Avis juridique important

Judgment of the Court of 18 February 1975. - Alfonso Farrauto v Bau-Berufsgenossenschaft. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Case 66-74. European Court reports 1975 Page 00157 Greek special edition Page 00083 Portuguese special edition Page 00087

Summary Parties Subject of the case Grounds Decision on costs Operative part

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SOCIAL SECURITY FOR MIGRANT WORKERS - PENSION - APPLICATION FOR - DECISION OF THE COMPETENT INSTITUTION - DIRECT NOTIFICATION TO THE CLAIMANT - CONDITIONS - LANGUAGE - DUTIES OF NATIONAL COURTS

( REGULATION NO 4 OF THE COUNCIL, ARTICLE 56 ( 2 ))

THE WORD 'DIRECTLY' IN ARTICLE 56 ( 2 ) OF REGULATION NO 4 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT THE NOTIFICATION REFERRED TO IN THE PROVISION MUST BE EFFECTED WITHOUT AN INTERMEDIARY AND THAT DESPATCH BY THE POSTAL AND TELECOMMUNICATION SERVICES MEETS THIS CONDITION .

IN CASE 66/74

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESSOZIALGERICHT FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ALFONSO FARRAUTO, RACALMUTO, ITALY

AND

BAU-BERUFSGENOSSENSCHAFT, WUPPERTAL, FEDERAL REPUBLIC OF GERMANY,

ON THE INTERPRETATION OF ARTICLE 56 ( 2 ) OF REGULATION NO 4 OF THE COUNCIL OF 3 DECEMBER 1958 ( OJ OF 16 . 12 . 1958, P . 597 ) IMPLEMENTING AND SUPPLEMENTING REGULATION NO 3 ON SOCIAL SECURITY FOR MIGRANT WORKERS,

1 BY ORDER DATED 22 AUGUST 1974, FILED AT THE COURT ON 13 SEPTEMBER 1974, THE BUNDESSOZIALGERICHT REFERRED A QUESTION UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF THE WORD 'DIRECTLY' IN ARTICLE 56 ( 2 ) OF REGULATION NO 4 OF THE COUNCIL ( OJ NO 30 OF 16 . 12 . 1958, P . 597 ) IMPLEMENTING AND SUPPLEMENTING REGULATION NO 3 ON SOCIAL SECURITY FOR MIGRANT WORKERS .

3 THIS QUESTION WAS RAISED IN AN ACTION BY AN ITALIAN NATIONAL, RESIDENT IN ITALY AFTER HAVING WORKED IN GERMANY, WHO WAS REFUSED FURTHER PAYMENT OF AN ACCIDENT PENSION BY A GERMAN INDUSTRIAL SOCIAL INSURANCE BODY .

ON RECEIPT OF NOTICE OF THE REFUSAL BY REGISTERED LETTER WITH ACKNOWLEDGMENT OF RECEIPT, THE PLAINTIFF BROUGHT AN ACTION AGAINST THE DECISION OF THE INSURANCE BODY IN THE SOZIALGERICHT DUESSELDORF, WHICH DISMISSED THE ACTION AS INADMISSIBLE ON THE GROUND THAT IT HAD BEEN BROUGHT AFTER THE EXPIRATION OF THE TIME LIMIT OF THREE MONTHS PROVIDED FOR BY GERMAN LAW .

ON APPEAL BY THE PLAINTIFF THE LANDESSOZIALGERICHT SET ASIDE THE DECISION OF THE COURT OF FIRST INSTANCE ON THE GROUND THAT IT WAS INCOMPATIBLE WITH ARTICLE 14 OF THE GERMAN LAW ON SERVICE IN ADMINISTRATIVE MATTERS, WHICH PROVIDES THAT SERVICE OUT OF THE JURISDICTION HAS TO BE EFFECTED EITHER THROUGH THE COMPETENT AUTHORITIES OF THE FOREIGN COUNTRY OR BY THE CONSULAR OR DIPLOMATIC SERVICES OF THE FEDERAL REPUBLIC OF GERMANY .

THE QUESTION BEFORE THE BUNDESSOZIALGERICHT, TO WHICH THE MATTER CAME ON APPEAL ON A POINT OF LAW, IS WHETHER ARTICLE 56 ( 2 ) OF REGULATION NO 4 MUST BE INTERPRETED SO AS TO EXCLUDE THE APPLICATION OF THE GERMAN LEGISLATIVE PROVISION REFERRED TO .

3 ARTICLE 56 ( 2 ) OF REGULATION NO 4, IN FORCE AT THE TIME, REFERRING TO THE CASE WHERE A WORKER WHO IS RESIDENT IN THE TERRITORY OF ONE MEMBER STATE HAS APPLIED FOR A PENSION FROM AN INSTITUTION OF ANOTHER MEMBER STATE, PROVIDED THAT THE COMPETENT INSTITUTION SHOULD 'NOTIFY THE CLAIMANT OF ITS DECISION DIRECTLY' AND SEND A COPY TO THE LIAISON BODY OF THE COUNTRY IN WHICH THE CLAIMANT LIVES .

