C-23/81

JUDGMENT OF THE COURT (FIRST CHAMBER) 11 SEPTEMBER 1983 '

Commission of the European Communities v Société anonyme Royale Belge

(Official — Risk of accident)

Case 23/81

In Case 23/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Raymond Baeyens, Principal Legal Adviser of the Commission, acting as Agent, assisted by Marc Godfroid, of the Brussels Bar, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg,

1 — Language of che Case: French.

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SOCIÉTÉ ANONYME ROYALE BELGE, an insurance company having its registered office at 25 Boulevard du Souverain, 1170 Brussels, acting on its own behalf and as the authorized agent and representative of the following insurance companies : 1. Société anonyme Generali Belgium (Concorde), Brussels,

2. Société anonyme Caisse Patronale, Brussels, 3. Société anonyme Assurantie van de Belgische Boerenbond, Louvain,

4. Société anonyme Winterthur, Brussels,

5. Société anonyme Zürich, Brussels,

APPLICATION under Article 181 of the EEC Treaty for an order requiring the defendant to pay the principal sum and interest payable by the Commission under Article .73 of the Staff Regulations of Officials of the European Communities as a result of the death by accident of Gerrit Jan van Kasteel, an official of the Commission,

COMMISSION v ROYALE BELGE

THE COURT (First Chamber )

composed of: A. O'Keeffe , President of Chamber , G. Bosco and 1. fvoopmans , Judges ,

Advocate General : Sir Gordon Slynn Registrar : P . Heim

gives the following

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ration with breathing equipment Starting from Brussels National Airport, including containers for the the three aircraft took off on the supply of air or oxygen; morning of 29 April 1978 for Lyon where they landed at about 13.45 hours local time. »)

COMMISSION v ROYALE BELGE

By an application lodged at the Court C — Written procedure Registry on 5 February 1981 the Commission sought an order from the Court requiring the insurers, acting Relying on Article 73 (2) of the Staff through their authorized agent, Royale Regulations Mr van Kasteel's survivors Belge SA, to pay the principal sum and

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interest payable by the Commission to decide at the time against taking the those beneficially entitled to Mr van direct route to Cannes and to take the Kasteel's estate. Lyon—Marseille route and Mr Grimaud, Inspector at the French Ministry of Transport and author of the aforementioned report, to appear in In its defence the defendant requested order to provide any comments on his that the case be joined to Case 805/79 report which might be of use. In on the ground that the cases were accordance with Article 45 (3) of the related. That request was refused by Rules of Procedure the First Chamber decision of the Court notified to the assigned the task of examining those parties on 23 April 1981. witnesses to the Judge-Rapporteur.

Since an agreement on the nomination of By an application lodged at the Court a single aviation expert could not be Registry on 2 June 1981 the applicants in reached the Commission, by letter of Case 805/79 sought leave pursuant to 29 March 1982, proposed to the Court the second paragraph of Article 37 of the that it should hear S. Thouvenot, an Statute of the Court to intervene in this expert on air transport whose name action in support of the Commission. appears on the list of aeronautical Thar application was lodged in experts maintained for the Court of accordance with Article 93 of the Rules Appeal, Paris. By a letter of 1 April 1982 of Procedure. By order dated 15 July the defendants proposed R. Auffray, an 1981 the Court granted leave to aeronautical expert residing at Bretigny intervene. in France.

The Commission of the European Communities, the applicant, claims that the Court should: 1. Appoint one or three specialist experts in aviation matters to give their opinion, after studying the evidence 1. Declare the action admissible and well before the Court, on the question founded and accordingly order whether between the time of his Royale Belge SA, acting on its own departure from Lyon-Bron Airport on behalf and on behalf of the other 29 April 1978 to the time of his fatal companies which signed the insurance accident Mr van Kasteel committed policy of 28 January 1977, to pay the one or more manifestly reckless acts principal sum and interest payable by resulting in the accident and to the Commission under Article 73 of specify them; the Staff Regulations of Officials of the European Communities to the persons beneficially entitled to the estate of Mr van Kasteel following his 2. Reserve the costs. death.by accident on 29 April 1978;

2. Order Royale Belge SA to pay the costs. Ill — Submissions and argu­ ments of the parties in the written procedure The interveners claim that the Court should:

