# 62016TJ0567

JUDGMENT OF THE GENERAL COURT (Second Chamber)

23 October 2018 (
  *1
  )

*1

(Civil service — Officials — Social security — Occupational disease — Occupational origin of a disease — Fifth paragraph of Article 78 of the Staff Regulations — Invalidity Committee — Obligation to state reasons — Manifest error of assessment — Liability — Non-material damage)

In Case T‐567/16,

Robert McCoy, former official of the Committee of the Regions, residing in Brussels (Belgium), represented by L. Levi, lawyer,

Robert McCoy

applicant,

v

Committee of the Regions, represented by J.C. Cañoto Argüelles and S. Bachotet, acting as Agents, assisted by B. Wägenbaur, lawyer,

Committee of the Regions

defendant,

concerning an application based on Article 270 TFEU and seeking, first, annulment of the decision of the Committee of the Regions of 2 December 2014 confirming the conclusions of the Invalidity Committee of 7 May 2014 by which that committee rejected the applicant’s request to recognise the occupational origin of the disease from which he is suffering and, secondly, compensation of EUR 25000 for the non-material damage that the applicant allegedly suffered,

THE GENERAL COURT (Second Chamber),

composed of M. Prek, President, F. Schalin (Rapporteur) and M.J. Costeira, Judges,

Registrar: M. Marescaux, Administrator,

having regard to the written part of the procedure and further to the hearing on 13 December 2017,

gives the following

Judgment

Judgment

Background to the dispute

Background to the dispute

Irregularities at the Committee of the Regions and the applicant’s professional situation

Irregularities at the Committee of the Regions and the applicant’s professional situation

| 1 | The applicant initially performed the duties of financial controller within the Committee of the Regions, from 1 January 2000 to 31 December 2002, and subsequently those of internal auditor, from 1 January 2003. |
| --- | --- |

1

The applicant initially performed the duties of financial controller within the Committee of the Regions, from 1 January 2000 to 31 December 2002, and subsequently those of internal auditor, from 1 January 2003.

| 2 | In the course of his duties, the applicant noted irregularities in the management of the budget of the Committee of the Regions. He reported them first to the administration and the Secretary-General of the Committee of the Regions and then to the Committee on Budgetary Control of the European Parliament (‘Cocobu’), before which he spoke on 19 March 2003. |
| --- | --- |

2

In the course of his duties, the applicant noted irregularities in the management of the budget of the Committee of the Regions. He reported them first to the administration and the Secretary-General of the Committee of the Regions and then to the Committee on Budgetary Control of the European Parliament (‘Cocobu’), before which he spoke on 19 March 2003.

| 3 | Having been alerted by a member of the European Parliament and by a member of Cocobu, the European Anti-Fraud Office (OLAF) investigated the irregularities reported by the applicant and issued an investigation report on 8 October 2003 (‘the OLAF report’). OLAF interviewed the applicant in connection with its investigation report. |
| --- | --- |

3

Having been alerted by a member of the European Parliament and by a member of Cocobu, the European Anti-Fraud Office (OLAF) investigated the irregularities reported by the applicant and issued an investigation report on 8 October 2003 (‘the OLAF report’). OLAF interviewed the applicant in connection with its investigation report.

| 4 | In the OLAF report, it was found that various irregularities had been committed in the budgetary management of the Committee of the Regions and the report recommended, in particular, launching a disciplinary enquiry against certain members of its staff, including against Mr F. and Ms Y. OLAF also noted that Mr F. had warned the applicant that if he continued acting as if he were still the financial controller of the Committee of the Regions Mr F. would ask for an administrative inquiry to be launched into his conduct, and that the applicant had sensed increasing hostility on the part of his superiors. |
| --- | --- |

4

In the OLAF report, it was found that various irregularities had been committed in the budgetary management of the Committee of the Regions and the report recommended, in particular, launching a disciplinary enquiry against certain members of its staff, including against Mr F. and Ms Y. OLAF also noted that Mr F. had warned the applicant that if he continued acting as if he were still the financial controller of the Committee of the Regions Mr F. would ask for an administrative inquiry to be launched into his conduct, and that the applicant had sensed increasing hostility on the part of his superiors.

| 5 | It is noted, generally, in the findings of the OLAF report, that the Committee of the Regions had attempted to ‘discourage or destabilise’ the applicant in the performance of his duties as financial controller, and then as internal auditor, and that the Committee of the Regions seemed to have disregarded Article 2(3) of Decision No 294/99 of the Bureau of the Committee of the Regions of 17 November 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, which provides that ‘officials or servants of the General Secretariat must in no way suffer inequitable or discriminatory treatment as a result of having communicated the information referred to in the first and second paragraphs’. |
| --- | --- |

5

It is noted, generally, in the findings of the OLAF report, that the Committee of the Regions had attempted to ‘discourage or destabilise’ the applicant in the performance of his duties as financial controller, and then as internal auditor, and that the Committee of the Regions seemed to have disregarded Article 2(3) of Decision No 294/99 of the Bureau of the Committee of the Regions of 17 November 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities’ interests, which provides that ‘officials or servants of the General Secretariat must in no way suffer inequitable or discriminatory treatment as a result of having communicated the information referred to in the first and second paragraphs’.

| 6 | On 22 December 2003, Cocobu presented its discharge report in respect of the implementation of the European Union general budget for the financial year 2001, Section VII of which concerned the Committee of the Regions (‘the Cocobu report’). Taking the OLAF report inter alia as its basis, Cocobu not only ‘condemned the official obstruction, [to which] ... the financial controller/internal auditor and his staff had been subjected by the administration of the Committee [of the Regions]’ but also stated that it ‘expect[ed] the reform measures [under consideration by the Committee of the Regions] to allow open reporting of irregularity and fraud without risk of individual or institutional harassment as [had] occurred in the past’. |
| --- | --- |

6

On 22 December 2003, Cocobu presented its discharge report in respect of the implementation of the European Union general budget for the financial year 2001, Section VII of which concerned the Committee of the Regions (‘the Cocobu report’). Taking the OLAF report inter alia as its basis, Cocobu not only ‘condemned the official obstruction, [to which] ... the financial controller/internal auditor and his staff had been subjected by the administration of the Committee [of the Regions]’ but also stated that it ‘expect[ed] the reform measures [under consideration by the Committee of the Regions] to allow open reporting of irregularity and fraud without risk of individual or institutional harassment as [had] occurred in the past’.

| 7 | In the light of the OLAF report and the Cocobu report, the Parliament, acting under the powers assigned to it by Articles 275 and 276 EC to give discharge in respect of the implementation of the Union general budget, on 29 January 2004 adopted a resolution ‘containing observations accompanying the decision concerning discharge in respect of the implementation of the general budget of the European Union for the 2001 financial year — Section VII — Committee of the Regions’. In particular, in paragraphs 14, 22 and 24 of that resolution, the Parliament ‘[condemned], without prejudice to the outcome of the proceedings initiated by the internal auditor under Article 24 of the Staff Regulations, the official obstruction to which [he] and his staff [had] been subjected’, and ‘the individual or institutional harassment’ to which the applicant had been subjected and ‘[demanded] that the internal auditor receive a formal apology from the Committee of the Regions’. |
| --- | --- |

7

In the light of the OLAF report and the Cocobu report, the Parliament, acting under the powers assigned to it by Articles 275 and 276 EC to give discharge in respect of the implementation of the Union general budget, on 29 January 2004 adopted a resolution ‘containing observations accompanying the decision concerning discharge in respect of the implementation of the general budget of the European Union for the 2001 financial year — Section VII — Committee of the Regions’. In particular, in paragraphs 14, 22 and 24 of that resolution, the Parliament ‘[condemned], without prejudice to the outcome of the proceedings initiated by the internal auditor under Article 24 of the Staff Regulations, the official obstruction to which [he] and his staff [had] been subjected’, and ‘the individual or institutional harassment’ to which the applicant had been subjected and ‘[demanded] that the internal auditor receive a formal apology from the Committee of the Regions’.

| 8 | The applicant, who suffered from anxiety and depression and showed symptoms of post-traumatic stress disorder, was placed on sick leave from 28 April 2004. That sick leave was extended until 31 December 2006, and then from 22 February 2007 to 30 June 2007, the date on which the applicant was automatically retired on invalidity grounds. |
| --- | --- |

8

The applicant, who suffered from anxiety and depression and showed symptoms of post-traumatic stress disorder, was placed on sick leave from 28 April 2004. That sick leave was extended until 31 December 2006, and then from 22 February 2007 to 30 June 2007, the date on which the applicant was automatically retired on invalidity grounds.

| 9 | Having found that the applicant had accumulated sick leave totalling more than 12 months over the preceding 3 years, the Secretary-General of the Committee of the Regions decided on 22 February 2006 to initiate, under Article 59(4) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), the procedure to establish the applicant’s invalidity and requested the applicant to appoint a doctor in order to constitute the first invalidity committee. |
| --- | --- |

9

Having found that the applicant had accumulated sick leave totalling more than 12 months over the preceding 3 years, the Secretary-General of the Committee of the Regions decided on 22 February 2006 to initiate, under Article 59(4) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), the procedure to establish the applicant’s invalidity and requested the applicant to appoint a doctor in order to constitute the first invalidity committee.

