61981CJ0131(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 131/81
MARIO BERTI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, IN HIS CAPACITY AS LEGAL REPRESENTATIVE OF HIS SON PAOLO, A MINOR, RESIDING IN BRUSSELS, REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CENTRE LOUVIGNY, 34 B IV, RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION IN THE TERMS SET OUT IN THE APPLICANT ' S CONCLUSIONS,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 27 MAY 1981, MARIO BERTI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION SEEKING COMPENSATION FOR MATERIAL AND NON-MATERIAL DAMAGE AND DISFIGUREMENT RESULTING FROM AN ACCIDENT WHICH HIS SON PAULO SUSTAINED ON 7 APRIL 1971 WHILE STAYING IN A HOLIDAY CAMP ORGANIZED BY THE COMMISSION FOR CHILDREN OF OFFICIALS .
2 ON 7 OCTOBER 1982 THE COURT ( FIRST CHAMBER ), BEFORE GIVING FINAL JUDGMENT ON THE APPLICATION MADE BY MR BERTI, GAVE THE FOLLOWING INTERLOCUTORY DECISION ( REPORTED IN ( 1982 ) ECR 3493 ):
' ( 1 ) THE COMMISSION IS ORDERED TO COMPENSATE THE APPLICANT FOR ALL MATERIAL AND AESTHETIC INJURY SUSTAINED BY HIS SON PAULO AS A RESULT OF THE ACCIDENT ON 7 APRIL 1971 .
' ( 2)THE PARTIES ARE INVITED TO AGREE ON THE AMOUNT OF THE FINANCIAL COMPENSATION WITHIN SIX MONTHS OF THE DATE OF THIS JUDGMENT .
' ( 3)IN DEFAULT OF SUCH AGREEMENT THE COURT WILL ITSELF DECIDE THE ISSUE .
' ( 4)COSTS ARE RESERVED . '
3 BY ORDERS OF THE COURT ( FIRST CHAMBER ) OF 28 APRIL AND 8 DECEMBER 1983 THE TIME-LIMIT IMPOSED ON THE PARTIES IN THAT JUDGMENT WAS TWICE EXTENDED .
4 THE PARTIES AGREED TO APPOINT TWO MEDICAL EXPERTS, WHO WERE ASKED TO DETERMINE THE MATERIAL DAMAGE AND DISFIGUREMENT SUFFERED BY MR BERTI ' S SON .
5 THE TWO MEDICAL EXPERTS DREW UP A MEDICAL REPORT DATED 10 JANUARY 1984 IN WHICH THEY AGREED THAT MR BERTI WAS ENTITLED TO THE FOLLOWING AMOUNTS BY WAY OF REIMBURSEMENT OF MEDICAL EXPENSES :
- BFR 125 000 FOR THE FITTING OF A PROSTHESIS AND REPLACEMENTS THEREOF,
- BFR 3 000 FOR THE EXPENSES IN CONNECTION WITH THE EXTRACTION OF THE UPPER CANINE TOGETHER WITH RADIOGRAPHY,
- BFR 3 000 FOR THE FITTING OF A TEMPORARY PROSTHESIS,
- BFR 1 000 FOR TECHNICAL ALTERATIONS TO THE GUM OF THE PROSTHESIS AFTER FITTING .
6 THE PARTIES ACCEPTED THE ASSESSMENT OF THE MEDICAL EXPENSES CONTAINED IN THE REPORT AND THE COMMISSION PAID TO MR BERTI THE AMOUNTS REFERRED TO ABOVE .
7 IN ADDITION THE REPORT CONCLUDED THAT, AS A RESULT OF THE ACCIDENT SUSTAINED, MR BERTI ' S SON SUFFERED :
- PERMANENT PARTIAL INVALIDITY OF 1% OWING TO THE LOSS OF TEETH ;
- SLIGHT DISFIGUREMENT, ASSESSED AT 2 ON A SCALE OF 7, OWING TO A SCAR ON THE LOWER LIP .
