C-115/76

JUDGMENT OF THE COURT (FIRST CHAMBER) OF 16 MARCH 1978 <apnote>1</apnote>

Leonardo Leonardini v Commission of the European Communities

Case 115/76

Officials — Social security — Accident insurance — Duty of the institution — Sub­ stitution of an insurer — Limited (Staff Regulations of Officials, Art. 73)

Although, in the absence of the rules for stituted for the direct obligation on the which provision is made by Article 73 of part of the institution under that article the Staff Regulations and in order to and in particular that in the event of an ensure the fulfilment of its obligations, accident the institution may leave to the an institution is entitled to have insurer the task of settling the problems recourse to provisional measures and to of risk cover which arise therefrom, take out an insurance policy specifying restricting its own role to that of the conditions under which there will be intermediary between the insurer and cover for risk, this does not mean that the victim. the duty of an insurer may be sub-

In Case 115/76

THE COURT (First Chamber)

composed of: G. Bosco, President of Chamber, J. Menens de Wilmars and A. O'Keeffe, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

LEONARDINI v COMMISSION

specialist selected by the Commission. (c) that he be awarded default interen In view of the results of that exami­ from the date of the accident both nation the Commission's Medical on the principal determined Service in a report dated 22 December according to the new degree of 1971 assessed the degree of partial invalidity and on the whole amount permanent invalidity at 6%. In a of the medical expenses to be memorandum dated 7 June 1972 the reimbursed (Application, Annex 3). Director General for Personnel and Administration informed the applicant Since the administration did not reply that the degree of partial permanent the applicant submitted a complaint on invalidity resulting from the accident of 19 May 1976 (Application, Annex 2) 25 April 1966 had been fixed at 6% under Article 90 (2) of the Staff Regu­ (Application, Annex 12). lations in which he repeated his claims, save that he stated that as regards the 2. The applicant submitted a medical expenses default interen should complaint dated 14 June 1972 under run from the time when those expenses Article 90 of the Staff Regulations were incurred. In that complaint the against that memorandum and stressed applicant also claimed compensation for inter alia the "great difference" between the material and non-material damage the degree of invalidity determined by occasioned by the wrongful delay on the institution and that assessed by the the pan of the institution in settling his medical practitioners treating him. claim.

JUDGMENT OF 16. 3. 1978 — CASE 115/76

5. The application was lodged at the "— Dismiss the present application in Registry of the Court on 8 December its entirety as unfounded; 1976. — Order the applicant to pay the After hearing the report of the Judge- costs". Rapporteur and the views of the Advocate General the Court decided that the Commission should be asked to III — Submissions and argu­ produce before the oral hearing all the ments of the parties documents relating to the applicant's accident and to the dealings of the In support of the application the Commission with the insurers and to applicant makes the following state at the same time the reasons why submissions: the documents relating to the applicant's — Infringement of Article 24 of the accident were not in his personal file. Staff Regulations, in that there was a considerable and abnormal delay in determining the degree of in­ II — Conclusions of the parties validity (25 April 1966— 16 Sep­ tember 1976) due to the wrongful The applicant claims that the Court act or omission of the Commission; should: — Infringement of the principle that "1. Annul the implied decision of the wrongful act or omission on the rejection of his complaint of 19 May 1976 inasmuch as that part of the administration renders it liable and gives a right to complaint also had as its object the award of default interest and compensation for resulting damage. compensation for the injury In the present case the delay in dealing suffered; with the file was such as necessarily to 2. Rule that default interest at the rate give rise to the presumption of a of 8% is due on the capiul of Brs wrongful act or omission on the part of the Commission. 382 361 from the day of the accident or, alternatively, from the end of September 1969, until the (a) The applicant makes the following day of payment of the capiul; observations on these irregularities:

