Keywords

Summary



Keywords

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1. Social security for migrant workers ° Old-age and death insurance ° Calculation of benefits ° Determination of the theoretical amount ° Consideration of all the periods of insurance completed under the legislation of different Member States ° Independent benefit equal to the full pension granted by the legislation of the Member State of the competent institution ° Consequences

(Council Regulation No 1408/71, Art. 46(1) and (2)(a))

2. Social security for migrant workers ° Old-age and death insurance ° Calculation of benefits ° Determination of the actual amount ° Consideration, without applying national rules against the overlapping of benefits, of all the periods of insurance completed under the legislation of different Member States

(Council Regulation No 1408/71, Art. 46(2)(b))

3. Social security for migrant workers ° Benefits ° National rules against the overlapping of benefits ° National provision limiting the full insurance record of employed persons to 45 years and entailing a reduction of the period of insurance completed by a migrant worker by the years completed in another Member State ° Whether permissible ° Conditions

(EEC Treaty, Arts 48 and 51; Council Regulation No 1408/71, Arts 12(2) and 46)

Summary

1. For the purposes of calculating the amount of the benefit under Article 46(2)(a) of Regulation No 1408/71, the competent institution of a Member State must aggregate all the periods completed under the legislation of the Member States to which the worker has been subject, including periods of military service completed by the worker and recognized as periods of insurance within the meaning of that provision by the legislation of another Member State, even if those periods did not have to be taken into account under the law of the Member State of the competent institution.

However, where the worker is already entitled under Article 46(1) of the regulation to an independent benefit equal to the full pension granted by the legislation of the Member State of the competent institution, without taking into account periods completed under the legislation of other Member States to which the worker has been subject, those periods need not be taken into account in order to complete the periods worked under the legislation of the Member State of the competent institution for the acquisition of entitlement to benefits.

2. For the purposes of calculating the actual amount of the benefit within the meaning of Article 46(2)(b) of Regulation No 1408/71, the competent institution must take account of all the periods of insurance completed and recognized as such by the legislation of all the Member States, including notional periods completed prior to the materialization of the risk and recognized by the applicable national legislation, and may not apply its own rules against overlapping foreign benefits in order to determine the actual amount. In particular, it is not permitted to apply those rules in order to deduct the period of employment completed by the worker in another Member State from the notional years added to the actual years of employment by virtue of the legislation of the Member State of that institution.

3. Neither Articles 12(2) and 46 of Regulation No 1408/71, nor Articles 48 and 51 of the Treaty, preclude the application of a national provision against the overlapping of benefits which limits to 45 years the full insurance record of employed persons and which, independently both of the nationality of the workers and of the Member State under whose retirement scheme the periods of insurance which exceed the full insurance record were completed, has the effect of reducing the period of insurance actually completed by a migrant worker in the Member State of the institution which calculates the benefit by the years of insurance completed in a second Member State, provided that the reduction of the rights acquired by the migrant worker in the Member State of that institution is compensated for by the retirement pension rights acquired under the regulation in the second Member State.