JUDGMENT OF 19. 12. 1968 — CASE 19/68 DE CICCO v LANDESVERSICHERUNGSANSTALT SCHWABEN

In Case 19/68 Reference to the Court under Article 177 of the Treaty establishing the European Economic Community by the Sozialgericht (Social Court), Augsburg, (6th Chamber) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. Trabucchi, President of Chamber, A. M. Donner, W. Strauß and P. Pescatore (Rapporteur), Judges, Advocate-General: J. Gand Registrar: A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

Mr Giovanni De Cicco, of Italian nationality, born on 9 December 1898, worked as a labourer in Germany in 1941 and then between 1942 and 1945 — a total period of 42 months — and was covered by invalidity insurance.

Subsequently he worked in Italy as an independent craftsman between 1 January 1959 and 31 December 1965—a period of 84 months, during which he paid contributions to the Istituto Nazionale della Previdenza Sociale (National Social Security Institution, hereinafter referred to as the ‘INPS’), special section for craftsmen.

Since the month of April 1965 Mr De Cicco has been unable to carry out his occupation by reason of ill health and since the month of December 1967 he has been incapable of work within the meaning of the German legislation on pensions.

On 9 April 1965 the Chieti provincial office of the INPS transmitted to the Landesversicherungsanstalt Schwaben (Swabian Regional Insurance Institution) an application from Mr De Sicco for a German invalidity pension.

The Landesversicherungsanstalt, by decision of 7 September 1965, rejected Mr De Cicco's application on the ground that, as the applicant had only contributed for 42 months to compulsory workers' insurance in Germany and as he had not been affiliated to social insurance in Italy, he had not completed the qualifying period of 60 calendar months required by Articles 1246(3) and 1247(3) of the German social insurance code.

Mr De Sicco appealed against this decision on 12 January 1966 to the Sozialgericht (Social Court), Augsburg.

On 5 August 1968, that court decided to suspend the proceedings and to put the following question to the Court of Justice for a preliminary ruling:

‘Are periods of contribution to craftsmen's insurance (special section of the National Social Security Institution) completed in Italy insurance periods within the meaning of Articles 1(p), 24, 27 et seq. of Regulation No 3 of the EEC concerning social security for migrant workers?’

In the statement of grounds for its order the Sozialgericht takes the view that the answer to this question must be in the affirmative and in support of this view it advances in particular the following arguments:

It follows from Articles 1(b), 2(1)(b), 2(2) and 3(1) of Regulation No 3 as well as from Annex B thereto (section relating to Italy), that Italian legislation on invalidity insurance is part of the legislation covered by the Regulation.

It emerges from an examination of Italian legal provisions in this matter, in particular from Law No 463 of 4 July 1959 and Law No 1533 of 29 December 1956, that insurance periods completed under the Italian craftsmen's insurance are, within the meaning of Regulation No 3, insurance periods completed under social security legislation concerning a contributory scheme — possibly a private one.

With regard to Article 4, which limits the application of Regulation No 3 to wage-earners or assimilated workers (and to their survivors), it is appropriate to find that the social legislation of Member States very largely assimilates independent craftsmen to wage-earners and that, according to the general concept applicable in the Community, periods of contribution to the Italian craftsmen's insurance are to be considered as insurance periods within the meaning of Regulation No 3 and are capable of being aggregated with German insurance periods by virtue of Article 27.

The order of the Sozialgericht, Augsburg, containing the reference was lodged at the Court Registry on 7 August 1968.

In conformity with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the applicant in the main action, De Sicco, the Commission of the European Communities and the Government of the Italian Republic.

The Landesversicherungsanstalt Schwaben, the Italian Government and the Commission of the European Communities made oral observations at the hearing on 28 November 1968.

In the course of that hearing, the Italian Government made a statement with regard to certain documents produced by the Landesversicherungsanstalt and the Commission replied to questions put by the Judge-Rapporteur.

The Advocate-General delivered his opinion at the hearing on 10 December 1968.

