61981J0131

1 . OFFICIALS - APPLICATIONS TO THE COURT - ACTION FOR DAMAGES - INJURY SUSTAINED BY THE CHILD OF AN EMPLOYEE - ACCIDENT AT A HOLIDAY CAMP ORGANIZED BY THE DEFENDANT INSTITUTION AS PART OF ITS DUTIES AS AN EMPLOYER - JURISDICTION OF THE COURT

( EEC TREATY , ART . 179 )

2 . OFFICIALS - APPLICATIONS TO THE COURT - NON-CONTRACTUAL LIABILITY OF THE DEFENDANT INSTITUTION - ORGANIZATION OF HOLIDAY CAMPS FOR THE CHILDREN OF ITS EMPLOYEES - ACCIDENT INSURANCE ARRANGED BY THE INSTITUTION - FULL COMPENSATION FOR A CHILD ' S MATERIAL AND AESTHETIC INJURIES - DUTY OF THE INSTITUTION

( EEC TREATY , ART . 179 ; STAFF REGULATIONS OF OFFICIALS , ARTS . 90 AND 91 )

3 . OFFICIALS - APPLICATIONS TO THE COURT - ACTION FOR DAMAGES - ORGANIZATION BY THE DEFENDANT INSTITUTION OF HOLIDAY CAMPS FOR THE CHILDREN OF ITS EMPLOYEES - ACCIDENT INSURANCE ARRANGED BY THE INSTITUTION - ACTION SEEKING COMPENSATION FOR A CHILD ' S NON-MATERIAL INJURIES - INADMISSIBILITY

( EEC TREATY , ART . 179 )

1 . AMONG THE RIGHTS AND DUTIES ARISING FROM THE EMPLOYMENT RELATIONSHIP BETWEEN AN INSTITUTION AND ITS EMPLOYEES IS THE DUTY OF THE EMPLOYER TO PROVIDE FOR ITS EMPLOYEES VARIOUS SERVICES OF A SOCIAL NATURE , SOME OF WHICH ARE DISTINGUISHED BY THE FACT THAT THEY ARE INTENDED FOR THE BENEFIT OF NOT ONLY THE EMPLOYEE BUT ALSO THE MEMBERS OF HIS FAMILY .

WHEN , IN THE CONTEXT OF THE RIGHTS AND DUTIES ARISING FROM THE EMPLOYMENT RELATIONSHIP , THE INSTITUTION HAS ORGANIZED HOLIDAY CAMPS AND OFFERED AN EMPLOYEE THE OPPORTUNITY OF SENDING HIS CHILD TO SUCH A CAMP , THE COURT HAS UNQUESTIONABLY JURISDICTION UNDER ARTICLE 179 OF THE TREATY TO DECIDE A DISPUTE BETWEEN THE INSTITUTION AND THE EMPLOYEE AS TO THE INSTITUTION ' S LIABILITY FOR THE CONSEQUENCES OF AN ACCIDENT SUSTAINED IN SUCH A CAMP BY THE EMPLOYEE ' S CHILD .

2 . WHEN AN INSTITUTION UNDERTAKES TO ORGANIZE HOLIDAY CAMPS FOR THE CHILDREN OF ITS EMPLOYEES AND TO ARRANGE INSURANCE FOR THE CHILDREN TO COVER THE INJURY RESULTING FROM ANY ACCIDENT WHICH THEY MAY SUSTAIN IN SUCH CAMPS , IT HAS A DUTY TO ENSURE THAT HOLIDAYS IN THOSE CAMPS TAKE PLACE UNDER THE APPROPRIATE CONDITIONS AND THAT IF AN ACCIDENT OCCURS COMPENSATION WILL BE PROVIDED IN FULL . IF THE INSTITUTION FAILS TO DO SO ITS CONDUCT MUST BE REGARDED AS A WRONGFUL ACT OR OMISSION FOR WHICH IT IS LIABLE .

