1. The request for a preliminary ruling concerns the interpretation of Article 85a of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 laying down the Staff Regulations of officials and the conditions of employment of other servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition II, 1968(I), p. 30), as amended by Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 (OJ 1985 L 265, p. 1, hereinafter ‘the Staff Regulations’).
2. That question was raised in the course of proceedings between on the one hand the Clinique La Ramée ASBL (hereinafter ‘Clinique La Ramée’) and its insurer Winterthur Europe Assurance SA (hereinafter ‘Winterthur’) and on the other the Council of the European Union and Mr Riehl concerning compensation for the loss he suffered as a result of his wife’s death in that hospital and the European Communities’ right to be subrogated to Mr Riehl’s rights. Legal background
3. Article 85a of the Staff Regulations provides: ‘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 paid in accordance with Article 67(3) and with Article 2(3) and (5) of Annex VII in respect of a dependent child suffering from serious illness, infirmity or handicap, - 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, …
4. The provisions of paragraphs 1, 2 and 3 may not be a bar to direct action by the Communities.’ The main proceedings and the question referred for a preliminary ruling 4. Ms Guette, Mr Riehl’s wife, was an official of the Council in receipt of an invalidity pension under Article 78 of the Staff Regulations. She died on 25 September 1990 whilst in hospital at Clinique La Ramée. It is established that her death was caused by the fault of an employee of that hospital.
5. Following Ms Guette’s death, the Council paid to Mr Riehl: - a lump sum for funeral expenses, pursuant to Article 10 of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease; - a sum corresponding to the amount of the invalidity pension Ms 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, paid monthly from the fourth month following that of her death, under Articles 79 and 79(a) of the Staff Regulations.
6. 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.
7. Ruling on Mr Riehl’s claims, that court ordered Clinique La Ramée and Winterthur to pay him compensation both for the loss of the household assistance of his wife and for his non-material loss resulting from her death. On the other hand, it dismissed Mr Riehl’s claim for compensation for his loss of income, on the ground that such loss was less that 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, by Clinique La Ramée and Winterthur, of the sums paid or due to Mr Riehl.
9. Clinique La Ramée and Winterthur appealed against that judgment. They claimed that the Court 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. Mr Riehl and the Council cross-appealed. Mr Riehl claimed, in particular, compensation for the loss which he submitted that he had suffered as a result of the loss of household income. The Council claimed the updating of the amount of its losses to the date of the judgment to be given.
11. As regards the claim for compensation based on the loss of income which Mr Riehl claims to have suffered, the Cour d’appel de Bruxelles (Court of Appeal, Brussels) in its judgment of reference, held 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 and that, therefore, departing from the decision of the court below, it was necessary to determine the loss of household income without taking into account the survivor’s pension paid to Mr Riehl. The only deduction which should be made from the amount payable to Mr Riehl was the deceased’s invalidity pension paid up to the third month after her death. Applying that method of calculation, the Cour d’appel assessed the material loss suffered by Mr Riehl as a result of the loss of his wife’s income at EUR 479.80 per month, from 1 October 1990, that being a lower amount than that of the survivor’s pension paid by the Council.
12. As regards the right of subrogation invoked by the Council, the Cour d’appel de Bruxelles decided that the proceedings before it raised the question of the nature and extent of such subrogation and, therefore, it decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Must Article 85a of the European Communities’ Staff Regulations, as laid down by Articles 2 and 3 of Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 and the regulations amending them, 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 79(a) of those Staff Regulations although 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?’ The question referred
13. Clinique La Ramée and Winterthur submit that Article 85a of the Staff Regulations provides for the Communities to stand subrogated up to the amounts corresponding to the survivor’s pension which they are liable to pay to the surviving spouse of a deceased official and does not permit that surviving spouse to obtain both the survivor’s pension and compensation, for that spouse’s own benefit, for the loss of income consequent upon the death. However, since the subrogee cannot be entitled to greater rights than the subrogor, the Communities’ right to claim reimbursement of the entirety of the survivor’s pension paid to the surviving spouse must be limited to the amount corresponding to the assessment, according to the rules of the applicable national law, of the damage suffered by that spouse from the loss of income as a result of the death of the other spouse.
14. Mr Riehl, the Council and the Commission of the European Communities maintain that the subrogation provided for by Article 85a of the Staff Regulations is a mechanism specific to Community Law which cannot be excluded by the application of any rule of national law. The Communities’ right of subrogation is not limited to the compensation accorded by national law to the official who has suffered damage or those claiming under him, but it extends to the entirety of the benefits listed in Article 85a(2).
15. In that regard, it must be borne in mind that the subrogation provided for by Article 85a of the Staff Regulations is subrogation by operation of law. It takes place, within the limits of the obligations devolving upon the Communities under the provisions of the Staff Regulations, upon the occurrence of the harmful event for which a third party is liable (Case C-333/90 Royale belge [1992] ECR I-1135, paragraph 8).
16. However, Article 85a(1) of the Staff Regulations states 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’. As the Advocate General observed in paragraph 26 of his Opinion, it 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.
17. In that context, it must be noted that the purpose of Article 85a of the Staff Regulations is not to alter the national rules applicable for determining whether and to what extent there is liability on the part of the third party who caused the injury. That third party’s liability remains subject to the substantive rules which are normally to be applied by the national court before which the victim’s proceedings are brought, that is to say, in principle, the legislation of the Member State in whose territory the injury has occurred (see, in respect of the subrogation of social security bodies under Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, in its version amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), Case C-428/92 DAK [1994] ECR I‑2259, paragraph 21).
18. It follows that if the national law on liability applicable to this case excludes a survivor’s pension, such as that provided for by Articles 79 and 79(a) of the Staff Regulations, from the scope of the compensation obligation of the perpetrator of a wrongful act, the Communities cannot obtain reimbursement of the sums corresponding to that survivor’s pension by means of the subrogation under Article 85a of the Staff Regulations.
19. Accordingly, the reply to the question referred must be that Article 85a of the Staff Regulations is not to be interpreted as 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 79(a) of those Staff 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 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 paid to him.