C-45/72

In Case 45/72

Reference to the Court under Article 177 of the EEC Treaty by the Arbeids­ rechtbank for the Judicial District of Hasselt (Belgium) for a preliminary ruling in the action pending before that court between

Giuseppe Merola, residing at Macerata, Campania (Italy),

and

Nationaal Pensioenfonds voor mijnwerkers , Brussels,

on the interpretation of Article 45 of Regulation No 3 of the Council concerning social security for migrant workers (JO of 16.12.1958, p. 561),

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure provision takes precedence over national law in the use of languages as well. Never­ The facts and the procedure may be sum­ theless, the question here is whether Ar­ marized as follows: beidsgerechten (Labour Courts) which form part of the judiciary and are quite outside 1. On the Belgian social security institu­ the sphere of active administration are tions' refusing to grant an invalidity pen­ referred to by the said provision. It must be sion to Giuseppe Merola, a worker of considered whether 'the earlier case-law Italian nationality, he instituted proceed­ (Raad van State, 11 October 1968, Rechts­ ings against this decision before the kundig Weekblad 1968/69) which applied Arbeidsrechtbank (Labour Court) for the to administrative tribunals and to the Judicial District of Hasselt. His applica­ Raad van State, which were agencies of tion was drafted in French whereas the the executive, may... be upheld as proceed­ Belgian Law of 15 June 1935 on the use of ings in social security are henceforth languages in legal proceedings requires restricted to courts of law properly so- Dutch to be employed as the language of called'. In those circumstances the follow­ procedure in the Province of Limbourg. ing question should be submitted to the In its judgment making the reference the Court: national court made the following state­ ment in particular.

Mr Merola is clearly a migrant worker 'Since labour courts and tribunals in­ within the meaning of Regulations Nos disputably form part of the judiciary, 3 and 4 of the EEC and is thus covered by supervising the administration without Article 45(4) of Regulation No 3, which dealing with questions of active administra­ provides that 'The institutions and au­ tion and since they do not form part of the thorities of one Member State shall not executive, unlike the former administrative reject claims, or other documents sub­ courts having jurisdiction in social security mitted to them, on the grounds that they matters and the Raad van State, may labour are written in an official language of courts still be considered as "an institution another Member State'. The Community charged with the administration of social

security" with all the consequences follow The Italian Government states that it is ing therefrom with regard to the use of essential to allow migrant workers to languages in applications submitted to employ, before the courts of States which Belgian labour courts by migrant workers?' receive them, their mother tongue or at least a language which they know, as otherwise they will in practice be deprived 2. The judgment making the reference of the protection of the courts and thus be was delivered on 7 July 1972 and was subject to serious discrimination in com received at the Court Registry on 10 July parison with national workers.

tent authority' 'the Minister, Ministers or After hearing the report of the Judge- other equivalent authority responsible for Rapporteur and the views of the Advocate- social security schemes . . .' it cannot be General the Court decided to dispense with supposed that the authors of the regulation a preparatory inquiry. thereby intended to exclude the agencies The plaintiff in the main action was repre entrusted with the proper implementation sented by his authorized agent, Antonio of this scheme regardless of whether they Acetoni, the defendant in the main are of an administrative or judicial nature. action by J. Kranzen, Advocate of If the migrant worker is indisputably Hasselt, the Italian Government by Adolfo entitled to use before the administrative Maresca, Minister Plenipotentiary, assisted authorities any official language of a by Giorgio Zagari, Deputy Head of the Member State, this privilege must apply State Legal Advisory Office, and the a fortiori before the courts, which ensure Commission by its Legal Adviser, Robert legal protection in its most complete form. C. Fischer, assisted by Marie-José Jonczy, A contrary interpretation is incompatible a member of the Legal Service of the with the principle of non-discrimination

Court Institut National d''Assurance Maladie- Invalidité [1967] ECR 219). Mrs Pace, the The observations submitted to the Court widow of an Italian worker, submitted an may be summarized as follows: application in Italian to the Raad van State The plaintiff in the main action does not for the annulment of a decision refusing to express his views on the question raised grant her a pension. Since the Belgian law by the national court, merely giving a brief governing the use of languages before the description of his personal situation and Raad van State excluded the use of a criticizing the refusal to grant him the language other than French, Dutch or

JUDGMENT OF 13. 12. 1972 — CASE 45/72

ered as one of the institutions and author­ undoubtedly include courts; on the other ities referred to in Article 45 of Regulation hand, the term 'Behörden' appears to No 3'. In its judgment the Court ruled that intend only administrative authorities and 'the courts of a Member State having juris­ the word 'autoriteiten' seems to refer to diction in social security matters are in­ them at least prima facie. cluded amongst the authoriteis within the The nature of the documents mentioned

Ultimately the other word, the point at issue is whether literal interpretation of the term 'author Belgian labour courts constitute 'author ities' does not exclude courts but this is not ities' within the meaning of Article 45(4) of conclusive. Regulation No 3. Since the term 'courts of The preparatory documents do not provide a Member State having jurisdiction in conclusive information. social security matters' employed by the It is clear from the case-law of the Court Court encompasses all courts, whether that the interpretation of Regulations administrative or judicial, required to issue Nos 3 and 4 must be guided by the objec judgments in this sphere, the reply is 'on all tives established by Articles 48 to 51 of the the evidence affirmative'. Treaty rather than the literal content of the provisions.

