C-333/90
ECLI:EU:C:1992:14
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ROYALE BELGE
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 16 January 1992*
Mr President, the sums disbursed by it, amounting to BFR Members of the Court, 60 837. Mr Joris contended that the action was inadmissible since on 23 November 1982 — before the date on which the Commission had paid its official the benefits to which he was entitled under the Staff Regulations — a settlement had been concluded between Mr Joris and Mr Hinger 1. On 19 June 1982, Guy Hinger, an under which the latter had received BFR official of the European Communities was 32 000 as compensation for the damage the victim of a target-shooting accident for suffered as a result of the accident. That which — all parties agree — Robert Joris settlement had, in the defendant's opinion, was responsible. discharged his entire liability, Mr Hinger having acknowledged in writing, as is apparent from the receipt for the amount paid by way of settlement, that he had no further claim on Mr Hinger or his insurer. Consequently, in Mr Joris's view, Mr Following the accident, the Sickness Fund Hinger had no further entitlement; of the European Communities paid for Mr accordingly, the Commission of the Hinger's medical and pharmaceutical European Communities and, in its stead, expenses. The Commission also paid him Royale belge, could not, by way of subro- the sum of BFR 50 218, having determined gation, exercise rights which no longer that he had suffered 1% permanent partial existed. incapacity. That amount, together with BFR 10 619 for medical expenses not covered by the Sickness Fund, was reimbursed by the Royale belge insurance company under a policy concluded with it by the Commission. Under that policy the insurer was subrogated to the rights of the Commission, Faced with this difference of views, the which had previously been subrogated, Tribunal de Paix, Luxembourg, referred a under the Staff Regulations of Officials, to question to this Court for a preliminary Mr Hinger's rights. ruling on the interpretation of the relevant provisions of the Staff Regulations, both in the version in force at the material time (Article 73(4)) and in the present version (Article 85a(l)). In particular, the national court, taking the view that the settlement Relying on that subrogation, Royale belge may or may not be relied on depending on instituted proceedings against Mr Joris the time of the subrogation, asks whether before the Tribunal de Paix (Magistrates' the statutory subrogation of the Court), Luxembourg, in order to recover Communities took place upon the
* Original language: Italian.
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occurrence of the harmful event or as a 3. I think, however, that reference to the result of the payment made. automatic nature of the subrogation is not a sufficient answer to the question at issue, in that it remains to be established at what moment the automatic transfer takes place.
2. In should be borne in mind from the outset that Article 73(4) of the Staff Regu- In support of the view that it takes place lations, in force at the material time, upon the occurrence of the harmful event provided that "Within the limits of the obli- reference was made on several occasions, gations devolving upon them under Articles both in the written procedure and at the 72, 73 and 75, the Communities shall auto- hearing, to the Opinion of Mr Advocate matically assume the rights of redress of the General Warner in Joined Cases 63/79 and official or of those entitled under him 64/79, 2 in particular the passage in which it against the third party responsible for an is stated that the subrogation in favour of accident involving the death or injury of an the Communities meant that 'the official or official or a person covered by his those entitled under him are wholly divested insurance'. This does not differ greatly, as of their rights (within the limits of the obli- far as is relevant to the present case, from gations of the Communities'. the text of Article 85a(l) which is now applicable. '
Now, whilst it is true that the peremptory assertion that Community officials are deprived of any standing to bring an action against the third party, without any From the — infelicitous — wording of reference being made to payment, appears Article 73(4), it is apparent first that the to support the argument put forward, I subrogation in favour of the Communities cannot fail to point out that there is in fact relates only to the benefits provided for by no indication of the time from which, where the Staff Regulations; consequently, the there is subrogation in favour of the right to any benefits not covered by the Communities, the persons covered by the Staff Regulations remains vested in the Staff Regulations 'are wholly divested of victim or his beneficiaries. Secondly, it is their rights'. In other words, Mr Advocate clear that there is an automatic subrogation General Warner's interpretation, which in in that it occurs without the need for prior any event related to a case in which consent by the . person whose rights are compensation by the third party was transferred. awarded after payment of the benefits under the Staff Regulations, indicates the effects 1 — Article 85a(l) provides 'Where the death, accident, injury of the subrogation but does not indicate the or sickness of a person covered by these Staff Regulations is caused by a third party, the Communities shall, in time at which those effects arise. respect of the obligations incumbent upon them under the Staff Regulations consequent upon the event causing such death, injury or sickness, stand subrogated to the rights, 2 — Joined Cases 63/79 and 64/79 Boizard v Commission including rights of action, of the victim or of those enuded [1980] ECR 2975, Opinion at p. 2992, in particular p. under him against the third party*. 2998.
