JUDGMENT OF 16. 6. 1971 — CASE 18/70 DURAFFOUR v COUNCIL
In Case 18/70
THE COURT (First Chamber) composed of: A. M. Dormer, President of Chamber, R. Monaco and J. Mertens de Wilmars (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of facts and procedure
II — Conclusions of the parties
III — Summary of the arguments of the parties
1. The foundation of the claim and the legal relationships between the defendant, the insurers and the applicant
2. As to the concept of accident.
3. Burden of proof
4. The circumstances of the death
5. Offers of proof
Grounds of judgment
Costs
I —. Summary of facts and procedure
1. During his lifetime, the husband of the applicant was an official of the Secretariat of the Council of Ministers of the European Communities.
2. Article 73 or the Staff Regulations provides:
3. On 15 January 1970, the applicant submitted a request for the lump sum payable in the event of death under Article 73 of the Staff Regulations to the General Secretariat of the Council of Ministers of the European Communities.
4. The applicant appealed to the Court of Justice on 14 May 1970. By a letter of 18 November 1970 the Court put to the parties three questions seeking their observations on the legal relationships between the parties and the insurer as they appear from the insurance policy taken out by the Council of the European Communities on 30 June 1961.
5. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the First Chamber of the Court decided that no preparatory inquiry was necessary.
II —. Conclusions of the parties
1. Declare that the present application is admissible.
2. In the first place:
5. Secondly:
1. Declare that the application is admissible.
2. Declare it to be unfounded.
3. Rule that the additional request to be permitted to offer proof is not admissible because it is too vague and, if appropriate, so far as is necessary, reserve to the defendant the right to formulate any appropriate request particularly as regards proof. In any event order the applicant to bear the costs.
1. Mr Roland had been on sick leave for some months at the time of his death,
2. Mr Roland had left a psychiatric institution a few days before his death,
3. The friends and relations or Mr Roland did not dare allow him out on his own.
III —. Summary of the arguments of the parties
1. The foundation of the claim and the legal relationships between the defendant, the insurers and the applicant
(a). the contract is made directly between the insurance companies and the Council without the participation of the staff insured;
(b). the premiums are payable by the Council to the insurers;
(c). the compensation is payable to the policyholder and not the insured (Special Conditions, Article 7);
(d). the individual contribution or the staff insured in respect of non-occupational accidents provided for by Article 73 of the Staff Regulations is paid by the official directly to the Council and not to the insurance companies;
(i). Article 73 (2) of the Regulations indicates the extent of the benefits payable to members of the staff. The policy taken out by the defendant corresponds exactly to those benefits (Article 9 of the General Conditions) in respect of the sums payable in case of accident.
(ii). The policy conditions conform both to the general principles of law and to what should have been and what will, without doubt, be the rules issued in implementation of Article 73 of the Regulations.
(iii). The policy conditions were brought to the attention of all servants by Staff Notices Nos 13/66 and 12/68 (Schedules 1 and 2 to the rejoinder) and so the defendant maintains that one may regard the conditions of the insurance policy taken out as being provisionally part of the Staff Regulations.
(a). the applicant has no right of action for payment against the defendant but solely against the insurers; the application should therefore be dismissed;
(b). the applicant can have no rights over and above those conferred by the policy.
2. As to the concept of accident.
3. Burden of proof
4. The circumstances of the death
5. Offers of proof
1. Mr Paul Roland, an official at the Secretariat of the Council of Ministers of the European Communities, died from drowning in the Rhone during the month of February 1969.
2. His widow, the applicant, acting on her own behalf and as legal guardian to her infant children, requested in a letter of 15 January 1970 to the Secretary General of the Council of Ministers, the grant of the benefits provided for by Article 73 of the Staff Regulations for those persons entitled upon the death of an official from a non-occupational accident.
3. Since the Council refused to grant this request, the applicant brought an action before the Court of Justice pursuant to Article 91 of the Staff Regulations for an order that the Council should pay the sums in question.
4. (a) Article 73 (1) provides: An official is, from the date of his entry into the service, insured against the risk of occupational disease or accidents in the manner provided for in rules drawn up by common agreement of the Institutions of the Communities after consulting the Staff Regulations Committee. He shall contribute to the cost of insuring against non-occupational risks up to 0.1 % of his basic salary.' Such rules shall specify which risks are not covered.
5. In the following paragraphs, the article lays down the benefits payable.
6. However the rules provided for in paragraph 1, which were to determine the conditions subject to which servants are covered and in particular should specify which risks are not covered, have not up to now been issued for lack of agreement between the institutions.
7. In support of its rejection, the defendant argues in the first place that, in order to comply in the meantime with its part of the obligations imposed on institutions, it covered the risk of accident with regard to its servants by taking out an insurance policy for their benefit.
8. It claims that the policy is a contract in favour of third parties which benefits those insured and which was accepted by implication but none the less clearly by the applicant so that the latter has no rights other than those conferred by the said policy and under the terms thereof only has a right of action against the insurers.
9. It is said that the action should therefore be dismissed in so far as it is directed against the Council.
10. The applicant on the other hand maintains that her rights are granted directly by Article 73 and that therefore the Council is indebted to her.
11. Article 73 of the Staff Regulations concerns the social security of officials and lays down the reciprocal rights and obligations of the institutions and of their servants.
12. In order to ensure as far as possible the compliance with its obligations and in the absence of other possibilities the Council was entitled to resort to provisional measures and to take out a policy fixing the conditions under which risks are covered.
13. In addition by its Staff Notice of 11 July 1966 the defendant informed its staff of the provisions of this policy which provisionally laid down the conditions under which the benefits provided for in Article 73 would be guaranteed.
14. Thus the rights and obligations of the institution and of its servants are provisionally determined by Article 73 in conjunction with the policy.
15. In this respect, it cannot be accepted that the obligation of an insurer may be substituted for the direct obligation of the institution under the said article, thus depriving the beneficiaries of their particular legal rights guaranteed by the Staff Regulations.
16. (b) Secondarily the defendant maintains that the death was caused by suicide and was thus not an accident either under the terms of the policy nor under the terms of Article 73 of the Regulations and in any case the applicant supplied no proof of the accidental nature of the death.
17. It should be examined whether suicide comes within the concept of accident.
18. In the terms of the policy, accident means an event which happens without any intention on the part of the insured and the proven cause of which is the sudden and violent action of an external force which results in physical damage leading to either death or injury.
19. Suicide is irreconcilable with this definition and therefore Article 4(d) provides that the company is not liable for suicide or attempted suicide.
20. In addition the policy does not cover the risk of drowning unless it is involuntary.
21. The exclusion from the policy of suicide because of its non-accidental nature is in conformity with general practice as regards the cover against the risk of accident and is compatible with the terms of Article 73.
22. Therefore such an event does not give rise to the right to the benefits payable under this provision.
23. (c) The parties have not reached agreement on whether the death was caused by the suicide of the victim.
24. Therefore it should be decided how and by whom the circumstances of the death must be proved.
25. Article 73 is silent as to this.
26. Moreover Article 8 of the policy provides that the person taking out the policy, the insured or those entitled thereunder shall be under an obligation to show that the death, illness or temporary incapacity is the direct and exclusive result of an accident covered by this policy.
27. Whilst this provision refers expressly only to the relationships with the insurers and not those between the servant and the institution it is justifiable to take the view that it governs the whole question of the burden of proof in the context of the implementation of Article 73 in conjunction with the policy.
28. In view of the connexion between this article and the policy it would be unacceptable to have two different methods of proof between the different parties concerned in respect of one event.
29. Although it is true that the benefits are not payable so long as it is not established that the death was due to a cause ruling out suicide, one cannot however require the beneficiaries under the guarantee to produce direct proof of the circumstances in which a death occurred when it took place in the absence of any witnesses.
30. It is enough that the accidental nature of the event can be deduced from sufficiently weighty, clear and uncontradictory circumstantial evidence is not contradicted by contrary circumstantial evidence.
31. In addition it is for the defendant institution, as the appointing authority, to cooperate with those claiming under one of its servants in order to discover the truth.
32. The applicant put forword a series of facts tending on the one hand to establish that suicide by drowning was improbable in view of the personality of her husband and on the other hand to prove that the deceased did not suffer from a grave psychiatric disorder such as to lead him to attempt to take his own life.
33. The defendant on the other hand offered to prove the psychiatric disorder of the deceased which would make the theory of his suicide highly probable and even certain.
34. By virtue of Article 21 of the Protocol on the Statute of the Court of Justice and of Articles 47, 49 and 60 of the Rules of Procedure the Court may require the parties to provide information or may order the verification of certain facts.
35. Therefore, before the Court makes any further decision, the applicant should be allowed to give particulars in writing of the facts which she intends to establish and the means of proving them, whilst reserving the right of the defendant to produce evidence in support of its own contentions with the right for both parties to bring contrary evidence being reserved.
36. The costs are reserved until the final judgment.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 179; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 73, 90 and 91; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (First Chamber), before delivering its final judgment, hereby declares and rules:
1 The date on which the applicant will give particulars of the facts which she offers to prove and indicate for each one the method of proof on which she intends to rely shall be fixed as 15 July 1971;
2 The Court will give a ruling fixing the date by which the defendant shall produce the evidence to be supplied by it;
3 The costs are reserved.