Opinion of the Advocate General — ECLI:EU:C:2004:96
Date: 2004-02-12
Language of the case: French
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment Officials – Communities’ right of subrogation to an official’s rights against the third party liable for an actionable event – Limits – Application of national law to determine the extent of the obligation to compensate – National legislation excluding a survivor’s pension from that obligation (Staff Regulations, Art. 85a(1)) The subrogation provided for by Article 85a of the Staff Regulations is subrogation by operation of law. It takes place, within the limits of the obligations devolving upon the Communities under the provisions of the Staff Regulations, upon the occurrence of the harmful event for which a third party is liable. However, it follows clearly from Article 85a(1) that the Communities do not have greater rights against the third party than the victim or those entitled under him. The purpose of Article 85a of the Staff Regulations is not to alter the national rules applicable for determining whether and to what extent there is liability on the part of the third party who caused the injury. That third party’s liability remains subject to the substantive rules which are normally to be applied by the national court before which the victim’s proceedings are brought, that is to say, in principle, the legislation of the Member State in whose territory the injury has occurred. It follows that if the national law on liability applicable to this case excludes a survivor’s pension, such as that provided for by Articles 79 and 79(a) of the Staff Regulations, from the scope of the compensation obligation of the perpetrator of a wrongful act, the Communities cannot obtain reimbursement of the sums corresponding to that survivor’s pension by means of the subrogation under Article 85a of the Staff Regulations. (see paras 15-18)