Opinion of Mr advocate-general Dand

Mr President, Members of the Court,

Mr De Cicco, an Italian national, worked as a wage-earner in Germany from 1941 to 1945, for a period of 42 months, during which he contributed to invalidity insurance. From 1959 to 1965, for 84 months, he worked in Italy as a craftsman and paid contributions to the Italian social security fund (Istituto Nazionale della Previdenza Sociale, or INPS) under the special scheme for craftsmen. Thus he had what is called a mixed career, both as a wage-earner and as a self-employed person.

In April 1965 he was declared unable to carry out his occupation (berufsunfähig) and in December 1967 incapable of work (erwerbsunfähig), in both cases within the meaning of the German pension legislation. On 9 April 1965 an application for a German invalidity pension was sent to the Landesversicherungsanstalt Schwaben (Swabian Regional Insurance Institution), the appropriate agency, through the intermediary of the provincial office of the INPS at Chieti which pointed out that Mr De Cicco had only been insured in Italy as a craftsman. Under Articles 1246 and 1247 of the Reichsversicherungsordnung (German Social security regulations) Mr De Cicco had a right to the pension applied for only if, in order to complete the requisite qualifying period of 60 months, in addition to the contributions paid to the German social security fund for wage-earners (42 months) the contributions made to the Italian craftsmen's insurance (84 months) could also be taken into account; that is, only if there was an aggregation of the corresponding periods within the meaning of Article 27(1) of Regulation No 3 concerning social security for migrant workers.

Holding that the insurance periods completed in Italy were not covered by Article 1 (p) of this regulation, which defines what is meant by insurance periods, the German agency rejected Mr De Cicco's application for a pension on 7 September 1965. He appealed to the Sozialgericht (Social Court), Augsburg, against this decision.

By a judgment of 5 August 1968 that court has referred the case to you in exercise of its right under the second paragraph of Article 177 of the Treaty. Not that it has any doubts on the answer to be given: its judgment, containing a lengthy and detailed statement of grounds, sets out all the reasons leading it to believe that an order should be made for aggregation. However, there exists a contrary decision from the higher court, the Bavarian Landessozialgericht (Higher Social Court), which the Sozialgericht considers wrong. Your ruling on the matter will settle the point of law at issue between the two courts, but also has a wider interest than the merits of the particular case, as will be seen from the observations submitted by the Italian Government, the Commission and the Landesversicherungsanstalt.

I

The question referred to you for a preliminary ruling is in the following terms: Are periods of contribution to craftsmen's insurance (special section of the Italian National Social Security Institution for craftsmen) insurance periods within the meaning of Articles 1(p), 24 and 27 of Regulation No 3?

1. In the oral procedure the Landesversicherungsanstalt Schwaben maintained that the German court could not put such a question to you because the answer was not necessary to enable it to give judgment, which is the condition required by the second paragraph of Article 177 for making a reference to this Court. Its reasoning is as follows: the subject-matter of the appeal to the Court is indeed the refusal of the German social security institution to take into consideration the periods completed in Italy, but this refusal rests solely on the negative position adopted by the Italian social security agency. It is only this latter body which can say whether such periods are to be taken into consideration, and its decision — against which the appellant could only appeal before the Italian court — binds both the German administration and the German court. The Sozialgericht could not dispute the decision of the competent Italian agency, especially when this agency was not a party to the case before it and could not therefore ask you to interpret the text on which this decision was based. The Landesversicherungsanstalt added that even if a reference were possible then at the very least the INPS would have to be summoned to submit its observations to you in the proceedings consequent on the reference.

2. The Commission states — with reason, I think — that the question may be reduced to deciding whether craftsmen are to be considered, for the application of the Regulations, as assimilated to wage-earners in respect of periods completed by them under Italian legislation. If the answer is in the affirmative, then Mr De Cicco's contribution periods are insurance periods within the meaning of Article 1(p), that is, periods to which the Regulations may apply.

There thus remains the case of Italy which has given rise to the question put by the German court: what is the social security scheme for craftsmen in that country?

