1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 5 FEBRUARY 1981 THE COMMISSION OF THE EUROPEAN COMMUNITIES , ACTING PURSUANT TO AN ARBITRATION CLAUSE AS PROVIDED FOR IN ARTICLE 181 OF THE EEC TREATY , ARTICLE 153 OF THE EAEC TREATY AND ARTICLE 42 OF THE ECSC TREATY , BROUGHT AN ACTION AGAINST ROYALE BELGE SA , A COMPANY HAVING ITS REGISTERED OFFICE AT BRUSSELS , ACTING ON ITS OWN BEHALF AND AS AGENT FOR 14 OTHER INSURANCE COMPANIES WHICH HAD SIGNED THE INSURANCE AGREEMENT DATED 28 JANUARY 1977 WITH THE INSTITUTIONS OF THE EUROPEAN COMMUNITIES , SEEKING AN ORDER REQUIRING IT TO PAY THE PRINCIPAL SUM AND INTEREST OWED BY THE COMMISSION TO THOSE BENEFICIALLY ENTITLED TO THE ESTATE OF GERRIT JAN VAN KASTEEL AS A RESULT OF HIS DEATH BY ACCIDENT ON 29 APRIL 1978 .
2 IN SUPPORT OF ITS APPLICATION THE APPLICANT CLAIMS THAT MR VAN KASTEEL WAS AN OFFICIAL IN DIRECTORATE-GENERAL XV OF THE COMMISSION WHEN HE WAS KILLED IN AN AIRCRAFT ACCIDENT WHICH OCCURRED IN THE COMMUNE OF VAUVENARGUES IN PROVENCE , FRANCE , DURING A FLIGHT FROM BRUSSELS TO GREECE IN A LIGHT AIRCRAFT WHICH HE WAS PILOTING HIMSELF . UNDER ARTICLE 73 OF THE STAFF REGULATIONS OFFICIALS ARE COVERED AGAINST THE RISK OF ACCIDENT SUBJECT TO RULES DRAWN UP BY COMMON AGREEMENT OF THE INSTITUTIONS OF THE COMMUNITIES . BY SIGNING ON 28 JANUARY 1977 THE COLLECTIVE INSURANCE AGREEMENT ENTERED INTO BY THOSE INSTITUTIONS THE INSURANCE COMPANIES FOR WHICH THE DEFENDANT ACTS AS AGENT UNDERTOOK TO COVER THE COMMUNITIES AGAINST THE FINANCIAL CONSEQUENCES OF THE OBLIGATIONS WHICH THE LATTER ASSUMED UNDER THE STAFF REGULATIONS IN RESPECT OF ACCIDENTS BEFALLING THE PERSONS TO WHOM ARTICLE 73 OF THE STAFF REGULATIONS APPLIES .
3 THE DEFENDANT DOES NOT CONTEST THE FACTS ALLEGED BY THE COMMISSION . IT CONTENTS HOWEVER THAT IN THIS CASE THE COMMUNITIES OWE NO OBLIGATION UNDER THE STAFF REGULATIONS TO THE PERSONS BENEFICIALLY ENTITLED TO THE ESTATE OF MR VAN KASTEEL BECAUSE HIS FATAL ACCIDENT WAS THE RESULT OF A MANIFESTLY RECKLESS ACT , A RISK NOT COVERED BY ARTICLE 73 OF THE STAFF REGULATIONS OR BY THE INSURANCE POLICY . IN THIS REGARD IT RELIES UPON ARTICLE 4 OF THE JOINT RULES DRAWN UP BY THE INSTITUTIONS OF THE COMMUNITIES PURSUANT TO ARTICLE 73 ; THE FIRST MENTIONED PROVIDES THAT ACCIDENTS DUE TO MANIFESTLY RECKLESS ACTS ARE NOT COVERED FOR THE PURPOSES OF THE LATTER PROVISION .
