OPINION OF ADVOCATE GENERAL
LA PERGOLA
delivered on 3 December 1996 ( *1 )
1.
By order of 12 September 1994 the Sozialgericht (Social Court), Hamburg referred the following question to the Court of Justice for a preliminary ruling:
‘Whether, and to what extent, German social security authorities and courts are bound by the rule of Community law to the effect that foreign certificates of civil status, and judgments of foreign courts determining or rectifying data concerning matters of civil status, have binding force in proceedings concerning entitlement to social security benefits’.
2.
The case which gave rise to this question may be summarized as follows:
Mrs Dafeki, a Greek national, has been living in Germany since 1966 and was an employed person in that country until 1987. Her identity papers showed her date of birth as 3 December 1933.
On 4 April 1986, at Mrs Dafeki's request, the court in Trikala (Greece) rectified that date in accordance with the special procedure provided for where national archives and registers of civil status were destroyed during the war. Mrs Dafeki's date of birth was consequently established as 20 February 1929. The population register of the municipality of Glikomilea and the register of civil status of the municipality of Chrissomilea were amended accordingly. Mrs Dafeki was then issued with a birth certificate attesting her date of birth as rectified.
On 19 December 1988, Mrs Dafeki applied in Germany for the early retirement pension provided for women who have reached the age of 60. Her application was, however, rejected. Basing its decision on the documents drawn up before Mrs Dafeki's date of birth had been rectified, the competent German institution decided that Mrs Dafeki had not reached the age required for pension entitlement at the time when her application was made. Mrs Dafeki contested that decision by proceedings before the Sozialgericht Hamburg.
3.
The national court is asking the Court of Justice whether the German social security institution and any courts seised of the matter are obliged to take into account the civil-status documents of another Member State and alterations made to such documents by the competent authorities of that State, including the courts.
According to the national court, under German procedural and substantive law that question has to be answered in the negative. German civil-status documents and rectifications made to them enjoy a privileged authority because, provided that they comply with the prescribed formal requirements, they benefit from a presumption of accuracy as to the matters to which they attest, subject however to any interested party adducing evidence to the contrary. The same rules of evidence do not, however, apply to foreign documents; they are subject to free evaluation by the courts which are, consequently, able to disregard the matters certified in them. Additionally and more particularly, according to the order for reference, in the present case a rule of case-law applies according to which if documents of differing dates are inconsistent with one another, the document closest in time to the event to be proved takes precedence. Consequently, the national court attaches greater probative value to Mrs Dafeki's old identity card than to the new documents issued after her date of birth had been rectified. The national court does, however, raise the question whether or not the fact that German and foreign documents relating to civil status are accorded different probative value constitutes discrimination based on nationality prohibited by the Treaty and in particular by Article 48 thereof. It has therefore submitted the abovementioned question to the Court.
4.
The order for reference thus formulates the question for interpretation essentially in terms of the prohibition of discrimination based on nationality laid down in Article 48(2) of the Treaty.
On that point, both the representative of Mrs Dafeki and the Greek Government submit, albeit for different reasons, that the question referred should be answered in the affirmative: they consider this to be a case of indirect discrimination contrary to Articles 6, 48 and 51 of the Treaty and to Article 3(1) of Regulation No 1408/71 ( 1 ) which specifically applies to the field of social security the general principle of nondiscrimination. They submit that that principle requires the competent authorities and the German courts to accord to Greek civil-status documents the same value as the equivalent German documents.
Although the Commission and the German Government propose different replies as regards the substance of the question referred, neither considers that there has been a breach of the principle of nondiscrimination in this case. That principle, they agree, requires that like situations should not be treated differently. The point in this case, however, is, they maintain, that the situations are not the same. And it is in fact true that the probative value of documents relating to civil status and of rectifications thereof differs from one legal system to another according to the formalities and procedures prescribed for them. Inasmuch as, it is argued, the differing treatment prescribed under the national rules in point specifically concerns situations which are not the same, it does not constitute discrimination of the kind alleged.