The Commission then states that the to an extent which is clear and certain weather information given to Mr van beyond any possible doubt. Kasteel before he left Lyon-Bron was such that it was reasonable for him to decide to fly to Cannes by the direct route. It was only once he was in the air that Mr van Kasteel was confronted by For its interpretation of the events pre­ suddenly deteriorating weather and ceding the accident of 29 April 1981 the •whilst he succeeded in maintaining visual defendant refers to the report of the meteorological conditions his aircraft inquiry drawn up by the French Ministry was caught in downdraughts which of Transport and written by Mr caused it to crash into Mont Sainte- Grimaud. One of the conclusions Victoire. The Commission further be­ reached in the report reads as follows: lieves that Mr van Kasteel did not follow the route he had originally planned to take, since in view of the sudden de­ terioration in the weather he changed direction, probably with the intention of reaching the coast or an emergency "The initial cause of the accident resides landing 'place. In such circumstances in the pilot's decision to fly direct from there can be no presumption of a Lyon to Cannes. A contributory cause manifestly reckless act. was that he did not maintain VMC (Visual Meteorological Conditions) even if this meant a diversion. The determining cause was that he began to descend .. . without knowing the cloud base when the route between Carpentras and Saint Tropez passes over relatively In their defence the defendant places a high ground." different interpretation on the expression "manifestly reckless act" and the events leading to Mr van Kasteel's fatal ac­ cident. As far as concerns the meaning of the word "reckless", it states that, failing any other rule of interpretation, the In the defendant's view, only one of word should be given the meaning which those three causes need be the result of a it has in ordinary usage. After referring manifestly reckless act for Article 4 (1) to several dictionaries it takes the view (b) of the joint rules to apply. It that a "reckless" act may be defined as contends that each of the three causes the act of a person who, overestimating was the result of unquestionable his chances, pursues a course of action recklessness. with such audacity that he fails to foresee the dangers to which he exposes himself and of which he could not have been unaware. The defendant points out that the words used in the German text of Article 4 ( 1 ) (b) of the Community In the first place the decision to fly direct rules are "offensichtlich waghalsiger from Lyon to Cannes was foolishly Handlungen", which literally mean acts reckless because Mr van Kasteel knew which are obviously those of a "dare­ from the information given to him just devil". An act is "manifestly" reckless before his departure from Lyon-Bron when the audacity involved is foolhardy that weather conditions on that route

were adverse in the extreme. What is provided by Lyon-Bron Airport was such more, Mr van Kasteel knew that when that any pilot given that information given the same information other pilots could have realized that visibility was nil had decided to go down the Rhône between Lyon and Cannes. On the basis valley where visual flight was still of the information which he had received possible over the entire route. Mr van Kasteel could set out on that route without infringing visual flight rules because visibility was reported as 10 to 15 kilometres and there was ample space between the two layers of cloud situated at 600 to 1 000 metres and 2 400 The second point made by the defendant metres to fly by sight. is that when Mr van Kasteel reached the disturbance and the 8/8 cloud cover he could have undertaken a diversion as the other two pilots had done. Instead of doing so he continued to fly into in­ creasingly thicker cloud in technical The Commission then makes the point conditions which did not allow visual that the route followed by Mr van flight to be maintained and in disregard Kasteel was one recommended by the of the most elementary requirements of French aviation authorities to pilots prudence. flying under visual flights rules. Only shortly before the accident did he cease to keep precisely to that route: Moreover, towards the end of their flight the other two pilots also encountered weather conditions which were at times Thirdly, Mr van Kasteel decided to fly difficult. On this point the Commission below 1 500 metres in the hope of refers to a statement by Mr Turli getting below the cloud base when the explaining that after reaching the coast sky was absolutely full of cloud between he was obliged to fly on instruments 800 and 2 500 metres and visibly was from La Ciotat and managed to land at reduced or even non-existent. Such a Toulon only with assistance from the descent in those conditions verged on radar there. The criticism made of Mr stupidity, first because Mr van Kasteel van Kasteel regarding his choice of route did not know the height of the cloud is therefore irrelevant. base or therefore how far he should come down and secondly because his route lay over relatively high peaks. In this regard the defendant contests the Commission's view that the aircraft became caught in downdraughts which The Commission attaches importance to caused it to crash into Mont Sainte- the last radio contact between Mr van Victoire. The defendant maintains that Kasteel and Marseille Information a few there is no evidence to suggest that the minutes before the accident. In its view accident was due to a downdraught. that message does not indicate, as the defendant contends, that at that moment Mr van Kasteel was flying in 8/8 cloud. Mr van Kasteel said in fact that he was passing through a "shower". What is more, that conversation did not indicate In its reply the Commission first of all any kind of anxiety or especially any denies that the weather information need to descend. In this regard the

