C-18/70

JUDGMENT OF THE COURT (FIRST CHAMBER) 16 JUNE 1971<apnote>1</apnote>

Anne Duraffour

v Council of the European Communities

Case 18/70

Summary

1. Officials — Accident insurance — Obligation of the institution — Substitution of an insurer — Limits

1. Whilst, in the absence or the rules 2. The exclusion of suicide from cover provided by Article 73 of the Staff against the risk of accident is com­ Regulations, an institution is entitled, patible with the terms of Article 73 on a provisional basis, to take out a of the Staff Regulations. 3. So long as it is not established that policy determining the risks covered, the death is due to a cause ruling since the rights and obligations of the institution and of its servants are in out suicide, the benefits are not pay­ able. Where the death took place with­ this case provisionally determined by out witnesses, it is enough that the Article 73 in conjunction with the accidental nature of the event can be said policy, it cannot however be deduced from sufficiently weighty, accepted that the obligation of an clear and uncontradictory circum­ insurer may be substituted for the stantial evidence which is not contra­ direct obligation of the institution dicted by contrary circumstantial evi­ under Article 73 of the Staff Regula­ dence. The appointing authority tions, thus depriving the beneficiaries must cooperate with the servant in­ of their particular legal rights guaran­ sured or with those claiming under teed by the Staff Regulations. him in order to discover the truth.

In Case 18/70

ANNE DURAFFOUR, acting on her own behalf and as a legal guardian of her infant children, Sylvie, Pascale, Jean-Patrice, Renaud and Pierre Roland, widow of Paul Roland, in his lifetime an official of the Council of the

1 — Language of the Case: French.

JUDGMENT OF 16. 6. 1971 — CASE 18/70

THE COURT (First Chamber)

composed of: A. M. Dormer, President of Chamber, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges,

Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

‘I reported (the) disappearance (of my temporary incapacity is the exclusive brother) . . . on 21 February 1969. and direct result of an accident My brother had disappeared twenty- covered by this policy.' four hours previously from the resid­ 3. On 15 January 1970, the applicant ence of my father at 60 rue Président- submitted a request for the lump sum Herriot. I would mention that my payable in the event of death under brother had been receiving treatment Article 73 of the Staff Regulations to at the Champert Clinic for some days. the General Secretariat of the Council Yesterday he said that he was going of Ministers of the European Communi­ to get some medicines. My father ties. followed him to the staircase and In a letter of 10 April 1970, the Secre­ from the time he reached the bottom tary-General pointed out that the Coun­ of the stairs he has not seen him. cil could not pay the lump sum requested I think that my brother was the victim since no proof had been given by the of an irrational impulse.' applicant that the death was of an acci­ 2. Article 73 or the Staff Regulations dental nature. According to that letter provides: the insurers of the collective-individual An official is, from the date of his policy had refused payment since, in entry into the service, insured against their opinion, suicide was proved. the risk of occupational disease or 4. The applicant appealed to the Court accidents in the manner provided for of Justice on 14 May 1970. By a letter in rules drawn up by common agree­ of 18 November 1970 the Court put to ment of the Institutions of the Com­ the parties three questions seeking their munities after consulting the Staff observations on the legal relationships Regulations Committee. He shall con­ between the parties and the insurer as tribute to the cost of insuring against they appear from the insurance policy non-occupational risks up to 0.1% of taken out by the Council of the Euro­ his basic salary.' pean Communities on 30 June 1961. The second paragraph of Article 73(1) 5. Upon hearing the report of the Judge- provides in particular that such rules Rapporteur and the views of the Ad­ shall specify which risks are not covered. vocate-General, the First Chamber of The benefits payable in the event of the Court decided that no preparatory death comprise the payment of a lump inquiry was necessary. sum equal to five times the deceased's Two questions were put to the defendant annual basic salary. in a letter of 12 February 1971 to which Since the rules provided for by the it replied in a letter of 24 February Staff Regulations have not yet been 1971. adopted, the Council of the European The parties presented oral argument at Communities has, as a provisional meas­ the hearing on 31 March 1971. The ure, taken out with a consortium of Advocate-General delivered his opinion private insurance companies a so-called at the hearing on 4 May 1971. 'collective-individual' accident policy ('Individuelle-Collective'), which covers II — Conclusions of the 'all accidents' which may happen to parties servants of the institution, but Article 4 B (d) of the General Conditions ex­ The applicant claims that the Court cludes suicide. Moreover Article 8 of should:

