Liliane Chaumont-Barthel v European Parliament (103/81)

III —Submissions and arguments of the parties

The applicant has put forward two submissions.First submission: Infringement of Article 73 of the Staff RegulationsAccording to the applicant the benefits paid under the Staff Regulations in respect of partial permanent incapacity for work cover, in the case of accident, only physical injuRY which has financial consequences for the victim on the one hand and for the institution which employs him on the other.In respect of matters not covered by subrogation, for example pretium doloris, nonmaterial damage, damage caused to a vehicle or to clothing, victims may obtain compensation directly from the person responsible.In this case the sum awarded in respect of the adverse effect on bodily health comes under pretium doloris to which subrogation does not apply, as is shown by the diagnosis of the doctor who, in his report, speaks of “temporary traumatic consequences and minor long-term sequelae” in the form of “discomfort in the knee ... infrequent occipital pain ... and stabbing pains in the region of the scars on the knee”, and thus draws a distinction between incapacity for work (which he did not find) and the adverse effect on bodily health.Thus, in reducing the allowance awarded in respect of partial permanent invalidity, the decision of 24 July 1980 infringed Article 73 of the Staff Regulations and the Community rules relating to it.The Parliament replies that according to Article 2 of the Rules, “An accident means any occurrence or external factor of a sudden, violent or abnormal nature adversely affecting an official's bodily or mental health”. The Court, too, interpreted invalidity for the purposes of Article 73 as referring to an impairment of the official's bodily health, irrespective of the degree of any incapacity for work resulting from the accident (judgment of 2 October 1979, Case 152/77 Miss B v Commission [1979] ECR 2819).The Parliament emphasizes that notwithstanding the applicant's references to an “incapacity for work” the allowance in question is awarded whatever may be the capacity of the person concerned for continuing to perform his duties.On the other hand, as regards the expert's report, the doctor considered that in the absence of functional consequences, properly so called, the accident did not lead to any incapacity for work, properly so called. Further, he was careful to make a distinction between nonmaterial damage in respect of pain and suffering on the one hand, and adverse effect on bodily health on the other.Although the Parliament's medical officer found there was partial permanent invalidity of 6% he used, in his opinion, terms similar to those employed by the expert. For his part he did not find there was any incapacity for work.The applicant considers that the principles stated ii. Case 132/77 should not apply in this case. The judgment cited by the Commission relates solely to the concept of partial permanent invalidity whereas the applicant is not contesting the degree of partial permanent invalidity determined by the Parliament.Subrogation relates to benefits payable under the Staff Regulations in case of accident which are in the nature of compensation for purely financial loss, to the exclusion of any damage which is not of that nature. The purpose of subrogation is to prevent a victim of an accident from receiving compensation twice in respect of the same damage.In Luxembourg law there is an adverse effect on bodily health only where there is a finding of partial permanent invalidity and that invalidity is not reflected in a loss of income. In the absence of those two conditions there is no adverse effect on bodily health, but nonmaterial damage in the broad sense of the term which may be defined as encompassing cosmetic damage, detriment to leisure activities, general sequelae and inconveniences in daily life resulting from the consequences of the accident. It follows that what the expert had described, no doubt improperly, as adverse effect on bodily health constitutes' nonmaterial damage under Luxembourg law.That nonmaterial damage was not covered by the institutions since it is not covered by the benefits payable under the Staff Regulations and the institutions cannot be subrogated in law by virtue of a payment which they have not made.The Parliament explains that it is not maintaining that this case should be dealt with by analogy with Case 152/77. It cited that case in order to refute the applicant's argument to the effect that Article 73 (2) of the Staff Regulations covers incapacity for work, that the benefits payable under the Staff Regulations do not provide for an allowance for adverse effect on bodily health and that the content of that article should be construed in the light of the national laws of the Member States.According to the Parliament the issue between the parties is governed by Community law and not by Luxembourg law. In Case 132/77 the Court dismissed any reference to comparable provisions contained in national laws. The Parliament is unable to accept the definition of nonmaterial damage which is now propounded by the applicant, and in particular it cannot agree that damage covers “adverse effect on bodily health” recognized as the sequelae of an accident which has no effect upon capacity to work.Second submission: Infringement of the principles common to the laws of the Member States and underlying the Community RulesAccording to the applicant the concepts of incapacity for work and adverse effect on bodily health are known to the domestic laws of most of the Member States, and are distinguished on the basis of a single test — the existence or absence of financial consequences. Damage resulting from adverse effect on bodily health, which consists in any physical suffering, any infirmity or sequela resulting from any injury and which has no effect either of a financial nature or in regard to capacity for work falls within the principle of compensation for nonmaterial damage.Thus there can be no link between the allowance paid under the Staff Regulations and damages awarded for “traumatic consequences and ... long-term sequelae” and the contested decision was adopted in breach of the principles common to the laws of Member States which probably provided the basis for the Community Rules.According to the Parliament Article 73 is a self-sufficient provision which must be applied and interpreted as such, without reference to comparable but different rules which may exist in the Member States. Such was the Court's judgment in Case 152/77, referred to above.