1 This request for a preliminary ruling concerns the interpretation of Article 85(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1).
2 The request has been made in proceedings between Deutsche Rentenversicherung Nord (‘DRV-N’) and BG Verkehr (‘BG-V’), on the one hand, and Gjensidige Forsikring (‘GF’), a Danish subsidiary of Gjensidige Forsikring ASA, Norway, acting as representative of Marius Pedersen A/S (‘MP’) and on its own behalf, on the other, concerning a recoupment action in respect of benefits paid to the widow of a German national who died following an accident at work in Denmark.
3 Article 85(1) of Regulation No 883/2004 provides: ‘If a person receives benefits under the legislation of one Member State in respect of an injury resulting from events occurring in another Member State, any rights of the institution responsible for providing benefits against a third party liable to provide compensation for the injury shall be governed by the following rules:
4 Under Paragraph 1(1) of the erstatningsansvarslov (Law on civil liability) of 24 August 2018: ‘Any person liable for personal injury shall pay compensation for loss of income, medical expenses and other losses resulting from the injury, as well as compensation for non-material damage.’
5 Paragraph 13(1) of that law provides: ‘Compensation for loss of a provider of a spouse or cohabiting partner shall be 30 % of the damages which the deceased should have received in the event of complete incapacity for employment … However, compensation shall be at least 644 000 [Danish kroner (DKK) (approximately EUR 83 720)], save in exceptional circumstances.’
6 Paragraph 17(1) of that law provides: ‘Benefits under social legislation, including unemployment benefits, medical assistance, pensions under the social pension legislation and benefits under the Law on industrial injury insurance, to which an injured party or a survivor is entitled, cannot form the basis for a recoupment action against the party liable for damages …’
7 Paragraph 26a(1) of that law provides: ‘Any person who, intentionally or through gross negligence, causes the death of another person may be ordered to pay compensation to survivors who had a particularly close connection with the deceased.’
8 Under Paragraph 19(1) of the arbejdsskadesikringslov (Law on industrial injury insurance) of 19 August 2022: ‘Where an accident at work has resulted in death, the surviving spouse shall be entitled to a transitional amount of [DKK 191 000 (approximately EUR 28 830)] (2024 value) if the marriage was entered into before the accident at work occurred and cohabitation was effective at the time of the injured person’s death. The amount shall be adjusted in accordance with Paragraph 25.’
9 Paragraph 20(1) of that law is worded as follows: ‘Any person who is entitled to a transitional amount under Paragraph 19(1) to (3) and who has lost a provider as a result of the death of the injured person or whose means of subsistence have otherwise been altered as a result of the death shall be entitled to compensation on that basis. Compensation shall be determined on the basis of the extent of the support and the survivor’s ability to support himself or herself, taking account of his or her age, state of health, education, employment, dependence and financial situation.’
10 Paragraph 77(1) of that law states: ‘Benefits under the Law cannot form the basis for a recoupment action against the party responsible for the injury who is liable for damages to injured persons or their survivors … The rights of injured persons or their survivors against the party responsible for the injury shall be reduced to the extent that benefits have been paid or are payable to the persons concerned under this Law …’
11 Paragraph 46 of the Sozialgesetzbuch, Sechstes Buch (VI) - Gesetzliche Rentenversicherung (Book VI of the Social Security Code - Statutory Pension Insurance; ‘the SGB VI’) provides for the granting of a widow’s or widower’s pension to widows or widowers where the deceased spouse was insured for the minimum period generally required.
12 Paragraph 116 of the Sozialgesetzbuch, Zehntes Buch (X) - Sozialverwaltungsverfahren und Sozialdatenschutz (Book X of the Social Security Code - Social Administrative Procedure and Social Data Protection; ‘the SGB X’) confers on social security institutions the right of subrogation to the rights which may be held by beneficiaries against third parties liable for benefits which the institutions were required to grant as a result of the injury sustained.