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4. In the present case, however, it is It does not seem to me that there can be necessary to establish whether the subro- any reasonable doubt that such a circum- gation, as provided for in the Staff Regu- stance can -be established as soon as the lations, involves, after the accident and harmful event occurs. Suffice it to observe irrespective of payment, a transfer of the that entitlement to the benefits under Article victim's rights to the institution 72 of the Staff Regulations (medical and concerned — in essence, whether the right pharmaceutical expenses) is always of subrogation in favour of the guaranteed in any event and that accidents Communities may be seen as an 'atypical' not covered by Article 73 (which is speci- form of subrogation. 3 fically concerned with the benefits paid following accidents) are clearly indicated in the rules adopted for its implementation.
In that connection, it was argued in the course of the proceedings that the very fact that the subrogation in favour of the Indeed, in view of the fact that the Communities is stated to be within the limits Community institutions are required to pay of the obligations incumbent on them out social security benefits even after an following the harmful event and not within accident attributable to a third party, it the limits of the benefits actually paid follows that the Communities certainly bear implies that the subrogation takes place with at least some of the consequences of the effect from the time of the harmful event. harmful event — at the very least, the medical and pharmaceutical expenses covered by the Sickness Fund. In my opinion it is thus sufficient, for the purposes of subrogation, that the damage suffered by the official (or part of such damage) should place the Communities under an obligation to pay certain social-security benefits; the It must, I think, be concluded that such a specific consequence will be that the official provision implies at the very least that will be divested of the right to claim payment is not an essential precondition for compensation for that damage from the 'subrogation' of the Communities to the third party. rights of their employees. For subrogation to take place, as is apparent from the very expression used, it is, on the other hand, sufficient to establish that the Communities are under an obligation, by virtue of the Staff Regulations, to pay social benefits to their employees, the effect of which is, as It must be added, as the Court itself has far as the present case is concerned, to stated, 'the purpose of the right of subro- compensate for damage suffered through an gation enjoyed by the Communities is to accident attributable to a third party. prevent an official from being compensated twice in respect of the same damage'. 4 3 — I would point out that in the laws of all the Member States, the concept of 'subrogation' relates exclusively to the subrogee's assumption of the rights of the subrogor as 4 — Case 103/81 Ckaumont-Battkd v Parliament [1982] ECR a result of, and after, the payment. 1003, paragraph 11 of the judgment.
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Whilst it is true that that purpose can be takes place as soon as the harmful event achieved in various ways (and even without occurs, I have some doubts as to whether subrogation), it must nevertheless be that subrogation takes effect, in a similarly recognized that, since the Communities are automatic manner, as against the third in any event required to pay the benefits to party, to such an extent as to preclude which the official is entitled under the Staff reliance on a settlement validly arrived by Regulations, the possibility of overlapping him under ordinary law. benefits can be avoided only if the official is deprived of any standing to bring proceedings for compensation against the third party — to the extent to which, of Let me say straight away that I am not course, that damage is in any event to be convinced by the Commission's argument compensated for by the Communities that the third party, even though he acted in through the benefits provided for in the good faith, may not, by virtue of the fact Staff Regulations. that the Staff Regulations are a Community regulation which is thus directly applicable in all the Member States, set up the defence of due payment.
The foregoing observations thus bring me to the view that the subrogation of the 6. I would point out first that the Staff Communities to the rights of its employees Regulations are essentially intended to takes place upon the occurrence of the govern the position of officials in relation to harmful event. the institutions which employ them. Whilst it is true that the Court held in Case 137/80 that 'the Staff Regulations, in addition to having effects in the internal order of the Community administration, are binding on 5. That conclusion answers the question in the Member States in so far as their colla- the form in which it has been submitted by boration is necessary in order to give effect the national court; however, I feel that I to those regulations', 5 and therefore should go into further detail on the issue of indicated that the Staff Regulations may reliance upon a settlement arrived at also have effects vis-à-vis third parties, I between the third party and the Community have some difficulty in admitting that a employee and, more generally, the question provision of the Staff Regulations such as whether it is possible for a third party who that which concerns us here also has an has paid compensation for the damage effect — a direct effect — upon the directly to the employee to rely on that subjective rights of a third party to such an payment as against the Community extent that he is deprived of the right to institutions. conclude a settlement or that the exercise of that right is rendered nugatory, with the result that the settlement cannot be relied on to protect his interests — a result, moreover, constituting a derogation from the ordinary law governing subrogation in In my opinion, it is necessary to distinguish relation to liability for damage. It should the relationship between the official and the also be remembered that the view expressed Community institution from the relationship by the Court in the case cited concerned a between that institution and the third party. Whilst it is true that the subrogation of the 5 — Case 137/80 Commission v Belgium [1981] ECR 2393, Communities to the rights of the official paragraph 8 of thè judgment.
