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Opinion of Mr Advocate General Tesauro delivered on 16 September 1993. - Alfredo Grifoni v European Atomic Energy Community. - Non-contractual liability - Compensation for loss. - Case C-308/87.



European Court reports 1994 Page I-00341



Opinion of the Advocate-General



++++

Mr President,

Members of the Court,

1. In an interlocutory judgment of 27 March 1990, (1) the Court ordered the Commission to pay compensation, to the amount of 50%, for the damage suffered by the applicant as the result of his fall from the flat root of the meteorological station of the Joint Research Centre at Ispra. In addition, that judgment allowed the parties a period of six months within which to agree on quantum. Failing such agreement the parties were to submit to the Court, within the same period, their own assessments thereof.

2. Since no agreement was reached within the prescribed period Mr Grifoni, in compliance with the abovementioned judgment on 8 October 1990, submitted his own conclusions with regard to the criteria for assessing the amount of the damage sustained, quantifying it in the total amount of LIT 2 777 781 579. (2) Accordingly, he sought the payment to him of half of that sum (LIT 1 388 190 789), together with interest, as provided for by law, and also compensation for monetary inflation with effect from November 1990 until the date of actual payment, and legal costs of not less than LIT 50 000 000, to be borne by the Commission.

The Commission merely contended that the application should be dismissed, and specifically disputed the amount of annual earnings and the degree of permanent invalidity taken by Mr Grifoni as the basis for calculating compensation.

3. In order to ascertain the existence and the degree of permanent invalidity in Mr Grifoni' s case, the Court on 4 June 1991, ordered that an expert medical opinion should be obtained; this was conducted on 13 September 1991. It is clear from that expert opinion that Mr Grifoni' s degree of invalidity may "be assessed at 35% both by reference to physiological damage and by reference to working capacity". That percentage is not disputed by the parties who merely took note thereof in their observations on the expert opinion, whilst affirming their previous submissions.

4. It should be added that in February 1993 the Court found that, notwithstanding that the degree of invalidity was not in dispute, the parties were not in a position to reach an amicable settlement of the dispute. It therefore put several questions in writing to the parties and to the Italian Government. In particular, Mr Grifoni was requested to produce the original invoices of all expenses incurred as a result of the accident and already produced as photocopies annexed to the pleadings of 8 October 1990, together with documentary evidence of his earnings in 1982 and 1983.

In complying with the Court' s requests, Mr Grifoni also produced on 15 March 1993 documents relating to his earnings for 1981, 1984 and 1985. The documents relating to 1984 turned out, however, to be almost completely different from those already annexed in respect of the same year to the pleadings of 8 October 1990, which means that there are two different sets of documents proving the earnings of the same year.

Essentially, Mr Grifoni has therefore altered, in relation to his submissions on the calculation of loss, the information furnished in support of the earnings which he maintains he received in 1984. It follows, in my view, that the new set of documents submitted must be declared inadmissible inasmuch as, in addition to the documents annexed to the pleadings of 8 October 1990, only the relevant original documents and other documents requested by the Court may be taken into consideration and not others.

5. The replies of the Italian Government also showed that Mr Grifoni was in receipt of a daily allowance for total temporary invalidity and that as from 1986 he received an invalidity pension, both benefits being awarded by the Instituto Nazionale per l' Assicurazione control gli Infortuni sul Lavoro (National institution for insurance against accidents at work). However, since that institution has not intervened in these proceedings, problems of subrogation or recourse in relation to the costs incurred by that institution remain outwith the present proceedings.

Finally, it should be stated that the Commission which proceeded to calculate the damage (for the first time) only at this stage of the proceedings quantified the total amount at LIT 101 961 431. It is true that at the hearing the Commission offered to settle with Mr Grifoni for the sum of LIT 260 000 000, an offer refused by the applicant. In that connection it hardly needs to be pointed out that that proposal can in no way be construed as an acknowledgement by the Commission of the loss sustained by Mr Grifoni, since the Commission at the same time continued to contest the criteria for assessing loss applied by Mr Grifoni.

6. That being so, it should be stated that the assessment of the loss carried out by Mr Grifoni is based on Italian legislation in the matter and that the Commission itself during the whole of the written procedure referred solely to Italian law. However, the assessment of the loss as quantified by the Commission as it appears from the replies of March 1993 and its offer of settlement to Mr Grifoni at the hearing, are drawn up in accordance with the methods of calculation provided for in Belgian law.

