C-72/76

JUDGMENT OF 16. 2. 1977 — CASE 72/76 LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ v TÖPFER

CELEX: 61976CJ0072
Datum: 1977-02-16
Källa: eur-lex.europa.eu

In Case 72/76 Reference to the Court under Article 177 of the EEC Treaty by the French Cour de Cassation for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order making the reference to this Court and the written observations submittet under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and written procedure

Mr Töpfer, a German national, died on 11 September 1968 as the result of a traffic accident in Mulhouse, where he lived. The widow was granted a pension by the Landesversicherungsanstalt Rheinland-Pfalz (hereinafter referred to as ‘the LVA’), a German social security institution with which the victum was registered. The Tribunal de Grande Instance, Mulhouse, held Mr Weber responsible for the accident and ordered him, together with his insurance company, Le Phénix, to pay compensation for all the damage arising from it. Basing itself on Paragraph 1542 of the Reichsversicherungsordnung (German Social Security Code, hereinafter referred to as ‘the RVO’), which provides for the subrogation of a social security institution to the rights of a victim or of his legal successors against the third party liable to the extent of the benefits which it has paid, and upon Article 52 of Regulation No 3 of the Council, the LVA, as an intervener in the action, appealed against that judgment and claimed repayment of all the pension payments which it had made to the widow Mrs Töpfer since the death of her husband.

By a judgment of 21 June 1974, after fixing at FF 64479,12 the total amount of the damages for which the defendants were liable to the widow at common law, the Cour d'Appel, Colmar, held that the action of the LVA was well founded, but granted the LVA the repayment of the sum of DM 7765,09 only, in respect of the period between the date of Mr Töpfer's death and the date on which he would have been entitled to an old-age pension by virtue of his age, since the consequences of the accident were no longer the reason for the payment of a pension beyond the latter date. According to the Cour d'appel, Colmar, Article 52 is limited to substituting a new claimant for the old, but does not modify the conditions governing the creation and the limits of extra-contractual liability, which remain subject solely to national law (judgment of the Court of Justice of 9 December 1965, Case 44/64, Singer [1965] ECR 965). The LVA can claim repayment from the third party liable only of such benefits as were payable by way of compensation (established case-law of the Cour de Cassation).

The LVA appealed against this judgment, relying upon the submission that under Paragraph 1542 of the RVO, which determines the extent of its action by subrogation, it is entitled to repayment of the pension payments without any limitation. By a judgment of 17 June 1976, holding that a question of the interpretation of a measure adopted by the institutions of the Communities had been raised before it, the Cour de Cassation, France, decided to suspend judgment on the substance of the case and to refer the case to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling on the question:

‘whether the action by subrogation which may be available, under the terms of this article (Article 52 of Regulation No 3), to a social security institution in a Member State following an accident in the territory of another Member State involving a person insured with such institution, is governed, as regards its extent and the apportionment between the institution and the insured person or his legal successors of the compensation payable by the person responsible for the accident, by the legislation of the State in which the said institution is established.’

Article 52 of Regulation No 3 provides that:

‘If a person who is in receipt of benefit under the legislation of one Member State, in respect of an injury sustained in the territory of another State, is entitled to claim compensation for that injury from a third party in the latter State's territory, any claims by the institution liable for payment of benefit against such third party shall be governed by the following rules: (a) where the said institution is, under the legislation applicable to it, substituted for the beneficiary in his claims against the third party, such substitution shall be recognized by each Member State: (b) where the said institution has a direct claim against the third party, such claim shall be recognized by each Member State. Implementation of these provisions shall be the subject of bilateral agreements.’

The judgment of the Cour de Cassation, France, was entered at the Registry of the Court of Justice on 19 July 1976.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on behalf of the LVA by P. Harnist, Advocate at the Cour d'Appel, Colmar, on behalf of Mrs Töpfer, who was receiving legal aid, by J. P. Desache, Advocate at the Conseil d'État and at the Cour de Cassation, on behalf of Mr Weber and Le Phénix insurance company by Y. Dissler, Advocate at the Cour d'Appel, Colmar, and on behalf of the Commission of the European Communities by its Legal Adviser, M. J. Jonczy, acting as Agent.

