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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT (First Chamber)
9 September 1998 (1)
(Appeal - Action for damages)
In Case C-257/98 P,
Arnaldo Lucaccioni, a former official of the Commission of the European
Communities, residing in Paris, represented by Georges Vandersanden, Laure Levi
and Olivier Eben, of the Brussels Bar, with an address for service in Luxembourg
at the offices of Fiduciaire Myson SARL, 30 Rue de Cessange
appellant,
APPEAL against the judgment of the Court of First Instance of the European
Communities (Second Chamber) of 14 May 1998 in Case T-165/95 Lucaccioni v
Commission [1998] ECR-SC I-A-203 and II-627, seeking to have that judgment set
aside,
the other party to the proceedings being:
Commission of the European Communities, represented by Julian Currall, Legal
Adviser, acting as Agent, assisted by Jean-Luc Fagnart, of the Brussels Bar, with
an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of
its Legal Service, Wagner Centre, Kirchberg,
defendant at first instance,
THE COURT (First Chamber),
composed of: P. Jann, President of the Chamber, D.A.O. Edward and L. Sevón
(Rapporteur), Judges,
Advocate General: S Alber,
Registrar: H.A. Rühl, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 4 March 1999,
after hearing the Opinion of the Advocate General at the sitting on 20 April 1999,
gives the following
Judgment
- By application lodged at the Registry of the Court of Justice on 15 July 1998, Mr
Lucaccioni brought an appeal under Article 49 of the EC Statute and the
corresponding provisions of the ECSC and EAEC Statutes of the Court of Justice
against the judgment of the Court of First Instance of 14 May 1998 in Case T-165/95 Lucaccioni v Commission [1998] ECR-SC I-A-203 and II-627 ('the judgment
under appeal'), by which the Court of First Instance dismissed the action for
damages which he had brought against the Commission.
- According to the judgment under appeal, the appellant submitted in 1990 a request
to be recognised as suffering from an occupational disease. The Commission first
of all referred his case to the Invalidity Committee provided for in Article 78 of the
Staff Regulations of Officials of the European Communities ('the Staff
Regulations') and then initiated the procedure for recognition of an occupational
disease provided for in Article 73 of the Staff Regulations.
- The procedure under Article 78 of the Staff Regulations led to the appellant's
being retired and granted an invalidity pension equal to 70% of his basic salary.
- The procedure under Article 73 of the Staff Regulations, which was conducted at
the same time as the procedure under Article 78, resulted, on the one hand, in the
appellant's being recognised as suffering from an occupational disease and, on the
other hand, in the determination of a rate of permanent total invalidity of 130%,
including 30% by way of compensation, inter alia, for the serious psychological
disturbances he had experienced. In accordance with Article 73 of the Staff
Regulations, the Commission paid to the appellant a sum of BEF 25 794 194.
- The appellant took the view, however, that that sum was not sufficient to make
good all the harm which he had suffered, having regard to the conditions in which
he had had to work. He therefore brought an action for damages before the Court
of First Instance.
- In the judgment under appeal, the Court of First Instance held that the appellant
had failed to establish that the harm he had suffered had not been made good by
the grant of the sum paid under Article 73 of the Staff Regulations, and accordingly
dismissed the application.
- The appeal is based on a single plea in law alleging that Community law has been
infringed. That plea is divided into four limbs. The first limb claims that the
principles of fault liability have been incorrectly applied, inasmuch as the Court of
First Instance failed to examine the factors giving rise to liability and, more
specifically, the fault on the part of the Commission. The second limb also claims
that the principles of fault liability have been incorrectly applied, inasmuch as the
Court of First Instance did not correctly assess the material and non-material
damage suffered by the appellant. The third limb claims that the judgment under
appeal did not state the grounds on which it was based, inasmuch as the Court of
First Instance took it upon itself, without stating any appropriate reasons therefor,
to include the material and non-material harm suffered by the appellant in the
capital sum which was paid to him under the social security scheme for Community
officials. The fourth limb claims that the Court of First Instance wrongly held that
the Commission was not to be criticised for the way in which it had exercised its
discretion when it failed to ask the Invalidity Committee to deliver an opinion on
the occupational origin of the appellant's disease.
