CELEX: 62002CC0397
Language: en
Date: 2004-02-12
Title: Opinion of Mr Advocate General Léger delivered on 12 February 2004. # Clinique La Ramée ASBL and Winterthur Europe Assurance SA v Jean-Pierre Riehl and Council of the European Union. # Reference for a preliminary ruling: Cour d'appel de Bruxelles - Belgium. # Officials - Social benefits - Communities' right of subrogation to an official's rights against the third party liable for an actionable event. # Case C-397/02.

OPINION OF ADVOCATE GENERALLÉGER delivered on 12 February 2004(1)
         Case C-397/02 Clinique La Ramée ASBLandJean-Pierre RiehlvWinterhur Europe Assurance SACouncil of the European Union(Reference for a preliminary ruling from the Cour d'appel de Bruxelles (Belgium))Clinique La Ramée ASBLandJean-Pierre RiehlvWinterhur Europe Assurance SACouncil of the European Union(Reference for a preliminary ruling from the Cour d'appel de Bruxelles (Belgium))
            (Officials  –  Staff Regulations  –  Article 85a  –  The European Communities' right of subrogation  –  Scope of the subrogation rule)
            
      
         
        1.        The Staff Regulations of officials of the European Communities 
         			(2)
         		 impose on the Communities, when an official dies or is the victim of an accident or sickness, a certain number of pecuniary
      obligations in favour of that official or those entitled under him. Where the death, accidental injury or sickness is caused
      by a third party, the Staff Regulations also provide, in Article 85a, that the Communities stand subrogated to the rights,
      including rights of action, of that official or of those entitled under him against the third party.
      
      
        2.        In this case, the Court is requested to define the scope of such subrogation. It must determine whether, under Article 85a
      of the Staff Regulations, the Communities are entitled to recover, before the national court, the total sums paid under the
      Staff Regulations to the victim or those entitled under him, or whether the Community’s claim must be limited to the amount
      corresponding to the assessment of the losses calculated according to the rules of the applicable national law.
      
      
      I –  Legal background
        3.        In the event of an official’s death, the surviving spouse receives, among other things, the deceased’s full remuneration or
      pension until the end of the third month after that of the death, pursuant to Article 70 of the Staff Regulations, and a lump
      sum payment for funeral expenses in accordance with Article 11 of the Rules on the insurance of officials of the European
      Communities against the risk of accident and of occupational disease. 
         			(3)
         		 Under Articles 79 and 79a of the Staff Regulations, the surviving spouse of an official or of a former official is also entitled
      to a survivor’s pension. 
      
      
        4.        Article 85a of the Staff Regulations is the only article in Chapter 5, entitled ‘Subrogation in favour of the Communities’,
      Title V of which is devoted to the ‘Emoluments and social security benefits of officials’. It is worded as follows:
      ‘1.     Where the death, accidental injury or sickness of a person covered by these Staff Regulations is caused by a third party,
      the Communities shall, in respect of the obligations incumbent upon them under the Staff Regulations consequent upon the event
      causing such death, injury or sickness, stand subrogated to the rights, including rights of action, of the victim or of those
      entitled under him against the third party.
       2.       The subrogation provided for by paragraph 1 shall extend inter alia to the following:
      
      –
         continued payment of remuneration in accordance with Article 59 to the official during the period when he is temporarily unfit
            to work,
         
      
      
      –
         payment effected in accordance with Article 70 following the death of an official or of a former official entitled to a pension,
      
      
      –
         benefits paid under Articles 72 and 73 and their implementing rules, relating to insurance against sickness and accident,
      
      
      –
         payment of the costs involved in transporting the body, as referred to in Article 75,
      
      
      –
         supplementary family allowances …,
      
      
      –
         invalidity pensions paid in the event of accident or sickness resulting in permanent invalidity preventing the official from
            performing his duties,
         
      
      
      –
         survivor’s pensions paid in the event of the death of an official or of a former official or the death of the spouse of an
            official or of a former official entitled to a pension, where the spouse is not an official nor a member of the temporary
            staff,
         
      
      
      …
      
      
      3.
         However, the Communities shall not be subrogated to rights of compensation in respect of purely personal damage such as non-material
            injury, damages for pain and suffering or compensation for disfigurement and loss of amenity over and above the allowance
            granted for those headings under Article 73.
         
      
      
      4.
         The provisions of paragraphs 1, 2 and 3 may not be a bar to direct action by the Communities.’
      
      
      
      II –  Facts and main proceedings
        5.        Mrs Mireille Guette, the wife of Mr Jean-Pierre Riehl, was an official of the Council of the European Union. She received
      an invalidity pension under Article 78 of the Staff Regulations. She died on 25 September 1990 whilst in hospital at Clinique
      La Ramée ASBL. 
         			(4)
         		 It is established before the referring court that her death was caused by the fault of an employee of that hospital.
      
      
        6.        Following Mrs Guette’s death, the Council paid to Mr Riehl:
      
      –
         BEF 94 000 as a lump sum for funeral expenses, pursuant to Article 10 of the Rules;
      
      
      –
         BEF 221 511 corresponding to the amount of the invalidity pension Mrs Guette was receiving, up to the end of the third month
            following that of her death, in accordance with Article 70 of the Staff Regulations, and
         
      
      
      –
         a survivor’s pension of a monthly amount of BEF 46 294 index-linked, paid from the fourth month following that of her death,
            under Articles 79 and 79a of the Staff Regulations.
         
      
      
      
        7.        By judgment of 15 December 1997, the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels, Belgium)
      adjudicated upon the consequences of Clinique La Ramée’s civil liability. On Mr Riehl’s claims, it ordered that hospital to
      pay him damages for the loss of the household assistance of his wife and for his non-material loss. It dismissed as unfounded
      Mr Riehl’s claim for compensation for his loss of income, on the ground that such loss is less than the amount of the survivor’s
      pension paid by the Council.
      
      
        8.        As regards the Council, the Tribunal de première instance de Bruxelles upheld that institution’s claims based on Article 85a
      of the Staff Regulations for repayment of the sums paid or due to Mr Riehl in respect of funeral expenses, of the payment
      for three months of the invalidity pension and of the survivor’s pension.
      
      
        9.        Clinique La Ramée and its insurer, Winterthur Europe Assurance SA, against which the above judgment was declared binding and
      enforceable, appealed against it. They claimed that the Tribunal de première instance de Bruxelles had overstepped the limits
      of subrogation by awarding the Council, as subrogee to Mr Riehl’s rights, sums greater than those which he could claim against
      a third party liable for the damage.
      
      
        10.      By judgment of 6 November 2002, the Cour d’appel de Bruxelles (Court of Appeal, Brussels) upheld the judgment under appeal
      by ordering Clinique La Ramée to repay the Council the sums of EUR 2 330.20 (BEF 94 000) and EUR 5 491.11 (BEF 221 511) paid
      by it to Mr Riehl for, respectively, the funeral expenses and the pension due up to the end of the third month following that
      of his wife’s death. It determined afresh the sums due from Clinique La Ramée to Mr Riehl to compensate him for the loss of
      household assistance and his non-material loss.
      
      
        11.      However, the Cour d’appel de Bruxelles encountered a legal problem relating to the calculation of the compensation for the
      loss of income suffered by Mr Riehl as a result of his wife’s death.
      
