C-40/74

JUDGMENT OF THE COURT OF 3 DECEMBER 1974 1

Kingdom of Belgium, Henri Costers and Maria Vounckx Berufsgenossenschaft der Feinmechanik und Elektrotechnik (preliminary ruling requested by the Bundessozialgericht)

Case 40/74

Summary

1. Social security for migrant workers — Claims, declarations or appeals — Admissibility — Submission within a specified period to the corresponding agency of another Member State — Liaison department — Validity of submission of an appeal (Regulation No 3 of the Council, Article 47)

2. Social security for migrant workers — Claims, declarations or appeals — Admissi­ bility — Submission within a specified period to the corresponding agency of another Member State — Conditions — Residence of the party concerned or of his representative in that State (Regulation No 3 of the Council, Article 47)

3. MARIE VOUNCKX

and

BERUFSGENOSSENSCHAFT DER FEINMECHANIK UND ELEKTROTECHNIK

on the interpretation of Article 47 of Regulation No 3 of the Council of 25. 9.1958 concerning social security for migrant workers (OJ 1958, p. 561) and of Article 3 and of Annex 4 of Regulation No 4 of the Council on implementing procedures and supplementary provisions in respect of Regulation No 3, of 3 December 1958.

THE COURT

composed of: C. Ó Dálaigh and Lord Mackenzie Stuart, Presidents of Chambers, A. M. Donner (Rapporteur), R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher and M. Sørensen, Judges,

7 December 1957, the parents' pension Convention on Social Security concluded which is provided for under Paragraph between Germany and Belgium and 593 of the original version of the under Article 47 of Regulation No 3 the Reichsversicherungsordnung (the Ger one month's time limit for appealing man Social Security insurance) from the provided under German legislation German insurance institutions, who have would only be observed if the notice of recognized the death of René Coster as appeal which was sent from Belgium on an accident at work. 30 August had reached another After the competent Social Security institution, such as an appeal court in Insurance Fund had refused the grant of social security matters, before 2 a parents' pension, the Kingdom of September 1972.

grounds of this judgment the fact that which in their view the Landessozial the second and third plaintiffs had been gericht had interpreted incorrectly. substantially maintained by their son However, as is shown by the before his death had not been proved. Landessozialgericht in its order referring the matter, Article 49 of the The order rejecting the appeal was aforementioned Convention was no notified to the lawyers representing the longer in force. This provision does not plaintiffs in Cologne on 1 August 1972. appear in Annex D of Regulation No 3, On 30 August the Belgian Ministry for and in accordance with the provisions of National Health and the Family Article 5 and of Article 6 (2) (e) of this appealed against the judgment of the Regulation it is therefore, since 1 Sozialgericht of Cologne, on the basis of January 1959, the date of coming into Article 7 (3) of the aforementioned force of Regulation No 3, no longer Supplementary Agreement No 3, in the applicable. In the circumstances one version thereof set out in Article 5 of the must refer to Article 47 of Regulation Supplementary Protocol of 10 November No 3.

August 1972. Through the German Community concerning social security liaison department designated in Annex for migrant workers (EEC Regulation 4 aforementioned, the notice of appeal No 3) to be interpreted as meaning that reached the Landessozialgericht on 7 "a corresponding agency of another September 1972, that is to say after the Member State" can include a liaison time limit for appealing had expired. department (vide Article 3 and Annex 4 Consequently, the Landessozialgericht of Regulation No 4 on implementing rejected the appeal as inadmissible. In procedures and supplementary pro particular it pointed out that both under visions in respect of Regulation No 3) of the terms of Article 49 of the General this "other Member State" (in this case

the Ministry of Social Security, Brussels), 'the corresponding agency of another so that "in order to comply with the Member State.' It necessarily follows legislation of one Member State" an from this that 'the corresponding agency appeal may, for the purpose of observing of another Member State' can only be an the time limit for appeal (in this case an agency similar to an 'authority' or appeal under paragraphs 143 and 151 of 'institution' or an 'other agency' of the the Sozialgerichtsgesetz) be submitted to first-mentioned Member State.

cerned. Accordingly, the body which as II — Observations submitted an institution is competent under under Article 20 of the national law must also be treated as the Statute of the Court of corresponding agency abroad. Justice of the European 2. The Commission agrees with the Economic Community Bundessozialgericht's analysis according to which Article 47 of Regulation No 3 1. The defendant in the national applies in this case. It is the purpose of proceedings refers to the German text of this provision to facilitate procedures in Article 47, first sentence, of Regulation matters of social security.

