1. 

I must first examine a number of objections which have been made by the O.N.P.T.S. as to the admissibility or usefulness of the request for a preliminary ruling.

2. 

In relation to that question, which I now propose to examine, one must first consider whether the benefits payable under Article 45 (1) of Regulation No 574/72 are actionable, for that is a prerequisite for any award of interest at a rate to be fixed by the court.

This the O.N.P.T.S. appears to doubt, on the ground that Article 45 (4) mentions that the measures to be adopted under paragraph (1) thereof are of a provisional nature and are not subject to appeal.

In my opinion, however, the Commission and the claimant are correct in rejecting this argument. A logical interpretation of that provision can only be reached if the whole scheme of the regulation is taken into account, if the sense and purpose of the whole of Article 45 is considered and if, in addition to that, attention is also given to general principles of law which are important to legal relationships such as these.

It is quite clear that in cases where the laws of more than one Member State govern entitlement to social security and insurance institutions in several Member States must be actively involved, the final settlement of claims to benefits may in some circumstances require a considerable amount of time. On the other hand, too long a waiting period should not be imposed on the person making the claim, who is normally in urgent need of such benefits. That is why — as the claimant has rightly pointed out — various provisions in Regulation No 574/22 (apart from Article 45, Articles 41 and 50) impose a duty on the institutions involved to expedite their inquiries. Thus, Article 45 (1) requires in particular the immediate payment of benefits which may be granted even though the case is not yet completely defined — that is to say, benefits to which entitlement exists under the law administered by the investigating institution “without having recourse to insurance periods completed under the legislation of other Member States”. That provision makes it clear that there is, in this respect, no question of administrative discretion, but a duty to provide benefits on a provisional basis. This is supported by the precision of the wording: it identifies the institution which must grant the benefits, the time for payment (“immediately”, once the necessary facts have been established) and the amount to be paid. That is shown in the wording of this provision by the use of the imperative, often employed in legislative provisions. It is to the same effect that Article 45 (4) expressly refers to the institution required to pay benefits. But if Article 45 (1) clearly concerns a duty, which naturally corresponds to a right on the part of the recipient of the benefits, then — even if there is no express mention in the Community regulation of a right of appeal — it must be assumed that such a right exists. This brings into play in fact the general maxim that in principle, whenever a legislative provision affords a right, there must also exist the possibility of ensuring its effective enforcement.

It would therefore not be permissible to conclude from the above-quoted portion of Article 45 (4) (“the measure taken ...is not open to appeal”) that the possibility of an appeal is totally excluded, even when the right under paragraph (1) is not satisfied, or is satisfied only after a delay; in -other words, if the provision is incorrectly applied. That kind of provision, which runs counter to the general legal maxim referred to above, calls for a narrow interpretation. That means that it is relevant exclusively in relation to the provisional nature of measures which are actually adopted, and which may be taken without the required investigations being properly completed. Thus, in any event Article 45 (4) must be taken to mean that, because the provisional measures may not prejudice the final outcome, it excludes any legal dispute which touches on the substance of questions concerning which no actionable measure has yet been taken.

In so far as the question referred to the Court by the Cour de Cassation includes the subsidiary question whether in the event of a misapplication of Article 45 (1) of Regulation No 574/72 it is possible to bring legal proceedings which are the condition precedent for the award of interest by the court, the answer must quite clearly be in the affirmative. We do not need to concern ourselves further with how the right of appeal is viewed in domestic law. That is a matter for the national courts which may, in the absence of special rules, rely on general principles of constitutional law or proceed by way of analogy.

3. 

As to the problem of whether Article 45 of Regulation No 574/72 excludes the possibility, where payment of provisional benefits is not made immediately and on that basis legal proceedings are instituted in the national courts, that interest may be awarded by the court under national law from the date on which the appeal was lodged, it must be admitted that Community law says nothing directly to the point.

As the Commission has rightly remarked that is not, however, decisive in itself. What is relevant is that Community law confers an actionable right to provisional benefits. The necessary legal protection of that right must be guaranteed by the national courts, so that national law is important in organizing such protection and must be responsible for ensuring its effectiveness. That may include the grant of interest by the court to compensate for loss of purchasing power in the case of delayed benefits. It must therefore be taken as settled that the award of interest by the court in the context of Article 45 of Regulation No 574/72 conforms to national law, that the regulation in no way precludes it and that in fact the award of such interest represents no more than the most effective application of the Community regulation.

In that context the Commission rightly referred to the judgment in Case 35/74 O'udgment of 12 November 1974, Alliance Nationale des Mutualités Chrétiennes and Institut National d'Assurance Maladie-Invalidité v Thomas Rzepa [1974] ECR 1241) which concerned Article 34 (3) of Regulation No 4 (which was replaced by Regulation No 574/72). With respect to the similar problem of the expiry of the period of limitation in the case of repayments of advances it was explained there that in the present state of the law the question must be settled by national social security law.

As to the argument of the O.N.P.T.S., on the other hand, that neither the Royal Decree of 24 October 1967 nor the implementing provisions relating thereto contemplates the award of interest by that court, and its doubts as to whether Article 1153 of. the Belgian Civil Code is applicable to duties other than those governed by civil law, they are no more pertinent than the assertion that Article 45 (4) of Regulation No 574/72 can be taken to mean that in any case no alteration in the amount of the provisional benefits can be achieved by taking legal action. It should be noted here that in the context of proceedings under Article 177 it is not for this Court to debate questions of national law. We may content ourselves with declaring that at all events Community law does not preclude the award of interest by the Court, and leave all other details to the national court which is competent to decide what opportunities for this are provided by its legal order. Moreover, the construction placed by the O.N.P.T.S. upon Article 45 (4) appears to be too restrictive. In my opinion the exclusion of the right of appeal does not mean that in legal proceedings the proper application of Article 45 (1) cannot be discussed. Once it is accepted that there is a right of appeal in this wider sense, however, then that right clearly covers the question on what date the duty to pay benefits under that provision arises and whether the disadvantage to the claimant arising from any misapplication may be compensated for by remedies afforded by national law, which include the award of interest by the court.

4. 

In my opinion the question which has been referred to the Court must therefore be answered to the effect that Article 45 (4) of Regulation No 574/72 does not preclude a national court, in which proceedings have been instituted on the ground of failure to perform duties under Article 45 (1) correctly, from ordering the defendant social security institution to pay interest under national law at a rate to be fixed by the court on the benefits which it must pay on a provisional basis.