Opinion of Mr advocate-general Trabucchi

Mr President,

Members of the Court,

1. This action, brought by a former official against the Council, arises from the compensation for partial permanent invalidity paid by the defendant institution in accordance with the decision of an arbitration tribunal specially appointed to determine the rate to be applied. His invalidity was the result of a motor-car accident in July 1968 in which the applicant, at that time employed by the Council, was involved whilst not on duty. The contingency was covered by the individual — group insurance which at that time applied to officials of the Council under an insurance policy concluded by the Secretariat-General so as to lay down for the time being the conditions on which the benefits provided for under Article 73 of the Staff Regulations of Officials could be granted.

2. I am also in favour of dismissing the application for damages for the loss which the applicant claims to have sustained as a result of the defendant's failure to adopt the implementing measures prescribed in the second subparagraph of Article 73 (2), where provision is made for an annuity to be substituted for payment of the lump sum grant in the event of invalidity. In fact, once the applicant unreservedly accepted the award of a lump sum grant without even asking for an annuity instead, he cannot thereafter be heard to object to the fact that, at the material time, the defendant had not yet taken steps to adopt the necessary implementing measures to arrange in practice for an annuity to be substituted for the capital sum.

3. Nor is there any substance in the argument with regard to the alleged abnormal delay in calculating and paying the benefit due to him. The length of time which elapsed between the accident and the payment of compensation appears to have been due entirely to the need to wait until his invalidity had consolidated before taking a definite decision on its degree. Moreover, during the time which elapsed between the date of the accident and the date at which it was possible to determine the degree of invalidity, the applicant does not appear to have ever requested any payment on account.

4. The applicant further claims to have suffered undue loss because of the way in which the administration of the Council acted in transferring to Germany and converting into marks the capital sum awarded him as compensation for the permanent invalidity. The sum awarded to him in Belgian francs and, in accordance with his request, paid to an account in Germany, was changed into German currency at the normal rate on the free market currently adopted for banking transactions. The applicant maintains that the exchange operation should instead have been conducted at the more favourable rate of the official parity, in accordance with provisions of Article 63 of the Staff Regulations, which lays down that remuneration paid in a currency other than Belgian francs shall be calculated on the basis of the par values accepted by the International Monetary Fund which were in force on 1 January 1965.

5. On the other hand, this is a benefit which, whilst underwritten by an insurance organization in respect of an occurrence in the applicant's private life, is due to him from his institution because of the right conferred upon him under a provision of the Staff Regulations; I am therefore of the opinion that, in accordance with the practice usually observed by institutions when paying, even in a foreign country, sums due under the Staff Regulations of Officials, the payment ought not to have involved the recipient in any bank charges.

6. I therefore recommend that the application be upheld only in respect of the claim for repayment of bank charges debited to the applicant for the transfer, in Deutschmarks, to. his account in Germany, of the sum which he was awarded in Belgium in connexion with his invalidity.

1 Translated from the Italian.