C-428/92
ECLI:EU:C:1994:136
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DAK
OPINION OF ADVOCATE GENERAL LENZ delivered on 14 April 1994 *
Mr President, expenditure was incurred following a frac Members of the Court, ture sustained by the child (Nadine Leipelt) in a road accident while she was on holiday in Denmark. The accident was caused by a motorist insured with LB.
A — Introduction
3. DAK bases its claim on the rights of the accident victim, to which it claims to be sub rogated, to the extent of the sums in ques 1. The Østre Landsret has referred to the tion, under Paragraph 116 of Part X of the Court four questions on the interpretation German Sozialgesetzbuch (Social Security of Article 93 of Regulation (EEC) Code). Under that provision, No 1408/71, 1which concerns the rights of institutions responsible for benefits against liable third parties.
'An insurer or institution responsible for social security shall be subrogated to rights 2. Those questions arise in proceedings in under other statutory provisions to compen which Deutsche Angestellten-Krankenkasse sation for damage, to the extent that, as a (DAK), a social security institution within result of the event giving rise to the damage, the meaning of Regulation No 1408/71, it has to pay social security benefits which seeks reimbursement by the Danish insur serve to make good damage of the same kind ance company Laererstandens Brandfor and relate to the same period of time as the sikring G/S (hereinafter 'LB') of sums paid compensation payable by the party causing by DAK for the transport from Denmark to the damage.' Germany and the hospital treatment in those two countries of a child insured by it. The
* Original language: German. 1 — Council Regulation of 14 June 1971 on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving 4. LB does not dispute that the conditions in within the Community; see the consolidated version intro duced by Regulation No 2001/83 (OJ 1983 L 230, p. 8). that provision are met. It submits, however,
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that in view of Paragraph 17(1) and Para 6. The first point was whether the Danish graph 22(2) of the Danish Law on liability legislation as such precluded claims by DAK for damages (Erstatningsansvarslov) DAK against LB. In DAK's opinion, that was not has no claim against it. Those provisions read the case, since the provisions were only rules as follows: on recoupment, not provisions of substantive law on liability for damages. They did not take account of foreign systems of sickness insurance.
Paragraph 17(1):
'Benefits under the social legislation, includ 7. LB argued, on the other hand, that the ing unemployment benefits, medical assis insurance concluded by DAK for the injured tance, pensions under the social pension leg party came under the said provisions of islation and benefits under the Law on Danish law, and DAK thus had no claim industrial injury insurance to which an against it. injured party or a survivor is entitled cannot form the basis for a recoupment action against the party liable for the damage.'
8. The second point at issue between the Paragraph 22(2): parties assumed that the Danish legislation precluded a claim by DAK. That point con cerned the effect of Article 93 of Regulation No 1408/71 on the outcome of the proceed ings. Paragraph 1 of that article states that:
'In the case of life assurance, accident or sickness insurance or other personal insur ance, the company has no claim against the person liable for damage, whatever the nature of the insurance.'
'If a person receives benefits under the legis lation of one Member State in respect of an injury resulting from an occurrence in the 5. In that context, the parties to the main territory of another State, any rights of the proceedings discussed two distinct points of institution responsible for benefits against a law before the national court. third party bound to compensate for the
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injury shall be governed by the following icle 93 was to be regarded as a rule of private rules: international law governing the entitlement to bring an action. Article 93 did not deter mine the question of which claims had to be recognized.
(a) where the institution responsible for benefits is, by virtue of the legislation which it administers, subrogated to the rights which the recipient has against the third party, such subrogation shall 11. The Østre Landsret did not expressly be recognized by each Member State; decide the first point, on the precise scope of the Danish rules. However, from the fact that it requested the Court of Justice to interpret Article 93 of Regulation (b) where the said institution has direct No 1408/71 and from the wording of its rights against the third party, such rights fourth question it may be deduced that it shall be recognized by each Member regarded DAK's claim as excluded under State.' Danish law.
9. DAK considered that Article 93(1)(a) conferred a right to recoupment on a foreign 12. The questions referred by the Østre institution which, as in the present case, was Landsret are as follows: subrogated to the rights of the injured party against the insurance company bearing the liability. The Danish provisions in question could not deprive Article 93 of effect. That provision limited the right to recoupment 1. Is Article 93 of Council Regulation only to the extent that the injured party's No 1408/71 to be interpreted as govern right to compensation might be restricted by ing only the conditions for the right of the provisions of substantive law governing the institution responsible for benefits to that right in the State where the injury be subrogated to the rights of the injured occurred. party against a third party or does it also govern the rights to which the institution responsible may be subrogated?
10. LB countered that Article 93(1)(a) of Regulation No 1408/71 was merely a rule on the substitution of one creditor for another 2. If Article 93 also governs the rights to (subrogation), while the precise content of a which the institution may be subrogated, claim for recoupment had to be determined is the decision on that point to be taken in accordance with the substantive law of the under the legislation of the State in which country in which the injury occurred. Art the institution responsible is established
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or under the legislation of the State in on the effects of the subrogation of rights to which the injury occurred? compensation, under a provision such as Paragraph 116 of the SGB X, on the relation ship between the insurer and the third party liable. It is certain that without that provi sion Miss Leipelt would have been entitled to bring an action for the amount claimed. It 3. Is Article 93 to be interpreted as also is also clear that the conditions under Ger determining which of the rights to which man law for the subrogation of DAK are ful the institution responsible is subrogated filled. 2 can be enforced in the State where the injury occurred against the liable third party?
4. Is Article 93 to be interpreted as also affording a basis for a recoupment action 14. LB has argued, however, that in view of by the institution responsible against the certain conditions in Article 93 there could liable third party in a case in which such be doubt as to the relevance of the questions an action would otherwise have been pre referred with respect to part of the sum cluded under the legislation in the State in claimed, and the Court of Justice ought in which the injury occurred as a result of any event to answer a preliminary question rules corresponding to Paragraph 17(1) with respect to those conditions. More spe and Paragraph 22(2) of the Danish Law cifically, LB considers that the part of the on liability for damage? payments by DAK which relates to the stay in hospital in Denmark and transport from Denmark to Germany was not paid under the legislation of a Member State other than that in which the event causing the injury occurred. It considers that the Court of Jus B — Opinion tice should rule on that point of its own motion.
Preliminary remarks 15. On that point it should be stated, firstly, that that argument cannot even cast doubt on the relevance of the questions referred, which cannot be disputed in any case in view of the remainder of the sum. Moreover, the Court of Justice does not check whether the
13. 1. By their wording and context, the Østre Landsret's questions focus exclusively 2 — See paragraph 4 above.
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national court was correct in regarding the merely invited to be heard in the course of questions referred by it as necessary to that procedure. LB's suggestion can there 3 enable it to give judgment. It is necessary fore not be followed. only that .certain minimum requirements based on the purpose of Article 177 are com plied with. That is the case here. The grounds stated in the order allow the Court to exclude the possibility that the questions referred relate to a general, purely hypothet 4 ical problem which clearly has no connec 17. 2. In the light of the order for reference, tion with the facts or subject-matter of the the Østre Landsret's questions can be 5 divided into two groups. main proceedings. LB's argument can therefore not be used to cast doubt on the admissibility of the questions referred.
18. The first two questions are based on the idea that it might perhaps be necessary to distinguish between the principle of subroga tion and the question of which rights the insurer is subrogated to with effect for all Member States. The questions essentially ask whether Article 93 governs which rights the institution responsible for benefits may be 16. Secondly, it should be observed that the subrogated to, and if so, which legislation Court does not have to give an answer of its Article 93 refers to in this respect. own motion to the preliminary question on the aforesaid condition of Article 93, if only because that condition is undeniably fulfilled because of the sum relating to the stay in hospital in Germany. Apart from that, as regards the suggestion by LB that that ques tion should be answered, I refer to the con 19. The last two questions apparently assume sistent case-law on the nature of the proce that the Danish legislation relates not only to dure under Article 177 of the Treaty. the subrogation of the rights in question but According to that case-law, Article 177 also to the possibility of enforcing such envisages direct cooperation between the rights against the liable third party. They Court of Justice and the national courts by concern the point whether Article 93 also way of a non-contentious procedure exclud gives the institution responsible that possi ing any initiative of the parties, who are bility, to the exclusion if need be of contrary rules of the Member State in which the injury has occurred.
