JUDGMENT OF 5. 12. 1967 — CASE 14/67 LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ v WELCHNER

In Case 14/67 Reference to the Court under Article 177 ot the EEC Treaty by the IVth Senate of the Bundessozialgericht (Federal Social Security Court) for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Issues of fact and of law

I — Origins of the case

II — Procedure

Ill — Summary of the written observations submitted under Article 20 of the Statute of the Court of Justice of the EEC

1. Observations of the Government of the Federal Republic of Germany

2. Observations of the Commission of the European Economic Communities

Grounds of judgment

I —. Origins of the case

(1). For a period of sixty-one months between 1942 and May 1947, the plaintiff, the respondent before the Bundessozialgericht (hereinafter referred to as the plaintiff) was at first in the German army and then a prisoner of war in France.

(2). On 1 March 1967 the IVth Senate of the Bundessozialgericht decided to request the Court to give a preliminary ruling on the following question:

II —. Procedure

Ill —. Summary of the written observations submitted under Article 20 of the Statute of the Court of Justice of the EEC

1. Observations of the Government of the Federal Republic of Germany

A —. The question put to the Court should be understood as follows: when deciding whether under German law substitute periods must be taken into consideration, is an occupation which, under the legislation of another Member State, falls within the scope of compulsory pensions insurance equivalent to an occupation subject to such insurance under German legislation?

B —. As the Federal Government shows, the provisions of German domestic law do not allow a ruling to be given in favour of the plaintiff in cases such as the present.

C —. Even under Community law, the question set out at A above must be answered in the negative for the following reasons:

2. Observations of the Commission of the European Economic Communities

A —. One must begin by considering what interpretation must be given to Article 28 of Regulation No 3.

B —. It is clear from these reasons that the interpretation of Annex G to the regulation only plays a subordinate role:

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the German Government and of the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Article 51; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, particularly Article 20; Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), especially Articles 1 (r), 27 and 28 together with Annex G (I); Having regard to Regulation No 130/63/EEC of the Council amending certain annexes to Regulation No 3 and Regulation No 4 (Official Journal of 28 December 1963, pp. 2996/63 et seq.), especially Article 6; 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 IVth Senate of the Bundessozialgericht, by an order of that court of 1 March 1967, hereby rules:

I Article 28 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers, together with Annex G thereto, does not require the institutions of the Federal Republic of Germany to take into account a period completed under the legislation of another Member State in determining whether substitute periods within the meaning of German legislation must be taken into account;

2 The decision on costs in the present proceedings is a matter for the IVth Senate of the Bundessozialgericht.