The first limb of the plea
- In the first part of the first limb of the plea, the appellant claims that, in paragraph
57 of the judgment under appeal, the Court of First Instance misapplied the rules
on fault liability inasmuch as it confined itself to examining the harm caused to him,
on the ground that 'even if fault on the part of the Commission were established,
the Community would not incur liability unless the [appellant] could show that he
had actually suffered harm'.
- According to the appellant, the Court of First Instance disregarded the principle
established by the Court of Justice in Joined Cases 169/83 and 136/84 Leussink and
Others v Commission [1986] ECR 2801, paragraphs 18 to 20, which lays down the
obligation to give a ruling first on the liability of the institution and then on the
other elements of an action for damages, in particular on whether the alleged harm
has been made good by the benefits paid under Article 73 of the Staff Regulations.
- The Commission's reply is essentially that the three conditions giving rise to liability
on the part of the Community under the second paragraph of Article 215 of the
EC Treaty (now the second paragraph of Article 288 EC) are cumulative, so that
an institution does not incur liability if one of the three conditions has not been
satisfied. The Court of Justice, it submits, did not depart from that rule in Leussink
and Others v Commission, cited above, but examined the three factors giving rise
to liability only because, in that case, the compensation provided for by the Staff
Regulations was not sufficient to afford full redress to an official involved in an
accident or suffering from an occupational disease.
- It should be pointed out in this respect that, in paragraph 56 of the judgment under
appeal, the Court of First Instance drew attention to the settled case-law which
states that the Community can be held liable only if a number of conditions are
satisfied as regards the illegality of the allegedly wrongful act committed by the
institutions, the actual harm suffered and the existence of a causal link between the
act and the damage alleged to have been suffered (see, inter alia, Case C-136/92 P
Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 42, and
Case T-36/93 Ojha v Commission [1995] ECR-SC I-A-161 and II-497, paragraph
130).
- In paragraph 57, the Court of First Instance held that it followed that, even if fault
on the part of the Commission were established, the Community would not incur
liability unless the appellant could show that he had actually suffered harm.
- As the Advocate General has noted in point 41 of his Opinion, neither the case-law
of the Court of Justice nor that of the Court of First Instance supports the
conclusion that the conditions giving rise to the liability of an institution must be
examined in a particular order.
- In so far as those three conditions must be satisfied cumulatively, the fact that one
of them has not been satisfied is a sufficient basis on which to dismiss an action for
damages.
- The judgment in Leussink and Others v Commission cannot be regarded as
establishing the principle that the condition relating to fault must be examined as
a matter of priority. The fact that that condition was examined first in Leussink and
Others v Commission was not attributable to any legal requirement.
- The Court of First Instance was therefore correct in holding that it could consider
first of all whether the appellant had established the existence of harm not yet
made good by the compensation which had been granted him pursuant to Article
73 of the Staff Regulations.
- In the second part of the first limb of the plea, the appellant criticises the Court
of First Instance for having confused two totally independent compensation
schemes subject to different criteria and governed by different systems of
reparation: on the one hand, a lump-sum assessment scheme (Article 73 of the
Staff Regulations) and, on the other, a scheme based on liability under ordinary law
whereby compensation for damage is commensurate with the faults committed by
the authority responsible. Comparison of the damage in question under those two
schemes is possible only if the factors underlying it, namely permanent total
invalidity in the case of Article 73 of the Staff Regulations and the examination of
the faults which the Commission is accused of having committed in the case of the
scheme based on liability, have been established at the outset. It is, after all, by
reference to the faults committed by the Commission that the causal link and the
damage suffered by the victim are measured.
- The Commission submits that the appeal is inconsistent inasmuch as it claims that
the Court of First Instance, on the one hand, disregarded the principles laid down
in Leussink and Others v Commission, which prescribes compensation under
ordinary law in addition to that payable under the staff insurance scheme, and, on
the other hand, compared two totally different compensation schemes. The
Commission also disputes the principles of liability under ordinary law as the
appellant describes them.
