Opinion of the Advocate General — ECLI:EU:C:1997:305
Date: 1997-06-17
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 Judgment 
Social security for migrant workers — Insurance in respect of old age and death — Insurance 
against invalidity — Calculation of benefits — National legishtion determining benefit by refer­
ence to an average contribution basis over a reference period — Detailed rules for application to 
a worker ceasing his activity in a Member State applying different legisUtion and who has not 
contributed under the applicable legisUtion during the reference period — CalcuUtion of the 
average contribution basis by reference to contributions actually paid under the legisUtion appli­
cable, with the theoretical amount of the corresponding benefit being revalorized and increased 
as if the persons concerned had continued to work under the scheme of the legisUtion applicable 
— Derogation — BiUteral sodai security convention prior to the reguUtion's entry into force in 
the Member State in question and more advantageous for the workers concerned 
(Council ReguUtion No 1408/71, Art. 47(l)(e)) 
I - 5501 
SUMMARY — JOINED CASES C-31/96, C-32/96 AND C-33/96 
Article 47(1 )(e) of Regulation N o 1408/71, as 
amended and updated by Regulation N o 
2001/83 and as adapted by Annex I, Part 
VIII, of the Act concerning the Conditions 
of Accession of the Kingdom of Spain and 
the Portuguese Republic and the adjustments 
to the Treaties, and which has become 
Article 47(1 )(g) following the entry into 
force of Regulation N o 1248/92, implies 
that, where retirement and invalidity pen­
sions are calculated under the legislation of a 
Member State whereby the amount of those 
pensions is calculated from an average con­
tribution basis corresponding to the salary 
received over a certain number of years pre­
ceding retirement or the onset of invalidity, 
calculation of the average basis for contribu­
tions rests, in the case of workers who, after 
having been subject to the legislation of that 
Member State, resumed employment in 
another Member State and carried it on until 
the end of their working lives, solely on the 
amount of contributions actually paid under 
the legislation concerned, and further implies 
that the theoretical amount of the benefit 
thus obtained is to be duly revalorized and 
increased as if the persons concerned had 
continued to work under the same condi­
tions in the Member State in question. 
However, where application of that provi­
sion 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. 
I - 5502