61981J0103

OFFICIALS - SOCIAL SECURITY - SICKNESS AND ACCIDENT INSURANCE - SUBROGATION OF THE COMMUNITIES - PREVENTION OF DOUBLE COMPENSATION FOR SAME DAMAGE

( STAFF REGULATIONS OF OFFICIALS , ART . 73 )

SINCE THE PURPOSE OF THE RIGHT OF SUBROGATION ENJOYED BY THE COMMUNITIES UNDER THE RULES OF THE INSURANCE OF OFFICIALS AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE IS TO PREVENT AN OFFICIAL FROM BEING COMPENSATED TWICE IN RESPECT OF THE SAME DAMAGE , THE INSTITUTION IS ENTITLED TO APPLY THE RULE OF SUBROGATION ONLY TO THE EXTENT TO WICH THE ALLOWANCE AWARDED BY IT RELATES TO THE SAME DAMAGE AS THE COMPENSATION OBTAINED FROM THE THIRD PARTY .

IN CASE 103/81

LILIANE CHAUMONT-BARTHEL , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , RESIDING AT ELVANGE , REPRESENTED BY ERNEST ARENDT OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE AT THE LATTER ' S CHAMBERS , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY MARTIN SCHMIDT , DIRECTOR OF PERSONNEL AND SOCIAL AFFAIRS , ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 B COTE D ' EICH ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A DECISION OF THE HEAD OF THE SOCIAL AFFAIRS DIVISION OF 24 JULY 1980 BY WHICH HE DECIDED THAT A SUM PAID TO THE APPLICANT BY AN INSURANCE COMPANY WAS SUBJECT TO SUBROGATION IN FAVOUR OF THE COMMUNITIES IN THE CONTEXT OF INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE , AND FOR AN ORDER THAT THE DEFENDANT PAY TO THE APPLICANT THE SUM OF BFR 50 000 ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 28 APRIL 1981 MRS CHAUMONT-BARTHEL , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , BROUGHT AN ACTION , ON THE ONE HAND , FOR THE ANNULMENT OF A DECISION OF THE HEAD OF THE SOCIAL AFFAIRS DIVISION OF THE PARLIAMENT OF 24 JULY 1980 DECLARING THAT DAMAGES PAID TO HER IN RESPECT OF ADVERSE EFFECT ON BODILY HEALTH BY AN INSURANCE COMPANY WERE COVERED BY SUBROGATION IN FAVOUR OF THE COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE AND , ON THE OTHER HAND , FOR AN ORDER THAT THE DEFENDANT PAY TO HER THE SUM OF BFR 50 000 , BEING THE AMOUNT OF THOSE DAMAGES .

2 THE APPLICANT WAS INVOLVED IN A ROAD-TRAFFIC ACCIDENT ON 25 MAY 1977 . SHE SUFFERED INJURIES IN RESPECT OF WHICH SHE RECEIVED COMPENSATION FROM TWO SOURCES .

3 FIRST , AFTER BECOMING A CIVIL PARTY TO CRIMINAL PROCEEDINGS AGAINST THE RESPONSIBLE THIRD PARTY , SHE WAS AWARDED , ON THE BASIS OF THE REPORT OF AN EXPERT APPOINTED BY THE COURT , DAMAGES AND INTEREST IN THE SUM OF BFR 65 000 , NAMELY BFR 15 000 FOR THE NON-MATERIAL DAMAGE IN RESPECT OF PAIN AND SUFFERING AND BFR 50 000 FOR ADVERSE EFFECT ON HER BODILY HEALTH , HAVING REGARD TO TEMPORARY TRAUMATIC CONSEQUENCES AND MINOR LONG-TERM SEQUELAE . THE COURT WAS OF THE OPINION THAT THERE WERE NO GROUNDS FOR A FINDING OF PARTIAL PERMANENT INVALIDITY .

