I —

The facts are as follows : By a staff memorandum of 5 February 1971 the Director General for Personnel and Administration of the Commission in Brussels informed officials and other employees of that institution that, “as in previous years, holiday camps will be organized for children during the Easter school holidays of 1971”. The “financial conditions” annexed to the memorandum indicated the cost of the stay, “including travel and insurance”, to be borne by the parents, from which would be deducted a contribution by the Commission the amount of which depended on their remuneration. In the course of the proceedings we were told that the insurance in question was arranged by the Commission with the Compagnie d'Assurances Générales Mercator [hereinafter referred to as “Mercator”], in Antwerp. It comprised, to be precise, civil liability and personal accident insurance. According to Article 11 of the Special Conditions, the “personal accident cover is alternative and may not be cumulated with the cover provided for civil liability. Accordingly, the benefits guaranteed under the head of personal accident insurance are payable only subject to a full and final discharge by the victim or those claiming under him and waiver of any right of action based on civil liability vis-à-vis the insured persons”. However, the question whether the personal accident insurance operates to the exclusion of the civil liability insurance arranged by the policyholder is a matter which concerns solely the Commission and its insurers. The texts of the policies were never disclosed to the parents. It was merely indicated in the brochures inviting applications for places in the holiday camps that “the insurance does not cover theft and items lost or deliberately broken.” As a rule, however, the person who arranges a group insurance policy (the Commission) must inform those insured (the parents) precisely what their rights and obligations are. Since that was not done, the policies constitute, as far as officials and other employees of the Commission are concerned, res inter alios acta. The staff memorandum was accompanied by an application form embodying an authorization for the administration to deduct the cost of the holiday from the salary of the official or other employee; the form was to be returned to the Commission's Welfare Division. Upon reading the memorandum Mario Berti, an official in Grade D Step 1, at the Commission in Brussels, decided to send his son Paolo who was then seven years old, to the holiday centre known as “La Petite Merveille” in Durbuy in the Belgian Ardennes, which was recommended for children of between six and fourteen years of age. Category D, which was and continues to be the category occupied by Mario Berti, covers duties involving manual work or tasks necessitating primary level education. As regards staff, a teaching couple was responsible for the management and administration of the holiday centre and one assistant was provided for every ten children. Between 60 and 80 places were reserved for children of staff of the European institutions. On 7 April 1971 little Paolo fell, while playing on a swing erected on land belonging to the commune of Durbuy, so badly that he fractured his upper jaw and broke his four upper permanent incisor teeth. There has never been any question of the commune of Durbuy being liable for this accident because, apparently, defective equipment was not the issue. On 14 April 1971 the Commission notified its insurance brokers, Van Breda, of the accident by telex, stating that the declaration form would be sent to it later. The holiday centre, for its part, informed the Commission on 30 April 1971 that it had notified its own insurers, La Royale Belge in Brussels, on 8 April 1971, stating that “the children were playing under the supervision of two assistants”. (The insurance policy covering the holiday centre has not been produced, despite the Court's request). The Commission explains that for the six months immediately following the accident the medical expenses were covered by La Royale Belge, which was subsequently reimbursed by Mercator, except for the portion already reimbursed to Mario Berti under the social security scheme to which officials of the Communities belong by virtue of the Staff Regulations (Title V, Chapter 2). However, there is no documentary evidence of that in the file on the case. On 22 May 1975 Dr P. Doms, a stomatologist, drew up a medical report in which it was stated, in particular, that one misshapen tooth would have to be extracted and five temporary removable prostheses would have to be fitted; the prostheses, which would have to be renewed every year, would have to be worn until the age of 18. From the age of 18 a fixed bridge with eight elements would have to be fitted. On 3 June 1975 another specialist, Dr A. Reychler, reported that “the upper lateral incisors are absent and so is the right upper central incisor ... The upper right canine is unerupted ... Whether the left upper central incisor may be preserved seems very doubtful ... A prosthesis may be necessary ...”