Judgment of the Court (First Chamber) of 16 March 1978. - Leonardo Leonardini v Commission of the European Communities. - Case 115/76.



European Court reports 1978 Page 00735

Greek special edition Page 00273

Portuguese special edition Page 00285



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

OFFICIALS - SOCIAL SECURITY - ACCIDENT INSURANCE - DUTY OF THE INSTITUTION - SUBSTITUTION OF AN INSURER - LIMITED

( STAFF REGULATIONS OF OFFICIALS , ART . 73 )

Summary

ALTHOUGH , IN THE ABSENCE OF THE RULES FOR WHICH PROVISION IS MADE BY ARTICLE 73 OF THE STAFF REGULATIONS AND IN ORDER TO ENSURE THE FULFILMENT OF ITS OBLIGATIONS , AN INSTITUTION IS ENTITLED TO HAVE RECOURSE TO PROVISIONAL MEASURES AND TO TAKE OUT AN INSURANCE POLICY SPECIFYING THE CONDITIONS UNDER WHICH THERE WILL BE COVER FOR RISK , THIS DOES NOT MEAN THAT THE DUTY OF AN INSURER MAY BE SUBSTITUTED FOR THE DIRECT OBLIGATION ON THE PART OF THE INSTITUTION UNDER THAT ARTICLE AND IN PARTICULAR THAT IN THE EVENT OF AN ACCIDENT THE INSTITUTION MAY LEAVE TO THE INSURER THE TASK OF SETTLING THE PROBLEMS OF RISK COVER WHICH ARISE THEREFROM , RESTRICTING ITS OWN ROLE TO THAT OF INTERMEDIARY BETWEEN THE INSURER AND THE VICTIM .

Parties

IN CASE 115/76

LEONARDO LEONARDINI , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDENT IN BRUSSELS , REPRESENTED BY MARCEL GREGOIRE AND EDMOND LEBRUN , ADVOCATES AT THE COUR D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , ADVOCATE AT THE COURT , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY MME DENISE SORASIO-ALLO , A MEMBER OF THE LEGAL SERVICE OF THE COMMISSION , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE PAYMENT BY THE COMMISSION OF DAMAGES ,

Grounds

1THE APPLICATION , LODGED ON 8 DECEMBER 1976 , SEEKS AN ORDER THAT THE COMMISSION OF THE EUROPEAN COMMUNITIES SHOULD PAY DEFAULT INTEREST ON BFRS 382 361 , THE CAPITAL SUM PAYABLE TO THE APPLICANT IN RESPECT OF THE DEGREE OF PARTIAL PERMANENT INVALIDITY WHICH HE IS RECOGNIZED TO HAVE SUFFERED AS THE RESULT OF AN ACCIDENT AT WORK ON 25 APRIL 1966 AT A TIME WHEN HE WAS STILL EMPLOYED BY THE COMMISSION .

2THE APPLICANT CLAIMS THAT THE AMOUNT OF THAT INTEREST SHOULD BE CALCULATED , ON THE BASIS OF A RATE OF 8% PER ANNUM , FROM THE DATE OF THE ACCIDENT OR ALTERNATIVELY FROM THE END OF SEPTEMBER 1969 UNTIL THE DATE OF PAYMENT OF THE CAPITAL SUM CORRESPONDING TO THE DEGREE OF PARTIAL PERMANENT INVALIDITY , NAMELY 30 SEPTEMBER 1976 .

3FURTHER , THE APPLICATION CLAIMS THAT THE COMMISSION SHOULD BE ORDERED TO PAY THE APPLICANT INTEREST AT THE RATE OF 8% PER ANNUM ON THE AFORE- MENTIONED AMOUNT BY WAY OF DEFAULT INTEREST FROM 1 OCTOBER 1976 OR ALTERNATIVELY FROM THE DATE ON WHICH THE PRESENT APPLICATION WAS LODGED TO THE DATE OF PAYMENT OF THE SAID SUM .

