1)

for the annulment of the decision of the Council of Ministers rejecting the claim by implication after the lapse of the two months since the claim was lodged and in so far as was necessary also for the annulment of the express decision of 10 April 1970;

(2)

for a declaration that she and her children had a right to payment of the sum mentioned in Article 73 (2)(a) of the Staff Regulations;

(3)

for an order that the Council of Ministers pay this sum and the corresponding interest.

‘1.

An official is, from the date of his entry into the service, insured against the risk of occupational disease or accidents in the manner provided for in rules drawn up by common agreement of the Institutions of the Communities after consulting the Staff Regulations Committee. He shall contribute to the cost of insuring against nonoccupational risks up to 0.1 % of his basic salary.

…

2.

The benefits payable shall be as follows:

…’

1.

In this case, the first question to be asked is whether in the case of an accident there exists, as the applicant maintains, a direct claim for benefits against the Council of Ministers as employer or whether the rules at present in existence solely give rights against the insurance companies. This question was not clearly put at the beginning of the case. However in the second pleading of the Council of Ministers great stress was laid on it. In this pleading it is stated that the applicant at most has a claim for payment against the the insurance company but not in respect of the Council of Ministers. Similar arguments were also presented in the oral proceedings.

To answer this question correctly we must analyse carefully the text and the scheme of Articlie 73, make comparisons with provisions which were previously in force and also examine the principles of national law. Thus it is clear that it is of no great significance that the German text of Article 73 speaks of Sicherung (protection) of officials. More precise conclusions can be made from the French text which uses the word ‘couvert’ (covered). The word is also used in Article 72 of the Staff Regulations in respect of compensation for expenses incurred in case of sickness, that is, in respect of claims which are certainly directed against the competent institution itself. This permits one to conclude that Article 73 also refers to a direct claim against an institution. This becomes even clearer from the text of Article 73 (2) which states that benefits are ‘payable’ (‘garantiert’), in the event of death a lump sum is to be ‘paid’ (zahlen), and that ‘an annuity may be substituted for the payments provided for above’ and also ‘the benefits listed above may be paid (gewahrt) in addition to the benefits provided for in Chapter 3’. This all points to the existence of a direct claim against the institution as also do the rules relating to reimbursement in paragraph 3 which ought to be regarded as part of a coherent system. Moreover comparison with Article 23 of the earlier Staff Regulations of the European Coal and Steel Community brings support for this theory and argues against the view that direct claims only exist against the insurance companies. In that Article it is in fact clearly provided that the official is insured (versichert), reference is made to insurance protection (Versicherungsschutz), to risks not covered by the insurance (Versicherung) as provided by the general conditions of the insurance contract (Versicherungsvertrages) and of the benefits provided by the insurance (Versicherung). As a different formulation was chosen in Article 73 of the present Staff Regulations, the conclusion may certainly be drawn that not solely insurance claims were intended. In addition to these arguments drawn from the wording there are also considerations relating to the sense of the provisions which are certainly of some force. It appears to me important that Article 73 of the Staff Regulations does not differentiate between cover against occupational disease and accident and cover against non-accidental accidents. Further it is not to be expected that the rules to be adopted by the institutions will make great changes with regard to the essential problems of rights and obligations. If one considers the principles of national law relating to public officials ( 2 ) in respect of occupational accident and sickness, it becomes clear that the view that there is no direct right against the employer and that officials and those deriving rights through them can be referred only to private insurance companies is untenable. In view of this, and also in view of the fact that as mentioned above Article 73 makes no distinction, the conclusion may indeed be drawn that non-occupational accidents are to be regarded according to the same principles. In addition reference should be made to the requirement of equality of treatment which is an important principle in the law relating to public officials. It would be difficult to reconcile rules which vary from institution to institution with this principle. Such a situation could be produced if the consequences of accidents could be governed (so long as the common implementing rules provided for by Article 73 are not yet formulated) by reference to the insurance contracts concluded by each institution which may vary considerably. Finally the employer's welfare obligations (Fürsorgepflicht) which is largely a German legal concept, must not be forgotten. In my opinion this is hardly to be reconciled with the fact that officials, for whom the Staff Regulations provide for compulsory cover of non-occupational accident risks and who are also under an obligation to make contributions to their employer in this respect, could be referred, for the purposes of dealing with the results of an accident, to a group of insurance companies established in different states whose composition is changing and who are not jointly and severally liable and be bound by an arbitration clause whereby, as provided in the insurance policy, recourse to the courts of law is excluded.

For all these reasons, the question raised should be answered to the effect that, contrary to the opinion of the Council of Ministers and in accordance with the opinion of learned writers, ( 3 ) Article 73 of the Staff Regulations gives officials and their survivors a direct right against the competent community authority. We can here leave open the question whether there are also additional claims against insurance companies, possibly on the basis of a contract under private law in favour of a third party, since the applicant has expressly and exclusively relied on Article 73 of the Staff Regulations.

