Judgment of the Court (First Chamber) of 16 June 1971. - Anne Duraffour v Council of the European Communities. - Case 18-70.



European Court reports 1971 Page 00515

Danish special edition Page 00143

Greek special edition Page 00861

Portuguese special edition Page 00207



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . OFFICIALS - ACCIDENT INSURANCE - OBLIGATION OF THE INSTITUTION - SUBSTITUTION OF AN INSURER - LIMITS

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 73 )

2 . OFFICIALS - ACCIDENT INSURANCE - SUICIDE - EXCLUSION

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 73 )

3 . OFFICIALS - ACCIDENT INSURANCE - DEATH - BENEFITS - MATERIALIZATION OF THE RISK - LACK OF WITNESSES - ACCIDENTAL NATURE OF THE EVENT - CIRCUMSTANTIAL EVIDENCE - COOPERATION OF THE INSTITUTION IN ORDER TO DISCOVER THE TRUTH

( STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES, ARTICLE 73 )

Summary

1 . WHILST, IN THE ABSENCE OF THE RULES PROVIDED BY ARTICLE 73 OF THE STAFF REGULATIONS, AN INSTITUTION IS ENTITLED, ON A PROVISIONAL BASIS, TO TAKE OUT A POLICY DETERMINING THE RISKS COVERED, SINCE THE RIGHTS AND OBLIGATIONS OF THE INSTITUTION AND OF ITS SERVANTS ARE IN THIS CASE PROVISIONALLY DETERMINED BY ARTICLE 73 IN CONJUNCTION WITH THE SAID POLICY, IT CANNOT HOWEVER BE ACCEPTED THAT THE OBLIGATION OF AN INSURER MAY BE SUBSTITUTED FOR THE DIRECT OBLIGATION OF THE INSTITUTION UNDER ARTICLE 73 OF THE STAFF REGULATIONS, THUS DEPRIVING THE BENEFICIARIES OF THEIR PARTICULAR LEGAL RIGHTS GUARANTEED BY THE STAFF REGULATIONS .

2 . THE EXCLUSION OF SUICIDE FROM COVER AGAINST THE RISK OF ACCIDENT IS COMPATIBLE WITH THE TERMS OF ARTICLE 73 OF THE STAFF REGULATIONS .

3 . SO LONG AS IT IS NOT ESTABLISHED THAT THE DEATH IS DUE TO A CAUSE RULING OUT SUICIDE, THE BENEFITS ARE NOT PAYABLE . WHERE THE DEATH TOOK PLACE WITHOUT WITNESSES, IT IS ENOUGH THAT THE ACCIDENTAL NATURE OF THE EVENT CAN BE DEDUCED FROM SUFFICIENTLY WEIGHTY, CLEAR AND UNCONTRADICTORY CIRCUMSTANTIAL EVIDENCE WHICH IS NOT CONTRADICTED BY CONTRARY CIRCUMSTANTIAL EVIDENCE . THE APPOINTING AUTHORITY MUST COOPERATE WITH THE SERVANT INSURED OR WITH THOSE CLAIMING UNDER HIM IN ORDER TO DISCOVER THE TRUTH .

Parties

IN CASE 18/70

ANNE DURAFFOUR, ACTING ON HER OWN BEHALF AND AS A LEGAL GUARDIAN OF HER INFANT CHILDREN, SYLVIE, PASCALE, JEAN-PATRICE, RENAUD AND PIERRE ROLAND, WIDOW OF PAUL ROLAND, IN HIS LIFETIME AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, RESIDING IN BRUSSELS, REPRESENTED BY ERNEST ARENDT, ADVOCATE OF THE LUXEMBOURG BAR, RESIDING AT 34B RUE PHILIPPE-II, LUXEMBOURG, APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JEAN BAUGNIET, ASSISTED BY ROGER DALCQ, BOTH ADVOCATES OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR BADEN, ADVOCATE, OF 45 BOULEVARD PRINCE-HENRI, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF THE IMPLIED DECISION OF THE COUNCIL REJECTING THE COMPLAINT THROUGH OFFICIAL CHANNELS MADE BY THE APPLICANT ON 15 FEBRUARY 1970 AND IN SO FAR AS IS NECESSARY OF THE EXPRESS DECISION OF THE COUNCIL OF 10 APRIL 1970 REJECTING THE APPLICATION FOR THE LUMP SUM PAYABLE ON THE DEATH OF AN OFFICIAL PROVIDED FOR BY ARTICLE 73 OF THE STAFF REGULATIONS,

Grounds

1 MR PAUL ROLAND, AN OFFICIAL AT THE SECRETARIAT OF THE COUNCIL OF MINISTERS OF THE EUROPEAN COMMUNITIES, DIED FROM DROWNING IN THE RHONE DURING THE MONTH OF FEBRUARY 1969 .

2 HIS WIDOW, THE APPLICANT, ACTING ON HER OWN BEHALF AND AS LEGAL GUARDIAN TO HER INFANT CHILDREN, REQUESTED IN A LETTER OF 15 JANUARY 1970 TO THE SECRETARY GENERAL OF THE COUNCIL OF MINISTERS, THE GRANT OF THE BENEFITS PROVIDED FOR BY ARTICLE 73 OF THE STAFF REGULATIONS FOR THOSE PERSONS ENTITLED UPON THE DEATH OF AN OFFICIAL FROM A NON-OCCUPATIONAL ACCIDENT .

3 SINCE THE COUNCIL REFUSED TO GRANT THIS REQUEST, THE APPLICANT BROUGHT AN ACTION BEFORE THE COURT OF JUSTICE PURSUANT TO ARTICLE 91 OF THE STAFF REGULATIONS FOR AN ORDER THAT THE COUNCIL SHOULD PAY THE SUMS IN QUESTION .

4 ( A ) ARTICLE 73 ( 1 ) PROVIDES :

" AN OFFICIAL IS, FROM THE DATE OF HIS ENTRY INTO THE SERVICE, INSURED AGAINST THE RISK OF OCCUPATIONAL DISEASE OR ACCIDENTS IN THE MANNER PROVIDED FOR IN RULES DRAWN UP BY COMMON AGREEMENT OF THE INSTITUTIONS OF THE COMMUNITIES AFTER CONSULTING THE STAFF REGULATIONS COMMITTEE . HE SHALL CONTRIBUTE TO THE COST OF INSURING AGAINST NON-OCCUPATIONAL RISKS UP TO 0.1 PER CENT OF HIS BASIC SALARY . "

SUCH RULES SHALL SPECIFY WHICH RISKS ARE NOT COVERED .

5 IN THE FOLLOWING PARAGRAPHS, THE ARTICLE LAYS DOWN THE BENEFITS PAYABLE .

6 HOWEVER THE RULES PROVIDED FOR IN PARAGRAPH 1, WHICH WERE TO DETERMINE THE CONDITIONS SUBJECT TO WHICH SERVANTS ARE COVERED AND IN PARTICULAR SHOULD SPECIFY WHICH RISKS ARE NOT COVERED, HAVE NOT UP TO NOW BEEN ISSUED FOR LACK OF AGREEMENT BETWEEN THE INSTITUTIONS .

7 IN SUPPORT OF ITS REJECTION, THE DEFENDANT ARGUES IN THE FIRST PLACE THAT, IN ORDER TO COMPLY IN THE MEANTIME WITH ITS PART OF THE OBLIGATIONS IMPOSED ON INSTITUTIONS, IT COVERED THE RISK OF ACCIDENT WITH REGARD TO ITS SERVANTS BY TAKING OUT AN INSURANCE POLICY FOR THEIR BENEFIT .

8 IT CLAIMS THAT THE POLICY IS A CONTRACT IN FAVOUR OF THIRD PARTIES WHICH BENEFITS THOSE INSURED AND WHICH WAS ACCEPTED BY IMPLICATION BUT NONE THE LESS CLEARLY BY THE APPLICANT SO THAT THE LATTER HAS NO RIGHTS OTHER THAN THOSE CONFERRED BY THE SAID POLICY AND UNDER THE TERMS THEREOF ONLY HAS A RIGHT OF ACTION AGAINST THE INSURERS .

9 IT IS SAID THAT THE ACTION SHOULD THEREFORE BE DISMISSED IN SO FAR AS IT IS DIRECTED AGAINST THE COUNCIL .

10 THE APPLICANT ON THE OTHER HAND MAINTAINS THAT HER RIGHTS ARE GRANTED DIRECTLY BY ARTICLE 73 AND THAT THEREFORE THE COUNCIL IS INDEBTED TO HER .

11 ARTICLE 73 OF THE STAFF REGULATIONS CONCERNS THE SOCIAL SECURITY OF OFFICIALS AND LAYS DOWN THE RECIPROCAL RIGHTS AND OBLIGATIONS OF THE INSTITUTIONS AND OF THEIR SERVANTS .