The second paragraph of Article 188 of the EAEC Treaty, the applicable provision in the matter of non-contractual liability, stipulates that the Community must make good any damage caused by its institutions or by its servants "in accordance with the general principles common to the laws of the Member States". That means that, in order to determine the content and the limits of the Community' s liability, Community law contains a renvoi to the general principles common to the other national legal systems.

It cannot therefore be accepted that the damage suffered by Mr Grifoni may be established and paid in conformity only with the Italian legislation on non-contractual liability. It must instead be based on the general principles common to the legal systems of the Member States, which means in the present case that it is necessary to specify the categories of damage which may be indemnified together, if possible, with the method by which the amount thereof may be calculated.

7. To identify the categories of damage for which compensation is to be paid on the basis of common principles is extremely simple. All the national legal systems, in spite of terminological differences, recognize that compensation may be obtained for damage caused to the property of the person injured, which includes costs directly arising out of the accident, loss of earnings both past and future, together with non-financial loss, stemming from the physical and emotional sequels of the accident irrespective, therefore, of economic factors and connected with the person as such.

However, the situation is more complex as regards the methodology of assessment of damage with regard to the categories thus identified. It is only too manifest that the problem does not arise as regards the costs occasioned by the accident which are reimbursed on the basis of actual disbursements. Nor does the assessment of non-financial loss pose particular problems inasmuch as, over and above the experiences at national level, all the legal systems accept that that assessment must have regard to all the circumstances, both subjective and objective, of each particular case and must be carried out by the Court at its discretion, having recourse to equitable criteria.

8. On the other hand, the situation is different as regards the calculation of the injured party' s loss of earnings, particularly future earnings. As is well demonstrated by the research note drawn up by the Court' s departments, it is in fact almost impossible, in view of the extreme diversity of national laws in this connection, to seek a "common" solution. In fact, the various solutions may be reduced to three entirely different methods of calculation, namely the in concreto assessment practised in particular in Germany, the multiplier in force in the common law countries and the use of actuarial tables based mainly on the degree of invalidity and on a coefficient to take account of life expectancy. Mr Grifoni' s calculations are based on the latter method (provided for by Italian law) as are the Commission' s (using the formula provided for by Belgian legislation); their calculations are, however, different on account of the different coefficients provided for in the relevant actuarial tables.

In those circumstances, merely to contrast the technical rules adopted in each individual Member State for the assessment of financial damage cannot be correct. At the most that would be appropriate in order to assess the general tendencies to which those rules aspire and the results to which they lead. It follows that, in order to adopt a "common" solution, the sole possibility would be to carry out a calculation according to the parameters used in each Member State and then to arrive at a weighted average of the 12 results obtained. Evidently that would be an unrealistic manner of proceeding and in any event would be a long way from complying with the general principles common to the legal systems of the Member States. On the basis of the foregoing I am moved to suggest, having regard moreover to the fact that the diversity of methods and above all of the results obtained is accounted for, at least partly, by the economic and social situation particular to each Member State, that reference should be made to the common principles only in order to identify the nature of the loss to be compensated and to have recourse to the method in use in the country in which the event occurs (place of the accident, nationality and residence of the injured party) in order to assess the loss in financial terms.

I - Financial loss

9. I come now to the assessment of the loss, beginning with financial loss, which includes the injured party' s loss of earnings, past and future, together with the costs arising from the accident.

Determination of annual earnings

10. In the conclusions of 8 October 1990, which are the ones to be taken into consideration, Mr Grifoni sought the amount of LIT 1 342 297 760 in respect of permanent invalidity, LIT 180 360 000 for total temporary incapacity and LIT 32 732 000 for partial temporary incapacity, sums which must be reduced by one-half since they were calculated on the basis of a degree of invalidity of 70%, subsequently revised to 35% by the medical report obtained pursuant to the order of the court. That percentage, as already pointed out, is uncontested.

In order to calculate Mr Grifoni' s loss of earnings after his accident the earnings to be taken into consideration must first be established. This is far from easy, since these are the earnings of a self-employed person. Moreover, Mr Grifoni claims to have received undeclared income and to have unduly deducted personal expenditure from his declared income. It is specifically with regard to the amount of earnings to be taken as the basis for calculating the financial loss that the parties are most at odds.