4IN SUPPORT OF THESE CONCLUSIONS THE APPLICANT MAINTAINS THAT SINCE THE CLAIMS ARISING FROM HIS ACCIDENT WERE NOT SETTLED UNTIL 16 SEPTEMBER 1976 , WHEREAS THE ACCIDENT OCCURRED ON 25 APRIL 1966 , THERE WAS EXCESSIVE AND ABNORMAL DELAY DUE TO THE NEGLIGENCE OF THE COMMISSION .

5THE LATTER THEREBY NOT ONLY INFRINGED ARTICLE 24 OF THE STAFF REGULATIONS BUT WAS GUILTY OF A WRONGFUL ACT OR OMISSION FOR WHICH IT IS LIABLE TO THE APPLICANT .

6ARTICLE 24 OF THE STAFF REGULATIONS PROVIDES THAT THE COMMUNITIES SHALL ASSIST ANY OFFICIAL AND SHALL JOINTLY AND SEVERALLY COMPENSATE HIM FOR DAMAGE SUFFERED AS A RESULT OF THREATS , INSULTING OR DEFAMATORY ACTS OR UTTERANCES , OR ANY ATTACK TO PERSON OR PROPERTY TO WHICH HE OR A MEMBER OF HIS FAMILY IS SUBJECTED BY REASON OF HIS POSITION OR DUTIES AND REFERS TO SITUATIONS OTHER THAN THAT IN QUESTION .

7THEREFORE THE CLAIM BASED ON INFRINGEMENT OF THAT PROVISION IS NOT RELEVANT IN THE PRESENT CASE .

8ACCIDENT RISK COVER IN RESPECT OF AN ACCIDENT SUCH AS THAT SUFFERED BY THE APPLICANT IS ON THE OTHER HAND PROVIDED FOR BY ARTICLE 73 OF THE STAFF REGULATIONS , THE FIRST PARAGRAPH OF WHICH REFERS IN RESPECT OF ITS IMPLEMENTATION TO ' ' RULES DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS OF THE COMMUNITIES AFTER CONSULTING THE STAFF REGULATIONS COMMITTEE ' ' .

9IN THE ABSENCE OF ANY SUCH RULES THE COMMISSION TOOK OUT AN INSURANCE POLICY WITH PRIVATE INSURERS TO COVER ITS STAFF AGAINST THE RISK OF ACCIDENT AND BY A NOTE DATED 11 JANUARY 1969 INFORMED THE APPLICANT OF THE INSURER ' S PROPOSAL TO DETERMINE THE DEGREE OF PARTIAL PERMANENT INVALIDITY AT 6% .

10ARTICLE 73 OF THE STAFF REGULATIONS IS CONCERNED WITH THE SOCIAL SECURITY OF OFFICIALS AND DETERMINES THE MUTUAL RIGHTS AND OBLIGATIONS OF THE INSTITUTIONS AND THEIR SERVANTS IN SOCIAL SECURITY MATTERS .

11ALTHOUGH IN ORDER TO ENSURE AS FAR AS POSSIBLE THE FULFILMENT OF ITS OBLIGATIONS AND IN THE ABSENCE OF OTHER ALTERNATIVES THE COMMISSION WAS ENTITLED TO HAVE RECOURSE TO PROVISIONAL MEASURES AND TO TAKE OUT AN INSURANCE POLICY SPECIFYING THE CONDITIONS UNDER WHICH THERE WOULD BE COVER FOR RISK , THIS DOES NOT MEAN THAT THE DUTY OF AN INSURER MAY BE SUBSTITUTED FOR THE DIRECT OBLIGATION ON THE PART OF THE INSTITUTION UNDER THAT ARTICLE AND IN PARTICULAR THAT IN THE EVENT OF AN ACCIDENT THE INSTITUTION MAY LEAVE TO THE INSURER THE TASK OF SETTLING THE PROBLEMS OF RISK COVER WHICH ARISE THEREFROM , RESTRICTING ITS OWN ROLE TO THAT OF INTERMEDIARY BETWEEN THE INSURER AND THE VICTIM .