I subscribe to the last-mentioned view. Admittedly, the rules of evidence described by the national court are, in theory, such as to affect the exercise of a freedom safeguarded by the Treaty. In other words, they have a negative effect — if only indirectly — on the legal position of a citizen exercising the right to freedom of movement. Proof of status as regards age is a de facto prerequisite for the exercise of that right, and, in Germany, it is rendered more difficult for nationals of other Member States of the Community to provide such proof than it is for German nationals. In that sense there is a difference in treatment, but the sole factor relevant here is that this is not discrimination prohibited by Community law. This is because each State makes itself responsible for the documentation of matters concerning the status of persons subject to its authority by maintaining appropriate registers and issuing certificates. Both of those activities are carried out in accordance with specific procedures and in compliance with the formalities laid down for this. This explains the special probative value which attaches to the registers of civil status and to the documents issued by the authorities vested with the power of certification in each legal system under which these matters fall. The fact is that, in the field with which we are concerned, form and probative value are indissolubly linked, in the sense that the latter is dependent on the former. Consequently, a distinction has clearly to be made in this case between German public documents on the one hand and the equivalent documents in Greece or any other Community country on the other. That, in my view, is the reason for which it is not possible to extend generally to documents from other Member States the effect which German law attaches to equivalent German documents.
5.
That, however, does not mean, in addition, that the German administrative authorities and courts are free to disregard the content of foreign certificates or that the procedure prescribed for dealing with such certificates, as described in the order for reference, must be deemed to be compatible with Community law. Far from it, as I shall explain below. The plaintiff in the main proceedings has exercised a freedom guaranteed by the Treaty, namely to work as an employed person in another Member State, as a result of which she is entitled to claim social security benefits in that State. The question of status in issue before the national court concerning her date of birth involves a de facto prerequisite for the exercise of that right. It is true that ‘in the absence of any relevant Community rules, it is for the national legal order of each Member State to ... lay down the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law ...’. ( 2 ) However, that principle of ‘procedural autonomy’ is circumscribed by the requirement, emphasized by the Court of Justice on several occasions, that the procedural rules laid down by the competent State must not make it ‘impossible in practice to exercise’ the right conferred by Community law. ( 3 )
And it is specifically in the light of that requirement that the present case falls to be examined. What rules of evidence does the national court consider it has to apply here? It cites a rule of case-law under which, if two documents of differing dates are inconsistent with one another, it is the one which is closest in time to the event to be proved which prevails. It is in application of that rule that the national court considers that it has to attach greater probative value to Mrs Dafeki's old identity card than to the new birth certificate issued to her following a judicial decision rectifying her date of birth. Since the document resulting from that rectification is obviously of later date than the document that was rectified, Mrs Dafeki is precluded from proving the alteration in status, which, in turn, constitutes an indispensable prerequisite for asserting the right to receive the pension guaranteed to her under Community law. Furthermore, and quite apart the abovementioned rule of case-law, the German authorities' refusal to take account of the certificates submitted by Mrs Dafeki means that it is in practice impossible for her to be awarded the pension. She has to prove that she has reached the age of sixty, and I fail to see how she can do this other than by relying on the documents issued by her country of birth. After all, it cannot be said that Mrs Dafeki has not made every effort to provide proof of her age: she submitted to the court the new birth certificate issued by the competent authorities of her country of origin together with the court order constituting the authority for the rectification. Were any further condition to be imposed, it would, in my view, be either impossible or at least extremely difficult to meet. It would therefore be impermissible under the abovementioned case-law.
In essence, I consider that the rules of evidence that the national court intends applying in this case make it impossible in practice to prove a fact which is a necessary prerequisite for the exercise of the right in question. Those rules must therefore be disapplied by the national court.
6.
It remains to be clarified how, for the purposes of Community law, the German court is to evaluate, in a case of the kind described in the order for reference, documents relating to civil status issued in another Member State. A preliminary point needs to be made here. There are circumstances in which an individual's civil status is a condition for entitlement to a subjective legal position guaranteed under Community law. Can it be accepted in such circumstances that the status of the person concerned should be evaluated differently from one Member State to another? The answer, in my view, has to be that it cannot.
