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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Instituto Nacional de la Seguridad Social (INSS) and Tesoreria General de la Seguridad Social (TGSS) [2012] EUECJ C-282/11 (13 September 2012)
URL: http://www.bailii.org/eu/cases/EUECJ/2012/C28211.html
Cite as: [2012] EUECJ C-282/11
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OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 13 September 2012 (1)

Case C-282/11

Concepción Salgado González

v

Instituto Nacional de la Seguridad Social (INSS)

and

Tesorería General de la Seguridad Social (TGSS)

(Reference for a preliminary ruling from the Tribunal Superior de Justicia de Galicia (Spain))

(Reference for a preliminary ruling – Regulation (EEC) No 1408/71 – Old-age pension – Calculation of benefits)





I –  Introduction

1.        By order of 9 May 2011, received at the Court on 6 June 2011, the Tribunal Superior de Justicia de Galicia (Spain) referred to the Court for a preliminary ruling four questions on the interpretation of Council Regulation (EEC) No 1408/71 of 14 June 1971 (2) as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (3) (Regulation No 1408/71) and of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (4) as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (Regulation No 883/2004). (5)

2.        The questions were raised in proceedings brought by Ms Salgado González against the Instituto Nacional de la Seguridad Social (National Social Security Institute, ‘the INSS’) and the Tesorería General de la Seguridad Social (General Social Security Fund, ‘the TGSS’) concerning the calculation of Ms Salgado González’s old-age pension. The referring court seeks clarification on whether the application of certain provisions of Regulation No 1408/71 or Regulation No 883/2004 in conjunction with Article 162(1) of the Spanish General Law on Social Security (la Ley General de la Seguridad Social) leads to an undue reduction of the pension of a self-employed migrant worker.

II –  Legal context

A –    Union law

3.        Article 45(1) of Regulation No 1408/71 provides that:

‘Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme …, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, where necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general scheme or under a special scheme and either as an employed person or a self-employed person. For that purpose, it shall take account of these periods as if they had completed under its own legislation.’

4.        Article 46(2) of Regulation No 1408/71 provides:

‘Where the conditions required by the legislation of a Member State for entitlement to benefits are satisfied only after application of Article 45 and[/]or Article 40(3), the following rules shall apply:

(a)      the competent institution shall calculate the theoretical amount of the benefit to which the person concerned could lay claim provided all 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, have been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the amount shall be regarded as being the theoretical amount referred to in this paragraph;

(b)      the competent institution shall subsequently determine the actual amount of the benefit on the basis of the theoretical amount referred to in the preceding paragraph in accordance with the ratio of the duration of the periods of insurance or of residence completed before the materialisation of the risk under the legislation which it administers to the total duration of the periods of insurance and of residence completed before the materialisation of the risk under the legislations of all the Member States concerned.’

5.        Article 47(1) of Regulation No 1408/71 provides:

‘For the calculation of the theoretical and pro rata amounts referred to in Article 46(2), the following rules shall apply:

...

(g)      where, under the legislation of a Member State, benefits are calculated on the basis of average contributions, the competent institution shall determine that average by reference only to those periods of insurance completed under the legislation of the said State.’

6.        Pursuant to Article 89 of Regulation No 1408/71, special procedures for implementing the legislations of certain Member States are set out in Annex VI.

7.        Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 provides:

‘(a)      Under Article 47 of the Regulation, 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.

(b)      the amount of the pension obtained shall be increased by the amount of the increases and revalorisations calculated for each subsequent year, for pensions of the same nature.’

8.        Regulation No 1408/71 was repealed by Regulation No 883/2004 from 1 May 2010, which is the date of application of the latter regulation.

B –    National law

9.        Article 161(1)(b) of the General Law on Social Security makes entitlement to an old-age pension conditional upon, inter alia, having paid contributions for at least 15 years. Article 162(1) of the General Law on Social Security provides that ‘the basis for determination of the retirement pension, under the contributory scheme, will be the quotient given by dividing by 210 the contribution bases of the interested party during the 180 months immediately before the month preceding the operative event’.

