C-131/81

JUDGMENT OF 7. 10. 1982 — CASE 131/81

institution's liability for the conse­ its conduct must be regarded as a quences of an accident sustained in wrongful act or omission for which it such a camp by the employee's child. is liable.

2. When an institution undertakes to 3. Compensation for non-material injury organize holiday camps for the sustained by the child of an employee children of its employees and to as the result of an accident at a arrange insurance for the children to holiday camp organized by an cover the injury resulting from any institution in the context of the accident which they may sustain in employment relationship cannot be such camps, it has a duty to ensure the subject-matter of an application to that holidays in those camps take the Court by the child's father in his place under the appropriate capacity as an employee on the basis conditions and that if an accident of his employment relationship with occurs compensation will be provided the institution under the Staff Regu­ in full. If the institution fails to do so lations.

In Case 131/81

MARIO BERTI, an official of the Commission of the European Communities, in his capacity as legal representative of his son Paolo, a minor, residing in Brussels, represented and assisted by Emile Drappier of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34b IV Rue Philippe-II, applicant,

v

Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure La Royale Belge. The Commission likewise notified the accident by telex message of 14 April 1971 to the Compagnie d'Assurances Générales On 7 April 1971 the applicant's son, Mercator [hereinafter referred to as Paolo, aged seven, had an accident while "Mercator"], with which it had arranged he was at a holiday camp in Durbuy insurance, in order to cover "holiday organized for the children of officials camp" risks, for civil liability and for and other employees of the Commission. personal accidents. Article 11 of the While he was playing with about twenty Special Conditions of the latter insurance other children, under the supervision of policy states that personal accident cover two assistants, on children's playing is alternative and may not be cumulated equipment in the Place de la Foire [town with the cover provided for civil liability; square] in Durbuy, the child fell from a accordingly, the benefits guaranteed swing and was hit on the head by the under the head of personal accident moving swing. The accident caused insurance are payable only subject to a serious injury, in particular breaking full and final discharge by the victim or some teeth, fracturing the child's jaw and those claiming under him and waiver of causing injuries to his face which have any right of action based on civil liability left ugly scars. vis-à-vis the insured persons.

The circumstances in which the accident For the first six months following the occurred were described by the accident the medical expenses were management of La Petite Merveille, the covered by the holiday centre's insurers, holiday centre which accommodated the who were reimbursed by the Com­ camp, in the accident declaration which mission's insurers under the personal it made on 8 April 1971 to its insurers, accident insurance, with the exception of

the portion already reimbursed under the Upon hearing the report of the Judge- sickness insurance scheme for officials Rapporteur and the views of the and other employees of the European Advocate General the Court (First Communities. In view of the fact that his Chamber) decided to open the oral son's state of health necessitated lengthy procedure without any preparatory treatment, however, Mr Berti requested inquiry. However, it requested the that the insurance file remain open. Commission to submit a number of documents before the hearing and to reply to some questions. By letter of 2 April 1976, which was accompanied by two medical reports, the applicant's lawyer informed the Commission that the injuries suffered by the child as a result of the accident might II — Conclusions of the parties now be regarded as consolidated and asked the Commission to state what was to be done concerning compensation for The applicant claims that the Court the permanent sequelae of the injuries should: (with reference, in particular, to the refunding of the cost of dental prostheses) and for the non-material and Declare the action to be admissible and aesthetic injuries. The letter and the well founded; accompanying documents were forwarded to the Commission's insurers, who rejected the claim, stating that Accordingly, declare that the defendant "such injuries are not covered by is bound to compensate the applicant for Mercator". Mr Berti was informed of the the material, non-material and aesthetic insurers' reply by a memorandum of injuries sustained by the applicant's son 26 October 1978 from the Commission's as a result of the accident on 7 April Insurance Department. 1971, the applicant estimating the damage at BFR 500 000 but reserving the right to reduce or increase that amount On 22 April 1980 Mr Berti submitted a during the proceedings; request under Article 90 (1) of the Staff Regulations of Officials of the European Communities that "an invalidity al­ Appoint one or three experts to examine lowance for permanent invalidity attribu­ the victim and to report on the sequelae table to the wrongful act or omission of of the accident sustained by the an agent of the Commission be granted applicant's son, providing all the infor­ to his son by way of compensation for mation necessary to enable an objective material and non-material damage". assessment to be made of the amount of Since he received no reply to his request damages to be awarded to the applicant; within four months of its submission, the applicant lodged a complaint under Article 90 (2) of the Staff Regulations Order the defendant to pay the costs. dated 29 October 1980 against the implied decision rejecting his request. Since the complaint also received no The Commission contends that the Court reply Mr Berti brought this action, under should: Article 91 of the Staff Regulations, against the implied decision rejecting his complaint. His application was lodged at Declare that it has no jurisdiction to hear the Court Registry on 27 May 1981. the action;

