C-53/79

FlORAVANTE DAMIANI

on the interpretation of Article 45 (1) and (4) of Regulation (EEC) N o 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),

T H E C O U R T (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

I — Facts and p r o c e d u r e to him only subject to the deduction of the Italian invalidity pension which he was receiving and that a decision would 1. Article 45 (1) and (4) of Regulation be taken as soon as the amount of that No 574/72 of the Council of 21 March pension was known following a request 1972 is worded as follows: for information sent by the O.N.P.T.S. for that purpose to the Istituto Nazionale della Previdenza Sociale " 1 . If the investigating institution [National Social Welfare Institution]. establishes that the claimant is entitled to benefits under the legislation which it administers 3. On 25 March 1976, as the without having recourse to insurance O.N.P.T.S. had still not adopted a periods or periods of residence formal decision concerning him, Mr completed under the legislation of Damiani brought proceedings before the other Member States, it shall pay Tribunal du Travail [Labour Tribunal], such benefits immediately on a pro- Mons, for recognition of his entitlement visional basis. 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 4. The institution required to pay paid only subject to deduction of the benefits under paragraphs (1), (2) or Italian pension and by judgment of 26 (3) shall forthwith inform the November 1976 it rejected the action as claimant of the fact, drawing his being without foundation. attention explicitly to the provisional On 28 January 1977 Mr Damiani nature of the measure taken and to appealed against that judgment to the the fact that it is not open to Cour du Travail [Labour Court], Mons. appeal". Following that appeal the O.N.P.T.S. notified Mr Damiani on 16 May 1977 of 2. On 10 February 1975 Fioravante its decision granting him, on a pro- Damiani, who had been an underground visional basis, a pension of Bfr 159 420 mine worker in Belgium, submitted a as from 1 March 1975. In the decision it claim for a retirement pension to the was stated that as the decision was pro- Office National des Pensions pour visional no appeal could be lodged Travailleurs Salariés [National Workers' against it pursuant to Article 45 (4) of Pensions Office] (hereinafter referred to the said Regulation No 574/72 of the as "the O.N.P.T.S."). The latter, having Council. investigated the case and obtained all the That decision led Mr Damiani to lodge a information necessary for the purpose subsidiary claim with the Cour du of fixing the pension, acknowledged Travail for payment of interest at a rate Mr Damiani's entitlement to a full to be fixed by the court on the sums mineworker's pension. It informed him, payable from the date on ' which his however, that the pension could be paid entitlement to a pension was recognized.

4. In its judgment of 13 January 1978 5. The O.N.P.T.S. lodged an appeal on the Cour du Travail, Mons, ruled that a point of law against that judgment the decision of the O.N.P.T.S. of 16 relying on the following three grounds : 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 (1) Article 45 (4) of Regulation No the O.N.P.T.S. to pay interest at a rate 574/72 provides that the decision to be fixed by the court, to run from taken by the investigating institution 25 March 1976, the date of the lodging to pay immediately social security of the application, on the sums payable benefits o n . a provisional basis to Mr Damiani on a provisional basis. pursuant to Article 45 (1) of the regulation is not open to appeal. Therefore the labour courts cannot order the institution to pay a pension on a provisional basis pursuant to The judgment is based on Article 45 (1) that provision nor, consequently, can of Regulation No 574/72 which requires they order the institution to pay the investigating institution, if it interest at the legal rate fixed by the establishes that the claimant is entitled to court on the amount of such a benefits under the legislation which it pension. administers without having recourse to insurance periods or periods of residence completed under the legislation of other Member States, to pay such benefits (2) The O.N.P.T.S. denies that Article immediately on a provisional basis. 45 (1) of Regulation No 574/72 is According to the judgment that provision applicable to the present facts. requires the authority to take a measure Immediate payment on a provisional recognizing entitlement, in which matter basis by the investigating institution it has no discretion. Consequently the as laid down by that provision court may take the place of the presupposes that the person administrative authority and the person concerned is entitled to benefits concerned may lodge an appeal in under the legislation administered by accordance with Articles 92 and 93 of the institution. That condition is not the Belgian Constitution which entrust satisfied here. In view of the Italian the courts with the task of protecting the invalidity pension paid to him Mr citizen against arbitrary administrative Damiani is not entitled to benefits measures. Although under Article 45 (4) under Belgian law. The O.N.P.T.S. of Regulation No 574/72 the content of refers in this respect to Article 25 of the measure is not open to appeal the the Belgian Royal Decree N o 50 of same does not apply where no measure 24 October 1967, as amended by has been taken. The person concerned Article 10 of the Law of 27 July may apply to the courts against such a 1971, under which failure to adopt a measure. From that the court deduces the power to deliver a declaratory judgment pursuant to Article 45 (1) of Regulation No 574/72 and, "save in cases and subject to applying rules of Belgian law, to order conditions determined by the King, the payment of interest at a rate to be the retirement pension and survivor's fixed by the court on the amount of the pension are payable only if the benefits granted on a provisional basis. claimant does not pursue a pro-