. On 2 April 1976 the lawyer consulted by Mario Berti wrote to the Director General for Personnel and Administration at the Commission, referring to earlier correspondence (not included in the file on the case), to inform him that the injuries had now been consolidated and to enquire as to how the Commission proposed to compensate his client, in view of the expense of the prostheses, the nonmaterial injury (which he estimated at a minimum of BFR 250000) and the aesthetic injury (which he calculated to be, in view of the victim's youth, BFR 250000). On 28 April 1976 the Commission's Welfare Division forwarded to the Sickness Insurance Division copies of the two medical reports to which I have referred and of the letter from the lawyer, requesting that it “be kept informed as to the insurer's intentions with regard to the matter”. On 10 May 1976 Albert Wegner, an adviser in the Directorate General for Personnel and Administration, wrote to Van Breda, the insurance brokers, sending them the documents referred to above and asking them “kindly to forward them to the insurers”. After seeing the child again on 29 September 1976 Dr Reychler informed the father on 3 November 1976 that the result of the accident was the loss and extraction of the four upper permanent incisors and that “a prosthesis would evidently be required”. On 30 September 1977 Mr Wegner forwarded to the brokers a new statement of the child's medical expenses, stating that “the file on the matter must remain open”. On 18 September 1978 Mercator, referring to a letter which had been sent to it by Van Breda on 12 September 1978 (the letter is not in the file on the case), informed the brokers that the nonmaterial and aesthetic injuries referred to by Mario Berti's lawyer in his letter of 2 April 1976 were not covered by the insurance policy — the liability of Mercator being limited to ordinary medical expenses —, that the Commission was not liable and that in any case it was no longer possible to reopen a case dating back to early 1976. On 28 September 1978 the insurance brokers, referring to the letter from the Commission dated 18 September 1978 (the Commission has explained that the letter in question could only be the letter of 30 September 1977 by which it informed the brokers that the file must remain open), informed the Commission's Insurance Division that according to the medical reports the child's injuries had been consolidated early in 1976 and confirmed that Mercator was not liable for payment of the compensation sought by Mr Berti's lawyer for the aesthetic and nonmaterial injuries. The brokers therefore requested the Commission to inform them whether they might “consider the case closed”. On 26 October 1978 the Commission, by a memorandum signed by Mr Wegner, informed Mario Berti that on 18 September 1978 (in reality on 30 September 1977) it had indicated to its insurers “that the file on the matter must remain open”. It informed him of the reply given by Mercator described above and asked him to indicate whether it might “consider the case closed”. Lastly — and here we come to the events immediately preceding this application — Mario Berti wrote, on 17 April 1980, to the Secretary General of the Commission to request that his son be granted an allowance for permanent invalidity, brought about by the wrongful act or omission of an agent of the Commission, which should include compensation for nonmaterial damage resulting therefrom. He stated that the file on the accident was in the hands of Albert Wegner. The request was registered on 22 April 1980 by the appropriate division of the Commission as a “request submitted under Article 90 of the Staff Regulations”. On the following day it was transmitted to higher authorities as a “complaint”, which was not correct since it was, as yet, merely a request. It met with no response. On 29 October 1980, “since the absence of a reply amounted to an implied decision rejecting his request of 22 April 1980”, Mario Berti submitted a complaint through the official channels which was registered as such on 10 November 1980 and which was again transmitted to higher authorities. Like the request which had preceded it, the complaint met with no response. That is the background to the action brought by Mario Berti on 29 May 1981, by which he claims that the Court should declare that the Commission must compensate him for the material and nonmaterial injury to his son as the result of the accident which he sustained, the applicant estimating the damage at BFR 500000 but reserving the right to reduce or increase that amount in the course of the proceedings, and that it should appoint one or three experts to report on the sequelae of the accident in order to enable an objective assessment to be made of the amount of damages to be awarded to him.