11. With regard to the reference year or years, Mr Grifoni, relying on Article 4 of Italian Decree Law No 857 of 23 December 1976, requested that compensation be calculated on the basis of earnings received in 1984, in view of the fact that the earnings of that year were amongst the highest of the earnings declared for tax purposes of the three preceding years. On this point I would merely observe that there is no ground for rejecting that request particularly in view of the fact that the legal systems of the other Member States adhere more or less to the same principles concerning the determination of the earnings of a self-employed person.

That conclusion does not, however, resolve the problems inherent in the determination of income. Essentially, Mr Grifoni based the compensation due to him on the amount of LIT 147 000 000 which, according to his statement, corresponded to his actual income in 1984 (reference year), whereas the income declared for tax purposes in the same year amounted only to LIT 31 346 000. In fact, in his conclusions of 8 October 1990, Mr Grifoni argued that it was necessary to add to the declared income the following amounts:

- LIT 16 236 000 amounts appropriated to depreciation;

- LIT 12 918 000 for the acquisition of capital assets;

- LIT 39 488 128 for the acquisition of building materials and personal property;

- LIT 47 192 800 representing income not declared.

In fact it may be inferred from the declaration of income in question that the turnover of Mr Grifoni' s undertaking in 1982 amounted to LIT 420 260 000 from which Mr Grifoni deducted the amount of LIT 388 914 000, including LIT 16 236 000 representing depreciation under the liabilities heading, so that net income amounted to LIT 31 346 000.

12. Since, it is clear from the research note drawn up by the Court' s departments, most of the national legal systems for the purpose of ascertaining actual earnings, allow earnings greater than those declared for tax purposes to be shown, it is necessary to examine whether Mr Grifoni has produced supporting documents in this connection.

With regard to the amount of LIT 16 236 000 relating to the depreciation reserve, which appears in the declaration of income it cannot, it seems to me, be added as such to Mr Grifoni' s earnings, because it is a company expense. Similar considerations apply in regard to the leasing of a crane of LIT 12 958 100 (document G of the conclusions of 8 October 1990) which was then sold to the Ispra Centre, and the amount of LIT 39 000 000 for the acquisition of building materials. Mr Grifoni did furnish in that connection a series of invoices actually showing the acquisition of the materials in question (document H of the conclusions of 8 October 1990) and those are indeed costs of the undertaking which as such were properly deducted from income.

I do not consider, as I have already stated, that it is possible to take into consideration the new items annexed by Mr Grifoni to the replies of 15 March 1993 which show that the amounts in question (LIT 51 516 000) concerned purely personal expenditure (petrol, telephone, restaurant, gas), unduly deducted from declared income (see column VI of the tabulated breakdown of income).

13. I now come to the undeclared income which Mr Grifoni says he received. In his conclusions of 8 October 1990 he alleges that he received undeclared payments of LIT 47 192 800 and in support of that allegation submitted a series of cheques and payment slips proving that he had in fact received cheques (from various sources) for that amount and that he had paid them into his own account. In his reply of 15 March 1993 Mr Grifoni, however, partially altered his version of the facts, and maintained that the undeclared amount of LIT 49 832 000 was received solely in connection with work carried out for the account of the Community at the Ispra Centre.

Irrespective of the strangeness of the fact that Mr Grifoni may be in receipt of undeclared income from a Community institution, more or less all the cheques copies of which were attached to his pleadings of 8 October 1990 do not come from the Ispra Centre and, moreover, do not prove anything, since they are mere payment slips. It is true that in his replies of 15 March 1993 Mr Grifoni furnished new documents. In that connection I would, however, observe that even disregarding the problems of admissibility mentioned above, it should be stated that those documents have no evidentiary value: they are in fact merely copies of bank statements and payment orders issued by his bank.

Finally, since the allegedly undeclared income may not be taken into consideration or in any event is not proven, in the evaluation of loss of earnings it is appropriate only to take into account the income declared for tax purposes, that is to say the amount of LIT 31 346 000. Accordingly, I shall calculate the compensation which Mr Grifoni is seeking on that basis.

Permanent Invalidity

14. In order to calculate permanent invalidity, Mr Grifoni proposed the following formula: LIT 147 000 000 (earnings) x 35% (percentage of invalidity) x 16.318 (capitalization coefficient applicable depending on age (3)) - 20% (difference between physical life and active life). By using that formula, the compensation would amount to LIT 671 148 880.

In addition to the amount of earnings to be taken into consideration it is also necessary to correct the abovementioned coefficient because it refers to Mr Grifoni' s age at the time of the accident whereas account must be taken of his age at the onset of permanent invalidity. Since Mr Grifoni was 41 years old at the time, the applicable coefficient is 16.104, as may be seen from the table mentioned in footnote 3.