4 SECONDLY , IN THE CONTEXT OF THE INSURANCE OF OFFICIALS AGAINST THE RISK OF ACCIDENT PROVIDED FOR BY ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS ( OFFICIAL JOURNAL L 56 , 4 . 3 . 1968 ), THE APPLICANT AGREED TO THE PROPOSAL MADE BY THE HEAD OF THE SOCIAL AFFAIRS DIVISION AND CONTAINED IN A LETTER DATED 16 JANUARY 1980 THAT SHE SHOULD BE PAID AN ALLOWANCE IN RESPECT OF PARTIAL PERMANENT INVALIDITY IN THE SUM OF BFR 292 582 , CALCULATED ON THE BASIS OF A DEGREE OF INVALIDITY OF 6% DETERMINED BY THE PARLIAMENT ' S MEDICAL OFFICER .

5 HOWEVER , THE PARLIAMENT SUBSEQUENTLY DEDUCTED FROM THAT ALLOWANCE THE SUM OF BFR 50 000 WHICH THE APPLICANT HAD RECEIVED FROM THE INSURERS OF THE RESPONSIBLE THIRD PARTY FOR ADVERSE EFFECT ON HER BODILY HEALTH , CLAIMING THAT THE SUM WAS COVERED BY THE SUBROGATION IN FAVOUR OF THE COMMUNITIES .

6 THE APPLICANT LODGED A COMPLAINT AGAINST THAT DECISION OF 2 OCTOBER 1980 . THE SECRETARY-GENERAL REJECTED THE COMPLAINT ON 29 JANUARY 1981 . THE APPLICANT BROUGHT AN ACTION UNDER ARTICLE 91 OF THE STAFF REGULATIONS ON 28 APRIL 1981 .

7 ACCORDING TO THE APPLICANT THE TWO PAYMENTS REFER TO TWO DIFFERENT KINDS OF DAMAGE , ONE NON-MATERIAL AND THE OTHER MATERIAL , AND THE COMMUNITIES ' RIGHT OF SUBROGATION SHOULD NOT APPLY IN THE CASE OF THE FORMER . ON THE OTHER HAND , THE PARLIAMENT MAINTAINS THAT THE TWO PAYMENTS COMPENSATE THE APPLICANT FOR ADVERSE EFFECTS ON HER BODILY HEALTH AND THAT IT WAS THEREFORE ENTITLED TO DEDUCT THE SUM OF BFR 50 000 IN ORDER TO PREVENT THE APPLICANT FROM BEING COMPENSATED TWICE IN RESPECT OF THE SAME DAMAGE .

8 IN ORDER TO BE ABLE TO DECIDE THE ISSUE BETWEEN THE PARTIES , IT IS NECESSARY TO PLACE IT ON THE CONTEXT OF THE PROVISIONS OF THE STAFF REGULATIONS WHICH ARE RELEVANT IN THIS CASE .

9 THE RULES OF THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE ( HEREINAFTER REFERRED TO AS ' ' THE RULES ' ' ), ADOPTED PURSUANT TO ARTICLE 73 OF THE STAFF REGULATIONS , STATE THE BENEFITS WHICH MAY BE AWARDED TO OFFICIALS IN THE EVENT OF ACCIDENT . ARTICLE 12 ( 2 ) OF THE RULES PROVIDES FOR THE PAYMENT OF A LUMP SUM TO AN OFFICIAL IN THE EVENT OF PARTIAL PERMANENT INVALIDITY . ARTICLE 14 OF THE RULES PROVIDES FOR AN ALLOWANCE , DETERMINED BY ANALOGY WITH THE RATES LAID DOWN IN THE INVALIDITY SCALE REFERRED TO IN ARTICLE 11 , ' ' IN RESPECT OF ANY INJURY OR PERMANENT DISFIGUREMENT WHICH ALTHOUGH NOT AFFECTING HIS CAPACITY FOR WORK , CONSTITUTES A PHYSICAL DEFECT AND HAS AN ADVERSE EFFECT ON HIS SOCIAL RELATIONS ' ' .