First invalidity committee and the Commission Office for Administration and Payment of Individual Entitlements (PMO)

First invalidity committee and the Commission Office for Administration and Payment of Individual Entitlements (PMO)

| 10 | The invalidity committee was initially composed of Dr T., appointed by the Committee of the Regions, Dr G., appointed ex officio by the President of the Court of Justice of the European Union to represent the applicant, and Dr O., appointed by agreement between Dr T. and Dr G. |
| --- | --- |

10

The invalidity committee was initially composed of Dr T., appointed by the Committee of the Regions, Dr G., appointed ex officio by the President of the Court of Justice of the European Union to represent the applicant, and Dr O., appointed by agreement between Dr T. and Dr G.

ex officio

| 11 | The applicant returned to work on 1 January 2007. He worked until 21 February 2007, that is to say, for approximately six weeks, and then was again placed on sick leave. |
| --- | --- |

11

The applicant returned to work on 1 January 2007. He worked until 21 February 2007, that is to say, for approximately six weeks, and then was again placed on sick leave.

| 12 | On 27 February 2007, the applicant made a request to the Secretary-General of the Committee of the Regions under Article 73 of the Staff Regulations and Article 16 of the Insurance Rules, seeking recognition that he was suffering from an occupational disease. The applicant moreover informed the Secretary-General of the Committee of the Regions that, since an invalidity committee had already been appointed to make a finding on his incapacity for work for the purposes of Article 78 of the Staff Regulations, he had asked for that committee to consider not only examining his incapacity for work but also the relationship that might exist between that incapacity and his occupation. |
| --- | --- |

12

On 27 February 2007, the applicant made a request to the Secretary-General of the Committee of the Regions under Article 73 of the Staff Regulations and Article 16 of the Insurance Rules, seeking recognition that he was suffering from an occupational disease. The applicant moreover informed the Secretary-General of the Committee of the Regions that, since an invalidity committee had already been appointed to make a finding on his incapacity for work for the purposes of Article 78 of the Staff Regulations, he had asked for that committee to consider not only examining his incapacity for work but also the relationship that might exist between that incapacity and his occupation.

| 13 | By letter of 10 April 2007, the Secretary-General of the Committee of the Regions informed the applicant that his request under Article 73 of the Staff Regulations had been forwarded to the Commission of the European Communities in its capacity as the ad hoc appointing authority for the application of Article 73 of the Staff Regulations and that his request that the invalidity committee in question also make a finding as to whether his possible invalidity arose from an occupational disease had been duly forwarded to that committee. |
| --- | --- |

13

By letter of 10 April 2007, the Secretary-General of the Committee of the Regions informed the applicant that his request under Article 73 of the Staff Regulations had been forwarded to the Commission of the European Communities in its capacity as the ad hoc appointing authority for the application of Article 73 of the Staff Regulations and that his request that the invalidity committee in question also make a finding as to whether his possible invalidity arose from an occupational disease had been duly forwarded to that committee.

| 14 | At the end of its meeting on 23 May 2007, the first invalidity committee concluded that the applicant was in a state of total permanent invalidity preventing him from performing his duties. However, as regards the origin of the invalidity, the first invalidity committee stated that it did not have sufficient evidence to make a finding also on whether the invalidity arose from an occupational disease and that it should wait for the administration to provide it with ‘genuine evidence’ enabling it to make a finding in that regard. |
| --- | --- |

14

At the end of its meeting on 23 May 2007, the first invalidity committee concluded that the applicant was in a state of total permanent invalidity preventing him from performing his duties. However, as regards the origin of the invalidity, the first invalidity committee stated that it did not have sufficient evidence to make a finding also on whether the invalidity arose from an occupational disease and that it should wait for the administration to provide it with ‘genuine evidence’ enabling it to make a finding in that regard.

| 15 | By decision of 11 June 2007, the Bureau of the Committee of the Regions automatically retired the applicant on the grounds of invalidity, under Article 53 of the Staff Regulations, with effect from 30 June 2007. |
| --- | --- |

15

By decision of 11 June 2007, the Bureau of the Committee of the Regions automatically retired the applicant on the grounds of invalidity, under Article 53 of the Staff Regulations, with effect from 30 June 2007.

| 16 | In January 2008, in the context of the procedure commenced under Article 73 of the Staff Regulations, the PMO considered that there was no need to proceed to an administrative inquiry, ‘since the documents on the file contained sufficient administrative evidence to enable the [PMO] doctor to make his analysis’. |
| --- | --- |

16

In January 2008, in the context of the procedure commenced under Article 73 of the Staff Regulations, the PMO considered that there was no need to proceed to an administrative inquiry, ‘since the documents on the file contained sufficient administrative evidence to enable the [PMO] doctor to make his analysis’.

| 17 | By decision of 9 January 2009, the PMO recognised the occupational origin of the applicant’s disease under Article 73 of the Staff Regulations on the basis of medical reports prepared or requested by the PMO doctor, Dr J., namely a report of 8 May 2008 and the latter’s findings of 20 November 2008, and a report of 18 September 2008 by Dr R. Moreover, the PMO doctor’s report of 8 May 2008 referred to six other medical reports, prepared by Dr V. A. and by other hospital doctors, which were produced by the applicant, and a number of non-medical documents, including the Parliament’s discharge resolution referred to in paragraph 7 above. Dr R.’s report of 18 September 2008 referred, in addition, to a psychological assessment report prepared by Prof. D. M., dated 3 September 2008. |
| --- | --- |

17

By decision of 9 January 2009, the PMO recognised the occupational origin of the applicant’s disease under Article 73 of the Staff Regulations on the basis of medical reports prepared or requested by the PMO doctor, Dr J., namely a report of 8 May 2008 and the latter’s findings of 20 November 2008, and a report of 18 September 2008 by Dr R. Moreover, the PMO doctor’s report of 8 May 2008 referred to six other medical reports, prepared by Dr V. A. and by other hospital doctors, which were produced by the applicant, and a number of non-medical documents, including the Parliament’s discharge resolution referred to in paragraph 7 above. Dr R.’s report of 18 September 2008 referred, in addition, to a psychological assessment report prepared by Prof. D. M., dated 3 September 2008.

| 18 | In his report of 8 May 2008, the PMO doctor stated, in the light of the evidence on the file, that OLAF had established, first, the existence of mismanagement within the Committee of the Regions and attempts to sideline the applicant, thereby preventing him from carrying out his work as financial controller properly, and, secondly, the existence of serious interpersonal conflicts between the applicant and his superiors. In conclusion, according to the PMO doctor, subject to the psychiatric opinion requested from Dr Re., it was necessary to accept that there was, inter alia, ‘the gradual onset of a syndrome ... linked to the reprehensible professional conduct of certain officials from the Committee of the Regions’. |
| --- | --- |

18

In his report of 8 May 2008, the PMO doctor stated, in the light of the evidence on the file, that OLAF had established, first, the existence of mismanagement within the Committee of the Regions and attempts to sideline the applicant, thereby preventing him from carrying out his work as financial controller properly, and, secondly, the existence of serious interpersonal conflicts between the applicant and his superiors. In conclusion, according to the PMO doctor, subject to the psychiatric opinion requested from Dr Re., it was necessary to accept that there was, inter alia, ‘the gradual onset of a syndrome ... linked to the reprehensible professional conduct of certain officials from the Committee of the Regions’.

| 19 | In his findings of 20 November 2008, the PMO doctor concluded that the applicant ‘is no longer fit to carry out any kind of occupation within the European Communities, especially since his clinical mental state is linked to the psychological harassment he has experienced at work and the ensuing burnout’, and that the ‘psycho-emotional disorders [he displays] are related directly and definitely to [his] occupation’. |
| --- | --- |

19

In his findings of 20 November 2008, the PMO doctor concluded that the applicant ‘is no longer fit to carry out any kind of occupation within the European Communities, especially since his clinical mental state is linked to the psychological harassment he has experienced at work and the ensuing burnout’, and that the ‘psycho-emotional disorders [he displays] are related directly and definitely to [his] occupation’.

| 20 | On 2 March 2010, the PMO decided, in accordance with Article 73 of the Staff Regulations, to award the applicant an invalidity rate of 10% on grounds of a disease recognised as being of occupational origin. That decision was adopted on the basis of a number of additional medical reports requested by the PMO: a psychologist’s report prepared on 12 August 2009 by Mr D., a neuro-psychological assessment report prepared on 17 October 2009 by Dr M., a ‘psychiatric assessment report’ prepared on 3 November 2009 by Dr Re. and the findings of the PMO doctor of 11 February 2010, which also contain a finding that there were disorders arising in response to workplace conflict. Following the report prepared by Dr Re. on 3 November 2009, the PMO doctor described the applicant’s occupational disease as ‘anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment’ and assessed the resulting invalidity rate at 10%. All those findings and medical reports were sent to the first invalidity committee. |
| --- | --- |

20

On 2 March 2010, the PMO decided, in accordance with Article 73 of the Staff Regulations, to award the applicant an invalidity rate of 10% on grounds of a disease recognised as being of occupational origin. That decision was adopted on the basis of a number of additional medical reports requested by the PMO: a psychologist’s report prepared on 12 August 2009 by Mr D., a neuro-psychological assessment report prepared on 17 October 2009 by Dr M., a ‘psychiatric assessment report’ prepared on 3 November 2009 by Dr Re. and the findings of the PMO doctor of 11 February 2010, which also contain a finding that there were disorders arising in response to workplace conflict. Following the report prepared by Dr Re. on 3 November 2009, the PMO doctor described the applicant’s occupational disease as ‘anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment’ and assessed the resulting invalidity rate at 10%. All those findings and medical reports were sent to the first invalidity committee.

| 21 | Following the PMO’s decision and having had access to the medical and administrative files, the three members of the invalidity committee met on 2 July 2010. That first invalidity committee concluded, by a majority — only Dr T. and Dr O. having signed that conclusion — that the applicant’s invalidity did not arise from an occupational disease. Dr G., the doctor appointed ex officio for the applicant, signed a separate conclusion, also dated 2 July 2010, finding that the applicant’s invalidity did arise from an occupational disease. |
| --- | --- |

21

Following the PMO’s decision and having had access to the medical and administrative files, the three members of the invalidity committee met on 2 July 2010. That first invalidity committee concluded, by a majority — only Dr T. and Dr O. having signed that conclusion — that the applicant’s invalidity did not arise from an occupational disease. Dr G., the doctor appointed ex officio for the applicant, signed a separate conclusion, also dated 2 July 2010, finding that the applicant’s invalidity did arise from an occupational disease.

ex officio

| 22 | At a meeting on 10 September 2010, the Bureau of the Committee of the Regions, in its capacity as the appointing authority, ‘ratified [the conclusions of Dr T. and Dr O. referred to in paragraph 21 above] according [to which] the [applicant’s] invalidity [did] not arise from an occupational disease within the meaning of [the fifth paragraph] of Article 78 of the Staff Regulations’. |
| --- | --- |