12THE PROCEDURE FOR FIXING THE DEGREE OF INVALIDITY FOLLOWED UNTIL 11 JANUARY 1969 , THE DATE ON WHICH THE COMMISSION INFORMED THE APPLICANT OF THE PROPOSAL MADE BY THE INSURERS ON 30 DECEMBER 1968 THAT THE DEGREE OF INVALIDITY SHOULD BE FIXED AT 6% , SHOWS THAT THE COMMISSION ' S CONDUCT DOES NOT SATISFY THE SAID REQUIREMENTS OF ARTICLE 73 AND THAT IT DELAYED SETTLEMENT OF THE CASE IN QUESTION .

13THAT FAILURE IS ALL THE LESS JUSTIFIED SINCE THE LEGAL SERVICE OF THE COMMISSION HAD GIVEN ITS OPINION ON 7 MAY 1969 THAT THE COMMISSION WAS ' ' EMPOWERED AND BOUND TO ASSESS AND TO DETERMINE , WHERE APPROPRIATE , THE DEGREE OF INVALIDITY WITH THE ASSISTANCE OF THE COMPETENT MEDICAL PRACTITIONERS , SUCH AS ITS MEDICAL EXAMINERS OR OFFICERS ' ' .

14IT WAS ONLY AFTER THE REFUSAL BY THE APPLICANT TO ACCEPT THE DEGREE OF INVALIDITY PROPOSED BY THE INSURERS THAT THE COMMISSION DECIDED TO AVAIL ITSELF OF SUCH A POWER AND TO HAVE THAT DEGREE DETERMINED BY ITS OWN MEDICAL OFFICER .

15ALTHOUGH THE COMMISSION ' S MEDICAL SERVICE WAS INSTRUCTED IN JULY 1969 TO UNDERTAKE THE PROCEDURE WITH REGARD TO SUCH DETERMINATION , THE MEDICAL EXAMINATION OF THE APPLICANT DID NOT TAKE PLACE UNTIL NOVEMBER 1971 .

16IN ADDITION , IT WAS ONLY BY A NOTE DATED 7 JUNE 1972 THAT THE COMMISSION INFORMED THE APPLICANT THAT THE MEDICAL SERVICE PROPOSED TO FIX THE DEGREE OF PARTIAL PERMANENT INVALIDITY AT 6% .

17THE COMMISSION STATES THAT THE REASON FOR THE PROTRACTED NATURE OF THAT PROCEDURE WAS THE REFUSAL OR OMISSION BY THE APPLICANT TO SUPPLY INFORMATION REQUESTED IN NOVEMBER AND DECEMBER 1970 AND IN JANUARY 1971 BY THE MEDICAL SERVICE WITH REGARD TO THE NAME OF HIS PRIVATE PRACTITIONER AND THE STAGE REACHED IN THE MEDICAL TREATMENT WHICH HE WAS UNDERGOING .

18IT IS NOT , HOWEVER , CONTESTED THAT THE MEDICAL CERTIFICATES PRODUCED TO THE MEDICAL SERVICE OF THE COMMISSION IN SUPPORT OF THE CLAIM FOR REIMBURSEMENT OF THE EXPENSES SHOWED BOTH THE STAGE OF THE TREATMENT AND THE NAME OF THE APPLICANT ' S PRACTITIONER .

19MOREOVER , SINCE THE COMMISSION HAD DECIDED TO HAVE THE DEGREE OF INVALIDITY DETERMINED DIRECTLY BY ITS MEDICAL SERVICE , NEITHER THE NAME OF THE PRIVATE PRACTITIONER NOR THE STAGE OF THE MEDICAL TREATMENT WAS NECESSARY FOR THE PURPOSE OF THE MEDICAL OPINION CONTEMPLATED BY THE INSTITUTION .

