Benito Galati v Landesversicherungsanstalt Schwaben (33/75)

Second question

The expression in Article 45, … as though they had been completed under the legislation which it administers', must not be interpreted as limiting the duty, laid down in the same article, to take into account insurance periods completed in other Member States to the effect that this expression compels the competent institution to verify whether the insurance periods completed abroad comply with the provisions of the national legislation which it administers.The expression ‘insurance periods’ used in Article 45 (1) and defined in Article 1 (r) of Regulation (EEC) No 1408/71 means contribution periods or periods of employment as defined or recognized as insurance periods by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to insurance periods. The competent institution must, therefore, refer to the legislation under which these periods were completed. The Court reached a similar conclusion in its judgment of 6 June 1972 (Case 2/72, Murru v Caisse régionale d'assurance maladie de Paris, Rec. 1972, p. 333), although in that case it would have been better for the migrant worker concerned if the competent institution had referred to its own legislation. However, it may be asked whether the question how contributions paid after the risk materializes should be counted again falls within the sphere of problems which, under Regulation No 1408/71, must be solved by reference to the legislation of the place where the worker is employed, and whether the problem is that of defining the qualifying period within the meaning of paragraphs 1246 (3) and 1247 (3) of the Reichsversicherungsordnung and, consequently, the problem of interpreting and applying the provisions of German legislation. This would be contrary to the basic principle laid down in Article 45 (1) and that laid down in Article 51 of the EEC Treaty. In order to ensure freedom of movement for workers it is not enough to guarantee that migrant workers will receive treatment equal to that accorded to national workers, but they must be safeguarded against any adverse consequences or loss which emigration may entail. In consequence, if, pursuant to Article 1 of the Italian Decree of 31 December 1971, permission has been given to pay voluntary contributions to the invalidity and old-age insurance scheme, even for the period after the risk materialized, and if the voluntary contributions have been paid, the competent German institution must take these contributions into account without prior examination.The defendant in the main action, represented by its manager, Mr Wanders, and the Commission, represented by its Legal Adviser, Mr Koch, acting as Agent, submitted their observations at the hearing on 25 September 1975.The Advocate-General delivered his opinion at the hearing on 15 October 1975.