Keywords

Summary



Keywords

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1. Social security for migrant workers ° Invalidity insurance ° Calculation of benefits ° Article 47(1)(e) of Regulation No 1408/71 covering systems using an average basis for contributions ° Scope ° Spanish legislation ° Included

(Council Regulation No 1408/71, Art. 47(1)(e))

2. Social security for migrant workers ° Invalidity insurance ° Calculation of benefits ° National legislation determining the benefit by reference to an average basis for contributions during a reference period ° Detailed rules for application to a worker who became an invalid in a Member State applying legislation of a different type and who did not pay contributions under the applicable legislation during the reference period ° Calculation of the average basis for contributions solely on the strength of contributions paid under the applicable legislation ° Revalorization and increase of the theoretical benefit used for totalization and proratization so far as is necessary to prevent the person concerned from suffering a disadvantage by reason of having exercised the right of free movement

(EC Treaty, Art. 51; Council Regulation No 1408/71, Art. 47(1)(e))

3. Social security for migrant workers ° Invalidity insurance ° Calculation of benefits ° National legislation whereby the amount of benefit does not depend on the length of the insurance periods ° Prohibition under Article 46(2)(c) of Regulation No 1408/71 of the use by a Member State, when carrying out totalization and proratization, of a total duration of insurance periods completed before materialization of the risk greater than the maximum duration required by its legislation for receipt of full pension benefit ° Inapplicable

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

Summary

1. Article 47(1)(e) of Regulation No 1408/71, as amended and updated by Regulation No 2001/83 and as adapted by Annex I, Part VIII, of the Act concerning the Conditions of Accession of Spain and Portugal and the adjustments to the Treaties, covers a system for calculating invalidity benefits such as that laid down by Spanish legislation, which uses an average basis for contributions and consists in principle in calculating the amount of pension by reference to the average of the worker' s contribution bases over a reference period immediately preceding the date on which invalidity commenced.

2. Article 47(1)(e) of Regulation No 1408/71 must be interpreted in accordance with the objective laid down by Article 51 of the Treaty, 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 exercised their right of free movement. That implies that, where invalidity occurs in a Member State whose legislation is of a different type from that under which benefits are sought and contributions have not been paid under the latter legislation during the period used to determine the average basis for contributions on which the amount of benefit is calculated, that amount is to be the same as if the worker had remained liable to pay contributions under the legislation concerned. Thus, in such a situation, the theoretical amount of the benefit obtained by calculating solely on the basis of contributions paid under that legislation must be revalorized and increased as if the person concerned had continued to work under the same conditions in the Member State in question.

3. Article 46(2)(c) of Regulation No 1408/71 which in the version applicable in July 1990 provides that, when applying the totalization and proratization rules in certain circumstances, the maximum period required for receipt of full pension benefit is to be taken into consideration instead of the total length of insurance periods completed, does not cover the calculation of invalidity benefits under a scheme, such as that provided for by Spanish legislation, whereby the amount of benefit does not depend on the duration of the insurance periods. Since that rule concerns the duration required in order to enjoy full benefit, it can only apply to legislations whereunder benefits are, in principle, calculated by reference to the duration of the periods completed.