After hearing the report of the Judge-Rapporteur and the views of the Advocate-Général, the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

The LVA points out that Article 52 lays down a rule on conflict of laws designed to enable the social security institutions of the Member States to bring actions for repayment to which they are entitled under their national law on the territory and before the courts of all the Member States and within the framework of the provisions which govern extra-contractual liability in each Member State. This is expressed in the judgment of the Court of 12 November 1969 (Case 27/69, Entr'aide Médicale v Assurances Générales [1969] ECR 405) and of 9 December 1965 (Case 44/65, Hessische Knappschaft v Maison Singer et Fils [1965] ECR 965).

It cannot reasonably be accepted that the rule on conflict enacted by Article 52 is limited to the mere recognition by the Member States of the legal procedure for bringing an action established by another Member State in favour of its social security institutions.

Certainly, the action by subrogation can only be brought within the framework of the claim which the victim can assert against the third party liable under private international law. But within that limit, which guarantees that the legislation of each Member State on extra-contractual liability is observed, it is essential that an action by an institution liable to pay benefits can be brought according to the rules of the legislation under which the said institution is established. In other words, once the existence and the limits of the victim's right to compensation have been determined according to the rules of the national law governing that right, the substantive content of the right by way of subrogation referred to in subparagraph (a) of Article 52 is determined by the rules of the legislation under which the institution liable to pay the benefits is established. This, moreover, is expressed by Article 93 (2) of Regulation No 1408/71.

Mrs Töpfer asserts that Article 52 of Regulation No 3 refers to the national legislation of the social security institution for the purpose of determining, whether, in the Member State where the injury was sustained, that instituion may seek to rely upon subrogation to the rights of the victim of the victim's legal successors, or upon the enforcement of the direct right referred to in subparagraph (b). However it does not modify the system of extra-contractual liability which remains subject only to the rules of the national law. Moreover, since Article 52 speaks simply of ‘recognition’ of the subrogation, there is nothing to indicate that the Community legislature intended to alter the content of the rights which could be enforced or to separate the right of the insurance institution from that which can be asserted by the beneficiary.

The subrogated institution may not claim from the third party liable any payment other than that to which the victim or his legal successors are entitled, which implies that the institution must formulate its claim in accordance with the rules of the national law governing the victim's right to compensation. The Court of Justice gave this interpretation to the article which is in dispute in the main action in its judgments of 9 December 1965 (cited above) and of 16 May 1973 (Case 78/72, L'Étoile Syndicat Général v W. E de Waal [1973] ECR 499). This interpretation finds support in Article 93 (2) of Regulation No 1408/71 and in Article 111 of Regulation No 574/72.

Mr Weber and Le Phénix insurance company assert first of all that the amount of the compensation payable by the person responsible for the accident or his insurance company, as the case may be, in respect of the injury and the damage caused, is res judicata.

Under Paragraph 1542 of the RVO, the social security institution is bringing an action by subrogation and not a direct action in its own right, so that the person responsible for the accident is not liable to the social security institution beyond the amount of the damages awarded to the victim.

As regards the person responsible for the accident, the relationship between the social security institution and the victim or his legal successors is res inter alios acta. The appeal by the LVA does not appear capable of having any effect on the liability of the defendants.

The Commission asserts that in reality the problem before the Court is, first, whether, by virtue of Article 52, the extent of the LVA's right of action against the third party liable is governed by German legislation, and, secondly, whether, once the French court has fixed the amount of damages by way of compensation, the portion thereof which is due to the LVA by virtue of its subrogation must be assessed in accordance with German legislation.

The Court has given an answer to the first point in its abovementioned judgment in Case 78/72, in which it held that ‘the substantive content of the direct right referred to under letter (b) of Article 52 of Regulation No 3 of the Council of the European Communities is determined by the rules of the national law defining the source and limits of the right of compensation vested in the victim or his dependants vis-à-vis the third party responsible’. The same conclusion can be drawn a fortiori in respect of the substantive content of the action by subrogation referred to under letter (a) of article 52. Therefore the extent of the action by subrogation available to the LVA under Article 52 must be assessed according to French law.

The problem of the amount and the apportionment of the claim by the social security institution is more complicated here than when it is a purely internal matter, since the benefits were paid under the legislation of one Member State and the extent of liability was assessed according to the common law of another Member State.

