2.

If you accept that, in principle, Regulation No 3 is applicable to the benefits in question, it is then necessary to consider which provision of this regulation would require the aggregation of the insurance periods. However, it is first necessary to consider whether the question concerns a true ‘aggregation’ within the meaning given to this word in relation to retirement or invalidity pensions, since these benefits are not awarded ‘pro rata temporis’ their amount is independent of the period of affiliation and, furthermore, apart from certain cash allowances, they cover the cost of medical and hospital treatment. If this question arises, it is merely because the acquisition of the right is subject to a minimum period of payment of contributions; it is not for the purpose of calculating the benefits. The very nature of these benefits raises the question whether the basis of the aggregation rule is to be found in Article 16 et seq. of Regulation No 3 (Chapter 1 of Head III) relating to sickness benefits or in the provisions of Chapter 2 — Article 24 et seq. —concerning invalidity benefits. Although the court referring the matter only posed the question in relation to Articles 26 and 27, thus apparently supporting the application of the provisions governing invalidity benefits, I do not beleive that you are bound by this point of view. On the contrary, it is for you to indicate clearly the ground on which, according to a correct interpretation of the Community law, the national court must base its action. In this connexion let me say, first of all, that in my opinion there is no doubt as to the application of the principle of the aggregation of the insurance periods, whichever provisions of the regulation, between which you will be required to choose, are held to be applicable. This principle in fact derives directly from Article 51 of the Treaty, by which it was introduced as one of the means of guaranteeing the free movement of workers. Even if you should consider it impossible to find in Regulation No 3 a rule which is technically adapted to the payment of the benefits which the German law provides in favour of persons suffering from tuberculosis, it would nevertheless be necessary to consider whether aggregation is applicable de jure. You did not hesitate to adopt comparable reasoning in your judgment of 27 October 1971 in Case 23/71, Michel Janssen v Alliance Nationale des Mutualités Chré-tiennes ([1971] ECR 859), which allows agricultural ‘helpers’ recognized under Belgian law the opportunity of taking advantage of periods completed as a wage-earner under the legislation of another Member State, in order to claim certain sickness and invalidity insurance benefits payable to self-employed workers. You clearly based this solution on the ground that ‘the object of Articles 48 to 51 would not be achieved but would be missed if the insurance period completed by a worker in accordance with the legislation of one Member State were, as far as he was concerned, lost, if, in taking advantage of the freedom of movement secured for him, he changes his place of work and thus becomes subject to the social security system of another Member State’. However, you must decide as to the nature of the benefits in question and guide the Bundessozialgericht in the problem of which scheme of aggregation to apply, that concerning sickness benefits or that concerning invalidity benefits. This is important because, to a certain extent, the solutions to the main actions which will derive therefrom depend on this choice. For my own part, I consider that the benefits paid under Article 1244a of the RVO must be placed in the category of sickness benefits, as has already been accepted at first instance by two of the social courts. There are numerous arguments to support this conclusion: — First, these advantages are clearly not invalidity pensions, within the proper meaning of the term. They are not pensions intended to compensate for an incapacity for work. We have seen that the benefits are paid independently of any reduction in earning capacity and of any desire to re-establish or improve this capacity. Although doubts might exist on this point in relation to the award of maintenance, no-one would claim that the payment of the costs of medical or hospital treatment is the same as the award of an invalidity pension. The former constitute benefits in kind, forming part of the scheme applying to the risk of sickness. — Secondly, it is noticeable that in most of the Member States the protection of persons insured with State insurance schemes against the risk of tuberculosis follows the rules affecting sickness benefits, except for the fact that, as is the case in France, the protection is more complete and, if necessary, extends over a longer period. This shows the importance which is attached to the fight against this particularly serious and contagious infection. Although a special scheme for insurance against tuberculosis exists in Italy, run by the INPS (Italian State Insurance Office), it follows the general rules on sickness insurance. The aggregation of insurance periods is carried out by the Italian authorities in relation to Community workers on the basis of Articles 16 and 17 of Regulation