JUDGMENT OF 7. 10. 1982 — CASE 131/81 BERTI v COMMISSION

In Case 131/81

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: S. Rozès Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

On 7 April 1971 the applicant's son, Paolo, aged seven, had an accident while he was at a holiday camp in Durbuy organized for the children of officials and other employees of the Commission. While he was playing with about twenty other children, under the supervision of two assistants, on children's playing equipment in the Place de la Foire [town square] in Durbuy, the child fell from a swing and was hit on the head by the moving swing. The accident caused serious injury, in particular breaking some teeth, fracturing the child's jaw and causing injuries to his face which have left ugly scars.

The circumstances in which the accident occurred were described by the management of La Petite Merveille, the holiday centre which accommodated the camp, in the accident declaration which it made on 8 April 1971 to its insurers, La Royale Belge. The Commission likewise notified the accident by telex message of 14 April 1971 to the Compagnie d'Assurances Générales Mercator [hereinafter referred to as “Mercator”], with which it had arranged insurance, in order to cover “holiday camp” risks, for civil liability and for personal accidents. Article 11 of the Special Conditions of the latter insurance policy states that personal accident cover is alternative and may not be cumulated with the cover provided for civil liability; accordingly, the benefits guaranteed under the head of personal accident insurance are payable only subject to a full and final discharge by the victim or those claiming under him and waiver of any right of action based on civil liability vis-à-vis the insured persons.

For the first six months following the accident the medical expenses were covered by the holiday centre's insurers, who were reimbursed by the Commission's insurers under the personal accident insurance, with the exception of the portion already reimbursed under the sickness insurance scheme for officials and other employees of the European Communities. In view of the fact that his son's state of health necessitated lengthy treatment, however, Mr Berti requested that the insurance file remain open.

By letter of 2 April 1976, which was accompanied by two medical reports, the applicant's lawyer informed the Commission that the injuries suffered by the child as a result of the accident might now be regarded as consolidated and asked the Commission to state what was to be done concerning compensation for the permanent sequelae of the injuries (with reference, in particular, to the refunding of the cost of dental prostheses) and for the nonmaterial and aesthetic injuries. The letter and the accompanying documents were forwarded to the Commission's insurers, who rejected the claim, stating that “such injuries are not covered by Mercator”. Mr Berti was informed of the insurers' reply by a memorandum of 26 October 1978 from the Commission's Insurance Department.

On 22 April 1980 Mr Berti submitted a request under Article 90 (1) of the Staff Regulations of Officials of the European Communities that “an invalidity allowance for permanent invalidity attributable to the wrongful act or omission of an agent of the Commission be granted to his son by way of compensation for material and nonmaterial damage”. Since he received no reply to his request within four months of its submission, the applicant lodged a complaint under Article 90 (2) of the Staff Regulations dated 29 October 1980 against the implied decision rejecting his request. Since the complaint also received no reply Mr Berti brought this action, under Article 91 of the Staff Regulations, against the implied decision rejecting his complaint. His application was lodged at the Court Registry on 27 May 1981.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry. However, it requested the Commission to submit a number of documents before the hearing and to reply to some questions.

II — Conclusions of the parties

The applicant claims that the Court should:

Declare the action to be admissible and well founded;

Accordingly, declare that the defendant is bound to compensate the applicant for the material, nonmaterial and aesthetic injuries sustained by the applicant's son as a result of the accident on 7 April 1971, the applicant estimating the damage at BFR 500000 but reserving the right to reduce or increase that amount during the proceedings;

Appoint one or three experts to examine the victim and to report on the sequelae of the accident sustained by the applicant's son, providing all the information necessary to enable an objective assessment to be made of the amount of damages to be awarded to the applicant;

Order the defendant to pay the costs.

The Commission contends that the Court should:

Declare that it has no jurisdiction to hear the action;

In any case, dismiss the action as unfounded;

Give judgment on costs in accordance with the law.