BEFORE THE GERMAN COURTS HAVING JURISDICTION IN SOCIAL MATTERS THE ARGUMENT WAS MAINTAINED THAT THIS PROVISION WAS LIMITED TO SHOWING THE PERSON TO WHOM THE DECISION MUST BE NOTIFIED, WITHOUT PROVIDING FOR THE FORM OF THE NOTIFICATION, SO THAT ITS SOLE OBJECTIVE WAS TO SHOW THAT NOTIFICATION SHOULD NOT BE VIA THE LIAISON BODY, WHILE LEAVING IT TO THE NATIONAL LAW OF EACH MEMBER STATE TO REGULATE THE FORM OF NOTIFICATION .

4 SUCH AN INTERPRETATION, WHICH CANNOT BE INFERRED FROM THE WORDING OF THE PROVISION IN QUESTION, IS NOT IN ACCORDANCE WITH THE OBJECTIVE AND PURPOSE OF THE PROVISION IN THE CONTEXT OF COMMUNITY RULES ON SOCIAL SECURITY FOR WORKERS .

THESE RULES, WHICH ARE CONTAINED IN MEASURES AIMED AT ENSURING FREEDOM OF MOVEMENT FOR WORKERS, ARE CONCERNED WITH REMOVING CERTAIN OBSTACLES OF A MATERIAL AND ADMINISTRATIVE NATURE WHICH COULD PREVENT WORKERS FROM MOVING BETWEEN THE MEMBER STATES .

DIRECT COMMUNICATION BETWEEN SOCIAL SECURITY INSTITUTIONS AND THE PERSONS CONCERNED RESIDENT IN OTHER MEMBER STATES, WITHOUT INTERMEDIARIES, EXCEPT FOR THE POSTAL AND TELECOMMUNICATION SERVICES, SERVES TO SIMPLIFY ADMINISTRATIVE FORMALITIES AND TO SPEED MATTERS UP .

FOR THE PURPOSE OF SUCH DIRECT COMMUNICATION, INCLUDING THE NOTIFICATION OF DECISIONS TAKEN BY COMPETENT INSTITUTIONS, CERTAIN FORMS AND METHODS ARE AVAILABLE TO SAFEGUARD LEGAL CERTAINTY IN THE INTERESTS OF THE PERSONS CONCERNED .

FROM THE POINT OF VIEW OF EUROPEAN INTEGRATION PREFERENCE MUST THEREFORE BE GIVEN TO THIS PRACTICE OVER FORMS TRADITIONALLY USED TO NOTIFY ADMINISTRATIVE DECISIONS OUT OF THE JURISDICTION .

5 IN ANSWER TO THE QUESTION RAISED IT IS THEREFORE RIGHT TO SAY THAT THE WORD 'DIRECTLY' IN ARTICLE 56 ( 2 ) OF REGULATION NO 4 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT THE NOTIFICATION REFERRED TO IN THE PROVISION MUST BE EFFECTED WITHOUT AN INTERMEDIARY AND THAT DESPATCH BY THE POSTAL AND TELECOMMUNICATION SERVICES MEETS THIS CONDITION .

6 A SPECIAL PROBLEM CONCERNING LEGAL CERTAINTY MAY ARISE IF THE DECISION IS NOTIFIED TO THE PERSON CONCERNED IN A LANGUAGE WHICH HE DOES NOT UNDERSTAND .

CERTAIN PROVISIONS OF COMMUNITY RULES ON SOCIAL SECURITY FOR WORKERS TAKE ACCOUNT OF DIFFICULTIES OF A LINGUISTIC NATURE BY PROVIDING EITHER THAT THE INSTITUTIONS AND THE AUTHORITIES OF A MEMBER STATE MAY NOT REJECT CLAIMS OR OTHER DOCUMENTS SUBMITTED TO THEM ON THE GROUNDS THAT THEY ARE WRITTEN IN AN OFFICIAL LANGUAGE OF ANOTHER MEMBER STATE ( ARTICLE 45 OF REGULATION NO 3 AND ARTICLE 84 ( 4 ) OF REGULATION NO 1408/71 ), OR THAT CERTAIN DECISIONS SHALL BE NOTIFIED TO THE CLAIMANT IN HIS OWN LANGUAGE ( ARTICLE 48 ( 1 ) OF REGULATION NO 574/72 ), BUT THESE PROVISIONS DO NOT APPLY IN THE PRESENT CASE .

THE NATIONAL COURTS OF THE MEMBER STATES MUST NEVERTHELESS TAKE CARE THAT LEGAL CERTAINTY IS NOT PREJUDICED BY A FAILURE ARISING FROM THE INABILITY OF THE WORKER TO UNDERSTAND THE LANGUAGE IN WHICH A DECISION IS NOTIFIED TO HIM .

7 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESSOZIALGERICHT BY ORDER OF THAT COURT DATED 22 AUGUST 1974, HEREBY RULES :

THE WORD 'DIRECTLY' IN ARTICLE 56 ( 2 ) OF REGULATION NO 4 OF THE COUNCIL MUST BE INTERPRETED AS MEANING THAT THE NOTIFICATION REFERRED TO IN THE PROVISION MUST BE EFFECTED WITHOUT AN INTERMEDIARY AND THAT DESPATCH BY THE POSTAL AND TELECOMMUNICATION SERVICES MEETS THIS CONDITION .