty — Power of assess­
ment of the Court 
(Art. 234 EC) 
1. 'Periods of insurance', as defined in 
Article 1(r) of Regulation No 1408/71, 
encompasses periods of insurance 
determined under national legislation 
alone, in particular periods treated by 
that legislation as periods of insurance, 
provided, however, that Articles 39 EC 
and 42 EC are observed. 
In that regard, additional periods, 
granted by national law so as to pro­
tect, by reference to the recipient's age 
on 1 January 1967 and in accordance 
with a fixed scale provided for that 
purpose, rights which were in the 
course of being acquired under pre­
vious insurance schemes and which the 
worker would otherwise have lost are 
to be regarded as periods of insurance 
within the meaning of that regulation. 
(see paras 22-24, 29, operative part 1) 
2. The p r o p e r c o n s t r u c t i o n of 
Article 46(2)(b) of Regulat ion 
No 1408/71 is that additional periods 
such as those provided for by national 
law, attributed when pension rights are 
awarded in order to take account of 
rights which were in the course of 
being acquired under previous old-age 
insurance schemes which have now 
been discontinued, are to be taken into 
account in the calculation of the actual 
amount of the pension. 
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BARREIRA PÉREZ 
The fact that those periods are 
attributed only at the time when pen­
sion rights are awarded is of no rel­
evance, since the same is true of any 
periods of actual insurance which are 
taken into account in the calculation of 
the theoretical amount and the actual 
amount in accordance with Article 46(2) 
of Regulation No 1408/71. 
There is also no relevance in that the 
fact that the additional periods cannot 
be related to a particular time, with the 
risk that those periods might overlap 
with periods of insurance completed 
under the legislation of another 
Member State, since, under Arti­
cle 15(1)(e) of Regulation No 574/72 
fixing the procedure for implementing 
Regulation No 1408/71, where it is not 
possible to determine accurately the 
period of time in which certain periods 
of insurance or residence were com­
pleted under the legislation of one 
Member State, such periods are to be 
presumed not to overlap with periods 
of insurance or residence completed 
under the legislation of another 
Member State and are, where advan­
tageous, to be taken into account. 
Finally, the failure to take account of 
additional periods provided for by 
national legislation in the calculation 
of the actual amount of old-age pen­
sion pursuant to Article 46 of Regu­
lation No 1408/71 would penalise a 
worker who has exercised his right to 
freedom of movement and whose 
award of pension rights depends on 
the aggregation of periods of insurance 
completed in two or more Member 
States. The person concerned would be 
deprived of the additional amount 
which would have been attributed to 
him if he had completed his working 
life under the legislation of the com­
petent Member State. 
The aim of Articles 39 EC to 42 EC 
would not be attained if, as a con­
sequence of exercising the right to 
freedom of movement, Community 
workers were to lose the advantages 
in the field of social security guaran­
teed to them by the legislation of a 
Member State. Such a consequence 
could deter those workers from exercis­
ing that right and would therefore 
constitute an obstacle to that freedom. 
(see paras 36-37, 40-42, 
operative part 2) 
3. The interpretation which the Court, in 
the exercise of the jurisdiction con­
ferred on it by Article 234 EC, gives to 
a rule of Community law clarifies and 
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SUMMARY — CASE C-347/00 
defines the meaning and scope of that 
rule as it must be or ought to have been 
understood and applied from the time 
of its entry into force. It follows that 
the rule as thus interpreted may, and 
must, be applied by the courts even to 
legal relationships which arose and 
were established before the judgment 
ruling on the request for interpretation, 
provided that in other respects the 
conditions for bringing a dispute relat­
ing to the application of that rule 
before the competent courts are satis­
fied. 
It is only exceptionally that, in appli­
cation of a general principle of legal 
certainty which is inherent in the 
Community legal order, the Court 
may decide to restrict the right to rely 
upon a provision it has interpreted with 
a view to calling in question legal 
relations established in good faith. 
(see paras 44-45) 
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