C-33/75

(Council Regulation No 574/72, Article 15 (3)

If an insurance period of less than one of aggregation, produces a decimal month completed in the Federal fraction, must also be rounded up to the Republic of Germany must, under next highest figure in months, in order German legislation, be treated as a whole to ensure that employed workers do not, month, an insurance period completed in because of emigration, lose the rights accordance with the legislation of which they have acquired in their another Member State and which, on country of origin. conversion into months for the purpose

In Case 33/75

Reference to the Court under Article 177 of the EEC Treaty by the Sozialgericht Augsburg for a preliminary ruling in the action pending before that court between

Benito Galati, Terrasini, and

Landesversicherungsanstalt Schwaben, Augsburg,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and procedure and the written it to be taken into account by the observations submitted under Article 20 competent institution as a full month of the Protocol on the Statute of the or one which has started to run? Court of Justice of the EEC may be 2. Is the last phrase of Article 45 (1) of summarized as follows: Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes I — Facts and procedure to employed persons and their families moving within the By order of 27 January 1975 the Community (OJ L 149 of 5. 7. 1971, Sozialgericht Augsburg requested the p. 2) to be interpreted as constituting Court of Justice to rule on the following a fiction in the sense that insurance questions: ­ periods in another Member State 1. When insurance periods which are which can be counted towards the expressed in weeks are converted into qualifying period are treated without periods which are expressed in examination by the competent months (Article 15 (3) of Regulation institution as insurance periods (EEC) No 574/72 of the Council of 21 completed in its own State which can March 1972 fixing the procedure for be counted as aforesaid, or is it implementing Regulation (EEC) No permissible to examine the insurance 1408/71, OJ L 74 of 27. 3. 1972, p. 1), periods completed in the other is any decimal fraction which may be Member State in the light of the left over to be disregarded in the legislation which the institution aggregation of insurance periods or is administers?

The plaintiff in the main action, an — to disregard the partially completed Italian national residing in Italy, became month (which is the view of the incapable of work in January 1971. He defendant in the main action; or had completed 27 insurance months in — to treat the partially completed the Federal Republic of Germany and, month as a full month for the up to January 1971, had paid 142 weeks' purposes of conversion (which is the compulsory contributions in Italy; he practice of all the insurance schemes later paid two weeks' voluntary in the Community); or contributions (27. 6. 1971 to 4. 7. 1971), — to treat the period expressed as a with the permission of the Istituto decimal fraction as a partially nazionale della previdenza sociale completed German monthly con­ pursuant to Article 1 of Decree No 1432 tribution period, in other words, to of 31 December 1971 (Gazzetta Ufficiale round up the resultant figures in No 131 of 22. 5. 1972, p. 3859). accordance with paragraph 1250 (3) of the Reichversicherungsordnung The applicant applied to the defendant (which is the answer favoured by the in the main action for a part pension court making the reference). from the German pensions insurance scheme on account of incapacity for The Sozialgericht emphasizes moreover work, or alternatively, occupational that the disadvantages arising from invalidity. His application was rejected leaving the decimal fractions out of on 14 August 1973 on the ground that account are caused entirely by the the qualifying period of 60 calendar emigration of the insured worker and months for these risks had not been that it is these very disadvantages which completed even if account were taken of Article 45 (1) of Regulation (EEC) No periods completed in Italy. The 1408/71 is designed to avoid. defendant has, in effect, argued that, The order making the reference was although periods completed in Italy must registered at the Court Registry on 24 be taken into account in applying Article March 1975. 45 (1) of Regulation (EEC) No 1408/71, only national law can determine in each Written observations were lodged by the case whether these insurance periods can defendant in the main action and by the be taken into account towards the Commission of the European Com­ qualifying period. (In fact, under munities in accordance with Article 20 of paragraphs 1246 (3) and 1247 (2) of the the Protocol on the Statute of the Court Reichversicherungsordnung, only periods of Justice of the EEC. completed before the risk materialized can count and, under paragraph 1255 (8) After hearing the report of the of the Reichversicherungsordnung, only Judge-Rapporteur and the views of the Advocate-General, the Court decided to contributions paid before the risk materialized are taken into account in open the oral procedure without any calculating the pension). preparatory inquiry.

Regulation (EEC) No 574/72 and Article completed under Italian legislation is 13 (4) of Regulation No 4, the conversion carried out in accordance with the rules into months of the 142 weeks completed laid down in Article 15 (3), in Italy gives a total of 32.77 months. abovementioned, and not in accordance with German law. As Article 51 of the EEC regulations prescribe a specific EEC Treaty merely provides that the conversion procedure but contain no disadvantages which emigration may express provision for the way in which entail for workers must be avoided, it decimal fractions should be treated. The cannot result in a additional privilege for qualifying period of 60 calendar months them. This applies in the present case required by German legislation was not because separate calculation of insurance completed in accordance with Article 15 periods could give a migrant worker an (3) of Regulation (EEC) No 574/72, advantage as a result of rounding up the which prescribes the conversion total once more when the periods are procedure for periods completed under converted. the legislation of another Member State and which must be taken into account Such an interpretation of Article 15 (3) within the meaning of Article 45 (1) of accords best with the principle of equal Regulation (EEC) No 1408/71. treatment and with the harmonization measures of the Member States. An explanatory memorandum1 concerning the said Article 15 reads as Second question

