Order — ECLI:EU:C:2025:72
Date: 2025-02-06
Language of the case: Danish

Translation C-7/24 – 1 
Case C-7/24 
Request for a preliminary ruling 
Date lodged: 
4 January 2024 
Referring court: 
Retten i Svendborg (Denmark) 
Decision of: 
2 January 2024 
Applicants: 
Deutsche Rentenversicherung Nord 
BG Verkehr 
Defendant: 
Gjensidige Forsikring, dansk filial af Gjensidige Forsikring ASA, 
Norge for Marius Pedersen A/S 
Mandatar Gjensidige Forsikring, dansk filial Gjensidige Forsikring 
ASA, Norge for Marius Pedersen A/S 
  
 
RETTEN I SVENDBORG 
ORDER 
delivered on 2 January 2024 
Case … 
Deutsche Rentenversicherung Nord 
… 
 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2.1.2024 – CASE C-7/24 
 
2  
GJENSIDIGE FORSIKRING, DANSK FILIAL AF GJENSIDIGE FORSIKRING 
ASA, NORGE acting on behalf of MARIUS PEDERSEN A/S 
 
and 
 
Gjensidige Forsikring, dansk filial af Gjensidige Forsikring ASA, Norge 
… 
 
and 
 
Case … 
BG Verkehr 
… 
 
v 
Mandatar Gjensidige Forsikring, dansk filial af Gjensidige Forsikring ASA, 
Norge for 
MARIUS PEDERSEN A/S 
… 
 
This decision was delivered by Judge … [sitting as a single judge]. 
Reference for a preliminary ruling 
PRELIMINARY REMARKS 
1 This case concerns whether the Danish insurance undertaking Gjensidige 
Forsikring A/S, acting on behalf of Marius Pedersen A/S, is liable for recoupment 
vis-à-vis the German public-law pension insurance undertakings (obliged social 
security institutions), BG Verkehr and Deutsche Rentenversicherung Nord, in 
connection with the death of a German national (’X’) as a result of an industrial 
accident in Denmark. 
2 As a German employee, X had pension insurance with the obliged social security 
institutions BG Verkehr and Deutsche Rentenversicherung Nord, which, pursuant 
to German law, paid benefits to X’s widow (‘Y’). 
3 The Retten i Svendborg has decided to refer, pursuant to the second paragraph of 
Article 267 of the Treaty on the Functioning of the European Union (TFEU), a 
question to the Court of Justice of the European Union for a preliminary ruling on 
the interpretation of Article 85(1) of Council Regulation (EC) No 883/2004 of 
DEUTSCHE RENTENVERSICHERUNG NORD AND BG VERKEHR 
 