It cannot be accepted that an individual's status, in the sense of his legal position within the legal system in question — in this instance the Community legal system — should be evaluated differently depending on the law of the State in which he is residing or working within the territory of the Community. Were that to be the case, the way in which the competent national authorities treat the events which are relevant for the purpose of defining the status of the person concerned would determine whether that right of the individual was recognized or denied. That is incompatible with the basic concept underlying the Treaty according to which subjective legal positions under Community law must enjoy equal recognition, that is to say it must be possible to invoke them in the same way in every Member State of the Community. In other words, the immutability of status — whenever, of course, it constitutes an element of or prerequisite for a right of the individual — derives from the necessity to guarantee in a uniform manner the actual form of subjective legal positions under Community law and their protection. It would be contrary to the very idea of integration were a right to exist and be enforceable in one Member State but not in another because the civil status of the person concerned — and more specifically his age, upon which that right depends — is assessed differently within the Community, though the Community itself is conceived, also for the purposes under consideration here, as being a single area without internal frontiers.
7.
The Court of Justice has already affirmed this principle of the ‘uniformity’ of the status of Community citizens in the Micheletti case. ( 4 ) The question raised in that case was whether Spain could refuse to accept, on the basis of its own laws, the status of Mr Micheletti as an Italian citizen. The answer was that it could not: ‘... it is not permissible for the legislation of a Member State to restrict the effects of the grant of the nationality of another Member State ...’. ( 5 ) The reason for this was that ‘the consequence of allowing such a possibility would be that the dass of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another’. ( 6 ) In support of that interpretation, the Court cited Directive 73/148/EEC ( 7 ) which ‘provides that Member States are to grant to the persons referred to in Article 1 the right to enter their territory merely on production of a valid identity card or passport (Article 3) and are to issue a residence card or permit to such persons, and to those mentioned in Article 4, upon production, in particular, of the document with which they entered their territory (Article 6).
Thus, once the persons concerned have produced one of the documents mentioned in Directive 73/148/EEC in order to establish their status as nationals of a Member State, the other Member States are not entitled to challenge that status ...’. ( 8 )
Two conclusions can be drawn from the judgment in Micheletti. First, as Advocate General Tesauro righdy pointed out in his Opinion, ‘the provisions of Community law which require an individual to possess the “nationality” of a Member State as a prerequisite for their application must be understood as referring to the national law of the State whose nationality serves as the basis of the right relied upon’. ( 9 )
Second, once it has thus been established that a person's status is determined by the law of the State to which he belongs and, consequently, that it is the authorities of that State which have the power to certify that status, the determinations made by those authorities must be accepted uniformly in all the Member States and cannot be the subject of differing assessments. ( 10 )
8.
As I see it, although the Micheletti judgment concerns status avitatis, there are good reasons for taking the view that the considerations set out by the Court in that case may be applied by analogy to this case. In providing that ‘Member States shall grant to the persons referred to in Article 1 the right to enter their territory merely on production of a valid identity card or passport’ Article 3 of Directive 73/148 takes account of a fundamental requirement for the effective realization of the integration process: ( 11 ) Community citizens may move freely, taking with them all the elements needed to identify them as subjects, as persons, and which are certified in the documents relating to their civil status. They must therefore be able to rely on the documents issued to them by the competent authorities of their country of origin. That is why — again, of course, for the limited purposes of the exercise of the rights guaranteed under Community law — recognition must be accorded to the principle of the uniformity of a person's civil status; he must be able to ‘move’ within the Community precisely as he is individualized by that status, that is to say with the relationships that are determined on the basis of age, sex, status avitatis, and so on. Only in that way can citizens effectively exercise freedom of movement, now established — by design — as a right of citizenship of the Union, throughout the entire territory of the Community.
