C-72/76

JUDGMENT OF THE COURT 16 FEBRUARY 1977 1

Landesversicherungsanstalt Rheinland-Pfalz v Henriette Töpfer, née Dontenwill, Jean-Pierre Weber and 'Le Phénix' insurance company (preliminary ruling requested by the French Cour de Cassation)

Case 72/76

Social security for migrant workers — Injury sustained in the territory of another Member State — Compensation — Claims against a third party — Right of the person concerned — subrogation thereto of the institution liable to pay benefits — Limits

(Regulation No 3, Article 52)

The action by subrogation which may be only the compensation to which the available, under the terms of Article 52 of victim or his legal successors are entitled Regulation No 3, to a social security under the legislation of the State in the institution in a Member State, as the territory of which the injury occurred consequence of an accident in the which corresponds to the benefits paid territory of another Member State by the institution liable to pay them, involving a person insured with such and not compensation granted for institution must be recognized on the nonmaterial damage or in respect of basis of the legislation applicable to the other items of damage of a personal institution liable to pay benefits. nature.

Jean-Pierre Weber

1 — Language of the Case: French.

JUDGMENT OF 16. 2. 1977 — CASE 72/76

LE PHÉNIX INSURANCE COMPANY

on the interpretation of Article 52 of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (JO 1958, p. 561),

THE COURT

LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ v TÖPFER

were liable to the widow at common law, extent and the apportionment between the Cour d'Appel, Colmar, held that the the institution and the insured person or action of the LVA was well founded, but his legal successors of the compensation granted the LVA the repayment of the payable by the person responsible for the sum of DM 7 765·09 only, in respect of accident, by the legislation of the State in the period between the date of Mr which the said institution is established.' Töpfer's death and the date on which he would have been entitled to an old-age Article 52 of Regulation No 3 provides pension by virtue of his age, since the that:

determines the extent of its action by subrogation, it is entitled to repayment of Implementation of these provisions shall the pension payments without any be the subject of bilateral agreements.' limitation. By a judgment of 17 June 1976, holding that a question of the The judgment of the Cour de Cassation, interpretation of a measure adopted by France, was entered at the Registry of the the institutions of the Communities had Court of Justice on 19 July 1976. been raised before it, the Cour de Cassation, France, decided to suspend In accordance with Article 20 of the judgment on the substance of the case Protocol on the Statute of the Court of and to refer the case to the Court of Justice of the EEC, written observations Justice under Article 177 of the EEC were submitted on behalf of the LVA by Treaty for a preliminary ruling on the P. Harnist, Advocate at the Cour d'Appel, question: Colmar, on behalf of Mrs Töpfer, who was receiving legal aid, by J. P. Desache, 'whether the action by subrogation which Advocate at the Conseil d'État and at the may be available, under the terms of this Cour de Cassation, on behalf of Mr article (Article 52 of Regulation No 3), to Weber and Le Phénix insurance a social security institution in a Member company by Y. Dissler, Advocate at the State following an accident in the Cour d'Appel, Colmar, and on behalf of territory of another Member State the Commission of the European involving a person insured with such Communities by its Legal Adviser, M. J. institution, is governed, as regards its Jonczy, acting as Agent.

