C-19/68

Landesversicherungsanstalt Schwaben , Augsburg,

on the interpretation of Articles l(p), 24,27 et seq. of Regulation No 3 of the Coun­ cil concerning social security for migrant workers,

THE COURT

composed of: R. Lecourt, President, A. Trabucchi, President of Chamber, A. M. Donner, W. StrauB and P. Pescatore (Rapporteur), Judges,

Advocate-General: J. Gand

Registrar: A.Van Houtte

On 9 April 1965 the Chieti provincial office — With regard to Article 4, which limits the of the INPS transmitted to the Landesver­ application of Regulation No 3 to wage- sicherungsanstalt Schwaben (Swabian Re­ earners or assimilated workers (and to gional Insurance Institution) an application their survivors), it is appropriate to find from Mr De Sicco for a German invalidity that the social legislation of Member pension. States very largely assimilates inde­ The Landesversicherungsanstalt, by deci­ pendent craftsmen to wage-earners and sion of 7 September 1965, rejected Mr De that, according to the general concept Cicco's application on the ground that, as applicable in the Community, periods of the applicant had only contributed for 42 contribution to the Italian craftsmen's months to compulsory workers' insurance insurance are to be considered as in Germany and as he had not been affiliated insurance periods within the meaning of to social insurance in Italy, he had not com­ Regulation No 3 and are capable of being pleted the qualifying period of 60 calendar aggregated with German insurance months required by Articles 1246(3) and periods by virtue of Article 27. 1247(3) of the German social insurance The order of the Sozialgericht, Augsburg, code. containing the reference was lodged at the Mr De Sicco appealed against this decision Court Registry on 7 August 1968. on 12 January 1966 to the Sozialgericht In conformity with Article 20 of the Protocol (Social Court), Augsburg. on the Statute of the Court of Justice of the On 5 August 1968, that court decided to EEC, written observations were submitted suspend the proceedings and to put the by the applicant in the main action, De following question to the Court of Justice Sicco, the Commission of the European for a preliminary ruling: Communities and the Government of the Italian Republic. 'Are periods of contribution to craftsmen's insurance (special section of the National The Landesversicherungsanstalt Schwaben, the Italian Government and the Commis­ Social Security Institution) completed in Italy insurance periods within the meaning sion of the European Communities made of Articles 1(p), 24, 27 et seq. of Regulation oral observations at the hearing on 28 November 1968. No 3 of the EEC concerning social security for migrant workers?' In the course of that hearing, the Italian Government made a statement with regard In the statement of grounds for its order the to certain documents produced by the Lan­ Sozialgericht takes the view that the answer to this question must be in the affirmative desversicherungsanstalt and the Commis­ sion replied to questions put by the Judge- and in support of this view it advances in Rapporteur. particular the following arguments: The Advocate-General delivered his opi­ — It follows from Articles 1(b), 2(1)(b), nion at the hearing on 10 December 1968. 2(2) and 3(1) of Regulation No 3 as well as from Annex B thereto (section relating II — Observations submitted to the to Italy), that Italian legislation on Court invalidity insurance is part of the legisla­ tion covered by the Regulation. The written and oral observations submitted — It emerges from an examination of to the Court may be summarized as follows:

1. The Landesversicherungsanstalt Schwa 1. The applicant in the main action, De Cicco, ben, the defendant in the main action, denies agrees with the arguments put forward in that the Sozialgericht, Augsburg, has the order of the Sozialgericht, Augsburg. jurisdiction to put the question which is the He maintains, first, that as he was affiliated subject-matter of its decision to refer the to social insurance in Italy for 84 months, he matter to the Court. had thus amply completed, by the aggrega In the application of the principle of terri tion of the German and Italian contribution toriality, which has been enshrined in periods, the qualifying period required by particular in Articles 33 and 34 of Regula German legislation and, secondly, that in tion No 4, only the Italian social security Italy craftsmen form part of the same agencies are empowered to decide whether category as wage-earners and have the same certain insurance periods completed in pension rights as they have. Italy are insurance periods within the

In this case it is not a sequence, has no jurisdiction to order it, matter of an error or omission; it was with contrary to the wish of the Italian social full knowledge of the facts that the INPS, in security agencies, to aggregate the Italian agreement with the Italian Ministry of insurance periods with the German periods. Labour and Social Security, has up to now As the Sozialgericht has no jurisdiction in always refused to assimilate craftsmen to the matter, the question which it has put to the Court is therefore inadmissible. wage-earners for the purposes of Regulation

2. The Government of the Italian Republic is in principle be aggregated, with a view to of the opinion that it is for the national the acquisition of a right to benefit in court alone to assess the extent to which the Germany, with the periods completed under questions of interpretation which it submits the German legislation; the whole problem to the Court of Justice are opportune and is thus whether the Italian insurance periods relevant. are covered by Community law and more 3. The Commission of the European Com particularly whether craftsmen must be munities takes the view that the Sozial considered, for the application of the gericht, being obliged to apply a Communi Regulation, as regards insurance periods ty regulation, has jurisdiction to put to the completed by them under Italian legislation, Court a question relating to the interpreta as assimilated to wage-earners. tion of the Treaty or of that regulation. Relying on the judgment delivered by the

wage-earners having regard to the fact that — is accompanied by some special rules in general it refers to legislation concerning for its application which do not have the latter, to the application of which it the effect of creating an independent simply makes a few modifications; there are scheme peculiar to those persons. not two schemes, independent one of the (b) The contribution periods completed, for other, connected together simply by rules of a given branch of insurance, within the internal coordination. framework of a social security scheme The fact that the craftsmen's scheme is not the beneficiaries of which may be con­ mentioned in Annex 9 to Regulation No 4 sidered as wage-earners or assimilated which, in the application of Article 5(1)(i) workers are insurance periods within of the said Regulation sets out the general the meaning of Articles 1(p), 24, 27 et and special schemes, cannot lead to the seq. of Regulation No 3. exclusion of craftsmen from the field of application ratione personae of the regula­ 4. The Government of the Italian Republic tions. In fact the term 'legislation' also maintains, with regard to Italian national includes, within the meaning of the regula­ law, that insurance periods completed with­ tions, legislation which has come into force in the framework of craftsmen's insurance, subsequently and which has not been the as provided for by Law No 463 of 4 July subject of notification by the State con­ 1959, constitute insurance periods with all cerned; the exclusion of the craftsmen's the results which that implies. scheme can be deduced from the fact that it The Law of 1959 extended to craftsmen the

Grounds of judgment

By order of 5 August 1968, which reached the Court Registry on 7 August 1968, the Sozialgericht, Augsburg, by virtue of Article 177 of the Treaty establishing the European Economic Community, referred to the Court the question whether per­ iods of contribution to craftsmen's insurance (special section of the INPS) com­ pleted in Italy are insurance periods within the meaning of Articles 1(p), 24, 27 et seq. of Regulation No 3 of the Council concerning social security for migrant workers.

It is not for the Court, within the framework of this procedure, to assess, having regard to the provisions of Community law which have been quoted, the character­ istics of the legislation of one of the Member States of the Community, as that task is reserved to the court making the reference, whose duty it is to ensure the applica­ tion of Community law to the dispute of which it is seised.

However, the question thus put relates in substance to the interpretation of certain provisions of Regulation No 3 concerning the aggregation of periods of contribu­ tion to a craftsmen's insurance scheme and of periods completed under a general social insurance scheme with a view to the acquisition of a right to an invalidity pension.

A — The jurisdiction of the Court

The Landesversicherungsanstalt Schwaben, the defendant in the main action, disputes the admissibility of the question referred to the Court by reason of an alleged want of jurisdiction on the part of the court making the reference and the absence of any legal interest requiring protection on the part of the applicant in the main action.

B — Whether the Italian social security institution should be made a party

The defendant in the main action requests the Court as a subsidiary point to summon the Italian social security institution competent under Articles 30 et seq. of Regulation No 4 to deal with the application for benefits concerning the applicant in the main action.

It points out on this subject that a difference of view exists between this institution, in correspondence with the relevant German institution, and the Italian Govern­ ment as can be seen from the attitude taken by the latter in the present proceedings.

In accordance with Article 20 of the Statute of the Court, proceedings under Article 177 of the Treaty only involve an entitlement for the parties to the main action, the Member States, the Commission and, where appropriate, the Council, to submit statements of case or written observations to the Court.

In the application of this provision the Italian State has made known its view on the scope of Italian law with regard to the Community rules referred to in the question put by the Sozialgericht, Augsburg.

The Court cannot agree to the participation in the proceedings of persons or institutions other than those referred to in Article 20 of its Statute.

In accordance with Article 1(p) of the same Regulation the expression 'insurance periods' covers contribution periods or periods of employment as defined or reckoned as insurance periods in the legislation concerning a contributory scheme under which they were completed.

In accordance with Article 1(b) of the same Regulation, the expression 'legislation' means all laws, regulations and other enforceable provisions ('dispositions statu­ taires'), present and future of each Member State relating to the social security schemes and branches of social security set out in Article 2(1) and (2) of the same Regulation.

By virtue of the latter provisions, the Regulation is applicable to all schemes of social security, general and special, the purpose of which is, amongst other things, the payment of invalidity benefits.

Annex B to the same Regulation in its turn states, as is provided in Article 3, that the Regulation applies, as far as Italy in particular is concerned, to legislation respecting invalidity insurance.

From all these rules read together it follows that the material field of application of Regulation No 3 is determined essentially according to that of national legislation in social security matters referred to by the provisions abovementioned.

The scope of Regulation No 3 is set out, as regards the persons to whom it applies, by Article 4 which provides that: 'The provisions of this Regulation shall apply to wage-earners or assimilated workers who are or have been subject to the legislation of one or more of the Member States...'.

Consequently contribution periods completed in such conditions are contribution periods within the meaning of Articles 1(p), 24, 27 et seq. of Regulation No 3.

The above conclusions cannot be modified by the effect of the provisions of Regulation No 4.

Generally speaking, the provisions of this Regulation have the purpose of deter­ mining the methods of application and supplementing the provisions of Regulation No 3.

More particularly, the items set out in Annexes 7 and 9 to Regulation No 4 have no effect on the answer to the question put to the Court in view of the fact that under the terms of Article 27(1) of Regulation No 3, read in conjunction with Article 2(2) thereof, the aggregation of insurance periods with a view to the acquisition of the right to benefit takes place whether the social security scheme by virtue of which the periods have been completed is referred to as a general or a special scheme.

In any event the said Annexes have only a declaratory character and the mention or omission of a scheme of social security in those annexes therefore cannot modify a legal situation such as that which follows from the provisions of Regulation No 3 in conjunction with the national legislative systems referred to by that regulation.

D — Costs­

Upon hearing the observations of the applicant in the main action, De Cicco, the Landesversicherungsanstalt Schwaben, the defendant in the main action, the Government of the Italian Republic and the Commission of the European Com­ munities ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 51; Having regard to Regulation No 3 of the Council concerning social security tor migrant workers, in particular Articles 1,2, 3, 4, 24, 25, 26 and 27 and Annexes B and F thereto; Having regard to Regulation No. 4 of the Council on implementing procedures and supplementary provisions in respect of Regulation No 3, especially Articles 5, 30, 33 and 34 and Annexes 7 and 9 thereto; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community, in particular Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

in answer to the question referred to it by the Sozialgericht, Augsburg, (6th Cham­ ber) by order of 5 August 1968, hereby rules:

Periods of contribution to craftsmen's insurance are insurance periods within the meaning of Articles 1(p), 24, 27 et seq. of Regulation No 3 of the Council concerning social security for migrant workers to the extent to which those periods have been completed by virtue of national legislation protecting crafts­ men against one or more risks by extension of schemes organized for the benefit of the generality of wage earners, whatever may be the forms or methods of application used for this purpose by the national legislature;

Registrar President