II — Observations submitted to the Court

The written and oral observations submitted to the Court may be summarized as follows:

A — Admissibility

1. The Landesversicherungsanstalt Schwaben, the defendant in the main action, denies that the Sozialgericht, Augsburg, has jurisdiction to put the question which is the subject-matter of its decision to refer the matter to the Court. In the application of the principle of territoriality, which has been enshrined in particular in Articles 33 and 34 of Regulation No 4, only the Italian social security agencies are empowered to decide whether certain insurance periods completed in Italy are insurance periods within the meaning of Community regulations; as far as concerns the insurance scheme for craftsmen, the said agencies have never admitted that such is the case. The Landesversicherungsanstalt has no authority to answer this question; the Sozialgericht itself, in consequence, has no jurisdiction to order it, contrary to the wish of the Italian social security agencies, to aggregate the Italian insurance periods with the German periods. As the Sozialgericht has no jurisdiction in the matter, the question which it has put to the Court is therefore inadmissible. Moreover it is only the decision of the Italian social security agencies which adversely affects the plaintiff in the main action; he cannot therefore claim before the Sozialgericht a right to legal protection. In the absence of such a right the decision of the Sozialgericht to refer the matter to the Court has no legal foundation. In any event, in view of the tact that the question at issue concerns essentially the Italian social security agencies, the latter ought to have been made parties and in this case they have not been.

2. The Government of the Italian Republic is of the opinion that it is for the national court alone to assess the extent to which the questions of interpretation which it submits to the Court of Justice are opportune and relevant.

3. The Commission of the European Communities takes the view that the Sozialgericht, being obliged to apply a Community regulation, has jurisdiction to put to the Court a question relating to the interpretation of the Treaty or of that regulation.

B — The substance of the case

1. The applicant in the main action, De Cicco, agrees with the arguments put forward in the order of the Sozialgericht, Augsburg. He maintains, first, that as he was affiliated to social insurance in Italy for 84 months, he had thus amply completed, by the aggregation of the German and Italian contribution periods, the qualifying period required by German legislation and, secondly, that in Italy craftsmen form part of the same category as wage-earners and have the same pension rights as they have.

2. The Landesversicherungsanstalt Schwaben, the defendant in the main action, observes that the category of craftsmen appears neither in Annex 7 nor in Annex 9 to Regulation No 4 amongst the general or special schemes to which Community regulations apply. In this case it is not a matter of an error or omission; it was with full knowledge of the facts that the INPS, in agreement with the Italian Ministry of Labour and Social Security, has up to now always refused to assimilate craftsmen to wage-earners for the purposes of Regulation No. 3.

3. The Commission of the European Communities puts the problem thus: as it is a matter of invalidity benefits, the provisions applicable are essentially Articles 24 et seq. of Regulation No 3; as the person concerned has completed periods exclusively under Type B legislation, under which invalidity benefits are as a rule calculated in relation to the duration of completed periods, Article 26(1) of the Regulation makes Articles 27 et seq. applicable; in conformity with Article 27(1) the periods completed by Mr De Cicco by virtue of Italian legislation should in principle be aggregated, with a view to the acquisition of a right to benefit in Germany, with the periods completed under the German legislation; the whole problem is thus whether the Italian insurance periods are covered by Community law and more particularly whether craftsmen must be considered, for the application of the Regulation, as regards insurance periods completed by them under Italian legislation, as assimilated to wage-earners. Relying on the judgment delivered by the Court in Case 75/63 (Hoekstra, née Unger, [1964] E.C.R. 177), the Commission takes the view that the field of application ratione personae of Regulation No 3 must be determined from the point of view of Community law by reference to the principal field of application of legislation concerning essentially wage-earners within the strict meaning of the expression; this determination must be carried out according to a criterion of social security legislation and not to a criterion of labour legislation. In the present case the Commission takes the view that the Italian social security legislation in fact assimilates craftsmen to wage-earners having regard to the fact that in general it refers to legislation concerning the latter, to the application of which it simply makes a few modifications; there are not two schemes, independent one of the other, connected together simply by rules of internal coordination. The fact that the craftsmen's scheme is not mentioned in Annex 9 to Regulation No 4 which, in the application of Article 5(1)(i) of the said Regulation sets out the general and special schemes, cannot lead to the exclusion of craftsmen from the field of application ratione personae of the regulations. In fact the term ‘legislation’ also includes, within the meaning of the regulations, legislation which has come into force subsequently and which has not been the subject of notification by the State concerned; the exclusion of the craftsmen's scheme can be deduced from the fact that it does not figure in the annex to a regulation only if that exclusion was itself compatible with Article 51 of the Treaty and with Regulations Nos 3 and 4; finally, in any case, its inclusion is not necessary in view of the fact that the craftsmen's scheme may be considered as an ‘extension’ of the general scheme. The documents assembled by the Administrative Commission constitute, according to the Commission of the European Communities, interesting evidence in favour of an affirmative reply to the question put to the Court. In conclusion the Commission takes the view that: (a) It is appropriate to consider as assimilated to wage-earners' persons such as craftsmen who by virtue of the provisions of national law are protected from one or several risks within the framework of schemes organized for the benefit of wage-earners and this is the case whatever may be the legal forms or terms used by the national legislature to effect this extension; this is the case in particular even if the extension to such persons: is effected by a legislative measure or a regulation different from the one organizing the scheme for wage-earners; is accompanied by some special rules for its application which do not have the effect of creating an independent scheme peculiar to those persons. (b) The contribution periods completed, for a given branch of insurance, within the framework of a social security scheme the beneficiaries of which may be considered as wage-earners or assimilated workers are insurance periods within the meaning of Articles 1(p), 24, 27 et seq. of Regulation No 3.