3 . COMPENSATION FOR NON-MATERIAL INJURY SUSTAINED BY THE CHILD OF AN EMPLOYEE AS THE RESULT OF AN ACCIDENT AT A HOLIDAY CAMP ORGANIZED BY AN INSTITUTION IN THE CONTEXT OF THE EMPLOYMENT RELATIONSHIP CANNOT BE THE SUBJECT-MATTER OF AN APPLICATION TO THE COURT BY THE CHILD ' S FATHER IN HIS CAPACITY AS AN EMPLOYEE ON THE BASIS OF HIS EMPLOYMENT RELATIONSHIP WITH THE INSTITUTION UNDER THE STAFF REGULATIONS .

IN CASE 131/81

MARIO BERTI , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , IN HIS CAPACITY AS LEGAL REPRESENTATIVE OF HIS SON PAOLO , A MINOR , RESIDING IN BRUSSELS , REPRESENTED AND ASSISTED BY EMILE DRAPPIER OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , CENTRE LOUVIGNY , 34B IV RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION IN THE TERMS SET OUT IN THE APPLICANT ' S CONCLUSIONS ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 27 MAY 1981 MARIO BERTI , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION SEEKING COMPENSATION FOR MATERIAL , NON-MATERIAL AND AESTHETIC INJURIES RESULTING FROM AN ACCIDENT SUSTAINED BY HIS SON PAOLO ON 7 APRIL 1971 .

2 IT IS APPARENT FROM THE DOCUMENTS BEFORE THE COURT THAT , THE DIRECTOR GENERAL FOR PERSONNEL AT THE COMMISSION INFORMED OFFICIALS AND OTHER EMPLOYEES BY A STAFF MEMORANDUM OF 5 FEBRUARY 1971 THAT , ' ' AS IN PREVIOUS YEARS , HOLIDAY CAMPS WILL BE ORGANIZED FOR CHILDREN DURING THE EASTER SCHOOL HOLIDAYS OF 1971 ' ' . THE MEMORANDUM STATED THAT THERE WERE THREE HOLIDAY CENTRES TO CHOOSE FROM , THAT THE COST OF THE STAY WAS TO BE PAID BY MEANS OF A DEDUCTION FROM SALARY AFTER ALLOWING FOR THE COMMISSION ' S FINANCIAL CONTRIBUTION , WHICH WAS TO DEPEND ON THE AMOUNT OF THE SALARY , AND THAT THE COST INCLUDED TRAVEL AND INSURANCE .

3 THE COMMISSION HAD ARRANGED INSURANCE COVER FOR CIVIL LIABILITY AND PERSONAL ACCIDENTS WITH THE COMPAGNIE D ' ASSURANCES GENERALES MERCATOR ( HEREINAFTER REFERRED TO AS ' ' MERCATOR ' ' ), BUT THE CONTENT OF THE POLICIES , AS BECAME APPARENT IN THE COURSE OF THE PROCEEDINGS , WAS NOT DISCLOSED TO THE OFFICIALS AND OTHER EMPLOYEES CONCERNED .

4 IN RESPONSE TO THE COMMISSION ' S OFFER THE APPLICANT APPLIED FOR HIS SON , THEN AGED SEVEN , TO GO TO THE HOLIDAY CENTRE KNOWN AS ' ' LA PETITE MERVEILLE ' ' AT DURBUY IN THE BELGIAN ARDENNES , WHICH WAS RESERVED FOR CHILDREN AGED BETWEEN SIX AND FOURTEEN AND HAD ONE ASSISTANT FOR EVERY TEN CHILDREN ; THE CENTRE WAS DIRECTED AND MANAGED BY A TEACHING COUPLE . THE CENTRE HAD ARRANGED INSURANCE WITH LA ROYALE BELGE , BUT THE COMMISSION WAS UNABLE TO PRODUCE A COPY OF THE POLICY .

