61974J0101

1 . OFFICIALS - SOCIAL SECURITY - SICKNESS AND ACCIDENT INSURANCE - RULES OF APPLICATION - ABSENCE - INSURANCE POLICY - SUBSCRIPTION BY ADMINISTRATION - DEROGATION FROM THE RIGHTS LAID DOWN BY THE STAFF REGULATIONS - NOT PERMISSIBLE

( STAFF REGULATIONS , ARTICLE 73 )

2 . OFFICIALS - SOCIAL SECURITY - SICKNESS AND ACCIDENT INSURANCE - BENEFITS - PAYMENT - DELAY - INTEREST - DAMAGE - WRONGFUL ACT OR OMMISSION OF ADMINISTRATION - PROOF - DUTY OF PERSON CONCERNED

( STAFF REGULATIONS , ARTICLE 73 )

3 . OFFICIALS - SOCIAL SECURITY - SICKNESS AND ACCIDENT INSURANCE - TERMINATION OF SERVICE - BENEFITS - TRANSFER - COVER UNDER ARTICLE 17 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS - ABSENCE

( STAFF REGULATIONS , ARTICLE 73 )

4 . OFFICIALS - PECUNIARY BENEFITS - TRANSFER - COSTS - COMPETENT INSTITUTION - DUTY

1 . THE TERMS OF AN INSURANCE POLICY TAKEN OUT BY THE ADMINISTRATION IN THE ABSENCE OF RULES DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS OF THE COMMUNITIES CANNOT DEROGATE FROM THE RIGHTS WHICH AN OFFICIAL DERIVES DIRECTLY FROM THE STAFF REGULATIONS .

2 . IN THE ABSENCE OF ANY PROVISION OF THE STAFF REGULATIONS OR OF THE INSURANCE POLICY WHICH EXPRESSLY PROVIDES FOR THE PAYMENT OF INTEREST IT IS FOR THE APPLICANT TO ESTABLISH THAT THE DELAY IN PAYMENT OF THE ALLOWANCE CONSTITUTES A WRONGFUL ACT OR COMMISSION ON THE PART OF THE COUNCIL WHICH HAS IN FACT CAUSED HIM DAMAGE .

3 . AN OFFICIAL WHO HAS TERMINATED HIS SERVICE CANNOT CLAIM TO BE COVERED BY ARTICLE 17 ( 4 ) OF ANNEX VII ON THE OCCASION OF THE TRANSFER OF SUMS PAYABLE TO HIM UNDER ARTICLE 73 OF THE STAFF REGULATIONS BY WAY OF SOCIAL SECURITY .

4 . THE COMPETENT INSTITUTION MUST BEAR THE COSTS OF TRANSFER TO THE PLACE OF RESIDENCE OF A FORMER OFFICIAL OF A PECUNIARY BENEFIT REMAINING DUE TO HIM AT THE PLACE WHERE HE PREVIOUSLY CARRIED OUT HIS DUTIES .

IN CASE 101/74

DIETRICH KURRER , A FORMER OFFICIAL OF THE COUNCIL OF MINISTERS , REPRESENTED BY MARCEL SLUSNY , ADVOCATE AT THE COUR D ' APPEL , BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . STEINFORT , 15 , BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY R . O . DALCQ , ADVOCATE OF THE BRUSSELS BAR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR LOESCH , 2 RUE GOETHE ,

DEFENDANT ,

APPLICATION FOR THE PAYMENT OF CERTAIN SUMS UNDER ARTICLE 73 OF THE STAFF REGULATIONS FOR OFFICIALS ,

1 THE APPLICANT , A FORMER OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES EMPLOYED IN THE SECRETARIAT , SUSTAINED PARTIAL PERMANENT INVALIDITY FOLLOWING A MOTOR-CAR ACCIDENT AND THEREBY BECAME ENTITLED TO AN ALLOWANCE UNDER ARTICLE 73 ( 1 ) OF THE STAFF REGULATIONS OF OFFICIALS .

2 SINCE THE APPLICANT CONSIDERED THAT THE AMOUNT OF THE ALLOWANCE GRANTED TO HIM WAS INSUFFICIENT HE SUBMITTED A COMPLAINT TO THE COUNCIL ON 20 MAY 1974 .

