OPINION OF MR GAND — CASE 44/65 HESSISCHE KNAPPSCHAFT v SINGER

Mr President, Members of the Court,

Once again it is Article 52 of Regulation No 3 concerning social security for migrant workers the interpretation of which is requested by the Cour d'Appel, Colmar, under Article 177 of the EEC. Treaty.

The facts are as follows: on 24 September 1957, that is, before the entry into force of Regulation No 3, Mr Gassner, a miner of German nationality, was killed in a motor accident while on holiday in France. He was struck by a cattle truck belonging to Maison Singer et Fils and driven by Mr Stadelweiser, an agent of that firm. The driver was prosecuted for causing death by negligence and acquitted on appeal for lack of evidence. Moreover proceedings commenced by Mr Gassner's successors against the driver and the third party liable under civil law for compensation for the damage suffered ended in an out of court settlement between the successors and the company insuring both the driver and his employer. But the Hessische Knappschaft which, as a social security agency, had paid to the successors of the victim benefits, and in particular a pension, under the provisions in force in the Federal Republic of Germany, claimed repayment from Maison Singer et Fils on the ground that it had been substituted for the successors in their claims both under German legislation and Article 52 of Regulation No 3.

Its claim was rejected as inadmissible by the Tribunal de Grande Instance, Strasbourg, which considered that Regulation No 3 was inapplicable in this case for two reasons: it concerned migrant workers, whereas the victim was on holiday in France when the accident occurred; and the accident occurred on 24 September 1957, whereas the Regulation, which could not have retroactive effect, only entered into force on 1 January 1959.

On appeal by the Hessische Knappschaft, the Colmar court has asked you two questions on the interpretation of the Regulation, which I shall examine in turn

I

First Question

Does Article 52, which provides for substitution, apply exclusively to migrant workers who are or have been at the time of the event, employed in one of the six countries of the Communities, or does it affect any worker affiliated to a social security scheme of any of the Member States, even if he is not a migrant worker and even if the accident which he suffered and which gave rise to the payment of social security benefits did not occur either during or arising out of his work?

1. It is thus the scope ratione personae and ratione materiae of Article 52, and more generally of Regulation No 3, which is at issue here. These two points have already been dealt with either expressly or by implication in your case-law. Thus Maison Singer, not unaware of this, rather than attacking the interpretation which you have given of Article 52, alleges that that Article is illegal and that, when the Council of the EEC adopted the disputed provision, it acted ultra vires and exceeded the powers which it derives from Article 51 of the Treaty.

2. If it were necessary to considerer If however it were necessary to consider whether that objection was well-founded, it might be recalled that it is based on Article 51 of the Treaty, the sole Article in the Treaty concerning social security. The power to make regulations which it gives to the Council is strictly limited: its sole object is to provide freedom of movement for workers as it is defined in Article 48, that is to say, considered from the standpoint of employment in its relationship thereto. As the title of Regulation No 3 bears out, it only refers to migrant workers, that is to say, to those whose employment induces them to move from one place to another, and it only allows the Council to take the measures necessary for the purposes which I have just indicated. In fact Regulation No 3 would be vitiated by internal contradictions and illegalto the extent that certain of its provisions lay down rules falling outside the framework thus defined; this would particularly be so in the case of Articles 4(1), 19 and 52.

3. We must now scrutinize once more he first question put to you by the Colmar court. It concerns Article 52 which provides, where a person who is in receipt of benefit under the legislation of one Member State, in respect of an injury sustained in the territory of mother State, is entitled to claim compensation for that injury from a third party in the latter State's territory for claims by the institution liable for payment of benefit against such third party. The Article provides that where the said institution is; under the legislation applicable to it, substituted for the beneficiary in his claims against the third party, such substitution shall be recognized by each Member State.

II

Second question

This is only put to you on the assumption that the first question receives an affirmative reply. It relates to the point whether the social security agencies in each of the Member States can bring actions in the other Member States, as from 1 January 1959 when Regulation No 3 entered into force, for the reimbursement of benefits granted to one of their insured persons who has suffered an accident in the territory of that other State for which he can claim compensation from a third party under the civil law of that State, even if the accident occurred before 1 January 1959.

It is thus a problem of the scope of Article 52 with regard to time (from when and in what circumstances) which claims our attention, and it is indeed delicate. Quite clearly Article 56, as it arises from Article 88 of Regulation No 4, which provides that Regulation No 3 shall come into force on 1 January 1959, cannot govern the question of all the effects of the provision with regard to time. The solution must be sought either in Article 52 itself, or in its relationship with Head V on transitional and final provisions.

Although Article 52 employs the present tense (chaque État Membre reconnaît une telle subrogation: such substitution shall be recognized by each Member State), I do not think that any significance need be attached to that peculiarity which, in the French language at least, is used mainly to signify that the law lays down an obligation. But it will be said that the drafting of that Article does not imply any limitation of its scope as regards time. It is sufficient that the person concerned is in receipt of benefit under the legislation of one Member State in respect of an injury sustained in the territory of another State and is entitled to claim compensation for that injury from a third patty in the latter State's territory. If no additional conditions are laid down with regard to the date on which these benefits were paid, or from which the right to claim compensation from the third party arose, that still does not settle the precise question put to you.

Let us then refer to Article 53 which opens the transitional provisions. Article 53 (1) provides that no person shall foe entitled by virtue of this Regulation to payment of benefits in respect of a period before the date on which the Regulation comes into force, but Article 53 (3), on the other hand, states that benefit shall be payable even if it relates to an event before the date on which it comes into force. Here we meet the objection made by Maison Singer. Article 53 refers to the rights of insured persons to the benefits, that is to say, their relationship with the institutions liable for payment and not the position covered by Article 52 of the relationship between the institutions liable for payment and the third parties causing the accidents suffered by the persons covered by social security. Invoking the rules which would be applicable in conflict of laws with regard to time, the defendant in the main action admits that the relationship between the insured person and the social security institution may be analysed, in so far as the benefit due for a social security risk which has materialized is concerned, as a situation continuing after that risk has materialized, which is immediately affected by the new law. On the other hand, the relationship between the third parties causing the accident and the social security institutions is connected with the civil liability of the former: in this case it would be the law at the time when the injury was caused which would determine the conditions of that liability, which would state whether a debt was or was not created with regard to the injured person and which would establish the extent of the right to compensation. It would follow from this that a substitution made by a regulation entering into force on 1 January 1959 cannot apply to an accident occurring before that date.

Unfortunately, there are as many systems of conflict of laws as there are States, so that the search for a doctrine common to all would be too hazardous a venture. Besides, is it really necessary, and what is the scope of Article 52? It does not modify previous national legislation; it coordinates its application. It lays down a rule under which the Member States are obliged to recognize, in addition to substitutions arising from their own legislation, those which are based on the legislations of other Member States, and only in so far as those legislations so provide. But, whist substitution here implies the substitution of the German institution with regard to the rights of the injured party, it does not affect the existence and extent of the civil liability of the person causing the injury, which continues to be governed by French law.

On what basis can one then recognize in Community law the benefit of substitution for acts causing injury prior to the entry into force of Regulation No 3? The answer appears to me to arise from a passage in your judgment in the Koster (née Van Dijk) case. As you said, just as the Regulation was capable of extending the obligations of national social security institutions, in respect of events before 1 January 1959, to accidents occurring in the territory of a Member State other than that of the institution liable for payment, so the right to claim compensation from a third party for the injury under a substitution with regard to the rights of the victim should be recognized as a logical and fair counterpart to the extension of their obligations. You added that the first paragraph of Article 52 should be applied by the same authority and in the same conditions as the new provisions of the Regulation. It must thus be admitted indirectly that the substitution may govern an accident before 1 January 1959. It appears to me that the second question must be answered in the affirmative.

To sum up, I am of the opinion that the answer must be in the following terms:

Finally, my view is that the Cour d'Appel, Colmar, should give a ruling on the costs of the present case.

1 Translated from the French.