2.

Let me deal, first of all, with the first question which concerns the conditions under which invalidity may exist under the rules governing the employment of Community officials. The Commission seeks clarification of the question whether Article 73 of the Staff Regulations only protects an official against those risks of accident which impair his bodily or mental health or whether it also covers those risks which affect his capacity for work. It considers that injury to bodily and mental health alone may in general be taken into account in determining the degree of invalidity. It believes its opinion to be confirmed by the fact that under Article 73 of the Staff Regulations in conjunction with the insurance policy an allowance is to be paid in the form of a ‘once for all’ amount irrespective of the effect of the accident or the capacity for work of the injured party. The Commission maintains that as both the insurance policy and the implementing provisions in force since 1 January 1977 contain a table which lists fixed percentages of invalidity in respect of specific physical and mental injuries and does not relate to the particular type of employment of the individual, the question of capacity for work cannot be regarded as relevant. Furthermore, it is expressly stated in the insurance policy that as regards those cases of partial permanent invalidity for which no provision is made therein the degree of invalidity is to be ascertained by analogy with the information given in the table without the occupation of the insured person being taken into account. The Commission regards it as also to be inferred from the final subparagraph of Article 73 (2) of the Staff Regulations and from Article 25 of the implementing provisions which entered into force on 1 January 1977 that the ‘once for ali’ ameant paid in respect of invalidity within the meaning of Article 73 is to be regarded as completely distinct from the rules governing payment of a pension under Article 78 of the Staff Regulations, which expressly refer to incapacity for work. It points out that Article 2 of the implementing provisions also refers to the adverse effect on the bodily or mental health of the official but not to his reduced capacity for work. Before I begin to deal with those arguments in detail I would like to emphasize that, in my opinion, both parties begin by stating the problem incorrectly, in that they regard the adverse effect on a persons's bodily and mental health as being in opposition to the adverse effect on his capacity for work. The two things are, however, not mutually exclusive: the medically ascertainable physical and mental injuries in fact rather offer a practical yardstick which may be applied both in assessing the reduction in capacity for work and in evaluating the diminished zest for life in general. I am also unable to accept the Commission's view that because incapacity for work is expressly required in Article 78 of the Staff Regulations, which provides for a right to a pension, whereas it is not required in Article 73, invalidity within the meaning of Article 73 cannot include incapacity for work as such. Such an interpretation in fact assumes that an alternative only exists between a reduced capacity to perform one's duties and a dinimution in the ability to lead a normal everyday life. However, a glance at the legal systems of the Member States shows us that between these two degrees of incapacity there may also be room for incapacity to earn a living or general incapacity for work. Thus, for example, in the German law on social security incapacity to perform one's duties or to take up employment is in principle regarded as a preliminary to incapacity to earn a living. An applicant for a pension is thus regarded as incapable of performing his duties or of taking up employment if his capacity to earn a living has fallen short of a certain minimum level which is to be measured against the average value of the professional group to which an insured person with similar education and equivalent attainment belongs (see Article 246 (2) of the Reichsversiche-rungsordnung; Article 23 (2) of the Angestelltenversicherungsgesetz; Article 46 (2) of the Reichsknappschaftsgesetz). Incapacity to perform one's duties may therefore, asm grano salts, be paraphrased — to use the terms of Article 78 of the Staff Regulations — as the inability of an official to perform the duties corresponding to a post in his career bracket. Without going in detail into the various definitions in the different branches of social security I can say that the concept of incapacity to earn a living signifies in German law the total or partial loss of the ability to turn the capacity for work as such to economic advantage. That general incapacity to earn a living is itself a preliminary to inability to lead a normal everyday life. That means that when a person's capacity to take his place in society is 100 % impaired he is totally incapable of earning a living and therefore necessarily totally incapable of performing his duties. If a person is altogether incapable of applying his capacity for work to economic advantage he is logically also completely incapable of performing his duties. That graduation also finds expression in Article 78 of the Staff Regulations which states that ‘an official shall be entitled … to an invalidity pension in the case of total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket’. When an official is no longer able to occupy a post in his grade Article 78 takes the logical step of providing for a pension. On the other hand, the rules governing insurance against accidents and occupational diseases contained in Article 73 of the Staff Regulations deal with a different type of problem. For the purpose of that