5 ON 7 APRIL 1971 , DURING HIS STAY AT THE HOLIDAY CAMP , THE APPLICANT ' S SON FELL WHILE PLAYING IN THE PLACE DE LA FOIRE ( TOWN SQUARE ) AT DURBUY AND WAS HIT ON THE HEAD BY A MOVING SWING . THE ACCIDENT FRACTURED HIS UPPER JAW , BROKE FOUR PERMANENT TEETH AND INJURED HIS FACE .

6 IT APPEARS THAT NO ISSUE HAS BEEN RAISED CONCERNING THE PLAYING EQUIPMENT IN DURBUY TOWN SQUARE , WHICH IS OWNED BY THE COMMUNE OF THAT TOWN .

7 THE MANAGEMENT OF THE HOLIDAY CENTRE NOTIFIED THE ACCIDENT TO ITS OWN INSURERS , LA ROYALE BELGE , STATING IN THE ACCIDENT DECLARATION THAT WHEN THE ACCIDENT OCCURRED THE LITTLE BOY WAS PLAYING WITH ABOUT TWENTY OTHER CHILDREN UNDER THE SUPERVISION OF TWO ASSISTANTS .

8 ACCORDING TO THE INFORMATION SUPPLIED BY THE COMMISSION DURING THE PROCEEDINGS , THE HOLIDAY CENTRE ' S INSURANCE COVERED THE MEDICAL EXPENSES FOR THE FIRST SIX MONTHS AFTER THE ACCIDENT , WITH THE EXCEPTION OF THE PORTION ALREADY REIMBURSED TO THE CHILD ' S FATHER UNDER THE SOCIAL SECURITY SCHEME FOR OFFICIALS AND OTHER EMPLOYEES OF THE COMMUNITY INSTITUTIONS .

9 THE COMMISSION , FOR ITS PART , NOTIFIED THE ACCIDENT BY TELEX MESSAGE OF 14 APRIL 1971 TO ITS INSURERS , MERCATOR , WHICH SUBSEQUENTLY REFUNDED THE ABOVE-MENTIONED EXPENSES TO LA ROYALE BELGE . NO FURTHER ACTION WAS TAKEN WITH REGARD TO COMPENSATION FOR THE DAMAGE RESULTING FROM THE ACCIDENT EITHER BY THE COMMISSION OR BY THE TWO INSURERS REFERRED TO ABOVE .

10 THE SPECIALISTS CONSULTED BY THE FATHER TO TREAT HIS CHILD REPORTED TOWARDS THE END OF 1976 THAT THE INJURY SUSTAINED BY THE CHILD AS A RESULT OF THE ACCIDENT , NOW CONSOLIDATED , CONSISTED IN THE LOSS OF FOUR UPPER PERMANENT INCISOR TEETH , NECESSITATING A PROSTHESIS . THE PROSTHESIS COULD NOT BE PERMANENTLY FITTED UNTIL THE CHILD HAD ATTAINED THE AGE OF EIGHTEEN , AND THEREFORE UNTIL THAT TIME TEMPORARY REMOVABLE PROSTHESES WOULD BE REQUIRED .

11 MR BERTI ' S LAWYER THEREFORE REQUESTED THE COMMISSION TO REIMBURSE THE COST OF THE PROSTHESES AND TO PROVIDE COMPENSATION FOR THE NON-MATERIAL AND AESTHETIC INJURIES SUFFERED BY THE CHILD . HOWEVER , MERCATOR INFORMED THE COMMISSION THAT NON-MATERIAL AND AESTHETIC INJURIES WERE NOT COVERED BY THE POLICY AND THAT AS FAR AS THE OTHER CLAIM WAS CONCERNED IT CONSIDERED THAT THE COMMISSION WAS NOT LIABLE . THEREUPON , THE COMMISSION , AGREEING WITH THAT ASSESSMENT , SUGGESTED TO MR BERTI THAT ' ' THE CASE BE CONSIDERED CLOSED ' ' .

