Aristóteles Grajera Rodríguez v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS).
Date: 1998-12-17
17 It should be noted that Article 47 of Regulation No 1408/71, the contested annex to which lays down the implementing rules for Spain, constitutes an additional rule for the calculation of the theoretical amount referred to in Article 46(2)(a). It must therefore be interpreted in the light both of that provision and, as the Court held in Case C-406/93 Reichling v INAMI [1994] ECR I-4061, 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.
18 Nevertheless, contrary to what the plaintiff in the main proceedings maintains, the obligation not to put migrant workers who have availed themselves of their right of free movement at a disadvantage does not mean that the contested provision is necessarily contrary to the objective laid down in Article 51 of the Treaty 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. That obligation merely implies that the 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 (Joined Cases C-31/96 to C-33/96 Naranjo Arjona and Others v INSS [1997] ECR I-5501, paragraph 21).
19 In circumstances such as those at issue in the main proceedings, therefore, although account is to be taken, under the provisions of Article 47(1)(g) of Regulation No 1408/71, only of the amount of the contributions paid under the legislation concerned, that amount must be updated and revalorised 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 (judgment in Lafuente Nieto, cited above, paragraphs 39 and 40).
20 The Court has already stated, both in the judgment in Lafuente Nieto, cited above (paragraphs 41 and 42), and in the judgment in Naranjo Arjona and Others, cited above (paragraphs 23 and 24), that the new provisions which Regulation No 1248/92 introduced into heading D, paragraph 4, of Annex VI to Regulation No 1408/71 are consistent with that interpretation: they merely provide additional clarification of the detailed rules set out in that regulation under which the average contribution basis is to be determined with sole reference to insurance periods completed under the legislation concerned, whilst leaving the content of Article 47(1)(g) unaltered, and are intended only to ensure the compatibility thereof with the principles set out in Article 51 of the Treaty.
30 As the Court pointed out in paragraph 28 of the judgment in Naranjo Arjona, cited above, the updating of the contributions, in accordance with the provisions of Regulation No 1408/71 as interpreted by the Court, pursues the same objectives as the convention and should normally permit them to be attained. However, it is possible that the application of the rules of the convention, which allow the level of the contribution basis which a worker reaches at the end of his working life in Germany to be taken into account, whilst at the same time referring to the contribution bases in force in Spain for the professional category concerned, might lead to a more favourable result for the person concerned than that entailed by the contested provisions.