Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The proceedings on which I am today delivering my opinion concern a claim based on Article 73 of the Staff Regulations of Officials of the European Communities. More particularly, it is concerned with a claim for the payment of a capital sum based on the annual basic salary which is said to be payable when an official dies in an accident. The relevant facts which are of importance in the case may be summarized as follows:

The husband or the applicant was an official in the Secretariat of the Council of Ministers of the European Communities and was resident in Brussels. At the beginning of 1969 he was on sick leave which he was spending with his parents in Lyon. The applicant cannot give further details about this because she last saw her husband in the Christmas holidays of 1968 and at the beginning of January 1969. All that may be gleaned from her statements is that her husband entered a neurological clinic in Lyon for examination from the time from 17 to 20 February 1969. On the evening of 20 February 1969 he apparently left the house of his parents to go and buy some medicines. From this time on he was missing. His body was taken from the Rhone in Lyon on 1 April 1969. According to the findings of the police and an official medical certificate death was caused by drowning.

In reliance on this fact Mrs Duraffour made an application on behalf of herself and her five infant children on 15 January 1970 to the General Secretary of the Council of Ministers for the capital sum provided in the case of fatal accident to her husband in Article 73 (2)(a) of the Staff Regulations. However her application was unsuccessful. In a letter from the Secretary-General of the Council of Ministers of 10 April 1970 she was informed that the insurance companies with which the Council of Ministers had entered into a contract to cover the risks set out in Article 73 of the Staff Regulations, had refused to pay compensation. In view of the declaration made by the brother of the deceased on 3 April 1970, they were sure that it was not a case of accident but rather a case of suicide which was not covered by the insurance policy. According to the Secretary-General this was in accordance with the basic principle governing such cases whereby the person claiming benefit under Article 73 of the Staff Regulations had to prove the existence of an accident to the institution, as employer and policyholder, and also to the insurer. The application had to be rejected for lack of such proof.

Consequently on 14 May an action was brought before the Court of Justice. In her application Mrs Duraffour formulated the following claims:

The defendant Council of Ministers regards the application as admissible but without foundation.

Let us now examine what opinion we should give in view of the facts as they now stand in a case that is certainly one of the most delicate staff cases.

I should like to begin my examination by citing the basis of the claim, that is Article 73 of the Staff Regulations. The relevant provisions are as follows:

In addition I should here point out that this provision is incomplete, in so far as the rules mentioned in the first subparagraph have not yet been issued for lack of agreement between the relevant institutions. The Council, in common with the other Community institutions, has solely concluded contracts through an insurance broker established in Antwerp with insurance companies in Member States and in third countries in order to cover the risks mentioned and on the expiry of the contract has renewed it several times. In the course of these renewals there were certain alterations in the consortium of insurers in that certain insurers left the consortium and other companies joined it and also the percentages accepted by the individual companies.

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.

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.

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).

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.

1 Translated from the German.

2 Plog-Wiedow, Kommentar zum Bundesbeamtengesetz, Note 2, par. 151. Plantey, Traité pratique de la fonction publique, No 1883.

3 Cf. for example, Holtz, Handbuch des europäischen Dienstrechts, page 451.

4 Cf. also Plog-Wiedow, loc. cit. Note 4 to paragraph 135.

5 Prölls-Martin, Versicherungsvertragsgesetz, 18th Edition, 1970, Note 3 to paragraph 182.

6 Molengraaff, loc. cit., p. 728.

7 Donati, Trattato del diritto delle assicurazioni private, Vol. II, No. 312, 2, a).

8 See, for example, Sicot-Margeat, loc. cit., No 141, 60, b; De Page, Traité élémentaire de droit civil beige, 2nd Edition, 1942, Vol. III, p. 710 et seq.

9 Sicot-Margeat, loc. cit., No 606; Fredericq, loc. cit., p. 367 et seq.; De Page, loc. cit., p. 712.