Most refers only to administrative authorities of the bilateral conventions concluded that 'courts' are excluded from the concept between the Member States, for which the of 'authority' employed by Article 45 of Community provisions have been substi that regulation; in fact, the above- tuted, contained provisions worded as mentioned subparagraph (d) refers to a follows: 'Communications dealing with restricted number of authorities, that is, social security submitted under the present those having ministerial status and en Convention to agencies, authorities and trusted within the framework of Regula courts of one of the contracting parties tions Nos 3 and 4 with the administrative shall be drawn up in one of the official coordination of social security. languages of one or other of the contracting The versions in the four languages of parties'. Although Article 45 of Regu,ation Article 45 do not have a fully identical No 3 did not repeat the term 'court' it is scope: the terms 'autorités' and 'autorità' impossible to concede that the legislators

intended to make the position of migrant language of another Member State. They workers worse than it was before the entry shall have recourse where appropriate to into force of this provision. This conclu­ the provisions of Article 81 (b)'. sion is confirmed by the judgment of the Article 81(b) repeats the provisions of Court of 9 June 1964 in Case 92/63 Article 43(b) of Regulation No 3, never­ (Nonnenmacher (Widow of H. E. Moebs) theless expressly mentioning courts. It v Bestuur der Sociale Verzekeringsbank requires the Administrative Commission [1964] ECR 281) according to which 'in referred to in Regulation No 3 and case of doubt the abovementioned Articles Regulation No 1408/71 'to carry out all (that is, 48 to 51 of the Treaty) and the translations of documents relating to the measures taken in implementation of them implementation of this regulation at the must be construed so as to avoid placing request of the competent authorities, migrant workers in an unfavourable legal institutions and courts of the Member position, particularly with regard to social States, and in particular translations of security'. claims submitted by persons who may be Likewise Community workers must not be entitled to benefit under this regulation'. placed in an unfavourable position in The introduction of the word 'courts' into relation to workers from third countries those provisions seemed appropriate to employed within the Community. Con­ the Council not because it constituted an ventions concluded by Member States with 'advance' in relation to Regulation No 3 third countries frequently contain the but as an improvement in draftsmanship abovementioned clause on the use of which took into account the decisions of languages. the Court and thus endeavoured to avoid Finally, Article 84(4) of Regulation No any interpretative difficulty in the future. 1408/71 of the Council of 14 June 1971 Consequently the Commission considers on the application of social security schemes that the reply to be given by the Court to employed persons and their families should be as follows: moving within the Community (OJ, Special 'National courts having jurisdiction in Edition, 1971 II, p. 416), which replaced social security matters, in this case the Regulation No 3 as from 1 October 1972, Belgian labour courts and tribunals, are contains a provision which is substituted included amongst authorities within the for Article 45(4) of Regulation No 3 and meaning of Article 45 of Regulation No 3 is worded as follows: 'The authorities, and consequently may not reject applica­ institutions and tribunals of one Member tions submitted to them by migrant State may not reject claims or other workers by reason of the fact that they are documents submitted to them on the drawn up in an official language of another grounds that they are written in an official Member State.'

5 The wording of the question is to be explained by the fact that, before this judgment, social security proceedings in Belgium passed from the jurisdiction of the ad­ ministrative courts and of the Raad van State, described as 'agencies of the executive' by the Arbeidsrechtbank, Hasselt, to labour courts and tribunals which are considered as courts properly so-called.

6 Consequently it appears that the question is whether Article 45 of Regulation No 3 also covers national courts other than administrative courts.

7 Article 45 (4) of Regulation No 3 draws no distinction according to the nature, administrative or judicial, of the institutions or authorities required to receive the documents referred to in that provision.

8 Furthermore, Article 84(4) of Regulation No 1408/71 of the Council of 14 June 1971 (OJ, Special Edition, 1971 II, p. 416), which replaced Article 45(4) of Regula­ tion No 3 as from 1 October 1972, expressly mentions 'tribunals' together with 'authorities' and 'institutions'.

9 In these circumstances the reply to be given to the Arbeidsrechtbank, Hasselt, must be that Article 45(4) of Regulation No 3 refers to all national courts having jurisdiction in social security matters.

MEROLA v FONDS NATIONAL DE RETRAITE DES OUVRTERS MINEURS

Monaco Pescatore

Donner Trabucchi Kutscher

Delivered in open court in Luxembourg on 13 December 1972.

A. Van Houtte R. Monaco

Registrar President of the First Chamber on behalf of the President who was unable to attend