C-103/81

JUDGMENT OF T H E C O U R T (THIRD CHAMBER) 18 MARCH 1982'

Liliane Chaumont-Barthel v European Parliament

(Official — Subrogation)

Case 103/81

Officials — Social security — Sickness and accident insurance — Subrogation of the Communities — Prevention of double compensation for same damage (Staff Reguktions of Officials, Art. 73)

Since the purpose of the right of subro- in respect of the same damage, the gation enjoyed by the Communities institution is entitled to apply the rule of under the Rules of the Insurance of subrogation only to the extent to wich Officials against the Risk of Accident the allowance awarded by it relates to and Occupational Disease is to prevent the same damage as the compensation an official from being compensated twice obtained from the third party.

T H E C O U R T (Third Chamber)

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: G. Reischl Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

form of subrogation by which she The Parliament's medical officer, for his subrogated the Communities to all her part, concluded in his repon of 16 rights of action against the responsible October 1979 that there was a degree of third party both as regards the benefits, partial permanent invalidity of 6°/e. allowances and reimbursements paid to her under Articles 72, 73 and 75 of the Staff Regulations and as regards the By letter of 16 January 1980 the Head of salary paid during her period or periods the Social Affairs Division asked the of incapacity for work. applicant if she was in agreement with the Parliament's proposal to grant her an allowance of BFR 292 582 calculated on She undertook to give eight days' the basis of the finding of a degree of advance notice to her institution of any invalidity of 6%. The applicant was also amicable settlement, and the com- asked to inform the Parliament of the pounding or withdrawal of any action amount of any payment by way of against the third party. compensation received from the insurers of the responsible third party. In the context of criminal proceedings against the third party before the Luxembourg courts, the applicant, who By letter of 4 February 1980 the had joined the proceedings as civil party, applicant notified her agreement to the was examined by the medical expert proposed sum and indicated that she had appointed by the court. In his opinion not received anything in respect of the expert assessed non-material "invalidity" from the opposite party but damages in respect of pain and suffering only damages for pain and suffering and at BFR 15 OOG. As regards the sequelae the adverse effect on her bodily health. of the accident he said :

II — C o n c l u s i o n s of the parties The applicant has put forward two submissions.

The applicant claims that the Court should: First submission: Infringement of Article 73 of the Staff Regulations (1) Declare the action to be admissible; According to the applicant the benefits paid under the Staff Regulations in (2) Declare it to be well founded, and respect of partial permanent incapacity accordingly: for work cover, in the case of accident, only physical injur}' which has financial Annul the decision of the Head of consequences for the victim on the one . the Social Affairs Division of 24 July hand and for the institution which 1980; employs him on the other. In respect of matters not covered by As a result, order the defendant to subrogation, for example pretium doloris, pay the applicant the sum of BFR non-material damage, damage caused to 50 0OC, being the amount of the a vehicle or to clothing, victims may damages for the adverse effect on obtain compensation directly from the her bodily health, which was person responsible. wrongly deducted from the allow- ance in respect of partial permanent In this case the sum awarded in respect invalidity originally awarded to her, of the adverse effect on bodily health together with interest at the rate of comes under pretium doloris to which 6% per annum as from 24 July 1980, subrogation does not apply, as is shown the date of the unlawful deduction by the diagnosis of the doctor who, in of the sum of BFR 50 000; his report, speaks of "temporary traumatic consequences and minor long- Order the defendant to pay the term sequelae" in the form of costs. "discomfort in the knee . . . infrequent occipital pain . . . and stabbing pains in the region of the scars on the knee", and The defendant contends that the Court thus draws a distinction between should: incapacity for work (which he did not find) and the adverse effect on bodily health. Take formal note that the defendant does not contest the admissibility of the Thus, in reducing the allowance awarded action; in respect of partial permanent invalidity, the decision of 24 July 1980 infringed Declare the action unfounded and Article 73 of the Staff Regulations and dismiss it; the Community rules relating to it.

