C-397/96

CAISSE DE PENSION DES EMPLOYÉS PRIVÉS V KORDEL AND OTHERS

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 4 May 1999 *

1. By order of 29 November 1996, the employment. As stated in the fifth recital in Ladgericht Trier (Germany) referred to the the preamble to the Regulation, to that end, Court of Justice for a preliminary ruling a the Regulation guarantees 'within the Com- question on the interpretation of Council munity firstly equality of treatment for all Regulation (EEC) No 1408/71 on the nationals of Member States under the application of social security schemes to various national legislations and secondly employed persons and their families mov- social security benefits for workers and ing within the Community, 1as amended by their dependents regardless of their place of Council Regulation (EEC) No 2001/83 2 employment or of residence'. (hereinafter 'the Regulation'). That ques- tion, supplemented by further order of 24 October 1997, concerns the extent of the rights of action accorded to institutions responsible for social security benefits under Article 93(l)(a) of the Regulation. 3. Within Title II of the Regulation, which lays down rules for determining which legislation is applicable, Article 13 pro- vides that 'persons to whom this Regula- tion applies shall be subject to the legisla- tion of a single Member State only', which is to be determined in accordance with the provisions of that Title. The relevant Community and national legislation

2. The Regulation co-ordinates the social 4. Article 93, entitled 'Rights of institu- security schemes which apply in the Mem- tions responsible for benefits against liable ber States to employed persons and to third parties', is the provision which is the members of their families moving within subject of the question referred by the the Community, in order to promote free- German court. Article 93(l)(a), the rele- dom of movement for workers and to vant part of that provision, provides that contribute towards the improvement of their standard of living and conditions of

6. The proceedings before the national court concern the establishment of respon- sibility for the death of a German national as a result of a road accident that happened on 27 December 1991 near Trier. Alfons Ginsbach died after being run over by a motor vehicle driven by Dieter Kordel and owned by Rainer Kordel, both of whom are (a) where the institution responsible for also German nationals. Mr Ginsbach was benefits is, by virtue of the legislation insured with the Caisse de Pension des which it administers, subrogated to the Employés Privés (the Luxembourg institu- rights which the recipient has against tion responsible for pension schemes for the third party, such subrogation shall employees in the private sector, hereinafter be recognised by each Member State'. 'the Pension Fund'). Consequent upon Mr Ginsbach's death, the Pension Fund paid to his widow and daughter a reversionary pension with cover capital of LUF 4 003 236.

7. Taking the view that interpretation of Regulation (EEC) No 1408/71, from being Article 93(1)(a) of the Regulation is neces- subrogated to the right of a person in sary in order for it to give judgment, the receipt of benefits to claim damages against German court referred the following ques- a person liable for causing injury in another tion to the Court of Justice for a prelimin- Member State, or prevent such an institu- ary ruling: tion from asserting such a right, not also exclude the institution's right of recourse against the third party where the provisions in question are those of the Member State to which the institution belongs (the provi- sion in this case being Article 4 of the 'How is Article 93(1)(a) of Regulation regulation implementing Article 232 of the (EEC) No 1408/71 to be interpreted? Does Social Insurance Code, under which, on the recognition by the Member States extend to death of a person entitled to a pension, no the content of the subrogated right, as right of recourse is to be exercised against defined in another Member State (in this liable third parties)?' case, by the second sentence of Article 232 of the Luxembourg Social Insurance Code which, in conjunction with the relevant Grand-Ducal regulation, provides that the claim to which the Pension Fund is sub- rogated is to amount to the cover capital less accrued statutory rights), or merely to the subrogation as such?'

Substance

reference in Article 93 of the Regulation to 11. In its reasoning leading to that conclu- the legislation administered by the social sion, the Court referred to the underlying security institution (in this case, Luxem- purpose of the provision of the Regulation bourg law) is to be understood as applying which is the subject of the present request exclusively to the subrogation as such, or to for a preliminary ruling: Article 93, like the content of the subrogated right also. Article 52 of the earlier Regulation No 3 of

case. It is sufficient to refer to the judgment tutions constitute, according to the Court, in DAK, cited above, in which the Court 'a logical and fair counterpart to the had occasion to clarify the scope of Arti- extension of the obligations of those insti- cle 93(1) of the Regulation. That case tutions throughout the entire Community involved a dispute between a German as a result of the provisions of the regula- social security institution and a Danish tion'. 5To that end, Article 93(1) of the insurance company concerning the reim- Regulation provides that every Member bursement of expenses incurred by the State is to recognise the subrogation of the former in connection with the transport institution responsible for benefits to the and hospital treatment of one of its insured rights which the recipient of the benefits who was involved in a road accident in has against the third party bound to