      
        12.      The Cour d’appel de Bruxelles noted, first of all, that the damages payable to Mr Riehl in respect of loss of income are intended
      to compensate for the loss of material support which his deceased spouse brought into the household. 
         			(5)
         		 It then assessed that loss of income. Taking into account the amount of the invalidity pension received by Mrs Guette while
      she was alive and of her share of the housekeeping expenses, the Cour d’appel held that that loss should be assessed at EUR
      479.80 per month from 1 October 1990. 
         			(6)
         		
      
        13.      The Cour d’appel de Bruxelles considered, finally, what sums should be deducted from that amount. It stated that the pension
      paid for three months in accordance with Article 70 of the Staff Regulations, that is EUR 5 491.11 (BEF 21 511), should be
      deducted therefrom because that sum and the damages payable to Mr Riehl under Belgian law as compensation for loss of income
      had the same cause, that is to say Clinique La Ramée’s fault, and are intended to compensate for the same damage. 
         			(7)
         		
      
        14.      However, the Cour d’appel de Bruxelles explained that it is faced with the following two arguments regarding the taking into
      account of the survivor’s pension paid to Mr Riehl by the Council. On the one hand, the Council submits that it is entitled
      to recover all of the survivor’s pension pursuant to Article 85a of the Staff Regulations because that article forms part
      of a separate set of legal rules. On the other hand, the Cour d’appel states that Article 85a of the Staff Regulations provides
      that the Communities stand subrogated only in respect of the obligations incumbent upon them under the Staff Regulations consequent upon 
         			(8)
         		 the event causing the loss and that, under Belgian law, the right to a survivor’s pension is unconnected with the obligation
      of the person who caused the loss to compensate for it in full.
      
      
        15.      The Cour d’appel de Bruxelles asks therefore whether there is a contradiction between Community law and the rule of national
      law applicable to the right.
      
      
      III –  The question referred to the Court
        16.      It is in the light of those matters that the Cour d’appel de Bruxelles decided to stay the proceedings and to refer the following
      question to the Court for a preliminary ruling:
      ‘Must Article 85a of the Staff Regulations … be interpreted as conferring on the Communities the right to claim from a third
      party liable for the death of an official reimbursement in full of the survivor’s pension paid to the surviving spouse pursuant
      to Articles 79 and 79a of those Staff Regulations even though the law applicable to entitlement to compensation for damage
      provides that the right to a survivor’s pension is unconnected with the obligation of the perpetrator of a wrongful act to
      compensate in full for the damage and the damage suffered by the surviving husband as a result of the loss of the deceased
      wife’s income is less than the amount of the survivor’s pension paid to him?’
      
      
      IV –  Assessment
        17.      Mr Riehl, the Council and the Commission of the European Communities submit that the Court should reply in the affirmative
      to the question referred. They maintain that the subrogation provided for by Article 85a of the Staff Regulations is a mechanism
      specific to Community law which, under the principles of primacy and direct effect, cannot be excluded by the application
      of a rule of national law. In their submission, the special nature of the subrogation established by Article 85a of the Staff
      Regulations is evidenced by the content of that article, which provides that it takes place automatically upon the occurrence
      of the event giving rise to liability. It has also been accepted by the Court in its judgment in Royale belge. 
         			(9)
         		 According to the Commission, it is also confirmed by Article 85a(4) of the Staff Regulations by which the Community legislature
      wished to enable the Communities to bring a direct action. The Communities’ right of subrogation is therefore not limited
      to the compensation accorded by national law to the official or those claiming under him, but it extends to the entirety of
      the benefits listed in Article 85a(2) of the Staff Regulations.
      
      
        18.      I do not agree with that analysis. Admittedly, although the Staff Regulations are essentially intended to regulate the rights
      and obligations of officials in relation to the institutions which employ them, 
         			(10)
         		 it is clear that they can have effects in relation to third parties and that they bind the Member States in so far as their
      cooperation is necessary in order to give them effect. 
         			(11)
         		 Because of their regulatory nature, they are directly applicable in all Member States and are such as to confer on officials
      and the Communities rights which national courts are obliged to protect. 
         			(12)
         		
      
        19.      However, it is also necessary for rights which the Council claims before a national court as being conferred on it by the
      Staff Regulations to be in fact provided for by them. Unlike Mr Riehl, the Council and the Commission, I do not perceive in
      Article 85a of the Staff Regulations any legal basis which would enable their position to be endorsed and the question referred
      by the Cour d’appel de Bruxelles to be answered in the affirmative. Like Clinique La Ramée, I consider, on the contrary, that
      that article does not enable the Communities to obtain from a third party liable for an official’s death reimbursement of
      the benefits paid to those claiming under him, such as the survivor’s pension awarded to the surviving spouse under Articles
      79 and 79a of the Staff Regulations, if the national law governing such liability excludes such benefits from the recoverable
      loss.
      