— vary the implied decision of 1. Mr Roland had been on sick leave rejection and, in so far as is for some months at the time of his necessary, the express decision death, of rejection of 10 April 1970; 2. Mr Roland had left a psychiatric in­ — declare that the applicant has stitution a few days before his death, a right to the payment of the 3. The friends and relations or Mr lump sum provided for cases Roland did not dare allow him out of death by Article 73 (2)(a) on his own. of the Staff Regulations for In this case, reserve the costs. herself and for her five infant children; — order, in so far as it may be III — Summary of the argu­ necessary, the General Secre­ ments of the parties tariat of the Council of the European Communities to pay The arguments and the submissions of the abovementioned lump sum the parties may be summarized as fol­ in the event of death together lows: with interest as provided by 1. The foundation of the claim and the law; legal relationships between the de­ (b) order the defendant to bear all the costs. fendant, the insurers and the appli­ cant 5. Secondly: Take notice that the applicant offers The applicant maintains that the claim to prove by all legal means, in par­ is based solely on Article 73 of the Staff ticular by witnesses or by expert opi­ Regulations and it is according to this nion, that the death of her husband provision alone that it must be decided. was due to accidental causes.' The insurance policy taken out by the defendant should not enter into the The defendant contends that the Court should: case and cannot govern the rights of servants arising under Article 73 of the 1. Declare that the application is ad­ Staff Regulations, because missible. — the risks covered by the policy and 2. Declare it to be unfounded. those covered by Article 73 are dif­ 3. Rule that the additional request to ferent; be permitted to offer proof is not — the staff insured are in no way parties admissible because it is too vague to the contract signed by the Coun­ and, if appropriate, so far as is neces­ cil. There is no legal connexion be­ sary, reserve to the defendant the tween the insurers and the staff right to formulate any appropriate since: request particularly as regards proof. (a) the contract is made directly be­ In any event order the applicant to tween the insurance companies bear the costs.' and the Council without the par­ The defendant also contends in its re­ ticipation of the staff insured; joinder that the Court should: (to; the premiums are payable by the In the first place Council to the insurers; Declare the application to be unfounded (c) the compensation is payable to the and dismiss it; policyholder and not the insured Make an appropriate order as to costs; (Special Conditions, Article 7); Secondly (d) the individual contribution or the Before giving judgment, authorize the staff insured in respect of non- defendant to bring proof by all legal occupational accidents provided means, including witnesses, that: for by Article 73 of the Staff

Regulations is paid by the official In her oral observations, the applicant directly to the Council and not stated, moreover, that the lack of rules to the insurance companies; provided for in Article 73 does not have — the policy itself cannot create any the effect of depriving officials of the obligations on the part of the insurer right of action deriving from this pro in respect of the applicant, since this vision. policy is governed in all respects by The defendant replies that as it has not contractual provisions and it is not yet been possible to issue the rules pro possible to link it to any national vided for by Article 73, which must, law which would give direct rights inter alia, specify which risks are not to the beneficiary or which would covered, for lack of accord between the allow him to bring an action before institutions, the Council of Ministers, the national courts; in order none the less to comply with — the applicant observes that even if, its obligations under Article 73, had for the interpretation of the policy, covered the risk of accidents in respect it were necessary to refer to a na of its officials by taking out an insurance tional law which in this case could policy for their benefit. only be Belgian law, it would have Thus whilst the Staff Regulations were to be stated that since, in cases of incomplete for lack of the common rules, accident, that law does not recognize they were completed by resorting to a direct action by the victim against provisions governed by private law.