13 On 15 July 2015, a German national, who worked as an export driver for a German company, was injured in an accident which occurred when he was helping to load goods on to his lorry at one of MP’s business addresses in Denmark. Those injuries led to his death shortly afterwards.
14 MP acknowledged its civil liability in respect of that death. GF, the civil liability insurer of that company, paid to the widow of the deceased worker, at the request of her lawyer, compensation for loss of a provider, calculated in accordance with Danish law.
15 In addition, DRV-N and BG-V, with which the deceased was insured as a German worker, paid a widow’s pension to his widow, in accordance with Paragraph 46 of the SGB VI.
16 Since Paragraph 116 of the SGB X provides for a right of subrogation to the rights of the deceased worker’s widow against the third party liable as regards the pension thus paid, DRV-N and BG-V requested reimbursement of that pension from MP and GF.
17 MP and GF refused to grant that request on the ground that it was unfounded under Danish law. First, entitlement to a widow’s pension under German legislation, which is paid irrespective of the cause of death, does not correspond to the right to compensation for loss of a provider provided for by Danish legislation. Second, since GF has already paid that compensation to the widow of the deceased worker, she could not claim any other compensation under Danish law.
18 On 6 and 12 July 2018, DRV-N and BG-V, respectively, brought a recoupment action against MP and GF before the Retten i Svendborg (District Court, Svendborg, Denmark), the referring court, in order for those companies to be recognised as institutions responsible for providing the benefits paid to the widow of the deceased worker.
19 While accepting that the compensation for loss of a provider paid to the widow of the deceased worker was calculated in accordance with Danish law and that that widow cannot claim any other compensation under that law, DRV-N and BG-V take the view that that compensation was not paid in full discharge of liabilities since MP and GF did not act in good faith as regards the recoupment action brought by DRV-N and BG-V.
20 Furthermore, they submit that the conditions and scope of the rights to which they are subrogated must be determined in accordance with German law. Even if the extent of their claim against MP and GF were to be determined in accordance with Danish law, Article 85(1) of Regulation No 883/2004 should be interpreted as meaning that the social benefits which they have paid to the widow of the deceased worker do not have to be identical or comparable, as regards their nature, to the benefits provided for by Danish law in order to be eligible for compensation. That provision was not intended to preclude a claim by a social security institution responsible for providing benefits against the party who caused the injury on the ground that the benefits which may be claimed under the legislation of the Member State in which the social security institution responsible for providing benefits has its registered office and the legislation of the Member State in which the injury was sustained are not identical.
21 The referring court notes that, in the case in the main proceedings, the question arises, first of all, as to which of the national legislative systems at issue determines the extent of the rights to which a social security institution responsible for providing benefits is subrogated. Next, that court is uncertain whether a recoupment action presupposes that the social benefits in respect of which reimbursement is sought are, by their nature, comparable to the benefits which the injured party could claim under the law of the Member State in which the injury was sustained. Finally, it raises the question of the meaning to be given to the words ‘by their nature’ used by the Højesteret (Supreme Court, Denmark) in its case-law concerning the field at issue.
22 Danish law set out exhaustively the nature of the various types of compensation which the injured party or his or her survivors may claim, such as compensation for loss of earnings, pain and suffering, permanent health impairment, loss of earning capacity, loss of a provider, a transitional amount in the event of death and compensation for tort. Most of those compensation payments are capped.
23 Paragraph 77 of the Law on industrial injury insurance provides, moreover, that compensation calculated in accordance with the Law on civil liability is to be subsidiary to the compensation which the injured party or survivors may claim under the Law on industrial injury insurance and that compensation for accidents at work may not serve as a basis for a recoupment action against a party responsible for the injury who is under an obligation to pay compensation.
24 Neither the Law on civil liability nor the Law on industrial injury insurance provide for a right for survivors to a widow’s pension of the same kind as that of the right referred to in the SGB VI and according to the detailed rules which follow therefrom. It is therefore not possible to establish from the outset that DRV-N’s and BG-V’s claims for compensation and the compensation referred to in the Law on civil liability and the Law on industrial injury insurance are identical.
