1 BY ORDER OF 27 JANUARY 1975, RECEIVED AT THE COURT ON THE FOLLOWING 24 MARCH, THE SOZIALGERICHT AUGSBURG REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF PROVISIONS OF COMMUNITY LAW CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS .
THESE QUESTIONS WERE RAISED IN THE CONTEXT OF PROCEEDINGS CONCERNING THE APPLICATION FOR A PART PENSION FROM THE GERMAN PENSIONS INSURANCE SCHEME ON ACCOUNT OF INCAPACITY FOR EARNING OR, ALTERNATIVELY, OCCUPATIONAL INVALIDITY WHICH WAS SENT TO THE LANDESVERSICHERUNGSANSTALT SCHWABEN BY AN ITALIAN NATIONAL, THE PLAINTIFF IN THE MAIN ACTION, WHO HAD COMPLETED 27 INSURANCE MONTHS IN THE FEDERAL REPUBLIC OF GERMANY AND HAD PAID 142 WEEKS' COMPULSORY CONTRIBUTIONS AND TWO WEEKS' VOLUNTARY CONTRIBUTIONS IN ITALY .
THE DEFENDANT IN THE MAIN ACTION REJECTED THAT APPLICATION ON THE GROUND THAT THE QUALIFYING PERIOD OF 60 CALENDAR MONTHS REQUIRED UNDER GERMAN LEGISLATION FOR THESE RISKS HAD NOT BEEN COMPLETED, EVEN IF ACCOUNT WAS TAKEN OF THE INSURANCE PERIODS COMPLETED IN ITALY .
IN PARTICULAR, THE DEFENDANT CONTENDED THAT, ALTHOUGH IN APPLICATION OF ARTICLE 45 ( 1 ) OF REGULATION ( EEC ) NO 1408/71, PERIODS COMPLETED IN THE OTHER MEMBER STATES MUST BE TAKEN INTO ACCOUNT, ONLY NATIONAL LAW CAN, IN EACH CASE, DETERMINE WHETHER THESE INSURANCE PERIODS CAN BE COUNTED TOWARDS THE QUALIFYING PERIOD FOR THE ACQUISITION OF THE RIGHT TO A PENSION .
2 THE FIRST QUESTION ASKS WHETHER, WHEN INSURANCE PERIODS WHICH ARE EXPRESSED IN WEEKS ARE CONVERTED INTO PERIODS WHICH ARE EXPRESSED IN MONTHS ( ARTICLE 15 ( 3 ) OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71, OJ L 74 OF 27 . 3 . 1972, P . 1, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ), ANY DECIMAL FRACTION WHICH MAY BE LEFT OVER IS TO BE DISREGARDED IN THE AGGREGATION OF INSURANCE PERIODS OR WHETHER IT IS TO BE TAKEN INTO ACCOUNT BY THE COMPETENT INSTITUTION AS A FULL MONTH OR ONE WHICH HAS STARTED TO RUN .
THE SECOND QUESTION ASKS WHETHER THE LAST PHRASE OF ARTICLE 45 ( 1 ) OF REGULATION ( EEC ) 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 L 149 OF 5 . 7 . 1971, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ), IS TO BE INTERPRETED AS CONSTITUTING A LEGAL FICTION IN THE SENSE THAT INSURANCE PERIODS IN ANOTHER MEMBER STATE WHICH CAN BE COUNTED TOWARDS THE QUALIFYING PERIOD MUST BE CONSIDERED, WITHOUT ANY EXAMINATION, BY THE COMPETENT INSTITUTION AS INSURANCE PERIODS COMPLETED IN ITS OWN STATE WHICH CAN BE COUNTED AS AFORESAID, OR WHETHER IT IS PERMISSIBLE TO EXAMINE THE INSURANCE PERIODS COMPLETED IN THE OTHER MEMBER STATE IN THE LIGHT OF THE LEGISLATION WHICH THE INSTITUTION ADMINISTERS .
IF, AS THE SOZIALGERICHT AUGSBURG HOLDS, AN INSURANCE PERIOD OF LESS THAN ONE MONTH COMPLETED IN THE FEDERAL REPUBLIC OF GERMANY MUST, UNDER GERMAN LEGISLATION, BE TREATED AS A WHOLE MONTH, AN INSURANCE PERIOD COMPLETED IN ACCORDANCE WITH THE LEGISLATION OF ANOTHER MEMBER STATE AND WHICH, ON CONVERSION INTO MONTHS FOR THE PURPOSE OF AGGREGATION, PRODUCES A DECIMAL FRACTION, MUST ALSO BE ROUNDED UP TO THE NEXT HIGHEST FIGURE IN MONTHS, IN ORDER TO ENSURE THAT EMPLOYED WORKERS DO NOT, BECAUSE OF EMIGRATION, LOSE THE RIGHTS WHICH THEY HAVE ACQUIRED IN THEIR COUNTRY OF ORIGIN .
4 IN VIEW OF THE ANSWER GIVEN TO THE FIRST QUESTION, THE SECOND QUESTION HAS NO PURPOSE .
5 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH SUBMITTED ITS OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND, AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE SOZIALGERICHT AUGSBURG BY ORDER OF THAT COURT DATED 27 JANUARY 1975, HEREBY RULES :
IF AN INSURANCE PERIOD OF LESS THAN ONE MONTH COMPLETED IN THE FEDERAL REPUBLIC OF GERMANY MUST, UNDER GERMAN LEGISLATION, BE TREATED AS A WHOLE MONTH, AN INSURANCE PERIOD COMPLETED IN ACCORDANCE WITH THE LEGISLATION OF ANOTHER MEMBER STATE AND WHICH, ON CONVERSION INTO MONTHS FOR THE PURPOSE OF AGGREGATION, PRODUCES A DECIMAL FRACTION, MUST ALSO BE ROUNDED UP TO THE NEXT HIGHEST FIGURE IN MONTHS, IN ORDER TO ENSURE THAT EMPLOYED WORKERS DO NOT, BECAUSE OF EMIGRATION, LOSE THE RIGHTS WHICH THEY HAVE ACQUIRED IN THEIR COUNTRY OF ORIGIN .