3 
29 April 2004 on the coordination of social security systems, as interpreted most 
recently by the judgments of the Court of Justice in Cases C-428/92, DAK v 
Lærerstandens Brandforsikring, ECLI:EU:C:1994:222, and C-397/96, Kordel and 
Others, ECLI:EU:C:1999:432. 
FACTS OF THE CASE AND COURSE OF THE PROCEEDINGS 
4 As a German employee, X was obliged to have public-law pension insurance with 
BG Verkehr and Deutsche Rentenversicherung Nord, which, pursuant to 
Paragraph 46(2) of the German Sozialgesetzbuch Sechstes Buch (SGB VI), are 
obliged to pay benefits to the survivors of the insured person. Public-law pension 
insurance is part of the German social security system and is intended to secure 
the pensions of employees and their survivors. 
5 Disagreement has arisen between BG Verkehr and Deutsche Rentenversicherung 
Nord, on the one hand, and Marius Pedersen A/S and its civil-liability insurer, 
Gjensidige Forsikring, on the other, as to whether BG Verkehr and Deutsche 
Rentenversicherung Nord are entitled to recoupment for benefits paid to X’s 
widow Y. 
6 The German national, X, was injured while working as a driver engaged in the 
export trade for a German undertaking, DS Transport GmbH on 15 July 2015 as 
he was helping to load goods on to his German-registered lorry at one of Marius 
Pedersen A/S’ business addresses in Denmark. As a result of the injuries sustained 
in the accident, X died shortly afterwards. 
7 Arbejdsmarkedets Erhvervssikring [Labour Market Insurance] in Denmark 
subsequently decided that the fatal accident did not entitle X’s widow, Y, to 
benefits under the Danish Law on industrial injury insurance since X was covered 
by the German social security scheme, as stated above (paragraph 4). 
8 Subsequent to X’s death, BG Verkehr and Deutsche Rentenversicherung Nord 
paid benefits under the German Law on social security to X’s widow, Y, and 
were, under German law, subrogated to Y’s legal position vis-à-vis the party 
responsible for the injury. 
9 Since Marius Pedersen A/S, through its civil-liability insurance undertaking, 
Gjensidige Forsikring, has acknowledged that it is liable to pay compensation in 
connection with X’s death on 15 July 2015, BG Verkehr and Deutsche 
Rentenversicherung Nord are claiming reimbursement by Marius Pedersen A/S / 
Gjensidige Forsikring of the benefits paid by the undertakings to X’s widow. 
10 Marius Pedersen A/S / Gjensidige Forsikring refused to meet the recoupment 
claims from BG Verkehr and Deutsche Rentenversicherung Nord with reference 
to the fact that national Danish law does not confer a right of recoupment in 
respect of the recoupment claims raised since they are benefits for which no claim 
for recovery can be raised under Danish law and since X’s widow, Y, in the view 
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of Marius Pedersen A/S / Gjensidige Forsikring, must be considered to have had a 