In this case — as the Commission has rightly pointed out — the proper functioning of the system established by Regulation No 1408/71 is necessarily based on implicit reference to the national legal systems in regard to all those elements that are needed in order to determine the rights of workers and, consequently, on reference to the documents concerning status which are issued to the person in question by the authorities vested with the power of certification. In other words, those aspects of personal status that affect the acquisition or exercise of a right under Community law are not governed direcdy by the Community legal order but are implicidy and of necessity a matter for the legal system of the particular Member State that determines the status of the person concerned. A court or administrative authority of a Member State that is called upon to consider a case concerning an aspect of a person's status that is governed by the law of another Member State may not therefore disregard the facts as determined by the authority vested, under that law, with the power to bring about, with respect to the aspect of status in point, a special form of legal certainty and cause it to have effect in legal relations.
9.
At the hearing the Commission conceded that determining a person's age is a question of status but ruled out the possibility of extending to this case the principle laid down in Micheletti in regard to citizenship. To be more precise, the Commission acknowledges that it is a matter for the State of which the person concerned is a national to determine and certify status. It adds that the authorities of the host Member State are ‘normally’ required not to challenge that certification but considers that those authorities may disregard the content of the document ‘in cases of doubt’. According to the Commission, that is precisely the case of Mrs Dafeki who did not ask for rectification of her age until shortly before she applied for early retirement benefit. That — according to the Commission — provides grounds for more than mere suspicion.
That is a view which, to be frank, I find baffling. In my opinion, if there are doubts concerning the scope and effectiveness of the new birth certificate produced by Mrs Dafeki, the only avenue open to the administrative and judicial authorities of the State concerned is to have recourse to the arrangements for cooperation provided for by Article 84 of Regulation No 1408/71 and seek the requisite clarification from their counterparts in the country in which the document in question was issued. If the latter confirm that the certificate in question was indeed issued by the competent authority and produces legal certainty as regards the age of the person concerned, that aspect may no longer be called in question.
In other words, the national court must confine itself to verifying that the certificate was issued by the competent authorities and produces, within the legal system relied upon by the person concerned, the requisite effects of legal certainty as regards his age; it cannot hold the content of such certificates to be unreliable, citing its freedom under its national law to evaluate evidence. Once the certificates have been issued by the competent authorities of the State concerned, the principle of good faith and mutual trust which has, pursuant to Article 5 of the Treaty, to inform relations between the authorities of the different Member States, means that the accuracy and reliability of the data certified may not be challenged.
The opposite approach would be hard to reconcile ‘with the need to ensure a relationship of trust and scrupulous cooperation between authorities and institutions in the Member States’; the importance of the latter principle was rightly pointed out by Advocate General Gulmann in the Paletta case. ( 12 ) The Court held in that case that ‘the competent institution ... is bound in fact and in law by the medical findings made by the institution of the place of residence or temporary residence concerning the commencement and duration of the incapacity for work, when it does not have the person concerned examined by a doctor of its choice, as it may do under Article 18(5)’. ( 13 ) It is true that that case was covered by a specific provision of Regulation No 574/72. ( 14 ) However, as the Advocate General rightly pointed out, that was a problem that involved a fundamental principle: ‘namely that there should be scrupulous cooperation between the institutions in the Member States, built on mutual trust (see in this regard Article 84 of Regulation No 1408/71, in conjunction with Article 5 of the EEC Treaty) and that the authorities in one Member State must recognize the correctness of certificates issued by the authorities in other Member States ...’. ( 15 )
10.
In my view, the solution to this case follows from the above considerations. Once it is accepted that the question of Mrs Dafeki's age is governed by Greek law and that the Greek authorities are vested with the power of certification, it necessarily follows that those same authorities are also vested with the consequential power to rectify the document they have issued. Reference to national law covers not only the initial determinations but also any subsequent amendments to them. The power to rectify and the power to certify are of the same legal nature. It is not possible to recognize the one and deny the other.
