OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 31 OCTOBER 1972 ( 1 )

Mr President,

Members of the Court,

Although this is the second time that I have given my opinion on this case, I must make some introductory remarks to clarify the present situation as it has developed since my opinion of 4 May 1971 ([1971] ECR 527) and the judgment of the Court of 16 June 1971 ([1971] ECR 515). I may summarize matters as follows: at issue is a claim based on Article 73 of the Staff Regulations. The claim is for the payment of the lump sum payable when an official of the Communities suffers a fatal accident. The applicant contends that she and her children are entitled to this payment in view of the fact that her husband, who was an official in the service of the Council of Ministers of the European Communities, was recovered from the Rhone on 1 April 1969 and that it was decided that death was due to drowning. The Council contests the existence of this right and makes particular reference to the insurance contract which it concluded with several insurance companies based in various Member States, in Switzerland and in the United Kingdom to cover the risk of accident to its officials. It states that the applicant has not proved that the death was due to an accident, as is required by the contract of insurance, and therefore the insurer is not obliged to make the payment. The circumstances rather point to the suicide of the applicant's husband, an eventuality which is not covered by the insurance policy.

After the parties had submitted their detailed written and, on 31 March 1971, oral observations I delivered my first opinion on 4 May 1971. Briefly, I took the view at the time that the official did have a claim directly against the Community institution in question (here the Council of Ministers) on the basis of Article 73 of the Staff Regulations; it was therefore not possible for the Council to refer the applicant to the insurance companies with whom it had concluded a contract to cover the risk of accident to its officials. I made further statements concerning the concept of accident, the question whether suicide is included therein, and the problem of who must bear the burden of proof of the existence of suicide (in my opinion this can only be the defendant). Finally, I took the view that the facts were not sufficiently clear and that in particular further evidence was required as to the question whether it was in fact a case of suicide and that both parties were under an obligation to co-operate in clarification of this.

The First Chamber followed my opinion in part in its judgment of 16 June 1971 by ruling that under Article 73 of the Staff Regulations, where the prescribed conditions exist, the appropriate Community institution is under a direct obligation to make the payment. In addition, the Chamber emphasized that in the present case the rights and duties of the Council and its officials are determined by Article 73 of the Staff Regulations in conjunction with the insurance policy signed by the Council. Consequently, in accordance with the general practice, suicide is not covered by the concept of accident. Therefore, in such a case there is no claim under Article 73. In addition it must be accepted that the burden of proof of the circumstances of death must be on the applicant, as was stated in Article 8 of the insurance policy. Benefits are not payable so long as it is not established that the death was due to a cause ruling out suicide, although 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’. Since the First Chamber also did not regard the facts as sufficiently clear, it was finally stated that as the appointing authority the defendant institution had to ‘cooperate with those claiming under one of its servants in order to discover the truth.’ Accordingly it was ordered that ‘The date on which the applicant is to 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.’ It was further stated that ‘The date by which the defendant shall produce the evidence to be supplied by it shall be fixed by order of the Court.’

Pursuant to this judgment on 1 July 1971, the defendant was requested to submit the personal file of the late husband of the applicant and the relevant medical certificates. The Council complied with this request on 22 July and 29 July 1971 by submitting the personal file and the documents relating to the invalidity proceedings concerning the applicant's husband. The request directed to the applicant contained in the judgment itself was complied with after an extension of the period to 20 September 1971 and further documents were presented by her.

On 20 October 1971 a decision was adopted whereby the defendant was to specify the facts which it would prove and the means of proof and whereby the defendant would submit the ‘certificates’ in the possession of the Council's medical officer which were issued in respect of the state of health of the official before his death. The first part of this decision was complied with by the submission of some documents and certificates on 11 December 1971. However, the successor to the Council's medical officer refused to submit the documents relating to the deceased which the Court required by reference to the principle of medical secrecy. For the same reason, documents concerning the official in the possession of the deceased medical officer were destroyed by fire.

Finally, on 20 January 1972 the Chamber decided to entrust an expert with the task of examining the question of the state of health of the applicant's husband before his death and whether there was evidence of suicidal tendency. The expert's report was submitted on 19 April 1972. I shall return to its contents later. Subsequently on 8 June 1972 oral proceedings were held during which the expert was extensively examined and cross-examined and with the consent of the parties heard on oath. In addition, the parties had the opportunity of making oral submissions and in particular, as the Chamber desired, of giving their response to the question whether in the present case there appeared to be any difference between conscious and unconscious self-destruction.

In the light of this factual and legal situation it is now my duty to give a new opinion and to examine in detail the answers to be given to the remaining questions at issue.

The applicant takes the view that at the present stage of the proceedings there exists no doubt as to the suicide of her husband. Any doubts must be applied to the benefit of the insured.

In the first place, however, reference may be made to the above-mentioned judgment of 16 June 1971 in answer to this view It is evident from that judgment that the claimant must prove that the death was the direct and exclusive result of accident Benefits are not payable—it is expressly sc provided—in so far as it is not provec ‘that death was due to a cause ruling out suicide’ (weighty circumstantial evidence is clearly sufficient).

Although this might not be welcomed and there may appear to be strong evidence for the opposite view, it is nevertheless clear that in the view of this Chamber the applicant must bear the burden of proof of the existence of an accident and that a finding of non-liquet must be made against her.

Quite apart from the question of the burden of proof, it may be argued that the expert's report was sufficient clarification of the question whether the applicant's late husband may be presumed to have committed suicide. In his written report the expert emphasizes clearly that there were substantial presumptions of suicide. During his examination he gave more details of this finding stating that suicide appeared ‘highly probable’ [‘hautement probable’]in that there was a. ‘very high probability’ [‘probabilité tres haute’]. This assessment is quite reasonable in view of all the submissions concerning the illness of the deceased, which I shall not set out in full here because of their delicate nature, and the scientific evidence which we have heard.

In particular, doubts as to this medical evidence may not be supported by the following circumstances.

Although the medical file concerning the applicant's husband was not made available to the expert and the official documents concerning the official in the possession of the late medical officer of the Council were destroyed after his death in order to preserve medical secrecy, it is evident that the Council made available ‘certificates’ in a package under seal to the expert, that the expert examined these and immediately despatched them sealed to the Registry. Further, as he stated in detail before the Court and to the parties both in writing and orally, the expert carefully sought and obtained information by conferring with respected specialists in Lyon who advised and treated the patient.

Even critical examination must reveal that the expert cleared up and removed doubts which were caused by the written report of the specialist Dr D in Lyon who stated that in his view it must be presumed that there had been an accident. I would refer to the balanced and informed opinion of the expert which I need not set out in detail.

The statement made to the applicant, which reached the expert through other channels, that at the central commissariat of the police administration in Lyon there is a document stating that a witness reported that he had seen a male person jump into the Rhone on the evening of 1 April 1969 must certainly be left out of the evidence. It is of no importance whether or not such a report is contained in an official document and whether or not this report corresponds with actual evidence. The applicant produced specific persuasive objections which must be upheld so that further examination is not necessary. Moreover, the expert himself stated that he did not place any value on information relating to the existence of this document. Therefore, in view of the methods applied by the expert in his inquiry it can be accepted that he possessed sufficient evidence for his scientific opinion.

Finally, other facts and offers of proof relied on by the applicant to cast doubt on the expert's report or to show that it is incomplete may be ignored as being without substance. Clearly the Chamber did not examine the applicant's contention for this very reason and it placed greater reliance on the more comprehensive and well-founded evidence from the expert's report.

Finally, with respect to the weighing up of the evidence it can be stated that, in view of the expert's consideration of the facts and his specialist medical conclusions which he supports with scientifically evaluated statistical data, it is evident that it is a logical picture of evaluation of factors and indications and that the expert drew a valid conclusion.

Even if the defendant must bear the burden of proof of the existence of suicide, it cannot properly be denied that proof of sufficient probability has been adduced in support of the view of the Council.

In addition, it must be pointed out that in the present case the requirement of showing probability bordering on certainty does not apply but it must be sufficient if substantial indications give rise to a high degree of probability (in particular I refer to Prolls-Martin, Kommentar zum Versicherungsvertragsgesetz, notes on paragraph 130(a): De Page, Traite de droit civil beige, Volume 3, 2, No 731).

Therefore, in agreement with the expert's opinion it must be assumed that the death of the applicant's husband was due to suicide. However, there remains the question whether, in view of the interim judgment of the Court of 16 July 1971, the application of the applicant under Article 73 of the Staff Regulations is to be dismissed. In that judgment it was stated that the exclusion of suicide in the policy because of the absence of an accidental nature corresponds to the general practice of insurers in the cover of accident risks ( 2 ) and is compatible with the text of Article 73. Therefore such an occurrence does not give rise to a claim to benefits under Article 73. The defendant Council of Ministers further contends logically that the application must be dismissed in view of the results arrived at by the expert. The Council of Ministers here relies solely on the fact that the death of the official, the applicant's husband, was caused by his own action.

However, there are apparently wellfounded legal doubts against this argument, since it fails to take account of an important factor with regard to the occurrence of the event giving rise to the damages.

If one agrees with the expert's assumption of suicide, one must further respect his conviction on equally substantial grounds that the deceased was the victim of involuntary, unconscious self-destruction which was caused by his pathological state, a mental sickness. However, it must be recognized that this causal factor in the course of events was not appreciated in the first judgment. It is in this sense that the Court's request to the parties before the last oral proceedings that they should state their views as to whether it appeared necessary for the solution of the case ‘to make a distinction between conscious or voluntary suicide and unconscious or involuntary self-destruction’. Therefore we must examine the question whether unconscious self-destruction excluding the free exercise of will governed by reason leads to the exclusion of benefits under Article 73 or whether in this case there may be said to be an accident which is covered by the social security provisions of the Staff Regulations.

Article 73 of the Staff Regulations provides that:

‘1. An official is insured, from the date of his entering the service, … subject to rules drawn up by agreement between the Institutions of the Communities after consulting the Staff Regulations Committee … Such rules shall specify which risks are not covered.’

The Council has never adopted these rules and the provisions relating to the cover of officials has remained incomplete. Nevertheless, in these proceedings on the question which appears to be the fundamental problem of the legal dispute the Council takes the view that involuntary self-destruction cannot be regarded as an accident. Differentiation between involuntary and voluntary self-destruction is in my opinion solely of importance in life assurance and, of course, in accident insurance if involuntary self-destruction is the result of an accident. For accident insurance in addition differentiation between accident and illness is fundamental. Accidents are only present when there is an external cause independent of the state of the victim; internal pathological developments, on the other hand, are within the concept of illness and can in no sense be regarded as accidental. Accordingly, the insurance policy signed by the Council specifies expressly in Article 4(b) that mental illness is not covered by the insurance policy.

The applicant contests this argument emphatically. The way in which involuntary self-destruction is treated in social security law is an essential factor for her and her view that involuntary self-destruction must be regarded as an accident. She further feels that it is important that involuntary self-destruction in general does not exclude the insurer's obligation to pay in life assurance law in general and that in the legal systems of the Member States there is visible tendency for the principles of accident insurance law to approximate to those of life assurance law.

If we consider what our opinion is to be as to this dispute, it must inevitably be admitted that the Council's conclusions appear logical. However, there is a series of factors which finally show that the result advocated by the Council is open to doubt and thus support the view of the applicant.

In agreement with the applicant I find it of substantial importance that the first judgment of the Chamber in this case did not refer to the insurance contract under private law concluded by the Council containing definitions and limitations but emphasized that the rights and obligations of the institution and its officials are determined by Article 73 in conjunction with the insurance policy. Thus, contrary to the practice of private commercial insurers and the consequent deductions, there is necessarily brought into play the consideration that since Article 73 is a component of the social security law of the Community and of the public law relating to officials then the lawfulness of this provision is at issue and also to a large extent the employer's obligation to care for his employees. This fact certainly places in perspective conclusions which might be drawn from the practice of accident insurers of excluding involuntary self-destruction from facts giving rise to liability. Moreover it also places greater emphasis on two other considerations; first the fact that in Community countries inter alia even in accident insurance involuntary self-destruction is regarded as an accident and, secondly, the fact that the same procedure is followed in the sphere of accidents at work (that is, in social security law) and occupational accidents. With regard to the first point, reference may be made to a judgment of the Juge de Paix de Bruxelles of 16 February 1916 (Repertoire pratique du droit beige, Assurances terrestres No 321), the judgment of the Tribunal de Commerce de Bruxelles of 10 November 1938 (Pasi-crisie, 42, II, 25), the judgment of the Tribunal de Grande Instance de la Seine of 20 June 1961 (Dalloz, 1961, p. 600), the judgment of the Rechtbank Rotterdam of 30 March 1954 (NJ 55, p. 216), the statements of Donati in ‘Trattato del diritto delle assicurazioni private’ II, No 308, the commentary of Picard and Besson in ‘Les Assurances terrestres en droits francais’, 3rd edition, I, No 444 and, if Swiss law is also to be included, Thesen von Viret, ‘Le suicide de l'assuré dans l'assurance sur la vie et dans l'assurance privee contre les accidents’, 1960, p. 4385. As to the second point, I refer to Plog-Wiedow, ‘Kommentar zum Bundesbeamtengesetz’, notes to paragraph 135, Groeneveld and Sternberg, ‘De Ow’, 1921, p. 104, Yves Saint-Jour, ‘Le suicide dans le droit de la sécurité sociale’, Recueil Dalloz Sirey 1970, Chronique p. 93, and the judgment of the Centrale Raad van Beroep of 27 February 1946.

Thus the applicant's arguments concerning the fact that the principles of accident insurance law are getting progressively closer to those of life assurance law, whereby they both agree that involuntary self-destruction does not exclude the insurer's obligation to pay, may also be important (in this respect I refer to Fredericq, ‘Handboek van Belgisch Handelsrecht’ 1963, No 1320, Picard and Besson, op. cit., and the case-law of the Italian Supreme Court cited in ‘Assicurazioni contro i danni’, p. 1169).

Moreover, the possibility of the applicant's view was impressively demonstrated by the legal opinion which it produced from Professor Reichert-Facilides of the University of Innsbruck. The professor shows in a fundamental comparative law examination—which is always of great value for obtaining reliable information when exact definitions do not exist in Community law—that private accident insurance is only covered by the law of one Member State, namely that of the Federal Republic of Germany (and also that of Switzerland). In this respect the provisions of paragraph 181 of the German Insurance Contract Law as amended by the Law of 1967 are relevant. They provide clearly that the insurer is only free from the obligation to pay if the person suffering the accident caused it intentionally (vorsatzlich). Since intention requires that at the time of the deed the person concerned was capable of guilt and of free expression of will and in full possession of his mental faculties and therefore not mentally incapable of being held responsible, the result is that unconscious self-destruction must at the very least be covered by the legal provisions as an accident. The professor, a specialist in insurance law, further shows that legal opinion generally favours definitions which show by their reference to the lack of free will that involuntary self-destruction is not excluded from the concept of accident. Although, on the other hand, the author of the document has to admit that in insurance practice it is rare that merely conscious suicide is excluded from accident insurance while in many cases protection is excluded where disturbance of the mental faculties is the cause of such an event, against this—and this is particularly important—he argues that comparative legal examinations can only produce useful indications if the results are evaluated. It is not appropriate to treat statute and private contractual law on a equal footing; greater emphasis is to be placed on statute law than contractual law in ascertaining the legal principles to be applied (Rechtsfortbildung). In particular the ascertainment of the legal principles to be applied must take account of the individual characteristics of the situation. With regard to the present case this means that it is important that we are concerned with a provision of a public law nature within the context of the administrative law, protection of all employees of the Communities against accident, the benefits of which protection are payable (‘garantiert’) by the institution as the employer (Article 73(2)). The purpose of this legal provision is to give greater weight to the interests of the protected official than can be provided in the scope of commercial accident insurance contracts under Drivate law.

In addition, in view of Article 73 of the Staff Regulations the typical insurance administration reasons for excluding unconscious self-destruction from the concept of accident are not applicable. Indeed, in private insurance practice they may only be that, in the context of the restricted scope of cases of accidental death, those based on abnormal causes may bear proportionately greater commercial significance than in life assurance. They are excluded therefore because of their relative frequency; in order to avoid detrimental effects to the actuarial basis of the insurance business a succession of ‘bad risks’ must be avoided. This aspect of insurance technicality can clearly be disregarded in the case of the law relating to officials. While in the sector of private insurance the insurer deals with unknown persons from an unlimited circle, the careful selection of employees before the acquisition of rights under the Staff Regulations leads to a reduction in the risk of accidents and in particular of cases of unconscious self-destruction. We may here refer not only to the medical examination of an official on appointment but to the continuing medical check-ups of the employee by the medical officer of the institutions. It may therefore be accepted that suicide of an official when not in complete possession of his free will is a rare exception with the result that this risk may be discounted by the employer in its general calculation of risks.

Thus I believe that in the present case the actual situation and my legal discussion lead to the following results: involuntary self-destruction is to be regarded as an accident which is covered by the Staff Regulations of Officials of the Communities. In any event, any doubts should, in the interests of protection of officials and their dependants, be given little force so long as there are no precise, applicable rules in the Staff Regulations which clearly exclude particular circumstances from the sector of accident protection. Further support for this view is found in the fact that the mutual insurance applicable to the staff of the French Ministry of Justice applies corresponding principles; that is to say, unconscious self-destruction is covered in any event and, furthermore, even other types of suicide if they occur after the insurance has been held for some time. Supported by the examination of the medical expert appointed by the Court, who thinks it highly probable that the applicant's late husband committed suicide because of malformation of his personality and without free exercise of will, and adopting the view that such an occurrence, at least in the present factual and personal circumstances is to be regarded as an accident within the meaning of Article 73, I reach the final conclusion that the applicant and the children whom she represents have a right to benefits under the abovementioned provisions of the Staff Regulations.

Consequently the application should be granted and the Council should accordingly be ordered to pay the lump sum referred to in Article 73 (2) (a) of the Staff Regulations. In view of this result the Council must also bear the costs of the proceedings.

( 1 ) Translated from the German.

( 2 ) The reference is evidently to the practice of insurance companies to be found in the conditions of their policies in so far as there is no contrary national legal provision.