10 AS REGARDS SUBROGATION , THE RELEVANT PROVISION AT THE TIME OF THE ACCIDENT WAS ARTICLE 8 OF THE RULES ACCORDING TO WHICH THE BENEFITS AND ALLOWANCES PROVIDED FOR ARE TO 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 . ON 1 JULY 1977 THE APPLICANT SIGNED A FORM OF SUBROGATION BY WHICH SHE SUBROGATED THE COMMUNITIES TO ALL HER RIGHTS OF REDRESS AGAINST THE RESPONSIBLE THIRD PARTY BOTH AS REGARDS THE BENEFITS , ALLOWANCES AND REIMBURSEMENTS PAID TO HER UNDER ARTICLES 72 , 73 AND 75 OF THE STAFF REGULATIONS AND AS REGARDS THE SALARY PAID TO HER DURING HER PERIODS OF INCAPACITY FOR WORK .

11 THE PARTIES ARE AGREED THAT THE PURPOSE OF THE RIGHT OF SUBROGATION ENJOYED BY THE COMMUNITIES IS TO PREVENT AN OFFICIAL FROM BEING COMPENSATED TWICE IN RESPECT OF THE SAME DAMAGE .

12 IT IS THEREFORE NECESSARY TO EXAMINE THE TWO PAYMENTS RECEIVED BY THE APPLICANT IN ORDER TO DETERMINE WHETHER OR NOT THEY COVER THE SAME DAMAGE . IT IS APPARENT FROM THE LETTER FROM THE HEAD OF THE SOCIAL AFFAIRS DIVISION OF 16 JANUARY 1980 THAT , AS WAS CONFIRMED AT THE HEARING , THE ALLOWANCE PAID BY THE PARLIAMENT RELATED ONLY TO THE PARTIAL PERMANENT INVALIDITY DETERMINED BY THE INSTITUTION ' S MEDICAL OFFICER . THAT ALLOWANCE COMES UNDER ARTICLE 12 OF THE RULES .

13 THE COMPENSATION AWARDED TO THE APPLICANT BY THE NATIONAL COURT IS BASED ON THE FINDINGS OF THE EXPERT WHOM IT HAD COMMISSIONED AND WHO EXPRESSLY RULED OUT ANY PARTIAL PERMANENT INVALIDITY BUT , ON THE OTHER HAND , PROPOSED COMPENSATION OF BFR 50 000 FOR ADVERSE EFFECT ON BODILY HEALTH . THAT COMPENSATION COMES UNDER ARTICLE 14 OF THE RULES .

14 IN THESE CIRCUMSTANCES AND IN THE LIGHT OF THE FOREGOING IT IS APPARENT THAT THE PARLIAMENT DID NOT AWARD AN ALLOWANCE IN RESPECT OF THE SAME DAMAGE AS THAT IN RESPECT OF WHICH COMPENSATION WAS AWARDED BY THE COURT . IN THESE CIRCUMSTANCES THE PARLIAMENT WAS NOT ENTITLED TO APPLY THE RULE OF SUBROGATION AND OUGHT THEREFORE TO HAVE PAID THE ALLOWANCE AWARDED WITHOUT DEDUCTION . THE CONTESTED DECISION MUST THEREFORE BE ANNULLED AND THE PARLIAMENT MUST BE ORDERED TO PAY TO THE APPLICANT THE SUM OF BFR 50 000 .

15 INTEREST ON THIS SUM AT THE RATE OF 6% PER ANNUM SHOULD ALSO BE PAID AS FROM 24 JULY 1980 .

COSTS

16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

17 AS THE PARLIAMENT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE HEAD OF THE SOCIAL AFFAIRS DIVISION OF THE PARLIAMENT OF 24 JULY 1980 ;

2.ORDERS THE PARLIAMENT TO PAY TO THE APPLICANT THE SUM OF BFR 50 000 TOGETHER WITH INTEREST AT THE RATE OF 6% PER ANNUM AS FROM 24 JULY 1980 UNTIL THE DATE OF ACTUAL PAYMENT ;

3.ORDERS THE PARLIAMENT TO PAY THE COSTS .