— It was not unul 7 June 1972 that the — If the determination of the degree of Commission informed the applicant invalidity and consequendy the of the result of that examination, corresponding payment of capiul involving the degree of invalidity had been undertaken within a being fixed at 6 %; reasonable period the applicant — After the Commission decided on could have invested his capital and received the interest from that date. 25 September 1972 to have the degree of invalidity determined by a medical arbitrator to be appointed The applicant sutes finally, as regards his alternative claim for default interest by mutual agreement between the applicant's private doctor and the from the end of September 1969, that medical officer of the institution, the even assuming that his invalidity did not head of the Commission's Medical formally arise until 11 January 1969 the Service did not contact the dispute regarding the degree of that applicant's medical adviser for this invalidity could have been settled, if purpose until December 1973; necessary by arbitration, before the end of September 1969. — Although the medical officer was invited he was neither present nor The defendant denies that it was guilty represented at nor did he excuse his of a wrongful act or omission in settling absence from the medical exami­ the present case. To this effect it rehearses the course of events since nation carried out by the medical arbitrator in Milan on 2 July 1974; 25 April 1966 until 16 September 1976, which in its view is divided by the — The medical officer did not contact following facts into four periods: the medical arbitrator again on the subject of that examination unul (a) First period (25 April 1966 — 11 September 1975, at a time when the January 1969): decision of the medical arbitrator — Submission of the first medical was no longer open to discussion; report by the applicant assessing the — After this resumption of contact it degree of invalidity at 20 %. was not until September 1976 that the Commission informed the — Examination of the applicant in May applicant of its decision to fix the 1967 by the medical officer of the insurers with whom the Commission degree of invalidity at 16 °/o. had effected accident cover in

— Proposal by the insurers of a degree Commission drew up a report dated of invalidity of 6 %, brought to the 22 December 1971 assessing the knowledge of the applicant by a degree of invalidity at 6%. The note from the Commission dated administrative authority confirmed 11 January 1969. that assessment by decision of 7 June 1972 and in so doing took account of the observations of the (b) Second period (umil 7 June 1972): applicant concerning the relevant — Rejection of that proposal by the scales. The capiul sum so calculated applicant and submission of a new medical certificate dated 15 was paid to the applicant on 9 June 1972. February 1969 assessing the degree of invalidity at 55 % for the (c) Third period (until 2 July 1974) consequences of the accident as a whole. Since recourse to arbitration — The applicant returned that sum and provided for in Article 13 of the on 14 June 1972 lodged a complaint insurance policy was not possible under the Staff Regulations against the aforementioned decision of because the applicant did not agree, it was decided that the degree of 7 June 1972. That decision was invalidity would be definitely fixed rescinded by the Commission, who by the Medical Service of the informed the applicant that the Commission, and this moreover degree of partial permanent accorded with the wishes of the invalidity would be determined "by applicant as expressed during a a medical practitioner not re­ meeting on 3 July 1969 (Defence, sponsible to the Commission and Annex VII). appointed by common agreement between the medical officer of the — Several successive notes from the Commission and your private Commission asking the applicant to give the name of the medical medical practitioner". practitioner treating him and to — The name of the last-mentioned confirm that the medical treatment practitioner was supplied by the which he had had to have as a result applicant at the end of October of his accident as terminated. 1973.

wrote to him informing him that he Having set out these facts the defendant had been appointed to act as addresses itself to the two submissions umpire, asking him to examine the made by the applicant and makes the applicant and at the same time following observations: enclosing the relevant scales for calculating degrees of invalidity for (a) Infringement of Article 24 of the Staff servants of the Commission. Regulations — The Commission's Medical Service Article 24 of the Staff Regulations, was not asked to send a represen­ which is of general scope, does not tative to be present at that exami­ apply in cases governed by specific nation. It was only on receipt of a provisions of the Staff Regulations. letter dated 23 July 1974 from the Accident risk is specifically covered by arbitrator that the Medical Service Article 73 of the Staff Regulations. In became aware that the medical addition, Article 24 (and in particular its examination had been carried out by first paragraph) relates mainly to the arbitrator on 2 July 1974 in damage intentionally caused to an Milan in the presence of the official, his family or property by reason applicant's private practitioner of his position or duties. Moreover, it is (Defence, Annex IX) and that the not disputed that in the present case the Service received a copy of the report Community must assist the applicant. made following that examination. The present action relates only to the That report, which was not available delay in the payment of the allowances to the Medical Service, after for the invalidity found and therefore translation, until September 1974, raises a question which is not covered determined a degree of invalidity of by Article 24 of the Staff Regulations. 17%.

There is no such proof in the present in the present case, the question of the case, for the Commission cannot be said payment of default interen does not to have been guilty of a wrongful act or arise; it could arise only if the omission throughout the procedure for Commission were found liable for a the setdement of the file in question. wrongful act or omission. The applicant himself does not complain As for the question of the time from of "negligence" on the part of the which such interen should be calculated Commission until the second period. the following observations may be The relative length of that period is due made: in part to the difficulty of establishing — Firn of all, the consequences of the an ad hoc procedure in the absence of accident determining the degree of the implementing provisions provided invalidity cannot be regarded as for in Article 73 (1) of the Staff Regu lations and further to the refusal or having been clear before 4 No

the normal course. likewise as regards present case the complaint made on the fourth period, the period of a year 14 June 1972 was unreservedly between receipt of the repon from the abandoned by the applicant as a arbitrator and the meeting between him and the head of the Commission's result of the proposal by the Medical Service is due to the rather Commission to pursue a new delicate situation in which the procedure to determine the degree Commission found itself by reason of of invalidity.

