Rijksdienst voor Pensioenen v Gerdina Lustig.
Date: 1998-12-17
22 In answering that question, the first point to be made is that Article 45 of Regulation No 1408/71 provides for periods of insurance or residence completed under the legislation of other Member States to be taken into account solely for the purposes of the acquisition, retention or recovery of the right to old-age benefits, whereas the dispute in the main proceedings is concerned with the determination of the amount of such benefits (see, to that effect, Joined Cases C-45/92 and C-46/92 Lepore and Scamuffa v Office National des Pensions [1993] ECR I-6497, paragraph 13).
25 With respect to the calculation of benefits, Article 46 provides that the competent institution is to establish the actual amount of the benefit in the ratio which the length of the periods of insurance completed under the legislation administered by it bears to the total length of the periods of insurance completed under the legislations of all the Member States concerned (Case C-443/93 Vougioukas v IKA [1995] ECR I-4033, paragraph 15).
30 In that respect, the case-law has consistently held that all the provisions of Regulation No 1408/71 are to be interpreted in the light of the objective of Article 51 of the Treaty, which is to contribute, by means, inter alia, of the aggregation of insurance, residence or employment periods, to establishment of freedom of movement for workers (to that effect, see Case C-406/93 Reichling v INAMI [1994] ECR I-4061, paragraph 21; Case C-481/93 Moscato v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1995] ECR I-3525, paragraph 27; Case C-482/93 Klaus v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1995] ECR I-3551, paragraph 21).
31 That objective entails that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the Treaty (Reichling, cited above, paragraph 24) and that the rule on the aggregation of insurance, residence or employment periods is aimed at ensuring that exercise of the right, conferred by the Treaty, to freedom of movement does not have the effect of depriving a worker of social security advantages to which he would have been entitled if he had spent his working life in only one Member State (Moscato, cited above, paragraph 28).
33 It has, moreover, been consistently held that if the application of the legislation of the Member State in question alone proves less favourable to the worker than that of the Community scheme set out in Article 46 of Regulation No 1408/71, the provisions of that article must be applied in their entirety (see, in particular, Joined Cases C-90/91 and C-91/91 Office National des Pensions v Di Crescenzo and Casagrande [1992] ECR I-3851, paragraph 16).
37 It is true that, at paragraph 29 of that judgment, the Court held that the taking into account by the national legislation whose conditions are fulfilled of periods completed under the legislation of another Member State is excluded by Article 49 as regards the calculation of the amount of the pension.
39 By excluding in those circumstances, for the purpose of calculating the amount of pension due under the legislation whose conditions were fulfilled, the taking into account of periods completed under the legislation whose conditions were not yet fulfilled, the Court merely intended to ensure that, in conformity with the system under Regulation No 1408/71 which allowed different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights, each State paid the benefits corresponding to the periods completed under its legislation (McLachlan, cited above, paragraphs 29, 30 and 37).