12 THE APPLICANT DECLINED AND SUBMITTED A NEW AND FORMAL REQUEST FOR COMPENSATION PURSUANT TO ARTICLE 90 OF THE STAFF REGULATIONS . SINCE HIS COMPLAINT AGAINST THE IMPLIED DECISION REJECTING HIS REQUEST REMAINED UNANSWERED , HE BROUGHT THIS ACTION .

JURISDICTION

13 THE COMMISSION RAISES THE OBJECTION THAT THE COURT OF JUSTICE HAS NO JURISDICTION TO ENTERTAIN THE ACTION , MAINTAINING IN THE FIRST PLACE THAT IT FALLS OUTSIDE THE SCOPE OF THE PROVISIONS ON WHICH IT IS BASED , ARTICLE 179 OF THE EEC TREATY AND ARTICLE 91 OF THE STAFF REGULATIONS . THE DISPUTE IS BETWEEN THE COMMISSION AND A THIRD PARTY , NAMELY THE APPLICANT ' S SON , WHO IS NEITHER AN OFFICIAL NOR A SERVANT , AND THE APPLICATION CONCERNS NOT THE ANNULMENT OF AN UNLAWFUL MEASURE ADOPTED BY THE COMMISSION ADVERSELY AFFECTING ONE OF ITS OFFICIALS , BUT THE COMMISSION ' S NON-CONTRACTUAL LIABILITY FOR THE WRONGFUL ACT OR OMISSION OF PERSONS ALLEGED TO BE ITS AGENTS .

14 THE DEFENDANT MAINTAINS IN THE SECOND PLACE THAT EVEN IF THERE IS CONSIDERED TO BE A PRIVATE CONTRACT BETWEEN IT AND ITS STAFF FOR THE PURPOSE OF SENDING THE CHILDREN OF THE LATTER TO HOLIDAY CAMPS , THE COURT HAS NO JURISDICTION IN THAT MATTER SINCE THE ALLEGED CONTRACT CONTAINS NO ARBITRATION CLAUSE WITHIN THE MEANING OF ARTICLE 181 OF THE EEC TREATY . THE COMMISSION ' S VIEW IS THAT THE ACTION OUGHT IN ANY CASE TO HAVE BEEN BROUGHT BEFORE THE BELGIAN COURTS .

15 IT MUST BE REMEMBERED , HOWEVER , THAT AMONG THE RIGHTS AND DUTIES ARISING FROM THE EMPLOYMENT RELATIONSHIP BETWEEN THE COMMISSION AND ITS OFFICIALS AND OTHER EMPLOYEES IS THE DUTY OF THE EMPLOYER TO PROVIDE FOR ITS EMPLOYEES VARIOUS SERVICES OF A SOCIAL NATURE , SOME OF WHICH ARE DISTINGUISHED BY THE FACT THAT THEY ARE INTENDED FOR THE BENEFIT OF NOT ONLY THE OFFICIAL OR EMPLOYEE BUT ALSO THE MEMBERS OF HIS FAMILY .

16 IT WAS PRECISELY IN THAT CONTEXT THAT THE COMMISSION ORGANIZED THE HOLIDAY CAMPS IN QUESTION AND OFFERED MEMBERS OF STAFF THE OPPORTUNITY OF SENDING THEIR CHILDREN THERE . THAT IS CLEAR FROM THE STAFF MEMORANDUM REFERRED TO ABOVE . THE COMMISSION STATES THAT IT MADE USE OF SERVICES PROVIDED BY PRIVATE UNDERTAKINGS AND ITSELF MERELY ACTED AS AN INTERMEDIARY BETWEEN THOSE UNDERTAKINGS AND THE PARENTS CONCERNED . NEVERTHELESS , IT WAS THE COMMISSION WHICH , AFTER CAREFUL INSPECTION , SELECTED THE HOLIDAY CENTRES NAMED IN THE STAFF MEMORANDUM , WHEREAS THE CHILDREN ' S PARENTS HAD NO CONTACT WHATSOEVER WITH THE UNDERTAKINGS , AND WERE EVEN UNAWARE OF THEIR IDENTITY .