Ill — Submissions and argu­ In his reply, the applicant observes that ments of the parties the Commission acknowledges that it gave its officials and other employees the opportunity of sending their children to (a) Jurisdiction holiday centres on favourable terms by assuming, in particular, a portion of the cost of the stay. It was in those circums­ tances that he sent his son to Durbuy for The Commission submits, first, that the the 1971 Easter holiday, subject to the action lies outside the scope of Article conditions under which that holiday 179 of the EEC Treaty and Articles 90 camp was organized. Thus, by and 91 of the Staff Regulations. The organizing holiday camps the defendant dispute is between the Commission and accepted any liability connected a third party (the applicant's son), therewith. compensation being sought for the consequences of an accident sustained by that third party; the action is based, moreover, not on any unlawful act on From the information supplied by the the part of the Commission, but on the Commission it appears that the children's alleged wrongful act or omission of one stay was to be subject to the direction of its agents. The action therefore places and supervision of one assistant for every at issue the Commission's non-con­ eight children and a chief assistant, all tractual liability and may give rise to the appointed by the Commission. As the application of Article 178 and the second defendant concedes, the accident paragraph of Article 215 of the EEC occurred whilst the children were playing Treaty and Article 43 of the Protocol on under the supervision of two assistants, it the Statute of the Court of Justice. was therefore natural for the applicant to turn to the Commission in order to obtain compensation for the injury sustained by his son. Moreover, in the The defendant considers that, in any circumstances of the case the relationship case, the conditions for non-contractual could amount to a contract between the liability on its part are not met, for no applicant and the Commission: the latter such liability may arise on the basis of took the child to a holiday camp in wrongful acts or omissions attributed to return for payment and thus became the servants or agents, in the exercise of responsible for its safety. their duties, of a private legal entity such as the holiday centre, la Petite Merveille, which is owned by a businesswoman entered on the trade register of Marche- The application is therefore well founded en-Famenne, is open to all children and in law, in particular with regard to has its own staff. The Commission is Articles 178 and 215 of the EEC Treaty. bound solely to make good damage The fact that the holiday centre in