Commission claims that there is no IV •— Summary of the statements evidence to support the assertion that Mr of the experts and wit­ van Kasteel decided to descend below nesses 1 500 metres, the level at which he was flying at the time of the last radio contact. Although his aircraft crashed into the mountain at a height of approx­ imately 960 metres, the existence of a downdraught would be sufficient to ex­ The evidence of Daniel Chabert, who plain the loss of altitude. himself flew an aircraft on 29 April 1978, may be summarized as follows. The three pilots all went to the meteoro­ logical office at Lyon-Bron and they discussed together the information which The Commission's conclusion is that they were given. As regards the visibility, none of the three alleged reckless acts type of cloud and altitude at which it has therefore been proven by the was expected to be, there was nothing defendant. alarming in the information given. In those cicumstances there was no reason to expect any particular danger in the direction of Provence. Before his departure from Lyon-Bron Mr Chabert decided to follow the Rhône valley for In its rejoinder the defendant maintains Cannes because he usually followed that that the information given to Mr van route which was more pleasant and more Kasteel before his departure from Lyon- enjoyable. A flight plan was not filed as Bron was an imperative warning to any such action was not compulsory in pilot that it was quite unsafe to set out to France. Near Carpentras Mr Chabert fly to Cannes by the route chosen by Mr decided not to continue to Cannes but to van Kasteel. This was also one of the land at Marseille. That decision was conclusions reached in the report of the forced upon him by two reasons. The inquiry drawn up by the French Ministry first was that he encountered an of Transport. That report also estab­ unexpected deterioration in the weather lished that the loss of height shortly which had not been forecast as being so before the accident could only have been bad; there were squalls which, though due to a decision to descend. If that not dangerous from the point of view of explanation — provided by an expert in the pilot were uncomfortable for the such matters — is right, Mr van Kasteel passengers. The second reason was that was reckless. However, the alternative he had to cut short the flight because explanation advanced by the Com­ two passengers became airsick so that the mission, namely that the aircraft was position was extremely unpleasant. Mr caught in a downdraught, does not rule Chabert therefore decided to land at out recklessness either. Before leaving Marseille so as not to continue the flight Lyon-Bron Mr van Kasteel knew that in uncomfortable conditions. he would be flying into a vigorous disturbance and that there would be swirling winds and strong turbulence. It would be the height of folly to venture into such a situation, in an aircraft of the type he was flying, above a mountain range as high as that where the accident The evidence of the other pilot, Filippo occurred. Turli, may be summarized as follows.

The weather forecast by the meteoro­ decision to fly direct from Montélimar to logical office at Lyon-Bron was not very Cannes, Mr Grimaud explained that he good. However, they were told that it did not state in his report that it was was "flyable" and that aircraft were madness to fly that route. The weather arriving from and leaving for Cannes. information provided by Lyon-Bron Neither Mr Turli nor the other two Airport might have persuaded the pilot pilots were warned that there might be not to take that route but it was not of serious danger. Initially, that is to say on such a nature as to justify the conclusion take-off from Lyon-Bron, Mr Turli that it would be abnormal to fly straight intended to follow the same route to to Cannes. As regards the loss of altitude Cannes as Mr van Kasteel; that is, in after the last radio contact, that might fact, the normal route which pilots are have been due to turbulence. It is not advised to follow. However, 20 kilo­ possible to confirm that, however. By metres beyond Lyon he decided to comparing the position of the wreckage follow the Rhône valley. At that time he with the route which Mr van Kasteel had could not tune in to Montélimar to been following at the time of the last obtain information with a view to taking radio contact it is possible to deduce that a more direct route. The route to the he had changed course before the south along the Rhône valley also had accident. There are two possible explan­ the advantage of providing a greater ations: either Mr van Kasteel deliberately margin of height above the ground and, changed course in order to follow a should turbulence occur, which he habit­ different route or he veered away to ually fears, of enabling him to lose avoid an obstacle which he suddenly saw altitude without danger. Mr Turli stated looming up in front of him. In Mr that he was habitually frightened of Grimaud's view there is no evidence to turbulence and that his fear was strictly a support one theory rather than the other. personal idiosyncrasy. He had always Only one thing is certain; it is very feard turbulence even when not serious. unlikely that a squall could have made For that reason he continued flying the aircraft alter course, even in the case south until abreast of La Ciotat at which of a very light aircraft like a Piper point he found himself in very low cloud. Cherokee. He then radioed for assistance, reporting that he was unable, to'find an airfield. In the end Toulon-Hyères helped him to land by radar.