17 MOREOVER , THE EXISTENCE OF A LINK BETWEEN THE ORGANIZATION OF THE HOLIDAY CAMPS AND THE EMPLOYMENT RELATIONSHIP IS DEMONSTRATED BY THE FACT THAT THE COMMISSION ASSUMED PART OF THE COSTS INVOLVED IN THE HOLIDAYS , IN INVERSE PROPORTION TO THE REMUNERATION OF THE OFFICIALS AND OTHER EMPLOYEES CONCERNED , THE PART OF THE COSTS WHICH REMAINED PAYABLE BY THE PARENTS BEING DEDUCTED FROM THEIR SALARIES . FURTHERMORE , IT SHOULD BE NOTED THAT THE COMMISSION OBTAINED INSURANCE FOR CIVIL LIABILITY , WHICH IT WOULD HAVE HAD NO REASON TO DO IF IT HAD CONSIDERED ITSELF WHOLLY UNCONNECTED WITH THE ORGANIZATION AND THE RUNNING OF THE HOLIDAY CAMPS .

18 IN THE CIRCUMSTANCES THE COURT HAS UNQUESTIONABLY JURISDICTION UNDER ARTICLE 179 OF THE EEC TREATY . THE OBJECTION THAT IT LACKS JURISDICTION MUST THEREFORE BE DISMISSED .

SUBSTANCE OF THE CASE

19 THE COMMISSION MAINTAINS FIRST THAT LIABILITY FOR THE CONSEQUENCES OF THE ACCIDENT ATTACHES NOT TO THE COMMISSION BUT TO THE ASSISTANTS - WHO ARE NEITHER ITS EMPLOYEES NOR ITS AGENTS - RESPONSIBLE FOR SUPERVISING THE CHILDREN OR TO THE PRIVATE UNDERTAKING OPERATING THE HOLIDAY CENTRE , WHICH IS A LEGAL PERSON DISTINCT FROM THE COMMUNITY INSTITUTIONS .

20 IN ANY CASE , THE COMMISSION MAINTAINS , THE CONDITIONS FOR LIABILITY ON ITS PART ARE NOT MET SINCE THE APPLICANT HAS FAILED TO DISCHARGE ITS BURDEN OF PROVING THE EXISTENCE OF A WRONGFUL ACT OR OMISSION ON THE PART OF EITHER THE ASSISTANTS OR THE INSTITUTION .

21 THE ARGUMENTS ADDUCED BY THE COMMISSION ARE NOT GERMANE TO THE ISSUE . IT MUST BE REMEMBERED THAT THE ABOVE-MENTIONED STAFF MEMORANDUM ON HOLIDAY CAMPS REFERRED TO ' ' INSURANCE ' ' THE COST OF WHICH WAS INCLUDED IN THE COST OF THE HOLIDAY , AND THE COMMISSION IN FACT , IN ADDITION TO THE POLICY COVERING ITS OWN CIVIL LIABILITY , OBTAINED FURTHER INSURANCE AGAINST PERSONAL ACCIDENTS FOR THE CHILDREN PARTICIPATING IN THE HOLIDAY CAMPS .

22 IT IS CLEAR THEREFORE THAT THE COMMISSION , IN ITS CAPACITY AS AN EMPLOYER , GAVE AN UNDERTAKING TO THE MEMBERS OF ITS STAFF WHOSE CHILDREN TOOK PART IN THE HOLIDAY CAMPS TO ENSURE , BY MEANS OF INSURANCE , THAT COMPENSATION WOULD BE PROVIDED FOR THE ORDINARY AND FORESEEABLE CONSEQUENCES - SUCH AS THE NEED FOR PROSTHESES OR THE REPAIR OF AESTHETIC INJURY - OF ANY ACCIDENT WHICH MIGHT BE SUSTAINED BY THE CHILDREN DURING THEIR STAY AT THE HOLIDAY CAMP .