III –  Dispute in the main proceedings and questions referred

10.      Ms Salgado González made contributions in Spain to the Special Scheme for Self-Employed Persons (Régimen Especial de Trabajadores Autónomos), for a total of 3 711 days, from 1 February 1989 to 31 March 1999, and in Portugal for a total of 2 100 days, from 1 March 2000 to 31 December 2005.

11.      Ms Salgado González applied for a retirement pension in Spain, which was granted from 1 January 2006. In calculating Ms Salgado González’s pension, the INSS added her Spanish contribution bases from 1 April 1984 to 31 March 1999, which relate to the 15 years immediately preceding payment of her last contribution to the Spanish social security. The INSS then divided those contribution bases by a divisor of 210 (which corresponds to the number of ordinary monthly contributions and of extraordinary annual contributions paid during 180 months or 15 years) in accordance with Article 162(1) of the General Law on Social Security. This resulted in a ‘base reguladora’ or a basis for determination. Given that Ms Salgado González only started contributing to the Spanish social security from 1 February 1989, the contribution bases for the period 1 April 1984 to 31 January 1989 were calculated by the INSS as 0, (6) thus leading to a reduction of her basis for determination (base reguladora).

12.      Ms Salgado González’s basis for determination was eventually fixed at EUR 336.83 per month. (7)

13.      The basis for determination (base reguladora) for 1 April 1984 to 31 March 1999 was then reduced by multiplying it by 53%, (8) corresponding to Ms Salgado González’s years of contribution (9) and also by 63.86% corresponding to a pro rata temporis for Spain. (10)

14.      Having exhausted the preliminary administrative route, Ms Salgado González brought an action before the Juzgado de lo Social (Social Court) No 003, Ourense, claiming differences in retirement pension. The Juzgado de lo Social dismissed her application. That decision was appealed by Ms Salgado González to the referring court.

15.      The referring court in the order for reference notes that in calculating the basis for determination (base reguladora), the INSS relied on Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 combined with Article 162(1) of the General Law on Social Security. It is this combined application that has given rise to doubts on behalf of the referring court.

16.      According to the referring court, while there is no doubt that Ms Salgado González’s Portuguese contributions cannot be used in the calculation of the basis for determination of the Spanish retirement pension, (11) the question arises whether the calculation carried out by the INSS is correct or has led to an undue reduction, that Ms Salgado González calls a double proportion, of her right to retirement pension.

17.      The INSS, in applying both Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 and Article 162(1) of the General Law on Social Security, adds the actual contributions of the insured person during the 15 years immediately preceding the last contribution to the Spanish social security, and divides the sum by 210.

18.      The referring court notes, however, that in Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71, there is no reference at all to a period of 15 years, nor to the divisor of 210, which are derived from Article 162(1) of the General Law on Social Security.

19.      The referring court considers that in such a situation three interpretations are possible.

20.      The first possible interpretation is that put forward by the INSS and which, in the opinion of the referring court, is not in line with the guarantees of free movement of workers in relation to social benefits pursuant to Article 48 TFEU or the equal treatment of non-migrant and migrant workers pursuant to Article 3 of Regulation No 1408/71 for three reasons.

21.      In that regard, the referring court considers that the use of the divisor 210 in relation to migrant workers, even when there have been less than 15 years of contribution in Spain, puts migrant workers on an unequal footing with the non-migrant workers contributing in Spain. This inequality arises as, for the same level of contributions as a non-migrant worker contributing in Spain, the migrant worker, by dividing his contributions between Spain and another Member State, will have a basis for determination (base reguladora) that is less by the amount that he has not contributed in Spain (and moreover will suffer a corresponding proportionate reduction pro rata temporis).

22.      The referring court considers that this does not guarantee the objective that ‘a migrant worker must not suffer a reduction in the amount of the benefit he would have received had he not been migrant’. (12)

23.      Moreover, according to the referring court, the more a migrant worker contributes in another Member State of the EU, the less time he has available in his working life to increase his Spanish contributions, calculable only in accordance with Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71. Thus the period of 15 years to which Article 162(1) of the General Law on Social Security refers creates another difference from the non-migrant worker contributing in Spain, who has all his working life to increase that period of 15 years. In short, access to a retirement pension that is consistent with his contribution is made more difficult for a migrant Community worker in comparison with the non-migrant worker in Spain.