      
        20.      For a proper understanding of the meaning and scope of Article 85a of the Staff Regulations, it is appropriate to expound
      the legal concept of ‘subrogation’ in the various national legal systems and how it has developed.
      
      
        21.      The term ‘subrogation’ means the substitution of a person or thing for another. 
         			(13)
         		 Legally, the term ‘personal subrogation’, which is alone of interest in this case, means, in the legal systems of most of
      the Member States, 
         			(14)
         		 the substitution of a person, the subrogee, as beneficiary of the rights attached to a debt to which another, the subrogor,
      was entitled, following a payment by the former to the latter. Subrogation consists therefore in the transfer of the claim
      from the subrogor to the subrogee by reason of the payment by the latter to the former. That transmissive effect of the subrogation
      is consequently characterised by two limitations on the rights that are assigned to the subrogee against the actual debtor:
      first, the payments made by the subrogee himself and, secondly, the rights of the subrogor. That means, first, that the subrogee
      may sue the debtor only to the extent of the payments which he has himself made to the subrogor. Secondly, it means that the
      subrogee replacing the subrogor in his relationship with the debtor cannot enjoy greater rights against that debtor than the
      person whom he is replacing. The result of that second limitation is that the subrogation cannot make the debtor’s situation
      worse. That consequence is perfectly logical, since the subrogation takes place independently of the debtor, unless the debtor’s
      consent is required.
      
      
        22.      In the majority of the Member States, subrogation has undergone substantial development whereby subrogation by operation of
      law takes place in favour of agencies or entities responsible for the compensation of losses. Since prior to the creation
      of the European Communities responsibility for paying compensation for bodily injuries has been undertaken by the community
      acting, in particular, through social security agencies or by the State when it is the employer. However, where a third party
      is liable for the injury, the payment of the benefits due from those agencies or the State does not preclude an action by
      the victim to establish the liability of the responsible third party. The victim could therefore be compensated twice for
      the same loss. In order to avoid such double recovery, the national legislature has therefore provided that the social security
      agencies or the State are automatically subrogated to the rights and claims of the victim against the liable third party.
      Those agencies or the State may thus obtain from that third party reimbursement of the benefits which have the same purpose
      as the third party’s obligations under the applicable law governing liability, that is to say to compensate for the loss caused
      to the victim by the injury. That subrogation by operation of law also resolved the controversy as to whether the social security
      agencies or the State could have recourse against the liable third party when the payment by them of benefits to the victim
      resulted from the application of legislation and could be regarded as not flowing directly from that third party’s act.
      
      
        23.      Article 85a of the Staff Regulations lays down, with some slight nuances, the same rules as those set out above. It thus states
      that where the injury of which a person covered by the Staff Regulations is the victim is attributable to a third party, the
      Communities stand subrogated to the rights, including rights of action, of the victim or of those entitled under him against
      that third party, within the limits of the obligations incumbent on them under the Staff Regulations. Article 85a(2) contains
      an indicative list of the benefits covered by the Staff Regulations to which such subrogation applies. Article 85a(3) makes
      it clear that compensation payable by the liable third party in respect of purely personal damage, such as non-material injury
      and the damages for pain and suffering, is excluded.
      
      
        24.      It follows, first, that the subrogation provided for by Article 85a of the Staff Regulations is subrogation by operation of
      law. That means, first, that it occurs automatically, without the need for any prior consent by the subrogor. 
         			(15)
         		 It implies, secondly, that, in accordance with the principles of primacy and direct effect of Community law, such subrogation
      must be recognised by all the courts of the various Member States and that it must take effect without the necessity of any
      rule of national law and that no provision of national law can be relied on against it.
      