question is a private legal entity does not the parents entrust their children and to relieve the defendant of liability; since it their servants or agents. was the latter which took the child to the centre it must assume the attendant liability. In any case the Commission by implication accepted that liability since it arranged civil liability and personal The Commission adds that the accident insurance in respect of the applicant's reference to what he terms a holiday camp. contract between the parents and the Commission, giving rise to a duty on the part of the Commission to care for the children's safety, is sheer contrivance, since the only contract which exists is that between the holiday centre and the In its rejoinder the Commission denies parents who send their children there; having acknowledged that it selected or the Commission's financial contribution appointed the assistant and chief assistant toward the cost of the holiday does not at the holiday centre. On the contrary, make it a party to the contract. the holiday centre is a private legal entity Moreover, even if there is a contract with its own staff; the teaching couple between the Commission and the parents responsible for its management and ad­ of the children, it contains no clause ministration, the assistants and domestic conferring jurisdiction on the Court of staff are not, therefore, employees of the Justice and therefore the action ought to Commission, they are neither its agents have been brought before the Belgian nor its appointees, the staff being wholly courts. unconnected with the Community institution. The Commission does not organize holiday camps itself; its role is restricted to offering its officials and other employees the opportunity of The unsoundness of the applicant's sending their children to private holiday argument that the fact that the holiday homes on favourable financial terms centre is a private legal entity distinct since it assumes part of the cost of such from the Commission is irrelevant may stays. be demonstrated by numerous examples from the case-law. Moreover, the fact that the Commission arranged holiday camp insurance (with cover for, in particular, the civil liability of the assistants in the case of injury caused by In bringing this action before the Court, them to the children) cannot be the applicant wrongly assumed that the interpreted as implied recognition that it two assistants who were present when appointed the assistants and was the accident occurred were agents of the therefore personally liable for wrongful Commission. Since they were not, the acts or omissions on their part; on the mere fact that the defendant offered to contrary, the Commission wished to members of its staff the opportunity of insure itself against the consequences of sending their children to holiday camps its own wrongful acts or omissions and at reduced cost does not give rise to civil at the same time to provide the children liability on the part of the Commission with protection against any inability to for wrongful acts or omissions attri­ pay on the part of the assistants or the butable to private legal bodies to which private body which appointed them.

(b) The substance of the case which he sought compensation not merely for non-material and aesthetic injury, as the defendant states, but also for the material damage resulting from The applicant maintains that the accident the accident. occurred as a result of a wrongful act or omission on the part of the assistant supervising the children and that the The defendant denies in its rejoinder that Commission is vicariously liable for the it failed to reply to the applicant wrongful act or omission of its agent in and refers to the memorandum of view of the fact that the holiday camp 26 October 1978 informing him that in Durbuy was organized by the Mercator had refused to accept liability Commission. for the non-material and aesthetic injury for which compensation was sought. It adds that Mr Berti obtained direct from The Commission contends that a mere the insurance company an explanation of allegation that there was a wrongful act its reasons for refusing to compensate or omission on the part of the assistant him. Moreover, the Commission observes supervising the children is not sufficient that the beneficiaries under the policy to establish liability on the part of the were entitled to make a claim under it Community. It is necessary to be able to solely in the circumstances laid down in show the existence of a cause of damage the contract; therefore, if the parents which may be attributed to the actions of seek to rely on the civil liability of the one of the institutions or to a servant assistants at the holiday camp, it is for thereof in the performance of his duties. them to show that the conditions for On the facts, however, as described in such liability, in particular the existence the accident declaration submitted to La of a wrongful act or omission, are met. In Royale Belge, the insurance company, any case it is for the applicant, regardless there is no conclusive evidence of the of whether his action is based on con­ existence of a wrongful act or omission tractual or non-contractual liability, to on the part of either of the two assistants demonstrate the existence of a wrongful supervising the children at the time of act or omission which caused the the accident. damage. In this case such evidence has not been given. The fact that the child was hurt falling from a swing provided for children by the town of Durbuy The Commission adds that if the action whilst the two assistants accompanying is well founded in principle it will be the group of children were present in no necessary to obtain expert medical way demonstrates the existence of any reports in order to establish the exact wrongful act or omission on the part of nature and extent of the alleged damage the assistants, a requirement which must together with any other information be met in both French and Belgian law. necessary in order to make an objective assessment of the amount of damages claimed.

2 It is apparent from the documents before the Court that, the Director General for Personnel at the Commission informed officials and other employees by a staff memorandum of 5 February 1971 that, "as in previous years, holiday camps will be organized for children during the Easter school holidays of 1971". The memorandum stated that there were three holiday centres to choose from, that the cost of the stay was to be paid by means of a deduction from salary after allowing for the Commission's financial contri­ bution, which was to depend on the amount of the salary, and that the cost included travel and insurance.