claim for the benefits regardless of the cause of X’s death. 
11 Marius Pedersen A/S / Gjensidige Forsikring further stated that Y has already 
received damages for loss of provider as Gjensidige Forsikring has paid 
compensation for loss of provider calculated in accordance with national Danish 
law to Y at the request of her lawyer. BG Verkehr and Deutsche 
Rentenversicherung Nord contended that the damages have not been paid in full 
discharge of liabilities since Marius Pedersen A/S and Gjensidige Forsikring were 
not in good faith as regards BG Verkehr’s and Deutsche Rentenversicherung 
Nord’s recoupment claim at the time of payment. In relation to the payment of 
damages for loss of provider to Y from Gjensidige Forsikring, the parties agree 
that the claim has been calculated and paid in accordance with national, Danish 
rules on damages and that Y cannot claim further damages vis-à-vis Marius 
Pedersen A/S / Gjensidige Forsikring under Danish law. 
12 On 6 and 12 July 2018, respectively, BG Verkehr and Deutsche 
Rentenversicherung Nord brought actions against Marius Pedersen A/S / 
Gjensidige Forsikring A/S claiming that Marius Pedersen A/S / Gjensidige 
Forsikring A/S must acknowledge that it is liable vis-à-vis BG Verkehr and 
Deutsche Rentenversicherung Nord for recoupment for the benefits which BG 
[Verkehr] and Deutsche Rentenversicherung Nord are obliged to pay, and have 
paid, to Y under Paragraph 46(2) of German Sozialgesetzbuch Sechstes Buch 
(SGB VI). 
PROVISIONS OF NATIONAL LAW AND NATIONAL CASE-LAW 
Lovbekendtgørelse 2018-08-24 nr. 1070 om erstatningsansvar 
(erstatningsansvarsloven) (Consolidated Law No 1070 of 24 August 2018 on 
liability for damages) (Law on liability for damages) 
13 Paragraph 1(1) of the Law on liability for damages: ‘A person liable for personal 
injury shall pay damages for loss of income, medical expenses and other losses 
resulting from the injury, as well as compensation for pain and suffering.’ 
14 Paragraph 13(1) of the Law on liability for damages: ‘Damages for loss of 
provider for a spouse or cohabiting partner shall be 30% of the damages which 
the deceased must be assumed to have received in the event of a complete loss of 
earning capacity (see Paragraphs 5 to 8). However, the damages shall be at least 
DKK 644 000, save in exceptional circumstances.’ 
15 Paragraph 17(1) of the Law on liability for damages: ‘Benefits under social 
legislation, including unemployment benefits, medical assistance, pensions under 
the social pension legislation and benefits under the Law on industrial injury 
insurance, to which an injured party or a survivor is entitled, cannot form the 
basis for a recoupment claim against the person liable for damages. […]’ 
DEUTSCHE RENTENVERSICHERUNG NORD AND BG VERKEHR 
 
