61987J0308(01)

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1. Non-contractual liability - Loss - Loss for which compensation is payable - Financial and non-financial loss - Criteria for assessment

(EAEC Treaty, Art. 188, 2nd para.)

2. Non-contractual liability - Loss - Restitution - Taking into account of inflation - Entitlement to interest

1. Financial and non-financial loss suffered by a natural person following an accident involving that person in the course of works carried out for the account of the European Atomic Energy Community on a building situated in a Member State must, under the second paragraph of Article 188 of the EAEC Treaty, be assessed and made good in accordance with the general principles common to the laws of the Member States.

Although national law does not apply, compensation in respect of financial loss may be calculated by reference to the capitalization coefficient corresponding to natural life expectancy and to the rate of deduction to take account of active life expectancy on the basis of the statistical information available in the Member State concerned.

With regard to non-financial loss incurred by the victim, which includes all physical or mental suffering, the Court may grant a lump-sum amount assessed in the light of the injuries suffered and their sequelae.

2. In connection with the compensation payable in respect of loss and intended to restore as far as possible the financial position of the victim of an accident inflation subsequent to the event occasioning loss must be taken into account. The amount of compensation adjusted to take account of inflation bears interest for delayed payment at the annual rate of 8% with effect from the date of the Court' s judgment until actual payment.

In Case C-308/87,

Alfredo Grifoni, proprietor of the undertaking of the same name, residing at Via G. Galilei, Ispra, Varese, Italy, represented by Michele Tamburini and Franco Colussi, of the Milan Bar, with an address for service in Luxembourg at the latter' s Chambers, 36 Rue de Wiltz,

applicant,

v

European Atomic Energy Community (EAEC), represented by the Commission of the European Communities, represented by Lucio Gussetti, a member of the Legal Service, acting as Agent, assisted by Paolo de Caterini, of the Rome Bar and Etienne Boen, General Secretary of the insurance company, Fidelitas SA, expert witness, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for a declaration that the European Atomic Energy Community is liable for the damage suffered by the applicant following an accident of which he was the victim and, consequently, for an order that the European Atomic Energy Community compensate him for that damage,

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, M. Díez de Velasco, C.N. Kakouris (Rapporteur), P.J.G. Kapteyn and J.L. Murray, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 29 April 1993,

after hearing the Opinion of the Advocate General at the sitting on 16 September 1993,

gives the following

Judgment

1 By interlocutory judgment of 27 March 1990 in this case (Grifoni v Commission [1990] ECR I-1203), the Court ordered the European Atomic Energy Community, represented by the Commission of the European Communities, 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 (Italy). The Court dismissed the remainder of the application.

2 Under the terms of that judgment, the parties had to submit to the Court, within six months of the delivery of the judgment, a calculation of the amount of compensation established by common accord or, failing such agreement, their own assessments with figures in support. Costs were reserved.

3 Following that judgment negotiations between the parties with a view to assessing the damage failed to result in a successful outcome within the period provided for. Accordingly, on 8 October and 5 December 1990 the applicant and the Commission respectively submitted their own assessments with figures in support.

4 Since doubts remained concerning the applicant' s degree of permanent invalidity, the Court on 4 June 1991 ordered that an expert medical opinion should be obtained in that connection. That measure of inquiry was carried out on 13 September 1991. The experts were unanimous in assessing permanent invalidity at 35%. That assessment has not been challenged by the parties.

5 Since the degree of permanent invalidity was no longer open to doubt, the Court again proposed that the parties should examine the possibilities of a friendly settlement. That second attempt was equally unsuccessful. By letters of 10 and 11 February 1993, the Court requested the parties and the Italian Government to produce certain documents and to furnish certain information. It requested the applicant to produce, on the one hand, the original of any invoice concerning the accident, photocopies of which had been appended to his pleadings of 8 October 1990 and, on the other, written proof of his income during 1982 and 1983.

6 On 15 March 1993 the applicant produced, in addition to certain of the documents requested, invoices subsequent to 8 October 1990, together with written evidence of his income for 1981, 1984 and 1985.

7 As a preliminary matter it must be stated that some of the original documents produced by the applicant concerning his income for 1984 differ from the photocopies for the same year appended to his pleadings of 8 October 1990. It follows that, except for the written evidence requested by the Court and the invoices subsequent to 8 October 1990, which it was not possible to produce on that date, the other documents are new in relation to the pleadings of 8 October 1990 and, in addition to altering the basic information necessary for assessing the applicant' s income, constitute fresh evidence submitted out of time within the meaning of Article 42(1) of the Rules of Procedure of the Court. Consequently, they may not be taken into consideration.

8 As stated in the judgment cited above, the damage suffered by the applicant must, in accordance with the second paragraph of Article 188 of the EAEC Treaty, be assessed and made good in accordance with the general principles common to the laws of the Member States. That damage is partly financial and partly non-financial.