guilty on many occasions of unreasonable, or in any event unjusti This said, it is fitting to observe further fiable, neglect. that the Commission paid the applicant on 19 June Bfrs 143 386, representing a (c) The default interest claimed first determination of the degree of Since the Commission has not been invalidity at 6°/o and that the applicant guilty of any wrongful act or omission of his own accord returned that sum to

Finally, there is no foundation in the had no alternative but to agree that claim for payment of default interest on the degree of invalidity should be the capiul created by the default determined by an independent practitioner. interest on the capiul payable in respect of the partial permanent invalidity. — There is no valid reason to explain Since the Commission considers that the why, after a decision was taken on applicant is not entitled to the latter 3 July 1969 to obtain a specialist's interest, the failure to pay it cannot in opinion, this was not obtained until itself be wrongful. 4 November 1971. It was not necessary to know the sute of the In his reply the applicant challenges the medical treatment of the con­ defendant's version of the course of sequences of the accident and the events, which far from showing name of the practitioner treating the negligence on his part reveals the applicant in order to obtain the wrongful delays on the pan of the specialist's opinion which was Commission. In this respect he observes, inter alia: decided upon on 3 July 1969. In any event, medical certificates were — The defendant's claim that the lodged in support of the requests for recourse to arbitration provided for reimbursement of the medical in Article 13 of the insurance policy expenses and those certificates was not possible in the absence of showed both the sute of the the applicant's consent is not treatment and the name of the correct. In fact the applicant never practitioner treating the applicant. objected to independent arbitration, Further, it was not until 7 June 1972 as is shown by his acceptance of the (more than six years after the decision of 25 September 1972. accident) that the applicant was Moreover, the applicant's alleged finally informed of the Com­ refusal to consent to arbitration is mission's decision to fix the degree irrelevant. The matter in any case of his invalidity at 6%, so that at ought to have gone to arbitration that date there was a return to the and the applicant would have had to position on 11 January 1969. bear the consequences if he had — The defendant's complaint that the failed to attend before the arbitrator. applicant by his persistent silence — The defendant's version of the from September 1972 to October meeting on 3 July 1969 is also not 1973 obstructed the normal course correct. It is not true that at that of the procedure is quite unjustified. meeting the applicant expressed the Following the decision of 25 wish to have the degree of invalidity September 1972 it was for the determined directly by the Com­ administration and not the official to mission's Medical Service. On the take action, since it was the contrary, what was then agreed was administration's duty to sun the that there should be arbitration by procedure required by that decision. an independent medical practitioner The fan that 15 months were

1969, more than eight months after the — It is at the very least doubtful date (11 January 1969) on which it is whether the date on which the proper to regard the permanent permanent consequences of the consequences of the accident as having accident were apparent can be been apparent, that period being quite regarded as being 11 January 1969, sufficient to allow an arbitrator to especially as the practitioner treating determine the degree of invalidity. As the applicant had in his report of for the defendant's argument that there 25 January 1971 made a reduction was no formal notice prior to the (38%) in the degree of invalidity complaint of 21 October 1975, the which he had determined altogether applicant refers to his notes of at 55% in his report of 15 February 1969. 16 January 1968, 18 January 1969 and 12 March 1969 (Application, Annexes — The applicant, as shown by a note 24, 22 and 20). dated 18 January 1969 (Rejoinder, As regards the basis for the calculation Annex XXIII), refused the arbi­ of that interest, the applicant challenges tration procedure provided for by the defendant's argument that the the insurance policy and this caused capital amount awarded should be difficulties in reaching a proper settlement. reduced by the sum paid to the applicant on 9 June 1972. First of all, — The applicant's claim that he had the applicant should not be penalized never accepted that the degree of for the fact that upon objecting to a invalidity should be established by decision he at the same time returned the Commission's Medical Service what was paid to him under such conflicts with the applicant's note

4 In support of these conclusions the applicant maintains that since the claims arising from his accident were not settled until 16 September 1976, whereas the accident occurred on 25 April 1966, there was excessive and abnormal delay due to the negligence of the Commission.

5 The latter thereby not only infringed Article 24 of the Staff Regulations but was guilty of a wrongful act or omission for which it is liable to the applicant.

JUDGMENT OF I«. 3. 1978 — CASE 115/76

6 Article 24 of the Staff Regulations provides that the Communities shall assist any official and shall jointly and severally compensate him for damage suffered as a result of threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties and refers to situations other than that in question.