22

At a meeting on 10 September 2010, the Bureau of the Committee of the Regions, in its capacity as the appointing authority, ‘ratified [the conclusions of Dr T. and Dr O. referred to in paragraph 21 above] according [to which] the [applicant’s] invalidity [did] not arise from an occupational disease within the meaning of [the fifth paragraph] of Article 78 of the Staff Regulations’.

| 23 | By letter of 21 January 2011, the applicant lodged a complaint against the decision of 10 September 2010. By a decision of 20 May 2011, the appointing authority rejected that complaint. |
| --- | --- |

23

By letter of 21 January 2011, the applicant lodged a complaint against the decision of 10 September 2010. By a decision of 20 May 2011, the appointing authority rejected that complaint.

| 24 | On 8 September 2011, the applicant lodged an action before the European Union Civil Service Tribunal against the decision of 10 September 2010 and the decision of 20 May 2011 rejecting his complaint. By judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), the Tribunal annulled the decision of 10 September 2010. That judgment upheld the applicant’s action on the grounds that the report of the first invalidity committee did not sufficiently state reasons and that that committee had committed a manifest error of assessment. The report failed to state reasons in so far as there was no comprehensible link between the medical findings of the first invalidity committee and the conclusions on the origin of the applicant’s invalidity (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 98). The Tribunal found a manifest error of assessment because the first invalidity committee had asserted that the acceptance of the occupational origin of the disease under Article 73 of the Staff Regulations was based, de facto, ‘solely on the patient’s own account’, whereas it was apparent from the file that the acceptance was based, in particular, on several medical reports, and whereas the facts in the case suggested otherwise (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraphs 106 to 111). |
| --- | --- |

24

On 8 September 2011, the applicant lodged an action before the European Union Civil Service Tribunal against the decision of 10 September 2010 and the decision of 20 May 2011 rejecting his complaint. By judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), the Tribunal annulled the decision of 10 September 2010. That judgment upheld the applicant’s action on the grounds that the report of the first invalidity committee did not sufficiently state reasons and that that committee had committed a manifest error of assessment. The report failed to state reasons in so far as there was no comprehensible link between the medical findings of the first invalidity committee and the conclusions on the origin of the applicant’s invalidity (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 98). The Tribunal found a manifest error of assessment because the first invalidity committee had asserted that the acceptance of the occupational origin of the disease under Article 73 of the Staff Regulations was based, de facto, ‘solely on the patient’s own account’, whereas it was apparent from the file that the acceptance was based, in particular, on several medical reports, and whereas the facts in the case suggested otherwise (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraphs 106 to 111).

| 25 | Alongside the action referred to above, on 20 December 2012 the applicant brought an action for damages before the Civil Service Tribunal (Case F‐156/12, McCoy v Committee of the Regions). As described in paragraph 36 below, in that action the applicant alleged that the Committee of the Regions had committed wrongful conduct against him during the period following the discovery of irregularities at the Committee of the Regions. |
| --- | --- |

25

Alongside the action referred to above, on 20 December 2012 the applicant brought an action for damages before the Civil Service Tribunal (Case F‐156/12, McCoy v Committee of the Regions). As described in paragraph 36 below, in that action the applicant alleged that the Committee of the Regions had committed wrongful conduct against him during the period following the discovery of irregularities at the Committee of the Regions.

McCoy

Committee of the Regions

Second invalidity committee

Second invalidity committee

| 26 | Pursuant to the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), the Committee of the Regions, by a letter of 7 July 2013, decided to set up a second invalidity committee composed of three doctors. |
| --- | --- |

26

Pursuant to the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), the Committee of the Regions, by a letter of 7 July 2013, decided to set up a second invalidity committee composed of three doctors.

| 27 | To represent him, the applicant appointed the same doctor who had represented him previously on the first invalidity committee, that is to say, Dr G., and the Committee of the Regions appointed Dr M. to represent it. |
| --- | --- |

27

To represent him, the applicant appointed the same doctor who had represented him previously on the first invalidity committee, that is to say, Dr G., and the Committee of the Regions appointed Dr M. to represent it.

| 28 | By letter of 30 October 2013, the Committee of the Regions informed the applicant that Dr M. and Dr G. had agreed on the choice of the third doctor, namely, Dr L., in order to constitute the second invalidity committee. The Committee of the Regions inferred that information from an exchange of emails between those two doctors, in which Dr G. expressed his preference for Dr L. |
| --- | --- |

28

By letter of 30 October 2013, the Committee of the Regions informed the applicant that Dr M. and Dr G. had agreed on the choice of the third doctor, namely, Dr L., in order to constitute the second invalidity committee. The Committee of the Regions inferred that information from an exchange of emails between those two doctors, in which Dr G. expressed his preference for Dr L.

| 29 | On 8 November 2013, the applicant informed the Committee of the Regions that he disagreed with that conclusion. Notwithstanding Dr G.’s email, he stated that Dr G. had not given his agreement to the name of the third doctor. He also requested the Committee of the Regions not to propose any name with a view to appointing the third doctor on the second invalidity committee and asked it to put the matter before the President of the Court of Justice of the European Union for that purpose. |
| --- | --- |

29

On 8 November 2013, the applicant informed the Committee of the Regions that he disagreed with that conclusion. Notwithstanding Dr G.’s email, he stated that Dr G. had not given his agreement to the name of the third doctor. He also requested the Committee of the Regions not to propose any name with a view to appointing the third doctor on the second invalidity committee and asked it to put the matter before the President of the Court of Justice of the European Union for that purpose.

| 30 | On 26 November 2013, the Committee of the Regions sent the applicant a letter informing him that it did not object to putting the matter before the President of the Court of Justice of the European Union. It nevertheless noted that such an approach would give rise to additional procedures that would, ultimately, delay the outcome of the procedure. |
| --- | --- |

30

On 26 November 2013, the Committee of the Regions sent the applicant a letter informing him that it did not object to putting the matter before the President of the Court of Justice of the European Union. It nevertheless noted that such an approach would give rise to additional procedures that would, ultimately, delay the outcome of the procedure.

| 31 | As a result of those exchanges, the President of the Court of Justice of the European Union, hearing the matter put before it by the Committee of the Regions, appointed a third doctor to be on the second invalidity committee. The Committee of the Regions was informed of the appointment at the end of February 2014. |
| --- | --- |

31

As a result of those exchanges, the President of the Court of Justice of the European Union, hearing the matter put before it by the Committee of the Regions, appointed a third doctor to be on the second invalidity committee. The Committee of the Regions was informed of the appointment at the end of February 2014.

| 32 | The doctor appointed by the President of the Court of Justice of the European Union was Dr H. The second invalidity committee therefore comprised Dr G., the doctor appointed by the applicant, Dr M., the doctor appointed by the Committee of the Regions, and Dr H., the doctor appointed by the President of the Court of Justice of the European Union. |
| --- | --- |

32

The doctor appointed by the President of the Court of Justice of the European Union was Dr H. The second invalidity committee therefore comprised Dr G., the doctor appointed by the applicant, Dr M., the doctor appointed by the Committee of the Regions, and Dr H., the doctor appointed by the President of the Court of Justice of the European Union.

| 33 | The second invalidity committee met for the first time on 15 April 2014. On conclusion of that meeting, the doctors agreed to arrange a second meeting, in order to meet the applicant. At the second meeting, which was held on 7 May 2014, questions were put to the applicant, and then Dr M. and Dr H. concluded, by a majority, that the applicant’s invalidity was not of occupational origin within the meaning of the fifth paragraph of Article 78 of the Staff Regulations (‘the 7 May 2014 conclusions’), whilst Dr G. concluded that the invalidity in question was of occupational origin. |
| --- | --- |

33

The second invalidity committee met for the first time on 15 April 2014. On conclusion of that meeting, the doctors agreed to arrange a second meeting, in order to meet the applicant. At the second meeting, which was held on 7 May 2014, questions were put to the applicant, and then Dr M. and Dr H. concluded, by a majority, that the applicant’s invalidity was not of occupational origin within the meaning of the fifth paragraph of Article 78 of the Staff Regulations (‘the 7 May 2014 conclusions’), whilst Dr G. concluded that the invalidity in question was of occupational origin.

| 34 | On 10 November 2014, the Committee of the Regions medical service sent Dr G. an email containing the minutes of both meetings of the second invalidity committee and a list of the documents available in the applicant’s medical file and its list of documents. Those minutes were signed only by Drs M. and H. |
| --- | --- |

34

On 10 November 2014, the Committee of the Regions medical service sent Dr G. an email containing the minutes of both meetings of the second invalidity committee and a list of the documents available in the applicant’s medical file and its list of documents. Those minutes were signed only by Drs M. and H.

| 35 | The same day, Drs M. and H. signed a summary medical report expanding on the grounds of the 7 May 2014 conclusions. That report was communicated to Dr G. on 23 March 2015. On the same date, Dr M. also provided a statement to the appointing authority, in which she stated as follows:
  ‘I can hereby say that care has been taken to ensure that the proceedings of the invalidity committee are conducted in due and proper form and that its conclusions duly state reasons.’ |
| --- | --- |

35

The same day, Drs M. and H. signed a summary medical report expanding on the grounds of the 7 May 2014 conclusions. That report was communicated to Dr G. on 23 March 2015. On the same date, Dr M. also provided a statement to the appointing authority, in which she stated as follows:

‘I can hereby say that care has been taken to ensure that the proceedings of the invalidity committee are conducted in due and proper form and that its conclusions duly state reasons.’

| 36 | On 18 November 2014, the Civil Service Tribunal delivered its judgment in the case between the applicant and the Committee of the Regions (judgment of 18 November 2014, McCoy v Committee of the Regions, F‐156/12, EU:F:2014:247), in which it held that the Committee of the Regions had breached its duty to have regard for the interests of officials in respect of the applicant. According to that judgment, the Committee of the Regions had failed to show that, during the period relevant in that case and pursuant to its duty to have regard for the interests of officials, it had taken account of the difficult times the applicant had just experienced professionally and psychologically or of the impact those circumstances could potentially have on his health and personal situation. It is apparent from paragraph 128 of that judgment that ‘it appears, in the light of the PMO’s decision of 2 March 2010 and the findings of the PMO doctor of 11 February 2010 that, on the one hand, it is beyond doubt that there is a causal link between the conduct of the Committee of the Regions and the harm suffered and that, on the other, the damages granted under Article 73 of the Staff Regulations do not cover non-material loss, consisting of the destabilisation, lack of consideration, apprehension and frustration the applicant suffered as a result of the failure by the Committee of the Regions to have regard for his interests’. The Committee of the Regions was ordered to pay the applicant EUR 20000 under that head. |
| --- | --- |

36

On 18 November 2014, the Civil Service Tribunal delivered its judgment in the case between the applicant and the Committee of the Regions (judgment of 18 November 2014, McCoy v Committee of the Regions, F‐156/12, EU:F:2014:247), in which it held that the Committee of the Regions had breached its duty to have regard for the interests of officials in respect of the applicant. According to that judgment, the Committee of the Regions had failed to show that, during the period relevant in that case and pursuant to its duty to have regard for the interests of officials, it had taken account of the difficult times the applicant had just experienced professionally and psychologically or of the impact those circumstances could potentially have on his health and personal situation. It is apparent from paragraph 128 of that judgment that ‘it appears, in the light of the PMO’s decision of 2 March 2010 and the findings of the PMO doctor of 11 February 2010 that, on the one hand, it is beyond doubt that there is a causal link between the conduct of the Committee of the Regions and the harm suffered and that, on the other, the damages granted under Article 73 of the Staff Regulations do not cover non-material loss, consisting of the destabilisation, lack of consideration, apprehension and frustration the applicant suffered as a result of the failure by the Committee of the Regions to have regard for his interests’. The Committee of the Regions was ordered to pay the applicant EUR 20000 under that head.

| 37 | On 19 November 2014, Dr G. sent observations on the minutes of the meetings of the second invalidity committee and drew the attention of Drs M. and H. to the judgment of 18 November 2014, McCoy v Committee of the Regions (F‐156/12, EU:F:2014:247). He also asked for a further meeting of the second invalidity committee to be called. Drs M. and H. apparently stated that no further meeting of the second invalidity committee was necessary. |
| --- | --- |

37

On 19 November 2014, Dr G. sent observations on the minutes of the meetings of the second invalidity committee and drew the attention of Drs M. and H. to the judgment of 18 November 2014, McCoy v Committee of the Regions (F‐156/12, EU:F:2014:247). He also asked for a further meeting of the second invalidity committee to be called. Drs M. and H. apparently stated that no further meeting of the second invalidity committee was necessary.

| 38 | By two communications of 23 and 30 November 2014 (the second of which, according to the applicant, was actually sent on 2 December 2014), Dr G. gave his comments on the 7 May 2014 minutes, containing the conclusions adopted by a majority (by Drs M. and H.). In those comments Dr G. expressed his disagreement. He found that there was a causal link between the applicant’s professional situation and his invalidity. He asserted that the second invalidity committee had not complied with its terms of reference. He accordingly invited the committee to resume its proceedings. |
| --- | --- |

38

By two communications of 23 and 30 November 2014 (the second of which, according to the applicant, was actually sent on 2 December 2014), Dr G. gave his comments on the 7 May 2014 minutes, containing the conclusions adopted by a majority (by Drs M. and H.). In those comments Dr G. expressed his disagreement. He found that there was a causal link between the applicant’s professional situation and his invalidity. He asserted that the second invalidity committee had not complied with its terms of reference. He accordingly invited the committee to resume its proceedings.

| 39 | On 26 November 2014, the applicant sent the Secretary-General of the Committee of the Regions a letter informing him of the conclusions of the second invalidity committee and asking him to invite that committee to ‘resume its work and to do so in the proper way’. |
| --- | --- |

39

On 26 November 2014, the applicant sent the Secretary-General of the Committee of the Regions a letter informing him of the conclusions of the second invalidity committee and asking him to invite that committee to ‘resume its work and to do so in the proper way’.

| 40 | By a decision of 2 December 2014, the Bureau of the Committee of the Regions ratified the 7 May 2014 conclusions (‘the contested decision’). That decision was served by a letter of 22 December 2014, posted on 5 January 2015 and received on 7 January 2015. |
| --- | --- |

40

By a decision of 2 December 2014, the Bureau of the Committee of the Regions ratified the 7 May 2014 conclusions (‘the contested decision’). That decision was served by a letter of 22 December 2014, posted on 5 January 2015 and received on 7 January 2015.

| 41 | On 3 April 2015, the applicant lodged a complaint under Article 90(2) of the Staff Regulations. That complaint was rejected by a decision of 24 July 2015, served on the applicant on 27 July 2015 (‘the decision rejecting the complaint’). |
| --- | --- |

41

On 3 April 2015, the applicant lodged a complaint under Article 90(2) of the Staff Regulations. That complaint was rejected by a decision of 24 July 2015, served on the applicant on 27 July 2015 (‘the decision rejecting the complaint’).

| 42 | The decision to reject the complaint was based on a memorandum in which Dr M. answered questions sent to her by the Committee of the Regions legal service so that it could respond to the complaint (‘the 8 May 2015 memorandum’). |
| --- | --- |

42

The decision to reject the complaint was based on a memorandum in which Dr M. answered questions sent to her by the Committee of the Regions legal service so that it could respond to the complaint (‘the 8 May 2015 memorandum’).

Procedure and forms of order sought by the parties

Procedure and forms of order sought by the parties

| 43 | By application lodged at the Registry of the Civil Service Tribunal on 3 November 2015, the applicant brought the action in Case F‐139/15. |
| --- | --- |

43

By application lodged at the Registry of the Civil Service Tribunal on 3 November 2015, the applicant brought the action in Case F‐139/15.

| 44 | On 25 January 2016, the Committee of the Regions lodged its defence at the Registry of the Civil Service Tribunal. |
| --- | --- |

44

On 25 January 2016, the Committee of the Regions lodged its defence at the Registry of the Civil Service Tribunal.

| 45 | On 24 February 2016, the Tribunal decided that no second exchange of pleadings was necessary and the written procedure was concluded. |
| --- | --- |

45

On 24 February 2016, the Tribunal decided that no second exchange of pleadings was necessary and the written procedure was concluded.

| 46 | Under Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), that case was transferred to the General Court as it found it at 31 August 2016. It was registered under number T‐567/16 and allocated to the Second Chamber. |
| --- | --- |

46

Under Article 3 of Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ 2016 L 200, p. 137), that case was transferred to the General Court as it found it at 31 August 2016. It was registered under number T‐567/16 and allocated to the Second Chamber.

| 47 | The Civil Service Tribunal having closed the written phase of the proceedings before 1 September 2016, on 8 November 2016 the General Court sent the parties a question asking them to indicate whether they wished a hearing to be held. The parties responded to the question within the time limit given, the applicant informing the General Court on 29 November 2016 that it wished a hearing to be held and the Committee of the Regions indicating in its reply of 7 December 2016 that it did not consider a hearing to be necessary. |
| --- | --- |

47

The Civil Service Tribunal having closed the written phase of the proceedings before 1 September 2016, on 8 November 2016 the General Court sent the parties a question asking them to indicate whether they wished a hearing to be held. The parties responded to the question within the time limit given, the applicant informing the General Court on 29 November 2016 that it wished a hearing to be held and the Committee of the Regions indicating in its reply of 7 December 2016 that it did not consider a hearing to be necessary.

| 48 | By a decision of 23 February 2017, this case was assigned to a new Judge-Rapporteur, sitting in the Second Chamber. |
| --- | --- |

48

By a decision of 23 February 2017, this case was assigned to a new Judge-Rapporteur, sitting in the Second Chamber.

| 49 | The parties presented oral arguments at the hearing of 13 December 2017. |
| --- | --- |

49

The parties presented oral arguments at the hearing of 13 December 2017.

| 50 | The applicant claims that the General Court should:





  – | annul the contested decision, in so far as it accepts the conclusions of the second invalidity committee and so refuses to recognise that the invalidity suffered by the applicant is occupational in origin within the meaning of the fifth paragraph of Article 78 of the Staff Regulations; |
| --- | --- | --- |

50

The applicant claims that the General Court should:

–

annul the contested decision, in so far as it accepts the conclusions of the second invalidity committee and so refuses to recognise that the invalidity suffered by the applicant is occupational in origin within the meaning of the fifth paragraph of Article 78 of the Staff Regulations;

| – | annul the decision rejecting the complaint; |
| --- | --- |

–

annul the decision rejecting the complaint;

| – | order the Committee of the Regions to pay the sum of EUR 25000 as compensation for the non-material damage; |
| --- | --- |

–

order the Committee of the Regions to pay the sum of EUR 25000 as compensation for the non-material damage;

| – | order the Committee of the Regions to pay all the costs. |
| --- | --- |

–

order the Committee of the Regions to pay all the costs.

| 51 | The Committee of the Regions claims that the General Court should:





  – | dismiss the action as unfounded; |
| --- | --- | --- |

51

The Committee of the Regions claims that the General Court should:

–

dismiss the action as unfounded;

| – | order the applicant to pay the costs. |
| --- | --- |

–

order the applicant to pay the costs.