The reasons for term but was rather within the category this are as follows: of group insurance which is to be found (i) Article 73 (2) of the Regulations in relations between employers and em indicates the extent of the benefits ployees: the employer thereby promises payable to members of the staff. the wage-earner certain social security The policy taken out by the de benefits in case of death or sickness, fendant corresponds exactly to those etc. and covers the financial obligations benefits (Article 9 of the General arising from this undertaking by an in Conditions) in respect of the sums surance policy for which he pays the payable in case of accident.

JUDGMENT OF 16. 6. 1971 — CASE 18/70

neither Mr Roland, nor for that accepted by the applicant, as was shown matter any other servant, contested above, it necessarily follows that: their content. Thus, for example, (a) the applicant has no right of action the restriction on the use of motor­ for payment against the defendant cycles of more than 125 c.c. refer­ but solely against the insurers; the red to in the applicant's supple­ application should therefore be dis­ mentary note (page 3) resulting missed; from Article 2 (c) of the special (b) the applicant can have no rights over conditions of the policy (page 16) and above those conferred by the had been brought to the notice of policy. officials (page 7 in fine of Staff Notice No 12/68 ). 2. As to the concept of accident. (ii) The policy conditions conform both The applicant maintains that death was to the general principles of law and caused by drowning which of its nature to what should have been and what constitutes an accident for the purpose will, without doubt, be the rules of Article 73 of the Staff Regulations. issued in implementation of Article The defendant observes that its con­ 73 of the Regulations. clusions on this point are merely of a Indeed the terms used in Article 73 subsidiary nature and argues that even are appropriate to insurance termin­ if one accepts the applicant's view that ology and indicate that in order to Article 73 alone is to be taken into con­ assess the extent of the obligations sideration it does not follow that the insured by the Council, reference action is well founded. must be made to the general prin­ The aim of Article 73 is to cover the risk

(iii) The policy conditions were brought given in the insurance policy may at to the attention of all servants by least be taken into consideration in inter­ Staff Notices Nos 13/66 and 12/68 preting Article 73, an interpretation (Schedules 1 and 2 to the rejoinder) which is all the more necessary as it and so the defendant maintains that was given in tempore non suspecto. one may regard the conditions of The applicant replies that the concept the insurance policy taken out as of 'accident' should be defined in re­ being provisionally part of the Staff lation to Article 73 of the Staff Regula­ Regulations. tions and not with regard to Article 1 As to the manner in which the policy of the policy. operates, the defendant states that it is The applicant maintains that there is an not a group insurance but a collective accident when an external and sudden insurance for the benefit of third parties occurrence has the effect of either trig­ which in the final analysis is a contract gering off an illness or some sort of for the benefit of third parties made by trouble, or of revealing or aggravating an the policyholder in favour of its staff. illness which existed previously. Even if If the policy is a part or the Staff Regu­ the victim's morbid predisposition was lations as a temporary means of imple­ proved this would not constitute grounds menting Article 73 and if the contract For excluding or weakening the rules laid for the benefit of third parties had been down by law.

DURAFFOUR v COUNCIL

3. Burden of proof an insured (if this was so the burden of The applicant observes that from its proof would be on the insurer) but a arguments and from the subsidiary case where the risk is not covered. arguments of the defendant arises the 4. The circumstances of the death problem of the burden of proving suicide. The applicant maintains that the refusal If the proposed definition of the con to pay out the sum insured can only be cept of 'accident' is accepted, the sud supported by the declaration made to the den and violent action of an external police by the brother of the deceased on force on the person who is subject to it 3 April 1969. This declaration states that (in this case submersion in water) would Mr Paul Roland had been receiving treat be the necessary and sufficient pre ment for some days in a neurological condition giving rise to the right to the clinic in Lyon. The applicant states that lump sum in case of death, irrespective emotion probably caused the haste with of whether this sudden and violent which the brother of the deceased action was intended or fortuitous. thought it possible to deduce that Mr In any case once the defendant maintains Roland had been 'probably the victim of that the text of Article 73 of the Regula an irrational impulse' without giving tions excludes an intended cause of acci details, however, whether this impulse dent and only applies to a fortuitous had really led him to take his own life or cause of accident, it thereby becomes the merely to go for a dangerous walk on applicant and must therefore bear the the banks of the Rhône from which he burden of proving its contention. never returned. The defendant replies that both under Such a declaration is not sufficient to the policy (Article 8) and under the establish suicide.