insurance the only question which arises is the extent to which the official has suffered total or partial invalidity as a result of the accident or occupational disease. If he is only a partial invalid he may still be in a condition to perform his duties, even if he is handicapped in doing so. Such handicaps or impediments justify the payment to him of the allowances due in respect of permanent partial invalidity. At the same time, however, it is also clear from what I have already said that no emphasis is laid on incapacity to perform one's duties in Article 73 of the Staff Regulations. An answer to the question whether the invalidity is to be assessed in relation to the general capacity to lead normal everyday life, or, on the other hand, to the general capacity to earn a living cannot be inferred therefrom. In my opinion the following considerations argue in favour of the view that the term invalidity as used in Article 73 of the Staff Regulations relates to the reduction in the capacity to earn a living: For one thing, as the applicant has pointed out in particular, it must not be forgotten that both the insurance contribution and the insurance benefits are fixed in relation to the basic salary of the official concerned. That already establishes the existence of a certain relationship between invalidity and employment. Then too reference may also be made to provisions which show that the Community legislature itself sought to make the invalidity dependent upon the evaluation of the degree of reduction in the capacity to earn a living. Article 73 appears in Chapter 2 of Title V of the Staff Regulations which is headed ‘Social security benefits’. The corresponding rule of Community law which deals with social security is Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416). In order to implement that regulation the Council adopted Regulation (EEC) No 574/72 of the Council of 21 March 1972 (Official Journal, English Special Edition 1972 (I), p. 159). Chapter 3 of Title IV of that regulation is headed ‘Invalidity, old age and death (pensions)’. Article 40 in Chaper 3 expressly stipulates that in order to determine the degree of invalidity, the institution of the Member State shall take into consideration the documents and medical reports and the information of an administrative nature abtained by the institution of any other Member State. A glance at the legal systems of the Member States also shows that interpretation of Article 73 of the Staff Regulations of Officials to be correct. In international linguistic usage invalidity is always related to capacity to earn a living and not to capacity to take one's place in Society (see Brackmann, Handbuch der Sozialversicherung, Vol. III, p. 666 x, and the relevant encyclopaedias). As regards German law in particular, there is in the law on pensions for civil servants and judges employed by the Federal Republic and the Lander (Beamtenversorgungsgesetz) of 24 August 1976 (Bundesgesetzblatt I, p. 2485) a provision dealing with accident insurance which is comparable to that in the Staff Regulations of Officials. Article 35 provides for compensation in respect of an accident if ‘as a result of an accident sustained in the course of his employment the capacity of the injured person to earn a living is seriously restricted for more than six months …, so long as that condition persists’. Under paragraph 2 of that provision the ‘reduction in capacity to earn a living shall be assessed on the basis of the physical injury affecting working life in general’. Under Article 43 ‘an official who sustains an accident [in the course of performing duties in which his life is at risk] shall receive, in addition to a pension payable under the regulations governing public officials, when his employment comes to an end, a lump sum by way of compensation for the accident …, if as a result of the accident his capacity to earn a living … is impaired’. Those provisions show clearly that under national law also the amount of compensation payable in respect of an accident is dependent upon the degree of diminution of the capacity to earn a living. Furthermore, the directives applied to Article 35 of the Beamtenver-sorgungsgesetz are those which were issued in respect of Article 139 of the Bundesbeamtengesetz, the content of which was identical and which was replaced by the aforementioned Article 35 of the Beamtenversorgungsgesetz (printed in Plog-Wiedow, Kommentar zum Bundesbeamtengesetz, Article 139). Directive No 3 provides that ‘the reduction in capacity to earn a living as a result of the accident occurring in the course of employment shall be expressed as a percentage of the capacity to earn a living as a result of the accident occurring in the course of employment shall be expressed as a percentage of the capacity to earn a living of the person injured, hat is to say, the capacity to earn a living shall be expressed 100’. Finally, like the insurance policy taken out by the Commission or the provision in Article 73 of the Staff Regulations Directive No 8 contains a table which lists minimum percentages fixed in detail in respect of specific physical injuries, without regard to the particular occupation of the individual. The intention of that rule, which clearly relates to the capacity to earn a living, is to award the injured person compensation in respect of the injury suffered on the basis of a standardized percentage whatever the nature of that person's employment. That example refutes, in particular, the Commission's argument that the existence of a table listing fixed percentages which are independent of the type of employment of the individual concerned signifies that those percentages cannot relate to that person's working life. A similar table relating to accident insurance