Even if, within the Community legislation was drafted, the framework of Community provisions, absence of a provision enabling the total account must be taken of all insurance to be rounded up was not considered to periods completed in the Member States, be a lacuna in the law which needed to national law alone is conclusive with be filled. regard to the 'qualifying period'. Article 28 (1) of Regulation No 3 provides that The conversion procedure followed by The institution of each of the Member the defendant in the main action does States shall, in accordance with its own not result in placing the foreign migrant legislation, determine whether the person worker at a disadvantage. In the case of a concerned satisfies the conditions for German insured worker, too, the entitlement to the benefits prescribed in conversion of the insurance periods that legislation …'; similarly, Article 45 (1) of Regulation No 1408/71, which 1 — Translator's note: this accompanied the draft regulation refers to it, must be interpreted as submitted to the Council. meaning that insurance periods other

The concept of materialization of the In the present case, therefore, the risk, which is inherent in German competent institution can examine the legislation, is of fundamental importance. periods completed in another Member It means that for the purposes of State in the light of the legislation which completion of the qualifying period in a the institution administers. case of occupational invalidity or physical incapacity only the periods prior (b) Observations submitted by the to materialization of the risk may be Commission taken into account. In contrast, therefore, to Italian legislation, the risk of First question occupational invalidity materializes regardless of the wishes of the assured, Since the Community provisions who can neither decide upon it applicable in the present case do not arbitrarily nor alter the date thereof by specify what is to be done with decimal lodging a pension application. But the fractions which may be produced as the Community regulations on social result of the conversion, it follows that security are also designed to avoid they must be neither ignored nor placing individuals at a disadvantage. It rounded up but, quite simply, taken into follows that, in the present case, an account as they are during aggregation, Italian cannot receive less favourable in this case as 59-77 months. The treatment than a German. This would question whether the result of that not, in any case, have occurred since the aggregation is sufficient for the purposes importance attached to the German of acquiring a pension right must be principle concerning risk would have settled by applying the provisions of affected them both. If Article 45 (1) of national law. If the latter makes it Regulation (EEC) No 1408/71 were to be possible to round up the decimal given the meaning favoured by the court fractions, (which is the case under making the reference, the result would be paragraph 1250 (3) of the Reichs­ that, because it is possible in Italy to versicherungsordnung migrant workers defer the risk and to complete the must enjoy the same rights as the qualifying period by paying voluntary nationals of the State concerned. contributions, an Italian could receive better treatment than a German. Second question

comply with the provisions of the the problem of interpreting and applying national legislation which it administers. the provisions of German legislation. The expression 'insurance periods' used This would be contrary to the basic in Article 45 (1) and defined in Article 1 principle laid down in Article 45 (1) and (r) of Regulation (EEC) No 1408/71 that laid down in Article 51 of the EEC means contribution periods or periods of Treaty. In order to ensure freedom of employment as defined or recognized as movement for workers it is not enough insurance periods by the legislation to guarantee that migrant workers will under which they were completed or receive treatment equal to that accorded considered as completed, and all periods to national workers, but they must be treated as such, where they are regarded safeguarded against any adverse by the said legislation as equivalent to consequences or loss which emigration insurance periods. The competent may entail. In consequence, if, pursuant institution must, therefore, refer to the to Article 1 of the Italian Decree of 31 legislation under which these periods December 1971, permission has been were completed. The Court reached a given to pay voluntary contributions to similar conclusion in its judgment of 6 the invalidity and old-age insurance June 1972 (Case 2/72, Murru v Caisse scheme, even for the period after the risk régionale d'assurance maladie de Paris, materialized, and if the voluntary Rec. 1972, p. 333), although in that case contributions have been paid, the it would have been better for the migrant competent German institution must take worker concerned if the competent these contributions into account without institution had referred to its own prior examination. legislation. However, it may be asked whether the question how contributions The defendant in the main action, paid after the risk materializes should be represented by its manager, Mr Wanders, counted again falls within the sphere of and the Commission, represented by its problems which, under Regulation No Legal Adviser, Mr Koch, acting as Agent, 1408/71, must be solved by reference to submitted their observations at the the legislation of the place where the hearing on 25 September 1975. worker is employed, and whether the problem is that of defining the qualifying period within the meaning of paragraphs The Advocate-General delivered his 1246 (3) and 1247 (3) of the Reichs­ opinion at the hearing on 15 October versicherungsordnung and, consequently, 1975.

In particular, the defendant contended that, although in application of Article 45 (1) of Regulation (EEC) No 1408/71, periods completed in the other Member States must be taken into account, only national law can, in each case, determine whether these insurance periods can be counted towards the qualifying period for the acquisition of the right to a pension.

2 The first question asks whether, when insurance periods which are expressed in weeks are converted into periods which are expressed in months (Article 15 (3) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71, OJ L 74 of 27. 3. 1972, p. 1, English Special Edition 1972 (I), p. 159), any decimal fraction which may be left over is to be disregarded in the aggregation of insurance periods or whether it is to be taken into account by the competent institution as a full month or one which has started to run.

The second question asks whether the last phrase of Article 45 (1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ L 149 of 5. 7. 1971, English Special Edition 1971 (II), p. 416), is to be interpreted as constituting a legal fiction in the sense that insurance periods in another Member State which can be counted towards the qualifying period must be considered, without any examination, by the competent institution as insurance periods completed in its own State which can be counted as aforesaid, or whether it is permissible to examine the insurance periods completed in the other Member State in the light of the legislation which the institution administers.

THE COURT

in answer to the questions referred to it by the Sozialgericht Augsburg by order of that court dated 27 January 1975, hereby rules:

If an insurance period of less than one month completed in the Federal Republic of Germany must, under German legislation, be treated as a whole month, an insurance period completed in accordance with the legislation of another Member State and which, on conversion into months for the purpose of aggregation, produces a decimal fraction, must also be rounded up to the next highest figure in months, in order to ensure that employed workers do not, because of emigration, lose the rights which they have acquired in their country of origin.

Lecourt Monaco Kutscher Donner Mertens de Wilmars

Pescatore Sørensen Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 30 October 1975.