6. With regard to the first ground of 7. The order from the national court appeal put forward by the O.N.P.T.S. was received at the Court Registry on the Cour de Cassation held that the 9 April 1979. matter before it raised a question of the interpretation of Community law on Pursuant to Article 20 of the Protocol on which, pursuant to Article 177 of the the Statute of the Court of Justice of Treaty, the Court of Justice alone has the EEC written observations were power to deliver a preliminary ruling. submitted by Mr Damiani, represented by Daniele Rossini, a trade union official, the O.N.P.T.S., represented By judgment of 19 March 1979 the Cour by its Director, R. Massin, and de Cassation (Third Chamber) therefore the Commission of the European decided to stay the proceedings and to Communities, represented by its Legal refer the following question to the Court Adviser, Jean Amphoux, acting as Agent. of Justice: By order of 19 September 1979 the case "Where the investigating institution was assigned to the Second Chamber. referred to in Article 45 (1) of Regu- Pursuant to the Transitional Provisions lation (EEC) No 574/72 of the Council relating to assignment of cases to of the European Communities of 21 Chambers adopted by the Court at its March 1972 fixing the procedure for meeting on 9 October 1979 (Official implementing Regulation (EEC) No Journal C 265, p. 9) the case was 1408/71 on the application of social assigned to the Third Chamber. security schemes to employed persons and their families moving within the On hearing the report of the Judge- Community establishes that the claimant Rapporteur and the views of the

In conclusion, Mr Damiani proposes that II — W r i t t e n o b s e r v a t i o n s s u b - the following answer should be given to mitted p u r s u a n t to Article the question asked: 20 of t h e P r o t o c o l on t h e S t a t u t e of t h e C o u r t of "Article 45 (4) of Regulation N o 574/72 J u s t i c e of t h e E E C does not prevent a migrant worker who is claiming a pension from applying to A — Mr Damiani observes first that in the judicial authorities to enforce his contrast to, for example, the Italian pension rights if the competent authority provisions Belgian legislation does not fails to apply the provisions of Article 45 expressly provide for the possibility of an (1)· appeal against the failure of the administration to take a decision. None That provision does not prevent the the less, Articles 92 and 93 of the Belgian court before which the matter is brought Constitution entrust to the judicial auth- from granting interest at a rate to be orities the task of protecting individuals fixed by it on the amount if the benefits against arbitrary administrative measures. paid on a provisional basis if they are While it is true that the relevant payable in application of national law". Community regulations contain no provision for penalties against negligent institutions, the fact remains that B — In the view if the O.N.P.T.S. the pursuant to Articles 41 (1) and 50 of question asked by the Cour de Cassation Regulation No 574/72 the competent is inopportune. The O.N.P.T.S. recalls institutions are obliged to take all the that it relied on three arguments before necessary steps to accelerate as much as the Cour de Cassation '. It takes the view possible the investigation of claims for that the reference to the Court of pensions and the award of benefits. Justice, on the basis of its first argument, will serve no purpose if one or other of Whilst Article 45 (4) of Regulation No the second and third arguments is 574/72 does not make provision for accepted. The Cour de Cassation has not appeal against provisional decisions there examined the latter arguments. Further- is nothing to prevent the claimant of a more, the question asked is based on a pension, faced with inertia on the part of mistaken legal assessment in so far as it the administrative authority, from appears to suggest that Article 45 (1) of bringing an action before the courts to the regulation is of mandatory enforce his rights. application in the present case and that pursuant to national law interest at a rate Interest at a rate to be fixed by the court, to be fixed by the court is payable, which in so far as it is intended to compensate is not the case. the insured person for the loss suffered by him by virtue of the belated payment of the benefits to which he is entitled In any event, Article 45 (1) and (4) of (resulting in particular from the subs- the regulation does not relate to the tantial reduction in the purchasing power of the money from the day on which the 1 — The arguments are summarized in the section headed benefit applied for should have been "Facts and procedure" above.