- It should be pointed out in this respect that the insurance cover against
occupational disease and accident provided for in Article 73 of the Staff
Regulations and in the Rules on the insurance of officials of the European
Communities against the risk of accident and of occupational disease ('the
Insurance Rules') allows an injured official to be paid lump-sum compensation by
the institution by which he is employed. That compensation is calculated on the
basis of the rate of invalidity and the basic salary of the official, without any regard
to the liability of the person responsible for the accident or that of the institution
which laid down the working conditions that may have contributed towards the
onset of the occupational disease.
- Such lump-sum compensation cannot, however, lead to double compensation for
the harm suffered. It is to that end, moreover, that, where an accident or sickness
is caused by a third party, Article 85a of the Staff Regulations provides that the
Communities are to stand subrogated to the official's rights and rights of action,
inter alia in respect of the benefits paid under Article 73 of the Staff Regulations.
- Similarly, if an accident or sickness is attributable to the institution by which the
official is employed, he cannot claim double compensation for the harm suffered,
once under Article 73 of the Staff Regulations and again under Article 215 of the
Treaty. In this sense, the two compensation schemes are not, contrary to the
appellant's claim, independent.
- It was with regard to the need for full, not double, compensation that the Court of
Justice, in paragraph 13 of the judgment in Leussink and Others v Commission,
recognised the right of an official to seek additional compensation where the
institution is responsible for the accident according to ordinary law and the benefits
payable under the staff insurance scheme are insufficient to provide full
compensation for the injury suffered.
- It follows that, in holding in paragraph 72 of the judgment under appeal that, in
accordance with the principle established in Leussink and Others v Commission, the
benefits received under Article 73 of the Staff Regulations following an accident
or the onset of an occupational disease must be taken into account by the Court
of First Instance for the purposes of assessing the harm eligible for reparation in
an action for damages brought by an official on the basis of a fault capable of
rendering the institution by which he was employed liable, the Court of First
Instance correctly applied Article 215 of the Treaty and Article 73 of the Staff
Regulations.
- It follows that the first limb of the plea must be dismissed.
The second limb of the plea
- In the first part of the second limb of the plea, Mr Lucaccioni takes issue with the
finding of the Court of First Instance in paragraph 73 et seq. of the judgment under
appeal that the amount paid under Article 73 of the Staff Regulations was
appropriate compensation for the harm suffered. The request made by Mr
Lucaccioni was not the same as a request under Article 73 of the Staff Regulations.
It was an additional request for compensation based on different grounds and
subject to different compensation criteria. The Court of First Instance was
therefore wrong to hold in paragraph 74 of the judgment under appeal that the
judgment in Case 152/77 B v Commission [1979] ECR 2819 concerned a different
issue and could not be relied on in order to limit the scope of Leussink and Others
v Commission, whereas, in B v Commission, the Court of Justice defined, in
principle, the scope and purpose of the benefits authorised by Article 73 of the
Staff Regulations as being benefits intended exclusively to compensate for the
impairment of an official's bodily or mental health, but not the material harm for
which he claims compensation.
- The Commission submits that the judgment in Leussink and Others v Commission
censures the cumulative award of the capital sum paid under Article 73 of the Staff
Regulations and of damages sought by way of an action for reparation of a fault
under ordinary law. This limb of the plea, it contends, has no basis in law inasmuch
as the appellant maintains that the Court of First Instance disregarded the principle
laid down in Leussink and Others v Commission.
- It should be pointed out in this respect that, inasmuch as the appellant is criticising
the Court of First Instance for having confused his request with a request for
compensation based on Article 73 of the Staff Regulations, the first part of the
second limb of the plea is essentially the same as the second part of the first limb
of the plea, which has already been examined.
- As the Court has stated in paragraph 22 of this judgment, the judgment in Leussink
and Others v Commission applies the principle that an official who has suffered
harm following a fault committed by an institution must receive full, but not double,
compensation. The judgment in B v Commission, which relates to assessment of the
rate of invalidity to be awarded to an official, does indeed concern a different issue
and does not in any way invalidate the principle applied by the Court of Justice in
Leussink and Others v Commission.
- The Court of First Instance was therefore right to hold in paragraph 74 of the
judgment under appeal that there was no valid reason not to take into account the
benefits received under Article 73 of the Staff Regulations when assessing the
material damage eligible for compensation in circumstances similar to those of this
case, such as loss of earnings.