It follows that the calculation of permanent invalidity must be effected in the following manner:

31 346 000 x 35% x 16.104 - 20% = LIT 141 342 875 x 50% = LIT 70 671 438.

Total temporary incapacity

15. As may be seen from the conclusions of 8 October 1990, Mr Grifoni was totally incapable of working for a period of nine months (270 days). In order to calculate total temporary invalidity Mr Grifoni multiplies 668 000 (daily income) by 270. The amount of the daily income cannot be regarded as correct even if account is taken of the fact that the applicant takes as his point of departure earnings of LIT 147 000 000. In any event in view of the fact that the income amounts to LIT 31 346 000, the calculation of temporary total invalidity will be 85 879 (daily income) x LIT 270 = 23 187 450, x 50% = LIT 11 593 725.

Partial temporary invalidity

16. I must say straight away in no uncertain terms that the claim for compensation of 50% for partial temporary invalidity cannot be accepted since such partial temporary invalidity is supported by none of the documents submitted by Mr Grifoni, (4) except for a note drawn up under his own hand (see Annex A, p. 73c). Moreover it is hardly necessary to add that it is apparent from the report drawn up by his own consultant medical adviser that Mr Grifoni was declared clinically cured in July 1986 which means, evidently, that at that date the period of total temporary invalidity had come to an end and the permanent invalidity, subsequently fixed at 35%, commenced.

In the final analysis, under the heading of loss of earnings Mr Grifoni is entitled to:

LIT 70 671 438 (permanent invalidity) + LIT 11 593 725 (partial temporary invalidity) = LIT 82 265 163.

Expenses occasioned by the accident

17. When requested by the Court to furnish the originals of the invoices and receipts relating to the expenditure caused by the accident of 24 October 1985, Mr Grifoni replied that he was in a position to submit only some of the originals, inasmuch as the majority of them had been destroyed following the floods of 1 and 2 June 1992. The documents annexed to prove such occurrence are however absolutely irrelevant inasmuch as they merely demonstrate that on 1 and 2 June 1992 the Lombardie region was struck by exceptionally bad climatic conditions. The fact remains therefore, that only the expenses corroborated by original receipts or invoices already submitted with the conclusions of 8 October 1990 may be taken into consideration for these purposes.

(a) Expenses submitted with the conclusions of 8 October 1990

18. In his pleadings of 8 October 1990, Mr Grifoni requested an amount of LIT 19 194 000 by way of reimbursement of expenditure occasioned by the accident, including LIT 6 200 000 for expenditure not supported by documentary proof. It is clear that the latter may not be taken into consideration as such. As regards expenditure for which documentary proof has been submitted, Mr Grifoni seeks:

(a) LIT 551 000 for specialist medical visits;

(b) LIT 5 750 000 for physiotherapy;

(c) LIT 5 376 000 for home help;

(d) LIT 1 307 000 for the hire of a car (Pinton agency) for journeys made to the doctor, to the hospital or to the headquarters of INAIL (copy of the receipt issued on 30 June 1986 - Annex N, p. 206).

I consider that the expenses mentioned under (c) and (d) cannot be taken into consideration. As regards the expenditure at (c) on the one hand, Mr Grifoni has not demonstrated that the presence of a home help was rendered necessary by the accident which occurred and, on the other hand, he has not supplied proper invoices. As to the expenditure at (d) which relates to six journeys undertaken by Mr Grifoni, two to the hospital at Angera, two to the headquarters of INAIL in Varese, one to an orthopaedic specialist in Bergamo on 24 April 1986 (LIT 293 000) and the other to a neurologist in Florence on 13 May 1986 (LIT 840 000), I would merely make the following observation: there is nothing to indicate that Mr Grifoni went to the hospital on the dates stated in the relevant receipt nor that the orthopaedic visit to Bergamo and the neurological examination in Florence took place; finally, as regards the journeys undertaken at the request of INAIL, suffice it to state, as may be seen from document 57a annexed to the pleadings of 8 October 1990, INAIL reimburses expenditure incurred and documented by the most economical means, but not the resulting hours of work lost.

It should be added that Mr Grifoni did not supply the original of the invoice in question but in his replies of March 1993 merely presented a receipt dated 30 April 1990 and unsigned for LIT 293 000 for a journey to Bergamo (see No 14 of Annex 3), without providing any further explanations. Is that the same journey as that which is covered by the receipt dated 30 June 1986? Even if it were, the terms of the problem remain unchanged.

