2.

It becomes clear from reading Article 73 of the Staff Regulations that it does not contain very comprehensive rules in respect of claims for benefit and their details. For this reason provision was made for the adoption of implementing rules. Since these provisions have not yet been adopted and since, as we have mentioned, it appears unacceptable to refer those who have rights to the insurance companies and thus to exclude any claim on the basis of Article 73 there remain only two means of dealing with the problem caused by Article 73's being incomplete. One possibility would be, for an interim period, to give each institution the power to adopt its own rules, a power which could be used where appropriate by entering into an insurance contract which would be deemed to be implementing rules for the purposes of Article 73 once the contents of the policy had been notified to those with rights under that Article. The other possibility would be to refer to the general legal principles drawn from the laws of the individual Member States in order to fill the gaps which have become apparent. I must straight away state that in my opinion the first mentioned possibility must be excluded. It is unacceptable not only in view of the time that has elapsed since the adoption of the Staff Regulations and because of the non-observance of the procedural requirements set out in Article 73; above all it cannot be considered because it takes no account of an essential principle of the law relating to public servants, that is, equality of treatment. The second possibility is all the more suitable as it corresponds with a quite customary method of finding the legal principles applicable in a given situation (‘Rechtsfindung’) in the Communities, a method which is for example expressly stipulated in the second paragraph of Article 215 of the EEC Treaty relating to an area of law which has not been without its problems, that is the non-contractual liability of the Community institutions for acts carried out in the performance of their duties. In the present case at least, there can be no doubts about adopting this solution, because only two problems have appeared from the arguments relating to Article 73: first, the question of the concept of ‘accident’ and on the other hand that of the burden of proof. Examination will show that the solution does not present insurmountable difficulties if this method is used. I shall not look at the matter in greater detail. (a) My comments as regards the concept of accident, which is relevant because the applicant bases her claim on the existence of a non-occupational fatal accident, may be comparatively short. Although it is true that, contrary to the view of the applicant, who refers to Littré, it is not enough to elicit the meaning of the concept according to customary usage, it is, however, no less true that unanimity may be achieved if reference is made to the criteria of insurance law. Thus for example in paragraph 2 of the German General Accident Insurance Conditions, which were drafted in cooperation with the State, contains the following provision: ‘An accident exists if the insured involuntarily suffers physical harm caused by the action upon his body of a sudden external event’. ( 4 ) This corresponds to a large extent to the definitions adopted by the legislation of the other Member States. In this respect I refer to Sicot-Margeat, Precis de la loi sur le contrat d'assurance, Fourth Edition, 1962, No 605; Fredericq, Traité de droit commercial beige, 1947, Volume m, pages 362 to 364; Molengraaff, Leidraad bij de beoefening van het nederlandse Handelsrecht, 1955, Volume E, page 727, and Novissimo digesto italiano, assicurazione contro le danni, No 72, 73. These make it clear that For an accident to exist there must be an external, fortuitous, involuntary, and unintentional effect on the health of a person and that suicide cannot be regarded as an accident (this is also made clear by articles 1 and 4 of the insurance policy taken out by the Council). Even if Article 73 of the Staff Regulations does not make the same distinctions, it is not sufficient, in order to establish a claim, to prove death by drowning, that is, by the external effect of the water (as the applicant undoubtedly has shown); it is necessary in addition to show whether the event giving rise to the damage was brought about voluntarily or involuntarily. It is clear from the conflicting arguments of the parties that this is the centre of dispute in the proceedings. I shall not examine the factors which they relied upon in this respect but, within the scope of the legal examination in the form which I indicated earlier, I will first examine the problem, which is also one of substantive law, of who suffers from a turn liquet in the question whether the drowning was voluntary, thus who bears the burden of proof on this point. From our examination it should become apparent whether this is the applicant, and whether therefore — in accordance with Article 8 of the insurance policy — it is for her to establish the involuntary nature of the drowning or whether the Council must prove that the drowning was