It therefore follows that both the German social security institution and the national court are bound by the content of the administrative and judicial documents issued by the competent Greek authorities relating to the status of Mrs Dafeki. This is because it is for those authorities alone to establish once and for all and erga omnes Mrs Dafeki's age, so far as concerns the exercise of rights arising out of Community law.
11.
The rectification has therefore to be accorded the same value as is attached to it in the legal system of the State of origin. The German Government has contended that the rectification requested and obtained by Mrs Dafeki is not valid in Greek law for the purpose of obtaining social security benefits; ( 16 ) consequently, were that possibility to be accepted in Germany, it would produce the absurd result of according a foreign certificate greater value than is attached to it under the law of its State of origin. I too agree that the rectified document must be accorded an effect which is neither greater nor lesser than that which it produces in the legal system under which it was drawn up. It is then for the national court, which has to adjudicate on the substance of the case, to ascertain what that effect is and determine, in particular, whether what is concerned is a document that creates legal certainty such that its contents must be held to be binding. It is for the national court to inquire whether this is so. The Court of Justice can only indicate to that court the principle to be applied. As I have said, that principle is to the effect that reference must be made to the competent legal system, and exclusively, let it be said, as regards that aspect of personal status upon which, in this case, the recognition by the German authorities of a right guaranteed under Community law depends. The national court will have to ascertain whether the certificate submitted by Mrs Dafeki in Germany constitutes proof under Greek law that she has reached the age of 60 years. Whether the social security institution in the country of origin might, under the law of that country, require other documents to be submitted or further formalities to be completed for pension purposes is a question that does not fall within the ambit of the proceedings now before the Court.
12.
It must next be said that the case before the Court does not in any way touch, as the Commission appears to think, upon the thorny problem of the automatic recognition of judgments. The Commission has stated that if the German social security institution were to accord to the rectification of Mrs Dafeki's age the same value as is accorded to it in Greece, this would in fact be tantamount to the mutual recognition of judgments in matters of civil status. According to the Commission, the Court's case-law, particularly the Mund & Fester case, ( 17 ) shows that such recognition may be accorded only on the basis of the appropriate international agreements; in this case Germany and Greece are not bound by any instrument of public international law in the field in question.
We have, however, to consider what are the circumstances in the present case. In the first place, Mrs Dafeki submitted to the German institution a rectified birth certificate and not a judgment. According to the order for reference, the decision of the Athens court merely constituted the authority for making that rectification.
That aside, even if one were willing to contemplate the hypothesis that Mrs Dafeki had produced only the judgment rectifying her birth certificate, I do not consider that this in itself would mean that there was any question of automatic recognition of judgments in the absence of an appropriate agreement. Mrs Dafeki's request does not seek to have the Greek judgment enforced in Germany, that is to say to establish in German law the legal situation brought about by that judgment, but to exercise a right for which that legal situation (as actually produced) forms the prerequisite. In other words, the judgment is not in this case to be considered in terms of its significance as a judicial decision; it is the findings to which that judgment gives specific effect that have to be taken into account by the German authorities. The reason for this, as I have already explained, is that for the purposes in point here the question of status is governed by the law of the State to which the person concerned belongs. That being so, Mrs Dafeki's age as established by judicial decision in her own country constitutes, for the German authorities, a determination already made and given concrete form by the only authorities empowered to do so. The situation would be different were Mrs Dafeki to seek to avail herself of the foreign judgment from the point of view of its significance as a judicial decision, as would, for example, be the case if she were primarily applying to have her age as rectified entered in the German registers of civil status. In that case, in the absence of appropriate international agreements on the automatic recognition of such judgments, there would have in fact to be an examination of the foreign judgment or other equivalent procedure under German law.
13.
In conclusion, I do not find that this case discloses any prohibited discrimination of the kind envisaged by the national court. German public documents are not the same as Greek public documents. It is therefore not possible to extend to the latter the same probative value as that accorded to the former under German procedural law. None the less, both the social security institution and the national court have a duty to take into account documents relating to civil status issued to the person concerned by the competent authorities of his country of origin. More specifically, they must accord to those documents the same value as that attributed to them under the legal system under which they were drawn up. It is then for the administrative authority and the court to evaluate the significance and effects of the document under that legal system. Should the authorities of a Member State have doubts concerning the legality or effect of the document, they must consult their counterparts in the other Member State and ask them to provide the necessary clarification.
Conclusion
14.
The reply to the question referred to the Court by the Sozialgericht Hamburg should therefore be:
In proceedings concerning entitlement to social security benefits, German social security institutions and courts are not free to disregard the content of documents relating to civil status that determine or rectify particulars of a Community citizen's civil status and have been issued to the person concerned by the competent authorities of their country of origin. Those institutions and courts must accord to those certificates the same value as that attached to them under the legal system of that country.
( *1 ) Original language: Italian.
( 1 ) Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons ana their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).
( 2 ) See Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5; Case 45/76 Cornel v Produktschap [1976] ECR 2043, paragraph 13; as well as Case 68/79 Hans Just US v Danish Ministry for Fiscal Affairs [1980] ECR 501; Case 61/79 Amministrazione delle Finanze dello Stato v Denkaoä Italiana [1980] ECR 1205; Case 811/79 Amministrazione delle Finanze dello Stato v Ariete [1980] ECR 2545; Case 826/79 Amministrazione delle Finanze dello Stato v M1RECO [1980] ECR 2559; see also Case 199/82 Amministrazione delie Finanze dello Stato v Giorgio [1983] ECR 3595, paragraph 12.
( 3 ) See the judgments cited in footnote 2 above.
( 4 ) Case C-369/90 Micheletti and Others y Delegación del Gobierno en Cantabria [1992] ECR I-4239.
( 5 ) See paragraph 10.
( 6 ) See paragraph 12 (my italics).
( 7 ) Council Directive of 21 May 1973 on the abolition of restrictions on movements and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14).
( 8 ) Case C-369/90 (cited in footnote 4 above), paragraphs 13 and 14.
( 9 ) See Opinion at page I-4254.
( 10 ) Confirmation of the considerations so far set out is to be found in the judgment in Case C-168/91 Konstantmiais [1993] ECR I-1191. The issue in that case was whether it was compatible with Community law for a Member State to enter the name of a Greek citizen in its own registers using a system of transliteration that had the effect of substantially altering the name of the person concerned. The Court's negative answer to that question was essentially based on the consideration that that transliteration exposed the Greek citizen ‘to the risk that potential clients may confuse him with other persons’ (paragraph 16). That case clearly differed from the present case. The Court did, however, take account of the need for the citizen to be able to move in the Community with the name accorded him in his country of origin. In that case too, therefore, the Court confirmed the principle that an individual has to be treated ‘as the person he is’ with all of the personal attributes that distinguish him in the legal system of his country of origin.
( 11 ) We find that same approach in Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (Official Journal, English Special Edition 1968, p. 485). Article 3(1) of the directive provides: ‘Member States shall allow the persons referred to in Article 1 to enter their territory simply on production of a valid identity card or passport’. Article 4(1) then goes on to provide: ‘Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3’.
( 12 ) Case C-45/90 Paletu and Others v Brennet [1992] ECR I-3423. Sec Opinion at page I-3453.
( 13 ) See paragraph 28.
( 14 ) Council Reguládon (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of sodai security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159).
( 15 ) Sec Opinion at page I-3456.
( 16 ) It need hardly be mentioned that the assumption on which the German Government bases its argument — namely that the rectification obtained by Mrs Dafeki is of limited probative value in Greece — was discussed at the hearing but was in no way substantiated and would in fact appear to have been denied by the Greek Government, both in its written reply to the question put to it on this subject by the Court ana in its oral argument. That point is, in any event, completely irrelevant for the purposes of a decision by the Court, which is not required to rule on the substance of the main proceedings. It will be for the national court to evaluate the effect that has to be accorded to the certificates in question under the legal system under which they were issued.
( 17 ) Case C-398/92 Mund & Fester v Hatrex International Transport [1994] ECR I-467.
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