20AFTER THE COMMISSION , BY DECISION OF THE AUTHORIZING OFFICER OF 9 JUNE 1972 , HAD TRANSFERRED TO THE APPLICANT ' S BANK ACCOUNT THE SUM OF BFRS 143 386 , REPRESENTING A DEGREE OF PARTIAL PERMANENT INVALIDITY OF 6% THE APPLICANT RETURNED THAT SUM AND ON 14 JUNE 1972 SUBMITTED A COMPLAINT UNDER ARTICLE 90 OF THE STAFF REGULATIONS AGAINST THE AFOREMENTIONED DECISION OF 7 JUNE 1972 .

21AS A RESULT OF THAT COMPLAINT THE AFOREMENTIONED DECISION WAS REVOKED AND BY A NOTE DATED 25 SEPTEMBER 1972 THE COMMISSION INFORMED THE APPLICANT THAT IT HAD DECIDED TO HAVE THE DEGREE OF INVALIDITY DETERMINED BY A MEDICAL PRACTITIONER INDEPENDENT OF THE INSTITUTION TO BE SELECTED BY AGREEMENT BETWEEN THE COMMISSION ' S MEDICAL OFFICER AND THE APPLICANT ' S PRIVATE PRACTITIONER .

22ALTHOUGH THE APPLICANT DID NOT MAKE KNOWN THE NAME OF HIS PRIVATE PRACTITIONER UNTIL THE END OF OCTOBER 1973 , NEVERTHELESS IT WAS ONLY BY LETTER DATED 27 MAY 1974 THAT THE COMMISSION ' S MEDICAL OFFICER , HAVING CHOSEN THE ARBITRATOR IN MARCH 1974 FROM THE PERSONS PROPOSED BY THE APPLICANT ' S PRIVATE PRACTITIONER , INFORMED THE ARBITRATOR SELECTED OF HIS APPOINTMENT AND GAVE HIM THE INSTRUCTIONS NECESSARY TO PERFORM HIS TASK .

23THE ARBITRATOR CONDUCTED THE MEDICAL EXAMINATION OF THE APPLICANT ON 2 JULY 1974 AND BY LETTER DATED 23 JULY 1974 FORWARDED HIS REPORT TO THE INSTITUTION ' S MEDICAL OFFICER ; THE LATTER TOOK NO OFFICIAL ACTION ON IT UNTIL HIS LETTER OF 3 DECEMBER 1974 , SENT TO THE HEAD OF THE STAFF REGULATIONS DIVISION OF THE COMMISSION , IN WHICH HE QUESTIONED THE REGULARITY OF THE ARBITRATION PROCEDURE ON THE GROUNDS THAT THE MEDICAL EXAMINATION HAD TAKEN PLACE IN THE ABSENCE OF A REPRESENTATIVE OF THE MEDICAL SERVICE AND THAT THE ARBITRATOR HAD NOT USED THE SCALES IN FORCE AT THE COMMISSION TO DETERMINE THE DEGREE OF INVALIDITY .

24IT WAS NOT UNTIL SEPTEMBER 1975 THAT A MEETING WAS ARRANGED BETWEEN THE HEAD OF THE MEDICAL SERVICE AND THE ARBITRATOR TO CLARIFY THE ISSUES IN DISPUTE REGARDING THE REPORT AND THE CONDITIONS UNDER WHICH THE MEDICAL EXAMINATION WAS CONDUCTED .

25THAT MEETING WAS FOLLOWED BY AN EXCHANGE OF CORRESPONDENCE OF A STRICTLY MEDICAL NATURE WHICH , ACCORDING TO THE PARTICULARS SUPPLIED BY THE DEFENDANT , CONTINUED UNTIL APRIL 1976 .

26HOWEVER , IT WAS NOT UNTIL 16 SEPTEMBER 1976 THAT THE COMMISSION INFORMED THE APPLICANT BY LETTER THAT THE DEGREE OF HIS PARTIAL PERMANENT INVALIDITY HAD BEEN FIXED AT 16% .