      
        25.      Secondly, it is clear from Article 85a of the Staff Regulations that the Communities stand subrogated only in respect of their
      obligations under the Staff Regulations, that is to say within the limit of the sums for which they are themselves liable
      to the victim or to those claiming under him. Admittedly, as Mr Riehl, the Council and the Commission have claimed in their
      written observations and as Advocate General Tesauro made clear in his Opinion in Royale belge,  cited above, 
         			(16)
         		 Article 85a thus diverges from the general body of rules of subrogation common to the majority of Member States. Whereas,
      as I have stated, the event giving rise to subrogation is, in principle, the payment made by the subrogee to the subrogor,
      under the Community rules on subrogation the trigger is the occurrence of the damage in the sense that the Communities become
      entitled, as soon as the damage occurs, to subrogation as a matter of law.
      
      
        26.      However, nothing in the above-cited provisions of Article 85a of the Staff Regulations indicates that Community subrogation
      permits removal of the second limitation which derives from the transmissive effect of the subrogation by virtue of which
      the subrogee receives only the rights which were available to the subrogor. On the contrary, Article 85a(1) expressly provides
      that the Communities stand subrogated ‘to the rights, including rights of action, of the victim or of those entitled under
      him against the third party’. It therefore follows clearly from that phrase that the Communities do not have greater rights
      against the third party than the victim or those entitled under him. That limitation is also perfectly logical since subrogation
      under the Staff Regulations takes effect by operation of law, regardless of the third party’s wishes, so that the latter’s
      situation must not thereby be made worse. Community subrogation under that article is not therefore any different, on that
      point, from the subrogation common to the Member States’ legal systems.
      
      
        27.      As regards Article 85a(4) of the Staff Regulations, it provides only that ‘[t]he provisions of paragraphs 1, 2 and 3 may not
      be a bar to direct action by the Communities’. It merely provides therefore that the fact that the Communities stand subrogated
      as a matter of law to the victim or those entitled under him does not prevent the Communities bringing proceedings directly
      before the national court for the reimbursement of the loss which the third party has caused them. In other words, that right
      of subrogation cannot be set up against the Communities by a national court in order to deny their right to bring a direct
      action for the recovery of their own loss. 
         			(17)
         		 However, Article 85a(4) does not state that the national court must, irrespective of the rules of its national law on liability,
      order the third party to reimburse the Communities all the benefits mentioned in paragraph 2 of that article.
      
      
        28.      Moreover, even if it were assumed that the view put forward by Mr Riehl, the Council and the Commission ought not to be rejected
      solely by reference to the wording of Article 85a of the Staff Regulations, the fact remains that there is likewise no basis
      for that view in the context or the objectives of the right of subrogation thus conferred on the Communities.
      
      
        29.      As regards the legal context of that right of subrogation, we have seen that the Communities, under the Staff Regulations,
      are liable to the persons covered thereby for a number of financial obligations in the event of injury. When that injury is
      attributable to a third party, it is perfectly logical that the Communities may, like a national social security agency, be
      subrogated to the rights, including rights of action, of the victim or of those entitled under him against the third party.
      However, as we know, actions brought by officials and others covered by the Staff Regulations for compensation for loss which
      a third party has caused them fall under the jurisdiction of national courts and such actions are subject to the rules of
      national law relating to contractual and non-contractual liability. The effect therefore of the Communities’ right of subrogation
      is to transfer to the Communities the rights and claims which the victim or those entitled under him have against the third
      party under the applicable national law of liability. No provision of the Staff Regulations supports the view that such right
      of subrogation is intended to confer on the Communities wider rights of redress or to enable them systematically to recover
      all the benefits which they have been required to pay under the Staff Regulations. 
      
      
        30.      In that regard, the provisions of Article 85a of the Staff Regulations may be linked with those of Article 93 of Council Regulation
      (EEC) No 1408/71, 
         			(18)
         		 which relates to the rights of national social security agencies against third parties held liable for injury where those
      agencies have paid benefits in respect of an injury arising from events occurring in another Member State. 
         			(19)
         		 In the same way as Article 85a operates in favour of the Communities, Article 93(1) of Regulation No 1408/71 is designed
      to allow a social security agency which has paid benefits following an injury sustained in the territory of another Member
      State to exercise against the liable third party, by way of subrogation and direct action, the remedies provided for by the
      legislation which it administers. However, the Court held in DAK
         			(20)
         		 that the said Article 93(1) does not purport to alter the applicable rules for determining whether and to what extent non-contractual
      liability on the part of the third party is to be incurred, with the result that such liability continues to be governed by
      the substantive rules that are normally to be applied by the national court before which proceedings are brought by the paying
      institution or by the victim, that is to say, as a rule, the law of the Member State in whose territory the injury was sustained.
      
      
        31.      Likewise, nothing in the preambles to the regulations which established subrogation in favour of the Communities by operation
      of law 
         			(21)
         		 indicates that the Community legislature intended to transfer compulsorily to the liable third party liability for all the
      benefits which the Communities, under the Staff Regulations, are obliged to pay to the victim or those entitled under him.
      As the Court has on several occasions held, the right of subrogation enjoyed by the Communities is designed simply to prevent
      an official from being compensated twice in respect of the same damage. 
         			(22)
         		 It is therefore not intended to confer on the Communities greater rights than those available to the subrogor.
      
      
        32.      Consideration of the judgment in Royalebelge, cited above, leads to that same conclusion. In that case, the Court was confronted by the question whether a third party
      may rely, as against a Community institution, on a settlement concluded with the official before benefits were paid to him
      by the Communities. The Court held that, although the subrogation at issue takes place as soon as the harmful event occurs,
      a third party who has incurred liability and who has concluded a settlement with the official may validly rely on it as against
      the institution unless the institution informs the third party, before the settlement is concluded with the official concerned,
      of the existence of the right of subrogation and of its intention to exercise it or unless it furnishes proof that the third
      party was apprised, before concluding the settlement with the official, of the existence of the right of subrogation. 
         			(23)
         		 That judgment demonstrates that the subrogee does not have greater rights against the debtor than the subrogor had. Indeed,
      it is because the Communities become entitled to the rights of the official or of those entitled under him against the third
      party that the third party can, under the conditions defined by the Court, rely on such a settlement against them.
      
      
        33.      Community subrogation, as defined by Article 85a of the Staff Regulations, cannot therefore confer on the Communities greater
      rights than the official or those entitled under him themselves have under the applicable national law of liability. It follows
      that, if the national law of liability excludes a survivor’s pension such as that provided for by Articles 79 and 79(a) of
      the Staff Regulations from the victim’s spouse’s recoverable loss, the Communities cannot obtain reimbursement of that sum
      by virtue of their being subrogated to the latter’s rights.
      
      
        34.      Admittedly, the result of that interpretation of Article 85a of the Staff Regulations is that the Communities’ rights to reimbursement
      of benefits which they have paid to the victim or those entitled under him following an injury will differ, according to the
      national law applicable to the assessment of the loss. 
         			(24)
         		 However, contrary to the contention of Mr Riehl, the Council and the Commission, that disparity should not be attributed
      to a lack of uniform application of Community law. It is accepted that, while the Community legislature has harmonised the
      conditions for liability in some special fields, 
         			(25)
         		 particularly in the context of consumer protection, 
         			(26)
         		 rules on contractual and non-contractual liability and the assessment of recoverable losses remain subject to the provisions
      established by each Member State as part of its own legal order. Thus, to date, there is no provision of Community law establishing
      for the entire Community the conditions for incurring liability and the rules for assessing recoverable loss. 
         			(27)
         		 Nor is there any provision harmonising, at Community level, the rights to compensation of the beneficiaries of a person who
      has died, as in this case, on account of medical error. It is therefore logical that actions brought by the Communities in
      the exercise of their rights of subrogation to the rights of an official or of those entitled under him may lead to different
      results according to the applicable national law.
      