for public servants also exists in French law. Article L. 27 of Law No 64-1339 of 26 December 1964 reforming the code of civil and military retirement pensions, which appear in the Fifth Title headed ‘Invalidity’, provides that: ‘A public servant in the civil sector who is permanently incapable of continuing to perform his duties as a result of disabilities resulting from injuries or illness … may be retired prematurely…’ Article L.28 continues as follows: ‘A public servant in the civil sector who is retired under the circumstances provided for in Article L.27 shall be entitled to an invalidity pension for life in addition to the pension awarded for his services. The amount of the invalidity pension shall be fixed at that fraction of the basic emoluments referred to in Article L.15 which is equal to the percentage of invalidity. The degree of invalidity shall be determined on the basis of a standard scale which shall be fixed by decree.’ In implementation of the aforesaid Article L.28, Article 1 of Decree No 68-756 of 13 August 1968 provides that: ‘The degree of incapacity resulting for public servants in the civil sector from invalidity arising out of performance of their duties shall be determined in accordance with the standard scale of invalidity annexed to this decree’. That standard scale also contains an extremely detailed list of physical and mental injuries and of corresponding degrees of invalidity, which may only vary within a strictly limited percentage. No 1, subparagraph 3, for example, states that: ‘In determining the degree of invalidity applicable no account shall be taken of certain factors, such as the age of the official concerned, the nature of his employment, … etc.’ The position is similar under Belgian law. Under Article 4 of the Law of 3 July 1967‘on compensation for injuries resulting from accidents at work, accidents on the way to work and occupational diseases in the public sector’ in conjunction with Article 8 of the Royal Decree of 24 January 1969 pensions payable in respect of permanent invalidity shall be determined in proportion to a recognized percentage of partial permanent invalidity. In the Rapport au Roi relating to that law it is further stated that in determining the degree of invalidity all the elements of the injury are to be taken into account, in particular, according to the preparatory documents, ‘the seriousness of the physiological injuries, the diminution of earning capacity, the abilities required for performance of the duties attaching to the post, the nature and stability of the post’ (Document Senat No 314, Sess. 1966-67, p. 21). Those examples show that the Member States also consider the degree of invalidity on the basis of the diminution which has taken place in the capacity to earn a living. The fact that in some States the benefit is paid in the form of a pension is immaterial, since Article 73 (2) of the Staff Regulations of Officials also provides for an annuity to be substituted for payment of the lump sum. Similarly, the fact that in, for example, the tables drawn up under German and French law the accident insurance institution has a certain margin of discretion available as regards recognition of. the invalidity, whereas the tables given in the insurance policy and in the rules which entered into force on 1 January 1977 provide for fixed percentages, can make no serious difference. The only decisive factor is that in both cases the particular form of employment of the injured person may not be taken into account. It is, furthermore, in that sense that Article 9 (b) of the insurance policy to which the Commission has previously referred is to be understood. According to that article the degree of invalidity involved in those cases of permanent partial invalidity which are not provided for in the table must be determined by analogy with those for which provision is made therein, without regard to the form of employment of the insured person. It is also of no consequence that the protection offered by Article 73 covers accidents occurring both in the course of employment and in private life, since the aim of the protection — which is to provide compensation for the reduction in earning capacity — is not affected by the various causes of the accident. I therefore conclude that the degree of invalidity to be determined in accordance with Article 73 of the Staff Regulations of Officials is dependent upon the reduction which occurs in the capacity to earn a living. The reduction in the capacity to earn a living must therefore be an expression of the extent to which a person is deprived of a normal working life by reasons of health. That conclusion is, in particular, confirmed by Article 14 of the Rules which entered into force on 1 January 1977, which provides that in certain circumstances an official shall receive an allowance in respect of any injury or permanent disfigurement which, although not affecting his capacity to work, constitutes a physical defect and has an adverse effect on his social relations. Under the second paragraph of that article this allowance ‘shall be determined by analogy with the rules laid down in the invalidity scale referred to in Article 12’. That provision clearly lays down a special rule for those cases in which the capacity to work, which must otherwise be the decisive factor, is not adversely affected and it therefore only provides that the invalidity scale is to be applied by analogy. Contrary to the view held by the Commission that conclusion is not upset by Article 2 of the Rules of 1 January 1977 which only provides a definition of an accident and in so doing naturally focuses on the adverse effect on bodily or mental health without giving any reason why the benefit payable under Article 73 is provided.