Law

Law

| 52 | In support of the action seeking annulment of the contested decision and of the decision rejecting the complaint, the applicant advances eight pleas in law alleging infringement of Article 78 of the Staff Regulations due to (i) a failure to review the proceedings of the second invalidity committee and a breach of procedural safeguards (first plea), (ii) an infringement of the obligation to state reasons and misinterpretation of the concept of an occupational disease, (iii) a manifest error of assessment, (iv) failure by the second invalidity committee to comply with its terms of reference, (v) infringement of the duty to have regard for the interests of officials, (vi) infringement of Article 266 TFEU, (vii) infringement of the reasonable time principle and (viii) infringement of collegiality. The applicant also applies for the Committee of the Regions to be ordered to pay the sum of EUR 25000 as compensation for the non-material damage incurred as a result of the unlawful acts committed by the Committee of the Regions. |
| --- | --- |

52

In support of the action seeking annulment of the contested decision and of the decision rejecting the complaint, the applicant advances eight pleas in law alleging infringement of Article 78 of the Staff Regulations due to (i) a failure to review the proceedings of the second invalidity committee and a breach of procedural safeguards (first plea), (ii) an infringement of the obligation to state reasons and misinterpretation of the concept of an occupational disease, (iii) a manifest error of assessment, (iv) failure by the second invalidity committee to comply with its terms of reference, (v) infringement of the duty to have regard for the interests of officials, (vi) infringement of Article 266 TFEU, (vii) infringement of the reasonable time principle and (viii) infringement of collegiality. The applicant also applies for the Committee of the Regions to be ordered to pay the sum of EUR 25000 as compensation for the non-material damage incurred as a result of the unlawful acts committed by the Committee of the Regions.

| 53 | It should be noted, as a preliminary point, that according to settled case-law claims for annulment formally brought against a decision to reject a complaint have the effect, where that decision purportedly lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 55; see, also, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8). |
| --- | --- |

53

It should be noted, as a preliminary point, that according to settled case-law claims for annulment formally brought against a decision to reject a complaint have the effect, where that decision purportedly lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 55; see, also, to that effect, judgment of 17 January 1989, Vainker v Parliament, 293/87, EU:C:1989:8, paragraph 8).

| 54 | In the present case, the decision rejecting the complaint confirms the contested decision by providing details as regards its grounds. In such circumstances, it is indeed the legality of the initial act adversely affecting the official or staff member that must be examined, taking into account the grounds given for the decision rejecting the complaint, those grounds being supposed to coincide with that act (see, to that effect, judgments of 18 April 2012, Buxton v Parliament, F‐50/11, EU:F:2012:51 paragraph 21, and of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 56). |
| --- | --- |

54

In the present case, the decision rejecting the complaint confirms the contested decision by providing details as regards its grounds. In such circumstances, it is indeed the legality of the initial act adversely affecting the official or staff member that must be examined, taking into account the grounds given for the decision rejecting the complaint, those grounds being supposed to coincide with that act (see, to that effect, judgments of 18 April 2012, Buxton v Parliament, F‐50/11, EU:F:2012:51 paragraph 21, and of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 56).

| 55 | Consequently, the claims for annulment directed against the decision rejecting the complaint lack any independent content and the action must be regarded as being directed against the contested decision, the grounds for which are stated in the decision rejecting the complaint (see, to that effect, judgments of 10 June 2004, Eveillard v Commission, T‐258/01, EU:T:2004:177, paragraphs 31 and 32, and of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 57). |
| --- | --- |

55

Consequently, the claims for annulment directed against the decision rejecting the complaint lack any independent content and the action must be regarded as being directed against the contested decision, the grounds for which are stated in the decision rejecting the complaint (see, to that effect, judgments of 10 June 2004, Eveillard v Commission, T‐258/01, EU:T:2004:177, paragraphs 31 and 32, and of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 57).

| 56 | It should also be observed that the first, fifth and sixth pleas in law are based principally on an alleged failure to review the proceedings of the invalidity committee at the complaint stage, that is to say, after the contested decision was made. Even were those pleas to prove well founded, therefore, they would not be grounds for annulling the contested decision. The failures that the applicant claims, in so far as they took place after the contested decision was made, cannot affect the actual content of the invalidity committee’s opinion or of the contested decision. Such failings cannot, in principle, alter the assessment by the invalidity committee that the invalidity is of occupational origin for the purposes of Article 78 of the Staff Regulations. |
| --- | --- |

56

It should also be observed that the first, fifth and sixth pleas in law are based principally on an alleged failure to review the proceedings of the invalidity committee at the complaint stage, that is to say, after the contested decision was made. Even were those pleas to prove well founded, therefore, they would not be grounds for annulling the contested decision. The failures that the applicant claims, in so far as they took place after the contested decision was made, cannot affect the actual content of the invalidity committee’s opinion or of the contested decision. Such failings cannot, in principle, alter the assessment by the invalidity committee that the invalidity is of occupational origin for the purposes of Article 78 of the Staff Regulations.

| 57 | However, since the applicant has claimed compensation for non-material damage suffered not only as a result of unlawfulness affecting the contested decision and the circumstances in which it was made, but also as a result of irregularities resulting from the appointing authority’s failure to review proceedings during the complaint phase, the pleas referred to should be examined to the extent that they are capable of affecting the claim for damages. In the light of those considerations, the General Court believes it is appropriate to begin by examining the second, third, fourth, seventh and eighth pleas, which could give rise to annulment of the contested decision, before then examining the pleas that can only be taken into consideration in the context of the claim for damages. |
| --- | --- |

57

However, since the applicant has claimed compensation for non-material damage suffered not only as a result of unlawfulness affecting the contested decision and the circumstances in which it was made, but also as a result of irregularities resulting from the appointing authority’s failure to review proceedings during the complaint phase, the pleas referred to should be examined to the extent that they are capable of affecting the claim for damages. In the light of those considerations, the General Court believes it is appropriate to begin by examining the second, third, fourth, seventh and eighth pleas, which could give rise to annulment of the contested decision, before then examining the pleas that can only be taken into consideration in the context of the claim for damages.

Pleas relating to the legality of the contested decision

Pleas relating to the legality of the contested decision

| 58 | It should be noted that there is no obvious link between the alleged infringement of the obligation to state reasons, on the one hand, and the alleged misinterpretation of the concept of an occupational disease, on the other. Whether or not the invalidity committee misinterpreted the concept of an occupational disease by taking the applicant’s medical background and current state of health into account relates to a potential manifest error of assessment rather than to any infringement of the obligation to state reasons. The General Court therefore considers it appropriate to examine the concept of an occupational disease under the third plea, alleging a manifest error of assessment, instead of under the second plea. |
| --- | --- |

58

It should be noted that there is no obvious link between the alleged infringement of the obligation to state reasons, on the one hand, and the alleged misinterpretation of the concept of an occupational disease, on the other. Whether or not the invalidity committee misinterpreted the concept of an occupational disease by taking the applicant’s medical background and current state of health into account relates to a potential manifest error of assessment rather than to any infringement of the obligation to state reasons. The General Court therefore considers it appropriate to examine the concept of an occupational disease under the third plea, alleging a manifest error of assessment, instead of under the second plea.

The second plea in law, alleging infringement of the obligation to state reasons

The second plea in law, alleging infringement of the obligation to state reasons

| 59 | According to the applicant, the Committee of the Regions infringed its obligation to state reasons in so far as it was not possible to understand, from the contested decision and the decision rejecting the complaint, which ratified the conclusions of the second invalidity committee, either why a majority of that committee diverged from the earlier medical reports, or, above all, the factors on which it had relied in order to find, in contrast to the medical reports available to it, that the applicant’s invalidity was not of occupational origin. |
| --- | --- |

59

According to the applicant, the Committee of the Regions infringed its obligation to state reasons in so far as it was not possible to understand, from the contested decision and the decision rejecting the complaint, which ratified the conclusions of the second invalidity committee, either why a majority of that committee diverged from the earlier medical reports, or, above all, the factors on which it had relied in order to find, in contrast to the medical reports available to it, that the applicant’s invalidity was not of occupational origin.

| 60 | The applicant argues, in that respect, first, that the second invalidity committee wrongly expressed an opinion on his capacity for work whereas that circumstance was irrelevant to assessing the occupational origin of his disease. Secondly, according to the applicant, that committee incorrectly relied on his state of health in 2014, which was in fact unconnected with whether or not he was retired in 2007 for reasons relating to an occupational disease. Thirdly, the fact that the applicant was not taking antidepressants or anxiolytics in 2014 did not preclude his being in a psychologically disabling emotional state arising from mistreatment suffered in the context of his former job, as all the medical documents, according to the applicant, confirm. |
| --- | --- |

60

The applicant argues, in that respect, first, that the second invalidity committee wrongly expressed an opinion on his capacity for work whereas that circumstance was irrelevant to assessing the occupational origin of his disease. Secondly, according to the applicant, that committee incorrectly relied on his state of health in 2014, which was in fact unconnected with whether or not he was retired in 2007 for reasons relating to an occupational disease. Thirdly, the fact that the applicant was not taking antidepressants or anxiolytics in 2014 did not preclude his being in a psychologically disabling emotional state arising from mistreatment suffered in the context of his former job, as all the medical documents, according to the applicant, confirm.

| 61 | The applicant also argues, essentially, that the second invalidity committee failed to take account of the administrative and legal documents in the file, that is to say, the Cocobu and OLAF reports. Similarly, Dr M.’s answers in the memorandum of 8 May 2015 were contradictory and hard to understand. Nor did the two doctors in the majority on the second invalidity committee give the reasons why the committee ruled out the possibility that the applicant’s disease could — also — have been caused by the performance of his duties. |
| --- | --- |

61

The applicant also argues, essentially, that the second invalidity committee failed to take account of the administrative and legal documents in the file, that is to say, the Cocobu and OLAF reports. Similarly, Dr M.’s answers in the memorandum of 8 May 2015 were contradictory and hard to understand. Nor did the two doctors in the majority on the second invalidity committee give the reasons why the committee ruled out the possibility that the applicant’s disease could — also — have been caused by the performance of his duties.

| 62 | The Committee of the Regions refutes the applicant’s arguments. It submits that the conclusions of the second invalidity committee do not contradict the earlier medical findings adopted under Article 73 of the Staff Regulations. |
| --- | --- |

62

The Committee of the Regions refutes the applicant’s arguments. It submits that the conclusions of the second invalidity committee do not contradict the earlier medical findings adopted under Article 73 of the Staff Regulations.

| 63 | The Committee of the Regions contends that the 7 May 2014 conclusions, which the appointing authority ratified in the contested decision, set out various grounds that reflect the opinion of the majority of the second invalidity committee finding there to be no causal link between the applicant’s permanent incapacity for work and his post. |
| --- | --- |

63

The Committee of the Regions contends that the 7 May 2014 conclusions, which the appointing authority ratified in the contested decision, set out various grounds that reflect the opinion of the majority of the second invalidity committee finding there to be no causal link between the applicant’s permanent incapacity for work and his post.

| 64 | According to the Committee of the Regions, the decision rejecting the complaint lists the clarifications that Dr M. provided both as regards the working methods of the second invalidity committee and as regards the reasons which led it to find that there was no causal link between the applicant’s invalidity and his occupation. |
| --- | --- |

64

According to the Committee of the Regions, the decision rejecting the complaint lists the clarifications that Dr M. provided both as regards the working methods of the second invalidity committee and as regards the reasons which led it to find that there was no causal link between the applicant’s invalidity and his occupation.

| 65 | In response to the argument that the second invalidity committee failed to give sufficient reasons for its position in so far as it adopted findings contrary to those contained in the earlier medical and administrative reports, the Committee of the Regions submits that this argument must be rejected as unfounded. The summary medical report, it asserts, refers to the opinions and findings contained in the earlier medical and administrative reports. The Committee of the Regions observes that the summary medical report draws attention to the fact that a number of medical reports indicated that the applicant was fit to return to work. That report also states that the applicant underwent an ‘in-depth medical examination’, from which the second invalidity committee was able to take away observations enabling it to establish that his invalidity was not the result of an occupational disease within the meaning of the fifth paragraph of Article 78 of the Staff Regulations. |
| --- | --- |

65

In response to the argument that the second invalidity committee failed to give sufficient reasons for its position in so far as it adopted findings contrary to those contained in the earlier medical and administrative reports, the Committee of the Regions submits that this argument must be rejected as unfounded. The summary medical report, it asserts, refers to the opinions and findings contained in the earlier medical and administrative reports. The Committee of the Regions observes that the summary medical report draws attention to the fact that a number of medical reports indicated that the applicant was fit to return to work. That report also states that the applicant underwent an ‘in-depth medical examination’, from which the second invalidity committee was able to take away observations enabling it to establish that his invalidity was not the result of an occupational disease within the meaning of the fifth paragraph of Article 78 of the Staff Regulations.

| 66 | Furthermore, the Committee of the Regions contends that in the summary medical report the second invalidity committee expressly referred to a number of medical and administrative reports. It submits that the report clearly sets out the reasons why there is no causal link between the applicant’s situation at work and his state of health and the reasons why the committee does not share the opinion in the earlier medical reports. The Committee of the Regions accordingly asserts that the second invalidity committee highlighted long-standing psychological history that prevented the applicant from returning to work. |
| --- | --- |

66

Furthermore, the Committee of the Regions contends that in the summary medical report the second invalidity committee expressly referred to a number of medical and administrative reports. It submits that the report clearly sets out the reasons why there is no causal link between the applicant’s situation at work and his state of health and the reasons why the committee does not share the opinion in the earlier medical reports. The Committee of the Regions accordingly asserts that the second invalidity committee highlighted long-standing psychological history that prevented the applicant from returning to work.

| 67 | It should be noted that the provisions of the Staff Regulations relating to the invalidity committee are designed so as to confer upon medical experts the task of definitively appraising all medical questions, which no appointing authority, because of its internal administrative composition, could do. In that context, judicial review may not extend to medical appraisals properly so-called, which must be considered definitive, provided that the conditions in which they are made are not irregular. On the other hand, judicial review may extend to questions concerning the constitution and proper functioning of the invalidity committee and the regularity of the opinions which they issue. From that point of view, the General Court has jurisdiction to examine whether the opinion contains reasons enabling the reader to assess the considerations on which the conclusions which it contains were based and whether it has established a comprehensible link between the medical findings which it contains and the conclusions reached by the invalidity committee concerned (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 78 and the case-law cited). |
| --- | --- |

67

It should be noted that the provisions of the Staff Regulations relating to the invalidity committee are designed so as to confer upon medical experts the task of definitively appraising all medical questions, which no appointing authority, because of its internal administrative composition, could do. In that context, judicial review may not extend to medical appraisals properly so-called, which must be considered definitive, provided that the conditions in which they are made are not irregular. On the other hand, judicial review may extend to questions concerning the constitution and proper functioning of the invalidity committee and the regularity of the opinions which they issue. From that point of view, the General Court has jurisdiction to examine whether the opinion contains reasons enabling the reader to assess the considerations on which the conclusions which it contains were based and whether it has established a comprehensible link between the medical findings which it contains and the conclusions reached by the invalidity committee concerned (judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 78 and the case-law cited).

| 68 | On the basis of that case-law, it should be noted first of all that, in the present case, the 7 May 2014 conclusions, which the appointing authority validated in the contested decision, include the following statements:





  – | ‘There is no argument to establish that the work-related stress factors caused the incapacity for work, and the patient confirmed several times that he was very well; |
| --- | --- | --- |

68

On the basis of that case-law, it should be noted first of all that, in the present case, the 7 May 2014 conclusions, which the appointing authority validated in the contested decision, include the following statements:

–

‘There is no argument to establish that the work-related stress factors caused the incapacity for work, and the patient confirmed several times that he was very well;

| – | ... in contrast, the patient has long-standing psychological difficulties for which he has undergone various treatments that were, according to the patient, successful.’ |
| --- | --- |

–

... in contrast, the patient has long-standing psychological difficulties for which he has undergone various treatments that were, according to the patient, successful.’

| 69 | However, those statements do not explain how the second invalidity committee reached that conclusion notwithstanding the medical and administrative reports in the file that support the opposite conclusion. |
| --- | --- |

69

However, those statements do not explain how the second invalidity committee reached that conclusion notwithstanding the medical and administrative reports in the file that support the opposite conclusion.

| 70 | It should be noted in that respect that, where the administration has provided in its response to the complaint explicit reasons to justify its decision, relating to the individual case, such reasons are deemed to be identical to those for the decision to refuse and must be regarded as relevant information for assessing the lawfulness of that decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‐377/08 P, EU:T:2009:485, paragraphs 55 and 56 and the case-law cited). |
| --- | --- |

70

It should be noted in that respect that, where the administration has provided in its response to the complaint explicit reasons to justify its decision, relating to the individual case, such reasons are deemed to be identical to those for the decision to refuse and must be regarded as relevant information for assessing the lawfulness of that decision (see, to that effect, judgment of 9 December 2009, Commission v Birkhoff, T‐377/08 P, EU:T:2009:485, paragraphs 55 and 56 and the case-law cited).

| 71 | In the first place, in the decision rejecting the complaint, the appointing authority states that it asked Dr M. ‘kindly to confirm ... whether the fact that Mr McCoy was unable to perform his duties at work, as now recognised on 23 May 2007 (Article 78), effectively had no connection, even in part, with the occupational disease (“anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment”) (see judgment of 18 November 2014, McCoy v Committee of the Regions, F‐156/12, EU:F:2014:247, paragraph 64) that he was recognised on 9 January 2009 as having (Article 73) [and whether] there [was] an adequate statement of reasons for [that] conclusion in the [summary] medical report that explain[ed] in particular why the [second] invalidity committee [had] decided to diverge from the earlier reports, which were favourable to Mr McCoy’. |
| --- | --- |

71

In the first place, in the decision rejecting the complaint, the appointing authority states that it asked Dr M. ‘kindly to confirm ... whether the fact that Mr McCoy was unable to perform his duties at work, as now recognised on 23 May 2007 (Article 78), effectively had no connection, even in part, with the occupational disease (“anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment”) (see judgment of 18 November 2014, McCoy v Committee of the Regions, F‐156/12, EU:F:2014:247, paragraph 64) that he was recognised on 9 January 2009 as having (Article 73) [and whether] there [was] an adequate statement of reasons for [that] conclusion in the [summary] medical report that explain[ed] in particular why the [second] invalidity committee [had] decided to diverge from the earlier reports, which were favourable to Mr McCoy’.

| 72 | In reply to that question, Dr M. described how the second invalidity committee reached its conclusions and emphasised, essentially, the following:





  – | ‘it was clearly apparent [from Mr McCoy’s] medical file that he had a history before he started work for the Committee of the Regions’; |
| --- | --- | --- |

72

In reply to that question, Dr M. described how the second invalidity committee reached its conclusions and emphasised, essentially, the following:

–

‘it was clearly apparent [from Mr McCoy’s] medical file that he had a history before he started work for the Committee of the Regions’;

| – | ‘two documents in the file contain opinions ... testifying to the fact that Mr McCoy was capable of returning to work during the period concerned’; |
| --- | --- |

–

‘two documents in the file contain opinions ... testifying to the fact that Mr McCoy was capable of returning to work during the period concerned’;

| – | [once Dr H. had familiarised himself with the file,] ‘he then conducted an in-depth psychiatric examination of Mr McCoy, asking questions intended to determine his condition’; |
| --- | --- |

–

[once Dr H. had familiarised himself with the file,] ‘he then conducted an in-depth psychiatric examination of Mr McCoy, asking questions intended to determine his condition’;

| – | it was decided unanimously not to call upon the services of an external expert and to request medical information from the general practitioners who had treated Mr McCoy between 1996 and 2000. |
| --- | --- |

–

it was decided unanimously not to call upon the services of an external expert and to request medical information from the general practitioners who had treated Mr McCoy between 1996 and 2000.

| 73 | Secondly, the appointing authority asked Dr M. to ‘confirm that the findings of the second invalidity committee to the effect that Mr McCoy’s invalidity, for the purposes of Article 78 of the Staff Regulations, was not the result of an occupational disease do in fact take into consideration the administrative documents referred to in the judgment of 7 May 2013’. Dr M. clarified, essentially, that‘although they [were] not referred to explicitly, all the documents were available to the second invalidity committee’ and that those documents had been made available to and examined by the three members of the second invalidity committee. |
| --- | --- |

73

Secondly, the appointing authority asked Dr M. to ‘confirm that the findings of the second invalidity committee to the effect that Mr McCoy’s invalidity, for the purposes of Article 78 of the Staff Regulations, was not the result of an occupational disease do in fact take into consideration the administrative documents referred to in the judgment of 7 May 2013’. Dr M. clarified, essentially, that‘although they [were] not referred to explicitly, all the documents were available to the second invalidity committee’ and that those documents had been made available to and examined by the three members of the second invalidity committee.