24.      In addition, according to the referring court, given that an essential element of the free movement of workers is left in the hands of the national Spanish legislature, which may increase the time period laid down in Article 162(1) of the General Law on Social Security, (13) the divisor of the sum of the Spanish contributions to be taken into account for migrant workers could be increased again and their pensions will be further reduced.

25.      The referring court considers that there is another possible interpretation that is more in accordance with the Community objectives. Heading H, paragraph 4(a) (Spain), of Annex VI to Regulation No 1408/71, when it states that ‘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’, should be understood in the sense that it establishes a specific means of calculation in accordance with which 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 are added, and the result of that addition is divided by the number of years during which they were made.

26.      The referring Court notes that if the interpretation outlined in point 25 above were applied in this case, the contributions made by Ms Salgado González in Spain would not be divided by 210, but rather by the number of years she contributed in Spain, that is to say, the years between 1 February 1989 and 31 March 1999.

27.      According to the referring court, there could be yet another possible interpretation, which would lead to a basis of determination (base reguladora) which is less than that which results from the application of the previous option outlined in points 25 and 26 above. The period of contribution in Portugal would be covered with the basis of the contribution in Spain that is closer in time to that period of time, taking into account the evolution of consumer prices, as set out in paragraph 2(a) (Spain), of Annex XI of Regulation No 883/2004 which establishes a new rule that was not contemplated in Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71. The referring court considers that this would be an application by analogy. Firstly, because ratione temporis paragraph 2(a) (Spain), of Annex XI of Regulation No 883/2004 is inapplicable in this case. Secondly, given paragraph 2(a) (Spain), of Annex XI of Regulation No 883/2004, in the same terms as its predecessor, Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 states that ‘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’. In this case, the insurance periods covered in Portugal are immediately after, not immediately before, the last contribution made in Spain.

28.      For the foregoing reasons, the referring court decided to suspend the proceedings and refer the following four question to the Court for a preliminary ruling:

‘First: Is it in accordance with the Community objectives set out in [Article 48 TFEU and in Article 3 of Regulation No 1408/71], and with the wording of [Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71], to interpret [the latter provision] to the effect that, for the calculation of the theoretical Spanish benefit 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, the sum thus obtained is divided by 210, that divider being established by the calculation of the basis for determination of the retirement pension in accordance with Article 162(1) of the General Law on Social Security?

Second (if the first question should be answered in the negative): Is it in accordance with the Community objectives set out in [Article 48 TFEU and Article 3 of Regulation No 1408/71], and with the wording of [Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71], to interpret the said [latter provision] to the effect that, for the calculation of the theoretical Spanish benefit 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, the sum thus obtained is divided by the number of years of contribution in Spain?

Third (in the event of a negative response to the second question and whatever the answer to the first question, whether affirmative or negative): Is [paragraph 2(a) (Spain), of Annex XI] of Regulation (EC) No 883/2004 … applicable by analogy, in the case described in these proceedings, with the aim of satisfying the Community objectives set out in [Article 48 TFEU and Article 3 of Regulation No 1408/71], and, as a result, is it possible to cover the contribution period in Portugal with the basis of contributions in Spain closest in time to that period, taking into account the evolution of consumer prices?

Fourth (if the first, second and third questions are all answered in the negative): What, if none of the previously mentioned interpretations were held to be wholly or partly correct, would be the interpretation of [Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71] that, being useful for the resolution of the dispute described in these proceedings, is most in accordance with the Community objectives set out in [Article 48 TFEU and Article 3 of Regulation No 1408/71] and with the actual wording of [Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71]?’

IV –  Procedure before the Court

29.      Written observations were submitted by the INSS and the TGSS jointly, the Kingdom of Spain and the Commission. They also presented oral submissions at the hearing on 24 May 2012.