27IT IS APPARENT FROM THE FOREGOING THAT ALTHOUGH THE APPLICANT HAS NOT ALWAYS SHOWN ALL THE DILIGENCE NECESSARY TO AVOID THE DIFFICULTIES INHERENT IN SETTLING THE CASE IN QUESTION , THE INSTITUTION ' S CONDUCT IN THE PRESENT INSTANCE NEVERTHELESS REVEALS NEGLIGENCE WHICH IS ALL THE MORE REPREHENSIBLE SINCE , UNDER THE POWERS GIVEN TO IT BY THE STAFF REGULATIONS AND IN THE INTERESTS BOTH OF THE SERVICE AND OF THE APPLICANT , THE INSTITUTION WAS IN A POSITION TO ARRANGE FOR A SETTLEMENT OF THE CASE WITHIN A MUCH MORE REASONABLE PERIOD .

28AS REGARDS MORE PARTICULARLY THE REGULARITY OF THE MEDICAL EXAMINATION CARRIED OUT BY THE ARBITRATOR , IT IS COMMON GROUND THAT THE LETTER OF 27 MAY 1974 FROM THE HEAD OF THE MEDICAL SERVICE INFORMING THE ARBITRATOR OF HIS APPOINTMENT AND OF WHAT WAS REQUIRED OF HIM DID NOT MAKE IT A NECESSARY CONDITION FOR THE REGULARITY OF THAT EXAMINATION THAT A REPRESENTATIVE OF THE MEDICAL SERVICE OF THE INSTITUTION SHOULD BE PRESENT .

29MOREOVER , IT APPEARS FROM A LETTER DATED 2 MAY 1977 SENT BY THE ARBITRATOR TO THE APPLICANT ' S COUNSEL THAT THE MEDICAL SERVICE WAS TWICE INFORMED BY TELEPHONE OF THE DATE ON WHICH THE MEDICAL EXAMINATION WAS TO TAKE PLACE AND THAT IT REPLIED THAT A REPRESENTATIVE WOULD ATTEND .

30IN CONFINING ITSELF TO COUNTERING THAT THE HEAD OF THE MEDICAL SERVICE HIMSELF DID NOT RECEIVE SUCH INFORMATION THE DEFENDANT DOES NOT NECESSARILY EXCLUDE THE POSSIBILITY THAT IT WAS NEVERTHELESS GIVEN TO OTHER MEMBERS OF THE MEDICAL SERVICE .

31FURTHER , THE FACT THAT THE ARBITRATOR , IN THE ABSENCE OF THE SCALES FORWARDED BY THE MEDICAL SERVICE , USED CENTESIMAL SCALES CANNOT BE REGARDED AS JUSTIFYING THE DELAY ON THE PART OF THE COMMISSION IN REACHING ITS CONCLUSIONS WITH REGARD TO THE SPECIALIST ' S REPORT , SINCE THE DEFENDANT ITSELF HAS NOT DENIED THAT THE CENTESIMAL SYSTEM ALLOWED OF A SIMPLE CONVERSION OF THE PROPOSED ASSESSMENT OF THE DEGREE OF PARTIAL PERMANENT INVALIDITY TO THE SCALE USED BY THE MEDICAL SERVICE .

32IN THOSE CIRCUMSTANCES THE COMMISSION MUST BE ORDERED TO PAY DEFAULT INTEREST TO THE EXTENT HEREINAFTER SPECIFIED .

33IT APPEARS FROM THE FACTS OF THE CASE THAT THE MEDICAL OFFICER OF THE PRIVATE INSURERS UNDERTOOK A MEDICAL EXAMINATION OF THE APPLICANT IN MAY 1967 AND THAT ON THE ADVICE OF THAT PRACTITIONER THE INSURERS RESERVED THEIR POSITION UNTIL SUCH TIME AS THEY SHOULD RECEIVE THROUGH THE COMMISSION A MEDICAL CERTIFICATE STATING THAT THE DENTAL TREATMENT COULD BE REGARDED AS TERMINATED .

