Concepción Salgado González v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS).
Date: 2013-02-21
7. In accordance with Article 89 of the regulation, ‘[s]pecial procedures for implementing the legislations of certain Member States are set out in Annex VI’.
16. Ms Salgado González applied for a retirement pension in Spain. On 9 November 2006, this retirement pension was granted to her by the INSS, from 1 January 2006.
35. In order to answer the questions raised by the national court, it must be pointed out that Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist; its sole objective is to ensure the coordination of those schemes. Thus, according to settled case-law, Member States retain the power to organise their social security schemes (see judgment in Case C-212/06 Government of the French Community and Walloon Government [2008] ECR I-1683, paragraph 43, and Case C-503/09 Stewart  [2011] ECR I-6497, paragraph 75).
36. Therefore, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine, in particular, the conditions for entitlement to benefits (see Stewart , paragraph 76 and case-law cited).
37. In exercising those powers, Member States must nonetheless comply with the law of the European Union and, in particular, with the provisions of the FEU Treaty giving every citizen of the Union the right to move and reside within the territory of the Member States (see Stewart , paragraph 77 and case-law cited).
38. In that regard, it should be noted that, under Article 45 of Regulation No 1408/71, where the legislation of a Member State makes the acquisition of the right to benefits provided for by that provision subject to the completion of periods of insurance, as in the case of a retirement pension, the competent institution of that Member State is to take account, where necessary, of the periods of insurance completed under the legislation of any other Member State. For that purpose, it is to take account of those periods as if they had been completed under its own legislation.
39. In the case in the main proceedings, it is common ground that the INSS, in order to ascertain whether Ms Salgado González paid contributions during the minimum period of 15 years required under Article 161(1)(b) of the LGSS, took account both of the periods completed in Spain and those completed in Portugal, in accordance with Article 45 of Regulation No 1408/71.
40. In contrast, the referring court raises the question whether EU law precludes the methods for calculating the theoretical amount of the benefits concerned which are used by the INSS.
41. In that regard, it should be noted that under Article 46(2)(a) of Regulation No 1408/71, the theoretical amount of that benefit must be calculated as if the insured person had worked exclusively in the Member State concerned (Case C-30/04 Koschitzki [2005] ECR I-7389, paragraph 27).
43. As appears from settled case-law, Articles 46(2) and 47(1) of Regulation No 1408/71 must be interpreted in the light of the objective laid down by Article 48 TFEU, 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 ( Reichling , paragraphs 21 and 22, and Lafuente Nieto , paragraph 33).
46. Nonetheless, the implication of Article 47(1)(g) of Regulation No 1408/71 is that the calculation of the average contribution basis relies on the amount of the contributions paid under the legislation concerned alone (see, by analogy, Lafuente Nieto , paragraph 39).