25 In the view of the referring court, it is therefore unclear from the case-law of the Court of Justice whether the substantive rules of the law of the Member State in which the injury was sustained can limit the recoupment action of the social security institution responsible for providing benefits where the social security benefits in respect of which compensation is sought are not identical or, at least, are not comparable, by their nature, to the claim in respect of which the injured party could seek compensation under those substantive rules.
26 In those circumstances, the Retten i Svendborg (District Court, Svendborg) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Article 85(1) of … Regulation [No 883/2004] be interpreted as meaning that for the … institution [responsible for providing benefits] to have a right of recoupment under that provision there must be a lawful basis in the Member State in which the injury occurred for the type of damages or compensation for which a right of recoupment is claimed, or equivalent benefit, as a consequence of the event for which the party responsible for the injury is liable for damages under the law of the place where the injury occurred?’
27 By its question, the referring court asks, in essence, whether Article 85(1) of Regulation No 883/2004 must be interpreted as meaning that, where a person, under the legislation of the Member State in which he or she is resident, receives a widow’s or widower’s pension following the death of his or her spouse as a result of an accident at work which occurred in another Member State, and the legislation of the first Member State provides, with respect to the institution responsible for paying that pension, for a right of subrogation against a third party liable to provide compensation for the injury resulting from that accident at work, the recoupment action of that institution is subject to the existence, in the second Member State, of legal basis allowing such a pension or equivalent benefit to be obtained.
28 Article 85(1) of Regulation No 883/2004 has the object of allowing a social security institution of a Member State, which has paid social security benefits following an injury sustained in the territory of another Member State, to exercise against the third party liable for the injury the rights of action provided for by the legislation which it administers, either by means of subrogation or by direct action. The rights thus conferred on national social security institutions constitute a logical and fair counterpart to the extension of the obligations of those institutions throughout the entire European Union as a result of the provisions of the regulation (see, to that effect, judgment of 2 June 1994, DAK, C‑428/92, EU:C:1994:222, paragraph 16).
29 That provision is thus to be regarded as a conflict-of-laws rule which requires the national court hearing an action for compensation brought against the party liable for the injury to apply the law of the Member State to which the institution responsible belongs, not only to determine whether that institution is subrogated by law to the rights of the injured party or those entitled under that party, but also to determine the nature and extent of the claims to which the institution responsible for benefits is subrogated (see, to that effect, judgment of 21 September 1999, Kordel and Others, C‑397/96, EU:C:1999:432, paragraph 22).
30 If the national court were to apply the law of the Member State in whose territory the injury was sustained to determine the extent of the rights of the institution responsible, it might have to deprive Article 85(1) of Regulation No 883/2004 of part or all of its practical effect. That would be the case, in particular, if the legislation of the Member State in whose territory the injury had been sustained provided that the subrogation or direct rights did not cover certain types of claim which the institution responsible could enforce, by means of subrogation or direct rights, in the Member State to which it was subject (see, to that effect, judgment of 2 June 1994, DAK, C‑428/92, EU:C:1994:222, paragraph 19).
31 It follows that provisions such as Paragraph 17(1) of the Law on civil liability, which relate to the rights of recoupment of Danish social security institutions against third parties bound to compensate for injuries as a result of which social security benefits have been paid, cannot be applied to determine whether and to what extent an institution responsible for benefits in another Member State than the Kingdom of Denmark has a right of recoupment against the party who has caused an injury in Danish territory where those provisions apply. Such provisions therefore do not preclude a claim by an institution responsible for providing benefits in a Member State other than that in which those provisions apply (see, to that effect, judgment of 2 June 1994, DAK, C‑428/92, EU:C:1994:222, paragraph 22).