After hearing the report of the substantive content of the right by way of Judge-Rapporteur and the views of the subrogation referred to in subparagraph Advocate-General, the Court decided to (a) of Article 52 is determined by the open the oral procedure without any rules of the legislation under which the preparatory inquiry. institution liable to pay the benefits is established. This, moreover, is expressed by Article 93 (2) of Regulation No II — Written observations sub­ 1408/71. mitted to the Court Mrs Töpfer asserts that Article 52 of The LVA points out that Article 52 lays Regulation No 3 refers to the national down a rule on conflict of laws designed legislation of the social security to enable the social security institutions institution for the purpose of deter­ of the Member States to bring actions for mining, whether, in the Member State repayment to which they are entitled where the injury was sustained, that under their national law on the territory instituion may seek to rely upon and before the courts of all the Member subrogation to the rights of the victim of States and within the framework of the the victim's legal successors, or upon the provisions which govern extra-con­ enforcement of the direct right referred tractual liability in each Member State. to in subparagraph (b). However it does This is expressed in the judgment of the not modify the system of extra- Court of 12 November 1969 (Case 27/69, contractual liability which remains Entr'aide Medicale v Assurances subject only to the rules of the national Générales [1969] ECR 405) and of 9 law. Moreover, since Article 52 speaks December 1965 (Case 44/65, Hessische simply of 'recognition' of the Knappschaft v Maison Singer et Fils subrogation, there is nothing to indicate [1965] ECR 965). that the Community legislature intended to alter the content of the rights which It cannot reasonably be accepted that the could be enforced or to separate the right rule on conflict enacted by Article 52 is of the insurance institution from that limited to the mere recognition by the which can be asserted by the beneficiary. Member States of the legal procedure for bringing an action established by another The subrogated institution may not claim Member State in favour of its social from the third party liable any payment security institutions. other than that to which the victim or

may be, in respect of the injury and the damage caused, is res judicata. The problem of the amount and the apportionment of the claim by the social Under Paragraph 1542 of the RVO, the security institution is more complicated social security institution is bringing an here than when it is a purely internal action by subrogation and not a direct matter, since the benefits were paid action in its own right, so that the person under the legislation of one Member responsible for the accident is not liable State and the extent of liability was to the social security institution beyond assessed according to the common law of the amount of the damages awarded to another Member State. the victim.

. .' (Article L 397 of the Code de whether, once the French court has fixed la Sécurité Sociale (Social Security Code)). the amount of damages by way of According to the case-law of the Cour de compensation, the portion thereof which Cassation, this definition excludes is due to the LVA by virtue of its benefits which do not compensate for subrogation must be assessed in the consequences of the accident and accordance with German legislation. which the institution would have had to pay even if the injury had not occurred The Court has given an answer to the (for example, old-age pensions). first point in its abovementioned judgment in Case 78/72, in which it held In the case of the main action, the that 'the substantive content of the direct application of German law as envisaged right referred to under letter (b) of Article by the LVA would entail for the victim's 52 of Regulation No 3 of the Council of legal successors a reduction of the the European Communities is supplementary compensation to which determined by the rules of the national they are entitled from the third party law defining the source and limits of the liable so as to obtain complete right of compensation vested in the compensation for the damage suffered.

JUDGMENT OF 16. 2. 1977 — CASE 72/76

LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ v TOPFER

Law

1 By a judgment of 17 June 1976, received at the Court Registry on 19 July 1976, the French Cour de Cassation requested the Court of Justice, on the basis of Article 177 of the EEC Treaty, to give a ruling on the interpretation of Article 52 of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (JO 1958, p. 561).

2 The main action concerns the subrogation of a German social security institution, the Landesversicherungsanstalt Rheinland-Pfalz, to the rights of the widow of a person insured with it, pursuant to Paragraph 1542 of the Reichsversicherungsordnung (German Social Security Code) which provides for the subrogation of a social security institution to the rights of a victim or of his legal successors against the third party liable to the extent of the benefits which it has paid.

3 It appears from the file that following the accident which caused the death of Mr Töpfer, a German national, on 11 September 1968 at Mulhouse, his family place of residence his widow, a French national, brought an action before the Tribunal de Grande Instance, Mulhouse, against the person liable and his insurance company, calculating the total amount of the damage which she had suffered as FF 64 986·55, from which sum she had deducted the death grant, FF 2 889·33, which had been paid to her by the French Caisse Primaire d'Assurance Maladie.

4 In her calculations, the plaintiff took into account the pension which the Landesversicherungsanstalt had been paying her since the death of her husband, and therefore claimed only the difference between the damage which the death of her husband caused her and the amount she received

FF 41 589·79

and dismissed the claim of the Landesversicherungsanstalt, intervener in the case, for repayment of the pension which it was paying to Mrs Töpfer.