23 IT APPEARS , HOWEVER , THAT THE COMMISSION ARRANGED INSURANCE WHICH PROVIDED ONLY PARTIAL COVER , THAT IS TO SAY , WHICH DID NOT EXTEND TO ALL THE ORDINARY CONSEQUENCES OF AN ACCIDENT , AND , MOREOVER , OMITTED TO INFORM THE PARENTS OF THAT FACT IN ADVANCE , SO THAT THEY RECEIVED NO OPPORTUNITY TO DECIDE WHETHER TO ACCEPT THE RISK , TO REFUSE THE OFFER OR TO ARRANGE SUPPLEMENTARY INSURANCE .

24 IT MUST THEREFORE BE HELD THAT WHEN THE COMMISSION UNDERTAKES TO ORGANIZE HOLIDAY CAMPS FOR THE CHILDREN OF ITS OFFICIALS AND OTHER EMPLOYEES AND TO ARRANGE INSURANCE FOR THE CHILDREN TO COVER THE INJURY RESULTING FROM ANY ACCIDENT WHICH THEY MAY SUSTAIN IN SUCH CAMPS , IT HAS A DUTY TO ENSURE THAT HOLIDAYS IN THOSE CAMPS TAKE PLACE UNDER THE APPROPRIATE CONDITIONS AND THAT IF AN ACCIDENT OCCURS COMPENSATION WILL BE PROVIDED IN FULL . IF THE INSTITUTION FAILS TO DO SO , AS IN THIS INSTANCE , ITS CONDUCT MUST BE REGARDED AS A WRONGFUL ACT OR OMISSION FOR WHICH IT IS LIABLE .

25 ACCORDINGLY , THE COMMISSION MUST PAY THE COSTS OF THE PROSTHESES OR ANY PLASTIC SURGERY WHICH MAY BE NECESSARY IN ORDER TO REPAIR AESTHETIC INJURY CAUSED BY THE ACCIDENT . HOWEVER , NON-MATERIAL INJURY SUSTAINED BY THE INJURED CHILD IS EXCLUDED ; COMPENSATION FOR SUCH INJURY CANNOT BE THE SUBJECT-MATTER OF AN APPLICATION BY THE CHILD ' S FATHER IN HIS CAPACITY AS AN OFFICIAL ON THE BASIS OF HIS EMPLOYMENT RELATIONSHIP WITH THE COMMISSION UNDER THE STAFF REGULATIONS .

26 AS FAR AS THE AMOUNT OF THE DAMAGES IS CONCERNED , THE PARTIES SHOULD BE INVITED TO REACH AN AGREEMENT WITHIN A SPECIFIED PERIOD . IN DEFAULT OF SUCH AGREEMENT WITHIN THE SPECIFIED PERIOD THE COURT WILL DECIDE THE ISSUE AND GIVE JUDGMENT ON COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER ),

BEFORE GIVING FINAL JUDGMENT ON THE APPLICATION MADE BY MR BERTI , HEREBY :

1 . DECLARES THAT THE COMMISSION IS BOUND TO COMPENSATE THE APPLICANT FOR ALL MATERIAL AND AESTHETIC INJURY SUSTAINED BY HIS SON PAOLO AS A RESULT OF THE ACCIDENT ON 7 APRIL 1971 ;

2.INVITES THE PARTIES TO AGREE ON THE AMOUNT OF THE FINANCIAL COMPENSATION WITHIN SIX MONTHS OF THE DATE OF THIS JUDGMENT ;

3.DECLARES THAT IN DEFAULT OF SUCH AGREEMENT IT WILL ITSELF DECIDE THE ISSUE ;

4.RESERVES THE COSTS .