The LVA claims that, under German law, it is entitled to repayment of all the pension payments which it made to Mrs Töpfer. Both academic lawyers and the case-law of the Bundesgerichtshof are very divided in this respect. On the other hand, under French law, the social security institution is ‘permitted to seek repayment of the benefits which it is liable to pay, up to the amount of the compensation payable by the third party, who shall indemnity the physical injury to the victim, excluding such portion of the compensation as is of a personal nature …’ (Article L 397 of the Code de la Sécurité Sociale (Social Security Code)). According to the case-law of the Cour de Cassation, this definition excludes benefits which do not compensate for the consequences of the accident and which the institution would have had to pay even if the injury had not occurred (for example, old-age pensions).

In the case of the main action, the application of German law as envisaged by the LVA would entail for the victim's legal successors a reduction of the supplementary compensation to which they are entitled from the third party liable so as to obtain complete compensation for the damage suffered. It is possible to imagine a case in which the same problem arises in reverse.

Keeping to the actual wording of Article 52, it is possible validly to take the view that the Community legislature intended to limit the basis of any legal action by an institution liable to pay benefits solely to those benefits which that institution has paid out following the injury, and which arose out of the consequences of the accident, the event which gave rise to the liability of a third party. This interpretation also finds support in the fact that the rights conferred on the national social security institutions by Article 52 constitute ‘a logical and fair counterpart to the extension of the obligations of the said institutions throughout the entire Community as a result of the provisions of Regulation No 3’, as the Court stated in its judgment of 11 March 1965 (Case 31/64, Bertholet [1965] ECR 81).

Can it be accepted that the right of institutions to the repayment of the benefits which they were liable to pay, by reason of the damage caused to the person insured with them, is conferred upon them autonomously by Article 52, irrespective of such rights as are conferred upon them by the legislation which applies to them or which applies to the law on liability? Such an answer would entail conflicts with certain national rules, in particular when at common law the amount of the compensation payable by the third party for the material damage is less than the amount of the benefits paid by the LVA on account of the damage. Hence, such an answer appears unlikely, since Regulation No 3 does not even amend the national legislations, but only coordinates the application thereof.

Therefore there is no alternative but to find that Article 52 does not settle the problems raised by the triangular situation between the victim, the social security institution and the third party liable. It has no effect on the basis and the apportionment of the action by the social security institutions and none upon the substance of the extra-contractual liability.

Consequently, the Commission proposes that the Court should answer in the following terms:

‘The action by subrogation which may be available, under the terms of Article 52 of Regulation No 3 of the Council, to a social security institution in a Member State following an accident in the territory of another Member State involving a person insured with such institution, is governed, as regards its extent, by the rules of the national law defining the source and limits of the right to compensation vested in the victum or his legal successors vis-à-vis the third party liable. Although the wording of the abovementioned Article 52 enables the view to be taken that only such benefits as have been paid as a result of the injury may form the subject-matter of an action by the social security institution, the aim of that provision is exclusively to obtain recognition by each Member State of all rights of action against a third party liable established by the other Member States in favour of a social security institution liable to pay benefits, by way of subrogation or any other legal procedure.’

The LVA, represented by P. Harnist, Advocate of the Colmar Bar, Mr Weber and Le Phénix insurance company, represented by Y. Dissler, Advocate of the Colmar Bar, and the Commission of the European Communities, represented by its Legal Adviser, M.J. Jonczy, acting as Agent, presented oral argument at the hearing on 9 December 1976.

The advocate-General delivered his opinion at the hearing on 25 January 1977.

Law

1. By a judgment of 17 June 1976, received at the Court Registry on 19 July 1976, the French Cour de Cassation requested the Court of Justice, on the basis of Article 177 of the EEC Treaty, to give a ruling on the interpretation of Article 52 of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (JO 1958, p. 561).

2. The main action concerns the subrogation of a German social security institution, the Landesversicherungsanstalt Rheinland-Pfalz, to the rights of the widow of a person insured with it, pursuant to Paragraph 1542 of the Reichsversicherungsordnung (German Social Security Code) which provides for the subrogation of a social security institution to the rights of a victim or of his legal successors against the third party liable to the extent of the benefits which it has paid.

3. It appears from the file that following the accident which caused the death of Mr Töpfer, a German national, on 11 September 1968 at Mulhouse, his family place of residence his widow, a French national, brought an action before the Tribunal de Grande Instance, Mulhouse, against the person liable and his insurance company, calculating the total amount of the damage which she had suffered as FF 64986,55, from which sum she had deducted the death grant, FF 2889,33, which had been paid to her by the French Caisse Primaire d'Assurance Maladie.