4 ACCORDING TO THE DEFENDANT , AN ACT MUST BE REGARDED AS ' ' RECKLESS ' ' WHERE A PERSON , OVERESTIMATING HIS CHANCES , PURSUES A COURSE OF ACTION WITH SUCH AUDACITY THAT HE NEGLECTS TO MAKE ALLOWANCE FOR THE DANGERS TO WHICH HE EXPOSES HIMSELF AND OF WHICH HE COULD NOT HAVE BEEN UNAWARE . SUCH AN ACT IS ' ' MANIFESTLY ' ' RECKLESS , IT STATES , WHERE THE RASHNESS THUS SHOWN IS CLEAR AND CERTAIN .
5 IN ITS DEFENCE THE DEFENDANT HAS EXPLAINED WHY MR VAN KASTEEL ' S ACTIONS IN THE TWO AND A HALF HOURS BETWEEN HIS TAKING OFF FROM LYON-BRON AIRPORT AT 14.30 HOURS LOCAL TIME IN 29 APRIL 1978 AND THE ACCIDENT EVINCE MANIFEST RECKLESSNESS .
6 THE FIRST EVIDENCE TO WHICH THE DEFENDANT POINTS IN THIS REGARD IS THE PILOT ' S DECISION TO TAKE THE DIRECT ROUTE TO CANNES - ALONG THE RHONE VALLEY FROM LYON TO A POINT ABREAST OF MONTELIMAR-CARPENTRAS AND THEN BRANCHING OFF DIRECTLY TO THE ST TROPEZ AREA - IN THE ADVERSE WEATHER CONDITIONS WHICH PREVAILED OVER THAT PART OF FRANCE AND WHICH HAD BEEN REPORTED TO HIM AT LYON-BRON AIRPORT . AFTER STUDYING THE SAME WEATHER INFORMATION MR VAN KASTEEL ' S TWO COLEAGUES WHO WERE IN THE SAME GROUP OF TOURISTS TRAVELLING IN TOURING AIRCRAFT FROM BRUSSELS TO THE GREEK ISLANDS AND WERE ALSO FLYING LIGHT AIRCRAFT PREFERRED INSTEAD TO FLY DOWN THE RHONE VALLEY AS FAR AS MARSEILLE AND THEN TO FOLLOW THE COAST .
7 THE COURT HAS BEEN PROVIDED WITH A SUMMARY OF THE WEATHER INFORMATION GIVEN BY THE REGIONAL WEATHER CENTRE AT LYON-BRON AIRPORT BETWEEN 14.00 AND 14.30 HOURS ON 29 APRIL 1978 TO THE CREWS FLYING TO CANNES AND HAS ORDERED AN EXPERT REPORT ON THE CONCLUSIONS WHICH AN AIRMAN OUGHT TO HAVE DEDUCED FROM THAT INFORMATION . THE COURT HAS ALSO HEARD THE EVIDENCE OF THE TWO PILOTS WHO TOOK THE LYON-MARSEILLE ROUTE IN ORDER TO ASCERTAIN THE REASONS WHICH LED THEM TO DECIDE AGAINST TAKING THE DIRECT ROUTE TO CANNES .
8 AFTER THE TECHNICAL EXPERTS AND WITNESSES HAD BEEN EXAMINED THE DEFENDANT INDICATED THAT AS A RESULT OF THE EXPLANATIONS GIVEN IT NO LONGER PERSISTED IN ITS CONTENTION THAT THE DECISION TO TAKE THE DIRECT ROUTE TO CANNES WAS IN ITSELF EVIDENCE OF MANIFEST RECKLESSNESS .
9 THE DEFENDANT ' S SECOND REASONS FOR CONTENDING THAT MR VAN KASTEEL ' S ACTIONS WERE RECKLESS IS THE DECISION WHICH HE IS ALLEGED TO HAVE TAKEN WHEN HIS AIRCRAFT FLEW INTO THE DISTURBANCE AND VISIBILITY WAS SUDDENLY REDUCED , TO DESCEND FROM AN ALTITUDE OF 1 500 METRES TO LESS THAN 1 000 METRES .
10 IT IS COMMON GROUND THAT AT 16.52 HOURS , THE TIME OF HIS LAST RADIO CONTACT WITH MARSEILLE-MARIGNANE AIRPORT , MR VAN KASTEEL REPORTED HIS AIRCRAFT AT AN ALTITUDE OF 4 500 FEET OR ROUGHLY 1 500 METRES AND THAT APPROXIMATELY 10 MINUTES LATER IT CRASHED INTO THE NORTH SLOPE OF MONT SAINTE-VICTOIRE AT A HEIGHT OF SOME 960 METRES .
