C-308/87

OPINION OF MR TESAURO — CASE C-308/87

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 12 December 1989 *

Mr President, 4. On 20 October 1985, when the Members of the Court, agreement was not yet in force, Mr Grifoni, accompanied by an employee of the Centre, Mr Danielato, climbed onto the roof of the Centre's meteorological station in order to take measurements. On that occasion he fell 1. By an application lodged at the Court from a height of approximately 4.5 metres Registry on 9 October 1987 Alfredo and suffered serious injuries. As a conse­ Grifoni, the proprietor of an undertaking of quence of the accident and since the the same name based in Ispra, asks the Commission of the European Communities Court to declare that the European Atomic refused his request for compensation, Mr Energy Community (EAEC) is liable for the Grifoni brought the present action. damage which he suffered as a result of an accident of which he was the victim and, consequently, order the EAEC to pay 5. In support of his application Mr Grifoni appropriate compensation. submits primarily that the EAEC bears contractual liability, and in the alternative that it bears non-contractual liability.

Italian law, which the parties have mation which was available to it . . . the designated as the applicable law; and Commission has incurred liability towards whether, if that is the case, the clause the applicant in respect of that damage'. satisfies the formal conditions laid down in Article 1341 of the Italian Civil Code governing the terms of arbitration clauses. However, I must express my very strong doubts in that regard. As regards the link between the fact which it is claimed gave rise to the liability and the performance of the duties of the institutions or their servants, in my view there is no doubt that that link does exist. In the first 8. With regard to the EAEC's alleged place, I consider that the functions and non-contractual liability, the Court's juris­ duties of an institution certainly include diction is derived from the combined effect ensuring health and safety on the premises of the provisions of Article 151 and the on which it functions. Moreover, any second paragraph of Article 188 of the possible doubts in that regard are removed Euratom Treaty. The latter provision is by the fact that a servant of the institution, couched in terms which leave no room for and specifically the Director-General, has doubt. This Court has exclusive jurisdiction been expressly given the task of taking 'on both when non-contractual liability is behalf of the Commission ... all measures alleged in relation to individual or legislative necessary to ensure the safety of persons acts of the Community, and when the and installations for which he is responsible' damage caused to the victims is itself caused (Commission Decision 71/57/Euratom of by the material conduct ' — acts or 13 January 1971, Official Journal, English omissions — of the institutions or their Special Edition, Second Series, September servants in the performance of their duties. 1974, p. 14). For an example of damage caused by objects or materials which are in the care of or are used by the Communities for performing their institutional tasks and which can give rise to the Community's In support of the above, let me add that the non-contractual liability, one need look no jurisdiction of the Court under Article 188 further than the damage caused by the use of the Treaty deprives the national court of 2 of radioactive substances. jurisdiction, the EAEC being immune from civil jurisdiction in a case such as this precisely because it is one of the entity's own functions which is involved.

10. However, it remains to be considered between the event in question and the whether it is possible to find in Italian law, contract is merely chronological inasmuch which is applicable by virtue of the as the event occurred prior to the entry into pre-contractual agreement, and in particular force of the contract. in Article 1337 of the Italian Civil Code, a 'pre-contractual' liability or culpa in contrahendo. 11. Consequently, from the above consider­ ations it appears that in the present case neither contractual liability nor pre- contractual liability can be said to have been Without its being necessary to express an established. opinion regarding the debate which has arisen within Italian legal and academic circles regarding the nature of such liability — that is, whether it is contractual Non-contractual liability or non-contractual (see 'Commentario breve al codice civile', Cian/Trabucchi, CEDAM 1988, p. 974) — it is sufficient to point out that none of the pre-conditions for such 12. As is stated in the recent judgment of 9 liability are to be found in the facts of the November 1989 in Case 353/88 Briantex v present case. Article 1337 provides that 'in EEC and Commission [1989] ECR 3623, the negotiations and in the drawing up of 'the Court has consistently held [that] the contract the parties shall act in good non-contractual liability on the part of the faith'. First of all, it is common ground that Community and entitlement to compen­ in the present case the parties had gone sation for damage are conditional upon the beyond the stage of negotiating and existence of an unlawful act committed by drawing up the contract. Consequently, one of the Community institutions, on none of the pre-contractual duties estab­ actual damage and on an aetiological link lished by Italian jurisprudence and academic between them'. writers was infringed: neither the duty to provide information regarding the factors necessary to form an accurate idea of the contract, nor the duty of care, nor the duty I doubt therefore whether the three of secrecy. conditions are met in the present case.

