JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

9 January 1996

Case T-23/95

Efthimia Bitha, Vasiliki Bitha and Georgios Bitha

v

Commission of the European Communities

‛Insurance of Community officials against the risk of accident and of occupational disease — Entitlement to the benefits provided for in Article 73(2) of the Staff Regulations — Accidental death — Underwater diving’

Full text in French II-45

Application for:

annulment of the decision of the Commission of 26 April 1994 refusing the applicants the benefits provided for in Article 73(2) of the Staff Regulations of officials of the European Communities in the event of the accidental death of an official.

Decision:

Application dismissed.

Abstract of the Judgment

The action concerns the rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (‘the Rules’). Krinio Bitha, an official of the Commission in grade LA 6, step 3, and a member of a diving club, took part in a diving exercise in the course of which she met with a fatal accident.

Following that accident, the persons entitled under Krinio Bitha submitted a request under Article 90(1) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) to ‘receive the benefits provided for by the Staff Regulations in the event of the accidental death of a European official’. Having received a reply expressly rejecting that request, the applicants lodged a complaint against that decision. In support of their complaint, they pleaded infringement of Article 73 of the Staff Regulations, infringement of Articles 2 and 4 of the Rules and a manifestly erroneous assessment of the distinction between ‘underwater diving’ and ‘underwater exploration’.

The Commission decided to seek an external expert's report with a view to clarifying certain points raised in the complaint, but did not send the expert's report to the applicants prior to expiry of the time-limit laid down by Article 91 of the Staff Regulations for bringing proceedings. They consequently brought the present action.

Substance

The Court observes that the decision of 26 April 1994, whereby the Commission refused the applicants the benefits provided for in Article 73(2) of the Staff Regulations in the event of the accidental death of an official, refers exclusively to the third indent of Article 4(1 )(b) of the Rules and not to all the indents of Article 4(1 )(b) as the Commission contends (paragraph 29).

Nor may the Commission, after an implied decision rejecting a complaint lodged pursuant to Article 90(2) of the Staff Regulations, subsequently alter the grounds of an earlier decision adopted by it, by justifying that decision with reference, for example, to provisions other than that initially relied on. To do so would constitute a breach by the Commission of its obligation to give reasons for its decisions, which is laid down by Article 25(2) in conjunction with Article 90(2) of the Staff Regulations, and which is intended both to provide the applicants with sufficient information to determine whether the rejection of their request was well founded and whether to bring proceedings before the Court, and to enable the Court to exercise its power of review (paragraph 30).

See: 195/80 Michel v Parliament [1981] ECR 2861, para. 22; C-343/87 Citlin v Commission [1990] ECR I-225. para. 15; T-52/90 Volger v Parliament [1992] ECR II-121, para. 40

The Court considers that its examination must be restricted to the question whether the Commission was manifestly in error in regarding the activity in the course of which Krinio Bitha met her death as falling within the third indent of Article 4(1 )(b) of the Rules, without there being any need to decide whether the contested decision was in accordance with the first indent of Article 4(l)(b). It is clear from the written procedure and the arguments advanced at the hearing that the parties are not ad idem as to the classification of the underwater diving exercise in issue, having regard to the expression ‘underwater exploration’ contained in the third indent of Article 4(1 )(b) of the Rules (paragraphs 31 to 34).

The Court considers that the applicants' contention that the term ‘underwater exploration’ means the carrying out of scientific research cannot be accepted, since the provision at issue sets out a detailed list of activities, including underwater exploration, which are described in the provision itself as ‘sports’. Next, the Court notes that the authors of the Rules, in referring to ‘sports regarded as dangerous’, drew a distinction only between underwater exploration and underwater fishing, without differentiating between underwater diving and underwater exploration. It follows that all underwater diving undertaken for sporting purposes with breathing equipment including containers for the supply of air or oxygen which is not carried on for the purposes of underwater fishing necessarily constitutes underwater exploration within the meaning of the Rules. Consequently, the Court considers that the very wording of the third indent of Article 4(l)(b) of the Rules covers all underwater activities carried on in open waters with such equipment by officials in their free time and for sporting purposes. Moreover, that interpretation is supported by the expert's report sought by the Commission (paragraphs 35 to 38).

It follows that the activity in which Krinio Bitha was engaged at the time of her fatal accident must be regarded as underwater exploration within the meaning of the third indent of Article 4(1 )(b) of the Rules (paragraph 39).

It is necessary, however, to address the other arguments advanced by the applicants. First, as regards the argument that underwater exploration is more hazardous than underwater diving, and that the latter is a sporting activity involving no special risk as long as certain precautions are taken, the Court considers that it is not entitled to examine whether the description of underwater exploration in the Rules as a ‘sport regarded as dangerous’ is justified by the facts. Next, as regards the argument that the Commission's attitude towards the diving club set up within the Commission by members of its staff shows that underwater diving is a sporting activity involving no special risk, the Court points out that the Commission's attitude cannot oust the contents of the third indent of Article 4(l)(b) of the Rules. Lastly, the Court does not regard as relevant the argument that the third indent of Article 4(1 )(b) of the Rules must be interpreted restrictively, since the meaning of the provision at issue is unambiguous (paragraphs 40 to 42).

It follows from all the foregoing that the Commission's decision of 26 April 1994 is consistent with Article 73 of the Staff Regulations and with Article 2 and the third indent of Article 4(1 )(b) of the Rules. The action must therefore be dismissed (paragraph 43).

Costs

It is apparent from the documents in the case that the Commission failed to exercise due diligence towards the applicants in the pre-litigation procedure, in that it withheld from them, without any apparent motive, the expert's report which it had promised to let them have when they had to decide whether or not to bring the present action. Furthermore, in the context of the present proceedings, the Commission put forward arguments which did not correspond with the detailed statement of reasons for the contested measure, so that the applicants were obliged, when submitting their reply, to raise points which were not germane to the outcome of the dispute (paragraphs 44 to 46).

The Court considers it appropriate, having regard to the circumstances of the case, to order the Commission to pay, in addition to its own costs, those of the applicants (paragraph 47).

Operatíve part:

The application is dismissed.