Eduardo Lafuente Nieto v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS).
Date: 1996-09-12
27 Moreover, the interpretation given by the Court in Reichling concerns Article 46(2)(a) of the regulation and not Article 47(1), which contains additional provisions. Whilst the former provision may be useful in interpreting the latter and, in some cases, in assessing its validity, those issues being the subject-matter of other questions referred by the national court, that does not mean that subparagraph (e) cannot cover a scheme such as that at issue in the main proceedings.
28 Finally, it should be noted that Council Regulation (EEC) No 1248/92 of 30 April 1992 (OJ 1992 L 136, p. 7), which came into force after the date which the national court held to be relevant, laid down new provisions intended, as is demonstrated by the 32nd recital in its preamble and the additions made to Annex VI, Part D, paragraph 4 of Regulation No 1408/71, to specify the detailed rules for the application of Article 47 of the regulation to Spain and Portugal, in particular as regards the calculation of the Spanish theoretical benefit. Those new provisions confirm that Article 47(1), which refers precisely to the calculation of the theoretical amount of the benefit, contains rules which concern the Spanish legislation. Contrary to the Commission' s affirmations in reply to a question put by the Court, those rules are, moreover, applicable 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 this case, been subject successively to legislations of different types.
33 Like all the provisions of Article 47(1) as they stood at the relevant date, the rule in subparagraph (e) is an additional provision for the calculation of the theoretical amount referred to in Article 46(2)(a). The rule must therefore be interpreted in the light of that provision and, as the Court held in relation to Article 46(2)(a) in Reichling, 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.
38 In this case, Mr Lafuente Nieto was not obliged, during the period used under Spanish legislation for calculating the average basis for contributions, to pay contributions in Spain, but he was under that obligation in another Member State.
That finding should have been taken into account by the competent Spanish institution, applying Article 47(1)(e) interpreted in the light of the objective referred to in paragraph 33 above, because a migrant worker must not suffer a reduction in the amount of the benefit he would have received had he not been migrant (Reichling, paragraph 26).
39 Nevertheless, such a finding does not mean that, contrary to the provisions of Article 47(1)(e), whereby that average basis is to be determined by reference only to insurance periods completed under the legislation concerned, the calculation of the average basis for contributions must rest on the amount of contributions paid in the other Member State. It merely implies that, in such a situation, that basis must be the same for the person concerned as if he had remained under the obligation to pay contributions under the legislation concerned.
40 In circumstances such as those at issue in the main proceedings, therefore, although account is to be taken only of contributions paid under the legislation concerned, that amount must be updated and revalorized so as to correspond with what the person concerned would have paid had he continued to work under the same conditions in the Member State in question.
41 That interpretation is confirmed by the new provisions which Regulation No 1248/92 introduced into Annex VI, heading D, paragraph 4 of Regulation No 1408/71, 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".
42 Those new provisions, which came into force after the date which the national court held to be relevant, would not normally be directly applicable to this case, 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, as the Advocate General points out in paragraph 53 of his Opinion, the provisions in question, which do no more than set out the detailed rules for determining the average basis for contributions with sole reference to insurance periods completed under Spanish legislation, whilst leaving the content of Article 47(1)(e) unaltered, are intended only to ensure the compatibility thereof with the principles set out in Article 51 of the Treaty.
46 Mr Lafuente Nieto proposes an affirmative response, maintaining that, in accordance with Article 45(1) of the regulation, aggregation of insurance periods must never exceed what is necessary and that the application of Article 46(2)(c) to that effect has been recognized in several judgments of the Court (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).
49 In the first place, it should be remembered that the rule in Article 45(1), on which Mr Lafuente Nieto seeks to rely, concerns the acquisition, retention or recovery of the right to benefits and not the calculation of the amount of benefits, the rules for which are set out in Article 46 et seq.
50 In addition, the case-law cited by Mr Lafuente Nieto does not apply to situations where, as in this case, aggregation of insurance periods in accordance with Article 45 is necessary for entitlement to benefits. It applies where entitlement to benefits is acquired without there being any need to apply that article, and where it is necessary, under Article 46(1), to make a comparison between benefits due under national law and those which would be due under Community law (see, in particular, the judgment in Di Crescenzo and Casagrande, cited above, paragraphs 15 to 17).
53 As is demonstrated by the fact that no explanation is given on that subject in the recitals in the preamble to Regulation No 1248/92, the displacement of the text and that qualification cannot be regarded as having introduced a new provision into the rules, but must be regarded merely as clarification, corroborating the interpretation given above (see, by analogy, Reichling, paragraph 29).