CELEX: 61974CC0040
Language: en
Date: 1974-11-12 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 12 November 1974. # Kingdom of Belgium, Henri Costers and Marie Vounckx v Berufsgenossenschaft der Feinmechanik und Elektrotechnik. # Reference for a preliminary ruling: Bundessozialgericht - Germany. # Case 40-74.

OPINION OF MR ADVOCATE-GENERAL REISCHL
      DELIVERED ON 12 NOVEMBER 1974 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      Regulation No 3 concerning social security for migrant workers contains inter alia provisions having the purpose of reducing the legal and administrative difficulties which may arise on applying this regulation in the inter-State context.
      Thus, pursuant to Article 47 thereof, ‘any claim, declaration or appeal which should have been submitted, in order to comply with the legislation of one Member State, within a specified period to an authority, institution or other agency of that State shall be admissible if it is submitted within the same period to an authority, institution or other corresponding agency of another Member State’. The regulation goes on to read ‘In such case the authority, institution or agency receiving the claim, declaration or appeal shall forward it without delay to the competent authority, institution or agency of the former State, either directly or through the competent authorities of the Member States concerned’.
      On this point Article 83 of Regulation No 4 further provides that the date of submission of claims, declarations or appeals to an authority, institution or agency of another Member State shall be deemed to be the date of submission thereof to the competent authority, institution or agency.
      This provision is also relevant to the proceedings currently pending before the Bundessozialgericht, proceedings that have resulted in the reference No 40/74. For a better understanding of this case I should like to start with the following preliminary remarks.
      In 1943 Mr René Costers, a Belgian worker compulsorily recruited for work in Germany, lost his life as a result of a bombing raid on the factory in which he was then employed. The German insurance institutions recognize this as an accident at work. Pursuant to paragraph 593 (old version) of the Reichsversicherungsordnung a pension shall be granted to the parents of a worker who lost his life as a result of an accident at work for as long as they are in need, provided the person who lost his life had, prior to the accident, substantially contributed towards their maintenance out of his earnings. Relying on this provision and the Third Supplementary Agreement to the General convention on Social Security of 7 December 1957 concluded between the Federal Republic of Germany and the Kingdom of Belgium, the parents of Mr Costers are laying claim to the grant of such a parents' pension. This was, by decision of 22 January 1968, rejected by the competent German institution, the Berufsgenossenschaft der Feinmechanik und Elektrotechnik in Cologne.
      An appeal against this decision was made to the Sozialgericht of Cologne by the Kingdom of Belgium, represented by its Minister for National Health and the Family, (the first-named plaintiff), as well as by Mr Costers and Marie Vounckx, his wife, the parents of Mr René Costers (the second and third-named plaintiffs). By judgment of 5 June 1972 the Sozialgericht of Cologne rejected the appeal as unfounded since it lacked proof that the son of the second and third-named plaintiffs had prior to his death substantially contributed to his parents' maintenance. The judgment contains instructions as to an appeal, stating that the appeal must be lodged with the Landessozialgericht of North Rhine-Westphalia within one month after service of the judgment, either in writing of by having the same recorded by the authorized official of the court office, and that the time-limit for the appeal is also observed if the notice of appeal is within that period given verbally to the authorized official of the court office of the Sozialgericht in Cologne. An official copy of the judgment was on 1 August 1972 served upon the plaintiffs' agents, a firm of Rechtsanwalte having their offices in Cologne, by registered post, with acknowledgement of receipt.
      The first-named plaintiff desired to exercise his right of appeal. For that purpose he lodged on 30 August 1972 with the Ministry of Social Security in Brussels — this being the Belgian liaison department within the meaning of Article 3 and Annex 4 of Regulation No 4 — an appeal addressed to the Landessozialgericht for North Rhine-Westphalia in Essen. It was received by that Ministry on 31 August 1972. By letter of 1 September 1972 the said Ministry transmitted the notice of appeal to the Bergbauberufsgenossenschaft in Bochum, this being the German liaison department within the meaning of the provisions referred to. Thence it was passed on to the Landessozialgericht of North Rhine-Westphalia, where it was received on 7 September 1972.
      By judgment of 21 November 1972 the Landessozialgericht rejected the appeal as inadmissible on the grounds that the time limit for an appeal (one month after service of the judgment at first instance) had not been observed. In its statement of reasons it recognized that, pursuant to Article 49 of the General Convention on Social Security between the Federal Republic of Germany and the Kingdom of Belgium already mentioned, appeals which, pursuant to the legal provisions of one contracting State, are to be submitted within a specified period to the competent authority, institution, court or other agency of the State which is competent to carry into effect the legal provisions mentioned in Article 2, shall be deemed to be submitted in time if within the same period they are submitted to an authority, institution, court or similar agency of the other State. Since however the Belgian liaison department cannot be considered a court, and it is not therefore a similar agency within the meaning of the said Article 49, the receipt by it of the notice of appeal cannot be treated as sufficient. Confirmation of this point of view can moreover be found in Article 47 of Regulation No 3, that is the provision to which I have referred at the outset.
      The tree plaintiffs, upon being granted leave by the Landessozialgericht to appeal on a point of law, brought such an appeal before the Bundessozialgericht. They take the view that since the parties to the General Convention on Social Security had set up liaison departments, service of a notice of appeal upon such a liaison department is sufficient. On a correct understanding of the matter, even in the case of lodging appeals, it is not just courts that must be regarded as similar agencies.
      On this point the Bundessozialgericht takes the view that at the time when notice of appeal was given, Article 49 of the General Convention on Social Security was no longer applicable since — a matter that under Articles 5 and 6 of Regulation No 3 is crucial — it is not listed in Annex D to that Regulation. Rather is it Article 47 of Regulation No 3 which is crucial. Since however the Court considered the interpretation of Article 47 of Regulation No 4 to be subject to doubt it decided by order of 15 May 1974 to stay the proceedings and to refer the following preliminary question to the Court under Article 177 of the EEC Treaty:
      ‘Is Article 47 of Regulation No 3 of the Council of the European Economic Community concerning social security for migrant workers (“EEC Regulation No 3”) to be interpreted as meaning that “a corresponding agency of another Member State” can include a liaison department (vide Article 3 and Annex 4 of Regulation No 4 on implementing procedures and supplementary provisions in respect of Regulation No 3) of this “other Member State” (in this case the Ministry of Social Security, Brussels), so that “in order to comply with the legislation of one Member State”, an appeal may, for the purpose of observing the time limit for appeal (in this case an appeal under paragraphs 143 and 151 of the Sozialgerichtsgesetz), be submitted to such a department?’
      In relation to this question, on which only the defendant in the national proceedings and the Commission of the European Communities expressed an opinion, I would comment as follows:
      
