61987J0308

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1 . Non-contractual liability - Conditions - Unlawfulness - Harm - Causal link

( Euratom Treaty, Arts 151 and 188, second paragraph )

2 . Non-contractual liability - When work is carried out on a building, the Community may be liable in the event of non-compliance with the local provisions concerning the prevention of industrial accidents - Victim' s fault contributed to bringing about the accident - Shared responsibility - Community required to pay compensation in proportion to its share of responsibility

( Euratom Treaty, Arts 151 and 188, second paragraph )

1 . The Community' s non-contractual liability and the right to compensation for damage suffered depend on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the institution, the fact of damage, and the existence of a direct link in the chain of causality between the wrongful act and the damage complained of .

2 . In the event that, when work is carried out on a building, the Community is liable pursuant to the second paragraph of Article 188 of the Euratom Treaty because it failed to comply with the local rules concerning the prevention of industrial accidents, but the victim contributed in part to bringing about the damage he suffered by failing to exhibit the necessary care, responsibility must be shared and the Community is to be required to pay compensation only in proportion to its share of the responsibility .

In Case C-308/87

Alfredo Grifoni, proprietor of an undertaking of the same name, of Via G . Galilei, Ispra, Varese ( Italy ), represented and assisted by Michele Tamburini and Franco Colussi, of the Milan Bar, with an address for service in Luxembourg at the office of the latter, 36 rue de Wiltz,

applicant,

v

European Atomic Energy Community ( EAEC ), represented by the Commission of the European Communities, defended by Sergio Fabro, a member of its Legal Department, acting as Agent, assisted by Paolo de Caterini, of the Rome Bar, with an address for service at the office of Georgios Kremlis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that the European Atomic Energy Community is liable for the damage suffered by the applicant as the result of an accident of which he was the victim and that, consequently, the European Atomic Energy Community should pay compensation for that damage,

THE COURT ( Sixth Chamber )

composed of : C . N . Kakouris, President of Chamber, T . Koopmans, G . F . Mancini, T . F . O' Higgins, M . Diez de Velasco, Judges,

Advocate General : G . Tesauro

Registrar : H . A . Ruehl, Principal Administrator

having regard to the Report for the Hearing,

having heard oral argument presented by the representatives of the parties at the hearing on 7 November 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 12 December 1989,

gives the following

Judgment

1 By an application lodged at the Court Registry on 9 October 1987, Alfredo Grifoni, the proprietor of an undertaking providing sheet-metal and iron-work services, brought an action for damages under Article 151 and the second paragraph of Article 188 of the Treaty establishing the European Atomic Energy Community ( Euratom Treaty ) against the European Atomic Energy Community, represented by the Commission of the European Communities . That action seeks a declaration that the Commission is liable for the damage suffered by the applicant as the result of an accident which occurred on the premises of the Commission' s Joint Research Centre at Ispra ( hereinafter referred to "the Centre ") and, consequently, that the Commission should pay compensation for the damage .

2 Alfredo Grifoni claims that, as the successful tenderer in a tendering procedure for the performance of certain sheet-metal and iron work to be carried out at the Centre' s meteorological station, he went to the Centre' s premises on 20 October 1985 and, accompanied by an official of the Centre, went up on to the flat roof of the meteorological station, at a height of approximately 4.50 metres, in order to take measurements . He fell and suffered serious physical injury .

3 Alfredo Grifoni maintains that under the second paragraph of Article 188 of the Euratom Treaty the Commission is responsible for the accident since it failed to take the necessary safety measures to prevent the accident .

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

5 Under the second paragraph of Article 188 of the Euratom Treaty, which concerns non-contractual liability, the Community must make good, in accordance with the general principles common to the laws of the Member States, any damage caused by its institutions or by its servants in the performance of their duties .

6 The Court has consistently held that the Community' s non-contractual liability and the right to compensation for damage suffered depend on the coincidence of a set of conditions as regards the unlawfulness of the acts alleged against the institution, the fact of damage, and the existence of a direct link in the chain of causality between the wrongful act and the damage complained of ( see, in particular, the judgment of 4 March 1980 in Case 49/79 Pool v Council (( 1980 )) ECR 569 ).

