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URL: http://www.bailii.org/eu/cases/EUECJ/1977/R7276.html
Cite as: [1977] EUECJ R-72/76

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61976J0072
Judgment of the Court of 16 February 1977.
Landesversicherungsanstalt Rheinland-Pfalz v Henriette Töpfer, née Dontenwill, Jean-Pierre Weber and 'le Phénix' insurance company.
Reference for a preliminary ruling: Cour de cassation - France.
Case 72-76.
European Court reports 1977 Page 00271
Greek special edition 1977 Page 00095
Portuguese special edition 1977 Page 00105
Spanish special edition 1977 Page 00079

SOCIAL SECURITY FOR MIGRANT WORKERS - INJURY SUSTAINED IN THE TERRITORY OF ANOTHER MEMBER STATE - COMPENSATION - CLAIMS AGAINST A THIRD PARTY - RIGHT OF THE PERSON CONCERNED - SUBROGATION THERETO OF THE INSTITUTION LIABLE TO PAY BENEFITS - LIMITS
( REGULATION NO 3 , ARTICLE 52 )

THE ACTION BY SUBROGATION WHICH MAY BE AVAILABLE , UNDER THE TERMS OF 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 . 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 THEM , AND NOT COMPENSATION GRANTED FOR NONMATERIAL DAMAGE OR IN RESPECT OF OTHER ITEMS OF DAMAGE OF A PERSONAL NATURE .

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
LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ
AND
HENRIETTE TOPFER , NEE DONTENWILL , WIDOW OF CHARLES TOPFER
JEAN-PIERRE WEBER
LE PHENIX INSURANCE COMPANY

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 ),

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 TOPFER , 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 64 986.55 , FROM WHICH SUM SHE HAD DEDUCTED THE DEATH GRANT , FF 2 889.33 , 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 TOPFER AND TO PAY AN AMOUNT OF FF 41 589.79 , MADE UP AS FOLLOWS :
NON-MATERIAL DAMAGE FF 20 000
MATERIAL DAMAGE FF 30 000
FUNERAL AND OTHER EXPENSES FF 4 479.12
FF 54 479.12
LESS THE ADVANCE PAYMENT OF FF 10 000 ALREADY RECEIVED
BY MRS TOPFER AND THE AFORESAID DEATH GRANT FF 12 889.33
FF 41 589.79
AND DISMISSED THE CLAIM OF THE LANDESVERSICHERUNGSANSTALT , INTERVENER IN THE CASE , FOR REPAYMENT OF THE PENSION WHICH IT WAS PAYING TO MRS TOPFER .

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 TOPFER FROM FF 30 000 TO FF 40 000 , SO AS TO ENABLE THE GERMAN INSTITUTION TO OBTAIN REPAYMENT OF ITS BENEFITS UP TO THE AMOUNT OF DM 7 765.09 .
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 :
' 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 . '
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 :
' THE ACTION BY SUBROGATION WHICH MAY BE AVAILABLE , UNDER THE TERMS OF 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 . 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 THEM , AND NOT COMPENSATION GRANTED FOR NON-MATERIAL DAMAGE OR IN RESPECT OF OTHER ITEMS OF DAMAGE OF A PERSONAL NATURE . '