Keywords
Summary

Keywords

Social security for migrant workers - Insurance in respect of old age and death - Insurance against invalidity - Calculation of benefits - National legislation determining benefit by reference to an average contribution basis over a reference period - Detailed rules for application to a worker ceasing his activity in a Member State applying different legislation and who has not contributed under the applicable legislation during the reference period - Calculation of the average contribution basis by reference to contributions actually paid under the legislation applicable, with the theoretical amount of the corresponding benefit being revalorized and increased as if the persons concerned had continued to work under the scheme of the legislation applicable - Derogation - Bilateral social security convention prior to the regulation's entry into force in the Member State in question and more advantageous for the workers concerned

(Council Regulation No 1408/71, Art. 47(1)(e))

Summary

Article 47(1)(e) of Regulation No 1408/71, as amended and updated by Regulation No 2001/83 and as adapted by Annex I, Part VIII, of the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, and which has become Article 47(1)(g) following the entry into force of Regulation No 1248/92, implies that, where retirement and invalidity pensions are calculated under the legislation of a Member State whereby the amount of those pensions is calculated from an average contribution basis corresponding to the salary received over a certain number of years preceding retirement or the onset of invalidity, calculation of the average basis for contributions rests, in the case of workers who, after having been subject to the legislation of that Member State, resumed employment in another Member State and carried it on until the end of their working lives, solely on the amount of contributions actually paid under the legislation concerned, and further implies that the theoretical amount of the benefit thus obtained is to be duly revalorized and increased as if the persons concerned had continued to work under the same conditions in the Member State in question.

However, where application of that provision so interpreted proves less advantageous, for workers who were already employed in another Member State before the regulation entered into force in the first Member State, than the application of a previous convention between those two States, the competent court should, by way of exception, apply the rules laid down by that convention.