V –  Assessment

30.      It is necessary to establish as a preliminary matter whether Regulation No 1408/71 or Regulation No 883/2004 is applicable in respect of Ms Salgado González’s Spanish pension entitlement. It is apparent from the file before the Court that Ms Salgado González was entitled to claim a retirement pension in Spain from 1 January 2006. (14) In the light of the fact that Regulation No 883/2004 only started to apply on 1 May 2010 (15) and there is no indication in the file before the Court that Ms Salgado González requested a review of her Spanish pension rights in accordance with the transitional arrangements provided for, inter alia, in Article 87(5) of Regulation No 883/2004, I consider that Regulation No 1408/71 is temporally applicable to the facts in the main proceedings. In addition, I would note that while the four questions of the national court refer to Article 48 TFEU, in my view, Article 42 EC is applicable to the facts of the main proceedings in the light of the date on which Ms Salgado González was granted a Spanish pension. (16)

31.      As a preliminary matter it must be recalled that Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist and its sole objective is to ensure the coordination of those schemes. Therefore, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine, first, the conditions concerning the right or duty to be insured with a social security scheme and, second, the conditions for entitlement to benefits. In exercising those powers, Member States must nonetheless comply with Community law and, in particular, with the provisions of the EC Treaty giving every citizen of the Union the right to move and reside within the territory of the Member States. (17)

32.      Ms Salgado González benefits from the possibility of aggregating her periods of insurance in Spain and Portugal pursuant, inter alia, to Article 45 of Regulation No 1408/71 and is thus entitled to a pension in Spain. (18) The dispute in the main proceedings is concerned with the method of calculating, and thus, the amount of Ms Salgado González’s retirement pension in Spain.

33.      The amount of Ms Salgado González’s retirement pension pursuant to Spanish law depends, firstly, in accordance with Article 162(1) of the General Law on Social Security, on her basis of determination (base reguladora) which is the average level of her contributions over a 180 month or 15 year reference period and, secondly, in accordance with Article 163 of the General Law on Social Security, on the length of the contribution period completed.

34.      As regards the length of the contribution period completed, according to the order for reference, Ms Salgado González’s basis for determination (base reguladora) was reduced by multiplying it by 53%, corresponding to her 16 years of contributions in Spain and Portugal, from a potential maximum of 35 years provided by Spanish law. It would appear that that reduction is not contested in the main proceedings.

35.      It is the manner in which Ms Salgado González’s average level of contributions over a 180 month or 15 year reference period were calculated that is in question in the main proceedings. (19) The referring court has raised a number of questions concerning the division of Ms Salgado González’s contributions during the years immediately preceding payment of her last contribution to the Spanish social security (1 April 1984 to 31 March 1999) by a divisor of 210 and, in particular, in light of the fact that she did not pay contributions from 1 April 1984 to 31 January 1989.

36.      In my view, given that Ms Salgado González’s entitlement to a retirement pension in Spain is satisfied due to the aggregation of her periods of insurance in Spain and Portugal, Article 46(2) of Regulation No 1408/71 is applicable. (20) Article 46(2) of Regulation No 1408/71 lays down the methodology pursuant to which the theoretical amount of Ms Salgado González’s benefit and the actual amount of benefit which she may claim is calculated. This is known as a system of aggregation and apportionment. (21)

37.      In accordance with Article 46(2)(a) of Regulation No 1408/71, the competent institution must calculate the theoretical amount of the benefit that the person could claim if all the periods of insurance completed by the person concerned in different Member States had been completed in the Member State in question. The competent institution then calculates, in accordance with Article 46(2)(b) of Regulation No 1408/71, the actual amount of the benefit on the basis of the theoretical amount, and in the ratio which the length of the periods of insurance completed before the risk materialises under the legislation administered by it bears to the total length of the periods of insurance completed under the legislations of all the Member States concerned before the risk materialised. (22)

38.      As regards the application of Article 46(2)(b) of Regulation No 1408/71 concerning the apportionment of the burden on Ms Salgado González’s theoretical benefit between Spain and Portugal, it would appear that the reduction of Ms Salgado González’s basis for determination (base reguladora) by 63.86%, corresponding to the ‘pro rata’ (23) or length of time worked by Ms Salgado González in Spain during the total period of insurance in Spain and Portugal from 1 February 1989 to 31 December 2005, is not contested in the main proceedings.

39.      It is apparent from the order for reference and the four questions referred, which I shall deal with together, that the referring court is essentially seeking guidance on the calculation of the theoretical amount of Ms Salgado González’s pension pursuant to Article 46(2)(a) of Regulation No 1408/71.