No 3. — Thirdly, as the Commission points out, since 1969 the German authorities have themselves referred to an increase in the expenses incurred by the hospital treatment of cases of tuberculosis among migrant workers or the members of their families in order to justify the increase in the average costs of the benefits in kind payable by way of sickness insurance. Finally, it must be remembered that before the Treaty of Rome was drafted and, therefore, before the entry into force of Regulation No 3, a social security convention existed between the Italian Republic and the Federal Republic of Germany, which was signed in Rome on 5 May 1953. Article 7 of this convention guarantees the citizens of each State who are in the territory of the other a right to the social security benefits payable in the host country, and treats tuberculosis benefits as in the same class as those payable under the general sickness insurance scheme. On the basis of this provision in the convention, the Bundessozialgericht held, in a judgment given on 26 October 1967, that the benefits referred to in Article 1244a relate to insurance against illness and accepted that it was necessary to take into account periods of insurance against tuberculosis completed in Italy, for the purposes of acquiring in Germany a right to the benefits paid in this sphere. The convention is one of those referred to in Article 6(2)(e) of Regulation No 3 which provides that such other ‘provisions of social security Conventions as are listed in Annex D to this Regulation’ shall remain applicable. The original text of this annex contained Article 7 of the Germano-Italian Convention of 5 May 1953. The fact that this article has not appeared therein since the adoption of Regulation 130/63 of the Council cannot be interpreted as having deprived the migrant workers of these two countries of the benefit of this provision. It simply duplicated the provisions of Regulation No 3, even if it was not considered less favourable than them. For all these reasons I consider that the court referring the matter must base itself on Article 16 in order to accept the aggregation of the insurance periods. As you are aware, Article 16 provides that ‘For the acquisition, maintenance or recovery of the right to benefit, where a wage-earner or assimilated worker has been successively or alternately subject to the legislation of two or more Member States, the insurance periods and assimilated periods completed under the legislation of each of the Member States shall be aggregated in so far as they do not overlap’. It would therefore be sufficient for the workers involved in the main actions to show that they have completed the minimum insurance periods required by the regulation on social insurance by aggregating the insurance periods completed in both the Federal Republic of Germany and another Member State, so as to acquire a right to the benefits provided for in Article 1244a of that regulation, or, as a result, so that the pension insurance organizations to which they are affiliated are obliged to bear the burden of these benefits. However, the second subparagraph of Article 17(1) of Regulation No 3 restricts the aggregation principle by requiring that a period of not more than one month shall have elapsed between the end of the insurance period completed in the State in whose territory the worker was last employed and the start of the insurance period in the Member State to whose territory he proceeds. This fact appears to give rise to a difficulty in Case 14/72. If a break in the insurance period of more than one month were established — which appears to be the case as regards Mr Heinze (who terminated his employment in Luxembourg in 1960 and does not appear to have taken up further employment in Germany subject to compulsory insurance) — then, in such a case, it would not be possible to aggregate the insurance periods, at least on the basis of Regulation No 3. Although the Bundessozialgericht has not referred this problem to you and you are therefore not required to consider it, I think it is useful to point out, as the Commission has done in its written observations, that as regards sickness benefits Article 18 of Regulation No 1408/71, which repeals and replaces Regulation No 3, attaches no limitation to a break in insurance, except as regards seasonal workers. This new regulation came into force on 1 October 1972. It is true that in Article 94 it provides that no right shall be acquired under that regulation for a period prior to the date of its entry into force. In other words, it has no retroactive effect; it does not allow the reconsideration of questions which were finally settled from an administrative or legal point of view before that date. However, Article 94(3) provides that, subject to the provisions of paragraph 1, a right shall be acquired though relating to a contingency (that is, a risk) which materialized earlier. I consider, therefore, that, if this provision is to be effective, it must be understood to apply to rights acquired as a result of risks which materialized before the entry into force of the regulation, but on which no final decision has yet been taken. I thought it useful to point out this difficulty in passing.