2.

It becomes clear from reading Article 73 of the Staff Regulations that it does not contain very comprehensive rules in respect of claims for benefit and their details. For this reason provision was made for the adoption of implementing rules. Since these provisions have not yet been adopted and since, as we have mentioned, it appears unacceptable to refer those who have rights to the insurance companies and thus to exclude any claim on the basis of Article 73 there remain only two means of dealing with the problem caused by Article 73's being incomplete. One possibility would be, for an interim period, to give each institution the power to adopt its own rules, a power which could be used where appropriate by entering into an insurance contract which would be deemed to be implementing rules for the purposes of Article 73 once the contents of the policy had been notified to those with rights under that Article. The other possibility would be to refer to the general legal principles drawn from the laws of the individual Member States in order to fill the gaps which have become apparent.

I must straight away state that in my opinion the first mentioned possibility must be excluded. It is unacceptable not only in view of the time that has elapsed since the adoption of the Staff Regulations and because of the non-observance of the procedural requirements set out in Article 73; above all it cannot be considered because it takes no account of an essential principle of the law relating to public servants, that is, equality of treatment. The second possibility is all the more suitable as it corresponds with a quite customary method of finding the legal principles applicable in a given situation (‘Rechtsfindung’) in the Communities, a method which is for example expressly stipulated in the second paragraph of Article 215 of the EEC Treaty relating to an area of law which has not been without its problems, that is the non-contractual liability of the Community institutions for acts carried out in the performance of their duties. In the present case at least, there can be no doubts about adopting this solution, because only two problems have appeared from the arguments relating to Article 73: first, the question of the concept of ‘accident’ and on the other hand that of the burden of proof. Examination will show that the solution does not present insurmountable difficulties if this method is used. I shall not look at the matter in greater detail.

3.

Finally let us attempt to apply these results to the present situation, that is to try to decide whether we can regard it as proved that the death of the applicant's husband was caused by suicide. As you know the defendant Council of Ministers brought many arguments in favour of the suicide theory. It referred to the statement made by the brother of the deceased to the police where he speaks of nervous depression and also that the brother was probably ‘a victim of an irrational impulse’. It further stated that the applicant's husband had been ill for a long time, that he had undergone examination in a neurological clinic and that his relatives had endeavoured never to leave him alone. The applicant on the other hand disputes the contention that her husband was never left alone and states that the contrary is clear from the fact that in January 1969 he made a journey to Poitiers on his own and that on the evening of 20 February 1969 he left the house of his parents on his own. Further the applicant emphasized that her husband had only spent three days in a neurological clinic, in the past no bills for neurological treatment of any substance had been submitted for reimbursement, only a light sedative was found in the pocket of the deceased (which argues against serious illness) and her husband had left no message behind which would lead to the conclusion of an intention to commit suicide. Further arguments against such an intention are the fact that the applicant's husband was an excellent swimmer and that before his disappearance he had asked for the evening meal to be prepared. Finally there is another circumstance in favour of the accident theory that at the relevant time the banks of the Rhone were covered with ice (which the applicant shows by the meteorological records of the airport at Lyon-Bron).

What conclusions can be drawn from all this? In my opinion the first is that there cannot be accepted to be sufficient substantial evidence in favour of the theory advocated by the Council of Ministers and that the existence of suicide cannot be regarded as proven. On the other hand I also can see no grounds for accepting the applicant's claim at this stage since as we have seen there are still disputed points of some importance which need to be cleared up. Moreover it is perhaps possible that a further measure of inquiry would throw more light on certain circumstances (for example, the state of the applicant's husband before his disappearance, in particular his alleged nervous depressions and the details of the medical treatment).

Further in my opinion there are no procedural obstacles in the way of such a clarification. It is true that the parties have so far only made general offers of proof; however it should be possible to make them retrospectively more specific. Article 42 (1) of the Rules of Procedure of this Court only provide that reasons should be given for the delay in indicating further evidence and in the present case the novel and uncertain legal situation can certainly be regarded as a suitable explanation for the fact that evidence was not offered at an earlier stage. In addition in public law cases like the present one, the Court plainly has the power to order measures of inquiry of its own motion. This accords with the principle that in proceedings of this nature there is strictly speaking no individual burden of proof but rather an obligation, in fact on both parties, to co-operate effectively to discover the facts.

4.

In these circumstances and because I believe that the legal principles relating to Article 73 of the Staff Regulations which we have deduced can hardly be adapted for an interim judgment I cannot formulate an opinion with a suggested judgment as I do in other cases. I merely stress my view that the case must be regarded as one in need of further clarification, and therefore recommend that the parties should be required to submit offers of proof for the justification of their arguments. When these are received an order may be made stipulating the exact points which the parties are required to prove.