| 74 | In the light of the foregoing, the appointing authority states in the decision rejecting the complaint that it ‘satisfied itself ... that the invalidity committee took good care to explain in its report the reasons why it considered, from a medical viewpoint, that it was not possible to envisage recognising that the applicant’s invalidity arose, even partially, from an occupational disease under the fifth paragraph of Article 78 of the Staff Regulations and that all the medical and non-medical documents available to it were properly taken into account for that purpose, although it was not however aware of the medical reasons and was therefore not in a position to assess whether they met the requirements laid down by the Tribunal in the judgment of 7 May 2013’. |
| --- | --- |

74

In the light of the foregoing, the appointing authority states in the decision rejecting the complaint that it ‘satisfied itself ... that the invalidity committee took good care to explain in its report the reasons why it considered, from a medical viewpoint, that it was not possible to envisage recognising that the applicant’s invalidity arose, even partially, from an occupational disease under the fifth paragraph of Article 78 of the Staff Regulations and that all the medical and non-medical documents available to it were properly taken into account for that purpose, although it was not however aware of the medical reasons and was therefore not in a position to assess whether they met the requirements laid down by the Tribunal in the judgment of 7 May 2013’.

| 75 | Nevertheless, notwithstanding Dr M.’s answers, it can be found, as apparent from the case file and established in the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), that the medical and administrative files, by virtue of their content, support the opposite conclusion, that the disease causing the applicant’s invalidity is of occupational origin. |
| --- | --- |

75

Nevertheless, notwithstanding Dr M.’s answers, it can be found, as apparent from the case file and established in the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), that the medical and administrative files, by virtue of their content, support the opposite conclusion, that the disease causing the applicant’s invalidity is of occupational origin.

| 76 | It should be recalled in that respect that it is apparent from the case-law that where an invalidity committee is dealing with complex medical issues concerning the causal link between the condition suffered by the person concerned and his occupation with an institution, it is for that committee to indicate the information on the file on which it relies and, in the event of significant divergence, to give the reasons why it differs from certain earlier and relevant medical reports, more favourable to the person concerned (see judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 85 and the case-law cited). |
| --- | --- |

76

It should be recalled in that respect that it is apparent from the case-law that where an invalidity committee is dealing with complex medical issues concerning the causal link between the condition suffered by the person concerned and his occupation with an institution, it is for that committee to indicate the information on the file on which it relies and, in the event of significant divergence, to give the reasons why it differs from certain earlier and relevant medical reports, more favourable to the person concerned (see judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 85 and the case-law cited).

| 77 | Moreover, even though an invalidity committee to which reference has been made under Article 78 of the Staff Regulations may reach conclusions that are different from those adopted by the medical committee to which reference has been made under Article 73 of the Staff Regulations, it is still necessary for it to give the reasons which led it to differ from the assessments contained in the medical reports which allowed recognition to be given of the occupational origin of the disease under Article 73 of the Staff Regulations and to provide those reasons clearly and comprehensibly (see judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 86 and the case-law cited), either in its conclusions communicated to the appointing authority, or in a summary medical report which it may subsequently prepare. |
| --- | --- |

77

Moreover, even though an invalidity committee to which reference has been made under Article 78 of the Staff Regulations may reach conclusions that are different from those adopted by the medical committee to which reference has been made under Article 73 of the Staff Regulations, it is still necessary for it to give the reasons which led it to differ from the assessments contained in the medical reports which allowed recognition to be given of the occupational origin of the disease under Article 73 of the Staff Regulations and to provide those reasons clearly and comprehensibly (see judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 86 and the case-law cited), either in its conclusions communicated to the appointing authority, or in a summary medical report which it may subsequently prepare.

| 78 | It is worth noting that at least 10 medical reports were examined in the context of the procedure initiated under Article 73 of the Staff Regulations and were available to the invalidity committee when it adopted its conclusions of 7 May 2014 (namely the hospital reports of 16 January 2006, Prof. D. M.’s report of 16 October 2006, Dr R.’s report of 26 October 2006, the report of 8 May 2008 by the PMO doctor, Dr R.’s report of 18 September 2008, the findings of the PMO doctor of 20 November 2008, Mr D.’s report of 12 August 2009, Prof. M.’s report of 17 October 2009, Dr Re.’s report of 3 November 2009 and the findings of the PMO doctor of 11 February 2010). The reports highlighted, by way of example:





  – | ‘the onset of an anxiety-depression response syndrome ... linked to the reprehensible professional conduct of certain officials from the Committee of the Regions’; |
| --- | --- | --- |

78

It is worth noting that at least 10 medical reports were examined in the context of the procedure initiated under Article 73 of the Staff Regulations and were available to the invalidity committee when it adopted its conclusions of 7 May 2014 (namely the hospital reports of 16 January 2006, Prof. D. M.’s report of 16 October 2006, Dr R.’s report of 26 October 2006, the report of 8 May 2008 by the PMO doctor, Dr R.’s report of 18 September 2008, the findings of the PMO doctor of 20 November 2008, Mr D.’s report of 12 August 2009, Prof. M.’s report of 17 October 2009, Dr Re.’s report of 3 November 2009 and the findings of the PMO doctor of 11 February 2010). The reports highlighted, by way of example:

–

‘the onset of an anxiety-depression response syndrome ... linked to the reprehensible professional conduct of certain officials from the Committee of the Regions’;

| – | ‘a state of anxiety and depression’, that ‘the anxiety-depression aspect is more important than the depressive response aspect, which is slight’ and that ‘this state is a response to the harassment experienced at work and the resulting burnout’; |
| --- | --- |

–

‘a state of anxiety and depression’, that ‘the anxiety-depression aspect is more important than the depressive response aspect, which is slight’ and that ‘this state is a response to the harassment experienced at work and the resulting burnout’;

| – | ‘a nervous exhaustion syndrome, known as ‘burnout’, associated with the psychological harassment experienced at work’; |
| --- | --- |

–

‘a nervous exhaustion syndrome, known as ‘burnout’, associated with the psychological harassment experienced at work’;

| – | ‘anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment’; |
| --- | --- |

–

‘anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment’;

| – | ‘[that,] having regard for the fact that the person concerned had faced a significant conflict of an administrative nature equivalent to psychological harassment for several years, it can be said that the response type anxiety and depressive disorders are accompanied by difficulties in concentrating and cognitive difficulties, giving rise to damage to his psychological integrity’. |
| --- | --- |

–

‘[that,] having regard for the fact that the person concerned had faced a significant conflict of an administrative nature equivalent to psychological harassment for several years, it can be said that the response type anxiety and depressive disorders are accompanied by difficulties in concentrating and cognitive difficulties, giving rise to damage to his psychological integrity’.

| 79 | However, in relation to the statements contained in the medical reports referred to in paragraph 78 above, it should be noted that, in its summary medical report, the second invalidity committee asserted, first, that ‘“the total permanent invalidity preventing him from performing the duties corresponding to a post in his grade”, as described in Article 78, was not the result of “an occupational disease”’. According to the second invalidity committee, it reached that conclusion on the basis of the medical and administrative files and the following considerations:





  – | the applicant, who had undergone an ‘in-depth medical examination’ by the second invalidity committee, did not present any symptoms of post-traumatic stress; |
| --- | --- | --- |

79

However, in relation to the statements contained in the medical reports referred to in paragraph 78 above, it should be noted that, in its summary medical report, the second invalidity committee asserted, first, that ‘“the total permanent invalidity preventing him from performing the duties corresponding to a post in his grade”, as described in Article 78, was not the result of “an occupational disease”’. According to the second invalidity committee, it reached that conclusion on the basis of the medical and administrative files and the following considerations:

–

the applicant, who had undergone an ‘in-depth medical examination’ by the second invalidity committee, did not present any symptoms of post-traumatic stress;

| – | certain reports in the medical file recommended that the applicant should gradually return to work; |
| --- | --- |

–

certain reports in the medical file recommended that the applicant should gradually return to work;

| – | it was the patient’s long-standing psychological difficulties, dating from before the 2000s and the events to which the OLAF report relates, that prevented him from returning to work, which would otherwise have been possible. |
| --- | --- |

–

it was the patient’s long-standing psychological difficulties, dating from before the 2000s and the events to which the OLAF report relates, that prevented him from returning to work, which would otherwise have been possible.

| 80 | As regards, first, the ‘in-depth medical examination’, the file submitted to the General Court does not show exactly of what that examination consisted. Dr M. refers vaguely to it in the memorandum of 8 May 2015, when she states that Dr H. prepared questions based on the applicant’s medical file for the 7 May 2014 meeting. However, it is apparent from Dr G.’s report that the second invalidity committee only saw the applicant for 15 minutes. It therefore cannot be inferred merely from use of the expression ‘in-depth medical examination’ that the examination enabled the second invalidity committee to reach the opposite conclusion to the earlier medical reports, which, moreover, were based on more extensive examinations and psychological tests. Nor does the second invalidity committee give reasons explaining how the ‘in-depth medical examination’ of the applicant in 2014 would make it possible to assess his state of health at the time his invalidity was established, seven years previously. |
| --- | --- |

80

As regards, first, the ‘in-depth medical examination’, the file submitted to the General Court does not show exactly of what that examination consisted. Dr M. refers vaguely to it in the memorandum of 8 May 2015, when she states that Dr H. prepared questions based on the applicant’s medical file for the 7 May 2014 meeting. However, it is apparent from Dr G.’s report that the second invalidity committee only saw the applicant for 15 minutes. It therefore cannot be inferred merely from use of the expression ‘in-depth medical examination’ that the examination enabled the second invalidity committee to reach the opposite conclusion to the earlier medical reports, which, moreover, were based on more extensive examinations and psychological tests. Nor does the second invalidity committee give reasons explaining how the ‘in-depth medical examination’ of the applicant in 2014 would make it possible to assess his state of health at the time his invalidity was established, seven years previously.