accident known to her. She says that on dictory evidence. If, apart from evidence the evening of 20 February 1969 the de on an accident, there is also evidence to ceased left the home of his parents, ask the contrary, then a doubt exists and the ing his mother to prepare the evening burden of proof is not discharged. meal; the night was very cold and the

Grounds of judgment

1 Mr Paul Roland, an official at the Secretariat of the Council of Ministers of the European Communities, died from drowning in the Rhone during the month of February 1969.

2 His widow, the applicant, acting on her own behalf and as legal guardian to her infant children, requested in a letter of 15 January 1970 to the Secretary General of the Council of Ministers, the grant of the benefits provided for by Article 73 of the Staff Regulations for those persons entitled upon the death of an official from a non-occupational accident.

3 Since the Council refused to grant this request, the applicant brought an action before the Court of Justice pursuant to Article 91 of the Staff Regula­ tions for an order that the Council should pay the sums in question.

DURAFFOUR v COUNCIL

4 (a) Article 73 (1) provides:

9 It is said that the action should therefore be dismissed in so far as it is directed against the Council.

10 The applicant on the other hand maintains that her rights are granted directly by Article 73 and that therefore the Council is indebted to her.

11 Article 73 of the Staff Regulations concerns the social security of officials and lays down the reciprocal rights and obligations of the institutions and of their servants.

12 In order to ensure as far as possible the compliance with its obligations and in the absence of other possibilities the Council was entitled to resort to pro­ visional measures and to take out a policy fixing the conditions under which risks are covered.

JUDGMENT OF 16. 6. 1971 — CASE 18/70

13 In addition by its Staff Notice of 11 July 1966 the defendant informed its staff of the provisions of this policy which provisionally laid down the condi­ tions under which the benefits provided for in Article 73 would be guaranteed.

20 In addition the policy does not cover the risk of drowning unless it is involuntary.

21 The exclusion from the policy of suicide because of its non-accidental nature is in conformity with general practice as regards the cover against the risk of accident and is compatible with the terms of Article 73.

22 Therefore such an event does not give rise to the right to the benefits pay­ able under this provision.

23 (c) The parties have not reached agreement on whether the death was caused by the suicide of the victim.

24 Therefore it should be decided how and by whom the circumstances of the death must be proved.

25 Article 73 is silent as to this.

31 In addition it is for the defendant institution, as the appointing authority, to cooperate with those claiming under one of its servants in order to discover the truth.

32 The applicant put forword a series of facts tending on the one hand to estab­ lish that suicide by drowning was improbable in view of the personality of her husband and on the other hand to prove that the deceased did not suffer from a grave psychiatric disorder such as to lead him to attempt to take his own life.

33 The defendant on the other hand offered to prove the psychiatric disorder of the deceased which would make the theory of his suicide highly probable and even certain.

34 By virtue of Article 21 of the Protocol on the Statute of the Court of Justice and of Articles 47, 49 and 60 of the Rules of Procedure the Court may require the parties to provide information or may order the verification of certain facts.

JUDGMENT OF 16. 6. 1971 — CASE 18/70

35 Therefore, before the Court makes any further decision, the applicant should be allowed to give particulars in writing of the facts which she intends to establish and the means of proving them, whilst reserving the right of the defendant to produce evidence in support of its own contentions with the right for both parties to bring contrary evidence being reserved.

I. The date on which the applicant will give particulars of the facts which she offers to prove and indicate for each one the method of proof on which she intends to rely shall be fixed as 15 July 1971;

2. The Court will give a ruling fixing the date by which the defendant shall produce the evidence to be supplied by it;

3. The costs are reserved.

Donner Monaco Mertens de Wilmars

Delivered in open court in Luxembourg on 16 June 1971.

A. M. Dormer A. Van Houtte President of the First Chamber Registrar