8 THE PARTIES WERE UNABLE TO AGREE ON THE COMPENSATION PAYABLE IN RESPECT OF THE PERMANENT PARTIAL INVALIDITY OF 1% AND THE SLIGHT DISFIGUREMENT . THE PARTIES ALSO DISAGREE AS TO WHETHER COMPENSATORY INTEREST OR INTEREST FOR LATE PAYMENT, OR BOTH, SHOULD BE AWARDED IN ADDITION TO THE COMPENSATION . THEY HAVE THEREFORE REQUESTED THE COURT TO DECIDE THE POINTS OUTSTANDING .
THE PERMANENT PARTIAL INVALIDITY
9 BY WAY OF COMPENSATION FOR THE PERMANENT PARTIAL INVALIDITY OF 1% SUFFERED BY MR BERTI ' S SON, THE COMMISSION OFFERED THE SUM OF BFR 60 000 . IT STATES THAT THAT AMOUNT IS CONSIDERABLY GREATER THAN THE AMOUNTS NORMALLY AWARDED IN SIMILAR CASES BY THE BELGIAN COURTS .
10 MR BERTI CONSIDERS THE SUM OFFERED BY THE COMMISSION TO BE INADEQUATE . HE CLAIMS THAT THE COMPENSATION IN QUESTION SHOULD BE CALCULATED BY REFERENCE TO THE MAXIMUM AMOUNT GUARANTEED BY THE INSURANCE POLICY WHICH THE COMMISSION HAD TAKEN OUT WITH A PRIVATE INSURANCE COMPANY TO COVER THE CIVIL LIABILITY ARISING OUT
OF ANY PHYSICAL INJURY WHICH MIGHT OCCUR IN THE HOLIDAY CAMP ORGANIZED FOR THE CHILDREN OF ITS OFFICIALS . FOR THE PERIOD COMMENCING ON 22 FEBRUARY 1974 THAT MAXIMUM GUARANTEE WAS FIXED AT BFR 20 000 000 . MR BERTI THEREFORE CLAIMS THAT THE COMPENSATION PAYABLE FOR THE PERMANENT PARTIAL INVALIDITY OF 1% SHOULD BE 1% OF THAT GUARANTEE, THAT IS TO SAY BFR 200 000 .
11 AS THE COMMISSION HAS RIGHTLY CONTENDED, THE MAXIMUM AMOUNT GUARANTEED BY THE CONTRACT OF INSURANCE ENTERED INTO BY THE COMMISSION IS NOT RELEVANT TO THIS DISPUTE . IT CONSTITUTES THE MAXIMUM AMOUNT WHICH THE INSURANCE COMPANY HAS AGREED TO PAY BY WAY OF COMPENSATION FOR ANY PHYSICAL INJURY OCCURRING AS A RESULT OF AN ACCIDENT IN ANY OF THE COMMISSION ' S HOLIDAY CAMPS, EVEN IF THE ACCIDENT INVOLVED MORE THAN ONE PERSON .
12 IT FOLLOWS THAT THE COMPENSATION PAYABLE TO MR BERTI FOR THE PERMANENT PARTIAL INVALIDITY OF HIS SON CANNOT BE 1% OF THE MAXIMUM AMOUNT GUARANTEED BY THE CONTRACT OF INSURANCE ENTERED INTO BY THE COMMISSION .
13 THE APPLICANT HAS NOT PUT FORWARD ANY RELEVANT ARGUMENTS TO THE CONTRARY . IT MUST THEREFORE BE CONCLUDED THAT THE SUM OF BFR 60 000 OFFERED BY THE COMMISSION CONSTITUTES FAIR COMPENSATION FOR THE PERMANENT PARTIAL INVALIDITY OF 1% SUFFERED BY MR BERTI ' S SON .
THE DISFIGUREMENT
14 IN RESPECT OF COMPENSATION FOR THE SLIGHT DISFIGUREMENT ESTABLISHED IN THE REPORT, THE COMMISSION OFFERS THE SUM OF BFR 60 000 .