III — Submissions and arguments of the parties

(a) Jurisdiction

The Commission submits, first, that the action lies outside the scope of Article 179 of the EEC Treaty and Articles 90 and 91 of the Staff Regulations. The dispute is between the Commission and a third party (the applicant's son), compensation being sought for the consequences of an accident sustained by that third party; the action is based, moreover, not on any unlawful act on the part of the Commission, but on the alleged wrongful act or omission of one of its agents. The action therefore places at issue the Commission's non-contractual liability and may give rise to the application of Article 178 and the second paragraph of Article 215 of the EEC Treaty and Article 43 of the Protocol on the Statute of the Court of Justice.

The defendant considers that, in any case, the conditions for non-contractual liability on its part are not met, for no such liability may arise on the basis of wrongful acts or omissions attributed to the servants or agents, in the exercise of their duties, of a private legal entity such as the holiday centre, la Petite Merveille, which is owned by a businesswoman entered on the trade register of Marche-en-Famenne, is open to all children and has its own staff. The Commission is bound solely to make good damage caused by its servants in the performance of their duties. If the accident was in fact the result of a wrongful act or omission on the part of one of the assistants it is against that person, or against his private employer, that the applicant should have instituted proceedings under Belgian law before the courts of that State.

In his reply, the applicant observes that the Commission acknowledges that it gave its officials and other employees the opportunity of sending their children to holiday centres on favourable terms by assuming, in particular, a portion of the cost of the stay. It was in those circumstances that he sent his son to Durbuy for the 1971 Easter holiday, subject to the conditions under which that holiday camp was organized. Thus, by organizing holiday camps the defendant accepted any liability connected therewith.

From the information supplied by the Commission it appears that the children's stay was to be subject to the direction and supervision of one assistant for every eight children and a chief assistant, all appointed by the Commission. As the defendant concedes, the accident occurred whilst the children were playing under the supervision of two assistants, it was therefore natural for the applicant to turn to the Commission in order to obtain compensation for the injury sustained by his son. Moreover, in the circumstances of the case the relationship could amount to a contract between the applicant and the Commission: the latter took the child to a holiday camp in return for payment and thus became responsible for its safety.

The application is therefore well founded in law, in particular with regard to Articles 178 and 215 of the EEC Treaty. The fact that the holiday centre in question is a private legal entity does not relieve the defendant of liability; since it was the latter which took the child to the centre it must assume the attendant liability. In any case the Commission by implication accepted that liability since it arranged civil liability and personal accident insurance in respect of the holiday camp.

In its rejoinder the Commission denies having acknowledged that it selected or appointed the assistant and chief assistant at the holiday centre. On the contrary, the holiday centre is a private legal entity with its own staff; the teaching couple responsible for its management and administration, the assistants and domestic staff are not, therefore, employees of the Commission, they are neither its agents nor its appointees, the staff being wholly unconnected with the Community institution. The Commission does not organize holiday camps itself; its role is restricted to offering its officials and other employees the opportunity of sending their children to private holiday homes on favourable financial terms since it assumes part of the cost of such stays.

In bringing this action before the Court, the applicant wrongly assumed that the two assistants who were present when the accident occurred were agents of the Commission. Since they were not, the mere fact that the defendant offered to members of its staff the opportunity of sending their children to holiday camps at reduced cost does not give rise to civil liability on the part of the Commission for wrongful acts or omissions attributable to private legal bodies to which the parents entrust their children and to their servants or agents.

The Commission adds that the applicant's reference to what he terms a contract between the parents and the Commission, giving rise to a duty on the part of the Commission to care for the children's safety, is sheer contrivance, since the only contract which exists is that between the holiday centre and the parents who send their children there; the Commission's financial contribution toward the cost of the holiday does not make it a party to the contract. Moreover, even if there is a contract between the Commission and the parents of the children, it contains no clause conferring jurisdiction on the Court of Justice and therefore the action ought to have been brought before the Belgian courts.