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situation in which the full effectiveness of whom the Staff Regulations apply 6 ), I the provision of the Staff Regulations in consider that in the present case there are question (which it had been called on to other factors which militate against the examine) could be ensured only through Commission's argument. collaboration of the Member States. In the present case, however, the position is undoubtedly different.
Apart from the obvious fact that the effect claimed by the Commission would in any As is apparent from its very structure, the event be limited to accidents occurring provision concerning subrogation is unde- within Community territory, I would point niably addressed first and foremost to out that certain provisions of the Staff officials, who are required to comply with Regulations refer to specific rules which, as it. In that regard, it is sufficient for them it were, constitute the detailed arrangements not to accept from the third party any sum for their application. That applies to Article in respect of damage already compensated 73 of the Staff Regulations, the provision at for or which should be compensated for by issue here, by virtue of which officials are the institution concerned. covered against risks of accident 'subject to rules drawn up by common agreement of the institutions of the Communities after consulting the Staff Regulations Committee'. The Rules on the insurance of Any different solution would have the effect officials of . the European Communities of making the third party responsible for the against the risk of accident and occupa- accident bear the entire burden of an tional disease adopted in implementation of infringement by an official of the provision Article 73 of the Staff Regulations are rules of the Staff Regulations in question, in so lacking any external significance which, far as he would have to commence legal inter alia, deal with the events for which proceedings in order to recover the sum compensation is available and the risks paid. On the other hand, the infringement which are not covered. by the official of a provision specifically addressed to him would become meaningless within the Community adminis- tration.
Only knowledge of those rules would enable a third party to establish whether or not an official was covered by the 7. That is not all. Even if it were assumed Community insurance for that kind of that everyone residing within the accident. I shall merely say, in that regard, Community was necessarily aware of the that a solution which placed on the third existence of provisions of the Staff Regu- party responsible for an accident of which a lations which might be applicable to them merely through their coming into 'contact' 6 — It is perhaps not inappropriate to point out that the Staff with a person governed by the Staff Regu- Regulations apply to people covered by an official's lations (and if it is taken for granted that it insurance and that, as far as medical and pharmaceutical expenses are concerned, the Communities' right of subro- is possible in all cases to identify people to gation extends to those benefits as well.
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Community official was the victim the given that the official is entirely divested of burden of knowing not only the Staff Regu- his rights as soon as the harmful event lations but even a set of internal rules would occurs, that the institution itself to which lack any legal basis. the official belongs may waive its right to take proceedings against the third party, thus allowing the official to arrive at a settlement. The latter hypothesis would confirm :— if confirmation ' were needed — that any settlement may indeed be invoked by the third party, he not being required to
8. As far as those rules are concerned, I be aware either of the existence of the rules also feel that I should draw attention to in question or, still less, to know whether or Article 8 of them, a provision which itself not the official had permission from the lays down the conditions for subrogation in institution in question to agree to a the event of accidents, providing, in its first settlement by way of compensation for the paragraph, that the benefits and allowances damage suffered. under the Staff Regulations are to be paid only 'on condition that they subrogate the European Communities to their rights and proceedings against any responsible third
party'. 9. Finally, it must be emphasized that by virtue of a principle recognized in the laws of all the Member States — I refer to the principle of the protection of legitimate expectations — the rights of people who have acted in good faith are safeguarded. In I must presume, given the conflicting particular, with regard to the matters at wording of the Staff Regulations, that that issue in this case, it must be observed that provision has, by implication, been repealed. the legislation of all the Member States, and However, whilst on the one hand I cannot also the relevant case-law, provide adequate fail to draw attention to the extreme safeguards for any third party who has ambiguity and uncertainty deriving from made direct payment to the victim for such a situation, on the other I d ó not damage arising from any accident. 7 conceal the fact that difficulties of interpre- tation arise from the second and third para- graphs of that article, in particular where — for the purposes relevant to this case — it provides that 'In order to seek an amicable settlement of their claims or to 10. In view of the foregoing, I consider that compound with the third party, the official the third party responsible for an accident or those entitled under him must obtain the of which a Community official is a victim consent of the institution to which the 7 — In particular, having regard to everything said in the official belongs'. Two explanations are course of the proceedings, I would emphasize that • even possible: either, by inserting in the Staff the Luxembourg' legislation referred to, on the basis of which the social security authorities are subrogated to the Regulations a specific provision (Article rights of the insured as soon as the harmful event occurs 85 a), which now governs all cases of subro- and thus enjoy their own right of recourse against third parties, provides that where, despite the existence of the gation, the intention was to repeal Article 8 machinery thus created, the insured hás already received compensation for the damage from the third party in its entirety (needless to say, in such a case responsible, the social security authority will 'set off-against formal repeal would have been desirable); the benefits due to the victim the amount received by the latter from the third parry (Articles 118 and 237 of the or that provision must • be taken to mean, Code des Assurances Sociales).
