Opinion of Mr advocate-general Reischl
Mr President,
Members of the Court,
Regulation No 3 concerning social security for migrant workers contains inter alia provisions having the purpose of reducing the legal and administrative difficulties which may arise on applying this regulation in the inter-State context.
Thus, pursuant to Article 47 thereof, 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. The regulation goes on to read In such case the authority, institution or agency receiving the claim, declaration or appeal shall forward it without delay to the competent authority, institution or agency of the former State, either directly or through the competent authorities of the Member States concerned.
On this point Article 83 of Regulation No 4 further provides that the date of submission of claims, declarations or appeals to an authority, institution or agency of another Member State shall be deemed to be the date of submission thereof to the competent authority, institution or agency.
This provision is also relevant to the proceedings currently pending before the Bundessozialgericht, proceedings that have resulted in the reference No 40/74. For a better understanding of this case I should like to start with the following preliminary remarks.
In 1943 Mr René Costers, a Belgian worker compulsorily recruited for work in Germany, lost his life as a result of a bombing raid on the factory in which he was then employed. The German insurance institutions recognize this as an accident at work. Pursuant to paragraph 593 (old version) of the Reichsversicherungsordnung a pension shall be granted to the parents of a worker who lost his life as a result of an accident at work for as long as they are in need, provided the person who lost his life had, prior to the accident, substantially contributed towards their maintenance out of his earnings. Relying on this provision and the Third Supplementary Agreement to the General convention on Social Security of 7 December 1957 concluded between the Federal Republic of Germany and the Kingdom of Belgium, the parents of Mr Costers are laying claim to the grant of such a parents' pension. This was, by decision of 22 January 1968, rejected by the competent German institution, the Berufsgenossenschaft der Feinmechanik und Elektrotechnik in Cologne.
An appeal against this decision was made to the Sozialgericht of Cologne by the Kingdom of Belgium, represented by its Minister for National Health and the Family, (the first-named plaintiff), as well as by Mr Costers and Marie Vounckx, his wife, the parents of Mr René Costers (the second and third-named plaintiffs). By judgment of 5 June 1972 the Sozialgericht of Cologne rejected the appeal as unfounded since it lacked proof that the son of the second and third-named plaintiffs had prior to his death substantially contributed to his parents' maintenance. The judgment contains instructions as to an appeal, stating that the appeal must be lodged with the Landessozialgericht of North Rhine-Westphalia within one month after service of the judgment, either in writing of by having the same recorded by the authorized official of the court office, and that the time-limit for the appeal is also observed if the notice of appeal is within that period given verbally to the authorized official of the court office of the Sozialgericht in Cologne. An official copy of the judgment was on 1 August 1972 served upon the plaintiffs' agents, a firm of Rechtsanwalte having their offices in Cologne, by registered post, with acknowledgement of receipt.
The first-named plaintiff desired to exercise his right of appeal. For that purpose he lodged on 30 August 1972 with the Ministry of Social Security in Brussels — this being the Belgian liaison department within the meaning of Article 3 and Annex 4 of Regulation No 4 — an appeal addressed to the Landessozialgericht for North Rhine-Westphalia in Essen. It was received by that Ministry on 31 August 1972. By letter of 1 September 1972 the said Ministry transmitted the notice of appeal to the Bergbauberufsgenossenschaft in Bochum, this being the German liaison department within the meaning of the provisions referred to. Thence it was passed on to the Landessozialgericht of North Rhine-Westphalia, where it was received on 7 September 1972.
By judgment of 21 November 1972 the Landessozialgericht rejected the appeal as inadmissible on the grounds that the time limit for an appeal (one month after service of the judgment at first instance) had not been observed. In its statement of reasons it recognized that, pursuant to Article 49 of the General Convention on Social Security between the Federal Republic of Germany and the Kingdom of Belgium already mentioned, appeals which, pursuant to the legal provisions of one contracting State, are to be submitted within a specified period to the competent authority, institution, court or other agency of the State which is competent to carry into effect the legal provisions mentioned in Article 2, shall be deemed to be submitted in time if within the same period they are submitted to an authority, institution, court or similar agency of the other State. Since however the Belgian liaison department cannot be considered a court, and it is not therefore a similar agency within the meaning of the said Article 49, the receipt by it of the notice of appeal cannot be treated as sufficient. Confirmation of this point of view can moreover be found in Article 47 of Regulation No 3, that is the provision to which I have referred at the outset.
The tree plaintiffs, upon being granted leave by the Landessozialgericht to appeal on a point of law, brought such an appeal before the Bundessozialgericht. They take the view that since the parties to the General Convention on Social Security had set up liaison departments, service of a notice of appeal upon such a liaison department is sufficient. On a correct understanding of the matter, even in the case of lodging appeals, it is not just courts that must be regarded as similar agencies.
On this point the Bundessozialgericht takes the view that at the time when notice of appeal was given, Article 49 of the General Convention on Social Security was no longer applicable since — a matter that under Articles 5 and 6 of Regulation No 3 is crucial — it is not listed in Annex D to that Regulation. Rather is it Article 47 of Regulation No 3 which is crucial. Since however the Court considered the interpretation of Article 47 of Regulation No 4 to be subject to doubt it decided by order of 15 May 1974 to stay the proceedings and to refer the following preliminary question to the Court under Article 177 of the EEC Treaty:
In relation to this question, on which only the defendant in the national proceedings and the Commission of the European Communities expressed an opinion, I would comment as follows:
1. In the first place it must be placed on record that since the coming into force of Regulation No 3, i.e. since 1 January 1959, Article 49 of the General Belgo-German Convention on Social Security is no longer applicable. That this is so is shown by Articles 5 and 6 of Regulation No 3, as well as by Annex D thereto. For pursuant to Article 5 thereof, the Regulation, in so far as nothing to the contrary is expressly stated therein, replaces, as regards the persons to whom it applies, conventions in the field of social security law which were concluded between two or more Member States. Pursuant to Article 6 (2) there admittedly remain applicable such other provisions of social security Conventions as are listed in Annex D. Article 49 of the General Convention, which can be found in Article 1 of Supplementary Agreement No 3 to the General Convention, has no significance notwithstanding this supplementary agreement being referred to in Annex D. In this respect it is significant that No 1 of the General Observations to Annex D specifically states: In so far as the provisions of supplementary agreements mentioned in this Annex make reference to the provisions of the General Convention in question, such references are replaced by references to the corresponding provisions of the Regulation.
2. I have at the outset quoted this provision verbatim. I should now like to deal with it.
3. Accordingly, the question referred by the Bundessozialgericht might be answered as follows:
1 Translated from the German.