Financial loss

9 In his conclusions of 8 October 1990 the applicant seeks compensation for the loss represented by the expenditure and the loss of earnings resulting from the accident. In his view the loss of earnings includes the loss of income during his temporary incapacity totalling a period of 270 days, the loss of income during his partial temporary incapacity of 98 days, and the reduction in his post-recovery income owing to his permanent invalidity.

A. Expenditure caused by the accident

10 The applicant seeks reimbursement of an amount of LIT 19 194 000 in respect of expenditure resulting from the accident, broken down as follows:

- expenses with documents in support

(a) fees of doctors consultedLIT 551 000

(b) physiotherapists' fees LIT 5 760 000

(c) salary of a home helpLIT 5 376 000

(d) car hire charges incurred for visits to the doctor,LIT 1 307 000

the hospital or to the offices of INAIL

(Instituto Nazionale per l' Assicurazione contro gli

infortuni sul lavoro)

- expenses without supporting evidence

(e) damaged clothes and watch, dentist' s fees, night-time

attendance at hospitalLIT 6 200 000

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LIT 19 194 000

11 The last amount at (e) cannot be considered in the absence of any supporting evidence.

12 As far as the other expenses at (a), (b), (c) and (d) are concerned, the applicant, who had been requested by the Court to produce the original of any invoice of which a photocopy had been appended to his pleadings of 8 October 1990, stated on 15 March 1993 that certain of the documents had been destroyed by the floods which struck Ispra on 1 and 2 June 1992.

13 However, the documents in the file evidencing that occurrence are merely requests by the Municipality of Ispra addressed to the inhabitants of the area to declare losses sustained on account of the floods. They do not establish that those floods led to the loss of certain original documents. Consequently, only the originals of invoices or receipts may be taken into consideration.

14 The only expenses supported by original vouchers, thus enabling them to be taken into account, are those mentioned at (a) and (b) for a total amount of LIT 6 311 000.

15 In order to substantiate the expenditure mentioned at (c), the applicant has produced five receipts for a total of LIT 5 376 000 which show that that sum constitutes remuneration for services rendered by a home help (collaboratrice domestica). However, it does not establish that the attendance of a home help was necessary following the accident.

16 As to the amount claimed at (d) for the hire of a car, the applicant does not prove that on the dates shown he visited the hospital, or a doctor or indeed the office of the Instituto Nazionale per l' Assicurazione contro gli Infortuni sul Lavoro (National Institute for Insurance against accidents at work, "INAIL").

17 The applicant also appended to his replies of 15 March 1993, other receipts relating to doctors' fees and costs in respect of the issue of certain documents for which he is also seeking reimbursement.

18 Those expenses, which result from the accident and are for a total amount of LIT 478 200, could not be included in the conclusions of 8 October 1990, because they were incurred after that date. Since they are justified by the documents submitted they must be included in the basic calculation of compensation due.

19 The total expenditure due to the accident thus amounts to LIT 6 789 200.

B. Loss of earnings

20 In order to assess the loss of earnings, whether total or partial, it is first necessary to determine what the applicant' s income would have been if he had not suffered the accident.

21 The applicant calculates that income on the basis of his actual earnings during 1984. In that connection he adds the following amounts:

(i) income declared for tax purposesLIT 31 346 000

(ii) amounts appropriated to depreciationLIT 16 236 000

(iii) purchase of building materials and expenditure incurred

for his own account but treated as company expensesLIT 39 488 128

(iv) purchase of capital equipment (leasing)LIT 12 918 100

(v) income not declared for tax purposesLIT 47 192 800

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LIT 147 181 028

22 As the Advocate General has pointed out in his Opinion (paragraph 12), the depreciation mentioned by the applicant at (ii) formed part of the "costs of the undertaking" and "as such were properly deducted from income". The equivalent amount cannot therefore be added to the income received by the applicant during 1984.

23 As to the amount mentioned at (iii) above used for the purchase of building materials, those materials were intended to yield the company' s gross revenue. For that reason they appear as an item of corporate expenditure. Under those circumstances the costs of acquisition may not be taken into consideration for the purpose of determining the applicant' s income.

24 As regards the other part of the amount mentioned at (iii) none of the documents produced clearly proves that any sum was in fact allocated to the payment through the company' s accounts department, of expenditure wholly or partly for the benefit of the applicant himself. Consequently, no such sum may be added to his earnings either.

25 On the other hand, the amount mentioned at (iv) appropriated for the purchase (leasing) of capital equipment could be spread over several financial years because the equipment purchased in 1984 was capable of being utilized in order to yield revenue during several successive years. It is equitable that one-third of that sum, that is to say LIT 4 306 000, be added to the income for 1984.

26 As to the undeclared revenue mentioned at (v) the cheques and payment slips produced by the applicant do not indicate amounts paid by customers for services rendered by his undertaking. The applicant has not therefore established the existence of earnings greater than those declared.