payment of interest at a rate to be fixed fixed by the court on the amounts by the court. Article 45 (4) in fact payable? provides that the provisional measure is not open to appeal. In consequence the claimant cannot apply to the courts to change the amount awarded on a pro- Regarding the first question the visional basis by the competent Commission argues that, taken in institution. That signifies ipso facto that isolation, Article 45 (4) could be read as no damages are payable during the excluding any possibility of proceedings course of judicial proceedings and before the courts against decisions to be interest at a rate to be fixed by the court taken by social security institutions in cannot be awarded. Furthermore, no implementing Article 45. In the provision of Community law or national Commission's view, however, that inter- law lays down the possibility for a pretation should not be upheld. The claimant to bring proceedings before a expression "not open to appeal" should court directly against the investigating be read in conjunction with the passage institution for either a final decision or concerning the provisional nature of the interim measures. measure. Anicie 45 (4) means only that there should be no judicial involvement, following the decision regarding The O.N.P.T.S. therefore claims that the payment of benefits on a provisional Court should "rule that the payment of basis, in the determination of the final interest at a rate to be fixed by the court position of the person concerned with to persons covered by a social security regard to his entitlement to benefits. scheme is a question of national law which only the national courts can decide. Consequently the provisions of On the other hand, that provision does Article 45 (1) and (4) of Regulation No not prejudice proceedings which may be 574/72 are not relevant". brought against the incorrect application of Article 45, particularly in cases of refusal to award benefits or delay therein or of provisional payment of amounts C — In its written observations the which are not proportionate to the Commission examines the following two benefits payable. Any other interpret- questions : ation would place a false construction upon the mandatory nature of the provisions of Article 45 and the (1) Does Article 45 (4) of Regulation requirements ensuing from its nature as a No 574/72 prevent proceedings regulation pursuant to Article 189 of the being brought before a national EEC Treaty, in particular the direct court against the refusal of a social effects which it must have in the internal security institution to effect the legal order of the Member States. payment of benefits on a provisional basis for which provision is made in Article 45 (1) or against delay in making such payment? Regarding the question whether the proceedings which may be brought by the insured person before the competent national courts if the benefits payable (2) If such proceedings are possible, can under Article 45 of Regulation No they lead to the award to the insured 574/72 are not paid or are paid belatedly person of interest at a rate to be may concern the award of interest at a

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 above-mentioned regulation.

O.N.P.T.S. v DAMIANI

3 Article 45 (1) of Regulation N o 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 :

JUDGMENT OF 14. 2. 1980 — CASE 53/79

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.

On those grounds,

T H E C O U R T (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.

Kutscher Mertens de Wilmars Mackenzie Stuart

Delivered in open court in Luxembourg on 14 February 1980.