               1. 
            
            
               In the first place it must be placed on record that since the coming into force of Regulation No 3, i.e. since 1 January 1959, Article 49 of the General Belgo-German Convention on Social Security is no longer applicable. That this is so is shown by Articles 5 and 6 of Regulation No 3, as well as by Annex D thereto. For pursuant to Article 5 thereof, the Regulation, in so far as nothing to the contrary is expressly stated therein, replaces, as regards the persons to whom it applies, conventions in the field of social security law which were concluded between two or more Member States. Pursuant to Article 6 (2) there admittedly remain applicable ‘such other provisions of social security Conventions as are listed in Annex D.’ Article 49 of the General Convention, which can be found in Article 1 of Supplementary Agreement No 3 to the General Convention, has no significance notwithstanding this supplementary agreement being referred to in Annex D. In this respect it is significant that No 1 of the General Observations to Annex D specifically states: ‘In so far as the provisions of supplementary agreements mentioned in this Annex make reference to the provisions of the General Convention in question, such references are replaced by references to the corresponding provisions of the Regulation’.
               The Bundessozialgericht therefore rightly assumed that nothing turns on the interpretation of Article 49 of the General Convention and that consequently it is also not important whether (as was argued by the Commission) this provision on a literal interpretation appears to permit the conclusion that it is irrelevant whether the body which is appealed to in the State where the appeal originates, corresponds as regards its legal nature and its functions to the competent body in the addressee State. The sole decisive element for the national proceedings is the inference to be drawn in this context from Article 47 of Regulation No 3.
            
         
               2. 
            