4. The Government of the Italian Republic maintains, with regard to Italian national law, that insurance periods completed within the framework of craftsmen's insurance, as provided for by Law No 463 of 4 July 1959, constitute insurance periods with all the results which that implies. The Law of 1959 extended to craftsmen the general scheme of social security; the craftsmen's scheme is not ‘special’ except with regard to its administration. Any opinions which the INPS, a legal person different from the State, may have expressed on this subject are not the responsibility of the Italian State. For the Italian Government it is not now in doubt that the craftsmen's scheme is part of the general scheme. The effects of this extension of the general scheme to craftsmen include in particular as far as Community law is concerned the aggregation of insurance periods completed in Germany and in Italy The Italian Government takes the view in fact that craftsmen, in view of the fact that the social legislation of Member States of the EEC places them on a footing of equality with wage-earners, are to be considered as ‘assimilated’ to the latter for the purposes of the application of Regulation No 3. Moreover, invalidity insurance figures amongst the sectors of social security involved in Community legislation. Finally, periods completed under legislation which, like that concerning invalidity insurance for Italian craftsmen, takes them into account, must be considered as ‘insurance periods’ within the meaning of Article 1(p) of Regulation No 3.

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 periods of contribution to craftsmen's insurance (special section of the INPS) completed 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 characteristics 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 application 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 contribution 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.

These objections concern exclusively the jurisdiction of the court making the reference and the admissibility of the action which has been commenced before it.

It is not for the Court of Justice to appropriate to itself an assessment of these questions, the solution of which is a matter exclusively for national courts.

The Court of Justice is validly seised of the matter and obliged to give judgment when a national court or tribunal asks it to give a preliminary ruling on one of the questions indicated by Article 177 of the Treaty if that court or tribunal takes the view that a decision on that point is necessary to enable it to give judgment.

The objection raised by the defendant in the main action must therefore be dismissed.

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 Government 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 these circumstances, the request for the summoning of the Italian social security institution referred to by Articles 30 et seq. of Regulation No 4 is inadmissible.

C — The substance of the case

Article 51 of the Treaty provides for the adoption of such measures in the field of social security as are necessary to provide freedom of movement for workers in particular by arranging for a system making it possible to secure for migrant workers amongst others ‘the aggregation, for the purpose of acquiring… the right to benefit … of all periods taken into account under the laws of the several countries’.

In conformity with Article 27(1) of Regulation No 3, which is applicable by analogy in accordance with Article 24, including Annex F, and Article 26(1) of the same Regulation, where an insured person has been successively or alternately subject to the legislation of two or more Member States under which invalidity benefits are as a rule calculated in relation to the duration of completed periods, the insurance periods completed under the legislation of each of the Member States are to be aggregated with a view to the acquisition of the right to benefit.

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 statutaires’), 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…’.

This provision is based on a wide conception of the persons to whom it applies inasmuch as it subjects to the provisions of the regulation not only wage-earners within the strict sense of the word but in additional all those assimilated to such workers.

In this respect Article 4 follows a general tendency of the social law of Member States to extend the benefits of social security in favour of new categories of persons by reason of identical risks.

However, the exact measure of this assimilation can only be determined in terms of the national legislation to which the regulation refers.

Such an assimilation takes place on every occasion on which, as a result of the effect of national legislation, the provisions of a general scheme of social security are extended to a category of persons other than the wage-earners referred to by Regulation No 3, whatever may be the forms or methods of application employed by the national legislature.

Craftsmen must therefore be considered as assimilated to wage-earners to the extent to which, by virtue of the provisions of national legislation, they are protected against one or more risks by extension of schemes organized for the benefit of the generality of workers.

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 determining 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

The costs incurred by the Government of the Italian Republic and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Sozialgericht, Augsburg, the decision on costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; 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 Communities ; 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 European 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 Chamber) by order of 5 August 1968, hereby rules: