Cristalina Salgado Alonso v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS).
Date: 2005-01-20
27. It should be recalled that the Court has consistently held that the Member States remain competent to define the conditions for granting social security benefits, even if they make them more strict, provided that the conditions adopted do not give rise to overt or disguised discrimination between Community workers (see, to that effect, Case C‑12/93 Drake  [1994] ECR I‑4337, paragraph 27; Martínez Losada and Others , paragraph 43; and Ferreiro Alvite , paragraph 23).
29. In this respect, Article 42(a) EC states the principle of aggregation of insurance, residence or employment periods, which is implemented in particular by Article 45 of Regulation No 1408/71 in relation to old-age insurance. This is one of the basic principles governing Community coordination of social security schemes in the Member States, its purpose being to ensure 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. Such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see, inter alia, Case C‑481/93 Moscato  [1995] ECR I‑3525, paragraph 28).
31. Consequently, a Member State is entitled not only to impose a qualifying period for the acquisition of a right to a pension provided for by national legislation, but also to determine the kind of insurance periods which may be taken into account for that purpose, provided that, in accordance with Article 45 of Regulation No 1408/71, periods completed under the legislation of any other Member State are also taken into consideration under the same conditions, as if they were completed under national legislation.
40. It should be recalled that, according to settled case-law, the procedure provided for in Article 234 EC is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate (see, inter alia, Case C‑231/89 Gmurzynska-Bscher  [1990] ECR I‑4003, paragraph 18; Case C‑314/96 Djabali  [1998] ECR I‑1149, paragraph 17; and Case C‑318/00 Bacardi-Martini and Cellier des Dauphins  [2003] ECR I‑905, paragraph 41).
41. Thus it is clear from both the wording and the scheme of Article 234 EC that a national court or tribunal is not empowered to bring a matter before the Court of Justice by way of a reference for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others  [1995] ECR I-1567, paragraph 28, and Djabali , paragraph 18).
42. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute ( Djabali , paragraph 19; Bacardi-Martini and Cellier des Dauphins , paragraph 42; and Joined Cases C‑480/00 to C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00 Azienda Agricola Ettore Ribaldi and Others  [2004] ECR I‑0000, paragraph 72).