This request for a preliminary ruling concerns the interpretation of Article 47 of Regulation 1408/71. It has been made in proceedings between Ms Salgado González and the Instituto Nacional de la Seguridad Social (‘INSS’) and the Tesorería General de la Seguridad Social (‘TGSS’) in relation to the amount of the old-age pension of the applicant in the main proceedings.
Ms Salgado González paid contributions in Spain to the Special Scheme for Self-Employed Persons from 1 February 1989 to 31 March 1999, i.e. a total of 3 711 days, and in Portugal from 1 March 2000 to 31 December 2005, i.e. a total of 2 100 days. She applied for a retirement pension in Spain. This retirement pension was granted to her by the INSS. Initially, the INSS fixed the amount of that benefit at EUR 371.36 per month (i.e. basic amount + adjustments and supplements). After an application for review by Ms Salgado Gonzalez, that amount was fixed at EUR 336.86 a month. That amount was obtained, pursuant to Spanish legislation, by adding the Spanish contribution bases paid between 1 April 1984 and 31 March 1999, namely, the 15 years preceding payment of the last contribution by Ms Salgado González in Spain, and by dividing them by 210. The applicant in the main proceedings having, however, started to pay contributions to Spanish social security only on 1 February 1989, those contributions paid between 1 April 1984 and 31 January 1989 were calculated as zero.
The action of Mrs. Salgado Gonzalez was brought to the High Court of Galicia, which asked the ECJ whether Article 48 TFEU, Article 3 of Regulation 1408/71 and Heading H, paragraph 4, of Annex VI, to that regulation, or paragraph 2(a) (Spain), of Annex XI to Regulation 883/2004 preclude legislation of a Member State, pursuant to which the theoretical amount of the retirement pension of the self-employed worker, migrant or non-migrant, is invariably calculated on contribution bases paid by that worker over the fixed reference period of 15 years preceding the payment of his last contribution in that Member State, divided by 210, when it is impossible for either the duration of that period or the divisor used to be adapted so as to take account of the fact that the worker concerned has exercised his right to freedom of movement.
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 Spanish legislation, took account both of the periods completed in Spain and those completed in Portugal, in accordance with Article 45 of Regulation No 1408/71. 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. 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. In addition, Article 47 (1)(g) provides that where, under the legislation of a Member State, benefits are calculated on the basis of average contributions, the competent institution is to determine that average by reference only to those periods of insurance completed under the legislation of that State. On top of that, Heading H of Annex VI to Regulation 1408/71, which sets out the specific rules for the application of the Spanish legislation, states at subparagraph (4)(a) that under Article 47 of that regulation, the calculation of the theoretical Spanish benefit is to be carried out on the basis of the insured person’s actual contributions during the years immediately preceding payment of the last contribution to Spanish social security.
The ECJ held that, when calculating the theoretical amount of the benefit, the INSS did not calculate Ms Salgado González’s average contribution by reference only to the insurance periods in Spain during the years immediately preceding the payment of the last contribution to Spanish social security, as required by Article 47(1)(g) of Regulation No 1408/71 and Heading H, paragraph 4(a), of Annex VI thereto. In fact, Ms Salgado González contributed to the Spanish social security system from 1 February 1989 to 31 March 1999, for a total of 3 711 days, i.e. approximately 10 years and 2 months, whereas the INSS adds a credited period running from 1 April 1984 to 30 January 1989 in order to fulfil the requirement of contributions spanning a period of 15 years preceding Ms Salgado González’s last Spanish contribution. This calculation allowed the INSS to obtain a numerator to which to apply the divisor of 210 set out in Spanish legislation, and thus ascertain the average contribution basis required to calculate the basic amount of the retirement pension. Nonetheless, as Ms Salgado González did not pay contributions between 1 April 1984 and 31 March 1989, the INSS in its calculation took account of insurance periods which were not completed in Spain. Those periods having necessarily been calculated as zero, taking them into account had the effect of reducing Ms Salgado González’s average contribution basis. No such reduction would have been made if Ms Salgado González had paid contributions only in Spain, without exercising her right to freedom of movement.
In the light of all of the foregoing, the answer to the questions referred is that Article 48 TFEU, Articles 3, 46(2)(a) and 47(1)(a) of Regulation 1408/71 and Heading H, paragraph 4, of Annex VI to that regulation must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, under which the theoretical amount of the retirement pension of a self-employed worker, migrant or non-migrant, is invariably calculated on contribution bases paid by that worker over a fixed reference period preceding the payment of his last contribution in that Member State, to which a fixed divisor is applied, when it is impossible for either the duration of that period or the divisor to be adapted so as to take account of the fact that the worker concerned has exercised his right to freedom of movement.