6 On appeal by the Landesversicherungsanstalt against this judgment, the Cour d'Appel, Colmar, raised the amount of the compensation for the material damage suffered by Mrs Töpfer from FF 30 000 to FF 40 000, so as to enable the German institution to obtain repayment of its benefits up to the amount of DM 7 765·09.

7 The said sum represents in capital the premature pension payment, which is, however, in the nature of compensation, for which the accidental death of the insured person made the Landesversicherungsanstalt liable, since, had the accident not occurred, the Landesversicherungsanstalt would have had to pay the pension only from 21 March 1971, the date on which the victim would have reached the age of 65, his retiring age.

8 The Landesversicherungsanstalt appealed against this decision, asserting that, by means of the action by subrogation, it should be granted repayment without any limitation of the pension payments already made and of the pension that it will continue to pay to the widow.

9 In this connexion, the French Cour de Cassation asks whether the action by subrogation which may be available, under Article 52 of Regulation No 3, to a social security institution in a Member State following an accident in the territory of another Member State involving a person insured with such institution, is governed, as regards its extent and the apportionment between the institution and the insured person or his legal successors of the compensation payable by the person responsible for the accident, by the legislation of the State in which the said institution is established.

11 Under the terms of that article, the subrogation takes place under the legislation applicable to the institution liable to pay benefits.

12 Therefore the grant of the right of subrogation must be examined on the basis of that legislation.

13 On the other hand, for the purposes of determining the content of that right, account must be taken of the limitation resulting from the provisions of Article 52 of the regulation, whereby subrogation is permitted only in so far as the damage is the cause of the benefits paid by the institution liable to pay them.

14 This interpretation follows from the very terms of the article, in which the expression 'that injury' refers to the injury in respect of which a person is in receipt of the benefit the grant of which gives rise to subrogation.

15 Therefore, if the institution liable to pay benefits is, under the legislation applicable to it, subrogated to the rights of the recipient, the court before which the case is brought must recognize the subrogation only within the limits of the injury thus defined.

16 If it emerges before that court that, apart from the injury constituting the cause of the social security benefit, the recipient thereof may also claim other compensation by virtue of material or non-material losses, such compensation cannot form the subject-matter of the subrogation.

On those grounds,

THE COURT

in answer to the question referred to it by the French Cour de Cassation by a judgment of 17 June 1976, hereby rules:

'The action by subrogation which may be available, under the terms of Article 52 of Regulation No 3, to a social security

LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ v TÖPFER

institution in a Member State, as the consequence of an accident in the territory of another Member State involving a person insured with such institution must be recognized on the basis of the legislation applicable to the institution liable to pay benefits. However, the right of subrogation covers only the compensation to which the victim or his legal successors are entitled under the legislation of the State in the territory of which the injury occurred which corresponds to the benefits paid by the institution liable to pay them, and not compensation granted for non-material damage or in respect of other items of damage of a personal nature.'

DELIVERED ON 25 JANUARY 1977

My Lords, État membre pour un dommage survenu sur le territoire d'un autre État a, sur le This case comes to the Court by way of a territoire de ce deuxième État, le droit de reference for a preliminary ruling by the réclamer à un tiers la réparation de ce Cour de Cassation of France. It raises a dommage, les droits éventuels de question of interpretation of Article 52 of l'institution débitrice à l'encontre du tiers Council Regulation No 3. The French sont réglés comme suit: text of that Article (there is, as Your (a) Lorsque l'institution débitrice est Lordships know, no authentic English subrogée, en vertu de la législation text of Regulation No 3) reads as follows: qui lui est applicable, dans les droits que le bénéficiaire détient à l'égard 'Si une personne qui bénéficie de du tiers, chaque État membre prestations en vertu de la législation d'un reconnaît une telle subrogation;