Antonio Naranjo Arjona v Instituto Nacional de la Seguridad Social (INSS), Francisco Vicente Mateos v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS) and Instituto Nacional de la Seguridad Social (INSS) v Laura García Lázaro.
Date: 1997-10-09
2 The question was raised in three disputes between, first, Mr Naranjo Arjona and the Instituto Nacional de la Seguridad Social (National Social Security Institute; `the INSS'), secondly, Mr Vicente Mateos and the INSS and the Tesorería General de la Seguridad Social (General Social Security Revenue Authority; `the TGSS'), and, finally, the INSS and Mrs García Lázaro, concerning the calculation of old-age and invalidity pensions.
19 Contrary to what the Commission maintains, and as the Court ruled in Case C-251/94 Lafuente Nieto v INSS and TGSS [1996] ECR I-4187, Article 47(1)(e) of the regulation, renumbered as Article 47(1)(g) in the version currently in force, covers a system for calculating invalidity benefits on an average basis for contributions, as laid down by the Spanish legislation. That rule applies not only to old-age and death benefit schemes but also, by analogy pursuant to Article 40(1) of the regulation, to invalidity benefit schemes where the worker concerned has, as in these cases, been subject successively to legislations of different types (judgment in Lafuente Nieto, paragraph 28).
20 It should also be noted that the same rule constitutes an additional provision for the calculation of the theoretical amount referred to in Article 46(2)(a) of the regulation.  It must therefore be interpreted in the light of that provision and, as the Court held in Case C-406/93 Reichling v INAMI [1994] ECR I-4061, in the light of 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 availed themselves of their right of free movement.
21 Nevertheless, contrary to what the individuals concerned maintain, such an obligation does not mean that the contested provision is necessarily contrary to the above objective because it does not allow the amount of contributions paid in another Member State to be taken into account in order to determine the average contribution basis.  It merely implies that that basis must be the same for the migrant worker as it would have been if he had not availed himself of his right of free movement.
22 Thus, in circumstances such as those at issue in the main proceedings, although in accordance with Article 47(1)(e) of the regulation (Article 47(1)(g) by virtue of the effect of Regulation No 1248/92) account is to be taken only of contributions paid under the legislation concerned, that amount must be updated and revalorized so as to correspond to what the persons concerned would have paid had they continued to work under the same conditions in the Member State in question (judgment in Lafuente Nieto, paragraphs 39 and 40).
23 That interpretation is confirmed by the new provisions which Regulation No 1248/92 introduced into Annex VI, heading D, paragraph 4 of the regulation, whereby `the calculation of the theoretical Spanish benefit shall be carried out on the basis of the actual contributions of the insured person during the years immediately preceding payment of the last contribution to the Spanish social security' and `the amount of the pension obtained shall be increased by the amount of the increases and revalorizations calculated for each year after and up to the year preceding the materialization of the risk for pensions of the same kind'.
24 Those new provisions are not in principle applicable to pensions awarded before 1 June 1992, subject only to the possibility which the new Article 95a of the regulation confers upon the persons concerned to request revision of their rights to take account of those rules.  But in any event, as the Court held in paragraph 42 of the Lafuente Nieto judgment, the provisions in question do no more than set out the detailed rules for determining the average basis for contributions with sole reference to insurance periods completed under the legislation concerned, whilst leaving the content of Article 47(1)(e) unaltered, and are intended only to ensure the compatibility thereof with the principles set out in Article 51 of the Treaty.
28 It should be noted, however, that, at the hearing, the Spanish Government challenged the Commission's argument that application of the convention would be more advantageous for the persons concerned than application of the regulation.  As the Advocate General points out at paragraph 37 of his Opinion, the updating of the contributions, in accordance with the provisions of the regulation as interpreted by the Court and referred to in paragraph 21 of this judgment, pursues the same objectives as the convention and should normally permit them to be attained.
29 It is therefore for the national court to verify whether application of that convention would in practice be more or less advantageous for the workers concerned than application of the regulation.  In the former case, by way of exception and in accordance with the principle stated in the Rönfeldt judgment cited above, the rules laid down by the convention should be applied.  In the latter case, it is the rules laid down by the regulation, as interpreted by the Court, that must be applied.