Centre is expressly provided for by Article Finally, the Commission explained to the 31 of Annex F to the Agreement of 2 July Court that, in its view, the accident should 1959 between Italy and the EAEC. be classified as an Occupational hazard' which could have been foreseen and avoided with a minimum of standard Secondly, there has been an infringement of precautionary measures. Article 10(3) of Commission Decision 71/57 of 13 January 1971 on the reorganization of the Joint Nuclear Research Centre (Official Journal, English Special Edition, Second 15. I must say straight away that the Series, September 1974, p. 14), which Commission's arguments appear to me to be imposes on the Director-General the duty to minimalist and in any event concentrated on take 'on behalf of the Commission ... all only the hypothesis of contractual liability, measures necessary to ensure the safety of which I have ruled out. The reference to persons and installations for which he is clause 8 of the pre-contractual agreement is responsible'. thus irrelevant for the simple but very good reason that it was not yet in force at the material time. I leave aside, yet again, my Thirdly, several conventions and recommen­ very strong doubts concerning the validity, dations of the International Labour Organ­ for the purposes of Italian law, of clause 8 ization (ILO), which constitute common which, in so far as it limits liability and the general principles in the laws of the Member capacity to raise objections, should have States, were infringed. been expressly agreed to under Article 1341 of the Italian Civil Code, under penalty of nullity. 14. The Commission's defence consists mainly in denying ab initio the existence of non-contractual liability, placing the facts of the present case within the scope of However, the Commission has made no contractual liability; however, the submission to challenge the argument that it Commission itself hastens to deny in theory bears non-contractual liability and confines the existence of the pre-conditions for such itself to acknowledging that it is a question liability. At the hearing, the Commission's of 'objective' liability, or liability without agent was particularly clear on two points fault. which had given rise to uncertainty at the written stage of the proceedings, when he stated:

(i) Mr Grifoni was not a worker subor­ The observations I have just made are dinate to the Centre, nor was he (yet) particularly relevant to a case such as the related to it by a contract for tender; one now before the Court in so far as, in he was merely a third party; the first place, it would be strange for the victim of an accident to receive protection, if he were entitled to it, which was inferior to that provided for by the Member State in (ii) It is common ground that Mr Grifoni which the accident occurred; in the second had been 'called in' by officials of the place, the immunity from the civil law of the Centre to take measurements on the Member State which exists in a case such as abovementioned 'cantilever roof' which this, and which is the result of the Court's gave access to the meteorological jurisdiction under Article 188 of the equipment on the roof, a place which Euratom Treaty, must not result in a was not known to Mr Grifoni; significant loss of protection.

In the Italian legal system, besides the extremely general provision on non­ (iii) It is common ground that the officials contractual liability, based quite simply on of the Centre were in possession of the the principle of neminem laedere (Article key to the door giving access to the 2043 of the Civil Code), at least two other 'cantilever roof', which was normally provisions of the Civil Code (all applicable locked, and that on the occasion in to the civil service) come into consideration question one of the officials, Mr with regard to the present case, namely: Danielato, accompanied Mr Grifoni, opening the door and thus allowing Article 2051, which provides that: him access.

which, being a further elaboration of the work' is the same as 'for the purpose of principle in question, makes provision for work', in so far as it exists whenever the liability for damages caused by objects in a interests of the employer, production or person's care on the assumption that there circumstances relating to the employment was effective control over the object. relationship are found. Despite the Commission's half-hearted attempt at the hearing to deny that this was an accident at work, it is common ground that Mr Grifoni was on the 'cantilever roof' at the Centre 20. In the first case, liability is based on the for the purpose of carrying out work and notion of fault and the relevant burden of certainly not as a mere courtesy. proof lies with the person who suffered the damage; in the second case, the custodian's liability is, on the contrary, based on a presumption of fault and the burden of proof is reversed (res ipsa loquitur). In any 23. The legislation which is relevant in the event, the difference is not relevant in the present case is contained in Articles 26 and present case in so far as it is common 27 of the rules on the prevention of ground that the Centre did not take any accidents at work (Presidential Decree precautions at all, either in respect of its 547/55) and Article 10 of the rules on the employee Mr Danielato or Mr Grifoni, to prevention of accidents in the construction prevent the accident, which substantiates the industry (Presidential Decree 164/56), Centre's fault. which are relied on by Mr Grifoni, as I have said; there is also the abovementioned general provision in Article 2087 of the Italian Civil Code, which lays down the general principle of accident prevention and 21. As regards the suggestion that Mr is applicable both to private entrepreneurs Grifoni was partly at fault, that does not and to public bodies. emerge from any of the documents before the Court, since the Commission, with which the burden of proof lay, neither proved that that was the case nor asked for That having been said, a dispute has arisen it to be proved. as to whether the abovementioned special rules are applicable — as claimed by Mr Grifoni but denied by the Commission — to the present case. 22. Let me also add that, besides the usual general provisions on civil liability, the Italian legal system, like most legal systems, contains more specific rules for the 24. In principle, the Centre was subject to prevention of accidents at work. The fact the abovementioned body of rules as well as that in the present case an accident at work to the Italian law on civil liability. In the is at issue cannot reasonably be disputed, as first place, the legislation on the prevention the substantial case-law shows. The concept of accidents at work is, in Italy, of so-called of an accident at work covers in fact any compulsory application ('applicazione accidental event which occurs suddenly at necessaria'), since it is related to clear social work, which causes death or permanent requirements which cannot be derogated incapacity for work, whether total or from; and the fact that the EAEC enjoys partial, or temporary total incapacity which certain privileges and immunities in the causes absence from work. Moreover, 'at State in which it is based does not exempt it