3 The Commission had arranged insurance cover for civil liability and personal accidents with the Compagnie d'Assurances Générales Mercator [hereinafter referred to as "Mercator"], but the content of the policies, as became apparent in the course of the proceedings, was not disclosed to the officials and other employees concerned.

4 In response to the Commission's offer the applicant applied for his son, then aged seven, to go to the holiday centre known as "La Petite Merveille" at Durbuy in the Belgian Ardennes, which was reserved for children aged between six and fourteen and had one assistant for every ten children; the

BERTI v COMMISSION

centre was directed and managed by a teaching couple. The centre had arranged insurance with La Royale Belge, but the Commission was unable to produce a copy of the policy.

5 On 7 April 1971, during his stay at the holiday camp, the applicant's son fell while playing in the Place de la Foire [town square] at Durbuy and was hit on the head by a moving swing. The accident fractured his upper jaw, broke four permanent teeth and injured his face.

JUDGMENT OF 7. 10. 1982 — CASE 131/81

11 Mr Berti's lawyer therefore requested the Commission to reimburse the cost of the prostheses and to provide compensation for the non-material and aesthetic injuries suffered by the child. However, Mercator informed the Commission that non-material and aesthetic injuries were not covered by the policy and that as far as the other claim was concerned it considered that the Commission was not liable. Thereupon, the Commission, agreeing with that assessment,.suggested to Mr Berti that "the case be considered closed".

12 The applicant declined and submitted a new and formal request for compensation pursuant to Article 90 of the Staff Regulations. Since his complaint against the implied decision rejecting his request remained unanswered, he brought this action.

Jurisdiction

13 The Commission raises the objection that the Court of Justice has no jurisdiction to entertain the action, maintaining in the first place that it falls outside the scope of the provisions on which it is based, Article 179 of the EEC Treaty and Article 91 of the Staff Regulations. The dispute is between the Commission and a third party, namely the applicant's son, who is neither an official nor a servant, and the application concerns not the annulment of an unlawful measure adopted by the Commission adversely affecting one of its officials, but the Commission's non-contractual liability for the wrongful act or omission of persons alleged to be its agents.

1 4 The defendant maintains in the second place that even if there is considered to be a private contract between it and its staff for the purpose of sending the children of the latter to holiday camps, the Court has no jurisdiction in that matter since the alleged contract contains no arbitration clause within the meaning of Article 181 of the EEC Treaty. The Commission's view is that the action ought in any case to have been brought before the Belgian courts.

18 In the circumstances the Court has unquestionably jurisdiction under Article 179 of the EEC Treaty. The objection that it lacks jurisdiction must therefore be dismissed.

Substance of the case

19 The Commission maintains first that liability for the consequences of the accident attaches not to the Commission but to the assistants — who are neither its employees nor its agents — responsible for supervising the children or to the private undertaking operating the holiday centre, which is a legal person distinct from the Community institutions.

20 In any case, the Commission maintains, the conditions for liability on its part are not met since the applicant has failed to discharge its burden of proving the existence of a wrongful act or omission on the part of either the assistants or the institution.

21 The arguments adduced by the Commission are not germane to the issue. It must be remembered that the above-mentioned staff memorandum on holiday camps referred to "insurance" the cost of which was included in the

JUDGMENT OF 7. 10. 1982 — CASE 131/81

25 Accordingly, the Commission must pay the costs of the prostheses or any plastic surgery which may be necessary in order to repair aesthetic injury caused by the accident. However, non-material injury sustained by the injured child is excluded; compensation for such injury cannot be the subject-matter of an application by the child's father in his capacity as an official on the basis of his employment relationship with the Commission under the Staff Regulations.

26 As far as the amount of the damages is concerned, the parties should be invited to reach an agreement within a specified period. In default of such

BERTI v COMMISSION

agreement within the specified period the Court will decide the issue and give judgment on costs.

On those grounds,

THE COURT (First Chamber),

Delivered in open court in Luxembourg on 7 October 1982.

For the Registrar

H. A. Rühl A. O'Keeffe Principal Administrator President of the First Chamber