deliberate. (b) Clearly the examination from the point of view of comparative law as regards this question is not as simple as that in respect of the concept of accident. The legal situation is not uniform, but rather, as we have seen in the proceedings, the Community is, as it were, divided into two camps. One of them comprises French, Belgian and Luxembourg law while in the other the German, Dutch and Italian legal systems are to be found. We shall begin with German law. The situation is here quite clear, since by paragraph 180(a) of the Law relating to contracts of insurance of 30 June 1967, a provision which tolerates no departure from it by agreement, the involuntary nature of the event is presumed in the absence of the proof to the contrary and therefore the insurer must prove the voluntary nature of an accident. ( 5 ) A similar situation exists in the Netherlands where the involuntary nature of the event is regarded as normal and as the rule in the absence of facts which give cause for doubting it. ( 6 ) The same apparently applies in Italy on the basis of article 1900 of the ‘codice civile’. ( 7 ) On the other side are the French, Belgian and Luxembourg rules under which it is in principle the insured who has to prove the existence of an accident and the absence of any intent to bring it about. ( 8 ) This is important even though it must not be overlooked that the principle is not always applied in its full rigour. In fact, certain, direct and rigorous proof, which is frequently impossible, is not required and the courts accept, although to varying degrees, the establishment of a certain degree of probability, with presumptions (présomptions graves, précis et concordantes') which may be based on all the circumstances of the case (the character, behaviour, beliefs, legal and financial situation of the person entitled) and which may be rebutted by the other side by evidence to the contrary. ( 9 ) In this situation we are raced with the difficult question of which solution is to be regarded as the correct one in the present case. Indeed it would be conceivable to adopt a method whereby from the point of view of the person entitled, Community law would be determined by the lowest common denominator of the legal systems of the Member States. However, even though the differences between the various national legal systems are probably in fact not very great, this method cannot be accepted. It is continually stressed in the writings of legal authors (relating to Article 215 of the EEC Treaty and to the well-known problem of fundamental rights in the Communities) that when the law to be applied is sought (Rechtsfindung) by means of an examination in comparative law, one should proceed on a critical (wertende) basis and one should consider the characteristics peculiar to the matter in question, the system which they constitute and their development. Above all in this respect it is important to note that in the question of rules relating to the burden of proof, all the legal systems mentioned show signs of certain developments. Departing from the strict rules of proof (whereby the person making a claim has to prove the necessary preconditions) it gradually becomes more relaxed, particularly in recognition of the existing difficulties and the particular characteristics of insurance which require the interpretation of insurance contracts against the insurer. Some legal systems have gone no further than admitting circumstantial evidence and presumptions in favour of the person entitled whilst others (as the German legal system in particular shows) not only take a generous line and accept prima facie evidence but have also gone so far as to lay down legal presumptions and reversal of the burden of proof in favour of the person entitled. In my opinion this fact is of particular importance for the basically progressive European Community law. Furthermore, in the context of the European law relating to public servants, there are certain features peculiar to the matters in question which call for attention. As the applicant rightly says, this law is characterized in the present context by the fact that it also provides for benefits in the case of non-occupational accidents. This strongly demonstrates the existence of a concern for the welfare of public servants (Fürsorgegedanken). In this case it is only logical to apply the same principles to the rules relating to the burden of proof and thus to adopt an equally generous approach in favour of the person entitled. A reasonable evaluation of the results of the comparative legal examination leads to the conclusion that the rules relating to the burden of proof in Article 73 of the Staff Regulations should rather be based on the example of the German, Netherlands, and Italian law than that of the French, Belgian and Luxembourg law. Therefore the burden of proving the existence of suicide would lie on the defendant Council of Ministers. However the examination we carried out made it clear that it may rely on circumstantial evidence, typical courses of events, presumptions, prima facie evidence, etc., in other words, that it does not have to bring a strict degree of proof.