Case C‑2/17

Instituto Nacional de la Seguridad Social (INSS)

v

Jesús Crespo Rey

(Request for a preliminary ruling from the Tribunal Superior de Justicia de Galicia)

(Reference for a preliminary ruling — Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons — Social security for migrant workers — Regulation (EC) No 883/2004 — Paragraph 2 of the section ‘Spain’ in Annex XI — Retirement pension — Method of calculation — Theoretical amount — Relevant contribution basis — Special agreement — Choice of contribution basis — National legislation requiring the worker to make contributions in accordance with the minimum contribution basis)

Summary — Judgment of the Court (Tenth Chamber), 28 June 2018

International agreements — EC-Switzerland Agreement on the free movement of persons — Equal treatment — Social security for migrant workers — Old-age pension — Retirement pension — Method of calculation — Theoretical amount — Special agreement — Relevant contribution basis — Choice of contribution basis — National legislation requiring the worker to make contributions in accordance with the minimum contribution basis — Not permissible — Obligations of national courts

(EC-Switzerland Agreement on the free movement of persons; European Parliament and Council Regulation No 883/2004, Annex XI)

The Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed at Luxembourg on 21 June 1999, must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which obligates a migrant worker who concludes a special agreement with the social security system of that Member State to make contributions in accordance with the minimum contribution basis, with the result that, when the theoretical amount of that worker’s retirement pension is calculated, the competent body of that Member State treats the period covered by that agreement as a period completed in that Member State and will take into consideration, for the purposes of that calculation, only the contributions paid by the worker under that agreement, even though, before exercising his right to free movement, that worker made contributions in that Member State in accordance with contribution bases higher than the minimum, and a non-migrant worker who did not exercise his right to free movement and who concludes such an agreement has the option of making contributions in accordance with contribution bases higher than the minimum.

Paragraph 2 of the section ‘Spain’ in Annex XI to Regulation No 883/2004 provides that, when calculating the basic amount for the migrant worker’s pension, ‘the contribution basis in Spain which is closest in time to the reference periods’ must be taken into account for the periods completed by that worker in other Member States.

Accordingly, in a situation such as that in the main proceedings, where the worker concerned, before exercising his right to free movement, made contributions to the social security scheme of the Member State in question in accordance with contribution bases higher than the minimum, the relevant contribution basis for the purposes of the calculation of his retirement pension would be the last contribution paid by that worker in that Member State, namely a contribution basis that is higher than the minimum provided for by the special agreement.

Where national law, in breach of EU law, provides for different treatment between a number of groups of persons, the members of the group placed at a disadvantage must be treated in the same way and made subject to the same arrangements as the other persons concerned. The arrangements applicable to members of the group placed at an advantage remain, for want of the correct application of EU law, the only valid point of reference (judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 46 and the case-law cited).

It is true that it is for the court dealing with the dispute to establish what, in national law, are the most appropriate means for achieving equality of treatment between migrant workers and non-migrant workers. However, it must be noted, in that regard, that that aim should, in principle, be achieved by granting also to migrant workers who conclude a special agreement the option to make contributions retroactively in accordance with contribution bases higher than the minimum and, as a consequence, to claim their right to a retirement pension on those new bases.

(see paras 67, 68, 73, 75, 76, operative part)