32 Nonetheless, Article 85(1) of Regulation No 883/2004 is intended only to ensure that any right of action which an institution responsible for benefits may enjoy by virtue of the legislation which it administers is recognised by the other Member States. That provision 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 who caused the injury is to be incurred. The third party’s liability continues to be governed by the substantive rules which are normally to be applied by the national court before which proceedings are brought by the injured party or those entitled under him or her, that is to say, in principle, the legislation of the Member State in whose territory the injury was sustained (see, to that effect, judgment of 21 September 1999, Kordel and Others, C‑397/96, EU:C:1999:432, paragraph 15).
33 It follows that the rights that the injured party or those entitled under him or her have against the person who caused the injury and the requirements to be satisfied to enable an action in damages to be brought before the courts of the Member State where the injury was sustained must be determined in accordance with the law of that State, including any applicable rules of private international law (see, to that effect, judgment of 21 September 1999, Kordel and Others, C‑397/96, EU:C:1999:432, paragraph 16).
34 It is to such rights alone, thus determined, that the institution responsible for benefits can be subrogated. Such subrogation cannot have the effect of creating additional rights for the recipient of the benefits against third parties (see, to that effect, judgment of 21 September 1999, Kordel and Others, C‑397/96, EU:C:1999:432, paragraph 17).
35 Moreover, the right of subrogation covers only the compensation to which the injured party or his or her legal successors are entitled under the legislation of the Member State in the territory of which the injury occurred which corresponds to the benefits paid by the institution liable to pay benefits and not compensation granted for non-material damage or in respect of other items of damage of a personal nature (judgment of 16 February 1977, Töpfer and Others, 72/76, EU:C:1977:27, paragraph 19).
36 In the present case, it follows from the case-law referred to in paragraphs 28 to 35 of the present judgment, first, that the existence and extent of the subrogation to the rights of the deceased worker’s widow, to which DRV-N and BG-V are entitled under Paragraph 116 of the SGB X in respect of the benefits which they pay to the widow pursuant to Paragraph 46 of the SGB VI, are determined by German law and that, contrary to what MP and GF claim, Paragraph 17(1) of the Law on civil liability cannot preclude the recoupment action brought by DRV-N and BG-V based on those subrogated rights.
37 Second, that subrogation cannot, however, create, either for the widow of the deceased worker or for DRV-N or BG-V, additional rights to those conferred on the widow by Danish law.
38 In that regard, as is apparent from the order for reference, Danish law does not recognise a right to a widow’s pension such as that established by German law. On the other hand, that law provides, first of all, in Paragraph 13(1) of the Law on civil liability and in Paragraph 20 of the Law on industrial injury insurance, that compensation for loss of a provider is payable to the surviving spouse, which has already been paid by GF to the widow of the deceased worker. Next, Paragraph 26a(1) of the Law on civil liability provides for compensation for non-material damage suffered by survivors who had a particularly close connection with the deceased. Finally, Paragraph 19(1) of the Law on industrial injury insurance provides, under certain conditions, for the grant of a transitional allowance to the surviving spouse.
39 It should be noted, first, that it is not clear from the order for reference whether compensation for non-material damage suffered was, in the present case, payable to the deceased worker’s widow or whether it has been paid by GF. Moreover, although the referring court stated in that order that, according to the Arbejdsmarkedets Erhvervssikring i Danemark (Labour Market Insurance in Denmark), the accident giving rise to the case in the main proceedings did not entitle that widow to benefits under the Law on industrial injury insurance, such as a transitional allowance and compensation for the loss of a provider, provided for in Paragraph 19(1) and Paragraph 20 of that law, respectively, it does not follow from those provisions that that assessment is definitive and that it therefore precludes the relevance of those benefits in the dispute in the main proceedings.
40 Second, in so far as GF has already paid one or, as the case may be, several of those benefits to the widow of the deceased worker, it is for the referring court alone to determine whether, under the applicable national law, such payments had the effect of discharging MP and GF from the claims submitted by DRV-N and BG-V in their recoupment action.