11 HOWEVER , IT IS NOT CLEAR FROM THE WRITTEN EVIDENCE , SUCH AS THE PRELIMINARY INVESTIGATION REPORT DRAWN UP BY MR GRIMAUD FOR THE FRENCH MINISTRY OF TRANSPORT OR THE REPORT OF THE GENDARMERIE NATIONALE INCLUDING THEIR VARIOUS APPENDICES , THAT THE AIRCRAFT ' S LOSS OF ALTITUDE WAS DUE TO A DELIBERATE DECISION OF THE PILOT TO ATTEMPT TO DESCEND BELOW THE CLOUD . NEITHER MR GRIMAUD , WHO WAS EXAMINED BY THE COURT , NOR THE TECHNICAL EXPERTS APPOINTED BY THE PARTIES , COULD STATE WITH CERTAINTY THAT THE LOSS OF ALTITUDE WAS DUE TO A DECISION TAKEN BY THE PILOT RATHER THAN A VIOLENT GUST OF WIND . IN VIEW OF THOSE CIRCUMSTANCES THE DEFENDANT HAS ACCEPTED THAT THE LOSS OF ALTITUDE MIGHT HAVE BEEN CAUSED BY THE VERY STRONG TURBULENCE THROUGH WHICH THE AIRCRAFT WAS FLYING .
12 HOWEVER , AFTER THE WITNESSES AND TECHNICAL EXPERTS HAD BEEN EXAMINED THE DEFENDANT CONTINUED TO MAINTAIN THAT THE PILOT ' S CONDUCT WAS MANIFESTLY RECKLESS FOR THE THIRD REASON WHICH IT HAD ADVANCED . IT CONSIDERED SUCH RECKLESSNESS OBVIOUS FROM THE PILOT ' S DECISION TO ENTER THE DISTURBANCE WHICH HE SAW AHEAD OF HIM AND NOT TO TURN BACK IMMEDIATELY IN SEARCH OF AN AIRFIELD WHERE HE COULD LAND .
13 SO AS TO WEIGH UP THAT ARGUMENT IT IS NECESSARY TO CONSIDER THE VARIOUS UNDISPUTED FACTUAL CIRCUMSTANCES SURROUNDING THE LAST MINUTES OF THE FLIGHT IN QUESTION AS WELL AS THE VIEWS WHICH THE TECHNICAL EXPERTS HAVE EXPRESSED ON THEM .
14 THE FIRST POINT TO BE MADE IN THIS REGARD IS THAT THE WEATHER INFORMATION PROVIDED BY LYON-BRON AIRPORT FORECAST A VIGOROUS DISTURBANCE PRODUCING HEAVY LOCAL RAIN BEYOND MONTELIMAR ACCOMPANIED BY A STRONG GUSTING SOUTHERLY WIND WITH VISIBILITY OF 10 TO 15 KILOMETRES , REDUCED TO 6 TO 10 KILOMETRES IN RAIN . THERE WAS NOTHING IN THAT INFORMATION TO INDICATE THAT A SUDDEN AND CONSIDERABLE REDUCTION IN THE VISIBILITY WHICH IS AN IMPORTANT FACTOR FOR PILOTS FLYING VISUALLY LIKE MR VAN KASTEEL , WOULD OCCUR . ACCORDING TO THE OBSERVATIONS MADE BY MARSEILLE-MARIGNANE AT 16.00 HOURS LOCAL TIME , ONE HOUR BEFORE THE PROBABLE TIME OF THE ACCIDENT , VISIBILITY WAS 15 KILOMETRES .
