5.

In the present case, this interpretation may at first sight appear of necessity to produce an effect which is inconsistent with the requirements of equity. The unfortunate worker who, is, let us assume, entitled to a pension, would not be able to defend his right in the courts owing to an insistence on formality which, in view of the way developments have occurred in this case, seems manifestly in conflict with the spirit of the Community's social legislation. It should not be forgotten that the workers concerned, resident in a village in a remote province of Sicily, received notification of the decision rejecting his application in a language other than his own, and that he could take cognizance of the nature of the decision, thanks to the translation provided for him by the Italian insurance organization, only after more than a month had elapsed since he had received the document. If the interpretation which I propose is placed upon Article 56 (2), this rule would have the effect of substantially simplifying the customary notification procedures by overcoming national barriers in the relationships between insurance bodies and the insured and, in this way, meeting the practical need for expedition and close contact. This anti-formalistic attitude should, however, involve also the adoption of a sounder basis for ensuring respect for workers' interests. If one adopts the principle that notice of a decision of a public body in another country is validly given to an addressee who resides in another State of the Community as soon as the addressee becomes aware of it, even if only through the post, it would be consonant with a system which paid greater attention to substance than to form to hold that the limitation period could begin to run only when the worker had really been in a position to know the contents of the notification received. The introduction, thanks to Community law, of the right of direct contact between insurance organizations and foreign workers in receipt of benefit residing in another state, and the effect it has of overruling the formalities provided for under national legislation for notification abroad of the acts of public institutions, takes for granted that notice given outside these customary channels must ensure effective contact between the insurance organization and the insured. This requirement cannot be satisfied by transmission of a document in a form which does not enable the addressee to have immediate cognizance of it. In the case of an instrument expressed in a language other than that of the country where the addressee resides, and which he is not expected to understand, mere physical receipt of the instrument by the person affected by the decision therein contained cannot therefore be regarded as sufficient in itself to activate the time-limit which national law lays down for notification made under Article 56 (2) of Regulation No 4. In other words, such direct notification will be validly made under that Article only when the addressee is placed in a position to become directly aware of the contents of the instrument. If this were not so, there would be little justification for depriving the worker of the right, which would be of assistance to him in the present case, to plead the formalities required under the relevant national law covering notification. The effect of such an interpretation is in perfect consonance with the spirit of Community social legislation, aimed at helping workers to overcome the various kinds of difficulty which are inherent in migration and can arise not only from the existence of different insurance schemes in the various States of the Community but also, among other things, from language differences. Proof of this is furnished both by the provision made by Article 48 (1) of Regulation No 574/72 which, on the subject of invalidity, old age and death benefits, provides that decisions shall be notified to the person concerned in his own language, and, in more general terms, by the provision in Article 45 (4) of Regulation No 3 conferring on migrant workers the right to communicate in their own language with the institutions and authorities of another Member State, provided that it is the official language of a Member State. That provision has a substantial effect on ordinary national procedures in the judicial as well as in the administrative field, and this follows the precedents established by this Court (Judgment in Guerra vedova Pace, Case 6/67 Rec. 1967, p. 284; Judgment in Merola, Case45/72 Rec. 1972, p. 1255) establishing uniform rules throughout the Community for the benefit of workers who are entitled under Community legislation on social security. Moreover, the provision takes away any right which the national authorities may have had under their own internal law not to accept ‘claims and other documents’ written in an official language of another Member State. While in itself not necessarily imposing the contrary principle in favour of the worker in his relationships with a foreign insurance organization, a provision in these terms, which was incorporated in its entirety in Article 84 of Regulation No 1408/71 of the Council, which replaced Regulation No 3, is nevertheless indicative of the general desire of Community draftsmen to resolve in favour of the worker the language problems which arise during the application of Community social legislation. It would accord with this desire on the part of the legislators to recognize that, when a document written in the language of one State is addressed to a worker resident in another and this document is liable to set in motion the period within which he must do something necessary to safeguard his rights, he should be able to regard notice as having been validly given, within the meaning of Article 56 (2) of Regulation No 4 only from the time when he is actually placed in a position to be aware of its contents. This would also accord with the need, which Community social legislation is designed to meet, to overcome obstacles in the way of full achievement of the free movement of workers in the Community, especially obstacles arising from inequality of treatment which, even if only de facto, places the foreign worker at a disadvantage compared with a national of the country concerned. The foreign worker would thus be fully guaranteed the protection of his rights by the courts on terms of real equality with the nationals of the state concerned and without being in danger of losing his rights by reason of formalities connected with a position of inferiority.