JUDGMENT OF 14. 2. 1980 — CASE 53/79 O.N.P.T.S. v DAMIANI

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

THE COURT (Third Chamber) composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III — Oral procedure

Decision

Costs

I —. Facts and procedure

1. Article 45 (1) and (4) of Regulation No 574/72 of the Council of 21 March 1972 is worded as follows:

2. On 10 February 1975 Fioravante Damiani, who had been an underground mine worker in Belgium, submitted a claim for a 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 latter, having investigated the case and obtained all the information necessary for the purpose of fixing the pension, acknowledged Mr Damiani's entitlement to a full mineworker's pension. It informed him, however, that the pension could be paid to him only subject to the deduction of the Italian invalidity pension which he was receiving and that a decision would be taken as soon as the amount of that pension was known following a request for information sent by the O.N.P.T.S. for that purpose to the Istituto Nazionale della Previdenza Sociale [National Social Welfare Institution].

3. On 25 March 1976, as the O.N.P.T.S. had still not adopted a formal decision concerning him, Mr Damiani brought proceedings before the Tribunal du Travail [Labour Tribunal], Mons, for recognition of his entitlement to a retirement pension. The Tribunal du Travail, Mons, recognized that Mr Damiani was entitled to the pension he requested but held that it could be paid only subject to deduction of the Italian pension and by judgment of 26 November 1976 it rejected the action as being without foundation.

4. In its judgment of 13 January 1978 the Cour du Travail, Mons, ruled that the decision of the O.N.P.T.S. of 16 May 1977 granting the benefits on a provisional basis had rendered the applicant's claim for the adoption of that measure purposeless. It nevertheless upheld the subsidiary claim and ordered the O.N.P.T.S. to pay interest at a rate to be fixed by the court, to run from 25 March 1976, the date of the lodging of the application, on the sums payable to Mr Damiani on a provisional basis.

5. The O.N.P.T.S. lodged an appeal on a point of law against that judgment relying on the following three grounds :

6. With regard to the first ground of appeal put forward by the O.N.P.T.S. the Cour de Cassation held that the matter before it raised a question of the interpretation of Community law on which, pursuant to Article 177 of the Treaty, the Court of Justice alone has power to deliver a preliminary ruling.

7. The order from the national court was received at the Court Registry on 9 April 1979.

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

(1). Does Article 45 (4) of Regulation No 574/72 prevent proceedings being brought before a national court against the refusal of a social security institution to effect the payment of benefits on a provisional basis for which provision is made in Article 45 (1) or against delay in making such payment?

(2). If such proceedings are possible, can they lead to the award to the insured person of interest at a rate to be fixed by the court on the amounts payable?

III —. Oral procedure

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 Salariés (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 abovementioned regulation.

3. Article 45 (1) of Regulation No 574/72 provides that:

4. The question which has been asked by the Cour de Cassation is as follows :

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 1 77 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.

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:

1 The arguments are summarized in the section headed Facts and procedure above.