JUDGMENT OF THE COURT (FIRST CHAMBER)11 SEPTEMBER 1983 '

Commission of the European Communitiesv Société anonyme Royale Belge

(Official — Risk of accident)

Case 23/81

In Case 23/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by RaymondBaeyens, Principal Legal Adviser of the Commission, acting as Agent,assisted by Marc Godfroid, of the Brussels Bar, with an address for service inLuxembourg at the office of Oreste Montako, a member of its LegalDepartment, Jean Monnet Building, Kirchberg,

applicant,

in the presence of

1. Johanna van Rij, widow of the late Gerrit Jan van Kasteel, an official ofthe Commission of the European Communities, acting on her own behalfand as the legal guardian of her children, Ingeborg, Gerrit Jan,Huberdina and Bastiaan;

2. Henri Tieleman, acting as supervisory guardian of the aforementionedminor children;

3. Johanna Theodora van Kasteel;

4. Hans van Kasteel,

all residing in Brussels and represented by Benoît Humblet and EdmondLebrun, of the Brussels Bar, with an address for service in Luxembourg atthe Chambers of Tony Biever, 83 Boulevard Grande-Duchesse-Charlotte,

interveners,

v

1 — Language of che Case: French.

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

SOCIÉTÉ ANONYME ROYALE BELGE, an insurance company having its registeredoffice at 25 Boulevard du Souverain, 1170 Brussels, acting on its own behalfand as the authorized agent and representative of the following insurancecompanies :

1. Société anonyme Generali Belgium (Concorde), Brussels,

2. Société anonyme Caisse Patronale, Brussels,

3. Société anonyme Assurantie van de Belgische Boerenbond, Louvain,

4. Société anonyme Winterthur, Brussels,

5. Société anonyme Zürich, Brussels,

6. Société anonyme Assubel, Brussels,

7. Société anonyme Securitas (formerly Le Phénix belge), Antwerp,

8. Société anonyme Rhin et Moselle, Brussels,

9. Société anonyme Le Foyer, Brussels,

10. Nationale Nederlanden, Schadeverzekeringsmaatschappij NV, TheHague, Netherlands,

11. Société anonyme Phoenix Continental, Brussels,

12. Top International Insurance Co. Ltd, Ballerup, Denmark,

13. Excess Insurance Company Ltd, c/o Glanvill, Enthoven and CompanyLtd, London, England,

14. Allianz Versicherungs-Aktiengesellschaft, Munich, Federal Republic ofGermany,

represented by François van der Mensbrugghe, of the Brussels Bar, with anaddress for service in Luxembourg at the Chambers of Jean Hoss, 15 Coted'Eich,

defendant,

APPLICATION under Article 181 of the EEC Treaty for an order requiringthe defendant to pay the principal sum and interest payable by theCommission under Article .73 of the Staff Regulations of Officials of theEuropean Communities as a result of the death by accident of Gerrit Jan vanKasteel, an official of the Commission,

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COMMISSION v ROYALE BELGE

THE COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and1. fvoopmans, Judges,

Advocate General : Sir Gordon SlynnRegistrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course ofthe procedure and the conclusions,submissions and arguments of the partiesmay be summarized as follows:

I — Facts and written procedure

A — The provisions applicable

Article 73 (1) of the Staff Regulations ofOfficials of the European Communitiesreads as follows:

"An official is insured, from the date ofhis entering the service, against the riskof occupational disease and of accidentsubject to rules drawn up by commonagreement of the institutions of theCommunities after consultation of theStaff Regulations Committee . . . Suchrules shall specify which risks are notcovered."

Pursuant to that provision Rules on theInsurance of Officials of the European

Communities against the Risk ofAccident and of Occupational Disease(hereinafter referred to as "the jointrules"), which define the circumstancesin which officials are insured against therisk of accident, were adopted bycommon agreement of the institutions,recorded by the President of the Courtof Justice on 22 December 1976. Article4 thereof sets out the various cases inwhich officials are not covered underArticle 73 of the Staff Regulations:

" 1 . Accidents shall not be covered byArticle 73 of the Staff Regulations ifthey are due to the following causes:

(a) . ..

(b) Manifestly reckless acts;Participation by means ofmotorized equipment in sportingcontests, races and official trials;Practice of sports regarded asdangerous, such as boxing,karate, parachuting, speleology,underwater fishing and explo-

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

ration with breathing equipmentincluding containers for thesupply of air or oxygen;

»)

On 28 January 1977 the institutions ofthe Communities signed a collectiveinsurance agreement against accidentsand occupational disease with thedefendant insurance companies. Ac­cording to Article 1.1 thereof, thepurpose of the insurance was to "coverthe financial consequences of theobligations which the Communitiesassume under their Staff Regulations foraccidents and occupational diseasebefalling or contracted by the persons towhom the provisions of Article 73 of theStaff Regulations ... and the rules madethereunder apply." The agreementincludes an arbitration clause whichprovides that: "Failing an amicablesettlement any dispute relating to theperformance of this contract or annexeshereto may be submitted to the Court ofJustice of the European Communities"(Article 5). Relying on Article 181 of theEEC Treaty the Commission referredthis dispute to the Court pursuant to thatarbitration clause.

B — Summary of the facts

Gerrit Jan van Kasteel, who was anofficial in Directorate-General XV of theCommission, hired a Piper Cherokeeaircraft, registration number 00-JPM,from European Air Transport SA atBrussels. Two of his colleagues, DanielChabert and Filippo Turli, also hiredlight aircraft at the same time. Theyplanned to make a private trip togetherto Greece with various passengers, allofficials of the European Communities.

Starting from Brussels National Airport,the three aircraft took off on themorning of 29 April 1978 for Lyonwhere they landed at about 13.45 hourslocal time.

The three pilots took off one after theother from Lyon-Bron Airport at 14.30hours for Cannes whence they were dueto fly on to the Greek Islands via Romeand Corfu. During the flight the aircraftpiloted by Mr van Kasteel with two pass­engers on board crashed into MontSainte-Victoire in the Commune ofVauvenargues at a height of 960 metresat about 17.00 hours. The threeoccupants of the aircraft were killed inthe accident which was investigated bythe Gendarmerie of Aix-en-Provenceand was the subject of a report drawn upby the French Ministry of Transport.

That report and the minutes of theinquiry may be summarized as follows.

Mr van Kasteel held a private pilot'slicence restricted to flights by day onlyunder visual flight rules in single-enginedaircraft. The aircraft piloted by Mr vanKasteel was single-engined. Its logbookshows that instrument flying by day ornight was not permitted. The aircraft inquestion was not equipped with instru­ments for non-visual flight but besideshaving an altimeter and a variometer(which indicates whether the aircraft isclimbing or descending) it had an arti­ficial horizon enabling the aircraft to bekept in a horizontal position if visualmeteorological conditions are lost.

Before leaving Lyon Mr van Kasteel andthe other two pilots went along togetherto the meteorological office where theywere informed inter alia that visibility onthe route to Cannes was 10 to 15kilometres and that a vigorousdisturbance resulting in heavy local rainbeyond Montélimar was forecast

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COMMISSION v ROYALE BELGE

together with strong turbulence. Thethree aircraft then took off from Lyonfor Cannes. No flight plans were filed.Mr van Kasteel had told the other twopilots that he was going to take thedirect route by heading straight forCannes once past Avignon. The othertwo pilots decided after taking off fromLyon to follow the Rhône valley andthen to try to reach Cannes by the coast.

The last radio contact between Mr vanKasteel and Marseille Airport was at16.52 hours. The pilot stated that he washeading for St Tropez, maintaining aheight of 4 500 feet (1 500 metres) andthat he was in cloud. The control towerat Marseille Airport instructed him tomaintain good visibility. After thatmessage had been repeated to him Mrvan Kasteel replied: "Affirmative, sir, butI am in a shower". When asked: "Haveyou the ground in sight?" he replied:"Sometimes, yes". At 17.24 hoursMarseille Airport attempted to contactthe aircraft again, but without success.The report drawn up by theGendarmerie states that the aircraft hadbeen in a layer of cloud in the Vauve-nargues region and crashed into theSainte-Victoire mountainside at a heightof 960 metres approximately two and ahalf hours after its departure from Lyon,that is to say at about 17.00 hours localtime. The inspector who drew up thereport on the instructions of the FrenchMinister for Transport, Mr Grimaud,assumed that Mr van Kasteel hadattempted to descend below the cloud-layer and that in doing so he probablysaw the ground in front of him but notsoon enough to be able to avoid thecrash.

C — Written procedure

Relying on Article 73 (2) of the StaffRegulations Mr van Kasteel's survivors

requested the Commission to pay thebenefits guaranteed in the event of theaccidental death of an official. By anapplication lodged at the Court Registryon 16 October 1979 they asked theCourt to annul the Commission'sdecision refusing their request (Case805/79, pending). The Commissionasked for an unlimited extension of theperiod for the submission of the defencein order to be able to resolve theproblem arising from the insurers' refusalto cover the Commission against theconsequences of Mr van Kasteel's death.That request was granted by thePresident of the First Chamber on 3 June1980.

The insurers had been informed by theCommission of Mr van Kasteel'saccident of 29 April 1978 in a telexmessage of 3 May 1978. By a letter of31 October 1978 they declined to acceptliability relying on Article 4 of the jointrules and in particular the exclusion ofrisks of accidents caused by manifestlyreckless acts. After receiving from theCommission details of the circumstancesof the accident, the insurers, by a letterdated 22 January 1980, confirmed theirrefusal to cover the consequences of theaccident.

By an application lodged at the CourtRegistry on 5 February 1981 theCommission sought an order from theCourt requiring the insurers, actingthrough their authorized agent, RoyaleBelge SA, to pay the principal sum and

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

interest payable by the Commission tothose beneficially entitled to Mr vanKasteel's estate.

In its defence the defendant requestedthat the case be joined to Case 805/79on the ground that the cases wererelated. That request was refused bydecision of the Court notified to theparties on 23 April 1981.

By an application lodged at the CourtRegistry on 2 June 1981 the applicants inCase 805/79 sought leave pursuant tothe second paragraph of Article 37 of theStatute of the Court to intervene in thisaction in support of the Commission.Thar application was lodged inaccordance with Article 93 of the Rulesof Procedure. By order dated 15 July1981 the Court granted leave tointervene.

By order dated 9 December 1981, madepursuant to Article 95 (1) and (2) of theRules of Procedure the Court decided toassign the case to the First Chamber.

By order dated 9 December 1981 theCourt (First Chamber) decided to initiatemeasures of inquiry. First it decided tohear of its own motion an aviationexpert to be nominated by both partieswithin a period of one month, or, failingagreement within that period, twoexperts, one to be nominated by eachside, on the question as to theconclusions which an airman might havedrawn from the weather informationprovided by Lyon-Bron Airport for aflight from that airfield to Cannes. It alsoordered Mr Turli and Mr Chabert to beexamined as witnesses as to the reasons,referred to above, which led them to

decide at the time against taking thedirect route to Cannes and to take theLyon—Marseille route and Mr Grimaud,Inspector at the French Ministry ofTransport and author of theaforementioned report, to appear inorder to provide any comments on hisreport which might be of use. Inaccordance with Article 45 (3) of theRules of Procedure the First Chamberassigned the task of examining thosewitnesses to the Judge-Rapporteur.

Since an agreement on the nomination ofa single aviation expert could not bereached the Commission, by letter of29 March 1982, proposed to the Courtthat it should hear S. Thouvenot, anexpert on air transport whose nameappears on the list of aeronauticalexperts maintained for the Court ofAppeal, Paris. By a letter of 1 April 1982the defendants proposed R. Auffray, anaeronautical expert residing at Bretignyin France.

The examination of the witnesses andexperts, in which the Advocate Generalparticipated, took place on 2 July 1982at the Court.

After the hearing on 2 July 1982 theCourt (First Chamber), by letter dated14 December 1982, requested thedefendants to reply to certain questionsand gave the Commission and theinterveners the opportunity to submittheir observations on the answers. Theanswers and the observations werereceived at the Court within the periodsallowed.

Upon hearing the report of the Judge-Rapporteur and the views of theAdvocate General the Court (FirstChamber) then decided to open the oralprocedure.

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COMMISSION v ROYALE BELGE

II — Conclusions of the parties

The Commission of the EuropeanCommunities, the applicant, claims thatthe Court should:

1. Declare the action admissible and wellfounded and accordingly orderRoyale Belge SA, acting on its ownbehalf and on behalf of the othercompanies which signed the insurancepolicy of 28 January 1977, to pay theprincipal sum and interest payable bythe Commission under Article 73 ofthe Staff Regulations of Officials ofthe European Communities to thepersons beneficially entitled to theestate of Mr van Kasteel following hisdeath.by accident on 29 April 1978;

2. Order Royale Belge SA to pay thecosts.

The interveners claim that the Courtshould:

1. Declare the intervention in this actionadmissible;

2. Grant the order sought by theCommission after ordering ifnecessary D. Chabert and F. Turli tobe examined as witnesses;

3. Order the defendant to pay the costsof the intervention.

The defendant contends that the Courtshould:

1. Declare the action inadmissible or inany event unfounded;

2. Order the applicant to pay the costs;

In the alternative, before arriving at adecision on the substance of the case,

1. Appoint one or three specialist expertsin aviation matters to give theiropinion, after studying the evidencebefore the Court, on the questionwhether between the time of hisdeparture from Lyon-Bron Airport on29 April 1978 to the time of his fatalaccident Mr van Kasteel committedone or more manifestly reckless actsresulting in the accident and tospecify them;

2. Reserve the costs.

Ill — Submissions and argu­ments of the parties in thewritten procedure

In its application the applicant, the Com­mission of the European Communities,states that the issue of fact and law inthis case is whether or not Mr vanKasteel's fatal accident was due to amanifestly reckless act within themeaning of Article 4 (1) (b) of the jointrules. The burden of proving that suchan act was committed is on thedefendant. In its view there can be noquestion of such an act unless Mr vanKasteel's conduct demonstrated a totalconscious lack of care. "Reckless" actsare foolhardy acts, committed with theknowledge of the risks involved so that itmay be said there is a willingness toaccept risks. The meaning of the adverb"manifestly" is that in addition suchrecklessness excludes insurance coveronly if it is immediately obvious toanyone that the official's conduct is asure indication of recklessness.

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

The Commission then states that theweather information given to Mr vanKasteel before he left Lyon-Bron wassuch that it was reasonable for him todecide to fly to Cannes by the directroute. It was only once he was in the airthat Mr van Kasteel was confronted bysuddenly deteriorating weather and•whilst he succeeded in maintaining visualmeteorological conditions his aircraftwas caught in downdraughts whichcaused it to crash into Mont Sainte-Victoire. The Commission further be­lieves that Mr van Kasteel did not followthe route he had originally planned totake, since in view of the sudden de­terioration in the weather he changeddirection, probably with the intention ofreaching the coast or an emergencylanding 'place. In such circumstancesthere can be no presumption of amanifestly reckless act.

In their defence the defendant places adifferent interpretation on the expression"manifestly reckless act" and the eventsleading to Mr van Kasteel's fatal ac­cident. As far as concerns the meaning ofthe word "reckless", it states that, failingany other rule of interpretation, theword should be given the meaning whichit has in ordinary usage. After referringto several dictionaries it takes the viewthat a "reckless" act may be defined asthe act of a person who, overestimatinghis chances, pursues a course of actionwith such audacity that he fails toforesee the dangers to which he exposeshimself and of which he could not havebeen unaware. The defendant points outthat the words used in the German textof Article 4(1) (b) of the Communityrules are "offensichtlich waghalsigerHandlungen", which literally mean actswhich are obviously those of a "dare­devil". An act is "manifestly" recklesswhen the audacity involved is foolhardy

to an extent which is clear and certainbeyond any possible doubt.

For its interpretation of the events pre­ceding the accident of 29 April 1981 thedefendant refers to the report of theinquiry drawn up by the French Ministryof Transport and written by MrGrimaud. One of the conclusionsreached in the report reads as follows:

"The initial cause of the accident residesin the pilot's decision to fly direct fromLyon to Cannes. A contributory causewas that he did not maintain VMC(Visual Meteorological Conditions) evenif this meant a diversion. Thedetermining cause was that he began todescend .. . without knowing the cloudbase when the route between Carpentrasand Saint Tropez passes over relativelyhigh ground."

In the defendant's view, only one ofthose three causes need be the result of amanifestly reckless act for Article 4 (1)(b) of the joint rules to apply. Itcontends that each of the three causeswas the result of unquestionablerecklessness.

In the first place the decision to fly directfrom Lyon to Cannes was foolishlyreckless because Mr van Kasteel knewfrom the information given to him justbefore his departure from Lyon-Bronthat weather conditions on that route

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COMMISSION v ROYALE BELGE

were adverse in the extreme. What ismore, Mr van Kasteel knew that whengiven the same information other pilotshad decided to go down the Rhônevalley where visual flight was stillpossible over the entire route.

The second point made by the defendantis that when Mr van Kasteel reached thedisturbance and the 8/8 cloud cover hecould have undertaken a diversion as theother two pilots had done. Instead ofdoing so he continued to fly into in­creasingly thicker cloud in technicalconditions which did not allow visualflight to be maintained and in disregardof the most elementary requirements ofprudence.

Thirdly, Mr van Kasteel decided to flybelow 1 500 metres in the hope ofgetting below the cloud base when thesky was absolutely full of cloud between800 and 2 500 metres and visibly wasreduced or even non-existent. Such adescent in those conditions verged onstupidity, first because Mr van Kasteeldid not know the height of the cloudbase or therefore how far he shouldcome down and secondly because hisroute lay over relatively high peaks. Inthis regard the defendant contests theCommission's view that the aircraftbecame caught in downdraughts whichcaused it to crash into Mont Sainte-Victoire. The defendant maintains thatthere is no evidence to suggest that theaccident was due to a downdraught.

In its reply the Commission first of alldenies that the weather information

provided by Lyon-Bron Airport was suchthat any pilot given that informationcould have realized that visibility was nilbetween Lyon and Cannes. On the basisof the information which he had receivedMr van Kasteel could set out on thatroute without infringing visual flightrules because visibility was reported as 10to 15 kilometres and there was amplespace between the two layers of cloudsituated at 600 to 1 000 metres and 2 400metres to fly by sight.

The Commission then makes the pointthat the route followed by Mr vanKasteel was one recommended by theFrench aviation authorities to pilotsflying under visual flights rules. Onlyshortly before the accident did he ceaseto keep precisely to that route:Moreover, towards the end of their flightthe other two pilots also encounteredweather conditions which were at timesdifficult. On this point the Commissionrefers to a statement by Mr Turliexplaining that after reaching the coasthe was obliged to fly on instrumentsfrom La Ciotat and managed to land atToulon only with assistance from theradar there. The criticism made of Mrvan Kasteel regarding his choice of routeis therefore irrelevant.

The Commission attaches importance tothe last radio contact between Mr vanKasteel and Marseille Information a fewminutes before the accident. In its viewthat message does not indicate, as thedefendant contends, that at that momentMr van Kasteel was flying in 8/8 cloud.Mr van Kasteel said in fact that he waspassing through a "shower". What ismore, that conversation did not indicateany kind of anxiety or especially anyneed to descend. In this regard the

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

Commission claims that there is noevidence to support the assertion that Mrvan Kasteel decided to descend below1 500 metres, the level at which he wasflying at the time of the last radiocontact. Although his aircraft crashedinto the mountain at a height of approx­imately 960 metres, the existence of adowndraught would be sufficient to ex­plain the loss of altitude.

The Commission's conclusion is thatnone of the three alleged reckless actshas therefore been proven by thedefendant.

In its rejoinder the defendant maintainsthat the information given to Mr vanKasteel before his departure from Lyon-Bron was an imperative warning to anypilot that it was quite unsafe to set out tofly to Cannes by the route chosen by Mrvan Kasteel. This was also one of theconclusions reached in the report of theinquiry drawn up by the French Ministryof Transport. That report also estab­lished that the loss of height shortlybefore the accident could only have beendue to a decision to descend. If thatexplanation — provided by an expert insuch matters — is right, Mr van Kasteelwas reckless. However, the alternativeexplanation advanced by the Com­mission, namely that the aircraft wascaught in a downdraught, does not ruleout recklessness either. Before leavingLyon-Bron Mr van Kasteel knew thathe would be flying into a vigorousdisturbance and that there would beswirling winds and strong turbulence. Itwould be the height of folly to ventureinto such a situation, in an aircraft of thetype he was flying, above a mountainrange as high as that where the accidentoccurred.

IV •— Summary of the statementsof the experts and wit­nesses

The evidence of Daniel Chabert, whohimself flew an aircraft on 29 April 1978,may be summarized as follows. Thethree pilots all went to the meteoro­logical office at Lyon-Bron and theydiscussed together the information whichthey were given. As regards the visibility,type of cloud and altitude at which itwas expected to be, there was nothingalarming in the information given. Inthose cicumstances there was no reasonto expect any particular danger in thedirection of Provence. Before hisdeparture from Lyon-Bron Mr Chabertdecided to follow the Rhône valley forCannes because he usually followed thatroute which was more pleasant and moreenjoyable. A flight plan was not filed assuch action was not compulsory inFrance. Near Carpentras Mr Chabertdecided not to continue to Cannes but toland at Marseille. That decision wasforced upon him by two reasons. Thefirst was that he encountered anunexpected deterioration in the weatherwhich had not been forecast as being sobad; there were squalls which, thoughnot dangerous from the point of view ofthe pilot were uncomfortable for thepassengers. The second reason was thathe had to cut short the flight becausetwo passengers became airsick so that theposition was extremely unpleasant. MrChabert therefore decided to land atMarseille so as not to continue the flightin uncomfortable conditions.

The evidence of the other pilot, FilippoTurli, may be summarized as follows.

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COMMISSION v ROYALE BELGE

The weather forecast by the meteoro­logical office at Lyon-Bron was not verygood. However, they were told that itwas "flyable" and that aircraft werearriving from and leaving for Cannes.Neither Mr Turli nor the other twopilots were warned that there might beserious danger. Initially, that is to say ontake-off from Lyon-Bron, Mr Turliintended to follow the same route toCannes as Mr van Kasteel; that is, infact, the normal route which pilots areadvised to follow. However, 20 kilo­metres beyond Lyon he decided tofollow the Rhône valley. At that time hecould not tune in to Montélimar toobtain information with a view to takinga more direct route. The route to thesouth along the Rhône valley also hadthe advantage of providing a greatermargin of height above the ground and,should turbulence occur, which he habit­ually fears, of enabling him to losealtitude without danger. Mr Turli statedthat he was habitually frightened ofturbulence and that his fear was strictly apersonal idiosyncrasy. He had alwaysfeard turbulence even when not serious.For that reason he continued flyingsouth until abreast of La Ciotat at whichpoint he found himself in very low cloud.He then radioed for assistance, reportingthat he was unable, to'find an airfield. Inthe end Toulon-Hyères helped him toland by radar.

The evidence of Edmond Grimaud whoupon the instructions of the FrenchMinister for Transport prepared thetechnical report on the circumstances ofthe accident in 1978, may be summarizedas follows. As far as concerns the normalroute for flying from Lyon-Bron toCannes, there is no prescribed orrecommended route for the type ofaircraft flown by Mr van Kasteel. A pilotof that type of aircraft may choose hisown route. There is no establishedpractice of choosing one route oranother.' Mr van Kasteel was entitled tofile a flight plan although he was notobliged to do so. As for Mr van Kasteel's

decision to fly direct from Montélimar toCannes, Mr Grimaud explained that hedid not state in his report that it wasmadness to fly that route. The weatherinformation provided by Lyon-BronAirport might have persuaded the pilotnot to take that route but it was not ofsuch a nature as to justify the conclusionthat it would be abnormal to fly straightto Cannes. As regards the loss of altitudeafter the last radio contact, that mighthave been due to turbulence. It is notpossible to confirm that, however. Bycomparing the position of the wreckagewith the route which Mr van Kasteel hadbeen following at the time of the lastradio contact it is possible to deduce thathe had changed course before theaccident. There are two possible explan­ations: either Mr van Kasteel deliberatelychanged course in order to follow adifferent route or he veered away toavoid an obstacle which he suddenly sawlooming up in front of him. In MrGrimaud's view there is no evidence tosupport one theory rather than the other.Only one thing is certain; it is veryunlikely that a squall could have madethe aircraft alter course, even in the caseof a very light aircraft like a PiperCherokee.

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The statement of Raymond Auffray, anexpert witness on aviation before theFrench Cour de Cassation, may besummarized as follows. From the in­formation given to Mr van Kasteel on29 April 1978 a pilot of some experienceought to have deduced that it was notpossible to pass through the mountainsunder visual flight rules. When a pilotsuddenly encounters a situation not inaccord with visual flight rules, he turnsround. In Mr Auffra/s view, thepossibility cannot be excluded that Mrvan Kasteel tried to turn back after thelast radio contact, which was when hewas in cloud. It is also not ruled out thatthe change of course near Mont Sainte-Victoire was caused by strong gusts ofwind. In such circumstances a pilot mayin fact lose control of his aircraft.

' The statement of Stéphane Thouvenot,honorary expert in aviation matters atthe Cour de Cassation and Courd'Appel, Paris, may be summarized asfollows. The Provence region in thesouth of France is an area which, fromthe point of view of the weather andflying conditions, is more difficult than iscommonly believed. On the day of theaccident, 29 April 1978, he was onjudicial business close to the routesfollowed by the three pilots. MrThouvenot encountered masses of blackcloud — to be precise, over theCévennes — which were all the moredisturbing because there were gusts ofwind from the south. As regards theweather information provided by Lyon-Bron, Mr Thouvenot explained that thevery strong turbulence forecast indicatedthat the situation would be un­comfortable but not necessarilydangerous. Moreover, a pilot with someexperience could deduce from that infor­mation that it was possible to make theflight, although in difficult conditions.The weather information which Mr vanKasteel later received from Marseille

may also have led him to believe thatthere would be a certain amount ofvisibility.

As regards the significance of the lastcommunication between Mr van Kasteeland Marseille, Mr Thouvenot believesthat the pilot clearly thought that thecloud in which he was flying was in facta local shower. He would not have usedthe word "shower" if that had not beenthe case. After that last communicationMr van Kasteel suddenly encounteredweather much worse than he hadexpected. However, it was legitimate forhim to hope to 'cross that area of badvisibility if it was limited in extent. If itwas not, Mr van Kasteel would havebeen forced to look for an emergencylanding area, which would not be easybecause at that point he must have beencrossing the mountains.

As regards the change of course beforethe accident, Mr Thouvenot stated thatstrong gusts of wind may force anaircraft upwards or downwards for aconsiderable distance. Consequently, it isnot impossible that such a light aircraftmay have been blown off course by gustsof wind.

V — Replies to the questions putby the Court

In reply to the questions put by theCoun the defendant stated that in viewof the explanations provided by Mr

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Grimaud and Mr Thouvenot it seemeddifficult to maintain that an attempt tofly directly to Cannes was "manifestlyreckless". Nor did it seem possible toreconstitute exactly the circumstances ofthe accident or in particular to decidewhether between the last radio contactand the time of the accident Mr vanKasteel deliberately chose to descend inthe vicinity of the mountain peaks orwhether he was caught by a down-draught which propelled him on to themountain.

Nevertheless, the defendant still believesthat nothing can justify Mr van Kasteel'sflying into the disturbance during theflight. He could not have been surprisedby it because it had been forecast and heknew the dangers which it presented. Inthose circumstances Mr van Kasteelought to have turned back. By stillcontinuing his flight direct to Cannes heacted in a manifestly reckless manner.

The Commission of the EuropeanCommunities and the interveners insubstance contest the view that Mr vanKasteel entered a disturbance which hehad already seen and which he knewmade visual flying no longer possible.Referring to the evidence of MrThouvenot, they claim that Mr vanKasteel may have been surprised becausethe disturbance was not where it wasforecast. What is more, Mr Thouvenotpointed out that, although Mr vanKasteel was in cloud at the time of thelast radio contact, he believed that hewas flying through a local shower ofshort duration and not a mass of cloud.

VI — Oral procedure

At the sitting on 7 July 1983 the partiespresented oral argument.

The Advocate General delivered hisopinion at the sitting on 14 July 1983.

Decision

1 By an application lodged at the Court Registry on 5 February 1981 theCommission of the European Communities, acting pursuant to an arbitrationclause as provided for in Article 181 of the EEC Treaty, Article 153 of theEAEÇ Treaty and Article 42 of the ECSC Treaty, brought an action againstRoyale Belge SA, a company having its registered office at Brussels, actingon its own behalf and as agent for 14 other insurance companies which hadsigned the insurance agreement dated 28 January 1977 with the institutionsof the European Communities, seeking an order requiring it to pay theprincipal sum and interest owed by the Commission to those beneficiallyentitled to the estate of Gerrit Jan van Kasteel as a result of his death byaccident on 29 April 1978.

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

2 In support of its application the applicant claims that Mr van Kasteel was anofficial in Directorate-General XV of the Commission when he was killed inan aircraft accident which occurred in the Commune of Vauvenargues inProvence, France, during a flight from Brussels to Greece in a light aircraftwhich he was piloting himself. Under Article 73 of the Staff Regulationsofficials are covered against the risk of accident subject to rules drawn up bycommon agreement of the institutions of the Communities. By signing on28 January 1977 the collective insurance agreement entered into by thoseinstitutions the insurance companies for which the defendant acts as agentundertook to cover the Communities against the financial consequences ofthe obligations which the latter assumed under the Staff Regulations inrespect of accidents befalling the persons to whom Article 73 of the StaffRegulations applies.

3 The defendant does not contest the facts alleged by the Commission. Itcontents however that in this case the Communities owe no obligation underthe Staff Regulations to the persons beneficially entitled to the estate of Mrvan Kasteel because his fatal accident was the result of a manifestly recklessact, a risk not covered by Article 73 of the Staff Regulations or by theinsurance policy. In this regard ir relies upon Article 4 of the joint rulesdrawn up by the institutions of the Communities pursuant to Article 73; thefirst mentioned provides that accidents due to manifestly reckless acts are notcovered for the purposes of the latter provision.

4 According to the defendant, an act must be regarded as "reckless" where aperson, overestimating his chances, pursues a course of action with suchaudacity that he neglects to make allowance for the dangers to which heexposes himself and of which he could not have been unaware. Such an act is"manifestly" reckless, it states, where the rashness thus shown is clear andcertain.

s In its defence the defendant has explained why Mr van Kasteel's actions inthe two and a half hours between his taking off from Lyon-Bron Airport at14.30 hours local time in 29 April 1978 and the accident evince manifestrecklessness.

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COMMISSION v ROYALE BELGE

6 The first evidence to which the defendant points in this regard is the pilot'sdecision to take the direct route to Cannes — along the Rhône valley fromLyon to a point abreast of Montélimar—Carpentras and then branching offdirectly to the St Tropez area — in the adverse weather conditions whichprevailed over that part of France and which had been reported to him atLyon-.Bron Airport. After studying the same weather information Mr vanKasteel's two coleagues who were in the same group of tourists travelling intouring aircraft from Brussels to the Greek islands and were also flying lightaircraft preferred instead to fly down the Rhône valley as far as Marseilleand then to follow the coast.

7 The Court has been provided with a summary of the weather informationgiven by the Regional Weather Centre at Lyon-Bron Airport between 14.00and 14.30 hours on 29 April 1978 to the crews flying to.Cannes and hasordered an expert report on the conclusions which an airman ought to havededuced from that information. The Court has also heard the evidence of thetwo pilots who took the Lyon-Marseille route in order to ascertain thereasons which led them to decide against taking the direct route to Cannes.

8 After the technical experts and witnesses had been examined the defendantindicated that as a result of the explanations given it no longer persisted in itscontention that the decision to take the direct route to Cannes was in itselfevidence of manifest recklessness.

9 The defendant's second reasons for contending that Mr van Kasteel's actionswere reckless is the decision which he is alleged to have taken when hisaircraft flew into the disturbance and visibility was suddenly reduced, todescend from an altitude of 1 500 metres to less than 1 000 metres.

io It is common ground that at 16.52 hours, the time of his last radio contactwith Marseille-Marignane Airport, Mr van Kasteel reported his aircraft at analtitude of 4 500 feet or roughly 1 500 metres and that approximately10 minutes later it crashed into the north slope of Mont Sainte-Victoire at aheight of some 960 metres.

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

n However, it is not clear from the written evidence, such as the preliminaryinvestigation report drawn up by Mr Grimaud for the French Ministry ofTransport or the report of the Gendarmerie Nationale including their variousappendices, that the aircraft's loss of altitude was due to a deliberate decisionof the pilot to attempt to descend below the cloud. Neither Mr Grimaud,who was examined by the Court, nor the technical experts appointed by theparties, could state with certainty that the loss of altitude was due to adecision taken by the pilot rather than a violent gust of wind. In view ofthose circumstances the defendant has accepted that the loss of altitudemight have been caused by the very strong turbulence through which theaircraft was flying.

i2 However, after the witnesses and technical experts had been examined thedefendant continued to maintain that the pilot's conduct was manifestlyreckless for the third reason which it had advanced. It considered suchrecklessness obvious from the pilot's decision to enter the disturbance whichhe saw ahead of him and not to turn back immediately in search of anairfield where he could land.

1 3 So as to weigh up that argument it is necessary to consider the variousundisputed factual circumstances surrounding the last minutes of the flight inquestion as well as the views which the technical experts have expressed onthem.

w The first point to be made in this regard is that the weather informationprovided by Lyon-Bron Airport forecast a vigorous disturbance producingheavy local rain beyond Montélimar accompanied by a strong gustingsoutherly wind with visibility of 10 to 15 kilometres, reduced to 6 to 10kilometres in rain. There was nothing in that information to indicate that asudden and considerable reduction in the visibility which is an importantfactor for pilots flying visually like Mr van Kasteel, would occur. Accordingto the observations made by Marseille-Marignane at 16.00 hours localtime, one hour before the probable time of the accident, visibility was15 kilometres.

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COMMISSION v ROYALE BELGE

is The severe disturbance which led to the accident in question was thereforeneither forecast nor reported by the weather stations whose information wasavailable to airmen. It is also clear from the evidence of Mr van Kasteel'stwo fellow-pilots who were also flying light aircraft that the decision takenby each of them to follow the Rhône valley route as far as Marseille was notprompted by the weather information available to them. Moreover, whilstfollowing the coast one of them was caught unawares by very stormyweather at La Ciotat from which he emerged only at some risk.

is The information provided by Lyon-Bron also reported the sky covered byaltostratus at roughly 2 400 metres above 4 to 6/8 stratocumulus between600 and 1 000 metres. According to the experts' statements, in suchatmospheric conditions there is normally a corridor between the cloudmasses which is hardly affected by disturbances. Therefore by flying as hedid at an altitude of 1 500 metres Mr van Kasteel did nothing contrary to therules of good airmanship.