3 THE COUNCIL REJECTED THIS COMPLAINT ON 20 SEPTEMBER 1974 AND THE APPLICANT LODGED THE PRESENT APPLICATION FOR THE ANNULMENT OF THE DECISION OF REJECTION AND CONSEQUENTLY FOR PAYMENT OF THE DIFFERENCE BETWEEN THE SUM WHICH HE RECEIVED AND THAT WHICH HE CONSIDERS DUE TO HIM .

4 THE APPLICANT BASES HIS SUBMISSIONS BOTH ON INFRINGEMENT OF THE STAFF REGULATIONS AND ON THE GENERAL PRINCIPLES OF NATURAL JUSTICE .

5 FIRST , THE APPLICANT COMPLAINS THAT THE COUNCIL HAS PAID HIM THE ALLOWANCE PROVIDED FOR IN ARTICLE 73 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS ON THE BASIS OF A RATE OF INVALIDITY OF 20 % ALTHOUGH IT HAS ITSELF CONCEDED THAT HE SUFFERS FROM 30 % INVALIDITY .

6 ARTICLE 73 ( 1 ) PROVIDES THAT RULES SHALL BE DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS OF THE COMMUNITIES ESTABLISHING INTER ALIA THE CONDITIONS ON WHICH OFFICIALS ARE COVERED AGAINST NON-OCCUPATIONAL RISKS .

7 SINCE THOSE RULES HAD NOT YET BEEN DRAWN UP THE COUNCIL , AS A PROVISIONAL MEASURE , TOOK OUT AN INSURANCE POLICY WITH AN INSURANCE COMPANY FIXING THE CONDITIONS ON WHICH COVER WAS GIVEN AGAINST THE RISK .

8 BY VARIOUS STAFF MEMORANDA THE COUNCIL NOTIFIED ITS STAFF THAT THE PROVISIONS OF THE SAID POLICY PROVISIONALLY LAID DOWN THE CONDITIONS UNDER WHICH THE BENEFITS PROVIDED FOR IN ARTICLE 73 WOULD BE GUARANTEED .

9 THUS THE RIGHTS AND OBLIGATIONS OF THE INSTITUTION AND OF ITS SERVANTS ARE PROVISIONALLY DETERMINED BY ARTICLE 73 IN CONJUNCTION WITH THE POLICY .

10 IN A CASE OF CONFLICT THE PROVISIONS OF THE STAFF REGULATIONS PREVAIL OVER THE TERMS OF THE INSURANCE POLICY SINCE THE LATTER CANNOT DEROGATE FROM THE RIGHTS WHICH AN OFFICIAL DERIVES DIRECTLY FROM THE STAFF REGULATIONS .

11 IN THOSE CIRCUMSTANCES THE ABSENCE OF RULES DRAWN UP BY AGREEMENT BETWEEN THE INSTITUTIONS CANNOT ADVERSELY AFFECT AN OFFICIAL .

12 THE SPECIALIST CONSULTED BY THE APPLICANT INITIALLY CONCLUDED THAT HE SUFFERED FROM PARTIAL INVALIDITY AT THE RATE OF 30 % .

13 THE INSURER DISPUTED THIS RATE AND ARBITRATION WAS ARRANGED IN THE FORM PROVIDED FOR BY THE INSURANCE POLICY .

14 BY A LETTER OF 23 NOVEMBER 1972 THE ADMINISTRATION OF THE COUNCIL WROTE TO THE APPLICANT IN THE FOLLOWING TERMS :

' PLEASE STATE AS SOON AS POSSIBLE THE NAME OF THE DOCTOR WHO IS TO DEFEND YOUR INTERESTS IN THE ARBITRATION PROCEDURE . '

15 ON 30 NOVEMBER 1972 THE APPLICANT , WITHOUT RAISING OBJECTIONS AS TO THE FORM OF THE ARBITRATION , ADDRESSED TO THE ADMINISTRATION OF THE COUNCIL A NOTE WORDED AS FOLLOWS :

' DOCTOR A . OLMECHETTE HAS AGREED . . . TO DEFEND MY INTERESTS IN THE PROCEDURE PROPOSED BY THE INSURANCE COMPANY . I SHOULD ACCORDINGLY BE OBLIGED IF YOU WOULD COMMUNICATE DIRECTLY WITH HIM AS NECESSARY . '

16 SINCE THE RATE OF INVALIDITY OF THE APPLICANT IS A QUESTION OF FACT , WHEN THE APPLICANT EXPRESSLY APPOINTED HIS OWN DOCTOR TO DEFEND HIS INTERESTS HE THUS HAD AT HIS DISPOSAL ALL THE MEANS NECESSARY TO OBTAIN A FINDING OF FACT FAVOURABLE TO HIM .