25. More generally, it should be pointed out that as well as applying the legislation on accident prevention, the courts, both commendably and legitimately, have not Article 27 provides that 'parapets shall be failed to draw every useful consequence provided on scaffolds, gangways, working from the fundamental constitutional platforms, and elevated working places and principle (Article 32) of the absolute right of passageways'. That provision has been held the individual, and the corresponding to apply not only in the construction interest of the community, to physical industry but whenever work is carried out at safety, a right which is defined as 'irrevo­ a height of more than one and a half metres cable and inalienable'. In that context, the and also to the case of occasional work courts have, first of all, held that 'a (judgment of the Italian Court of Cassation "workplace" must be interpreted as of 29 October 1984, Rivista penale 1985, meaning not only the pre-established place p. 922). where the worker normally expects to carry out tasks appointed to him, but also all other places where the same worker, even if merely exceptionally, may go to fulfil the requirements of his employment' (judgment In addition there is the more specific legis­ of the Court of Cassation of 11 October lation on the prevention of accidents in the 1979, Rivista penale 1980, p. 584).

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GRIFONI v COMMISSION

penale 1985, p. 606). of the Treaty, it is sufficiently clear that the Centre has failed to fulfil the undeniable duties of care and prevention which exposure to the risk of a fall from the 26. As regards the case at issue, it seems to cantilever roof imposed. me that in view of the facts described above it cannot be assessed without taking into consideration the legal report drawn up for In my opinion, there is no doubt that it can the occasion by the experts of the Unità be demonstrated that there is a duty of care socio sanitaria locale (USSL) No 5 (annexed

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OPINION OF MR TESAURO —CASE C-308/87

discussion of that issue is possible only and exclusively if control of the 'cantilever roof' had already been transferred from the 28. The duty in question fell to the Centre Centre to Mr Grifoni, as happens when the in so far as it was the Centre which principal 'consigns the work' to the controlled and supervised the premises as a successful tenderer and therefore transfers whole. Moreover, as a body of which subor to him all control of, and responsibility for, dinate workers had expectations the Centre the property on which the work ordered is is subject to the specific obligations imposed to be done. In that regard, moreover, it on owners of undertakings by Article 2087 must be pointed out first that according to of the Italian Civil Code and the special Italian case-law it is occasionally necessary accident prevention rules which it contains. to ascertain whether the organization of the By that I mean that the Centre is under an work has been entrusted wholly to the obligation to prevent accidents at work successful tenderer or whether, on the regardless of Mr Grifoni's incident (and it is contrary, the principal has reserved some worth pointing out that Mr Danielato power of control over the performance of himself, an official of the Centre, was the work. The successful tenderer has exposed to the risk in question); and that exclusive liability for accidents only in the therefore the relevance of those obligations, first case ('when the successful tenderer is and indeed their existence or otherwise, not working absolutely autonomously, the does not depend on Mr Grifoni's presence principal, who participates in the or the nature which may be ascribed to the performance of the work, is also liable for relationship between Mr Grifoni and the failure to adopt accident prevention Centre. measures, and in such a case is also under a duty to ensure safe working conditions with regard to the work contracted out': judgment of the Court of Cassation, Criminal Division III, of 27 November 1989, No 11513). Consequently, the idea that the Centre was not under an obligation to prevent the accident merely because Mr Grifoni was not an employee of the Centre must be rejected

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roof was under the exclusive 'control' of the (i) complete invalidity for work for nine Centre, inasmuch as it was inaccessible to months; any stranger who was not accompanied by an official of the Centre who had in his possession the key to the door which gave access to the roof.

(ii) capacity for work reduced by 70 %.

29. It scarcely needs pointing out that the legislation to which I have referred, in particular the general rules on civil liability, corresponds to general principles common to the laws of the Member States in the relevant field, and that the specific accident 32. In his application Mr Grifoni reserved prevention rules correspond exactly to the the right to quantify, during the aforementioned ILO rules. proceedings, the amount of damage he suffered. The Commission, which denied liability for causing the accident, has however, in the alternative, criticized the results of the aforementioned medical report. In particular it contested 'the extent of the injuries complained of by Mr Grifoni 30. Moreover, since there is in the present and which of those injuries was caused by case, without there being a need for me to the fall and which on the other hand are to make any further comment, a causal link be attributed to the applicant's previous between the Centre's failure to act and the pathological conditions', and it reserved the accident which occurred, and even real and right to 'carry out independent checks and considerable damage, I consider that the appropriate preliminary investigations if and EAEC bears non-contractual liability under when its liability is established'. Article 188 of the Treaty.

(iii) order the Commission to pay the costs.

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