- In the second part of the second limb of the plea, the appellant disputes the
assessment by the Court of First Instance of the harm which he incurred. In his
view, the material damage arising from the difference between his invalidity pension
and his salary as an official (had he subsequently been reinstated) is not made good
by the 100% awarded on grounds of total permanent invalidity.
- It should be observed in this respect that, according to the settled case-law of the
Court, by virtue of Article 168a of the EC Treaty (now Article 225 EC) and the
first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal
may be based only on grounds relating to the infringement of rules of law, to the
exclusion of any appraisal of the facts (see, inter alia, Case C-283/90 P Vidrányi v
Commission [1991] ECR I-4339, paragraph 12, and Case C-19/95 P San Marco v
Commission [1996] ECR I-4435, paragraph 39).
- Furthermore, the Court of Justice has no more jurisdiction, on principle, to
examine the evidence which the Court of First Instance accepted in support of
those facts than to find the facts themselves (Commission v Brazzelli Lualdi and
Others, paragraph 66).
- Provided that that evidence has been properly obtained and the general principles
of law and the rules of procedure in relation to the burden of proof and the taking
of evidence have been observed, it is for the Court of First Instance alone to assess
the value which should be attached to the evidence produced to it. The appraisal
by the Court of First Instance of the evidence put before it does not therefore
constitute, save where the evidence has been fundamentally misconstrued, a point
of law which is subject, as such, to review by the Court of Justice (Case C-7/95 P
Deere v Commission [1998] ECR I-3111, paragraph 22).
- For the same reasons, once the Court of First Instance has found the existence of
damage, it alone has jurisdiction to assess, within the confines of the claim, the
method and extent of compensation for the damage (see Commission v Brazzelli
Lualdi and Others, paragraph 66, and Case C-259/96 P Council v De Nil and Impens
[1998] ECR I-2915, paragraph 32).
- However, in order for the Court to be able to review the judgments of the Court
of First Instance, those judgments must be sufficiently reasoned and, as regards the
assessment of the damage, indicate the criteria taken into account for the purposes
of determining the amount decided upon (see Council v De Nil and Impens, cited
above, paragraphs 32 and 33).
- In order to be rendered meaningful, the second part of the second limb of the plea
must be construed as alleging that the judgment under appeal fails to state the
grounds on which it is based as regards the criteria for determining the amount
regarded by the Court of First Instance as making good the material damage
suffered by the appellant.
- In paragraph 76 of the judgment under appeal, the Court of First Instance referred
to BEF 8 400 000 as the figure arrived at by way of the actuarial calculation carried
out by the appellant and described in paragraphs 59 and 60 of that judgment, which
represents the capital sum that would be required to cover the loss of regular
income resulting from the difference between the invalidity pension and his salary
as an official up to the age of retirement, assuming he were to retire at 65.
- It follows that, by referring to that precise calculation by the appellant himself, and
by holding in paragraph 77 of the judgment under appeal that, even on the basis
of an invalidity assessment of only 100%, the amount of BEF 19 841 688 paid to
Mr Lucaccioni was on its own sufficient to compensate for the harm suffered, the
Court stated the reasons on which its decision was based.
- In the third part of the second limb of the plea, the appellant calls into question
the fact that the Court of First Instance took into account the additional 30%
awarded under Article 14 of the Insurance Rules. In his submission, that 30%
provides compensation for only physical harm and does not therefore constitute
appropriate compensation for the non-material damage, sexual injury and loss of
amenity which he claims to have suffered.
- Mr Lucaccioni also contests the judgment under appeal in so far as it states in
paragraph 88 that he 'has produced no evidence that an amount of that order
might be awarded, by way of compensation for comparable non-material damage,
by the courts of the Member States', notwithstanding that he referred to a
judgment of the French Court of Cassation and, after the close of the written
procedure, offered to produce other decisions.