4. In her calculations, the plaintiff took into account the pension which the Landesversicherungsanstalt had been paying her since the death of her husband, and therefore claimed only the difference between the damage which the death of her husband caused her and the amount she received from the social security institutions.

5. The Tribunal de Grande Instance ordered the person liable and his insurer to make good the whole of the damage suffered by Mrs Töpfer and to pay an amount of FF 41589,79, made up as follows: Non-material damage FF 20000 Material damage FF 30000 Funeral and other expenses FF 4479,12 FF 54479,12 Less the advance payment of FF 10000 already received by Mrs Töpfer and the aforesaid death grant FF 12889,33 FF 41589,79 and dismissed the claim of the Landesversicherungsanstalt, intervener in the case, for repayment of the pension which it was paying to Mrs Töpfer.

6. On appeal by the Landesversicherungsanstalt against this judgment, the Cour d'Appel, Colmar, raised the amount of the compensation for the material damage suffered by Mrs Töpfer from FF 30000 to FF 40000, so as to enable the German institution to obtain repayment of its benefits up to the amount of DM 7765,09.

7. The said sum represents in capital the premature pension payment, which is, however, in the nature of compensation, for which the accidental death of the insured person made the Landesversicherungsanstalt liable, since, had the accident not occurred, the Landesversicherungsanstalt would have had to pay the pension only from 21 March 1971, the date on which the victim would have reached the age of 65, his retiring age.

8. The Landesversicherungsanstalt appealed against this decision, asserting that, by means of the action by subrogation, it should be granted repayment without any limitation of the pension payments already made and of the pension that it will continue to pay to the widow.

9. In this connexion, the French Cour de Cassation asks whether the action by subrogation which may be available, under Article 52 of Regulation No 3, to a social security institution in a Member State following an accident in the territory of another Member State involving a person insured with such institution, is governed, as regards its extent and the apportionment between the institution and the insured person or his legal successors of the compensation payable by the person responsible for the accident, by the legislation of the State in which the said institution is established.

10. Article 52 of Regulation No 3 of the Council provides that:

a) where the said institution is, under the legislation applicable to it, substituted for the beneficiary in his claims against the third party, such substitution shall be recognized by each Member State;

b) where the said institution has a direct claim against the third party, such claim shall be recognized by each Member State.’

11. Under the terms of that article, the subrogation takes place under the legislation applicable to the institution liable to pay benefits.

12. Therefore the grant of the right of subrogation must be examined on the basis of that legislation.

13. On the other hand, for the purposes of determining the content of that right, account must be taken of the limitation resulting from the provisions of Article 52 of the regulation, whereby subrogation is permitted only in so far as the damage is the cause of the benefits paid by the institution liable to pay them.

14. This interpretation follows from the very terms of the article, in which the expression ‘that injury’ refers to the injury in respect of which a person is in receipt of the benefit the grant of which gives rise to subrogation.

15. Therefore, if the institution liable to pay benefits is, under the legislation applicable to it, subrogated to the rights of the recipient, the court before which the case is brought must recognize the subrogation only within the limits of the injury thus defined.

16. If it emerges before that court that, apart from the injury constituting the cause of the social security benefit, the recipient thereof may also claim other compensation by virtue of material or non-material losses, such compensation cannot form the subject-matter of the subrogation.

17. It follows that, before such court, the amount to which the institution liable to pay benefits is entitled by way of subrogation must be calculated so as not to affect either the amount of the material damage suffered by the recipient apart from the injury compensated for by the benefit, the non-material damage, or any other items of damage of a personal nature for which the recipient is entitled to claim compensation.

18. Therefore the answer to the question referred for a preliminary ruling should be that the grant of the right of subrogation which may be available, under Article 52 of Regulation No 3, to a social security institution in a Member State, as the consequence of an accident in the territory of another Member State involving a person insured with such institution must be recognized on the basis of the legislation applicable to the institution liable to pay benefits.

19. However, the right of subrogation covers only the compensation to which the victim or his legal successors are entitled under the legislation of the State in the territory of which the injury occurred which corresponds to the benefits paid by the institution liable to pay benefits and not compensation granted for non-material damage or in respect of other items of damage of a personal nature.

Costs

20. The costs incurred by the Commission of the European Communities which has submitted observations to the Court are not recoverable and, since the proceedings are, so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, costs are a matter for that court.

On those grounds, THE COURT in answer to the question referred to it by the French Cour de Cassation by a judgment of 17 June 1976, hereby rules: