Report for the Hearing delivered in Joined Cases 169/83 and 136/84

I — Facts and written procedure

1. Mr Gerhardus Leussink was in a road accident which occurred on 7 April 1978 in the Federal Republic of Germany. He was on mission with a colleague from the Commission and was travelling in a Mercedes motor car belonging to the Commission, and driven by a Commission official.

2. In the accident report of 8 April 1978, the German authorities described the circumstances of the accident as follows:

3. In its draft decision of 19 November 1982, referred to in Article 21 of the Rules on the Insurance of Officials of the European Communities against the risk of accident and of occupational disease (adopted pursuant to Article 73 of the Staff Regulations and hereinafter referred to as the Insurance Rules), the Commission, relying upon an earlier report by the doctor appointed by the institution, suggested that the injuries sustained by Mr Leussink on 16 September 1982 should be consolidated as a permanent invalidity of 50%.

4. On 5 April 1983 Mr Leussink sent the Commission a request for compensation, worded in substantially the same terms as his application to the Court in Case 136/84.

5. On the same day Mrs Maria Brummelhuis, acting in her own name and jointly with Mr Leussink in their capacity of legal representatives of their four daughters, Monica, Mirjam, Mechteld and Maud, who were minors at that time, also sent the Commission a request for compensation for the non-material damage suffered by herself and the children, quantified as in the application in Case 169/83. The wording of both requests of 5 April 1983 was substantially the same.

6. After seeking and obtaining further explanations about the breakdown of the 50% figure, Mr Leussink informed the Commission on 27 May 1983 that he could not accept that rate of invalidity and that he wished to refer the matter to the Medical Committee in accordance with Articles 21 and 23 of the Insurance Rules.

7. In the meantime, a forensic pathologist appointed in a parallel procedure (for private insurance purposes) found, by reference to a set scale, that the invalidity was 65%.

8. On 2 August 1983 Mrs Brummelhuis and the four Leussink children, represented by herself and Mr Leussink, brought an action pursuant to Article 178 of the EEC Treaty which was registered by the Court Registry under No 169/83. By letter of 11 April 1986 Monica Leussink, who in the meantime had reached the age of majority under Belgian law, expressed her wish to pursue in her own name the proceedings commenced against the Commission.

9. Pursuant to Article 90 (2) of the Staff Regulations, Mr Leussink lodged a complaint on 3 November 1983 with the Secretary-General of the Commission regarding his failure to reply to his request of 5 April 1983.

10. On 25 April 1984 the Commission informed Mr Leussink that the doctor appointed by the institution had found in favour of consolidating the injuries as at 8 March 1984 with a rate of permanent invalidity of 65%.

11. On 14 May 1984 Mr Leussink asked to be sent a breakdown of the 65% assessment and to be informed of the percentage which he might be allowed under Article 14 of the Insurance Rules.

12. Since the complaint under Article 90 (2) of the Staff Regulations remained unanswered, on 23 May 1984 Mr Leussink lodged an application at the Court Registry which was registered under No 136/84.

13. By letter of 25 June 1984 the Commission replied that the rate of 65% covered the compensation provided for in Article 12 and 14 of the Insurance Rules.

14. By that time Mr Leussink had resumed his normal duties and had been working for some time.

15. By letter of 20 November 1985 the Commission informed Mr Leussink that the Medical Committee, which Mr Leussink had asked to be consulted, had found inter alia that he had no pre-existing condition which could have altered the consequences of the accident, that consolidation had occurred on 4 October 1985 and that the permanent invalidity should be fixed at 75%, including 10% for psychological and non-material damage.

16. By letter of 30 December 1985 Mr Leussink notified the Commission that he was in agreement with the assessment rating of 75%.

17. The Commission paid Mr Leussink the sum of BFR 6286836 as compensation for a degree of invalidity of 65%, and on 5 December 1985 it paid him an additional sum of BFR 967206, making the total compensation equivalent to a degree of invalidity of 75%.

18. The applicants describe the consequences of the accident, for which they seek compensation, as follows.

19. The Court decided to assign Case 169/83 to the Second Chamber.

20. By an order of 15 May 1985 made pursuant to Article 43 of the Rules of Procedure, the Court (Second Chamber) joined the two cases for the purposes of the oral procedure and the judgment.

21. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (Second Chamber) decided to open the oral procedure and requested the Commission to reply inter alia to the questions set out below in section IV.

II — Conclusions of the parties

1. In his application in Case 136/84, the applicant, Gerhardus Leussink, claims that the Court should:

2. The Commission contends that the Court should:

3. In their application in Case 169/83, the applicants, Mrs Brummelhuis and her children Monica, Mirjam, Mechteld and Maud Leussink, claim that the Court should:

4. The Commission contends that the Court should dismiss the application as unfounded and order the applicants to pay the costs.

III — Submissions and arguments of the parties

The relationship between the accident insurance referred to in Article 73 of the Staff Regulations and the claim for further compensation; admissibility of the application in Case 136/84

1. The Commission takes the view that the sums payable to the applicant pursuant to the Staff Regulations are lump-sum compensation for the various forms of injuries and that the scheme of the Insurance Rules adopted under the Staff Regulations precludes any claim based on general law.

2. The applicants maintain that Article 73 of the Staff Regulations and the Insurance Rules are not intended to make good all the consequences of an accident in which an official is involved but only its economic consequences. In this regard Mr Leussink refers in particular to Article 10 of the Insurance Rules, which makes provision for the reimbursement of expenses, that is to say sums paid for the care and treatment designed to restore the physical and mental well-being of the official. He further argues that Article 14 of the Insurance Rules is concerned with aesthetic damage, which has to be distinguished from non-material damage. Consequently, compensation is given under the provisions of the Staff Regulations and the Insurance Rules only for economic and aesthetic damage. In pleading Article 215 of the Treaty in support of their claims, the applicants maintain that they are entitled to damages for non-material injury, which is not covered by the Insurance Rules.

The Commission's liability

1. The applicants base their action on the second paragraph of Article 215 of the EEC Treaty. They claim that the Commission's liability should be determined in accordance with the general principles common to the laws of the Member States and not on the basis of the national law of the Member State in which the accident occurred.

2. The Commission contends that, in view of the differences between the legal systems of the Member States in the field in question, it is not possible for the time being to define any general principle truly common to all of them. In such a case, it is appropriate to apply the traditional principle of lex loci delicti commissi. Since the accident occurred in Germany, the Commission's liability should therefore be determined in conformity with German law.

The damage suffered and the causal link

1. According to the applicants, the non-material damage suffered by Mr Leussink is clear from the medical report of 8 March 1984 drawn up by the Commission's Medical Officer in which Mr Leussink's present personality is described and a rate of invalidity proposed.

2. As far as the damage suffered is concerned, the Commission stresses once again that the lump-sum compensation provided for by the Staff Regulations and already paid to Mr Leussink also includes a sum for pain and suffering or adverse effects on his social and family relationships.

IV — Questions asked by the Court

The Court asked the Commission to reply in writing to the following questions:

By letter of 21 April 1986 the Commission replied that the heads of compensation provided for in Articles 12 and 14 of the Insurance Rules had to be regarded as cumulative benefits which could be awarded together. In fact they relate to two different situations. Article 12 deals (implicitly) with invalidity affecting the official's capacity for work, whereas Article 14 deals with ... any injury or permanent disfigurement which, although not affecting his capacity for work, constitutes a social defect and has an adverse effect on his social relations. Should an official suffer invalidity which has only a minor effect on his capacity for work, he may claim the application of both Article 12 and Article 14.

As far as the compensation procedure is concerned, in this case it was based on Article 12 and on Article 14 of the Insurance Rules.

V — Oral procedure

At the sitting on 29 May 1986, the applicants, Gerhardus Leussink, Mrs Brummelhuis and the children, Monica, Mirjam, Mechteld and Maud Leussink, represented by Benoît Humblet, and the Commission, represented by Piet Vercruyse, presented oral argument.

1 Language of the Case: Dutch.