7 Therefore the claim based on infringement of that provision is not relevant in the present case.

8 Accident risk cover in respect of an accident such as that suffered by the applicant is on the other hand provided for by Article 73 of the Staff Regu­ lations, the first paragraph of which refers in respect of its implementation to "rules drawn up by agreement between the Institutions of the Communities after consulting the Staff Regulations Committee".

13 That failure is all the less justified since the Legal Service of the Commission had given its opinion on 7 May 1969 that the Commission was "empowered and bound to assess and to determine, where appropriate, the degree of invalidity with the assistance of the competent medical practitioners, such as its medical examiners or officers".

14 It was only after the refusal by the applicant to accept the degree of invalidity proposed by the insurers that the Commission decided to avail itself of such a power and to have that degree determined by its own medical officer.

15 Although the Commission's Medical Service was instructed in July 1969 to undertake the procedure with regard to such determination, the medical examination of the applicant did not take place until November 1971.

16 In addition, it was only by a note dated 7 June 1972 that the Commission informed the applicant that the Medical Service proposed to fix the degree of partial permanent invalidity at 6%.

17 The Commission states that the reason for the protracted nature of that procedure was the refusal or omission by the applicant to supply infor­ mation requested in November and December 1970 and in January 1971 by the Medical Service with regard to the name of his private practitioner and the stage reached in the medical treatment which he was undergoing.

ii It is not, however, contested that the medical certificates produced to the Medical Service of the Commission in support of the claim for reimbursement of the expenses showed both the stage of the treatment and the name of the applicant's practitioner.

24 It was not until September 1975 that a meeting was arranged between the head of the Medical Service and the arbitrator to clarify the issues in dispute regarding the repon and the conditions under which the medical exami­ nation was conducted.

25 That meeting was followed by an exchange of correspondence of a strictly medical nature which, according to the particulars supplied by the defendant, continued until April 1976.

LEONARDINI v COMMISSION

26 However, it was not until 16 September 1976 that the Commission informed the applicant by letter that the degree of his partial permanent invalidity had been fixed at 16%.

27 It is apparent from the foregoing that although the applicant has not always shown all the diligence necessary to avoid the difficulties inherent in settling the case in question, the institution's conduct in the present instance nevertheless reveals negligence which is all the more reprehensible since, under the powers given to it by the Staff Regulations and in the interests both of the service and of the applicant, the institution was in a position to arrange for a settlement of the case within a much more reasonable period.

28 As regards more particularly the regularity of the medical examination carried out by the arbitrator, it is common ground that the letter of 27 May 1974 from the head of the Medical Service informing the arbitrator of his appointment and of what was required of him did not make it a necessary condition for the regularity of that examination that a representative of the Medical Service of the institution should be present.

34 Not until 30 December 1968, on the basis of a medical certificate dated 15 September 1968 relating to that treatment, did the said insurers formulate a proposal that the degree of partial permanent invalidity be fixed at 6%; the Commission conveyed that proposal to the applicant by note dated 11 January 1969.

35 Having regard to the fact that the Commission ought, from the beginning and for the above-mentioned reasons, to have entrusted to its Medical Service the task of determining the degree of partial permanent invalidity, as it did after July 1969, instead of leaving that task mainly to the medical officer of the insurers and thus subjecting the procedure for the settlement of the case to an unjustified delay, it appears reasonable to fix the date from which default interest should be calculated at 1 September 1968.

36 Further, since the repayment by the applicant of the sum of Bfrs 143 386, which the Commission had transferred to him by decision of the auth­ orizing officer of 9 June 1972, was unnecessary in the circumstances of the case to protect the applicant's rights with regard to the fixing of the degree of partial permanent invalidity, it is right to deduct that sum from the amount finally paid on 30 September 1976 and thus to calculate the default interest from 10 June 1972 on the balance of Bfrs 238 975.

37 Finally, default interest at the rate of 8% per annum in respect of the above years by way of damages appears justified in the circumstances of the case, having regard inter alia to the fact that it is a fixed rate and to the lengthy delay preceding settlement of the claims arising from the accident.

On those grounds,

THE COURT (First Chamber)

hereby:

Orders the Commission of the European Communities to pay:

— Default interest at 8% per annum on Bfrs 382 361 from 1 September 1968 to 9 June 1972 inclusive and on Bfrs 238 975 from 10 June 1972 to 30 September 1976 inclusive;

— Interest awarded by the Court at 8% per annum on the amount of default interest thus obtained from 1 October 1976 until the date of payment of the said amount;