3 — Judgment in Joined Cases 98/85, 162/85 and 258/85 Bertini v Regione Lazio [1986] ECR 1885, paragraphs 5 to 8. 4 — See the judgment in Case C-127/92 Enderby [1993] ECR I-5535, paragraph 10. 6 — Judgment in Case C-364/92 SAT-Fluggesellschaft v Eurocon- 5 — See the judgment in Joined Cases C-332/92, C-333/92 and trol [1994] ECR I-43, paragraph 9; judgment in Case 44/65 C-335/92 Eurico Italia [1994] ECR I-711, paragraph 17. Hessische Knappschaft v Singer [1965] ECR 965, at page 971.
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Questions 1 and 2 8 to Article 52 of Regulation No 3, the pre decessor of Article 93(1) and with substan tially the same wording as it, the Court held as follows:
20. According to Article 93(1), 'where the institution responsible for benefits is, by vir- tue of the legislation which it administers, subrogated to the rights which the recipient 'The substitution provided for in Article 52 has against the third party, such subrogation in favour of the national social security insti shall be recognized by each Member State'. 7 tutions constitutes the logical and fair coun terpart to the extension of the obligations of the said institutions throughout the Commu 9 nity.'
21. That wording does not distinguish between the question of the principle of sub rogation and the further question of which 23. As the German Government has cor of the injured party's original rights the rectly pointed out, the rule, the reason for institution is subrogated to. which is as stated, helps to ensure that the possibility of bringing recoupment actions against third parties, which is one of the sources of finance of the competent institu tion, is not made more difficult by the fact that the third party is proceeded against in another Member State; the peculiarities of 22. The conclusion drawn from that gram the way in which the institutions of that matical interpretation, namely that both State are financed are not to have any influ questions are subject to the legislation ence here. administered by the institution responsible for benefits, is in harmony with the function and purpose of the provision at issue. Art icle 93(1) can be explained by reference to the principle of Regulation No 1408/71 that persons to whom the regulation applies are to be subject to the legislation of a single 24. It would not be compatible with that Member State only (see Article 13(1)). The purpose, however, if only the principle of competent institution of that Member State subrogation was subject to the conflict-of- 10 is also responsible for providing benefits, as laws rule in Article 93, while the determi- follows from Articles 22 and 93, in cases where the injury occurs in another Member State. On this point, in a judgment relating 8 — OJ No 30 of 16 December 1958, p . 561. 9 — Judgment in Hessische Knappschaft (cited in footnote 6 above), p. 972. 10 — As it was aptly characterized by Advocate General Gand in his Opinion in Case 31/64 De Sociale Voorzorg v Bertholet 7 — My emphasis. [1965] ECR 81, at page 90.
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nation of the rights which could be the sub 28. The said provision provides that the ject of subrogation depended on the rules in 'subrogation' which has operated by virtue force in the State where the injury of the legislation which the institution 1 occurred. 1 responsible for benefits administers is to be 'recognized by each Member State'. That wording might give the impression that it relates only to legislation of the Member States which deals specifically with the sub rogation of institutions responsible for social 25. Even if, as asserted by LB at the oral security, but not to legislation which con hearing, some Member States have by means cerns the enforcement of the rights which are of international agreements waived the exer the subject of such subrogation. At the hear cise of a possible right of recoupment, that ing LB relied on that distinction in arguing would not affect the purpose of Article 93, as that the application of Paragraph 17(1) and described above, and the conclusions drawn Paragraph 22(2) of the Law on liability for therefrom. damage was not prevented in the present case by Article 93 of Regulation No 1408/71.