The Parliament emphasizes that notwithstanding the applicant's refer- In Luxembourg law there is an adverse ences to an "incapacity for work" the effect on bodily health only where there allowance in question is awarded is a finding of partial permanent whatever may be the capacity of the invalidity and that invalidity is not person concerned for continuing to reflected 'in a loss of income. In the perform his duties. absence of those two conditions there is no adverse effect on bodily health, but non-material damage in the broad sense On the other hand, as regards the of the term which may be defined as expert's report, the doctor considered encompassing cosmetic damage, that in the absence of functional detriment to leisure activities, general consequences, properly so called, the sequelae and inconveniences in daily life accident did not lead to any incapacity resulting from the consequences of the for work, properly so called. Further, he accident. It follows that what the expert was careful to make a distinction had described, no doubt improperly, as between non-material damage in respect adverse effect on bodily health of pain and suffering on the one hand, constitutes' non-material damage under and adverse effect on bodily health on Luxembourg law. the other.

lations do not provide for an allowance sequela resulting from any injury and for adverse effect on bodily health and which has no effect either of a financial that the content of that article should be nature or in regard to capacity for work construed in the light of the national falls within the principle of compensation laws of the Member States. for non-material damage. According to the Parliament the issue Thus there can be no link between the between the parties is governed by allowance paid under the Staff Regu- Community law and not by Luxembourg lations and damages awarded for law. In Case 132/77 the Court dismissed "traumatic consequences and . . . long- any reference to comparable provisions term sequelae" and the contested contained in national laws. The Par- decision was adopted in breach of the liament is unable to accept the definition principles common to the laws of of non-material damage which is now Member States which probably provided propounded by the applicant, and in the basis for the Community Rules. particular it cannot agree that damage According to the Parliament Article 73 is covers "adverse effect on bodily health" a self-sufficient provision which must be recognized as the sequelae of an accident applied and interpreted as such, without which has no effect upon capacity to reference to comparable but different work. rules which may exist in the Member States. Such was the Court's judgment in Second submission: Infringement of the Case 152/77, referred to above. principles common to the laws of the Member States and underlying the Community Rules IV — Oral p r o c e d u r e

3 First, after becoming a civil party to criminal proceedings against the responsible third party, she was awarded, on the basis of the repon of an expert appointed by the court, damages and interest in the sum of BFR 65 000, namely BFŔ 15 000 for the non-material damage in respect of pain and suffering and BFR 50 000 for adverse effect on her bodily health, having regard to temporary traumatic consequences and minor long-term sequelae. The court was of the opinion that there were no grounds for a finding of partial permanent invalidity.

« Secondly, in the context of the insurance of officials against the risk of accident provided for by Article 73 of the Staff Regulations of Officials (Official Journal L 56, 4. 3. 1968), the applicant agreed to the proposal made by the Head of the Social Affairs Division and contained in a letter dated 16 January 1980 that she should be paid an allowance in respect of partial permanent invalidity in the sum of BFR 292 582, calculated on the basis of a degree of invalidity of 6% determined by the Parliament's medical officer.

s However, the Parliament subsequently deducted from that allowance the sum of BFR 50 000 which the applicant had received from the insurers of the responsible third party for adverse effect on her bodily health, claiming that the sum was covered by the subrogation in favour of the Communities.

JUDGMENT OF 18. 3. 1982 — CASE 103/81

6 The applicant lodged a complaint against that decision of 2 October 1980. The Secretary-General rejected the complaint on 29 January 1981. The applicant brought an action under Anicie 91 of the Staff Regulations on 28 April 1981.

CHAUMONT-BARTHEL v PARLIAMENT

n The parties are agreed that the purpose of the right of subrogation enjoyed by the Communities is to prevent an official from being compensated twice in respect of the same damage.

12 It is therefore necessary to examine the two payments received by the applicant in order to determine whether or not they cover the same damage. It is apparent from the letter from the Head of the Social Affairs Division of 16 January 1980 that, as was confirmed at the hearing, the allowance paid by the Parliament related only to the partial permanent invalidity determined by the institution's medical officer. That allowance comes under Article 12 of the Rules.

u The compensation awarded to the applicant by the national court is based on the findings of the expert whom it had commissioned and who expressly ruled out any partial permanent invalidity but, on the other hand, proposed compensation of BFR 50 000 for adverse effect on bodily health. That compensation comes under Article 14 of the Rules.

M In these circumstances and in the light of the foregoing it is apparent that the Parliament did not award an allowance in respect of the same damage as that in respect of which compensation was awarded by the court. In these circumstances the Parliament was not entitled to apply the rule of subro- gation and ought therefore to have paid the allowance awarded without deduction. The contested decision must therefore be annulled and the Par- liament must be ordered to pay to the applicant the sum of BFR 50 000.

is Interest on this sum at the rate of 6% per annum should also be paid as from 24 July 1980.

hereby:

1. Annuls the decision of the Head of the Social Affairs Division of the Parliament of 24 July 1980;

2. Orders the Parliament to pay to the applicant the sum of BFR 50 OCO together with interest at the rate of 6% per annum as from 24 July 1980 until the date of actual payment;

3. Orders the Parliament to pay the costs.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 18 March 1982.