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16 Paragraph 26a(1) of the Law on liability for damages; ‘A person who deliberately 
or as a result of gross negligence causes the death of another may be ordered to 
pay compensation to survivors who had a particularly close connection with the 
deceased.’ 
Lovbekendtgørelse 2022-08-19 nr. 1186 om arbejdsskadesikring 
(arbejdsskadesikringsloven) (Consolidated Law No 1186 of 19 August 2022 on 
industrial injury insurance) (Law on industrial injury insurance) 
Paragraph 19(1) of the Law on industrial injury insurance: ‘Where an industrial 
injury has resulted in death, the surviving spouse shall have the right to […] if the 
marriage was entered into before the industrial injury occurred and cohabitation 
existed at the time of the injured person’s death. […]’ 
Paragraph 20(1) of the Law on industrial injury insurance: ‘A person who is 
entitled to a transitional amount under Paragraph 19(1) to (3) and who has lost a 
provider as a result of the death of the injured person, or who has had his or her 
support circumstances impaired in some other way as a result of the death, shall 
have the right to damages therefor. The damages shall be determined taking 
account of the extent of the dependency and the survivor’s ability to support 
himself or herself, having regard to age, state of health, education, employment, 
dependency and financial circumstances.’ 
(2): ‘The damages shall be granted in the form of a fixed-term continuous benefit, 
which shall amount to 30 per cent of the deceased’s annual salary under 
Paragraph 24. The damages shall be paid with effect from the date of death with 
1/12 monthly in advance. The period may be set at a maximum of 10 years. 
However, if a bereavement allowance is paid in connection with the death, the 
benefit shall not be paid until the end of the bereavement allowance period. If the 
deceased has received continuous damages for loss of earning capacity under this 
Law, damages for loss of provider shall not be paid until the first of the month 
following the death.’ 
(3): ‘Benefits under subparagraph (2) shall remain unchanged for the period 
stipulated unless the benefit is wholly or partly converted into a lump sum or the 
beneficiary dies.’ 
17 Paragraph 77(1) of the Law on industrial injury insurance: ‘Benefits under the 
Law cannot form the basis for a recoupment claim against the party responsible 
for the injury who is liable for damages to injured persons or their survivors, […]. 
The claims of injured persons or their survivors against the party responsible for 
the injury shall be reduced to the extent that benefits have been paid or are 
payable to the persons concerned under this Law.’ 
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Danish case-law 
18 Article 93 of Council Regulation (EEC) 1408/71 of 14 June 1971, the previously 
applicable provision, was the subject of a reference for a preliminary ruling to the 
Court of Justice (judgment of 2 June 1994 in C-428/92, DAK, 
ECLI:EU:C:1994:222) in connection with judgment U 1995 341 Ø of the Østre 
Landsret (High Court of Eastern Denmark). That case established that 
Paragraphs 17(1) and 22(2) of the Danish Law on liability for damages do not 
preclude a foreign social security institution from seeking recoupment for social 
security benefits paid. 
19 The Højesteret (Supreme Court) subsequently delivered judgement in U 2002. 573 
H. That case concerned a German employer’s recoupment claim for pay during 
illness, medical expenses and a pension paid to a German boatman who was 
injured while working in Denmark. 
20 In the proceedings, the Højesteret (see U 1999 773 H) declined to refer questions 
on the interpretation of then Article 93 (now Article 85) to the Court of Justice of 
the European Union. The Højesteret stated in the grounds for the order that, from 
the case-law of the Court of Justice, 
‘it is clear that Article 93(1) of Council Regulation No 1408/71 (Article 52 of 
Council Regulation No 3) is to be interpreted as meaning that the provision only 
governs the choice of law concerning the institution’s right of recoupment against 
the party responsible for the injury and that the institution’s claim cannot – even 
in cases where it has the character of an independent claim under point (b) – 
exceed the claim which the injured person could assert against the party 
responsible for the injury under the rules of the law applicable to the relationship 
between them, that is to say, in general, the law of the place in which the damage 
occurs.’ 
21 In its order, the Højesteret referred, inter alia, to the judgment of the Court of 
Justice in Case 78/72, Ster, ECLI:EU:C:1973:51, in which the Court of Justice 
held at paragraph 3 that ‘the direct right of the institution liable vis-à-vis the third 
party responsible derives from the fact that the person receiving the benefit of 
payments has a right, in the territory of the State in which the damage occurred, 
to claim compensation from that third party’ and also that the institution cannot 
‘claim from the third party responsible any payment other than that which could 
be claimed by the victim of the damage or his dependants’. 
22 The Højesteret subsequently concluded in U 1999 773 H that it follows from 
Article 93(1) (now Article 85) that the employer’s claim against the liability 
insurer could not exceed the claim which the injured party could have asserted 
under Danish law against the party responsible for the damage. As a direct 
consequence thereof, the Højesteret held in U 2002 573 H that the employer’s 
claim concerning salaries and medical expenses was time-barred (under Danish 
law), but that there was a claim for reimbursement of the employer’s pension 
DEUTSCHE RENTENVERSICHERUNG NORD AND BG VERKEHR 
 