- With regard to the assessment of the non-material harm, the Commission submits
that the Court of First Instance was right to have regard to Article 14 of the
Insurance Rules in assessing the extent of the non-material harm which Mr
Lucaccioni claimed to have suffered, since the second paragraph of that article
refers expressly to Article 12 of the Insurance Rules, which, for the purposes of
assessing injuries not resulting in total invalidity, refers to a scale of rates the first
line of which mentions psychological disturbances. This limb of the plea is therefore
unfounded inasmuch as the appellant claims that the judgment under appeal
misapplied Article 14 of the Insurance Rules.
- Furthermore, the Commission states that Mr Lucaccioni is claiming compensation
for non-economic damage the actual existence and extent of which he has never
demonstrated.
- With regard, finally, to the criticism of paragraph 88 of the judgment under appeal,
the Commission submits that it is directed against a ground included only for the
sake of completeness and is therefore inadmissible. Even if it were admissible, it
would still be unfounded since none of the decisions cited by Mr Lucaccioni
contained an assessment of non-material damage.
- For reasons similar to those given in connection with the second part of the second
limb of the plea, the third part of the second limb should be construed as alleging
that the judgment under appeal does not state the grounds on which it is based as
regards the criteria adopted for assessing the non-material harm suffered by Mr
Lucaccioni.
- Before examining the criteria adopted by the Court of First Instance, however, it
is appropriate to consider whether, in holding that the appellant had not produced
any evidence that an amount of the order of BEF 5 950 000 might be awarded to
him, by way of compensation for comparable non-material damage, by the courts
of the Member States, the Court of First Instance misconstrued the evidence
properly adduced by the appellant.
- It should be pointed out in this respect that the decisions of national courts to
which the appellant refers in his appeal were sent by him to the Court of First
Instance by letter of 1 April 1998, and thus after the oral procedure had taken
place on 9 October 1997.
- The Court of First Instance was therefore right not to take account of those
decisions.
- It follows that the Court of First Instance was right to hold in paragraph 88 of the
judgment under appeal that the appellant had adduced no evidence that an amount
of the order of BEF 5 950 000 might have been awarded by the courts of the
Member States by way of compensation for non-material harm comparable to that
suffered by the appellant.
- As regards the criteria used by the Court of First Instance in determining whether
appropriate compensation had been made for the non-material harm suffered by
the appellant, that Court took into consideration, in paragraph 85 of the judgment
under appeal, the sum of BEF 5 950 000 which had been paid to him under Article
14 of the Insurance Rules, and which, according the Medical Committee, was
awarded 'having regard to the permanent signs (scars, deformation of the left
breast, reduced muscle strength in the left arm) and the serious psychological
disturbances which Mr Lucaccioni [was] experiencing'.
- In paragraph 88 of the judgment under appeal, the Court of First Instance held
that there was no evidence that an amount of that order might be awarded, by way
of compensation for comparable non-material harm, by the courts of the Member
States.
- For the sake of completeness, in paragraph 90, the Court of First Instance
calculated the amount of compensation for the non-material harm incurred which
the appellant would receive if the sum of BEF 8 400 000, which, on the basis of a
precise actuarial calculation, he regarded as representing compensation for the
material harm suffered by him, were deducted from the BEF 25 800 000 paid to
him by the Commission.
- It must be held that, by using several different criteria in order to determine
whether the amount received by Mr Lucaccioni afforded him appropriate
compensation for the non-material harm suffered, the Court of First Instance
provided sufficient grounds for the judgment under appeal.
- It follows that the second limb of the plea must also be dismissed.
The third limb of the plea
- In the third limb of the plea, Mr Lucaccioni takes issue with paragraphs 76, 77 and
87 of the judgment under appeal inasmuch as the Court of First Instance failed,
other than by way of an 'equitable' and entirely subjective assessment, to give any
objective and verifiable explanation, or to state any reasons, for including the
damage suffered in the benefits paid under Article 73 of the Staff Regulations and
Article 14 of the Insurance Rules.
- It should be pointed out, however, that this limb of the plea, alleging that the
judgment under appeal fails to provide reasons for the assessment of the damage,
is essentially the same as the second and third parts of the second limb of the plea
as construed and already dealt with by the Court.
- In those circumstances, the third limb of the plea must be dismissed for the same
reasons.
