C-78/72

JUDGMENT OF THE COURT 16 MAY 1973 1

L'Étoile-Syndicat général v W. E. de Waal

(preliminary ruling requested by Arrondissementsrechtbank Breda)

Case 78/72

1. Social security for migrant workers — Payments due under the legislation of a Member State for damage suffered in the territory of another State — Subrogation of the institution liable — Direct right vis-à-vis the third party responsible — Content of the right (Regulation of the Council No 3, Article 52)

2. Social Security for migrant workers — Payments due under the legislation of a Member State for damage suffered in the territory of another State — Subrogation of the institution liable — Right to compensation governed by the rules in force in the State where the damage is suffered (Regulation of the Council No 3, Article 52)

W. E. DE WAAL, resident at Bergen op Zoom (Netherlands),

on the interpretation of Article 52 of Regulation No 3 of the Council of the European Communities concerning social security for migrant workers,

THE COURT

composed of: R. Lecourt, President, R. Monaco (Rapporteur) and P. Pesca­ tore, Presidents of Chambers, A. M. Donner, H. Kutscher, C. Ó Dalaigh and M. Sørensen, Judges,

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

gives the following

third party responsible to the extent of rules of common law allow his legal rights against that third party.' dependants to make against the party On the basis of these provisions L'Étoile responsible, the question arises asked the District Court of Breda, by a whether the extent of the liability of summons dated 28 August 1968, to the Belgian insurance company has order Mr W. E. de Waal, who was to be determined according to found wholly to blame, to refund the Belgian law or according to the common law of the Netherlands. amounts already paid to the dependants of the assured and in addition the Considering that there thus arose a amounts still to be paid to them. In problem concerning the interpretation of support of its plea it also invoked Article Article 52 (b) of the said Regulation, the 52 of Regulation No 3 of the Council, District Court, by its judgment dated 28 which reads: November 1972, lodged with the 'If a person benefiting from payments Registry of the Court on 4 December under the legislation of a Member State 1972, decided to suspend the for damage suffered in the territory of proceedings and, under Article 177 of another State has the right, in the the EEC Treaty, to refer the following territoriy of that other State, to claim question to the Court of Justice: compensation from a third party for that 'Is the effect of the direct application of damage, any rights which the institution Article 52 of Regulation No 3 that, for liable to pay the benefits may have the purpose of determining the right against the third party shall be governed as follows: against the third party referred to at letter (b) of this Article, the rules of (a) where the institution liable is common law applicable in the country subrogated, under the legislation which has created the right must be applicable to it, to the rights of the taken into account?' beneficiary in relation to a third party, each Member State shall 2. The Insurance Company known as recognize such subrogation; L'Étoile-Syndicat général, represented by (b) where the institution liable has a L. J. Den Hollander of Middelharnis, Mr direct right against the third party, W. E. de Waal, represented by J. H. each Member State shall recognize Lely, advocate at The Hague, and the that right. The application of these Commission of the European Com­ provisions shall be a matter for munities, represented by its legal adviser bi-lateral agreements.' Robert C. Fischer, acting as agent, made written observations under Article 20 of Mr de Waal contested the view that the the Protocol on the Statute of the Court applicant had an autonomous right of of Justice. action, within the meaning of the abovementioned Article 52, and asked On the report of the Judge-Rapporteur, the Court to reject the application. and upon hearing the Advocate-General, Guided by the decisions of the Court of the Court decided to open oral Justice on Article 52 of Regulation No 3, proceedings without any preparatory the District Court of Breda ruled that: inquiry.

II — Observations submitted subrogation or a direct right of action in under Article 20 of the his favour against the third party Protocol on the Statute of responsible, any impediment to the the Court exercise of those rights in the other Member States whose national The observations submitted under legislation does or does not recognize Article 20 of the Protocol on the Statute one or other of those two rights. of the Court may be summarised as follows: This being the purpose of Article 52, that provision in no way modifies the scope of the liability or responsibility of the third party responsible.

The amount security institution belongs would have which in this case l'Étoile is liable to pay unacceptable consequences, since this the party concerned and which it can legislation would vary according to the recover from the third party responsible, nationality of the social security is that determined by Belgian law on institution. accidents at work. After also recalling the decisions of the In reliance of the decisions of the Court, Court in these matters, Mr de Waal l'Étoile submits that since the submits that the question raised should recognition of the direct right of action be answered in the negative. by 52 (b) is not subject to any restriction, there is no question that in this case it has the right to claim C — Observations submitted by the reimbursement directly of the amount Commission of the European paid to the party concerned as calculated Communities by the Belgian judge (the judge of peace of the canton of Ekeren).

raised to read as follows: of the direct right of action of the social security institution. The sole purpose of 'Is the content of the right, vested by the this Article is to prevent, in those cases legislation of a Member State in an where the national legislation of the institution liable for payment of benefits, social security insurer provides a to bring an action against a third party

Grounds of judgment

1 By decision of 28 November 1972, lodged at the Registry of the Court on 4 December 1972, the District Court of Breda under Article 177 of the EEC Treaty raised the question whether, in order to determine the substantive content of the direct right against the third party responsible for damage, referred to in Article 52 of Regulation No 3 of the Council, it is correct to apply the rules of the Member State under which this right is invoked.

2 By Article 52 of Regulation No 3 of the Council:

'If a person benefiting from payment under the legislation of a Member State for damage suffered in the territory of another State, has the right, in the territory of that other State, to claim compensation from a third party for that damage, any rights which the institution liable to pay the benefits may have against the third party shall be governed as follows:...

(b) where the institution liable has a direct right against the third party, each Member State shall recognize that right.'

JUDGMENT OF 16. 5. 1973 — CASE 78/72

8 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before a national court, the decision on costs is a matter for that Court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur: Upon hearing the oral observations of the parties to the main action and of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General;

L'ÉTOILE — SYNDICAT GÉNÉRAL v DE WAAL

Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers; Having regard to the Protocol on the Statute of the Court of Justice of the European Communities, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

Registrar President

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 7 MAY 1973 1

Mr President, Mr Melsen, a Dutch citizen resident in Members of the Court, the Netherlands, was employed in Belgium and was insured, inter alia, It is necessary to know the following against accidents under Belgian social facts in connection with the reference for insurance law with the plaintiff in the a preliminary ruling with which we are main action. On 16 September 1965, in concerned today. the Netherlands, while on his way to his

1 — Translated from the German.