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expenses, although the claim could not exceed what the injured party would have 
been entitled to under Danish law. 
23 As regards recent Danish case-law, reference can be made to the judgment of the 
Østre Landsret of 2 March 2020 (FED 2020 31 Ø) and the judgment of the 
Højesteret of 8 December 2021 (U 2022 1033 H), which addresses a similar issue. 
That case concerned the collision of a German couple on a Danish motorway, in 
which one spouse died and the other was injured. 
24 That case concerned whether Bundesbahnvermögen – Rechtfähiges 
Sondervermögen der Bundesrepublik Deutschland and Krankenversicherung für 
Bundesbahnbeamten, Bezirksleistung Wuppertal had a claim for reimbursement 
of their expenses by the injured party’s insurer, Codan Forsikring A/S, which 
acknowledged its liability for damages. 
25 In the view of the Østre Landsret, the social security institution’s recoupment 
claim for benefits paid in one Member State on the basis of an event which 
occurred in another Member State could not exceed the claim which the injured 
party could assert under the legislation of that other Member State in which the 
injury occurred. 
26 The Østre Landsret further stated that there was only an obligation to reimburse 
the claim from the social security institution in so far as the insurer, in this case 
Codan Forsikring A/S, was obliged under Danish law to pay a corresponding 
amount of compensation to the injured party. 
27 The Østre Landsret thus assumed that in order for the injured party’s claim to be 
recoverable there had to be identity between the benefits paid to the injured party 
by the obliged social security institution in Germany and the claim for which the 
injured party could recover under the legislation of the Member State in which the 
injury occurred, that is to say under Danish law. 
28 An appeal was lodged against the judgment of the Østre Landsret before the 
Højesteret. In accordance with the Østre Landsret’s decision, the Højesteret stated 
in its judgement that the social security institution’s claim could not exceed the 
claim which the injured party could assert against the party responsible for the 
injury under the rules of the legislation applicable to the relationship between the 
injured party and the party responsible for the injury. 
29 The Højesteret did not rule on whether recoupment could be claimed against 
Codan Forsikring A/S for widow’s pension benefits and ‘Sterbegeld’ calculated 
and paid in accordance with German law because the Højesteret found in the 
particular circumstances that Codan Forsikring A/S had in good faith and in full 
discharge of liabilities paid damages for loss of provider calculated in accordance 
Danish law to the widow residing in Germany. 
30 The Højesteret further stated that it was sufficiently established that the expenses 
incurred by Krankenversicherung für Bundesbahnbeamten were, by their nature, 
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covered by the expression ‘medical expenses and other losses’ in Paragraph 1 of 
the Law on liability for damages. 
31 Moreover, it should also be noted that it was common ground between the parties 
in this case that the scope of the claim for damages was to be determined under 
Danish law and therefore the claim could not exceed the claim which the injured 
party could assert under Danish law against the party responsible for the injury. 
EU LAW 
32 The provision of EU law to which this case relates is, in particular, Article 85(1) 
of Council Regulation (EC) No 883/2004 of 29 April 2004 on the coordination of 
social security systems. That provision corresponds to Article 93(1) of Council 
Regulation (EEC) No 1408/71 of 14 June 1971, the previously applicable 
provision, and Article 52 of Council Regulation No 3 of 25 September 1958. 
ARGUMENTS OF THE PARTIES 
33 BG Verkehr and Deutsche Rentenversicherung Nord claim in the proceedings 
that BG Verkehr and Deutsche Rentenversicherung Nord are subrogated to Y’s 
claim against Marius Pedersen A/S / Gjensidige Forsikring A/S pursuant to 
Paragraph 116(1) of the German Sozialgesetzbuch Zehntes Buch (SGB X). BG 
Verkehr and Deutsche Rentenversicherung Nord therefore have a recoupment 
claim against Marius Pedersen A/S / Gjensidige Forsikring A/S for the social 
benefits paid by BG Verkehr and Deutsche Rentenversicherung Nord to Y 
through subrogation to Y’s right against Marius Pedersen A/S and Gjensidige 
Forsikring A/S. Furthermore, this is not disputed by the parties. 
34 BG Verkehr and Deutsche Rentenversicherung Nord further claim that BG 
[Verkehr’s] and Deutsche Rentenversicherung Nord’s right of recoupment against 
Marius Pedersen A/S / Gjensidige Forsikring A/S pursuant to Article 85(1) of 
Council Regulation (EC) No 883/2004 of 29 April 2004 must be determined in 
accordance with the law of the Member State in which BG Verkehr and Deutsche 
Rentenversicherung Nord, as obliged social security institutions, have their 
registered office, that is to say under German law, and that, therefore, 
Paragraph 17(1) of the Danish Law on liability for damages does not preclude BG 
Verkehr’s and Deutsche Rentenversicherung Nord’s right of recoupment against 
Marius Pedersen A/S and Gjensidige Forsikring A/S. 
35 BG Verkehr and Deutsche Rentenversicherung Nord claim in that regard that, 
under Article 85(1), the conditions and extent of the claims to which BG Verkehr 
and Deutsche Rentenversicherung Nord are subrogated must also be determined in 
accordance with the law of the Member State in which BG Verkehr and Deutsche 
Rentenversicherung Nord, as obliged social security institutions, have their 
registered office, that is to say, under German law. 
DEUTSCHE RENTENVERSICHERUNG NORD AND BG VERKEHR 
 
9 
36 BG Verkehr and Deutsche Rentenversicherung Nord further claim that, if the 
extent of the claim which BG Verkehr and Deutsche Rentenversicherung Nord 
have against Marius Pedersen A/S and Gjensidige Forsikring A/S is to be 
determined in accordance with the substantive rules of the Member State in whose 
territory the injury occurred, that is to say, Danish law, that does not preclude BG 
Verkehr’s and Deutsche Rentenversicherung Nord’s right of recoupment against 
Marius Pedersen A/S / Gjensidige Forsikring A/S for the social benefits paid to Y 
by BG Verkehr and Deutsche Rentenversicherung Nord. 
37 In support of this claim, BG Verkehr and Deutsche Rentenversicherung Nord refer 
to the Danish Højesteret’s interpretation of Article 93(1) of the Regulation 
No 1408/71, the previously applicable provision, in judgment U 2002 573 H of 
19 December 2001. 
38 That judgment concerned which Member State’s legislation was to be applied in 
the settlement of accounts between the parties and thus the extent of the obliged 
social security institution’s right of recoupment against the party responsible for 
the injury. The Højesteret attached considerable importance to the fact that the 
obliged social security institution’s claim could not, in terms of the amount, 
exceed the claim the injured party could recover under the legislation of the 
Member State in which the injury occurred. However, the Højesteret did not rule 
on whether or not the obliged social security institution’s claim must be identical 
or otherwise comparable to the claim which the injured party could have 
recovered under Danish law. 
39 BG Verkehr and Deutsche Rentenversicherung Nord claim that Article 85(1) 
should be interpreted as meaning that the social benefits paid by BG Verkehr and 
Deutsche Rentenversicherung Nord to the widow (widow’s pension) and the claim 
which, under Danish law, the widow could recover from the injured party 
(compensation for personal injury and damages for loss of provider) do not have 
to be identical or in any way comparable in nature in order to be recoverable. BG 
Verkehr and Deutsche Rentenversicherung Nord claim in that regard that the 
claim simply cannot exceed, in terms of the amount, the claim which the injured 
party could recover under the law of the Member State in which the injury 
occurred, that is to say, under Danish law. 
40 BG Verkehr and Deutsche Rentenversicherung Nord claim that, since the 
subrogation of the obliged social security institution under Article 85(1) must be 
recognised by each Member State, it would be contrary to Article 85(1) if a 
Member State has to recognise the obliged social security institution’s right of 
subrogation if, at the same time, that Member State could effectively prevent the 
claim from being enforced. BG Verkehr and Deutsche Rentenversicherung Nord 
claim that the provision was not intended to preclude a claim by an obliged social 
security institution against the person responsible for the injury on the ground of a 
lack of identity between the benefits which may be claimed under the legislation 
of the Member State in which the obliged social security institution has its 
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registered office and the legislation of the Member State in which the injury 
occurred. 
41 In conclusion, BG Verkehr and Deutsche Rentenversicherung Nord claim that, 
irrespective of whether the conditions for and the extent of the claim to which BG 
Verkehr and Deutsche Rentenversicherung Nord are subrogated and for which 
damages are sought are to be determined under Danish or German law, in order 
for Marius Pedersen A/S / Gjensidige Forsikring A/S to be liable for recoupment 
vis-à-vis Deutsche Rentenversicherung Nord, it is not required that the social 
benefits paid to Y by BG Verkehr and Deutsche Rentenversicherung Nord and the 
claim which Y could recover from Marius Pedersen A/S / Gjensidige Forsikring 
A/S under Danish law be comparable in nature. Marius Pedersen A/S / Gjensidige 
Forsikring A/S must therefore compensate the social benefits paid by BG Verkehr 
and Deutsche Rentenversicherung Nord to Y. 
42 During the proceedings, Marius Pedersen A/S / Gjensidige Forsikring A/S 
claims that Regulation 883/2004 on the coordination of social security schemes of 
29 April 2004 only governs whether the applicant may be subrogated to the 
injured party’s claim and not whether there is a lawful basis under Danish rules 
for the recoupment claim raised by the applicant. 
43 Marius Pedersen A/S / Gjensidige Forsikring A/S further claim that the decisive 
factor for the applicant’s right of recoupment is whether the injured party has a 
claim under Danish law to the benefits for which the applicant claims recoupment 
(see, inter alia, the Højesteret’s decision in U 1999 773 H and U 2022 1033 H), 
and that this is not the case as a claim for a continuous widow’s pension under 
German law does not correspond to a claim for capitalised damages for loss of 
provider under Danish law. 
44 It is claimed that the recoupment claim for damages for pension benefits to the 
deceased’s widow must be regarded as independent of the deceased’s death in an 
industrial accident since the deceased’s widow must be regarded as having a claim 
to the benefits regardless of the cause of death. 
45 Although it is acknowledged by Marius Pedersen A/S / Gjensidige Forsikring that 
there is in principle a right of recoupment for German insurance institutions, it 
claimed that under the first sentence of Paragraph 77(1) of the Law on industrial 
injury insurance, benefits under that law cannot form the basis for a ‘recoupment 
claim against the party responsible for the injury who is liable for damages’ vis-à-
vis the deceased’s widow. Furthermore, under the second sentence of 
Paragraph 77(1) of that law, the survivor’s (widow’s) claim against the person 
liable for damages (in this case Marius Pedersen A/S / Gjensidige Forsikring) is to 
be reduced to the extent that ‘benefits have been paid or are payable to the persons 
concerned under this Law’. It is therefore claimed that the recoupment claim of 
the applicant insurance institutions must be considered to be precluded when the 
benefits must be deemed to replace benefits covered by Paragraph 20 of the Law 
DEUTSCHE RENTENVERSICHERUNG NORD AND BG VERKEHR 
 