(paragraph 23). Thus, legal provisions of the Member State where the harmful event giving rise to the right of recoupment 4 — See also the judgment in Case 27/69 Entr'aide Medicale v occurred cannot impose conditions upon Assurances Générales [1969] ECR 405, paragraph 15. or limit any right of action belonging to a 5 — See, to the same effect, the judgments in Case 33/64 Betriebskrankenkasse Heseper Torfwerk v Koster [1965] social security institution in another Mem- ECR 97 and Case 44/65 Hessische Knappschaft v Singer [1965] ECR 965, which, of course, refer to the earlier ber State. version of the text of the Regulation.

action for compensation brought against 13. Lastly, the Court held in DAK that the the party liable for the injury to apply the fact that jurisdiction is determined by law of the Member State to which the reference to Article 93 not does imply any institution responsible is subject, not only alteration of the rules applicable for deter- to determine whether that institution is mining whether and to what extent there is subrogated by law to the rights of the non-contractual liability on the part of the injured party or has direct rights against the third party who has caused the injury. That third party liable, but also to determine the liability remains subject to the substantive nature and extent of the claims to which rules which are normally to be applied by the institution responsible for benefits is the national court before which proceed- subrogated or which it can bring directly ings are brought, in other words, in prin- against the third parties' (paragraph 18). ciple the legislation of the Member State in The conflict-of-laws rule in Article 93 thus whose territory the injury has occurred precludes national courts from applying the (paragraph 21). 7 law of the place where the harmful event occurred in order to establish the extent of the right of action· of which the institution responsible for benefits may avail itself. That right must be recognised in the other Member States on the same conditions and to the same extent as is laid down by the legislation to which the social security institution is subject in the Member State 14. The pointers that can be derived from in which it operates. That rule accords with that case-law are highly relevant to the the general principle, mentioned earlier, solution of the present case. The victim of that the social security treatment of work- the accident in Germany was insured by a ers within the Community must be gov- Luxembourg social security institution. erned by the legislation of a single Member Any right to compensation which those State only (Article 13 of the Regulation), deriving title from the victim of the acci- and also takes account of the fact that the dent might have against the liable party institution in question is also responsible arises under the law which, in accordance for providing benefits in cases of loss or with German private international law, injury sustained in another Member State. 6 applies in matters of non-contractual liabi- As the Commission has observed, the aim is lity. Subrogation of the social security to ensure that the institution's rights of institution, on the other hand, is governed action against a third party liable for a by the law which that institution adminis- harmful event which led to its intervention ters — in this case, Luxembourg law — match the benefits which it is required to and that is also the law which determines provide. the extent of the subrogated rights of action in another Member State. That right of action, governed by Luxembourg law, must be recognised in the other Member States, and in the present case in Germany, pur- suant to Article 93 of the Regulation.

15. The answer to the question originally pension dies. Clearly, it is a matter for the referred by the German court must there- national court, called upon to apply Lux- fore be consistent with the settled case-law embourg law, to ascertain whether in the of the Court, and thus Article 93 of the present case the necessary conditions pre- Regulation must be interpreted as requiring vail for applying the Luxembourg provision national courts to apply the law of the just mentioned, in accordance with Arti- Member State to which the institution cle 93 of the Regulation. Nevertheless, if it responsible for benefits belongs also in should transpire that the legislation to establishing the nature and extent of the which the institution is subject does pose rights to which such an institution is an obstacle to the institution's exercising its subrogated. In the grounds of its second own right of action, even if properly order for reference, by which it expanded subrogated to the rights of those entitled on its initial question, the German court under the victim, that restriction must be appears to accept that solution. However, it recognised in all the Member States. justifies retaining its question, mentioning a factor which might distinguish the case now before it from that in DAK: whilst in DAK the Court held that the rights of the subrogated institution could not be restricted by provisions in the legislation 16. The solution here proposed is derived of the State of the court having jurisdiction, without difficulty from the letter and spirit in which the harmful event occurred, the of Article 93. That provision, containing a obstacles to bringing an action arise in the conflict-of-laws rule, requires the Member present case from the legislation in force in States to recognise subrogated rights of the State where the institution operates, action irrespective of the content of applic- namely Luxembourg. As stated earlier, able legislation. Recognition must be on the under Article 4 of the Grand-Ducal regula- same conditions as those under which the tion giving effect to Article 232 of the provision in question is applied in the Luxembourg Social Insurance Code, a Member State in which the subrogated subrogated institution cannot bring an institution operates. Restrictions on rights action against a third party responsible of action must be recognised and applied in for a harmful event in place of the heirs of the other Member States, and thus, in the the victim where the person entitled to a present case, by the German court.