40.      The theoretical amount of Ms Salgado González’s pension must, in accordance with Article 46(2)(a) of Regulation No 1408/71, be calculated as if she had worked exclusively in Spain. (24) The purpose of that provision is intended to give to Ms Salgado González the maximum theoretical amount she could claim if all periods of insurance had been completed in Spain. (25)

41.      Article 47(1)(g) of Regulation No 1408/71 lays down additional rules for calculating the theoretical amount referred to in Article 46(2)(a) of that regulation and covers a system for calculating retirement benefits on an average basis for contributions, as laid down by Spanish legislation. (26) Moreover, in accordance with Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71, (27) which provides clarification of the detailed rules set out in Article 47(1)(g) of Regulation No 1408/71, and the settled case-law on the matter, in cases such as that in question in the main proceedings and as rightly pointed out by the referring court, the theoretical amount of Ms Salgado González’s pension must be determined by reference solely to contributions actually paid by her under Spanish legislation, subject to updating and revalorisation, so as to correspond to what she would have paid had she continued to work under the same conditions in Spain. (28) In addition, the calculation of the average contribution basis pursuant to Article 47(1)(g) of Regulation No 1408/71, as clarified by Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71, is to be determined with sole reference to insurance periods completed under the legislation concerned, (29) in this case the Spanish legislation.

42.      It is settled case-law that Article 47(1)(g) of Regulation No 1408/71 must be interpreted in the light of Article 46(2)(a) of that regulation and the objective laid down by Article 42 EC, 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. (30)

43.      In the case in the main proceedings, it must be stressed that despite the fact that Ms Salgado González has insurance contributions for a period of 16 years, (31) a period which was in fact superior to the 180 month reference period established by Article 162(1) of the General Law on Social Security, the calculation of her average contributions by including, in the reference period adopted in respect of her, the period of 1 April 1984 to 31 March 1999 resulted in a considerable reduction in the theoretical amount of her benefit pursuant to Article 46(2)(a) of Regulation No 1408/71 and ultimately her actual pension. This reduction arose due to the fact that during the period 1 April 1984 to 31 January 1989, (32) Ms Salgado González did not make any contributions to the Spanish social security. (33)

44.      In the light of Article 46(2)(a) and Article 47(1)(g) of Regulation No 1408/71 and Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 and in order to ensure that Ms Salgado González does not suffer a reduction in the amount of her pension as a result of having availed of her right of free movement, I consider that given that she paid insurance contributions in Spain and Portugal for a period in excess of the 180 month period established by Article 162(1) of the General Law on Social Security, her basis of determination (base reguladora) should be calculated as the average of her actual contribution bases in Spain during the period from 1 February 1989 to 31 March 1999. The divisor of 210 must however be adjusted in order to take account of the fact that Ms Salgado González exercised her right to free movement and should thus reflect the number of ordinary monthly contributions and of extraordinary annual contributions payable by Ms Salgado González in Spain during the period 1 February 1989 to 31 March 1999.

45.      The INSS and the TGSS submit that the possibility of calculating a migrant worker’s pension by taking into account the date of the last contribution in Spain instead of the date of the operative event, without altering the number of months to be taken into account (180), is both non-discriminatory and fair as otherwise the period of contributions to be taken into account would be very limited. The INSS and the TGSS noted in their written submissions the great flexibility enjoyed by such workers to choose the level of insurance contributions they wish to pay under Spanish law and indeed the possibility open to such workers to suspend their obligation to pay contributions. Thus when a self-employed worker does not pay contributions, that lacuna is calculated as zero. (34) In addition, the INSS and the TGSS submit that the scope of the free movement of workers is different with regard to employed workers and self-employed workers. A Member State’s social security legislation may be one of the reasons which lead a self-employed worker to establish in another Member State. The exercise of the right to free movement may thus have an impact on the amount of a self-employed worker’s pension where a Member State’s legislation does not take account of periods where no contribution is paid. This is not contrary to the principle of equality and the free movement of workers. At the hearing on 24 May 2012, the INSS and the TGSS referred to the possibility of self-employed workers manipulating the Spanish social security system by exercising their right to free movement.