The unsoundness of the applicant's argument that the fact that the holiday centre is a private legal entity distinct from the Commission is irrelevant may be demonstrated by numerous examples from the case-law. Moreover, the fact that the Commission arranged holiday camp insurance (with cover for, in particular, the civil liability of the assistants in the case of injury caused by them to the children) cannot be interpreted as implied recognition that it appointed the assistants and was therefore personally liable for wrongful acts or omissions on their part; on the contrary, the Commission wished to insure itself against the consequences of its own wrongful acts or omissions and at the same time to provide the children with protection against any inability to pay on the part of the assistants or the private body which appointed them.

(b) The substance of the case

The applicant maintains that the accident occurred as a result of a wrongful act or omission on the part of the assistant supervising the children and that the Commission is vicariously liable for the wrongful act or omission of its agent in view of the fact that the holiday camp in Durbuy was organized by the Commission.

The Commission contends that a mere allegation that there was a wrongful act or omission on the part of the assistant supervising the children is not sufficient to establish liability on the part of the Community. It is necessary to be able to show the existence of a cause of damage which may be attributed to the actions of one of the institutions or to a servant thereof in the performance of his duties. On the facts, however, as described in the accident declaration submitted to La Royale Belge, the insurance company, there is no conclusive evidence of the existence of a wrongful act or omission on the part of either of the two assistants supervising the children at the time of the accident.

The Commission adds that if the action is well founded in principle it will be necessary to obtain expert medical reports in order to establish the exact nature and extent of the alleged damage together with any other information necessary in order to make an objective assessment of the amount of damages claimed.

The applicant does not answer those points (and in any case the request for expert medical evidence was already included in his conclusions), but merely emphasizes that the defendant never replied to his request or his complaint, in which he sought compensation not merely for nonmaterial and aesthetic injury, as the defendant states, but also for the material damage resulting from the accident.

The defendant denies in its rejoinder that it failed to reply to the applicant and refers to the memorandum of 26 October 1978 informing him that Mercator had refused to accept liability for the nonmaterial and aesthetic injury for which compensation was sought. It adds that Mr Berti obtained direct from the insurance company an explanation of its reasons for refusing to compensate him. Moreover, the Commission observes that the beneficiaries under the policy were entitled to make a claim under it solely in the circumstances laid down in the contract; therefore, if the parents seek to rely on the civil liability of the assistants at the holiday camp, it is for them to show that the conditions for such liability, in particular the existence of a wrongful act or omission, are met. In any case it is for the applicant, regardless of whether his action is based on contractual or non-contractual liability, to demonstrate the existence of a wrongful act or omission which caused the damage. In this case such evidence has not been given. The fact that the child was hurt falling from a swing provided for children by the town of Durbuy whilst the two assistants accompanying the group of children were present in no way demonstrates the existence of any wrongful act or omission on the part of the assistants, a requirement which must be met in both French and Belgian law.

IV — Oral procedure

In response to a request from the Court the Commission lodged a number of documents within the specified period and replied in writing to two questions concerning, first, the contract of insurance with Mercator and, secondly, the question whether the town of Durbuy had assumed liability for the accident.

At the sitting on 11 March 1982 the applicant, represented by E. Drappier of the Brussels Bar, and the Commission of the European Communities, represented by R. Andersen of the Brussels Bar, presented oral argument.

The Advocate General delivered her opinion at the sitting on 6 May 1982.

Decision

1. By an application lodged at the Court Registry on 27 May 1981 Mario Berti, an official of the Commission of the European Communities, brought an action seeking compensation for material, nonmaterial and aesthetic injuries resulting from an accident sustained by his son Paolo on 7 April 1971.

2. It is apparent from the documents before the Court that, the Director General for Personnel at the Commission informed officials and other employees by a staff memorandum of 5 February 1971 that, “as in previous years, holiday camps will be organized for children during the Easter school holidays of 1971”. The memorandum stated that there were three holiday centres to choose from, that the cost of the stay was to be paid by means of a deduction from salary after allowing for the Commission's financial contribution, which was to depend on the amount of the salary, and that the cost included travel and insurance.

