Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

According to Article 36 of Regulation No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation 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), as amended by Regulation No 878/73 of 26 March 1973 (Official Journal 1973 L 86, p. 1) in order to receive benefits under Articles 14 and 51 of the Regulation (that is to say, invalidity benefits) ... the person concerned shall submit a claim to the institution of the place of residence in accordance with the procedure provided for by the legislation administered by that institution. According to paragraph (4) of that provision A claim for benefits sent to the institution of one Member State shall... involve the concurrent award of benefits under the legislation of all the Member States in question whose conditions the claimant satisfies .... According to Article 41 of that regulation Claims for benefit shall be investigated by the institution... to which they have been sent or forwarded in accordance with Article 36 of the Implementing Regulation. Article 41 (2) provides that:

Further, Article 45 of that Regulation requires the investigating institution, if it 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, to pay such benefits immediately on a provisional basis. Finally, Article 45 (4) provides as follows :

The claimant in the main action is an Italian citizen residing in Belgium. After being in employment for some time in Italy he worked as a miner in Belgium from 1948 onwards. Since February 1961 he has been drawing an Italian invalidity pension. In addition, he received a miner's invalidity pension as from 1961 and a pension in respect of occupational disease from January 1972, both under Belgian law.

On 10 February 1975 he submitted a claim for a miner's retirement pension to the Office National des Pensions pour Travailleurs Salariés [National Workers' Pensions Office] (hereinafter referred to as the O.N.P.T.S.), the defendant in the original proceedings. He was subsequently informed that his claim was acknowledged in full but that the pension could only be paid subject to deduction of the Italian invalidity pension. A decision would be taken thereon as soon as the amount of the Italian pension was known. As there was a delay in issuing the formal decision the claimant brought proceedings on 25 March 1976 before the Tribunal du Travail [Labour Tribunal], Mons, for recognition of his entitlement to a retirement pension. Although his entitlement was recognized the action was rejected in a judgment of 26 November 1976 as being without foundation, on the ground that payment of the miner's pension could only be made after deduction of the Italian pension.

Thereupon the claimant appealed in January 1977 to the Cour du Travail [Labour Court], Mons. While those proceedings were in progress he was informed of a decision of the O.N.P.T.S., in May 1977, according to which he was to receive as from 1 March 1975 a provisional pension — apparently amounting to the difference between the full Belgian pension and the Italian invalidity pension. At the time it was expressly stated that no appeal could be lodged against that decision pursuant to Article 45 (4) of Regulation No 574/72. In the light of that decision the claimant altered his appeal and lodged a claim for payment by the O.N.P.T.S. of interest at a rate to be fixed by the court as from the date on which his entitlement was recognized. The outcome of the appeal was a judgment dated 13 January 1978 in which it was held that in the event of a failure to adopt a measure under Article 45 (1) of Regulation No 574/72 an appeal was allowable in principle, because that provision gave rise to a duty to pay benefits immediately on a provisional basis from such time as the competent institution had at its disposal all the necessary information. In that respect the court might take the place of the administrative authority even if the content of the measure adopted under Article 45 (4) could not form the subjectmatter of legal proceedings. The appeal was, however, declared to be without foundation, so far as a decision as to the duty to pay was concerned, on account of the decision adopted on 16 May 1977. However, the appellate court went on to hold that because Article 45 (1) of Regulation No 574/72 provides for immediate payment, in view of the delay in producing a decision to that effect the claimant was entitled'to receive interest at a rate to be fixed by the court according to Belgian law. The interest was to be paid on the amount of the benefits granted on a provisional basis, but only from the date on which the appeal was lodged, that is, 25 March 1976.

The O.N.P.T.S. appealed against that judgment to the Cour de Cassation. It claimed that Article 45 (1) of Regulation No 574/72 was not applicable to the claimant's case. He had no entitlement under Belgian law because of the Italian invalidity pension which had been granted to him, since Article 25 (1) of the Belgian Royal Decree No 50 of 24 October 1967 provides that:

Thus the payments made on a provisional basis pursuant to the decision of 16 May 1977 represented no more than a mere administrative concession (simple tolérance administrative). Under Belgian law there could be no question of interest in respect of such payments. Lastly, Article 45 (4) of Regulation No 574/72, mentioned above, in fact excludes the possibility of any court order to pay pensions on a provisional basis; it is therefore equally impossible for a court to order payment of interest.

By a judgment of 19 March 1979 the Cour de Cassation suspended the proceedings and referred the following question to the Court of Justice for a preliminary ruling under Article 177 :

My opinion on this question is as follows :

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.

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.

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.

1 Translated from the German.