C-66/74

The word 'directly' in Article 56 (2) of must be effected without an intermediary Regulation No 4 of the Council must be and that despatch by the postal and interpreted as meaning that the telecommunication services meets this nofification referred to in the provision condition.

In Case 66/74

Reference to the Court under Article 177 of the EEC Treaty by the Bundes- sozialgericht 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 supplemen- ting Regulation No 3 on social security for migrant workers,

gives the following

JUDGMENT

Facts

The order of reference and the written to the Sozialgericht, where it was observations submitted under Article 20 received on 9 June 1971. of the EEC Statute of the Court may be On 21 December 1971 the Sozialgericht summarized as follows: rejected the application because it was not within the time limit of three months laid down by law. The plaintiff appealed to the I — Facts and procedure Landessozialgericht for North Rhine- Westphalia which, by judgment dated 10 1. The plaintiff in the main action, who January 1973, set aside the judgment of is an Italian national and resident in the court of first instance since the Italy after having worked in Germany, period for applying to the court had not applied to the defendant, an industrial begun to run because service had not social insurance body in the building been effected in the prescribed form. sector in Wuppertal, for the restoration According to the Landessozialgericht, of an accident pension which he had Article 56 (2) of Regulation No 4 (1) previously received for a limited period. prescribes only the person on whom the By a decision dated 12 January 1971 decision has to be served and not the the defendant rejected the plaintiff's form of service. It is the national application and the copy of this decision law which applies on this point, in was sent to the defendant on 26 January the present case the Verwaltungs- 1971 by registered post with a form for zustellungsgesetz (VwZG) — Law on acknowledgment of receipt. The letter service in administrative matters. Article was delivered to the plaintiff on 29 14 (1) VwZG provides that service out January 1971.

diplomatic services in such country. The Bundessozialgericht also finds that a Paragraph 2 provides: 'The competent 'direct' notification of the decision in a institution shall notify the claimant of its strictly literal sense will scarcely ever decision directly and send a copy to the take place in practice. Further, service by liaison body of the country in which the means of the postal authorities will claimant lives'. This procedure was not enable the objective to be attained more followed in the present case. 'directly' and as a general rule con- siderably quicker than if it takes 2. An appeal was made to the place through the diplomatic channels of Bundessozialgericht against the decision the Federal Republic of Germany. of the Landessozialgericht. Before giving Finally, on service through the post a decision the Bundessozialgericht stayed proof that the claimant has received the the proceedings and referred the case notice is possible, since on request under Article 177 of the EEC Treaty to delivery to the addressee is confirmed by the Court of Justice for a preliminary a receipt. ruling on 'how the word directly' in Article 56 (2) of Regulation No 4 4. The order of reference of the implementing and supplementing Regu- Bundessozialgericht dated 22 August lation No 3 of the Council of the 1974 was registered at the Court on 13 European Economic Community on September 1974. social security for migrant workers Written observations were lodged at the should be interpreted'. Court on behalf of the Commission by 3. It appears from the grounds of the its Legal Adviser N. Koch. order of reference of the Bundessozial- After hearing the report of the Judge gericht that there is conflicting case-law Rapporteur and the opinion of the among the Landesgerichte. Advocate-General, the Court decided to In the grounds of the order the open the oral procedure without any Bundessozialgericht refers to Article 75 preparatory inquiry. (2) of Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71, which departs from Article II — Written observations

from the two provisions subsequent to determined with precision. The com- those cited, that is Article 84 (3) of petent institution would need an Regulation No 1408/71 and Article 75 intermediary to communicate its decision (2) of Regulation No 574/72. They have to the claimant. It is not specified who practically not amended the rules must be this intermediary. Moreover a previously in force and have re-adopted rule governing service ousting the them almost word for word. applicability of national law would not The Commission finds however that this appear necessary to establish freedom of movement for workers. It is true that interpretation gives rise to a certain the procedure of service through the number of objections of both a legal and consular or diplomatic services is more a practical nature. There could be a cumbersome; however, no appreciable conflict between Article 14 (1) VwZG inconvenience results for the employed and Article 56 (2) of Regulation No 4 person. Finally, the scope of the question since the latter distinguishes between of interpretation raised is essentially certain institutions (liaison bodies and limited to matters belonging to a past institutions of the place of residence) era. If today service through the consular whereas the former provides for the intervention of certain institutions or diplomatic services should prove too difficult, the competent institution could ('competent authorities' and consular or have recourse to the liaison body. diplomatic services). It is also possible to contend that notification under Article 14 At the hearing on 16 January 1975, the (1) VwZG is complicated and that Commission of the European Communi- notification through the post attains ties, represented by N. Koch, submitted oral observations. its objetive more speedily while still offering sufficient guarantees as regards The Advocate-General delivered his

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.

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.

Costs

The costs incurred by the Commission of the European Communities, which

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O'Keeffe

Delivered in open court in Luxembourg on 18 February 1975.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI