C-49/75

Article 48 of Regulation No 1408/71 is already arises solely from the provisions not applicable where the right to benefits of the legislation of the Member State in of a migrant worker or his survivors question.

In Case 49/75

Reference to the Court under Article 177 of the EEC Treaty by the Sozialgericht Augsburg (5th Senate) for a preliminary ruling in the action pending before that court between

CAMILLA BORELLA (nee Locatelli), of Pizzighettone (Cremona),

and

Landesversicherungsanstalt Schwaben, Augsburg,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order making the reference and the By a decision of 10 September 1974, the written observations submitted under defendant in the main action rejected the Article 20 of the Protocol on the Statute application submitted by the plaintiff in of the Court of Justice of the EEC may the main action on the ground that the be summarized as follows: insurance periods completed under German legislation did not amount to the twelve months required under Article I — Facts and procedure 48 (1) of Regulation No 1408/71.

to less than one year, but benefits were Article 118 (2) of which only provides for due to the deceased insured person automatic reassessment in respect of the arising out of these insurance periods same contingency. until his death after the coming into force of Regulation No 1408/71?' The order making the reference was received at the Court Registry on 5 June 1975. The Sozialgericht notes the consistent case-law of the Court to the effect that Having heard the report of the Judge the Court has no jurisdiction to interpret Rapporteur and the views of the a provision of domestic law with regard Advocate-General, the Court decided that to the provisions of Community law, but there was no need to undertake a may nevertheless provide a national court preparatory inquiry. with the criteria necessary for the interpretation of Community law which might be useful to it in evaluating the II — Observations submitted pur effects of that provision. suant to Article 20 of the Protocol on the Statute of Article 48 (1) of Regulation No 1408/71 the Court of Justice

such periods'. pension paid in Italy, it must not be The court making the order for reference forgotten that the pension to be paid on states that such an exception exists under the basis of the insurance periods the provisions of Paragraph 1263 (2) of completed under the German pensions the Reichsversicherungsordnung (RVO) insurance scheme differs depending on (the State insurance scheme), which whether it is paid under the German or provides that a survivor's pension is the Italian pensions insurance schemes. awarded when, at the time of his death, It is sufficient to recall in this respect the deceased 'was entitled' to an that in the Federal Republic of Germany insurance pension. pensions are reviewed annually and that pensions paid in different Member States In the opinion of the Sozialgericht, it is have different purchasing powers. for the legal existence of that entitlement Therefore, to take this right into sufficient that a decision was taken even consideration in calculating the pension if it was erroneous. In this connexion,

JUDGMENT OF 20. 11. 1975 — CASE 49/75

An insurance invalidates the claim to vested rights. pension governed exclusively by German Therefore Article 48 (1) should be law could not have been paid in the applied (as is clear from the combined present case since the right to the provisions of Articles 94 (1) and 99 of pension existed under supra-national law. that regulation) and not Article 28 (2) of The German legislation could not grant a Regulation No 4 even though an pension to the person entitled thereto or insurance pension had been paid to the to his survivors due on the basis of EEC deceased in pursuant of the latter regulations.

This they presuppose that the contingency right was not affected by the entry into materializes prior to the entry into force force of Regulation No 1408/71, as is of Regulation No 1408/71. The latter clear from Article 94 (5) and from the regulation does not conflict with this seventh recital in the preamble to that principle but is merely intended to avoid regulation. the granting of derisory benefits. Therefore it is for the Italian institution Article 48 (1) is also inapplicable since it to take responsibility for the period in merely lays down an exception to the question and to take it into consideration principle imposed upon the institutions in applying Article 46 (2) (a) of the said by Article 45 (1) of the same regulation, regulation. that insurance or residence periods completed abroad shall be taken into Furthermore, it is not possible to deduce consideration; the right acquired in this a right to a pension from the second case had been acquired independently of condition mentioned in Article 48 (1), the completion of such periods. which implies that in German law an insurance period of nine months is The Commission therefore believes that sufficient basis for the acquisition of the the question referred may be answered as right to a pension. However, in Germany follows: the time limit for failure to act in matters relating to invalidity and old-age and 'Article 48 (1) of Regulation No 1408/71 invalidity insurance is sixty months. of the Council of 14 June 1971 is not

applicable to benefits payable under the 48 (1) since a pension had previously legislation of one Member State unless been paid to the husband of the plaintiff the acquisition of the right to benefits in in the main action 'by virtue' of social accordance with Article 45 of that insurance contributions paid during a Regulation is subject to account being period of less than one year. taken of insurance or residence periods completed under the legislation of Article 48 (2) is not applicable to this another Member State.' case because it is only relevant to the case where insurance periods completed The Government of the Republic of Italy in a Member State of a total duration of states, first, that it is possible to resolve less than one year do not give rise to a the case in a manner favourable to the right to social security benefits. plaintiff in the main action on the basis of national law, independently of the In addition, this case is not concerned rules on coordination and harmon­ with a right to social security benefits ization laid down by the Community which have to be paid on the basis of legal order. certain insurance periods but with a survivor's pension, and therefore with a On various occasions the Court has right which in principle and according to emphasized that the rules for the German legislation arises exclusively coordinating the various systems are not from the pension already granted to the applicable where the right to certain deceased and which exists solely because benefits is acquired on the basis of a of that prior grant. single national legislation and that they cannot be invoked in order to reduce the No contrary argument can be drawn benefits which a social security from Article 118 of Regulation No institution is bound to pay by virtue of 574/72, the latter part of which excludes its own national legislation. the possibility of a downward Moreover, the very objectives of the reassessment. It seems very doubtful that Community regulations would be the death may serve to determine what jeopardized if their application led to loss the abovementioned provision defines as 'the date of materialization of the of benefit on the rights acquired in one Member State by virtue of the legislation contingency'. It is not permissible to discriminate between survivors in the in force in that State. same circumstances according to whether It follows from this that Article 48 (1) the death of the person under whom cannot be applied in the present case, they claim occurred before or after the since the pension in question was entry into force of Regulation No granted under German legislation 'by 1408/71. virtue' of the contributions paid in Germany and since the survivor's The Italian Government therefore

1 By order dated 28 May 1975 received at the Court on the following 5 June, the Sozialgericht Augsburg has referred to the Court under Article 177 of the EEC Treaty a question on the interpretation of Article 48 (1) of Regulation 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 English Special Edition 1971 (II) p. 416).

2 The said article provides that 'Notwithstanding the provisions of Article 46 (2), if the total length of the insurance periods completed under the legislation of a Member State does not amount to one year, and if under that legislation no right to benefits is acquired by virtue only of those periods the institution of that state shall not be bound to award benefits in respect of such periods'.

3 The question asks whether this provision must be understood as meaning that the relevant institution of a Member State is under an obligation to pay benefits to the survivors of an insured person who are resident in another Member State and who possess the nationality of that State, if the insurance periods completed under the legislation of this Member State amount to less than one year, but benefits were due to the deceased insured person arising out of these insurance periods until his death after the coming into force of Regulation No 1408/71.

This question was raised in the context of proceedings that related to an application for a survivor's pension under the German pensions insurance scheme for workers made to the Landesversicherungsanstalt Schwaben by an Italian national, the plaintiff in the main action, in view of the fact that her husband, who died in September 1973, had worked in Germany from 24 March 1941 to 3 January 1942 where he had paid nine monthly contributions to the old-age insurance scheme.

Costs

6 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable and since, in so far as the parties to the main action are concerned, the proceedings are a step in the action pending before the national court, it is for the latter court to decide the question of costs.

On those grounds,

THE COURT

in reply to the question referred to it by the Sozialgericht Augsburg by its order of 28 May 1975, hereby rules:

Since Article 48 (1) only applies where two conditions are fulfilled, that is, first, that 'the total length of the insurance

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 11 NOVEMBER 1975 1

Mr President, insurance purposes under the German Members of the Court, insurance laws. During the period from 24 March 1941 to 3 January 1942 he had In proceedings pending before the in fact paid contributions to the German Sozialgericht Augsburg which have pensions insurance scheme in respect of resulted in the question referred for a 9 months; one month was counted as an preliminary ruling with which I shall equivalent period (Ausfallzeit) under deal today, we are concerned with a German law. In these circumstances, on claim for the grant of a survivor's the basis of a decision of 9 April 1965 pension under the German pensions Mr Borella received a pension for insurance scheme for workers. The claim occupational invalidity as from 1 April is made by Mrs Borella, an Italian citizen 1964 and on the basis of a decision of

residing in Italy. 21 September 1972 he received a disablement pension as from 1 July Apart from 119 months completed under 1972.

the Italian legislation which can be taken into account for insurance purposes, Mrs On 20 September 1973 Mr Borella died. Borella's husband also had 10 months On 23 October 1973 Mrs Borella applied which can be taken into account for for the grant of a widow's pension. This

1 — Translated from the German.