Compulsory sickness insurance for craftsmen was introduced by Law No 1533 of 29 December 1956. Then came Law No 463 of 4 July 1959 which provides for the extension of compulsory invalidity, old-age and death insurance to craftsmen and members of their families, and which extends insurance against these risks to all the craftsmen covered by the 1956 law. Article 1(2) provides that, in the absence of a contrary provision, this insurance is governed by the provisions of the Royal Decree-Law No 1827 of 4 October 1935 establishing compulsory invalidity insurance for wage-earners. A special scheme with financial independence was created for this purpose within the insurance agency, the INPS (Article 3). The periods completed as craftsmen may be aggregated with those completed by virtue of any activity as a wage-earner (Article 9). One pension only is paid, which, in certain cases, consists of several components corresponding to the periods completed. The system works as follows: if the right to a pension is acquired on the basis of contribution periods completed solely as a wage-earner, then the pension is calculated solely on the basis of these periods, but a supplement is added, calculated on the basis of periods as a craftsman provided that the conditions for an award laid down in the law relating to craftsmen have been fulfilled. This latter statute thus plays, as the Commission says, a supplementary role.

This legislation, then, is based generally on the legislation applicable to wage-earners, the application of which it merely modifies in some respects. In view of this, I consider that craftsmen may be regarded as assimilated workers under Italian legislation. Consequently, as the Italian Government states, periods of insurance completed in Italy under the insurance scheme for craftsmen as laid down in the Law of 4 July 1959 Constitute periods of insurance with all the consequences which that entails, in particular the possibility of aggregating them with periods completed in Germany for the payment of an invalidity pension.

The oral observations made by the advocate for the Landesversicherungsanstalt Schwaben and certain documents submitted by him appeared to show that this opinion was not shared by the INPS. This divergence of view is regrettable and one may hope that in future the practice of the agency administering the insurance scheme might conform with the theory sustained before the Court by the sole authorized representatives of the Italian Republic. But that is a domestic affair. It has in any case no influence on the conclusions which may be drawn from an examination of the 1959 Law in relation to Regulation No 3.

II

However, it is necessary at this stage to reply to a number of objections, which the Sozialgericht has pertinently refuted.

1. Craftsmen are not mentioned in Annex 9 to Regulation No 4, established by virtue of Article 5(1)(i), which lists the general and special schemes for each Member State. Nevertheless, this circumstance per se does not exclude the scheme for craftsmen from the sphere of application of Regulations Nos 3 and 4; at least this is what seems to me to result from a judgment which you delivered in a fairly similar case.

2. By virtue of Article 2(2) of Regulation No 4, the Administrative Commission may assemble for the use of the competent authorities of each Member State all information on the provisions of national legislation to which Regulation No 3 applies, in particular that concerning insurance periods as defined in Article 1(p) of that Regulation.

3. Finally, it may be added that the Italian Government considers that the insurance periods in question should in any case be aggregated by virtue of Article 13(2) of Regulation No 4, which states: The insurance periods or assimilated periods completed by wage-earners or assimilated workers under social security schemes of a Member State to which the regulation does not apply, but which are reckoned under a scheme to which the regulation does apply, shall be considered as insurance periods or assimilated periods to be taken into account for the purposes of aggregation.

We must now answer the question referred to us for a preliminary ruling.

As we have seen, it concerns expressly and directly the method of dealing with periods of contribution to the Italian insurance scheme for craftsmen.

For the reasons which I have indicated, it seems to me that it is necessary, first, to settle the question whether those concerned are assimilated to wage-earners; moreover, in spite of the examination of the Italian legislation which we have been forced to make, the Court must take care not to give a reply referring expressly and exclusively to that legislation.

We are thus led to a formula which more or less repeats and develops that which Mr Advocate-General Lagrange proposed in the case of Hoekslra, nee Unger and which might be as follows:

It is for the Sozialgericht, Augsburg, to decide as to the costs of this action.

1 Translated from the French.