61975J0049

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SOCIAL SECURITY FOR MIGRANT WORKERS - OLD-AGE AND DEATH INSURANCE - INSURANCE PERIOD OF LESS THAN ONE YEAR - BENEFITS - RIGHT ACQUIRED BY VIRTUE OF THE LEGISLATION OF THE MEMBER STATE IN QUESTION - ARTICLE 48 OF REGULATION NO 1408/71 - INAPPLICABILITY

ARTICLE 48 OF REGULATION NO 1408/71 IS NOT APPLICABLE WHERE THE RIGHT TO BENEFITS OF A MIGRANT WORKER OR HIS SURVIVORS ALREADY ARISES SOLELY FROM THE PROVISIONS OF THE LEGISLATION OF THE MEMBER STATE IN 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,

ON THE INTERPRETATION OF ARTICLE 48 ( 1 ) OF REGULATION NO 1408/71 OF THE COUNCIL RELATING TO SOCIAL SECURITY

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 .

THE DEFENDANT IN THE MAIN ACTION REJECTED THE APPLICATION ON THE GROUND THAT THE INSURANCE PERIODS COMPLETED UNDER THE GERMAN LEGISLATION AMOUNTED TO LESS THAN THE TWELVE MONTHS PROVIDED FOR UNDER ARTICLE 48 ( 1 ) AFOREMENTIONED .

4 IT CAN BE SEEN FROM THE FILE THAT ON THE BASIS OF THESE PERIODS OF INSURANCE, THE COMPETENT INSTITUTION HAD GRANTED THE SPOUSE OF THE PLAINTIFF IN THE MAIN ACTION A PENSION FOR OCCUPATIONAL INVALIDITY BY A DECISION OF 9 APRIL 1965, WHICH WAS SUBSEQUENTLY CONVERTED INTO A DISABLEMENT PENSION AS FROM 1 JULY 1972 .

THE SOZIALGERICHT STATES THAT PARAGRAPH 1263 ( 2 ) OF THE REICHSVERSICHERUNGSORDNUNG PROVIDES FOR A SURVIVOR'S PENSION WHERE, AT THE TIME OF HIS DEATH, THE DECEASED 'WAS ENTITLED' TO AN INSURANCE PENSION .

5 UNDER THE ACTUAL TERMS OF ARTICLE 48 ( 1 ) THE LATTER ONLY APPLIES WHERE TWO CONDITIONS ARE FULFILLED, THAT IS, FIRST, THAT 'THE TOTAL LENGTH OF INSURANCE PERIODS ... DOES NOT AMOUNT TO ONE YEAR' AND, SECONDLY, THAT UNDER THE LEGISLATION OF THAT MEMBER STATE 'NO RIGHT TO BENEFITS IS ACQUIRED BY VIRTUE ONLY OF THOSE PERIODS '.

IT FOLLOWS THAT THIS ARTICLE CANNOT BE APPLIED WHERE THE RIGHT TO BENEFITS OF A MIGRANT WORKER OR HIS SURVIVORS ALREADY ARISES SOLELY FROM THE PROVISIONS OF THE LEGISLATION OF THE MEMBER STATE IN QUESTION .

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 .

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 PERIODS ... DOES NOT AMOUNT TO ONE YEAR' AND, SECONDLY, THAT UNDER THE LEGISLATION OF THAT MEMBER STATE 'NO RIGHT TO BENEFITS IS ACQUIRED BY VIRTUE ONLY OF THOSE PERIODS' IT FOLLOWS THAT THIS ARTICLE CANNOT BE APPLIED WHERE THE RIGHT TO BENEFITS OF A MIGRANT WORKER OR HIS SURVIVORS ALREADY ARISES SOLELY FROM THE PROVISIONS OF THE LEGISLATION OF THE MEMBER STATE IN QUESTION .