41 Third, as regards the question whether the compensation for loss of a provider, provided for by Danish law and paid by GF to the widow of the deceased worker, corresponds, within the meaning of the case-law referred to in paragraph 35 of the present judgment, to the widow’s pension paid by DRV-N and BG-V, it should be borne in mind that Regulation No 883/2004 does not establish a common system of social security and that, in the absence of harmonisation at EU level in that field, it is for each Member State to determine in its legislation, in particular, the conditions for entitlement to social benefits (see, to that effect, judgment of 11 April 2024, Sozialministeriumservice, C‑116/23, EU:C:2024:292, paragraph 61 and the case-law cited).
42 Consequently, as is rightly argued by the Czech Government and the European Commission, benefits paid following a trigger event, such as an accident at work, are likely to vary considerably from one Member State to another and overly strict requirements as to the required correspondence between the benefits provided for under the laws of the various Member States in question might deprive Article 85(1) of Regulation No 883/2004 of its practical effect.
43 It must therefore be held that the right of subrogation provided for by the legislation of a Member State for a benefit paid under that legislation, for the purposes of Article 85(1) of Regulation No 883/2004, may extend to a benefit provided for by the legislation of the Member State in whose territory the events giving rise to a trigger event, such as an accident at work, occurred, where both of those benefits are sufficiently comparable as regards their respective subject matters and purposes.
44 In the present case, it appears that the Danish and German benefits are granted following the death of a provider and are both intended to compensate close surviving family members for, inter alia, loss of earnings linked to the loss of the deceased’s income.
45 In addition, according to the referring court, Paragraph 77(1) of the Law on industrial injury insurance provides, inter alia, that the rights of survivors of injured persons against the party responsible for the injury are to be reduced to the extent that benefits have been paid or are payable to the persons concerned under that law. It follows that the subject matter and purposes of the compensation for loss of a provider may be regarded as corresponding, under Danish legislation, to those of the social benefits provided under that legislation as a result of an accident at work.
46 In those circumstances, it must be held that, subject to verification by the referring court, the two benefits at issue in the main proceedings are, as regards their subject matters and purposes, sufficiently comparable for the right of subrogation provided for in Paragraph 116 of the SGB X and referred to in Article 85(1) of Regulation No 883/2004 to be extended to the compensation for loss of a provider, subject to the limits of the ceilings laid down by Danish legislation.
47 Fourth, as regards the transitional allowance provided for by Danish law and the compensation for the non-material damage suffered, which were the subject of debate between the parties at the hearing before the Court, it is sufficient to note that the file submitted to the Court does not contain the information necessary to enable it to provide the referring court with useful information as to whether or not the subject matter and purpose of the transitional allowance are sufficiently comparable to those of the benefits paid by DRV-N and BG-V to the widow of the deceased worker. Moreover, it follows from the case-law referred to in paragraph 35 of the present judgment that the subject matter and purposes of compensation intended to compensate for the non-material damage suffered cannot be regarded as being sufficiently comparable to those of the widow’s pension paid in the present case by DRV-N and BG-V.
48 In the light of all the foregoing considerations, the answer to the question referred is that Article 85(1) of Regulation No 883/2004 must be interpreted as meaning that, where a person, under the legislation of the Member State in which he or she is resident, receives a widow’s or widower’s pension following the death of his or her spouse as a result of an accident at work which occurred in the territory of another Member State, and the legislation of the first Member State provides, with respect to the institution responsible for paying that pension, for a right of subrogation against a third party liable to provide compensation for the injury resulting from that accident at work, the recoupment action of that institution is not subject to the existence, in the second Member State, of a legal basis allowing such a pension or equivalent benefit to be obtained, in so far as it is sufficient that the benefits provided for following a trigger event, such as an accident at work, by the legislation of the Member States concerned are sufficiently comparable as regards their respective subject matter and purposes for the right of subrogation provided for by the legislation of the first Member State and referred to in Article 85(1) to be extended to the benefit provided for by the second Member State.
49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.