The statement of Raymond Auffray, an may also have led him to believe that expert witness on aviation before the there would be a certain amount of French Cour de Cassation, may be visibility. summarized as follows. From the in­ formation given to Mr van Kasteel on 29 April 1978 a pilot of some experience ought to have deduced that it was not possible to pass through the mountains As regards the significance of the last under visual flight rules. When a pilot communication between Mr van Kasteel suddenly encounters a situation not in and Marseille, Mr Thouvenot believes accord with visual flight rules, he turns that the pilot clearly thought that the round. In Mr Auffra/s view, the cloud in which he was flying was in fact possibility cannot be excluded that Mr a local shower. He would not have used van Kasteel tried to turn back after the the word "shower" if that had not been last radio contact, which was when he the case. After that last communication was in cloud. It is also not ruled out that Mr van Kasteel suddenly encountered the change of course near Mont Sainte- weather much worse than he had Victoire was caused by strong gusts of expected. However, it was legitimate for wind. In such circumstances a pilot may him to hope to 'cross that area of bad in fact lose control of his aircraft. visibility if it was limited in extent. If it was not, Mr van Kasteel would have been forced to look for an emergency landing area, which would not be easy because at that point he must have been ' The statement of Stéphane Thouvenot, crossing the mountains. honorary expert in aviation matters at the Cour de Cassation and Cour d'Appel, Paris, may be summarized as follows. The Provence region in the south of France is an area which, from As regards the change of course before the point of view of the weather and the accident, Mr Thouvenot stated that flying conditions, is more difficult than is strong gusts of wind may force an commonly believed. On the day of the aircraft upwards or downwards for a accident, 29 April 1978, he was on considerable distance. Consequently, it is judicial business close to the routes not impossible that such a light aircraft followed by the three pilots. Mr may have been blown off course by gusts Thouvenot encountered masses of black of wind. cloud — to be precise, over the Cévennes — which were all the more disturbing because there were gusts of wind from the south. As regards the weather information provided by Lyon- Bron, Mr Thouvenot explained that the V — Replies to the questions put very strong turbulence forecast indicated by the Court that the situation would be un­ comfortable but not necessarily dangerous. Moreover, a pilot with some experience could deduce from that infor­ mation that it was possible to make the flight, although in difficult conditions. In reply to the questions put by the The weather information which Mr van Coun the defendant stated that in view Kasteel later received from Marseille of the explanations provided by Mr

Decision

1 By an application lodged at the Court Registry on 5 February 1981 the Commission of the European Communities , acting pursuant to an arbitration clause as provided for in Article 181 of the EEC Treaty , Article 153 of the EAEÇ Treaty and Article 42 of the ECSC Treaty , brought an action against Royale Belge SA, a company having its registered office at Brussels, acting on its own behalf and as agent for 14 other insurance companies which had signed the insurance agreement dated 28 January 1977 with the institutions of the European Communities , seeking an order requiring it to pay the principal sum and interest owed by the Commission to those beneficially entitled to the estate of Gerrit Jan van Kasteel as a result of his death by accident on 29 April 1978.

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2 In support of its application the applicant claims that Mr van Kasteel was an official in Directorate-General XV of the Commission when he was killed in an aircraft accident which occurred in the Commune of Vauvenargues in Provence, France, during a flight from Brussels to Greece in a light aircraft which he was piloting himself. Under Article 73 of the Staff Regulations officials are covered against the risk of accident subject to rules drawn up by common agreement of the institutions of the Communities. By signing on 28 January 1977 the collective insurance agreement entered into by those institutions the insurance companies for which the defendant acts as agent undertook to cover the Communities against the financial consequences of the obligations which the latter assumed under the Staff Regulations in respect of accidents befalling the persons to whom Article 73 of the Staff Regulations applies.

7 The Court has been provided with a summary of the weather information given by the Regional Weather Centre at Lyon-Bron Airport between 14.00 and 14.30 hours on 29 April 1978 to the crews flying to.Cannes and has ordered an expert report on the conclusions which an airman ought to have deduced from that information. The Court has also heard the evidence of the two pilots who took the Lyon-Marseille route in order to ascertain the reasons which led them to decide against taking the direct route to Cannes.

8 After the technical experts and witnesses had been examined the defendant indicated that as a result of the explanations given it no longer persisted in its contention that the decision to take the direct route to Cannes was in itself evidence of manifest recklessness.