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may validly set up the defence of due institution that is subrogated to the rights of payment against the institution which has its employee upon the occurrence of the been subrogated to the official's rights. A harmful event; the subrogation of the different approach would be called for only insurer to the rights of the institution, if the Community institution had informed resulting from a contract and governed by the third party of the existence of the right ordinary Belgian law, does not take place of subrogation and its wish to exercise that until later, as a result of the payment. It right. follows that the Community institution's insurer is not entitled to take action against the third party unless payment has been made, that is to say at a later stage. In any event, therefore, it would be the responsi- bility of the Community institution to The principle whereby subrogation takes approach the third party; any other course place automatically must therefore be taken would, in the present case, mean that the to apply in such a way that subrogation Commission itself undermined its insurer's takes place even without the prior consent right of subrogation. of the official or the persons entitled under him and not as meaning that it takes place without any notification to the third party whereby the institution concerned informs the third party of the existence of, and its wish to exercise, the right of subrogation conferred by the Staff Regulations. Only such an expression of intention, I repeat, would have the effect of precluding reliance I I . The foregoing observations do not of on a settlement as against the institution. course imply that officials may be compensated twice for the same damage. The relevant provision of the Staff Regu- lations must in fact be interpreted as meaning the official or the persons entitled under him are liable to the Community In fact, the Commission, replying in writing institution for any prejudice to its right of to a question put to it at the hearing, stated subrogation. In other words, the that it did not inform Mr Joris of its enti- Community official is wholly liable to the tlement to bring an action as subrogee, institution concerned for conduct preventing since, in view of the reimbursement the institution from having recourse, to the obtained from Royale belge, such an action appropriate extent, to the third party. would be virtually pointless. And indeed, the medical expenses covered by the Community Sickness Fund in connection with the facts of this case were not the subject of any subrogation.
The institution concerned therefore may I cannot agree with the Commission's and must deduct the amount already argument. I shall merely say that under the received by its employee if it has not already Staff Regulations it is the Community paid the benefits due under the Staff Regu-
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lations; or else seek, by an action for the responsible for the accident may rely in recovery of undue payments, reimbursement defence on a previous payment to the of the difference where the official has Community institution concerned, unless already received both compensation from that institution told him in advance of the the third party and the benefits provided for existence of the right of subrogation and of by the Staff Regulations. its intention to exercise it; (c) the official is liable to the institution if he has adversely affected the latter's right of subrogation.
In short: (a) the right of subrogation in favour of the Communities arises auto- I would add that the solution suggested here matically, as regards the official, as soon as is the same as regards Article 85a(l) of the the harmful event occurs; (b) the third party Staff Regulations.
12. In the light of the foregoing considerations, I propose that the Court give the following answers to the question referred to it by the Tribunal de Paix, Luxembourg:
(a) Article 73(4) of the Staff Regulations and the new version thereof contained in Article 85a(l) are to be interpreted as meaning that the subrogation of the Communities to the rights, including rights of action, of a person covered by the Staff Regulations, or persons entitled under him, as against a third party responsible for an accident — up to the amount of the benefits paid in fulfilment of obligations under the Staff Regulations — takes place as soon as the harmful event occurs;
(b) the subrogation takes effect as against the third party only after the institution concerned brings to the notice of the third party the existence of the right of subrogation and its intention to exercise it;
(c) the Community employee is liable to the institution employing him where he adversely affects the latter's right of subrogation by concluding a settlement or taking some other action; in such circumstances the institution may deduct the amount already received by the official or his beneficiaries from the benefits due under the Staff Regulations if it has not already paid them or else bring proceedings to recover overpayment.
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