11 
on industrial injury insurance on the survivors’ right to damages for loss of 
provider. 
46 Marius Pedersen A/S / Gjensidige Forsikring further claims that this view is in 
accordance with the EFTA Court’s decision in Case E-11/16, Mobil 
Betriebskrankenkasse v Tryg Forsikring, judgment of 20 July 2017, according to 
which a recoupment claim under the regulation cannot exceed the claim or claims 
which the injured party him or herself would be able to assert against the party 
responsible for the injury under the law of the place where the injury occurred. 
BACKGROUND TO THE QUESTIONS 
47 There is – in principle – no disagreement that an obliged social security institution 
in one Member State has, pursuant to Article 85(1) of Council Regulation (EC) 
No 883/2004 of 29 April 2004, a right of recoupment against a liable party 
responsible for the injury on the basis of an event giving rise to liability which 
occurs in another Member State, irrespective of the provision of the national law 
of that other Member State, in this case Paragraph 17(1) of the Danish Law on 
liability for damages. 
48 However, there is disagreement as to which Member State’s legislation is to 
determine the extent of the claim to which an obliged social security institution is 
subrogated. 
49 There is also disagreement as to whether, if the extent of such a claim is to be 
determined under the substantive rules of the Member State in which the damage 
occurred, the right of recoupment of the social security institution requires that the 
social benefits for which recovery is sought must be comparable in nature to the 
benefits for which the injured party could seek recovery under the legislation of 
the Member State in which the injury occurred. 
50 There is also disagreement as to what is meant, if so, by the term ‘by nature’ and 
whether this merely requires that the claim for which recovery is sought cannot 
exceed, in terms of the amount, the claim which the injured party could recover 
under the law of the Member State in which the injury occurred. 
51 Danish law has also addressed the nature of the items of damages which an 
injured party or the survivors of an injured party can claim as a result of personal 
injury. The Law on liability for damages therefore contains provisions under 
which claims can be raised for damages for other losses, loss of earnings, pain and 
suffering, permanent injury, loss of earning capacity, loss of provider, transitional 
amount in the event of death and compensation for tort. Most items are also 
capped at a specified amount. 
52 Paragraph 77 of the Law on industrial injury insurance also states that damages 
calculated in accordance with the Law on liability for damages is to be subsidiary 
to the damages which the injured party or survivors may claim under the Law on 
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industrial injury insurance, and that damages for industrial injuries cannot form 
the basis for recoupment against a party responsible for the injury who is liable for 
damages. 
53 Neither the Law on liability for damages nor the Law on industrial injury 
insurance confers on a survivor a right to a widow’s pension of the nature and in 
the manner set out in Paragraphs 64 to 65 of the Sozialgesetzbuch Sechstes Buch 
(SGB VI)). Therefore, it is not readily possible to establish identity between the 
claim for damages by the social security institution seeking recoupment and the 
corresponding item(s) in the Law on liability for damages or the Law on industrial 
injury insurance. 
54 Consequently, it is also not readily possible to deduce whether and, if so, to what 
extent a recoupment claim for expenses incurred by the social security institution 
can be enforced against the liable party responsible for the injury. 
55 There is limited case-law from the Court of Justice of the European Union on how 
Article 85(1) of Council Regulation (EC) No 883/2004 of 29 April 2004 is to be 
interpreted in relation to the scope of the claim to which an obliged social security 
institution can be subrogated and recover from a liable person responsible for the 
injury (see, inter alia, Case C-397/96, Kordel and Others, ECLI:EU:C:1999:432, 
and Case C-428/92, DAK, ECLI:EU:C:1994:222). 
56 In its case-law, most recently in Case C-397/96, Kordel and Others, the Court of 
Justice of the European Union has held that Article 93(1) of Council Regulation 
(EEC) No 1408/71 of 14 June 1971, applicable at the material time, must be 
interpreted as meaning that both the requirements for and the extent of the claim 
which a social security institution within the meaning of the regulation has against 
a person who, in the territory of another Member State, caused an injury which 
gave rise to the payment by that institution of social security benefits, are to be 
determined in accordance with the law of the Member State to which the 
institution is subject. 
57 Furthermore, in Case C-428/92, DAK, ECLI:EU:C:1994:222, the Court of Justice 
of the European Union also acknowledged that both the conditions and extent of 
the right of recoupment which a social security institution within the meaning of 
that regulation has against the party who has caused an injury in the territory of 
another Member State, which has entailed the payment of social security benefits, 
are determined in accordance with the law of the Member State to which that 
institution is subject. 
58 However, it appears to be unclear from the case-law of the Court of Justice 
whether the substantive rules of the law of the Member State in which the injury 
occurred can limit the right of recoupment of the obliged social security institution 
where the social security benefits for which recovery is sought are not identical or 
at least not comparable in nature to the claim which the injured party could 
recover under those substantive rules. 
DEUTSCHE RENTENVERSICHERUNG NORD AND BG VERKEHR 
 
13 
Conclusion 
In the light of the foregoing, the Retten i Svendborg, which is the court of first 
instance in this case, finds that there is a need to refer questions to the Court of 
Justice of the European Union for a preliminary ruling as set out below. 
The Retten i Svendborg asks the Court of Justice of the European Union to answer 
the following question referred for a preliminary ruling: 
1. Must Article 85(1) of Council Regulation (EC) No 883/2004 of 
29 April 2004 on the coordination of social security systems be 
interpreted as meaning that for the obliged institution to have a right of 
recoupment under that provision there must be a lawful basis in the 
Member State in which the injury occurred for the type of damages or 
compensation for which a right of recoupment is claimed, or 
equivalent benefit, as a consequence of the event for which the party 
responsible for the injury is liable for damages under the law of the 
place where the injury occurred? 
2 January 2024 
…