9 The defendant's second reasons for contending that Mr van Kasteel's actions were reckless is the decision which he is alleged to have taken when his aircraft flew into the disturbance and visibility was suddenly reduced, to descend from an altitude of 1 500 metres to less than 1 000 metres.

io It is common ground that at 16.52 hours, the time of his last radio contact with Marseille-Marignane Airport, Mr van Kasteel reported his aircraft at an altitude of 4 500 feet or roughly 1 500 metres and that approximately 10 minutes later it crashed into the north slope of Mont Sainte-Victoire at a height of some 960 metres.

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n However, it is not clear from the written evidence, such as the preliminary investigation report drawn up by Mr Grimaud for the French Ministry of Transport or the report of the Gendarmerie Nationale including their various appendices, that the aircraft's loss of altitude was due to a deliberate decision of the pilot to attempt to descend below the cloud. Neither Mr Grimaud, who was examined by the Court, nor the technical experts appointed by the parties, could state with certainty that the loss of altitude was due to a decision taken by the pilot rather than a violent gust of wind. In view of those circumstances the defendant has accepted that the loss of altitude might have been caused by the very strong turbulence through which the aircraft was flying.

is The information provided by Lyon-Bron also reported the sky covered by altostratus at roughly 2 400 metres above 4 to 6/8 stratocumulus between 600 and 1 000 metres. According to the experts' statements, in such atmospheric conditions there is normally a corridor between the cloud masses which is hardly affected by disturbances. Therefore by flying as he did at an altitude of 1 500 metres Mr van Kasteel did nothing contrary to the rules of good airmanship.

i7 It is clear from the foregoing that Mr van Kasteel cannot be accused of any rashness as regards his conduct as a pilot until the time at which his aircraft entered the unexpected disturbance in the area of Vauvenargues—Aix-en- Provence. Since that is a mountainous area in which, according to Mr Grimaud, the weather may change very rapidly in certain atmospheric conditions and in which the effects of such changes on aviation may be considerable, the Court accepts the Commission's and the interveners' argument to the effect that Mr van Kasteel could not avoid the disturbance.

is The only question still to be resolved, therefore, is whether the pilot neglected to turn back immediately after entering the disturbance, as the defendant maintains.

i9 In the last radio contact which he had with Marseille-Marignane at 16.52 hours Mr van Kasteel reported: "... I am in a shower". When asked whether he had the ground in sight he replied: "Sometimes, yes". This indicates that at that time he did not regard himself as being in a severe

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disturbance. What is more, the content of the conversation does not give the impression that the pilot was afraid of losing visibility completely.

24 Consequently it has not been established with any certainty whether or not during the last 10 minutes of the flight the pilot committed one or more acts evincing rashness on his part .

COMMISSION v ROYALE BELGE

25 Because of that uncertainty and in view of the findings regarding the unexpected nature of the disturbance and Mr van Kasteel's conduct as a pilot up to the time at which the aircraft entered the disturbance, the application must be granted. It was in fact for the defendant to show that the facts warranted the application of one of the exemptions set out in Article 4 of the joint rules.

26 It is therefore unnecessary to examine the question of the degree of rashness required for an act to be described as "manifestly reckless".

27 Consequently the defendant, acting on its behalf and as agent for 14 other insurance companies which signed the collective insurance agreement of 28 January 1977 with the institutions of the Communities, must be ordered to pay the principal sum and interest owed by the Commission to the persons beneficially entitled to the estate of Gerrit Jan van Kasteel following his fatal accident on 29 April 1978.

28 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if the successful party has asked for them. As the defendant has failed in its submissions, it must be ordered to pay the costs, including those of the interveners and the sums due to the witnesses and technical experts.

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 22 September 1983 .

J. A. Pompe A. O'Keeffe Deputy Registrar • President of the First Chamber

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 14 JULY 1983

My Lords, Mr Gerrit van Kasteel, an official of the Commission, was killed in a flying Under Article 73 of the Staff Regu­ accident on 29 April 1978. His widow, lations, officials of the Community are on her own behalf and on behalf of their covered against the risks of accident, five minor children, together with one subject to rules made thereunder. Article other child, made a claim against the 4 of those Rules signed on 22 December Commission, which the latter passed on 1976 excludes from cover accidents to the insurers. The latter contended that resulting from acts which are "manifestly the accident was due to manifestly reckless". reckless acts of the deceased, so that The Community institutions insured they were not liable under the policy. against the risks covered with a group of Mrs van Kasteel instituted proceedings insurance companies under a policy against the Commission, which in turn which provides that any dispute arising brought this action under Article 181 of out of the performance of the contract the EEC Treaty against Royale Belge as may be submitted-to the Court of Justice. a representative of the consortium of