26. The answer to the first two questions should therefore be as follows:
Article 93(1)(a) of Regulation No 1408/71 must be interpreted as meaning that the pos sible subrogation of the institution respons ible for benefits is subject, as regards both its principle and its extent, to the legislation administered by that institution.
Questions 3 and 4 29. Such a distinction — an exceedingly sub tle one — would not be compatible, how ever, with the aforesaid purpose of compen sating for the insurer's Community-wide responsibility. In the light of that purpose it 27. The problem raised by these questions would make no sense if the Member States also requires the wording and purpose of the were required to recognize the subrogation, provision to be examined in turn. but were able to reduce the rights of the institution responsible, which are the neces sary legal consequence of that subrogation, 11 — This was also the view of Advocate General Warner in his by legislation which obstructed the enforce Opinion in Case 72/76 Landesversicherungsanstalt Rheinland-Pfalz v Töpfer [1977] ECR 281, at page 287. ment of such rights.
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30. It follows that Article 93 also guarantees 32. In the present case, however, it is certain the institution responsible for benefits the that the rights which are now asserted by possibility of enforcing the rights to which it DAK would have been Miss Leipelt's if that is subrogated. institution had not been subrogated. The effect of the Danish legislation is limited to the stage after the subrogation provided for by provisions such as Paragraph 116 of the SGB X. At that stage, however, the rights in question come under the protection set up by Article 93 to fulfil its aforesaid function. The institution responsible for benefits as transferee must therefore have the same pos sibilities for enforcing the rights in question that the recipient of the benefits would have had if there had been no subrogation. In par ticular, enforcement of such rights cannot be excluded on the sole ground that they have passed by subrogation from the person orig inally entitled to the institution responsible 31. Contrary to what LB apparently thinks for benefits. according to its — less than clear — observa tions at the hearing, that conclusion is not affected either by the Court's case-law on the content of the subrogated rights. Accord ing to that case-law, Article 52 of Regulation 12 No 3 'in no way modifies the conditions governing the creation and the limits of extra contractual liability, 'since that 'remains sub 13 ject solely to national law' (and is 'limited to the substitution of a fresh creditor for the 33. Accordingly, the answer to Questions 3 14 previous one'). As can be seen from the and 4 should be as follows: context of those observations by the Court, they relate to the determination of the rights which the injured party or his dependents originally had. There is no doubt that the national provisions determined by the appli cable rules of private international law apply to the principle and extent of those rights. Nor can there be any doubt that rights can If an institution responsible for benefits has — logically — only be the subject of subro been subrogated to rights in accordance with gation in so far as they have existed in the Article 93(1)(a) of Regulation No 1408/71, person of the recipient of the benefits. that provision entitles it to enforce those rights in each Member State under the same conditions as would have applied to the 12 — See paragraph 22 above. recipient of the benefits had there been no 13 — Judgment in Hessische Knappschaft (see footnote 6), at subrogation. Rules of national law which page 972; similarly the judgment in Case 78/72 L'Étoile- Syndicat Général v de Waal [1973] ECR 499, paragraph 6. restrict or exclude that entitlement are inap 14 — Judgment in De Waal (see previous footnote), paragraph 4. plicable in such a case.
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C — Conclusion
34. In conclusion, I propose that the Court give the following answer to the ques tions referred by the Østre Landsret:
1. Article 93(1)(a) of Regulation No 1408/71 must be interpreted as meaning that the possible subrogation of an institution responsible for benefits is subject, as regards both its principle and its extent, to the legislation administered by that institution.
2. If an institution responsible for benefits has been subrogated to rights in accordance with Article 93(1)(a) of Regulation No 1408/71, that provision entitles it to enforce those rights in each Member State under the same condi tions as would have applied to the recipient of the benefits had there been no subrogation. Rules of national law which restrict or exclude that entitlement are inapplicable in such a case.
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