      
        35.      I therefore suggest that the Court should rule in reply to the question referred to it that Article 85a of the Staff Regulations
      must be interpreted as not conferring on the Communities the right to obtain from a third party liable for the death of an
      official reimbursement in full of the survivor’s pension paid to the surviving spouse pursuant to Articles 79 and 79a of those
      regulations, where the law applicable to entitlement to compensation for damage provides that the right to a survivor’s pension
      is unconnected with the obligation of the perpetrator of a wrongful act to compensate in full for the damage and where the
      damage suffered by the surviving spouse as a result of the loss of the deceased wife’s income is less than the amount of the
      survivor’s pension which has been paid to him.
      
       
      V –  Conclusion
        36.      In the light of the foregoing considerations, I suggest that the Court reply as follows to the question referred to it by
      the Cour d’appel de Bruxelles:
       Article 85a of the Staff Regulations of officials of the European Communities must be interpreted as not conferring on the
      Communities the right to obtain from a third party liable for the death of an official reimbursement in full of the survivor’s
      pension paid to the surviving spouse pursuant to Articles 79 and 79a of those regulations, where the law applicable to entitlement
      to compensation for damage provides that the right to a survivor’s pension is unconnected with the obligation of the perpetrator
      of a wrongful act to compensate in full for the damage and where the damage suffered by the surviving spouse as a result of
      the loss of the deceased wife’s income is less than the amount of the survivor’s pension which has been paid to him.
      
      
       1 –
         
         Original language: French.
      
      2 –
         
         Hereinafter ‘the Staff Regulations’.
            
         
      
      3 –
         
         Hereinafter ‘the Rules’.
            
         
      
      4 –
         
         Hereinafter ‘Clinique La Ramée’.
            
         
      
      5 –
         
         Order for reference (p. 5, paragraph 5).
            
         
      
      6 –
         
         Ibid. (p. 6).
            
         
      
      7 –
         
         Ibid. (p. 7).
            
         
      
      8 –
         
         Cour d’appel’s emphasis.
            
         
      
      9 –
         
         Case C-333/90 [1992] ECR I-1135, paragraph 8.
            
         
      
      10 –
         
         Case C-430/97 Johannes [1999] ECR I-3475, paragraph 19.
            
         
      
      11 –
         
         Case 137/80 Commission v Belgium [1981] ECR 2393, paragraph 8, and Case 72/85 Commission v Netherlands [1986] ECR 1219, paragraph 20.
            
         
      
      12 –
         
         See, to that effect, Case 186/85 Commission v Belgium [1987] ECR 2029, paragraphs 21 and 23, and Case 189/85 Commission v Germany [1987] ECR 2061, paragraphs 14 and 16.
            
         
      
      13 –
         
         Contrary to what the etymology of the word (subrogare) might suggest, the word ‘subrogation’ is not of Latin origin, but was taken from canon law. Roman law accepted the principle
            of substitution of one person for another by a payment in only two special cases: the transfer of rights of action for the
            benefit of a surety and the successio in locum, which enabled the payer of a debt to succeed to the rights of the initial creditor, but only in respect of the latter’s
            rights as mortgagee (Mestre, J., ‘La subrogation personnelle’, LGDJ, 1979, introduction).
            
         
      
      14 –
         
         I refer, for example, to Belgian, Danish, German, Spanish, French, Italian and Austrian law. Likewise, in the common law jurisdictions
            the term ‘subrogation’ is defined as follows: ‘Subrogation is literally “substitution”. The term is used in the context of
            English and Commonwealth law to describe a process by which one party is substituted for another so that he may enforce that
            other’s rights against a third party for his own benefit’ (Mitchell, C., The law of subrogation,  Clarendon Press, Oxford, 1994, p. 3). 
            