7 In the present case the fact of damage is undisputed . It is therefore necessary to consider whether the Commission' s acts were unlawful and whether there is a direct link in the chain of causality between those acts and the damage suffered by Alfredo Grifoni .

8 With regard to the acts alleged against the Commission, it must be pointed out first of all that any Community institution which carries out work for the construction or maintenance of buildings is under an obligation to comply with the provisions concerning the prevention of industrial accidents applicable at the place where the work is carried out . Consequently, with regard to the work carried out at the Ispra Centre, the Commission was required to comply with the provisions of the Italian legislation in that field .

9 Moreover, the obligation to comply with the Italian legislation is expressly provided for in Article 31 of Annex F to the Agreement of 22 July 1959 between the Italian Republic and the European Atomic Energy Community, implemented by Law No 906 of 1 August 1960 relating to the adoption and implementation of the agreement between the Italian Government and the European Atomic Energy Community ( Euratom ) for the setting up of a joint nuclear research centre of general competence, concluded in Rome on 22 July 1959 ( Gazzetta ufficiale della Repubblica italiana ( GURI ) No 212, 31.8.1960 ); that article provides that the Commission is exclusively responsible for applying the Italian laws relating to health and safety at work .

10 The Commission claims that Article 31 of Annex F to the Agreement, cited above, is not applicable in the present case because it concerns employment relationships between the Centre and some of its own employees, whereas Alfredo Grifoni was not an employee of the Centre .

11 That argument cannot be accepted . The Italian safety rules which the Commission is required to comply with pursuant to the aforesaid provision are intended to protect all those who are exposed to the risk of a fall on the premises of the Centre .

12 It must be pointed out that the Italian industrial accident legislation includes, in particular, Article 10 of Presidential Decree No 164 of 7 January 1956, relating to the rules for the prevention of industrial accidents in the construction industry ( GURI No 78, 31.3.1956 ), pursuant to which the Commission is under an obligation to supply those carrying out work involving the risk of a fall with a suitable safety harness, and Articles 26 and 27 of Presidential Decree No 547 of 27 April 1955, relating to the rules for the prevention of industrial accidents ( GURI No 158, 12.7.1956 ), which requires the Commission to install a protective rail at worksites above ground level .

13 The documents before the Court show that in the present case the Commission failed to take the safety measures prescribed by the Italian legislation referred to above, in order to prevent those working on the Centre' s flat roof from falling .

14 It must therefore be concluded that the Commission, having failed to show due diligence with regard to the safety measures necessary to prevent the accident of which the applicant was the victim, has acted unlawfully .

15 As regards the causal link between the Commission' s failure to take the necessary measures and the applicant' s fall, the Commission claims that the damage suffered by Alfredo Grifoni is entirely attributable to his own negligence .

16 That submission can be accepted only in part . The Commission' s failure to take the abovementioned safety measures did indeed contribute to bringing about the damage, but the applicant also failed to exhibit the necessary care for his own safety when carrying out his work, which at that time consisted in taking measurements . As the successful tenderer and a specialist in the field, Alfredo Grifoni ought to have taken the requisite precautions and refused, if necessary, to take the measurements before the safety measures had been implemented .

17 In those circumstances, the damage suffered was caused not exclusively by the conduct of the Commission but also by that of the applicant who, even though he could have prevented the accident had he taken the necessary care, did not do so and therefore partly contributed to bringing it about . Consequently, responsibility must be shared equally between the parties .

18 It follows from all the foregoing that the Commission must be ordered to pay compensation, to the amount of 50%, for the damage suffered by the applicant as a result of the accident of which he was the victim in the abovementioned circumstances . The amount of compensation should be determined by common accord of the parties or, failing that, by the Court .

On those grounds,

THE COURT ( Sixth Chamber )

hereby :

( 1 ) Orders the Commission to pay compensation, to the amount of 50%, for the damage suffered by the applicant as the result of his fall from the flat roof of the meteorological station of the Joint Research Centre at Ispra;

( 2 ) Dismisses the remainder of the application;

( 3 ) Orders the parties to submit to the Court, within six months of the delivery of the judgment, a detailed calculation of the amount of compensation established by common accord;

( 4 ) Orders that, failing such agreement, the parties shall submit to the Court, within the same period, their own assessments, with supporting figures;

( 5 ) Reserves the costs .