C-103/81

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 4 MARCH 1982 ( ) Mr President, Members of the Court, The applicant in the proceedings with which we are concerned today is an official of the European Parliament. On 25 May 1977 she was the victim of a road-traffic accident as a result of which she suffered various injuries (contusions and lacerations of the knees, contusions of the left elbow and left hip, subluxation of the cervical vertebra and loss of part of a tooth). She was unfit for work for three weeks. On 1 July 1977 she signed a form according to which her rights of redress against the other party to the accident were to be assigned to the Communities to the extent of the benefits paid by them, arising out of the accident, under Articles 72, 73 and 75 of the Staff Regulations of Officials. This subrogation was at the time provided for in Article 8 of the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease. Since Regulation No 912/78 (Official Journal L 119, 3. 5. 1978, p. 1) entered into force, subrogation has been governed by Article 73 (4) of the Staff Regulations themselves. None the less, in the proceedings instituted before the Luxembourg courts against the other party to the accident, the applicant, without informing the Parliament, claimed compensation for pain and suffering and impairment of her bodily health as well as reimbursement of medical expenses. The Luxembourg court commissioned a medical expert, Dr Neuen to determine the amount of her claim. After examining the applicant in November 1978, in his report of 13 February 1979 he assessed the nonmaterial damage in respect of pain and suffering at BFR 15000. However, since in his view there were no real functional sequelae, there was no partial permanent invalidity, and accordingly the applicant was only entitled, regard being had to the temporary consequences of her injuries and minor permanent effects, to the sum of BFR 50000 by way of compensation for the adverse effect on her bodily health. These sums were apparently paid to the applicant by the insurers of the other party to the accident. Since the applicant, like all officials of the Communities, is insured against accidents of every kind under Article 73 of the Staff Regulations in conjunction with the Rules which I have already mentioned, an examination was also effected in the context of this insurance in regard to the consequences of the accident. The Parliament's medical officer came to the conclusion in October 1979 that the ascertainable results of the accident had brought about a partial permanent invalidity of 6%. The applicant was informed of this in a letter dated 16 January 1980 from the Head of the Social Affairs Division. In the same letter she was asked whether she accepted the resulting sum of BFR 292582 by way of compensation and whether she had received compensation from the insurers for the other party to the accident. By letter of 4 February 1980 the applicant notified her agreement and in addition indicated that she had not received any compensation in respect of invalidity from “the opposite party” but only “un dédommagement pour douleurs endurées et atteinte à l'intégrité physique” [compensation for pain and suffering and the adverse effect on her bodily health]. The administration of the Parliament learned in June 1980 through its own insurers and the insurers of the other party to the accident, what compensation she had received from that party, and the Head of the Social Affairs Division then informed the applicant in a letter dated 24 July 1980 that he had given instructions that she should only receive the sum of BFR 242582, since it had been necessary to deduct from the firstmentioned sum of BFR 292582 the damages which had been paid to the applicant by the insurers of the other party to the accident in respect of the adverse effect on her'bodily health. On 2 October 1980 the applicant lodged a formal complaint against this decision. She contended that the deduction was unjustified on the ground that there had been no subrogation in favour of the Communities as she had not received from the insurers of the other party to the accident any compensation for partial permanent invalidity but only for the adverse effect on her bodily health. Her complaint was rejected by a decision dated 29 January 1981 and the applicant then brought the matter before the Court, claiming the annulment of the decision of 24 July 1980 and an order for the payment to her by the Parliament of BFR 50000 together with interest at the rate of 6% per annum from 24 July 1980. The Parliament considers these claims to be unfounded. My own views are as follows: 1.  The first matter to take into consideration is the Court's judgment in Case 152/77 ( ) as it was discussed in the proceedings and played a particularly important part in the arguments put forward by the Parliament. That case, too, was concerned with the application of Article. 73 of the Staff Regulations and the grant of an allowance in respect of the consequences of an accident. On the one hand it is stated in that judgment that Article 73 is to be interpreted, not by reference to provisions in the laws of the Member States in this field but only, as it were, as an independent provision. Thus it is clear that the applicant cannot succeed under her second submission in which she argues that the application of Article 73 in the contested decision is not compatible with the legal principles common to the Member States which, according to her, provided the basis for that article, as a provision of Community law. On the other hand, however, for the purposes of this case, that judgment also provides, valuable clarification of concepts which are material in the context of Article 73. In my opinion, I pointed to certain factors to be derived from national laws, and also referred to a definition in Regulation No 574/72 (Official Journal, English Special Edition 1972 (I), p. 159) relating to the law concerning social security for migrant workers, and I finally made it clear that a certain relationship to employment is established not only in Article 73 (because the. insurance contribution and the insurance benefit are related to the basic salan' of the official concerned), but that the scale in the Rules implementing Article 73 is also plainly based on capacity for gainful employment. After I had delivered that opinion, the Court decided that it must be recognized that the degree of incapacity for work is of no significance for the purposes of Article 73 and that compensation is granted irrespective of the capacity to resume work. It also found, however, that the term “invalidity” within the meaning of thai provision must in principle be construed as referring to physical or mental damage which has the effect of rendering the person concerned “totallv or partially unable to lead a normal active life” (paragraph 10 of the decision). It follows that the allowance in respect of invalidity must first and foremov. w regarded as compensation for what rr.i.st be deemed to be material damage, even if that damage is not linked or not directly linked to a financial loss. It also follows that there is no merit in the argument put forward by the Parliament, in its view sustainable on the basis of the abovementioned judgment, to the effect that invalidity refers solely to an adverse effect on bodily health and has nothing to do with incapacity for work. It is therefore necessary to proceed on the basis that the allowance which is granted, under Article 12 of the Rules, in the case of partial permanent invalidity, constitutes compensation for impairment of earning capacity. Further support for this is to be found in Article 14 of the Rules which also provides — by analogous application of the scale referred to in Article 12 — for compensation in the case of the mere adverse effect on bodily health, which does not affect capacity for work, if the injury has a genuinely disadvantageous effect on social relations. 2.  The main question in the case is whether the Parliament was right to claim subrogation in respect of the compensation which the applicant received from the insurers for the other party to the accident. Since Regulation No 912/78 entered into force, this assumption of rights has been governed by Article 73 (4) of the Staff Regulations which reads as follows: “Within the limits of the obligations devolving upon them under Articles 72, 73 and 75, the Communities shall automatically assume the rights of redress of the official or of those entitled under him against the third party responsible for an accident involving the death or injury of an official or a person covered by his insurance.” Previously, this matter was covered by Article 8 of the Rules, which provided: “The benefits and allowances, and also the reimbursement of medical expenses provided for in these Rules shall be paid to an official or to those entitled under him only on condition that they subrogate the Communities to their rights and proceedings against any responsible third party up to the amount of such benefits, allowances and reimbursement.” It is plain from the wording and from the purpose of the Rules (the avoidance of a duplication of benefits for the same injury) that the assignment of rights of redress covers only benefits akin to those paid by the employer of the injured party on account of the accident in question pursuant to Article 73 of the Staff Regulations and its implementing Rules. According to the applicant the benefits concerned in the present case are not of this nature. She claims that the compensation paid by the insurers of the other parry to the accident on the basis of an expert's repon called for in the context of proceedings before a Luxembourg tribunal is compensation for nonmaterial damage in the broadest sense of the term and not — as in the case of the allowance in respect of invalidity under Article 73 of the Staff Regulations — for impairment of eamine capacity. In suppon of her point of view she also refers to a “note d'information” of 18 February 1980 issued by the Head of the Directorate-General for Administration of the Parliament. That note makes clear, in regard to the question of subrogation in the case of accident that an injured official may directly bring a claim for indemnity against a responsible third pany inasmuch as specific material damage, such as damage to clothing or to a motorcar or damages for pain and suffering and nonmaterial damage are concerned. The Parliament's view, on the other hand, is that where compensation is paid by the insurers of the other party to the accident or an allowance is granted by the Parliament, in both cases the sums in question relate merely to the adverse effect on bodily health. Accordingly the Parliament rightly deducted the compensation when paying the allowance. (a) No contribution to the solution of this problem is to be. gained from the Parliament's reference to the definition of “accident” contained in Article 2 of the Rules which is worded as follows: “An accident means any occurrence or external factor of a sudden, violent or abnormal nature adversely affecting an official's bodily or menul health.” As I have already pointed out in my opinion in Case 152/77, in relation to an analogous argument, this provision only gives a definition of the concept of “accident” and in so doing naturally focuses on the adverse effect on bodily or mental health but without giving any reason why the benefit payable under Article 73 is provided ([1979] ECR 2850). Reliance on this definition thus cannot constitute proof that allowances granted as the result of accidents are paid only in respect of the adverse effect on bodily health. (b) The first point of importance for the purposes of this case is how, in the light of the matters which have come to our knowledge, the compensationgranted in the proceedings before the Luxembourg court is to be classified. It is of course obvious that in this connection Luxembourg law is a decisive factor. According to that law, if I understand it correctly, there is invalidity where there is a “perte ou une entrave dans les moyens d'action” (“loss or limitation of the possibilities of activity”) and invalidity is assessed according to the degree of reduction of capacity for work. On the other hand loss of income is irrelevant (Thiry, “Actions et Recours des Assurances Sociales devant des Juridictions Répressives”, p. 114). On the basis of that legal situation and because there are no “functional sequelae properly so called” the expert expressly stated that there could be no question of a partial permanent invalidity. The fact that none the lessane considered the sum of BFR 50000 to be appropriate compensation for “temporary traumatic consequences and minor long-term sequelae” (slight occipital neuralgia and scars sensitive to the weather and sligthly disfiguring, in the patellar region of her left knee), this can only be, so the applicant thinks, compensation for nonmaterial damage in the wider sense. (c) If, on the other hand, it is asked how the allowance granted by the Parliament must be classified, then, after all that has emerged in the course of the proceedings, the only matter which falls for consideration is that of subrogation under Article 8 of the Rules. An important factor in this regard is that in his declaration covering the consequences of the accident, the medical officer bluntly states: “L'invalidité est de 6%” (“the state of invalidity is 6o/o”). Even the Parliament's representative could only state, in answer to a question put to him by the Court in the course of the oral procedure, that an invalidity allowance had been granted. Similarly, nothing in the letter of 16 January 1980 from the Head of the Social Affairs Division which gives the result of the examination and mentions a “partial permanent invalidity of 6%” indicates that the resulting sum could have been determined by analogous application of the rates laid down in the invalidity scale referred to in Article 12 of the Rules, that is to say, on the basis of Article 14 of the Rules. We must therefore proceed on the basis that the allowance paid by the Parliament was granted in respect of an — albeit slight — reduction of earning capacity, that is to say, that the allowance was for material and not for nonmaterial damage. (d) The conclusion to be drawn from this is clear and compelling. Since the Parliament was unable to show that the requirements for subrogation — the similarity between the allowance paid by the Parliament and the compensation paid by the insurers of the other party to the accident in the context of the proceedings before the Luxembourg court — existed, it wrongly deducted the compensation. The contested decision must therefore be annulled and it must be declared that the applicant is entitled to receive from the Parliament the payment of the full amount of compensation in the sum of BFR 292582. 3.  In addition, her claim for interest on the difference from the time of the deduction appears to me to be well founded. In this regard we need not feel compelled to follow the case-law which has developed on the specific subject of compensation for accidents and according to which the determinant factor is whether the delay in payment must be regarded as a wrongful act or omission (Case 152/77) or whether the pavment was improperly dehyed [Case 156/80 ( ) and Case 186/8C ( )]. It is clear from the particular facts in these cases, and from Case 115/76 ( ) that the question at issue was whether the procedure relating to invalidity payments was conducted with sufficient expedition and, if that was not the case, who bears the responsibility for the fact that the degree of invalidity was not determined in good time after the consequences of the accident were fully established, thus giving rise to the duty of payment. In this case, however, the only problem is that of the legality of the deduction of the sum paid by the insurers of the responsible third party from the allowance granted by the Parliament so that it seems appropriate to refer to the case-law on a similar problem, relating to widows' and orphans' pensions due as a result of accident (Joined Cases 63 and 64/79). ( ) If in those cases, following a finding that a deduction was unlawful, interest was awarded as from the time of deduction, we should proceed in the same way in this case, that is to say, just as in Case 185/80 ( ) in which the issue was the payment of the expatriation allowance and award default interest in order to place the applicant in the position in which she would have been had the full amount of the allowance been paid to her in good time. 4.  I therefore propose that the application should be granted, that the decision of 2 July 1980 should be annulled and that the Parliament should be ordered to pay the sum of BFR 50000, together with interest at the rate of 6% per annum as from 24 July 1980. In view of that result, the Parliament must also bear the costs of the proceedings. ( ) Translated from the Germin. ( ) Judgment of 2 October 1979 in Case 152/77 B v Commmwn [1979] ECR 2819 ( ) Judgment of 21 Mav 1981 in Calf 156/80 Morbtlii v Commission (1981) ĖCR 1357. ( ) Judgment of 14 July 1981 in Case 186/80 Suss v Commission [1981] ECR 2041. ( ) Judgment of 16 March 1978 in Case 115/76 Leonardini v Commission [1978] ECR 735. ( ) Judgment of 16 October 1980 in Joined Cases 63 and 64/79 Bollard, net Herter, and Bollard v Commission [1980] ECR 2975. ( ) Judgment of 2 Julv 1981 in Case 185/80 Garganne v Commmwr, [1981] ECR 1785.