61979J0053

1 . QUESTIONS REFERRED FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS - RELEVANCE OF THE QUESTIONS ASKED - DISCRETION - NONE

( EEC TREATY , ART . 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - PAYMENT ON A PROVISIONAL BASIS - RIGHT OF APPEAL OF THOSE CONCERNED - SCOPE

( REGULATION NO 574/72 OF THE COUNCIL , ART . 45 ( 4 ))

1 . IT SHOULD BE NOTED THAT IT IS NOT FOR THIS COURT TO PRONOUNCE ON THE EXPEDIENCY OF THE REQUEST FOR A PRELIMINARY RULING . AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY IT IS FOR THE NATIONAL COURT , WHICH IS ALONE IN HAVING A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS PUT FORWARD BY THE PARTIES , AND WHICH WILL HAVE TO GIVE JUDGMENT IN THE CASE , TO APPRECIATE , WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT , THE RELEVANCE OF THE QUESTIONS OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NECESSITY FOR A PRELIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGMENT .

2 . ARTICLE 45 ( 4 ) OF REGULATION NO 574/72 OF THE COUNCIL CANNOT BE INTERPRETED AS BEING INTENDED TO EXCLUDE ALL POSSIBILITY OF PROTECTION BY THE COURTS OF THE ENTITLEMENT TO BENEFITS ON A PROVISIONAL BASIS . THE EXPRESSION ' ' NOT OPEN TO APPEAL ' ' IN ARTICLE 45 ( 4 ), COUPLED WITH THE WORDS ' ' PROVISIONAL NATURE ' ' WHICH PRECEDE IT , MEANS ONLY THAT THE MEASURES ADOPTED BY THE COMPETENT INSTITUTIONS UNDER ARTICLE 45 ( 1 ) MAY NOT BE THE SUBJECT-MATTER OF PROCEEDINGS WHICH SEEK TO OBTAIN A DEFINITIVE SETTLEMENT OF THE PERSON ' S ENTITLEMENT TO BENEFIT . HOWEVER , ARTICLE 45 ( 4 ) DOES ALLOW A CLAIM TO BE MADE BEFORE THE APPROPRIATE NATIONAL COURTS AGAINST THE COMPETENT INSTITUTION ' S FAILURE TO PERFORM , OR DELAY IN PERFORMING , THE OBLIGATIONS IMPOSED ON IT BY ARTICLE 45 ( 1 ) AND PERMITS INTEREST ON THE AMOUNTS PAYABLE TO BE AWARDED TO THE CLAIMANT AT A RATE TO BE FIXED BY THE COURT IN ACCORDANCE WITH THE PROVISIONS OF NATIONAL LAW AS A RESULT OF SUCH PROCEEDINGS .

IN CASE 53/79

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE BELGIAN COUR DE CASSATION ( COURT OF CASSATION ) ( THIRD CHAMBER ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES

AND

FIORAVANTE DAMIANI

ON THE INTERPRETATION OF ARTICLE 45 ( 1 ) AND ( 4 ) OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 160 ),

1 BY A JUDGMENT OF 19 MARCH 1979 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 9 APRIL 1979 , THE BELGIAN COUR DE CASSATION ( COURT OF CASSATION ) REQUESTED THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY ON A QUESTION CONCERNING THE INTERPRETATION OF ARTICLE 45 ( 1 ) AND ( 4 ) OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 1 ), P . 159 ).

2 THE QUESTION WAS RAISED IN THE COURSE OF LITIGATION BETWEEN A WORKER CLAIMING PENSION PAYMENTS AND THE OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( O.N.P.T.S .), THE ISSUE BEING WHETHER INTEREST AT A RATE TO BE FIXED BY THE COURT IS PAYABLE UNDER NATIONAL LAW ON THE AMOUNT OF BENEFITS PAYABLE ON A PROVISIONAL BASIS UNDER ARTICLE 45 ( 1 ) AND ( 4 ) OF THE ABOVE-MENTIONED REGULATION .

3 ARTICLE 45 ( 1 ) OF REGULATION NO 574/72 PROVIDES THAT :

' ' IF THE INVESTIGATING INSTITUTION ESTABLISHES THAT THE CLAIMANT IS ENTITLED TO BENEFITS UNDER THE LEGISLATION WHICH IT ADMINISTERS WITHOUT HAVING RECOURSE TO INSURANCE PERIODS OR PERIODS OF RESIDENCE COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES , IT SHALL PAY SUCH BENEFITS IMMEDIATELY ON A PROVISIONAL BASIS ' ' .