12 IN ORDER TO ENSURE AS FAR AS POSSIBLE THE COMPLIANCE WITH ITS OBLIGATIONS AND IN THE ABSENCE OF OTHER POSSIBILITIES THE COUNCIL WAS ENTITLED TO RESORT TO PROVISIONAL MEASURES AND TO TAKE OUT A POLICY FIXING THE CONDITIONS UNDER WHICH RISKS ARE COVERED .

13 IN ADDITION BY ITS STAFF NOTICE OF 11 JULY 1966 THE DEFENDANT INFORMED ITS STAFF OF THE PROVISIONS OF THIS POLICY WHICH PROVISIONALLY LAID DOWN THE CONDITIONS UNDER WHICH THE BENEFITS PROVIDED FOR IN ARTICLE 73 WOULD BE GUARANTEED .

14 THUS THE RIGHTS AND OBLIGATIONS OF THE INSTITUTION AND OF ITS SERVANTS ARE PROVISIONALLY DETERMINED BY ARTICLE 73 IN CONJUNCTION WITH THE POLICY .

15 IN THIS RESPECT, IT CANNOT BE ACCEPTED THAT THE OBLIGATION OF AN INSURER MAY BE SUBSTITUTED FOR THE DIRECT OBLIGATION OF THE INSTITUTION UNDER THE SAID ARTICLE, THUS DEPRIVING THE BENEFICIARIES OF THEIR PARTICULAR LEGAL RIGHTS GUARANTEED BY THE STAFF REGULATIONS .

16 ( B ) SECONDARILY THE DEFENDANT MAINTAINS THAT THE DEATH WAS CAUSED BY SUICIDE AND WAS THUS NOT AN ACCIDENT EITHER UNDER THE TERMS OF THE POLICY NOR UNDER THE TERMS OF ARTICLE 73 OF THE REGULATIONS AND IN ANY CASE THE APPLICANT SUPPLIED NO PROOF OF THE ACCIDENTAL NATURE OF THE DEATH .

17 IT SHOULD BE EXAMINED WHETHER SUICIDE COMES WITHIN THE CONCEPT OF ACCIDENT .

18 IN THE TERMS OF THE POLICY, ACCIDENT MEANS AN EVENT WHICH HAPPENS WITHOUT ANY INTENTION ON THE PART OF THE INSURED AND THE PROVEN CAUSE OF WHICH IS THE SUDDEN AND VIOLENT ACTION OF AN EXTERNAL FORCE WHICH RESULTS IN PHYSICAL DAMAGE LEADING TO EITHER DEATH OR INJURY .

19 SUICIDE IS IRRECONCILABLE WITH THIS DEFINITION AND THEREFORE ARTICLE 4 ( D ) PROVIDES THAT THE COMPANY IS NOT LIABLE FOR SUICIDE OR ATTEMPTED SUICIDE .

20 IN ADDITION THE POLICY DOES NOT COVER THE RISK OF DROWNING UNLESS IT IS INVOLUNTARY .

21 THE EXCLUSION FROM THE POLICY OF SUICIDE BECAUSE OF ITS NON-ACCIDENTAL NATURE IS IN CONFORMITY WITH GENERAL PRACTICE AS REGARDS THE COVER AGAINST THE RISK OF ACCIDENT AND IS COMPATIBLE WITH THE TERMS OF ARTICLE 73 .

22 THEREFORE SUCH AN EVENT DOES NOT GIVE RISE TO THE RIGHT TO THE BENEFITS PAYABLE UNDER THIS PROVISION .

23 ( C ) THE PARTIES HAVE NOT REACHED AGREEMENT ON WHETHER THE DEATH WAS CAUSED BY THE SUICIDE OF THE VICTIM .

24 THEREFORE IT SHOULD BE DECIDED HOW AND BY WHOM THE CIRCUMSTANCES OF THE DEATH MUST BE PROVED .

25 ARTICLE 73 IS SILENT AS TO THIS .

26 MOREOVER ARTICLE 8 OF THE POLICY PROVIDES THAT " THE PERSON TAKING OUT THE POLICY, THE INSURED OR THOSE ENTITLED THEREUNDER SHALL BE UNDER AN OBLIGATION TO SHOW THAT THE DEATH, ILLNESS OR TEMPORARY INCAPACITY IS THE DIRECT AND EXCLUSIVE RESULT OF AN ACCIDENT COVERED BY THIS POLICY ".