3. The Commission had arranged insurance cover for civil liability and personal accidents with the Compagnie d'Assurances Générales Mercator [hereinafter referred to as “Mercator”], but the content of the policies, as became apparent in the course of the proceedings, was not disclosed to the officials and other employees concerned.

4. In response to the Commission's offer the applicant applied for his son, then aged seven, to go to the holiday centre known as “La Petite Merveille” at Durbuy in the Belgian Ardennes, which was reserved for children aged between six and fourteen and had one assistant for every ten children; the centre was directed and managed by a teaching couple. The centre had arranged insurance with La Royale Belge, but the Commission was unable to produce a copy of the policy.

5. On 7 April 1971, during his stay at the holiday camp, the applicant's son fell while playing in the Place de la Foire [town square] at Durbuy and was hit on the head by a moving swing. The accident fractured his upper jaw, broke four permanent teeth and injured his face.

6. It appears that no issue has been raised concerning the playing equipment in Durbuy town square, which is owned by the commune of that town.

7. The management of the holiday centre notified the accident to its own insurers, La Royale Belge, stating in the accident declaration that when the accident occurred the little boy was playing with about twenty other children under the supervision of two assistants.

8. According to the information supplied by the Commission during the proceedings, the holiday centre's insurance covered the medical expenses for the first six months after the accident, with the exception of the portion already reimbursed to the child's father under the social security scheme for officials and other employees of the Community institutions.

9. The Commission, for its part, notified the accident by telex message of 14 April 1971 to its insurers, Mercator, which subsequently refunded the abovementioned expenses to La Royale Belge. No further action was taken with regard to compensation for the damage resulting from the accident either by the Commission or by the two insurers referred to above.

10. The specialists consulted by the father to treat his child reported towards the end of 1976 that the injury sustained by the child as a result of the accident, now consolidated, consisted in the loss of four upper permanent incisor teeth, necessitating a prosthesis. The prosthesis could not be permanently fitted until the child had attained the age of eighteen, and therefore until that time temporary removable prostheses would be required.

11. Mr Berti's lawyer therefore requested the Commission to reimburse the cost of the prostheses and to provide compensation for the nonmaterial and aesthetic injuries suffered by the child. However, Mercator informed the Commission that nonmaterial and aesthetic injuries were not covered by the policy and that as far as the other claim was concerned it considered that the Commission was not liable. Thereupon, the Commission, agreeing with that assessment, suggested to Mr Berti that “the case be considered closed”.

12. The applicant declined and submitted a new and formal request for compensation pursuant to Article 90 of the Staff Regulations. Since his complaint against the implied decision rejecting his request remained unanswered, he brought this action.

Jurisdiction

13. The Commission raises the objection that the Court of Justice has no jurisdiction to entertain the action, maintaining in the first place that it falls outside the scope of the provisions on which it is based, Article 179 of the EEC Treaty and Article 91 of the Staff Regulations. The dispute is between the Commission and a third party, namely the applicant's son, who is neither an official nor a servant, and the application concerns not the annulment of an unlawful measure adopted by the Commission adversely affecting one of its officials, but the Commission's non-contractual liability for the wrongful act or omission of persons alleged to be its agents.

14. The defendant maintains in the second place that even if there is considered to be a private contract between it and its staff for the purpose of sending the children of the latter to holiday camps, the Court has no jurisdiction in that matter since the alleged contract contains no arbitration clause within the meaning of Article 181 of the EEC Treaty. The Commission's view is that the action ought in any case to have been brought before the Belgian courts.

15. It must be remembered, however, that among the rights and duties arising from the employment relationship between the Commission and its officials and other employees is the duty of the employer to provide for its employees various services of a social nature, some of which are distinguished by the fact that they are intended for the benefit of not only the official or employee but also the members of his family.