17 THE DOCTOR APPOINTED BY THE APPLICANT AND THE DOCTOR APPOINTED BY THE INSURER AGREED ON A RATE OF INVALIDITY OF 20 % WITHOUT ITS BEING NECESSARY TO HAVE RECOURSE TO A THIRD ARBITRATOR .

18 IN THOSE CIRCUMSTANCES IT IS UNNECESSARY TO CONSIDER WHETHER ARTICLE 73 OF THE STAFF REGULATIONS WOULD HAVE ALLOWED THE APPLICANT TO INSIST ON THE CHOICE OF ANOTHER METHOD OF DETERMINING THE RATE OF INVALIDITY SINCE , BY APPOINTING HIS OWN DOCTOR EXPRESSLY TO DEFEND HIS INTERESTS , HE HAD , IN FULL KNOWLEDGE OF THE CIRCUMSTANCES , INDICATED IN ADVANCE HIS AGREEMENT TO THE OUTCOME OF THE ARBITRATION IN QUESTION .

19 CONSEQUENTLY IT IS NO LONGER POSSIBLE FOR THE APPLICANT TO CALL IN QUESTION THE RATE OF INVALIDITY FOUND IN THE ARBITRATION PROCEDURE ACCEPTED BY HIM .

20 IT SHOULD ALSO BE STATED THAT BY LETTER OF 21 JANUARY 1974 THE APPLICANT NOTIFIED THE ADMINISTRATION AS FOLLOWS :

' WITH REFERENCE TO YOUR REQUEST I BEG TO INFORM YOU THAT I HEREBY AGREE TO THE RATE OF 20 % PROPOSED BY THE INSURERS IN SETTLEMENT OF THE ALLOWANCE FOR THE PERMANENT INVALIDITY WHICH I HAVE SUFFERED . KINDLY NOTE THAT THE SUM OBTAINED BY CALCULATION AT THE RATE OF 20 % SHOULD BE PAID TO MY ACCOUNT NO . . . IN GERMANY . '

21 NO EVIDENCE HAS BEEN PUT FORWARD BY THE APPLICANT IN SUPPORT OF HIS ALLEGATION THAT THE COUNCIL EXERTED PRESSURE ON HIM TO ACCEPT THE RATE OF 20 % .

22 ON THE CONTRARY THIS ALLEGATION IS CONTRADICTED BY THE FACTS .

23 THE COMPLAINT OF THE APPLICANT REGARDING THE FIXING OF THE RATE OF INVALIDITY MUST THUS BE REJECTED AS UNFOUNDED .

24 THE APPLICANT CLAIMS SECONDLY THAT IF THE RULES PROVIDED FOR BY ARTICLE 73 ( 1 ) HAD EXISTED HE WOULD HAVE BEEN ABLE , UNDER THE SECOND SUBPARAGRAPH OF PARAGRAPH ( 2 ) ( C ), TO REQUEST AN ANNUITY INSTEAD OF A LUMP SUM .

25 SUCH AN ANNUITY COULD HAVE BEEN ADJUSTED TO TAKE INTO ACCOUNT THE DEPRECIATION IN THE VALUE OF MONEY AND THE RISE IN SALARIES .

26 HE CLAIMS THAT THERE ARE CONSEQUENTLY GROUNDS FOR MAKING EX AEQUO ET BONO AN INCREASE IN THE LUMP SUM RECEIVED BY HIM .

27 HOWEVER , THE APPLICANT ACCEPTED WITHOUT RESERVATION THE AWARD OF THE INVALIDITY BENEFIT ON THE BASIS OF A LUMP SUM IN ACCORDANCE WITH ARTICLE 73 ( 2 ) ( C ).

28 IN THOSE CIRCUMSTANCES HE CANNOT RELY ON ARGUMENTS BASED ON THE METHOD OF CALCULATING AN ANNUITY WHICH HE HAS NOT REQUESTED IN ORDER TO CLAIM AN INCREASE IN THE LUMP SUM .

