Giuseppe Merola v Nationaal Pensioenfonds voor Mijnwerkers (45/72)

II —Observations submitted to the Court

The observations submitted to the Court may be summarized as follows:The plaintiff in the main action does not express his views on the question raised by the national court, merely giving a brief description of his personal situation and criticizing the refusal to grant him the pension.The defendant in the main action declares that in this matter it relies on the wisdom of the Court.The Italian Government states that it is essential to allow migrant workers to employ, before the courts of States which receive them, their mother tongue or at least a language which they know, as otherwise they will in practice be deprived of the protection of the courts and thus be subject to serious discrimination in comparison with national workers.An affirmative reply should be given to the question which has been raised. Article 45 of Regulation No 3 draws no distinction between executive and judicial agencies; a court cannot draw a distinction which the legislature has not made. Whilst Article 1 (d) of this regulation terms as a ‘competent authority’‘the Minister, Ministers or other equivalent authority responsible for social security schemes …’ it cannot be supposed that the authors of the regulation thereby intended to exclude the agencies entrusted with the proper implementation of this scheme regardless of whether they are of an administrative or judicial nature. If the migrant worker is indisputably entitled to use before the administrative authorities any official language of a Member State, this privilege must apply a fortiori before the courts, which ensure legal protection in its most complete form. A contrary interpretation is incompatible with the principle of non-discrimination established by Article 7 of the EEC Treaty and which constitutes the basis of Regulation No 3.The Commission states that the judgment of the Belgian Raad van State of 11 October 1968 to which the Arbeidsrechtbank Hasselt, refers is partly based on the judgment of the Court of Justice of 5 July 1967 in Case e 6/67 (Teresa Pace (nee Guerra)v Institut National d''Assurance Maladie-Invalidité [1967] ECR 219). Mrs Pace, the widow of an Italian worker, submitted an application in Italian to the Raad van State for the annulment of a decision refusing to grant her a pension. Since the Belgian law governing the use of languages before the Raad van State excluded the use of a language other than French, Dutch or German in the documents and declarations of individuals, that court submitted the question to the Court whether ‘the Raad van State (Conseil d'État) is to be considered as one of the institutions and authorities referred to in Article 45 of Regulation No 3’. In its judgment the Court ruled that ‘the courts of a Member State having jurisdiction in social security matters are included amongst the authoriteis within the meaning of Article 45 of Regulation No 3’. In implementation of this judgement the Raad van State decided that the application was admissible and gave a ruling on the merits by the said judgment of 11 October 1968. It is clear from the grounds of the judgment making the reference that the question submitted is whether it is possible to uphold the precedent established by the abovementioned judgment of the Court, which was delivered at a period when proceedings in social security matters in Belgium fell within the jurisdiction of administrative courts, when in the meantime such proceedings have been entrusted to labour courts and tribunals which constitute courts of law properly so-called. In other word, the point at issue is whether Belgian labour courts constitute ‘authorities’ within the meaning of Article 45(4) of Regulation No 3. Since the term ‘courts of a Member State having jurisdiction in social security matters’ employed by the Court encompasses all courts, whether administrative or judicial, required to issue judgments in this sphere, the reply is ‘on all the evidence affirmative’.In this connexion the Commission recalls the arguments which it advanced in Case 6/67:The term ‘authority’ is not expressly defined by Regulation No 3. It may not be inferred from the fact that Article 1 (d) refers only to administrative authorities that ‘courts’ are excluded from the concept of ‘authority’ employed by Article 45 of that regulation; in fact, the above-mentioned subparagraph (d) refers to a restricted number of authorities, that is, those having ministerial status and entrusted within the framework of Regulations Nos 3 and 4 with the administrative coordination of social security.The versions in the four languages of Article 45 do not have a fully identical scope: the terms ‘autorités’ and ‘autorità’ undoubtedly include courts; on the other hand, the term ‘Behörden’ appears to intend only administrative authorities and the word ‘autoriteiten’ seems to refer to them at least prima facie.The nature of the documents mentioned in Article 45(4) (‘claims, or other documents’) in no way excludes courts. On the other hand, under Article 47 of Regulation No 3, under the terms of which‘Any claim, declaration or appeal whch 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,’periods relating to applications to courts may also be extended. Ultimately the literal interpretation of the term ‘authorities’ does not exclude courts but this is not conclusive.The preparatory documents do not provide conclusive information.It is clear from the case-law of the Court that the interpretation of Regulations Nos 3 and 4 must be guided by the objectives established by Articles 48 to 51 of the Treaty rather than the literal content of the provisions. In this connexion, it is important to bear in mind that provisions on the use of the languages of contracting parties, comparable with Article 45(4) of Regulation No 3 have become stylized in international conventions on social security even with regard to the relationships between individuals and the courts. Most of the bilateral conventions concluded between the Member States, for which the Community provisions have been substituted, contained provisions worded as follows: ‘Communications dealing with social security submitted under the present Convention to agencies, authorities and courts of one of the contracting parties shall be drawn up in one of the official languages of one or other of the contracting parties’. Although Article 45 of Regu, ation No 3 did not repeat the term ‘court’ it is impossible to concede that the legislators intended to make the position of migrant workers worse than it was before the entry into force of this provision. This conclusion is confirmed by the judgment of the Court of 9 June 1964 in Case 92/63 (Nonnenmacher (Widow of H. E. Moebs) v Bestuur der Sociale Verzekeringsbank [1964] ECR 281) according to which ‘in case of doubt the abovementioned Articles (that is, 48 to 51 of the Treaty) and the measures taken in implementation of them must be construed so as to avoid placing migrant workers in an unfavourable legal position, particularly with regard to social security’.Likewise Community workers must not be placed in an unfavourable position in relation to workers from third countries employed within the Community. Conventions concluded by Member States with third countries frequently contain the abovementioned clause on the use of languages.Finally, Article 84(4) of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, Special Edition, 1971 II, p. 416), which replaced Regulation No 3 as from 1 October 1972, contains a provision which is substituted for Article 45(4) of Regulation No 3 and is worded as follows: ‘The authorities, institutions and tribunals of one 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. They shall have recourse where appropriate to the provisions of Article 81 (b)’.Article 81(b) repeats the provisions of Article 43(b) of Regulation No 3, nevertheless expressly mentioning courts. It requires the Administrative Commission referred to in Regulation No 3 and Regulation No 1408/71 ‘to carry out all translations of documents relating to the implementation of this regulation at the request of the competent authorities, institutions and courts of the Member States, and in particular translations of claims submitted by persons who may be entitled to benefit under this regulation’. The introduction of the word ‘courts’ into those provisions seemed appropriate to the Council not because it constituted an ‘advance’ in relation to Regulation No 3 but as an improvement in draftsmanship which took into account the decisions of the Court and thus endeavoured to avoid any interpretative difficulty in the future. Consequently the Commission considers that the reply to be given by the Court should be as follows:‘National courts having jurisdiction in social security matters, in this case the Belgian labour courts and tribunals, are included amongst authorities within the meaning of Article 45 of Regulation No 3 and consequently may not reject applications submitted to them by migrant workers by reason of the fact that they are drawn up in an official language of another Member State.’