15 SINCE THAT AMOUNT WAS ACCEPTED BY MR BERTI ' S COUNSEL AT THE SITTING ON 17 JANUARY 1985, IT MUST BE REGARDED AS APPROPRIATE COMPENSATION FOR THE SLIGHT DISFIGUREMENT SUFFERED BY MR BERTI ' S SON .
COMPENSATORY INTEREST
16 MR BERTI CLAIMS THAT INTEREST SHOULD BE AWARDED ON THE AMOUNT OF COMPENSATION PAYABLE TO HIS SON IN RESPECT OF HIS PERMANENT PARTIAL INVALIDITY OF 1% TO COMPENSATE, FIRST, FOR THE FALL IN THE VALUE OF MONEY SINCE THE DATE OF THE ACCIDENT AND, SECONDLY, FOR THE LOSS OF INTEREST WHICH HE HAS INCURRED THROUGH NOT HAVING BEEN ABLE TO DEPOSIT THE MONEY IN A BANK .
17 THAT CLAIM WAS NOT SET OUT BY MR BERTI IN HIS APPLICATION . IT IS THEREFORE A NEW ISSUE, THE RAISING OF WHICH IN THE COURSE OF PROCEEDINGS IS IN PRINCIPLE PROHIBITED BY ARTICLE 42 ( 2 ) OF THE RULES OF PROCEDURE .
18 CONSEQUENTLY, THE CLAIM SUBMITTED BY MR BERTI FOR COMPENSATORY INTEREST MUST BE DECLARED INADMISSIBLE .
DEFAULT INTEREST
19 MR BERTI CLAIMS INTEREST AT THE RATE PRESCRIBED BY THE RELEVANT BELGIAN LEGISLATION, THAT IS TO SAY 12%, FROM THE DATE OF THIS JUDGMENT, ON THE AMOUNT PAYABLE BY WAY OF COMPENSATION FOR THE PERMANENT PARTIAL INVALIDITY AND DISFIGUREMENT SUFFERED BY HIS SON .
20 AT THE SITTING ON 17 JANUARY 1985, THE COMMISSION ACCEDED TO THE CLAIM FOR INTEREST AND AGREED TO THE DATE FROM WHICH SUCH INTEREST SHOULD BE PAYABLE . IT RELIED ON THE WISDOM OF THE COURT TO DETERMINE THE RATE PAYABLE, ALTHOUGH IT DID NOT FORMALLY DISPUTE MR BERTI ' S CLAIM ON THAT POINT .
21 THE COMMISSION SHOULD THEREFORE BE ORDERED TO PAY TO MR BERTI INTEREST AT 12% ON THE COMPENSATION FOR PERMANENT PARTIAL INVALIDITY AND SLIGHT DISFIGUREMENT FROM THE DATE OF THIS JUDGMENT UNTIL THE AMOUNTS IN QUESTION HAVE BEEN PAID .
Decision on costs
COSTS
22 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS, IF THEY HAVE BEEN ASKED FOR, IN THE SUCCESSFUL PARTY ' S PLEADINGS .
23 IN HIS APPLICATION MR BERTI CLAIMED THAT THE COMMISSION SHOULD BE ORDERED TO PAY THE COSTS .
24 SINCE THE COMMISSION HAS IN THE MAIN FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE WHOLE OF THE COSTS, BOTH FOR THE PROCEEDINGS LEADING UP TO THE INTERLOCUTORY JUDGMENT OF 7 OCTOBER 1982 AND FOR THE SUBSEQUENT PROCEEDINGS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
( 1 ) ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY TO MR BERTI, IN HIS CAPACITY AS THE LEGAL REPRESENTATIVE OF HIS SON PAULO, THE SUM OF BFR 120 000 BY WAY OF COMPENSATION FOR THE PERMANENT PARTIAL INVALIDITY AND SLIGHT DISFIGUREMENT SUFFERED BY HIS SON, TOGETHER WITH INTEREST AT THE RATE OF 12% FROM THE DATE OF THIS JUDGMENT .
( 2)DISMISSES THE REMAINDER OF THE APPLICATION .
( 3)ORDERS THE COMMISSION TO PAY THE WHOLE OF THE COSTS .