PARAGRAPH ( 4 ) OF THAT PROVISION STATES THAT THE INSTITUTION REQUIRED TO PAY BENEFITS UNDER PARAGRAPH ( 1 ) ' ' SHALL FORTHWITH INFORM THE CLAIMANT OF THE FACT , DRAWING HIS ATTENTION EXPLICITLY TO THE PROVISIONAL NATURE OF THE MEASURE TAKEN AND TO THE FACT THAT IT IS NOT OPEN TO APPEAL ' ' .

4 THE QUESTION WHICH HAS BEEN ASKED BY THE COUR DE CASSATION IS AS FOLLOWS :

' ' WHERE THE INVESTIGATING INSTITUTION REFERRED TO IN ARTICLE 45 ( 1 ) OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ESTABLISHES THAT THE CLAIMANT IS ENTITLED TO BENEFITS UNDER THE LEGISLATION WHICH IT ADMINISTERS WITHOUT HAVING RECOURSE TO INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES AND WHERE IT DOES NOT IMMEDIATELY PAY SUCH BENEFITS ON A PROVISIONAL BASIS AND WHERE , AFTER THE CLAIMANT HAS BROUGHT PROCEEDINGS AGAINST IT BEFORE THE NATIONAL COURT HAVING JURISDICTION IN ORDER TO OBTAIN AN INTERIM DECISION , THE INVESTIGATING INSTITUTION DECIDES TO GRANT THE BENEFITS ON A PROVISIONAL BASIS AS FROM A DATE PRIOR TO THE DATE ON WHICH LEGAL PROCEEDINGS ARE BROUGHT , DO THE PROVISIONS OF ARTICLE 45 ( 1 ) AND ( 4 ) OF THE ABOVE-MENTIONED REGULATION PREVENT THE COURT BEFORE WHICH THE PROCEEDINGS ARE BROUGHT FROM GRANTING , AT THE REQUEST OF THE CLAIMANT AND IN APPLICATION OF NATIONAL LAW , INTEREST AT A RATE TO BE FIXED BY THE COURT ON THE AMOUNT OF THE BENEFITS PAYABLE ON A PROVISIONAL BASIS FROM THE DATE ON WHICH LEGAL PROCEEDINGS WERE BROUGHT?

' '

5 THE O.N.P.T.S . MAINTAINS THAT THE REQUEST FOR A PRELIMINARY RULING IS INADMISSIBLE , ALLEGING THAT THE QUESTION WHICH HAS BEEN ASKED IS ' ' INOPPORTUNE ' ' IN VIEW OF THE VARIOUS ARGUMENTS RELIED ON BEFORE THE COURT MAKING THE REFERENCE . IT SHOULD BE NOTED , HOWEVER , THAT IT IS NOT FOR THIS COURT TO PRONOUNCE ON THE EXPEDIENCY OF THE REQUEST FOR A PRELIMINARY RULING . AS REGARDS THE DIVISION OF JURISDICTION BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE TREATY IT IS FOR THE NATIONAL COURT , WHICH IS ALONE IN HAVING A DIRECT KNOWLEDGE OF THE FACTS OF THE CASE AND OF THE ARGUMENTS PUT FORWARD BY THE PARTIES , AND WHICH WILL HAVE TO GIVE JUDGMENT IN THE CASE , TO APPRECIATE , WITH FULL KNOWLEDGE OF THE MATTER BEFORE IT , THE RELEVANCE OF THE QUESTION OF LAW RAISED BY THE DISPUTE BEFORE IT AND THE NECESSITY FOR A PRELIMINARY RULING SO AS TO ENABLE IT TO GIVE JUDGMENT .

6 THE O.N.P.T.S . FURTHER MAINTAINS THAT THE EXPRESSION ' ' NOT OPEN TO APPEAL ' ' IN ARTICLE 45 ( 4 ) MEANS THAT ALL POSSIBILITY OF CHALLENGING IN THE COURTS DECISIONS WHICH MAY BE ADOPTED BY THE COMPETENT INSTITUTIONS UNDER ARTICLE 45 IS EXCLUDED . HENCE , IN PARTICULAR , IT WOULD BE A MISAPPLICATION OF ARTICLE 45 FOR A NATIONAL COURT TO AWARD TO THE PERSON ENTITLED TO BENEFITS , BY VIRTUE OF NATIONAL PROVISIONS , INTEREST AT A RATE TO BE FIXED BY THE COURT ON THE AMOUNT OF THE BENEFITS PAYABLE .

