Opinion of Mr Advocate General Reischl delivered on 4 March 1982. # Liliane Chaumont-Barthel v European Parliament. # Official - Subrogation. # Case 103/81.

1. 

The first matter to take into consideration is the Court's judgment in Case 152/77 ( 2 ) 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.

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 ( 3 ) and Case 186/8C ( 4 )]. It is clear from the particular facts in these cases, and from Case 115/76 ( 5 ) 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). ( 6 ) 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 ( 7 ) 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.