Opinion of the Advocate General — ECLI:EU:C:2012:567
Date: 2012-09-13
Language of the case: Spanish
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (First Chamber), 21 February 2013 Social security for migrant workers — Old-age and survivor’s insurance — Calculation of benefit — Establishment of the theoretical amount — National legislation laying down the theoretical amount of a retirement pension relative to an average contribution basis over a fixed reference period — Not permissible to invariably calculate the amount, for a self-employed worker, migrant or non-migrant, on contribution bases paid over that period immediately preceding the payment of the last contribution in the relevant Member State, without adapting it so as to take account of the fact that the worker concerned has exercised his right to freedom of movement (Art. 48 TFEU; Council Regulation No 1408/71, Arts 3, 46(2)(a) and 47(1)(g), and Annex VI, heading H, para. 4] Article 48 TFEU, Articles 3, 46(2)(a) and 47(1)(g) of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, and heading H, paragraph 4, of Annex VI to that regulation, must be interpreted as precluding legislation of a Member State, under which the theoretical amount of the retirement pension of a self-employed worker, migrant or non-migrant, is invariably calculated on contribution bases paid by that worker over a fixed reference period preceding the payment of his last contribution in that Member State, to which a fixed divisor is applied, when it is impossible for either the duration of that period or the divisor to be adapted so as to take account of the fact that the worker concerned has exercised his right to freedom of movement. Articles 46(2) and 47(1) of Regulation No 1408/71 must be interpreted in the light of the objective laid down by Article 48 TFEU, which implies in particular that migrant workers must not suffer a reduction in the amount of their social security benefits as a result of having availed themselves of their right of free movement. (see paras 43, 52, operative part)