7 THE COURT CANNOT ENDORSE THAT INTERPRETATION . IT IS INCOMPATIBLE WITH THE FACT THAT PAYMENT OF BENEFITS ON A PROVISIONAL BASIS UNDER ARTICLE 45 IS OBLIGATORY IN NATURE . ARTICLE 45 ( 1 ) REQUIRES THE COMPETENT INSTITUTION , WHERE THE CONDITIONS HAVE BEEN MET , TO PAY ' ' IMMEDIATELY ' ' BENEFITS WHICH ARE DUE ON A PROVISIONAL BASIS . THE FACT THAT THE PAYMENT OF BENEFITS IS OBLIGATORY IS CONFIRMED BY ARTICLE 45 ( 4 ) WHICH REFERS TO ' ' THE INSTITUTION REQUIRED TO PAY BENEFITS UNDER PARAGRAPHS ( 1 ), ( 2 ) OR ( 3 ) ' ' . THE OBLIGATION WHICH ARTICLE 45 THUS IMPOSES ON THE COMPETENT INSTITUTIONS CORRESPONDS TO A RIGHT CONFERRED ON PERSONS COVERED BY SOCIAL SECURITY WHICH NATIONAL COURTS ARE BOUND TO SAFEGUARD .

8 ACCORDINGLY , ARTICLE 45 ( 4 ) CANNOT BE INTERPRETED AS BEING INTENDED TO EXCLUDE ALL POSSIBILITY OF PROTECTION BY THE COURTS OF THE ENTITLEMENT TO BENEFITS ON A PROVISIONAL BASIS . THE EXPRESSION ' ' NOT OPEN TO APPEAL ' ' IN ARTICLE 45 ( 4 ), COUPLED WITH THE WORDS ' ' PROVISIONAL NATURE ' ' WHICH PRECEDE IT , MEANS ONLY THAT THE MEASURES ADOPTED BY THE COMPETENT INSTITUTIONS UNDER ARTICLE 45 ( 1 ) MAY NOT BE THE SUBJECT-MATTER OF PROCEEDINGS WHICH SEEK TO OBTAIN A DEFINITIVE SETTLEMENT OF THE PERSON ' S ENTITLEMENT TO BENEFIT . HOWEVER , ARTICLE 45 ( 4 ) DOES ALLOW A CLAIM TO BE MADE BEFORE THE APPROPRIATE NATIONAL COURTS AGAINST THE COMPETENT INSTITUTION ' S FAILURE TO PERFORM , OR DELAY IN PERFORMING , THE OBLIGATIONS IMPOSED ON IT BY ARTICLE 45 ( 1 ) AND PERMITS INTEREST ON THE AMOUNTS PAYABLE TO BE AWARDED TO THE CLAIMANT AT A RATE TO BE FIXED BY THE COURT IN ACCORDANCE WITH THE PROVISIONS OF NATIONAL LAW AS A RESULT OF SUCH PROCEEDINGS .

9 THE ANSWER TO THE QUESTION REFERRED TO THE COURT MUST THEREFORE BE THAT ARTICLE 45 ( 4 ) OF REGULATION NO 574/72 DOES NOT PREVENT THE NATIONAL COURT BEFORE WHICH PROCEEDINGS ARE BROUGHT AGAINST THE FAILURE OF THE COMPETENT INSTITUTION TO FULFIL THE OBLIGATIONS IMPOSED ON IT UNDER ARTICLE 45 ( 1 ) OF THAT REGULATION FROM GRANTING THE CLAIMANT , AT HIS REQUEST AND IN APPLICATION OF NATIONAL LAW , INTEREST AT A RATE TO BE FIXED BY THE COURT ON THE AMOUNT OF THE BENEFITS PAYABLE ON A PROVISIONAL BASIS .

COSTS

10 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BELGIAN COUR DE CASSATION BY JUDGMENT OF 19 MARCH 1979 , HEREBY RULES :

ARTICLE 45 ( 4 ) OF REGULATION NO 574/72 DOES NOT PREVENT THE NATIONAL COURT BEFORE WHICH PROCEEDINGS ARE BROUGHT AGAINST THE FAILURE OF THE COMPETENT INSTITUTION TO FULFIL THE OBLIGATIONS IMPOSED ON IT UNDER ARTICLE 45 ( 1 ) OF THAT REGULATION FROM GRANTING THE CLAIMANT , AT HIS REQUEST AND IN APPLICATION OF NATIONAL LAW , INTEREST AT A RATE TO BE FIXED BY THE COURT ON THE AMOUNT OF THE BENEFITS PAYABLE ON A PROVISIONAL BASIS .