Finally, the only refundable expenses are those for physiotherapy and those relating to specialist medical visits, that is to say LIT 6 301 001, which at 50% comes to LIT 3 150 500.

(b) Subsequent (documented) expenditure annexed to the replies of 15 March 1993

19. Mr Grifoni annexed to the replies to the questions asked by the Court two receipts relating to two further specialist visits for the amount of LIT 275 800, together with three receipts relating to expenses for the release of clinical documents, for photocopies of clinical documents and for a radiograph for a total amount of LIT 202 400.

These are expenses incurred after submission of the pleadings of 8 October 1990 which therefore cannot be included in those pleadings. Those expenses, together with those already taken into consideration, result in an overall credit in favour of Mr Grifoni of LIT 3 389 600.

20. I consider, however, on the basis of common experience, that the overall amount of expenditure incurred by Mr Grifoni may be regarded as being equal to LIT 10 000 000.

II - Non-financial loss

21. In regard to non-financial loss Mr Grifoni sought in his pleadings of 8 October 1990 compensation for physiological and moral damage suffered. In that respect it should be observed first of all that, whilst Italian law excludes compensation for non-financial loss in a case such as the present one (in which there was no criminal offence) the other legal systems know no concept of physiological loss but only that of non-financial loss for which in cases like Mr Grifoni' s compensation is payable.

It follows that the two categories cannot give rise to two distinct forms of compensation and that, regard being had to the applicable law in the other Member States, the only practicable solution is to grant to Mr Grifoni, to compensate him for the physical and mental suffering resulting from his accident, a lump-sum amount on the basis of equitable criteria. Having regard to the type of injury suffered by Mr Grifoni and its consequences, I consider it equitable to grant to him a lump sum amount of LIT 80 000 000, which at 50% equals LIT 40 000 000.

22. Finally, the total amount to be reimbursed to Mr Grifoni, not including inflation and interest, is LIT 82 265 163 (loss of earnings) + LIT 10 000 000 (expenditure caused by the accident) + LIT 40 000 000 (non-financial loss) = LIT 132 265 163.

III - Interest and compensation for inflation

23. In his pleadings of 8 October 1990 Mr Grifoni included for the period from October 1985 to October 1990 a supplementary amount for interest of 25% (at the annual legal rate of 5%) and an increase of 30.3% to compensate for the effects of inflation. In the same pleadings Mr Grifoni requested that the overall amount thus obtained be subsequently increased by the legal interest and by the monetary indexation from November 1990 to the date of actual payment. Those are claims which are entirely in conformity with the Italian legal system and with Italian judicial practice in regard to the payment of compensation.

In order to establish whether those claims may be upheld, it is however necessary to examine their admissibility in the light of the principles common to the legal systems of the Member States to which Article 188 of the EAEC Treaty refers. However, the solutions adopted by the national legal systems are most disparate. In some the payment of interest and the date from which it is calculated are left to the discretion of the Court; in others that date is the date on which the debtor received formal notice of default, or the date of the judgment or it may depend on the subject-matter of the claim on which interest is payable. However, that diversity is more apparent than real inasmuch as since what is crucial is whether the financial assessment of the damage is or is not calculated taking into account the period elapsing between the event occasioning the damage and the date of the judgment. Moreover, an analysis of relevant national decisions shows that the determination of compensation in cases of non-contractual liability may also be carried out taking into consideration the effect which circumstances subsequent to the event occasioning loss may have, including fluctuations in the value of the currency occurring between the date of the event occasioning loss and the date of the judgment. (5)

In the final analysis, the assessment of loss at the time of judicial determination does indeed take account of the interval between the event occasioning the loss and the payment of damages. That approach accords with the very purpose of compensation which is to provide restitution. Evidently a determination of an amount which did not have regard to the possible delay with which the injured party is compensated or which left out of account monetary inflation occurring in the meantime would be illusory and would not afford restitution to the injured party.

24. Under the Court' s case-law on the payment of compensation which in accordance with general principles has always held claims for interest to be admissible, it has hitherto been considered that the obligation to pay interest arises on the date of the delivery of the judgment establishing the liability of the Community, to the extent to which it declares an obligation to pay compensation.

It is true that in the few cases in which an action for damages has resulted in payment of damages, the amount to be paid was already immediately quantifiable at the time when liability was established where, for example, it corresponded to the amount of refunds which would have been received during the period in which they were not paid. Moreover, the Court itself declared that, when fixing interest at the date of the interlocutory judgment it "intended to assess the damage as it stood on that date" (6) and that that assessment would consequently also include the consequences flowing from fluctuations in the value of the currency occurring after the event occasioning loss.

The case before the Court is, however, rather different, since on the delivery of the interlocutory judgment the criteria for assessing loss had not even been identified; and it is significant in this regard that, contrary to the other interlocutory judgments concerning non-contractual liability, the Court in its judgment of 27 March 1990 determined neither the date with effect from which interest was to run nor the applicable rate. It follows that in the present case damages can be assessed only as at the date of the judgment definitively dealing with the determination of damages.

25. However, to the amount of compensation, as previously determined, must be added compensatory interest determined at a level which takes account of monetary inflation. Given the method used to calculate loss, (7) that is in fact the only way of preventing the victim from bearing the negative consequences of the period of delay before reimbursement, together with the consequences of inflation.

In the light of the foregoing I therefore consider that it would be appropriate to grant to Mr Grifoni on the amount previously determined, compensatory interest for monetary devaluation, at a flat-rate of 10% per annum, which at the date hereof is equivalent to the sum of LIT 105 812 130, which would bring the amount standing to his credit to LIT 238 077 293.

26. That amount must further be increased by interest for delay with effect from the date of the judgment until actual payment. As to the rate of interest I consider it necessary to stress that Mr Grifoni' s claim which refers to the application of an annual rate of 5% must be understood as referring to the legal rate applicable in Italy, which was raised to 10% in November 1990, that is to say immediately after submission of his pleadings. However, in view of the fact that the Court does not refer to the legal rate in force in the applicant' s Member State but in general fixes it at a rate varying between 6 and 8% (8) and in any event never at a rate higher than that requested by the applicant, (9) it follows that the amount of the damages payable to Mr Grifoni should be augmented by interest at the annual rate of 8% from the date of delivery of the judgment until actual payment.

IV - Costs

27. In his pleadings of 8 October 1990 Mr Grifoni asked the Court for at least LIT 50 000 000 for legal costs and costs of journeys in connection with his accident, together with lawyer' s fees, to two further consultations with lawyers amounting in total to LIT 6 605 000, together with LIT 4 000 000 for the expert medical opinion ordered by the Court. The Commission, on the other hand, contends that the parties should bear their own costs.

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Article 69(3) provides that the Court may order that the parties bear their own costs in whole or in part if each party succeeds on some and fails on other heads. It is common ground that the parties were partially unsuccessful at that stage of the interlocutory judgment (liability shared equally) and that the same is true of the assessment of damages, unless the abatement of the applicant' s claims may be thought to have an influence on the sharing of costs. I would therefore suggest that the parties bear their own costs.

28. In the light of the foregoing considerations I therefore propose that the Court should:

(1) Order the Community to pay to the applicant in respect of compensation for loss suffered owing to the accident which happened to him on 24 October 1985 the amount of LIT 238 077 293 plus interest for delay at the annual rate of 8% with effect from the date of the judgment until actual payment;

(2) Order the parties to bear their own costs.

(*) Original language: Italian.

(1) - Grifoni v Commission [1990] ECR I-1203.

(2) - In actual fact Mr Grifoni reserved his right to provide an itemized breakdown of quantum at a later stage. In his application he merely submitted an expert' s opinion to show the consequence of the accident as being total invalidity for nine months and reduced working capacity of 70%.

(3) - See table approved by Royal Decree No 1403 of 9 October 1922.

(4) - In fact it is at least surprising that Mr Grifoni claimed such compensation for a period of 98 days at 50% whereas in his conclusions he alleged a degree of permanent invalidity of 70%.

(5) - See in this connection the national authorities cited by Mr Advocate General Capotorti in Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dumortier v Council [1982] ECR 1752.

(6) - Judgment in Dumontier v Council, cited above, paragraph 11.

(7) - In this connection it is not otiose to state that the formula used in order to capitalize loss of earnings deducts interest in respect of the brought forward appropriation of capital.

(8) - See for example judgments in Case C-152/88 Sofrimport v Commission [1990] ECR I-2477 and in Joined Cases C-104/89 and C-37/90 Mulder v Commission [1992] ECR I-3061.

(9) - See in this connection the abovementioned Mulder v Commission judgment, at paragraph 36.