PROVISION, BENEFITS WHICH ARE NOT RELATED TO THE " EARNING CAPACITY " OF THE INSURED PERSON CANNOT BE REGARDED AS INVALIDITY BENEFITS WITHIN THE MEANING OF ARTICLE ( 2 ) ( 1 ) ( B ) OF REGULATION NO 3 . ON THE OTHER HAND, WHERE SUCH BENEFITS ARE ALSO AWARDED TO THE MEMBERS OF THE FAMILY OF THE INSURED PERSON AND WHERE THEIR ESSENTIAL AIM IS TO CURE THE INVALID AND PROTECT THOSE WHO ARE IN CONTACT WITH HIM THEY MUST BE REGARDED AS SICKNESS BENEFITS WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( A ) OF REGULATION NO 3 .
9 THEREFORE, THE AGGREGATION OF THE AFFILIATION PERIODS COMPLETED IN THE VARIOUS MEMBER STATES, FOR THE PURPOSES OF ACQUIRING A RIGHT TO SUCH BENEFITS, IS GOVERNED BY ARTICLE 16 ET SEQ . OF REGULATION NO 3 .
10 SECONDLY, THE QUESTION IS ALSO ASKED WHETHER, IN ORDER TO ACQUIRE A RIGHT TO THE BENEFITS IN QUESTION, AN INSURANCE ORGANIZATION IN ONE OF THE MEMBER STATES - THE FEDERAL REPUBLIC OF GERMANY - MUST ALSO TAKE INTO ACCOUNT THOSE PERIODS OF CONTRIBUTION WHICH AN INSURANCE ORGANIZATION IN ANOTHER MEMBER STATE, ITALY, IS BOUND TO CONSIDER UNDER A CONVENTION ON SOCIAL SECURITY CONCLUDED BETWEEN ITALY AND A THIRD COUNTRY, SWITZERLAND .
11 FOR THE PURPOSE OF IMPLEMENTING THE PRINCIPLE OF THE FREE MOVEMENT OF WORKERS, ARTICLE 51 ( A ) OF THE TREATY EMPOWERS THE COUNCIL TO MAKE ARRANGEMENTS TO SECURE FOR WORKERS THE AGGREGATION OF " ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES ". ARTICLE 16 OF REGULATION NO 3, WHICH LAYS DOWN THE RULES RELATING TO AGGREGATION, ONLY REFERS TO THE INSURANCE PERIODS AND ASSIMILATED PERIODS " COMPLETED UNDER THE LEGISLATION OF EACH OF THE MEMBER STATES ". ARTICLE 1 ( B ) OF THAT REGULATION STATES THAT " THE TERM " LEGISLATION " SHALL MEAN ALL LAWS, REGULATIONS AND OTHER ENFORCEABLE PROVISIONS ( DISPOSITIONS STATUTAIRES ) PRESENT AND FUTURE OF EACH MEMBER STATE RELATING TO THE SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY ".
12 THEREFORE, FOR THE PURPOSES OF ACQUIRING A RIGHT TO SOCIAL SECURITY BENEFITS, SOCIAL SECURITY ORGANIZATIONS IN THE MEMBER STATES ARE NOT BOUND TO TAKE INTO ACCOUNT AFFILIATION PERIODS COMPLETED IN THIRD COUNTRIES .
Decision on costs
13 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Operative part
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESSOZIALGERICHT, BY A DECISION OF THAT COURT DATED 1 MARCH 1972, HEREBY RULES :
1 . A PROVISION WHICH ESTABLISHES A DIRECT LINK BETWEEN AFFILIATION TO A PENSION INSURANCE SCHEME AND THE ACQUISITION