27 Finally, it is appropriate to take as the basis for calculation the income for 1984 declared for tax purposes of LIT 31 346 000, increased by the amount of LIT 4 306 000 representing one-third of the amount appropriated for the purchase of capital equipment, that is a total amount of LIT 35 652 000.

(a) Loss flowing from total temporary incapacity

28 In order to assess the loss flowing from total temporary incapacity, it is necessary to go by the applicant' s daily earnings, calculated on the basis of the annual earnings set out above, and multiplied by the number of days of incapacity, 270 according to the undisputed evidence of the file, which gives the following result:

(LIT 35 652 000 : 365) x 270 = LIT 26 372 712

(b) Loss flowing from partial, temporary incapacity

29 The expert medical report drawn up in response to the measure of inquiry ordered by the Court, together with the report drawn up on 9 October 1986 by the applicant' s own medical adviser, do not point to the existence of any period of partial temporary incapacity between the period of total temporary incapacity and the date of the victim' s recovery. It should also be added that no other document provides any information on this point.

30 Nevertheless, it is reasonable to accept that the permanent invalidity of 35% occurred gradually following the period of total temporary incapacity. The applicant must therefore be deemed for a period of 60 days to have suffered partial temporary incapacity of a percentage situated between total temporary incapacity (100%) and permanent invalidity (35%). The loss suffered should therefore be assessed on a lump-sum basis at LIT 2 500 000.

(c) Loss flowing from permanent invalidity

31 The applicant maintains that the assessment of the loss flowing from his permanent invalidity must be made on the basis of his annual earnings in accordance with the formula used in Italian law.

32 Although Italian law is not applicable in the present case, the capitalization coefficient corresponding to natural life expectancy and the rate of deduction reflecting the expectation of active life, were determined in accordance with statistical information available in Italy. Those items may therefore be deemed in the present case to constitute factual items.

33 In accordance with the abovementioned formula, the loss flowing from the applicant' s permanent invalidity is equal to his total annual earnings divided by the degree of invalidity and by the capitalization coefficient (16.104 having regard to the age of the victim, as the Advocate General rightly rectified it at paragraph 14 of his Opinion), to which a reduction of 20% was applied representing the difference between natural life expectancy and the expectation of active professional life, as shown in the following equation:

(LIT 35 652 000 x 35% x 16.104) - 20% = LIT 160 759 146

34 In the light of the foregoing considerations financial loss may be recapitulated as follows:

- expenditure caused by the accidentLIT 6 789 200

- total temporary incapacityLIT 26 372 712

- partial temporary incapacityLIT 2 500 000

- permanent invalidityLIT 160 759 146

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LIT 196 421 058

35 In view of the apportionment of liability in the interlocutory judgment, the Commission should pay compensation amounting to 50% of the latter figure, that is to say LIT 98 210 529.

Other loss

36 With regard to other loss, the applicant is seeking compensation for physical and non-material loss.

37 The victim of an accident must be compensated, irrespective of any financial loss, for any personal damage which may cover physical or mental suffering.

38 In view of the injuries suffered by the applicant and the ensuing consequences, the applicant' s non-financial loss must be assessed at a lump sum of LIT 100 000 000, of which 50% must be imputed to the Commission, that is to say LIT 50 000 000.

Updating the compensation and interest on delayed payment

39 The applicant also requests that in determining the amount of compensation to be paid, the Court take into account inflation since the date of the accident, and declare that the compensation should bear interest from the date of the judgment.

40 In that connection compensation for loss is intended so far as possible to provide restitution for the victim of an accident. Accordingly, it is necessary to take account of inflation since the event occasioning loss.

41 In the present case the total amount of the loss to be compensated of LIT 148 210 529 was calculated on the basis of the information obtaining at the time of the accident. It should therefore be updated in line with inflation and a lump sum of LIT 120 000 000 for eight years should be added.

42 Consequently, the Commission should be ordered to pay to the applicant total compensation amounting to:

98 210 529 + 50 000 000 + 120 000 000 = LIT 268 210 529

43 That sum should bear interest for delayed payment at an annual rate of 8% from the date hereof until actual payment.

Costs

44 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, the first subparagraph of Article 69(3) provides that the Court may order that the costs be shared or that the parties bear their own costs if each party succeeds on some and fails on other heads, or where the circumstances are exceptional.

45 Since the parties have been unsuccessful in part both with regard to the procedure resulting in the interlocutory judgment and as regards the assessment of the amount of the loss, the parties should bear their own costs, except those of the medical opinion ordered by the Court, which are to be borne as to one-half by each of the parties.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Orders the Commission to pay to the applicant compensation in the amount of LIT 268 210 529;

2. Declares that that sum shall bear interest at the annual rate of 8% with effect from the date hereof until actual payment;

3. Orders the parties to bear their own costs except for those of the medical report ordered by the Court which shall be borne as to one-half by each of the parties.