            
               I have at the outset quoted this provision verbatim. I should now like to deal with it.
               Along with other provisions of Title IV of Regulation No 3, e.g. such as those dealing with mutual administrative assistance on the part of the Member States' authorities and institutions, the use of the official language of one Member State in applications and documents filed with the institutions or authorities of another Member State (Article 45) or the exemption from, or reduction of, taxes and stamp duties or from the need for authentication (Article 46), Article 47 which is of interest in the present case, clearly has the purpose of creating simplifications, in particular procedural simplifications, for persons who pursuant to Regulation No 3 have to deal with authorities, institutions or agencies of a Member State in which they do not reside. It is a fact that there would be insufficient protection of migrant workers and of their rights if they — or more generally the persons covered by Regulation No 3 — were in the inter-State field simply to be confronted with the difficulties, resulting from the varied structuring of social security insurance with its different branches and its different rules of competence, that apply to the courts or similar authorities holding functions of control. From this one also feels entitled to deduce the general conclusion it is also expressed in the recommendation of the Administrative Commission of the European Economic Community on the social security of migrant workers of 2 July 1959, referred to in the course of the proceedings — that all such provisions ought as a matter of principle to be interpreted generously in favour of the persons concerned.
               To realize this does not however as yet provide a solution of the concrete problem arising in these proceedings, viz. the question whether liaison departments within the meaning of Article 3 of Regulation No 4, that is departments through which one can address oneself to institutions of other Member States, also amount to ‘corresponding agencies’ within the meaning of Article 47 of Regulation No 3, to which legal appeals can be submitted for the purpose of safeguarding the time limits for so doing. For an answer to this question it is in the light of the usual rules of interpretation indispensable to base one self on the wording of the provision. In the introductory part of the first sentence of Article 47 reference is made, in respect of claims, declarations or appeals, the time limits applicable thereto and the appropriate addressees, to the legislation of the Member State in which such acts must be done. Going on from there, it states — and that is what the simplification amounts to — that the said documents may within the same period be submitted ‘to the corresponding agency of another Member State’. Accordingly, what is important is the corresponding nature of the agency and that it is not therefore sufficient to address oneself to just any agency dealing with social security law. This is clearly shown by the German text of Article 47; moreover, as has been pointed out by the Commission, it can be gleaned from the Dutch text, and the Italian and the French versions of the Regulation also point in the same direction. Any doubt is also removed by Article 86 of Regulation No 1408/71 (OJ L 149 of 5. 7. 1971) which states quite clearly: ‘any claim, declaration or appeal which should have been submitted, in order to comply with the legislation of one Member State, within a specified period to an authority, institution or court of that State shall be admissible if it is submitted within the same period to a corresponding authority, institution or court of another Member State …’.
               The term ‘corresponding’, an expression which — emphasizing its importance — can also be found in Article 46 as well as in the second sentence of Article 47 of Regulation No 3, can, if it is to make sense, only refer to the functions of the relevant agencies. Bearing in mind the fundamental differences between the functions of courts on the one hand and those of the administration on the other, it is therefore not sufficient for the purpose of complying with Article 47 to address oneself to purely administrative offices where one is dealing with appeals to courts — such as appeals pursuant to the Sozialgerichtsgesetz. Moreover there is no reason for any such far-reaching simplification. I cannot in the purely national sphere, i.e. in cases with no foreign element, imagine a possibility under the law of a Member State of submitting appeals against legal decisions to an administrative authority. And if in such a case one assumes that the person concerned is able and can be expected to find the appropriate office at any rate to the extent that one is obliged to make a distinction between administration and courts — then equally in the inter-State sphere — where the person concerned ought not to be placed in a better position — it must be assumed that such a differentiation is possible and that the simplification afforded by Article 47 therefore only exists subject to observance of the distinction mentioned. On this view too one still achieves the effect — and this is probably the real purpose of Article 47 — of there being no abridgement of the periods specified for appeals in the case of parties having their residence abroad.
               As has been urged by the Commission one can therefore conclude that in the case of submission of legal appeals, it cannot in general be said that appeals can under Article 47 of Regulation No 3 be submitted to a liaison department within the meaning of Article 3 of Regulation No 4. What matters is that the liaison department approached in such a case should at least have the functions of a court, or similar functions, in the field of social security.
               Whether beyond this, in the event of a separation of competence in the field of social security law in the Member State whose residents desire to take advantage of the simplification of Article 47, one must insist that one has to deal with the precise court competent in relation to the subject-matter in question, or whether in such a case one can be satisfied once the office that is approached has the competence of, or similar to, a social security court, is not a question raised by the national court but it was also discussed in the course of the proceedings. This happened having regard to the fact that in Belgium the Ministry for Social Security — the office approached in the present case — had set up, in respect of questions of compensation for war victims, an Appeals Commission having a character similar to a court. If one desires also to deal with this point, one ought on the one hand to bear in mind that Article 47 of Regulation No 3 basically only has the purpose of placing the persons involved in cases with a foreign element in the same position as would have been the case had the legal acts to be done by them only to be carried out within the national framework, which does not in itself justify ignoring the division of legal competences in the forwarding State. On the other hand one must also not overlook the fact that problems of attribution which can arise in this context, can create additional difficulties, for instance where the receiving State allocates the claim in question to another branch of insurance than the forwarding State. One can also take the view that the courts of the receiving State would be overburdened if in checking on the observance of specified periods for lodging an appeal under Article 47 of Regulation No 3 they had to pay attention to complicated delimitations of competence in the forwarding State. Therefore, having in mind the basic considerations mentioned at the outset, which indicate that a generous interpretation of Article 47 is appropriate, if there is any requirement at all for differentiating social security competence in the forwarding State, one can be content with a finding that there is some similarity of competence, and that measured by national yardsticks it was not an obviously incompetent office that was approached.
               Whether in the present case this occurred by bringing the Belgian Ministry for Social Security into the matter will be a matter for the national court to decide.
            
         
               3. 
            
            
               Accordingly, the question referred by the Bundessozialgericht might be answered as follows:
               Article 47 of Regulation No 3 must be interpreted as meaning that the liaison departments referred to in Article 3 of Regulation No 4 cannot generally be treated as corresponding agencies to which appeals can be submitted in application of a Member State's legal provisions for observing the time limit for an appeal. Such liaison departments only count as corresponding agencies for the purpose of submitting legal appeals if under the national division of competence they also fulfil the functions of a court, or similar functions, in the field of social security law and are not clearly incompetent for the claim in question.
            
         (
            1
         )	Translated from the German.