delivered on 17 January 1985 (1)

Mr President,

Members of the Court,

1. On 7 April 1971, Paolo Berti, the applicant's son, had an accident while the was at a holiday camp organized for the children of officials and other employees of the Commission of the European Communities.

In a judgment of 7 October 1982, the Court:

—Declared that the Commission was bound to compensate the applicant for all injury sustained by his son; and

—Invited the parties to seek an agreement within six months, at the end of which the Court would if necessary decide upon the amount of the financial compensation to be paid.

2. On 24 March 1983, Mario Berti and the Commission drew up an agreement in which each of the parties appointed a medical expert. In a report dated 10 January 1984 the two doctors in question stated that as a result of the accident the following compensation should be provided for:

—BFR 125000 in respect of the fitting of a prosthesis and its replacement on four occasions,

—BFR 3000 in respect of the cost of extracting a canine tooth together with radiography expenses,

—BFR 3000 in respect of the alteration of the temporary prosthesis,

—BFR 1000 in respect of technical alteration after supply of the prosthesis,

amounting to a total of BFR 132 000.

That calculation was accepted by the parties. The experts further considered that the accident resulted in:

—Permanent partial invalidity of 1%, owing to the loss of four incisors and one canine tooth; and

—Slight disfigurement, of two on a scale of seven, owing to a scar on the lower lip.

3. Although that assessment is not disputed by the parties, they nevertheless disagree as to the amount of damages payable as a result.

In a letter to the applicant dated 29 March 1984 the Commission offered by way of damages a total sum of BFR 120000, made up as follows:

—BFR 60000 in respect of the permanent partial invalidity,

—BFR 60000 in respect of the disfigurement,

with interest as from the date of the judgment of the Court. It contends that the Court should declare that offer satisfactory.

Mr Berti :

—Accepts the sum of BFR 60000 offered in respect of the disfigurement;

—Claims the sum of BFR 200000 in respect of the permanent partial invalidity;

—Asks for compensatory interest to be awarded as from the date of the accident and for default interest at the rate of 12% from the date of the judgment of the Court.

4. The permanent invalidity

Mr Berti claims the sum of BFR 200000 on the ground that the insurance policy taken out by the Commission in respect of the risks arising from the holiday camps contains a guarantee of BFR 20000000. From that he infers that that is the maximum amount payable in respect of permanent partial invalidity of 100% and that accordingly he should be awarded one hundreth of the maximum compensation provided for.

It is impossible to accept such a claim, which arises out of the confusion of the damage assessed and the amount guaranteed. Irrespective of the amount guaranteed, it is only the damage caused to Mr Berti which must be made good. In my view, the Commission's offer of BFR 60000 in respect of such a minimal partial invalidity must be declared satisfactory.

5. Interest

It seems to me that, even if the claim for compensatory interest is admissible notwithstanding the failure to include it in the original application, it is not well founded. Indeed, the Commission rightly observes that the amount which it had proposed in respect of the permanent partial invalidity and the disfigurement have in general been calculated, on the basis of cases decided in the municipal courts, to take account ex aequo et bono of currency depreciation and loss of interest.

The Commission does not dispute the claim for default interest.

6. Accordingly I propose that the Court should:

—Give formal notice to the parties of all the points of their agreement, including the compensation for disfigurement;

—Declare the Commission's offer in respect of the permanent partial invalidity to be satisfactory;

—Rule that the sums awarded in respect of disfigurement (BFR 60000) and permanent invalidity (BFR 60000) shall carry interest of 12% as from the date of judgment;

—Order the Commission to pay all the costs of the action.

(1) Translated from the French.