27 WHILST THIS PROVISION REFERS EXPRESSLY ONLY TO THE RELATIONSHIPS WITH THE INSURERS AND NOT THOSE BETWEEN THE SERVANT AND THE INSTITUTION IT IS JUSTIFIABLE TO TAKE THE VIEW THAT IT GOVERNS THE WHOLE QUESTION OF THE BURDEN OF PROOF IN THE CONTEXT OF THE IMPLEMENTATION OF ARTICLE 73 IN CONJUNCTION WITH THE POLICY .

28 IN VIEW OF THE CONNEXION BETWEEN THIS ARTICLE AND THE POLICY IT WOULD BE UNACCEPTABLE TO HAVE TWO DIFFERENT METHODS OF PROOF BETWEEN THE DIFFERENT PARTIES CONCERNED IN RESPECT OF ONE EVENT .

29 ALTHOUGH IT IS TRUE THAT THE BENEFITS ARE NOT PAYABLE SO LONG AS IT IS NOT ESTABLISHED THAT THE DEATH WAS DUE TO A CAUSE RULING OUT SUICIDE, ONE CANNOT HOWEVER REQUIRE THE BENEFICIARIES UNDER THE GUARANTEE TO PRODUCE DIRECT PROOF OF THE CIRCUMSTANCES IN WHICH A DEATH OCCURRED WHEN IT TOOK PLACE IN THE ABSENCE OF ANY WITNESSES .

30 IT IS ENOUGH THAT THE ACCIDENTAL NATURE OF THE EVENT CAN BE DEDUCED FROM SUFFICIENTLY WEIGHTY, CLEAR AND UNCONTRADICTORY CIRCUMSTANTIAL EVIDENCE IS NOT CONTRADICTED BY CONTRARY CIRCUMSTANTIAL EVIDENCE .

31 IN ADDITION IT IS FOR THE DEFENDANT INSTITUTION, AS THE APPOINTING AUTHORITY, TO COOPERATE WITH THOSE CLAIMING UNDER ONE OF ITS SERVANTS IN ORDER TO DISCOVER THE TRUTH .

32 THE APPLICANT PUT FORWARD A SERIES OF FACTS TENDING ON THE ONE HAND TO ESTABLISH THAT SUICIDE BY DROWNING WAS IMPROBABLE IN VIEW OF THE PERSONALITY OF HER HUSBAND AND ON THE OTHER HAND TO PROVE THAT THE DECEASED DID NOT SUFFER FROM A GRAVE PSYCHIATRIC DISORDER SUCH AS TO LEAD HIM TO ATTEMPT TO TAKE HIS OWN LIFE .

33 THE DEFENDANT ON THE OTHER HAND OFFERED TO PROVE THE PSYCHIATRIC DISORDER OF THE DECEASED WHICH WOULD MAKE THE THEORY OF HIS SUICIDE HIGHLY PROBABLE AND EVEN CERTAIN .

34 BY VIRTUE OF ARTICLE 21 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE AND OF ARTICLES 47, 49 AND 60 OF THE RULES OF PROCEDURE THE COURT MAY REQUIRE THE PARTIES TO PROVIDE INFORMATION OR MAY ORDER THE VERIFICATION OF CERTAIN FACTS .

35 THEREFORE, BEFORE THE COURT MAKES ANY FURTHER DECISION, THE APPLICANT SHOULD BE ALLOWED TO GIVE PARTICULARS IN WRITING OF THE FACTS WHICH SHE INTENDS TO ESTABLISH AND THE MEANS OF PROVING THEM, WHILST RESERVING THE RIGHT OF THE DEFENDANT TO PRODUCE EVIDENCE IN SUPPORT OF ITS OWN CONTENTIONS WITH THE RIGHT FOR BOTH PARTIES TO BRING CONTRARY EVIDENCE BEING RESERVED .

Decision on costs

36 THE COSTS ARE RESERVED UNTIL THE FINAL JUDGMENT .

Operative part

THE COURT ( FIRST CHAMBER ),

BEFORE DELIVERING ITS FINAL JUDGMENT, HEREBY DECLARES AND RULES :

1 . THE DATE ON WHICH THE APPLICANT WILL GIVE PARTICULARS OF THE FACTS WHICH SHE OFFERS TO PROVE AND INDICATE FOR EACH ONE THE METHOD OF PROOF ON WHICH SHE INTENDS TO RELY SHALL BE FIXED AS 15 JULY 1971;

2 . THE COURT WILL GIVE A RULING FIXING THE DATE BY WHICH THE DEFENDANT SHALL PRODUCE THE EVIDENCE TO BE SUPPLIED BY IT;

3 . THE COSTS ARE RESERVED .