29 THIS COMPLAINT IS UNFOUNDED .

30 THIRDLY THE APPLICANT MAINTAINS THAT THE DELAY IN PAYMENT OF THE LUMP SUM HAS CAUSED HIM DAMAGE .

31 SINCE THERE IS NO PROVISION OF THE STAFF REGULATIONS OR OF THE INSURANCE POLICY WHICH EXPRESSLY PROVIDES FOR THE PAYMENT OF INTEREST IT IS FOR THE APPLICANT TO ESTABLISH THAT THE DELAY IN PAYMENT OF THE ALLOWANCE CONSTITUTES A WRONGFUL ACT OR OMISSION ON THE PART OF THE COUNCIL WHICH HAS IN FACT CAUSED HIM DAMAGE .

32 SINCE THE APPLICANT HAS FAILED TO ESTABLISH THAT THE COUNCIL IS GUILTY OF A WRONGFUL ACT OR OMISSION THIS COMPLAINT MUST BE REJECTED AS UNFOUNDED .

33 THE APPLICANT CLAIMS FOURTHLY THAT WHEN THE COUNCIL TRANSFERRED TO HIS BANK ACCOUNT IN GERMANY THE AMOUNT OF THE ALLOWANCE PAYABLE TO HIM UNDER ARTICLE 73 OF THE STAFF REGULATIONS IT SHOULD FIRST HAVE CONVERTED THE AMOUNT , EXPRESSED IN BELGIAN FRANCS , INTO DEUTSCHMARKS ON THE BASIS OF THE PAR VALUES ACCEPTED BY THE INTERNATIONAL MONETARY FUND WHICH WERE IN FORCE ON 1 JANUARY 1965 , IN ACCORDANCE WITH ARTICLE 63 OF THE STAFF REGULATIONS .

34 HOWEVER , ARTICLE 63 OF THE STAFF REGULATIONS GOVERNS ONLY THE PAYMENT OF AN OFFICIAL ' S REMUNERATION .

35 IT IS CLEAR FROM THE CONTEXT OF ARTICLE 62 THAT THIS TERM REFERS ONLY TO THE BASIC SALARY , INCREASED WHERE APPROPRIATE UNDER THE CONDITIONS LAID DOWN IN ANNEX VII .

36 FURTHERMORE , WHEN THE STAFF REGULATIONS OR OTHER REGULATIONS PROVIDE FOR THE APPLICATION OF THE RATE PRESCRIBED IN ARTICLE 63 THEY DO SO EXPRESSLY , AS FOR EXAMPLE IN ARTICLE 82 OF THE STAFF REGULATIONS .

37 AS AN ALTERNATIVE THE APPLICANT REQUESTS THE APPLICATION OF THE RATE OF EXCHANGE GIVEN BY THE LATEST PAR VALUE ACCEPTED BY THE INTERNATIONAL MONETARY FUND PURSUANT TO ARTICLE 17 ( 4 ) OF ANNEX VII TO THE STAFF REGULATIONS .

38 ARTICLE 17 ( 1 ) OF ANNEX VII LAYS DOWN AS A GENERAL RULE THAT : ' PAYMENT SHALL BE MADE TO EACH OFFICIAL AT THE PLACE AND IN THE CURRENCY OF THE COUNTRY WHERE HE CARRIES OUT HIS DUTIES ' .

39 ARTICLE 17 ( 2 ) TOGETHER WITH PARAGRAPH ( 4 ) LAYS DOWN AN EXCEPTION WITH REGARD TO CERTAIN REGULAR TRANSFERS WHICH MAY , AT THE REQUEST OF THE OFFICIAL , BE MADE IN ANOTHER MEMBER STATE AND IN ITS CURRENCY .

40 ARTICLE 17 ( 4 ) PROVIDES THAT SUCH REGULAR TRANSFERS SHALL BE MADE AT THE OFFICIAL EXCHANGE RATE RULING ON THE DATE OF TRANSFER .

41 IT IS CLEAR FROM THE WORDING OF PARAGRAPH ( 1 ) OF THE SAID ARTICLE THAT ITS PROVISIONS REFER EXCLUSIVELY TO SERVING OFFICIALS .