15 THE SEVERE DISTURBANCE WHICH LED TO THE ACCIDENT IN QUESTION WAS THEREFORE NEITHER FORECAST NOR REPORTED BY THE WEATHER STATIONS WHOSE INFORMATION WAS AVAILABLE TO AIRMEN . IT IS ALSO CLEAR FROM THE EVIDENCE OF MR VAN KASTEEL ' S TWO FELLOW-PILOTS WHO WERE ALSO FLYING LIGHT AIRCRAFT THAT THE DECISION TAKEN BY EACH OF THEM TO FOLLOW THE RHONE VALLEY ROUTE AS FAR AS MARSEILLE WAS NOT PROMPTED BY THE WEATHER INFORMATION AVAILABLE TO THEM . MOREOVER , WHILST FOLLOWING THE COAST ONE OF THEM WAS CAUGHT UNAWARES BY VERY STORMY WEATHER AT LA CIOTAT FROM WHICH HE EMERGED ONLY AT SOME RISK .
16 THE INFORMATION PROVIDED BY LYON-BRON ALSO REPORTED THE SKY COVERED BY ALTOSTRATUS AT ROUGHLY 2 400 METRES ABOVE 4 TO 6/8 STRATOCUMULUS BETWEEN 600 AND 1 000 METRES . ACCORDING TO THE EXPERTS ' STATEMENTS , IN SUCH ATMOSPHERIC CONDITIONS THERE IS NORMALLY A CORRIDOR BETWEEN THE CLOUD MASSES WHICH IS HARDLY AFFECTED BY DISTURBANCES . THEREFORE BY FLYING AS HE DID AT AN ALTITUDE OF 1 500 METRES MR VAN KASTEEL DID NOTHING CONTRARY TO THE RULES OF GOOD AIRMANSHIP .
17 IT IS CLEAR FROM THE FOREGOING THAT MR VAN KASTEEL CANNOT BE ACCUSED OF ANY RASHNESS AS REGARDS HIS CONDUCT AS A PILOT UNTIL THE TIME AT WHICH HIS AIRCRAFT ENTERED THE UNEXPECTED DISTURBANCE IN THE AREA OF VAUVENARGUES-AIX-EN-PROVENCE . SINCE THAT IS A MOUNTAINOUS AREA IN WHICH , ACCORDING TO MR GRIMAUD , THE WEATHER MAY CHANGE VERY RAPIDLY IN CERTAIN ATMOSPHERIC CONDITIONS AND IN WHICH THE EFFECTS OF SUCH CHANGES ON AVIATION MAY BE CONSIDERABLE , THE COURT ACCEPTS THE COMMISSION ' S AND THE INTERVENERS ' ARGUMENT TO THE EFFECT THAT MR VAN KASTEEL COULD NOT AVOID THE DISTURBANCE .
18 THE ONLY QUESTION STILL TO BE RESOLVED , THEREFORE , IS WHETHER THE PILOT NEGLECTED TO TURN BACK IMMEDIATELY AFTER ENTERING THE DISTURBANCE , AS THE DEFENDANT MAINTAINS .
19 IN THE LAST RADIO CONTACT WHICH HE HAD WITH MARSEILLE-MARIGNANE AT 16.52 HOURS MR VAN KASTEEL REPORTED : ' ' . . . I AM IN A SHOWER ' ' . WHEN ASKED WHETHER HE HAD THE GROUND IN SIGHT HE REPLIED : ' ' SOMETIMES , YES ' ' . THIS INDICATES THAT AT THAT TIME HE DID NOT REGARD HIMSELF AS BEING IN A SEVERE DISTURBANCE . WHAT IS MORE , THE CONTENT OF THE CONVERSATION DOES NOT GIVE THE IMPRESSION THAT THE PILOT WAS AFRAID OF LOSING VISIBILITY COMPLETELY .
20 ACCORDING TO THE ESTIMATE OF THE GENDARMERIE NATIONALE AND THAT MADE BY MR GRIMAUD IN HIS REPORT , THE ACCIDENT OCCURRED AT ABOUT 17.00 HOURS LOCAL TIME OR NOT MORE THAN 10 MINUTES AFTER THE LAST RADIO CONTACT . WHAT HAPPENED IN THOSE LAST 10 MINUTES IS NOT KNOWN BUT THE AIRCRAFT MUST HAVE CHANGED COURSE AS THE DIRECTION OF FLIGHT AT THE TIME OF IMPACT ON MONT SAINTE-VICTOIRE WAS AT 90* TO THE LINE FROM MONTELIMAR TO CANNES .
21 ACCORDING TO THE EXPERT ' S REPORT , IT IS VERY UNLIKELY THAT AN AIRCRAFT , EVEN A LIGHT AIRCRAFT , WILL CHANGE COURSE UNDER THE INFLUENCE OF A GUST OF WIND . THE CHANGE OF COURSE MUST THEREFORE HAVE BEEN DUE EITHER TO THE PILOT ' S DELIBERATE DECISION TO CHANGE COURSE - IN ORDER , FOR INSTANCE , TO REACH THE COAST AS QUICKLY AS POSSIBLE - OR TO A SUDDEN MOVEMENT INTENDED TO AVOID THE MOUNTAINSIDE WHICH THE PILOT SUDDENLY SAW LOOMING UP OUT OF THE CLOUD .
22 BOTH THEORIES ARE TENABLE . MR GRIMAUD HAS STATED THAT EXAMINATION OF THE WRECKAGE SHOWED THAT AT THE TIME OF IMPACT THE ENGINE WAS RUNNING AT FULL SPEED , WHICH MIGHT INDICATE THAT THE PILOT SAW THE MOUNTAINSIDE AT THE VERY LAST MOMENT AND INCREASED POWER IN ORDER TO BE ABLE TO MANOEUVRE THE AIRCRAFT SO AS TO AVOID THE CRASH . HOWEVER , MR GRIMAUD ADDED THAT THERE COULD BE NO CERTAINTY ON THIS POINT .
23 IN THOSE CIRCUMSTANCES THERE IS NO MEANS OF RULING OUT ENTIRELY THE POSSIBILITY THAT THE PILOT DECIDED TO TURN BACK JUST BEFORE HITTING THE MOUNTAIN . IT IS ALSO POSSIBLE THAT HE NEVER TOOK SUCH A DECISION BUT LOST ALL VISIBILITY OR EVEN ALL CONTROL OF HIS AIRCRAFT ONLY A FEW MOMENTS BEFORE THE ACCIDENT .
24 CONSEQUENTLY IT HAS NOT BEEN ESTABLISHED WITH ANY CERTAINTY WHETHER OR NOT DURING THE LAST 10 MINUTES OF THE FLIGHT THE PILOT COMMITTED ONE OR MORE ACTS EVINCING RASHNESS ON HIS PART .
25 BECAUSE OF THAT UNCERTAINTY AND IN VIEW OF THE FINDINGS REGARDING THE UNEXPECTED NATURE OF THE DISTURBANCE AND MR VAN KASTEEL ' S CONDUCT AS A PILOT UP TO THE TIME AT WHICH THE AIRCRAFT ENTERED THE DISTURBANCE , THE APPLICATION MUST BE GRANTED . IT WAS IN FACT FOR THE DEFENDANT TO SHOW THAT THE FACTS WARRANTED THE APPLICATION OF ONE OF THE EXEMPTIONS SET OUT IN ARTICLE 4 OF THE JOINT RULES .
26 IT IS THEREFORE UNNECESSARY TO EXAMINE THE QUESTION OF THE DEGREE OF RASHNESS REQUIRED FOR AN ACT TO BE DESCRIBED AS ' ' MANIFESTLY RECKLESS ' ' .
27 CONSEQUENTLY THE DEFENDANT , ACTING ON ITS BEHALF AND AS AGENT FOR 14 OTHER INSURANCE COMPANIES WHICH SIGNED THE COLLECTIVE INSURANCE AGREEMENT OF 28 JANUARY 1977 WITH THE INSTITUTIONS OF THE COMMUNITIES , MUST BE ORDERED TO PAY THE PRINCIPAL SUM AND INTEREST OWED BY THE COMMISSION TO THE PERSONS BENEFICIALLY ENTITLED TO THE ESTATE OF GERRIT JAN VAN KASTEEL FOLLOWING HIS FATAL ACCIDENT ON 29 APRIL 1978 .
28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THE SUCCESSFUL PARTY HAS ASKED FOR THEM . AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS , INCLUDING THOSE OF THE INTERVENERS AND THE SUMS DUE TO THE WITNESSES AND TECHNICAL EXPERTS .