i7 It is clear from the foregoing that Mr van Kasteel cannot be accused of anyrashness as regards his conduct as a pilot until the time at which his aircraftentered the unexpected disturbance in the area of Vauvenargues—Aix-en-Provence. Since that is a mountainous area in which, according to MrGrimaud, the weather may change very rapidly in certain atmosphericconditions and in which the effects of such changes on aviation may beconsiderable, the Court accepts the Commission's and the interveners'argument to the effect that Mr van Kasteel could not avoid the disturbance.

is The only question still to be resolved, therefore, is whether the pilotneglected to turn back immediately after entering the disturbance, as thedefendant maintains.

i9 In the last radio contact which he had with Marseille-Marignane at 16.52hours Mr van Kasteel reported: "... I am in a shower". When askedwhether he had the ground in sight he replied: "Sometimes, yes". Thisindicates that at that time he did not regard himself as being in a severe

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JUDGMENT OF 22. 9. 1983 — CASE 23/81

disturbance. What is more, the content of the conversation does not give theimpression that the pilot was afraid of losing visibility completely.

20 According to the estimate of the Gendarmerie Nationale and that made byMr Grimaud in his report, the accident occurred at about 17.00 hours localtime or not more than 10 minutes after the last radio contact. Whathappened in those last 10 minutes is not known but the aircraft must havechanged course as the direction of flight at the time of impact on MontSainte-Victoire was at 90° to the line from Montélimar to Cannes.

2i According to the expert's report, it is very unlikely that an aircraft, even alight aircraft, will change course under the influence of a gust of wind. Thechange of course must therefore have been due either to the pilot's deliberatedecision to change course — in order, for instance, to reach the coast asquickly as possible — or to a sudden movement intended to avoid the· moun­tainside which the pilot suddenly saw looming up out of the cloud.

22 Both theories are tenable. Mr Grimaud has stated that examination of thewreckage showed that at the time of impact the engine was running at fullspeed, which might indicate that the pilot saw the mountainside at the verylast moment and increased power in order to be able to manoeuvre theaircraft so as to avoid the crash. However, Mr Grimaud added that therecould be no certainty on this point.

23 In those circumstances there is no means of ruling out entirely the possibilitythat the pilot decided to turn back just before hitting the mountain. It is alsopossible that he never took such a decision but lost all visibility or even allcontrol of his aircraft only a few moments before the accident.

24 Consequently it has not been established with any certainty whether or notduring the last 10 minutes of the flight the pilot committed one or more actsevincing rashness on his part.

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25 Because of that uncertainty and in view of the findings regarding theunexpected nature of the disturbance and Mr van Kasteel's conduct as a pilotup to the time at which the aircraft entered the disturbance, the applicationmust be granted. It was in fact for the defendant to show that the factswarranted the application of one of the exemptions set out in Article 4 of thejoint rules.

26 It is therefore unnecessary to examine the question of the degree of rashnessrequired for an act to be described as "manifestly reckless".

27 Consequently the defendant, acting on its behalf and as agent for 14 otherinsurance companies which signed the collective insurance agreement of28 January 1977 with the institutions of the Communities, must be orderedto pay the principal sum and interest owed by the Commission to thepersons beneficially entitled to the estate of Gerrit Jan van Kasteel followinghis fatal accident on 29 April 1978.

28 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to beordered to pay the costs if the successful party has asked for them. As thedefendant has failed in its submissions, it must be ordered to pay the costs,including those of the interveners and the sums due to the witnesses andtechnical experts.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Orders the defendant to pay the principal sum and interest owed bythe Commission to the persons beneficially entitled to the estate ofGerrit Jan van Kasteel following his fatal accident on 29 April 1978;

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OPINION OF SIR GORDON SLYNN — CASE 23/81

2. Orders the defendant to pay the costs, including those of theinterveners and the sums due to the witnesses and technical experts.

O'Keeffe Bosco Koopmans

Delivered in open court in Luxembourg on 22 September 1983.

J. A. PompeDeputy Registrar

A. O'Keeffe

• President of the First Chamber

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNNDELIVERED ON 14 JULY 1983

My Lords,

Under Article 73 of the Staff Regu­lations, officials of the Community arecovered against the risks of accident,subject to rules made thereunder. Article4 of those Rules signed on 22 December1976 excludes from cover accidentsresulting from acts which are "manifestlyreckless".

The Community institutions insuredagainst the risks covered with a group ofinsurance companies under a policywhich provides that any dispute arisingout of the performance of the contractmay be submitted-to the Court of Justice.

Mr Gerrit van Kasteel, an official of theCommission, was killed in a flyingaccident on 29 April 1978. His widow,on her own behalf and on behalf of theirfive minor children, together with oneother child, made a claim against theCommission, which the latter passed onto the insurers. The latter contended thatthe accident was due to manifestlyreckless acts of the deceased, so thatthey were not liable under the policy.Mrs van Kasteel instituted proceedingsagainst the Commission, which in turnbrought this action under Article 181 ofthe EEC Treaty against Royale Belge asa representative of the consortium of

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