The fourth limb of the plea
- In the fourth limb of the plea, entitled 'failure to award compensatory interest on
the capital sum paid under Article 73 of the Staff Regulations by way of reparation
for the delay in dealing with the appellant's case', Mr Lucaccioni takes issue with
the conclusion of the Court of First Instance in paragraph 144 that the Commission
'[was] not to be criticised for the way in which it exercised its discretion when it
failed to ask the Invalidity Committee to deliver an opinion on the occupational
origin of the [appellant's] disease' and, in paragraph 147, that it '[had] not
overstepped that discretion in the present case'.
- According to the appellant, taking into account his request that a procedure be
initiated for him to be recognised as suffering from an occupational disease, the
only proper way for the Commission to define the task of the Invalidity Committee
was for it to ask it to deliver an opinion on the possible origin of his invalidity, in
accordance with the second paragraph of Article 78 of the Staff Regulations.
- The Commission submits that this limb of the plea is inadmissible, in so far as it
specifies neither the contested aspects of the judgment which it seeks to have set
aside nor the legal arguments in support of that request. Mr Lucaccioni, it
contends, merely reproduces the pleas in law and arguments already put before the
Court of First Instance.
- It should first of all be pointed out that no link can be established between the title
and the content of the fourth limb of the plea other than by reference to paragraph
112 of the judgment under appeal, in which the Court of First Instance summarised
the argument put forward by Mr Lucaccioni to the effect that the procedure would
have been completed more quickly if his case had been referred to the Invalidity
Committee on the basis of the second paragraph of Article 78 of the Staff
Regulations.
- With regard to the content of the plea, it follows from the first paragraph of Article
51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of
Procedure that an appeal must indicate precisely the contested elements of the
judgment which it is requested to have set aside and the legal arguments in support
of that request (see, inter alia, Case C-303/96 P Bernardi v Parliament [1997] ECR
I-1239, paragraph 37, and Case C-317/97 P Smanor and Others v Commission [1998]
ECR I-4269, paragraph 20).
- Inasmuch as the fourth limb of the plea alleges that the Court of First Instance
held that the Commission had not disregarded the procedures set out in Articles
73 and 78 of the Staff Regulations, but does not specify the legal basis on which the
Court of First Instance ought to have formed the view that the Commission had
infringed those provisions by failing to ask the Invalidity Committee, set up in 1991
on the basis of Article 78 of the Staff Regulations, to deliver an opinion on the
possible occupational origin of the appellant's disease, it must be declared
inadmissible.
- Furthermore, even if this limb were declared admissible, it would still be irrelevant.
In order to obtain compensation for the damage attributable to a delay in
conducting proceedings for which the Commission can be held responsible, the
onus is on the applicant to adduce proof of fault on the part of the institution, of
the damage suffered, and of a causal link between the two, these three conditions
being cumulative.
- The appellant does not dispute the finding by the Court of First Instance in
paragraph 143 of the judgment under appeal that the fact that the Invalidity
Committee was not asked to deliver an opinion on the occupational origin of the
disease did not cause him any harm since he was already entitled to the maximum
pension rate referred to in the second paragraph of Article 78 of the Staff
Regulations.
- This limb of the plea must therefore be declared inadmissible.
- It follows from all the foregoing that the plea in law is, in part, inadmissible and,
in part, unfounded, and the appeal must therefore be dismissed.
Costs
- Under Article 69(2) of the Rules of Procedure, which is applicable to appeal
proceedings by virtue of Article 118, the unsuccessful party is to be ordered to pay
the costs if they have been applied for in the successful party's pleadings. Under
Article 70 of those Rules, in proceedings between the Communities and their
servants, the institutions are to bear their own costs. However, by virtue of the
second paragraph of Article 122 of the Rules of Procedure, Article 70 does not
apply to appeals brought by officials or other servants of an institution against the
latter. Since the appellant has been unsuccessful in his appeal, he must be ordered
to pay the costs.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Dismisses the appeal;
2. Orders Mr Lucaccioni to pay the costs.
Delivered in open court in Luxembourg on 9 September 1999.
R. Grass
P. Jann
Registrar
President of the First Chamber
1: Language of the case: French.
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