42 FURTHERMORE , ACCORDING TO THE WORDING OF ITS HEADING , ANNEX VII TO THE STAFF REGULATIONS DEALS WITH ' REMUNERATION AND REIMBURSEMENT OF EXPENSES ' AND THUS WITH THE BENEFITS REFERRED TO IN ARTICLE 62 TO 71 OF THE STAFF REGULATIONS .

43 CONSEQUENTLY , AN OFFICIAL WHO HAS TERMINATED HIS SERVICE CANNOT CLAIM TO BE COVERED BY ARTICLE 17 ( 4 ) OF ANNEX VII ON THE OCCASION OF THE TRANSFER OF SUMS PAYABLE TO HIM UNDER ARTICLE 73 OF THE STAFF REGULATIONS BY WAY OF SOCIAL SECURITY .

44 SINCE THIS DOES NOT CONSTITUTE ONE OF THE EXCEPTIONAL CASES COMING UNDER ARTICLE 63 OF THE STAFF REGULATIONS OR ARTICLE 17 OF ANNEX VII THERETO , THE COUNCIL WAS CORRECT IN TRANSFERRING THE SUMS PAYABLE TO THE APPLICANT TO HIS BANK ACCOUNT IN THE FEDERAL REPUBLIC OF GERMANY AND IN HAVING THEM CONVERTED INTO DEUTSCHMARKS AT THE RATE RULING ON THE DAY OF TRANSFER .

45 THIS COMPLAINT MUST THUS BE REJECTED .

46 FINALLY THE APPLICANT CLAIMS THAT THE COSTS OF THE TRANSFERS TO GERMANY OF THE SUMS PAYABLE TO HIM UNDER ARTICLE 73 OF THE STAFF REGULATIONS SHOULD HAVE BEEN BORNE BY THE COUNCIL .

47 THE STAFF REGULATIONS DO NOT CONTAIN ANY EXPRESS PROVISION AS TO WHETHER THE COSTS OF TRANSFERRING PECUNIARY BENEFITS PAYABLE BY THE COMMUNITY TO ITS SERVANTS ARE TO BE BORNE BY THE PARTY LIABLE FOR PAYMENT OR BY THE BENEFICIARY .

48 IT NEVERTHELESS APPEARS JUST AND REASONABLE TO CONCEDE THAT SINCE THE COMMUNITY IS OBLIGED TO SECURE FOR ITS SERVANTS ON FINAL TERMINATION OF THEIR SERVICE THE FULL AMOUNTS PAYABLE TO THEM , IT MUST ITSELF BEAR ANY TRANSFER COSTS .

49 IN THOSE CIRCUMSTANCES THE COMPETENT INSTITUTION MUST BEAR THE TRANSFER COSTS SO THAT THE OFFICIAL MAY RECEIVE NET , AT HIS PLACE OF RESIDENCE , THE EQUIVALENT IN HIS NATIONAL CURRENCY OF THE SUM OUTSTANDING AT THE PLACE WHERE HE PREVIOUSLY CARRIED OUT HIS DUTIES .

COSTS

50 UNDER ARTICLES 69 ( 2 ) AND 70 OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS ; HOWEVER , THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS COMMENCED AGAINST THEM BY SERVANTS OF THE COMMUNITIES .

51 THE APPLICANT HAS SUCCEEDED IN ONLY ONE OF THE HEADS OF HIS APPLICATION .

52 THE COUNCIL MUST CONSEQUENTLY BEAR ONE QUARTER OF THE COSTS OF THE APPLICANT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . ORDERS THE COUNCIL OF THE EUROPEAN COMMUNITIES TO REIMBURSE TO THE APPLICANT THE BANKING EXPENSES INCURRED IN THE TRANSFERS TO THE BANK ACCOUNT OF THE APPLICANT IN THE FEDERAL REPUBLIC OF GERMANY OF THE ALLOWANCE PAYABLE TO HIM UNDER ARTICLE 73 ( 2 ) ( C ) OF THE STAFF REGULATIONS OF OFFICIALS ;

2 . REJECTS ALL THE REMAINING SUBMISSIONS ;

3 . ORDERS THE COUNCIL TO BEAR ITS OWN COSTS TOGETHER WITH ONE QUARTER OF THE COSTS INCURRED BY THE APPLICANT .