34NOT UNTIL 30 DECEMBER 1968 , ON THE BASIS OF A MEDICAL CERTIFICATE DATED 15 SEPTEMBER 1968 RELATING TO THAT TREATMENT , DID THE SAID INSURERS FORMULATE A PROPOSAL THAT THE DEGREE OF PARTIAL PERMANENT INVALIDITY BE FIXED AT 6% ; THE COMMISSION CONVEYED THAT PROPOSAL TO THE APPLICANT BY NOTE DATED 11 JANUARY 1969 .

35HAVING REGARD TO THE FACT THAT THE COMMISSION OUGHT , FROM THE BEGINNING AND FOR THE ABOVE-MENTIONED REASONS , TO HAVE ENTRUSTED TO ITS MEDICAL SERVICE THE TASK OF DETERMINING THE DEGREE OF PARTIAL PERMANENT INVALIDITY , AS IT DID AFTER JULY 1969 , INSTEAD OF LEAVING THAT TASK MAINLY TO THE MEDICAL OFFICER OF THE INSURERS AND THUS SUBJECTING THE PROCEDURE FOR THE SETTLEMENT OF THE CASE TO AN UNJUSTIFIED DELAY , IT APPEARS REASONABLE TO FIX THE DATE FROM WHICH DEFAULT INTEREST SHOULD BE CALCULATED AT 1 SEPTEMBER 1968 .

36FURTHER , SINCE THE REPAYMENT BY THE APPLICANT OF THE SUM OF BFRS 143 386 , WHICH THE COMMISSION HAD TRANSFERRED TO HIM BY DECISION OF THE AUTHORIZING OFFICER OF 9 JUNE 1972 , WAS UNNECESSARY IN THE CIRCUMSTANCES OF THE CASE TO PROTECT THE APPLICANT ' S RIGHTS WITH REGARD TO THE FIXING OF THE DEGREE OF PARTIAL PERMANENT INVALIDITY , IT IS RIGHT TO DEDUCT THAT SUM FROM THE AMOUNT FINALLY PAID ON 30 SEPTEMBER 1976 AND THUS TO CALCULATE THE DEFAULT INTEREST FROM 10 JUNE 1972 ON THE BALANCE OF BFRS 238 975 .

37FINALLY , DEFAULT INTEREST AT THE RATE OF 8% PER ANNUM IN RESPECT OF THE ABOVE YEARS BY WAY OF DAMAGES APPEARS JUSTIFIED IN THE CIRCUMSTANCES OF THE CASE , HAVING REGARD INTER ALIA TO THE FACT THAT IT IS A FIXED RATE AND TO THE LENGTHY DELAY PRECEDING SETTLEMENT OF THE CLAIMS ARISING FROM THE ACCIDENT .

38FOR THESE REASONS IT IS RIGHT TO ORDER THE COMMISSION TO PAY TO THE APPLICANT DEFAULT INTEREST AT 8% PER ANNUM ON BFRS 382 361 FROM 1 SEPTEMBER 1968 TO 9 JUNE 1972 INCLUSIVE AND ON BFRS 238 975 FROM 10 JUNE 1972 TO 30 SEPTEMBER 1976 INCLUSIVE .

39IT IS RIGHT TO INCREASE THE AMOUNT THUS OBTAINED BY INTEREST AWARDED BY THE COURT AT 8% PER ANNUM FROM 1 OCTOBER 1976 UNTIL THE DATE OF PAYMENT .

Decision on costs

COSTS

40UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

41THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY :

- DEFAULT INTEREST AT 8% PER ANNUM ON BFRS 382 361 FROM 1 SEPTEMBER 1968 TO 9 JUNE 1972 INCLUSIVE AND ON BFRS 238 975 FROM 10 JUNE 1972 TO 30 SEPTEMBER 1976 INCLUSIVE ;

- INTEREST AWARDED BY THE COURT AT 8% PER ANNUM ON THE AMOUNT OF DEFAULT INTEREST THUS OBTAINED FROM 1 OCTOBER 1976 UNTIL THE DATE OF PAYMENT OF THE SAID AMOUNT ;

- THE COSTS OF THE ACTION .