Judgment of the Court (First Chamber) of 14 February 1985. - Mario Berti v Commission of the European Communities. - Official - Wrongful act or omission on the part of the administration - Non-contractual liability of the Commission. - Case 131/81.



European Court reports 1985 Page 00645



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - NON-CONTRACTUAL LIABILITY OF THE INSTITUTIONS - WRONGFUL ACT OR OMISSION ON THE PART OF THE ADMINISTRATION - MATERIAL DAMAGE AND DISFIGUREMENT - COMPENSATION - DETAILED RULES

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 .