16. It was precisely in that context that the Commission organized the holiday camps in question and offered members of staff the opportunity of sending their children there. That is clear from the staff memorandum referred to above. The Commission states that it made use of services provided by private undertakings and itself merely acted as an intermediary between those undertakings and the parents concerned. Nevertheless, it was the Commission which, after careful inspection, selected the holiday centres named in the staff memorandum, whereas the children's parents had no contact whatsoever with the undertakings, and were even unaware of their identity.

17. Moreover, the existence of a link between the organization of the holiday camps and the employment relationship is demonstrated by the fact that the Commission assumed part of the costs involved in the holidays, in inverse proportion to the remuneration of the officials and other employees concerned, the part of the costs which remained payable by the parents being deducted from their salaries. Furthermore, it should be noted that the Commission obtained insurance for civil liability, which it would have had no reason to do if it had considered itself wholly unconnected with the organization and the running of the holiday camps.

18. In the circumstances the Court has unquestionably jurisdiction under Article 179 of the EEC Treaty. The objection that it lacks jurisdiction must therefore be dismissed.

Substance of the case

19. The Commission maintains first that liability for the consequences of the accident attaches not to the Commission but to the assistants — who are neither its employees nor its agents — responsible for supervising the children or to the private undertaking operating the holiday centre, which is a legal person distinct from the Community institutions.

20. In any case, the Commission maintains, the conditions for liability on its part are not met since the applicant has failed to discharge its burden of proving the existence of a wrongful act or omission on the part of either the assistants or the institution.

21. The arguments adduced by the Commission are not germane to the issue. It must be remembered that the abovementioned staff memorandum on holiday camps referred to “insurance” the cost of which was included in the cost of the holiday, and the Commission in fact, in addition to the policy covering its own civil liability, obtained further insurance against personal accidents for the children participating in the holiday camps.

22. It is clear therefore that the Commission, in its capacity as an employer, gave an undertaking to the members of its staff whose children took part in the holiday camps to ensure, by means of insurance, that compensation would be provided for the ordinary and foreseeable consequences — such as the need for prostheses or the repair of aesthetic injury — of any accident which might be sustained by the children during their stay at the holiday camp.

23. It appears, however, that the Commission arranged insurance which provided only partial cover, that is to say, which did not extend to all the ordinary consequences of an accident, and, moreover, omitted to inform the parents of that fact in advance, so that they received no opportunity to decide whether to accept the risk, to refuse the offer or to arrange supplementary insurance.

24. It must therefore be held that when the Commission undertakes to organize holiday camps for the children of its officials and other employees and to arrange insurance for the children to cover the injury resulting from any accident which they may sustain in such camps, it has a duty to ensure that holidays in those camps take place under the appropriate conditions and that if an accident occurs compensation will be provided in full. If the institution fails to do so, as in this instance, its conduct must be regarded as a wrongful act or omission for which it is liable.

25. Accordingly, the Commission must pay the costs of the prostheses or any plastic surgery which may be necessary in order to repair aesthetic injury caused by the accident. However, nonmaterial injury sustained by the injured child is excluded; compensation for such injury cannot be the subject-matter of an application by the child's father in his capacity as an official on the basis of his employment relationship with the Commission under the Staff Regulations.

26. As far as the amount of the damages is concerned, the parties should be invited to reach an agreement within a specified period. In default of such agreement within the specified period the Court will decide the issue and give judgment on costs.

On those grounds, THE COURT (First Chamber), before giving final judgment on the application made by Mr Berti, hereby:

1 Declares that the Commission is bound to compensate the applicant for all material and aesthetic injury sustained by his son Paolo as a result of the accident on 7 April 1971;

2 Invites the parties to agree on the amount of the financial compensation within six months of the date of this judgment;

3 Declares that in default of such agreement it will itself decide the issue;

4 Reserves the costs.