46.      The purpose of Article 162(1) of the General Law on Social Security appears to be to calculate an average or representative amount in respect of a worker’s contribution bases in Spain over a reference period. I consider that while the application I have outlined at point 44 above of the provisions of Article 46(2)(a) and Article 47(1)(g) of Regulation No 1408/71 and Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 on the calculation of the theoretical amount of benefits may, but not necessarily, (35) result in a limited period of contributions in Spain being taken into account when calculating a migrant worker’s basis of determination, I can see no clear or inevitable, untoward advantage being derived by such a worker. In that regard, it must be underscored that the theoretical amount of Ms Salgado González’s pension was reduced by applying a ratio in accordance with Article 46(2)(b) of Regulation No 1408/71 in order to reflect the fact that she had exercised her right to free movement and had not paid insurance contributions in Spain after 31 March 1999. (36)

47.      Failure to make such an adjustment to the divisor will, in my view, greatly impede a self-employed worker’s right to free movement. (37) Moreover, contrary to the submissions of the Kingdom of Spain, the reduction of Ms Salgado Gonzalez’s theoretical amount in accordance with Spanish legislation and the use of a divisor, corresponding to the number of ordinary monthly contributions and extraordinary annual contributions payable over the reference period, which fails to take account of the fact that she exercised her right to free movement, will not be compensated by the fact that she will receive a pension in another Member State. I consider that such a submission fails to account for the application of the terms of both Article 46(2)(a) and Article 46(2)(b) of Regulation No 1408/71 in the calculation of pensions in all the Member States concerned, and ignores the clear distinction in methodology in calculating the theoretical amount of a benefit and the actual amount of a benefit laid down in those provisions.

48.      As regards the submission by the INSS and the TGSS that the scope of the free movement of workers is different with regard to employed workers and self-employed workers, such a claim should be rejected in the light of the legal provisions which are applicable in the context of the facts and circumstances of the main proceedings, as indicated by the referring court. In that regard, the provisions of Article 46(2)(a) and Article 47(1)(g) of Regulation No 1408/71 and Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 on the calculation of the theoretical amount of a benefit are equally applicable to employed and self-employed workers. (38)

49.      It would appear, subject to verification by the referring court, that under the Spanish social security system, the level of a self-employed worker’s pension directly reflects the effort they have made to contribute to that system. In my view, the adjustment of the divisor of 210 laid down in accordance with Article 162(1) of the General Law on Social Security to the extent necessary to take account of the fact that a self-employed worker exercised their right to free movement, coupled with the application of the ratio (39) laid down in Article 46(2)(b) of Regulation No 1408/71, ensures that that effort is correctly reflected in the amount of that worker’s actual pension in the Member State concerned while nonetheless guaranteeing their right to free movement and ensuring the financial viability of the national pension system.

VI –  Conclusion

50.      In the light of the considerations set out above, I propose that the Court should answer the questions referred by the Tribunal Superior de Justicia de Galicia (Spain) for a preliminary ruling as follows:

Where a self-employed migrant worker has insurance contributions in one or more Member States for a period equal to or in excess of a reference period provided by Spanish legislation, Article 46(2)(a) and Article 47(1)(g) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Heading H, paragraph 4 (Spain), of Annex VI of Regulation No 1408/71 preclude the calculation of that worker’s theoretical Spanish benefit on the basis of his actual Spanish contributions, during the years immediately preceding payment of his last contribution to the Spanish social security, where the sum thus obtained is divided by a divisor, corresponding to the number of ordinary monthly contributions and extraordinary annual contributions payable over the reference period, which fails to take account of the fact that the worker exercised his right to free movement.

1 – Original language: English.

2 – Regulation on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416).

3 – Regulation adapting certain Regulations and Decisions in the fields of free movement of goods, freedom of movement of persons, company law, competition policy, agriculture (including veterinary and phytosanitary legislation), transport policy, taxation, statistics, energy, environment, cooperation in the fields of justice and home affairs, customs union, external relations, common foreign and security policy and institutions, by reason of the accession of Bulgaria and Romania (OJ 2006 L 363, p. 1).

4 – OJ 2004 L 166, p. 1.

5 – Regulation amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its Annexes (OJ 2009 L 284, p. 43).

6 – The referring court notes that, pursuant to Spanish legislation, there is a mechanism for filling gaps created by Article 162(2) of the General Law on Social Security, which allows the periods in which there was no obligation to contribute to be covered by minimum bases of contributions. However, this mechanism is not applicable, as can be deduced from additional provision 8(4) of the General Law on Social Security, to self-employed workers, such as Ms Salgado González.

7 – Ms Salgado González claimed on 8 January 2007 that the basis for determination (base reguladora) for her pension should be EUR 864.14 per month. It would appear from the order for reference and the INSS’s and the TGSS’s submissions before the Court, subject to verification by the referring court, that Ms Salgado González’s claim was based, inter alia, on her contributions in Portugal from 1 January 1991 to 31 December 2005.

8 – Which resulted in the theoretical amount of the benefit.

9 – It would appear from the file before the Court, subject to verification by the referring court, that the percentile 53 was calculated on the basis of the 16 years Ms Salgado González worked in Spain and Portugal. 50% corresponds to the first 15 years of contributions and 3% to the 16th year.

10 – It would appear from the file before the Court, subject to verification by the referring court, that 63.86% corresponds to the 3 711 days, from 1 February 1989 to 31 March 1999, worked by Ms Salgado González in Spain, of a total of 5 811 (3 711 + 2 100) days worked in Spain and Portugal from 1 February 1989 to 31 December 2005. See Article 46(2)(b) of Regulation No 1408/71.

11 – See Case C-251/94 Lafuente Nieto [1996] ECR I-4187; Joined Cases C-31/96 to C-33/96 Naranjo Arjona and Others [1997] ECR I-5501; and Case C-153/97 Grajera Rodríguez [1998] ECR I-8645.

12 – See Lafuente Nieto, cited in footnote 11, paragraph 38.

13 – And as in fact was done in 1985, when it was raised from 2 to 8 years, and in 1997, when it was raised from 8 to 15 years.

14 – See point 11 above.

15 – With the entry into force of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1). See Article 91 of Regulation No 883/2004. Regulation No 1408/71 was repealed on that same date. See Article 90(1) of Regulation No 883/2004.

16 – The terms of Article 48 TFEU are somewhat different to Article 42 EC (previously Article 51 EEC). I would highlight the fact that the Parliament and the Council under Article 48 TFEU are granted the express power to adopt measures in the field of social security in respect of self-employed workers. Under Article 42 EC, such measures were adopted by the Council in respect of employed workers. However, it must be recalled that the terms of Regulation No 1408/71 were extended to self-employed persons by Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1981 L 143, p. 1). The case-law of the Court in cases concerning employed workers often refers to the need to interpret Regulation No 1408/71 in the light of Article 42 EC and the objectives of that provision. I consider that, following the adoption of Regulation No 1390/81, where a provision of Regulation No 1408/71 applies to both employed and self-employed migrant workers, reference in the case-law of the Court to the need to interpret that provision in the light of Article 42 EC and its objectives applies mutatis mutandis to self-employed migrant workers.

17 – See by analogy, Case C-503/09 Stewart [2011] ECR I-0000, paragraphs 75 to 77 and the case-law cited.

18 – See point 9 above where the terms of Article 161(1)(b) of the General Law on Social Security requiring the payment of contributions for at least 15 years in order to be entitled to an old-age pension under Spanish law are outlined. A Member State is entitled to impose a minimum contribution period for the acquisition of entitlement to a pension provided for by national legislation and to define the nature and limits of insurance periods which may be taken into account for that purpose, on condition 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 had been completed under national legislation. See Case C-440/09 Tomaszewska [2011] ECR I-0000, paragraph 31.

19 – In their submissions before the Court, the INSS and the TGSS indicated that with the adoption of Law 27/2011 of 1 August 2011 on the updating, adaptation and modernisation of the social security system, the period to be taken into account for the calculation of the basis of determination (base reguladora) would gradually increase from 2013 until 2027. In 2027, the calculation of the basis of determination (base reguladora) would consist of the division of the contribution bases of a beneficiary in respect of the 300 months preceding the operative event by a divisor of 350. According to the INSS and the TGSS, the increase in the reference period is in order, on the one hand, to guarantee the financial viability of the system and, on the other hand, to respect the principle of fairness whereby the amount of a contributory pension reflects the amount contributed by a worker.

20 – It is settled case-law that the question of the acquisition of entitlement to a retirement pension comes within the scope of Article 45(1) of Regulation No 1408/71, whereas the rules concerning the calculation of the amount of the benefits are laid down in Article 46 et seq. of that regulation. See, to that effect, Joined Cases C-45/92 and C-46/92 Lepore and Scamuffa [1993] ECR I-6497, paragraph 13, and Lafuente Nieto, cited in footnote 11, paragraph 49.

21 – See Case C-199/88 Cabras [1990] ECR I-1023, paragraph 5.

22 – Case C-5/91 Di Prinzio [1992] ECR I-897, paragraphs 41 and 49.

23 – See Di Prinzio, cited in footnote 22, paragraph 51 et seq.

24 – See, by analogy, Case C-347/00 Barreira Pérez [2002] ECR I-8191, paragraph 28.

25 – Case C-30/04 Koschitzki [2005] ECR I-7389, paragraph 28. See also, Case 793/79 Menzies [1980] ECR 2085, paragraphs 10 and 11.

26 – See Naranjo Arjona and Others, cited in footnote 11, paragraph 19. See also, by analogy, Case 181/83 Weber [1984] ECR 4007, paragraph 14.

27 – That provision leaves the content of Article 47(1)(g) of Regulation No 1408/71 unaltered, and is intended only to ensure the compatibility thereof with the principles set out in Article 42 EC. See Grajera Rodríguez, cited in footnote 11, paragraph 20.

28 – See Naranjo Arjona and Others, cited in footnote 11, paragraphs 21 and 22, and Grajera Rodríguez, cited in footnote 11, paragraph 19.

29 – In Grajera Rodríguez (cited in footnote 11), the Court held that the taking into account of a period during which a migrant worker did not actually contribute to a particular national social security scheme and which had, moreover, already been taken into account under the legislation of another Member State in which the person concerned had worked did not comply with Article 47(1)(g) of Regulation No 1408/71. Mr Grajera Rodríguez’s submission that amounts paid to him in another Member State during the years immediately preceding the materialisation of the risk should be taken into account was thus effectively rejected by the Court.

30 – Lafuente Nieto, cited in footnote 11, paragraph 33. This implies that the average contribution basis calculated pursuant to Article 47(1)(g) of Regulation No 1408/71 must be the same for the migrant worker as it would have been if she had not availed herself of her right to free movement. See Naranjo Arjona and Others, cited in footnote 11, paragraph 21.

31 – See points 10 and 11 above.

32 – Corresponding to 4 years and 10 months.

33 – See point 11 above which outlined that Ms Salgado González only started contributing to the Spanish social security from 1 February 1989.

34 – In the case of employed workers such lacunae are ‘filled’ by an amount equivalent to a minimum contribution.

35 – This in fact depends on each individual migrant worker’s situation. In any event, as regards the specific facts of the case in the main proceedings, Ms Salgado González has contributions in Spain from 1 February 1989 to 31 March 1999, thus for a period of over 10 years, which I would submit is a sufficiently long period to obtain a representative, average contribution.

36 – See point 13 above. See also point 38 above.

37 – It is also clear that under the operation of Spanish law, the longer a self-employed worker exercises their right to free movement the more pronounced such an impediment. Moreover, this impediment will be exacerbated over time with the extension of the reference period to 300 months preceding the operative event and the adoption of a divisor of 350 pursuant to Spanish Law 27/2011 (see footnote 19 above).

38 – Article 46(2)(a) of Regulation No 1408/71 refers specifically to self-employed persons (workers). See also Barreira Pérez, cited in footnote 24, paragraph 28. I consider that as Article 47(1)(g) of Regulation No 1408/71 lays down additional rules for calculating the theoretical amount referred to in Article 46(2)(a) and Heading H, paragraph 4 (Spain), of Annex VI to Regulation No 1408/71 provides clarification in respect of Article 47(1)(g), all the aforementioned provisions apply equally to employed and self-employed workers.

39 – See points 13, 38 and 46 above. The ratio is also referred to in the main proceedings as a pro rata temporis.

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