         
      
      15 –
         
         Article 85a of the Staff Regulations thus differs from Article 8 of the Rules which provides, ‘[t]he benefits and allowances,
            and also the reimbursement of medical expenses provided for in these Rules shall be paid to an official or to those entitled
            under him only on condition that they subrogate the Communities to their rights and proceedings against any responsible third
            party up to the amount of such benefits, allowances and reimbursement’.
            
         
      
      16 –
         
         Points 4 and 5.
            
         
      
      17 –
         
         That provision may thus enable the Communities to claim from the third party, at the same time as their action by subrogation,
            reimbursement of sums which are not covered by the subrogation, such as management costs, medical care of the official, etc.
            
            
         
      
      18 –
         
         Regulation of 14 June 1971 on the application of social security schemes to employed persons and their families moving within
            the Community (OJ, English Special Edition 1971 (II), p. 416).
            
         
      
      19 –
         
         Article 93(1)(a) provides, ‘where the institution responsible for benefits is, by virtue of the legislation which it administers,
            subrogated to the rights which the recipient has against the third party, such subrogation shall be recognised by each Member
            State’. Article 93(1)(b) states, ‘where the said institution has direct rights against the third party, such rights shall
            be recognised by each Member State’.
            
         
      
      20 –
         
         Case C-428/92 [1994] ECR I-2259, paragraph 16.
            
         
      
      21 –
         
         Subrogation of the Communities by operation of law was established in the Staff Regulations by Council Regulation (Euratom,
            ECSC, EEC) No 912/78 of 2 May 1978 amending the Staff Regulations of officials of the European Communities and the conditions
            of employment of other servants of the European Communities (OJ 1978 L 119, p. 1), which inserted Article 73(4) in the terms
            of which, ‘[W]ithin the limits of the obligation devolving upon them under Articles 72, 73 and 75, the Communities shall automatically
            assume the rights of redress of the official or of those entitled under him against the third party responsible for an accident
            involving the death or injury of an official or a person covered by his insurance’. Article 73(4) of the Staff Regulations
            was repealed by Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 (OJ 1985 L 265, p. 1), which inserted
            Article 85a.
            
         
      
      22 –
         
         Case 103/81 Chaumont-Barthel v Parliament [1982] ECR 1003, paragraph 11; Royalebelge, cited above, paragraph 9; and Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraph 20.
            
         
      
      23 –
         
         Paragraph 19.
            
         
      
      24 –
         
         It could also result in Mr Riehl obtaining both damages for loss of income which the third party will be ordered to pay him
            under the Belgian law of liability and the survivor’s pension paid by the Council. 
            
         
      
      25 –
         
         See, among others, Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents
            (OJ 1997 L 285, p. 1).
            
         
      
      26 –
         
         See, particularly, Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative
            provisions of Member States concerning liability for defective products (OJ 1985 L 210, p. 29); Council Directive 85/577/EEC
            of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372,
            p. 31); Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations, and administrative
            provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48); Council Directive 90/314/EEC of 13 June
            1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59); and Directive 1999/44/EC of the European
            Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ
            1999 L 171, p. 12). See, more recently, the Council resolution of 1 December 2003 on safety of services for consumers (OJ
            2003 C 299, p. 1).
            
         
      
      27 –
         
         The effects on the functioning of the internal market of the differences between the national laws of contractual and non-contractual
            liability have, however, been considered and studied in detail. Thus, in July 2001, the Commission launched a consultation
            on the methods of treating, at Community level, the problems arising from differences between the various laws of contract
            in force in the European Union (see the communication from the Commission to the European Parliament and the Council ‘A more
            coherent European contract law – An action plan’ (COM(2003) 68 final, OJ 2003 C 63, p. 1). The European Parliament and the
            Council have requested that research also be undertaken in the fields of the law of property and of the law of civil liability.