institution or other corresponding does not agree that the liaison agency (bei der entsprechenden Stelle) of departments referred to in Article 3 of another Member State.' Regulation No 4 amount to agencies to In drawing a distinction in Article 47, which under Article 47 an appeal could first sentence, between 'authority', be presented having the effect of 'institution' and 'other agency' of one preserving the time limits, whatever Member State and in laying down that might be the functions of these their competence is defined on the basis departments. The text of Article 47 of of the national legislation of that State, Regulation No 3, which expressly states the authors of the Regulation had that the effect of preserving the time intended to set against them, in a word, limit only occurs where the appeal was

submitted within the specified period to functions or quasi-judicial functions. a 'corresponding agency' (German text), The Commission does not exclude the runs counter to the interpretation possibility that the submission of a advocated by the plaintiffs in the notice of appeal to a ministry might national proceedings. It also follows suffice for the purpose of applying from the wording of Article 47, second Article 47 where there are within this sentence, of Regulation No 3 that, for its ministry (in respect of a particular field first sentence to apply, the functions of of social security), special commissions the institutions must at least having a quasi-judicial character that 'correspond.' This provision draws a have the task of deciding appeals, such clear distinction between agencies to an the commissions created in a Belgian which the matter is submitted under the Ministry for the purpose of, for instance, first sentence and the 'competent the compensation of war victims authorities' to which the first-mentioned (Belgian Law 15 April 1954 Article 20 agencies may address themselves for the (4) and 22), but this question of fact purpose of forwarding to them appeals must be decided by the national courts. which they have received. The liaison Nevertheless, the mere fact that the departments mentioned in Article 3 of ministry is included amongst the 'liaison Regulation No 4 are not, therefore, departments' referred to in the Annex to always at the same time the Regulation No 4 does not in itself justify 'corresponding agency' to which a the application of Article 47. matter may be submitted so as to This way of interpreting Article 47 of preserve the time limit under Article 47. Regulation No 3 is confirmed by the Even interpreting Article 47 of provisions of Article 86 of Regulation Regulation No 3 in a very wide sense, it No 1408 of 14 June 1971 (OJ L 149, p. is impossible to ignore the differences 2), which replaced those of Article 47 of that separate the administrative field on Regulation No 3. the one hand and the functions of courts The Commission of the European on the other. Whilst the organization or the name of an institution is not the Communities, represented by Peter Karpenstein, its legal adviser, acting as determining factor it is nevertheless agent, made oral observations at the necessary that the agency to which an appeal is submitted with a view to hearing of 22 October 1974. preserving a time limit in legal The Advocate-General delivered his proceedings should exercise judicial opinion on 12 November, 1974.

Having received this document on 31 August 1972, the latter passed it on to the Bergbauberufsgenossenschaft of Bochum — the German liaison department — which in turn transmitted it to the Landessozialgericht of North Rhine- Westphalia, where it was received on 7 September 1972.

3 When this court rejected the appeal as being out of time, the plaintiffs in the national proceedings appealed on a point of law to the Bundessozialgericht, basing themselves on the argument that the Kingdom of Belgium and the Federal Republic of Germany had established liaison departments for the purpose of alleviating the difficulties in carrying into effect the Conventions in the field of social security.

The Bundessozialgericht thereupon, by the request at present before the Court, invited it to rule on the question whether Article 57 of Regulation No 3 must be interpreted as meaning that the 'corresponding agency of another Member State' may also mean the liaison department of the other Member State — in the present case the Ministry of Social Security in Brussels — to which 'in order to comply with the legislation of one Member State' an appeal within the meaning of paragraphs 143 and 151 of the 'Sozialgerichtsgesetz' may be submitted for the purpose of preserving the time limits for appeal.

4 Article 47 of Regulation No 3 reads as follows: '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. In such case the authority, institution, or

In fact, in several Member States, the distinction between administrative and judicial authorities is not clear-cut and may induce a certain confusion in the minds of citizens of another Member State.

Accordingly, it must be understood that in using the adjective 'corresponding' Article 47 requires that the claims, declarations or appeals in question be submitted to an authority, institution or other agency forming part of the social security system of the Member State in question.

JUDGMENT OF 3. 12. 1974 — CASE 40/74

Accordingly, it is not impossible for a liaison department such as is referred to in Article 3 of Regulation No 4 to be considered another corresponding agency, even where one is dealing with the submission of an appeal.

7 However, Article 47 only refers to the case where the worker lives in a Member State other than that whose law has to be applied.

Subject to exceptions, it does not therefore apply where the party involved is resident, or is for the purposes of his claim, declaration or appeal represented by a representative, (e.g. a lawyer), established in the Member State whose law must be applied.

in answer to the question referred to it by the Bundessozialgericht by order of that court dated 15 May 1974, hereby rules:

(a) A liaison department such as that referred to in Article 3 of Regu­ lation No 4 may be considered as another corresponding agency within the meaning of Article 47 of Regulation No 3, even where one is dealing with the submission of an appeal.

BELGIUM, COSTERS, VOUNCKX v BERUFSGENOSSENSCHAFT FEINMECHANIK

(b) Subject to exceptions, this Article cannot apply where the party involved is resident, or is for the purpose of his claim, declaration or appeal represented by a representative, e.g. a lawyer, established in the Member State whose law must be applied.

Lecourt Ó Dálaigh Mackenzie Stuart Donner Monaco

Mertens de Wilmars Pescatore Kutscher Sørensen

1 — Translated from the German.