JUDGMENT OF 20. 11. 1975 — CASE 49/75 BORELLA v LANDESVERSICHERUNGSANSTALT SCHWABEN

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

THE COURT composed of: R. Lecourt, President, R. Monaco and H. Kutscher, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Sørensen, A. J. Mackenzie Stuart, and A. O'Keeffe, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and procedure

II — Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice

Law

Costs

I —. Facts and procedure

II —. Observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice

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.

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.

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.

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: