Ángel Barreira Pérez v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS).
Date: 2002-10-03
23 It follows that that definition encompasses periods of insurance determined under national legislation alone, in particular periods treated by that legislation as periods of insurance, provided, however, that Articles 39 EC and 42 EC are observed.
28 Under Article 46(2)(a) the theoretical amount of the old-age benefit is to be calculated as if all the periods of insurance and/or of residence, which have been completed under the legislation of the Member States to which the employed person or self-employed person was subject, had been completed in the Member State in question under the legislation which the competent institution of that Member State administers on the date of the award of the benefit. When Article 46(2) of Regulation No 1408/71 is applied, it is necessary to refer to the definition of `periods of insurance' in Article 1(r) of that regulation (see Joined Cases C-45/92 and C-46/92 Lepore and Scamuffa [1993] ECR I-6497, paragraphs 17 and 19).  As the Advocate General has stated in point 39 of his Opinion, if the additional periods at issue in the main proceedings were not regarded as periods of insurance, it would not be necessary to take them into account in the calculation of the theoretical amount.
38 The Court therefore concludes that in a case such as that in the main proceedings where the additional periods recognised by the applicable national legislation occur prior to the materialisation of the risk, those periods must be taken into account not only in the calculation of the theoretical amount under Article 46(2)(a) of Regulation No 1408/71 but also in the calculation of the actual amount of the benefit, as is, moreover, apparent from the express terms `periods of insurance ... completed before the materialisation of the risk' in Article 46(2)(b) of that regulation (see, to that effect, Case C-5/91 Di Prinzio [1992] ECR I-897, paragraph 54).
41 It is settled case-law that the aim of Articles 39 EC to 42 EC would not be attained if, as a consequence of exercising the right to freedom of movement, Community workers were to lose the advantages in the field of social security guaranteed to them by the legislation of a Member State.  Such a consequence could deter those workers from exercising that right and would therefore constitute an obstacle to that freedom (see, in particular, Case C-302/90 Faux [1991] ECR I-4875, paragraph 27).
44 In that connection, regard must be had to the case-law of the Court to the effect that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 234 EC, the Court gives to a rule of Community law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied (see, in particular, Case C-262/96 Sürül [1999] ECR I-2685, paragraph 107).
45 It is only exceptionally that, in application of a general principle of legal certainty which is inherent in the Community legal order, the Court may decide to restrict the right to rely upon a provision it has interpreted with a view to calling in question legal relations established in good faith (Sürül, cited above, paragraph 108).