| 81 | As regards, secondly, the finding that the applicant was able to return to work, the second invalidity committee cites two extracts from two different reports. The first extract, according to which ‘Mr McCoy Robert is able to return to work provided he is given an appropriate post’, appears in a report of 13 November 2006 by Dr V. A. The second extract, according to which ‘it is essential that he returns to a productive job as soon as possible’ appears in a report of 16 November 2006 by Prof. L. However, those extracts appear to be irrelevant. In the first place, both the reports in which those extracts appear conclude that the applicant has an occupational disease. In the second place, the quotations are used out of context. In reality, although in November 2006 Prof. L. believed that it was ‘essential’ that Mr McCoy should return to work, this was in a specific context, that is to say, ‘for his self-confidence and the continued improvement in Mr McCoy’s condition’, and Prof. L. was not questioning that the applicant’s disease was of occupational origin. Indeed, the same report states that ‘the origin of the disease is described in Dr A.’s letter and was triggered by events relating to his role as the financial controller of the Committee of the Regions’. Furthermore, it emerges from a letter written by the same doctor on 16 January 2006 that ‘the symptoms of post-traumatic stress, anxiety and depression would probably become worse if Mr McCoy had to return in the near future to the working environment that caused his current medical condition’. Similarly, the statement by Dr V. A. quoted above, for its part, was made in a treatment context, in so far as Dr V. A. was not suggesting that the applicant should go back to his former post, but that he could go back to work provided that work was appropriate. |
| --- | --- |

81

As regards, secondly, the finding that the applicant was able to return to work, the second invalidity committee cites two extracts from two different reports. The first extract, according to which ‘Mr McCoy Robert is able to return to work provided he is given an appropriate post’, appears in a report of 13 November 2006 by Dr V. A. The second extract, according to which ‘it is essential that he returns to a productive job as soon as possible’ appears in a report of 16 November 2006 by Prof. L. However, those extracts appear to be irrelevant. In the first place, both the reports in which those extracts appear conclude that the applicant has an occupational disease. In the second place, the quotations are used out of context. In reality, although in November 2006 Prof. L. believed that it was ‘essential’ that Mr McCoy should return to work, this was in a specific context, that is to say, ‘for his self-confidence and the continued improvement in Mr McCoy’s condition’, and Prof. L. was not questioning that the applicant’s disease was of occupational origin. Indeed, the same report states that ‘the origin of the disease is described in Dr A.’s letter and was triggered by events relating to his role as the financial controller of the Committee of the Regions’. Furthermore, it emerges from a letter written by the same doctor on 16 January 2006 that ‘the symptoms of post-traumatic stress, anxiety and depression would probably become worse if Mr McCoy had to return in the near future to the working environment that caused his current medical condition’. Similarly, the statement by Dr V. A. quoted above, for its part, was made in a treatment context, in so far as Dr V. A. was not suggesting that the applicant should go back to his former post, but that he could go back to work provided that work was appropriate.

| 82 | In the third place, both the extracts in question date from November 2006, whereas Dr V. A. placed the applicant on sick leave, only six weeks after he returned to work, in February 2007. The facts therefore show that, although both those doctors thought that the applicant could return to work in November 2006, at least one of them had had a change of mind by February 2007. It should also be noted that the first invalidity committee, in its conclusions of 23 May 2007, on whether or not there was invalidity, found that the applicant was in a state of total permanent invalidity preventing him from performing his duties. |
| --- | --- |

82

In the third place, both the extracts in question date from November 2006, whereas Dr V. A. placed the applicant on sick leave, only six weeks after he returned to work, in February 2007. The facts therefore show that, although both those doctors thought that the applicant could return to work in November 2006, at least one of them had had a change of mind by February 2007. It should also be noted that the first invalidity committee, in its conclusions of 23 May 2007, on whether or not there was invalidity, found that the applicant was in a state of total permanent invalidity preventing him from performing his duties.

| 83 | As regards, thirdly, the applicant’s long-standing psychological difficulties, that statement was made but was not followed up by any analysis or conclusion and is not, in any event, sufficient to explain why the numerous medical analyses and the facts contained in the medical and administrative reports were not such as to substantiate, in whole or in part, the occupational origin of the applicant’s invalidity. The summary medical report refers to excessive consumption, over a long period, of psychotropic substances and alcohol, and to multiple extra-occupational factors, in particular severe family tensions, alongside a history of depression and personality disorders. However, those facts predate the events relating to the pressures and harassment that the applicant suffered in the course of his duties and did not prevent the doctors who wrote the reports in the medical file from reaching the conclusion that the applicant’s state of anxiety and depression and burnout originated in his professional situation. |
| --- | --- |

83

As regards, thirdly, the applicant’s long-standing psychological difficulties, that statement was made but was not followed up by any analysis or conclusion and is not, in any event, sufficient to explain why the numerous medical analyses and the facts contained in the medical and administrative reports were not such as to substantiate, in whole or in part, the occupational origin of the applicant’s invalidity. The summary medical report refers to excessive consumption, over a long period, of psychotropic substances and alcohol, and to multiple extra-occupational factors, in particular severe family tensions, alongside a history of depression and personality disorders. However, those facts predate the events relating to the pressures and harassment that the applicant suffered in the course of his duties and did not prevent the doctors who wrote the reports in the medical file from reaching the conclusion that the applicant’s state of anxiety and depression and burnout originated in his professional situation.

| 84 | Furthermore, if it were necessary to understand a finding that those difficulties existed as meaning that the applicant was already suffering from a condition before taking up the post of internal auditor, that finding alone would not be sufficient to rule out, when examining the origin of his invalidity, the occupational origin of his disease within the meaning of Article 78 of the Staff Regulations, since an occupational disease may consist in the aggravation of a pre-existing condition whose origin is to be found elsewhere. |
| --- | --- |

84

Furthermore, if it were necessary to understand a finding that those difficulties existed as meaning that the applicant was already suffering from a condition before taking up the post of internal auditor, that finding alone would not be sufficient to rule out, when examining the origin of his invalidity, the occupational origin of his disease within the meaning of Article 78 of the Staff Regulations, since an occupational disease may consist in the aggravation of a pre-existing condition whose origin is to be found elsewhere.

| 85 | The second invalidity committee does indeed quote extracts from the file, but it does not clearly and comprehensively explain why it departs from the medical reports that are more favourable to the person concerned, which are both earlier and relevant (see case-law cited in paragraphs 76 and 77 above). The second invalidity committee merely mentions in the summary medical report that in its view ‘“the anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment” mentioned in ... Dr J.’s report of 11 [February] 2010, for which “a permanent invalidity rate of 10%” was set because “for the purposes of the rules, there were still response type anxiety and depressive disorders, accompanied by emotional and cognitive difficulties” could not have been such as to contribute to the patient’s total permanent invalidity’, but does not provide any further explanation. |
| --- | --- |

85

The second invalidity committee does indeed quote extracts from the file, but it does not clearly and comprehensively explain why it departs from the medical reports that are more favourable to the person concerned, which are both earlier and relevant (see case-law cited in paragraphs 76 and 77 above). The second invalidity committee merely mentions in the summary medical report that in its view ‘“the anxiety and depressive disorders arising in the context of significant conflict of an administrative nature equivalent to psychological harassment” mentioned in ... Dr J.’s report of 11 [February] 2010, for which “a permanent invalidity rate of 10%” was set because “for the purposes of the rules, there were still response type anxiety and depressive disorders, accompanied by emotional and cognitive difficulties” could not have been such as to contribute to the patient’s total permanent invalidity’, but does not provide any further explanation.

| 86 | Similarly, the second invalidity committee states that it ‘is aware that Dr J.’s aforementioned report states that “Mr McCoy is no longer fit to carry out any kind of occupation [but that], in contrast, it must be said that the person concerned remains perfectly capable, notwithstanding his age, of still carrying on occupations in the context of his private life”’. However, that committee stated only that it ‘disagree[d] with that finding on the basis of the in-depth medical examination it had carried out’ but did not expand on how that in-depth examination had enabled it to reach the opposite conclusion. |
| --- | --- |

86

Similarly, the second invalidity committee states that it ‘is aware that Dr J.’s aforementioned report states that “Mr McCoy is no longer fit to carry out any kind of occupation [but that], in contrast, it must be said that the person concerned remains perfectly capable, notwithstanding his age, of still carrying on occupations in the context of his private life”’. However, that committee stated only that it ‘disagree[d] with that finding on the basis of the in-depth medical examination it had carried out’ but did not expand on how that in-depth examination had enabled it to reach the opposite conclusion.

| 87 | Admittedly, although the invalidity committee has to meet a higher standard of reasoning in order to depart from the earlier medical reports, it cannot be required to provide detailed specific reasons for each report. It does however have a duty to set out clearly and comprehensively the reasons why it differs from those opinions. However, in the present case, the second invalidity committee tried only in vague imprecise terms to explain why it differed from the earlier medical reports. It must be highlighted in that respect that it cannot be sufficient merely to state, as Dr M. did in the 8 May 2015 memorandum, that ‘although they [were] not referred to explicitly, all the documents were available to the invalidity committee’. That cannot amount to explaining clearly and comprehensibly why the second invalidity committee diverged from the medical and administrative reports favourable to the applicant. The second invalidity committee also confined itself to commenting on only two sentences in the medical file even though the file contains at least 10 medical reports. |
| --- | --- |

87

Admittedly, although the invalidity committee has to meet a higher standard of reasoning in order to depart from the earlier medical reports, it cannot be required to provide detailed specific reasons for each report. It does however have a duty to set out clearly and comprehensively the reasons why it differs from those opinions. However, in the present case, the second invalidity committee tried only in vague imprecise terms to explain why it differed from the earlier medical reports. It must be highlighted in that respect that it cannot be sufficient merely to state, as Dr M. did in the 8 May 2015 memorandum, that ‘although they [were] not referred to explicitly, all the documents were available to the invalidity committee’. That cannot amount to explaining clearly and comprehensibly why the second invalidity committee diverged from the medical and administrative reports favourable to the applicant. The second invalidity committee also confined itself to commenting on only two sentences in the medical file even though the file contains at least 10 medical reports.

| 88 | In short, it follows from the foregoing that, first, the second invalidity committee did not provide to the necessary legal standard explanations as to the reasons which led it to differ from the earlier medical reports that provide clear evidence of the occupational origin of the applicant’s disease and, secondly, nor did it sufficiently explain the reasons why the applicant’s invalidity could not have arisen from an occupational disease. In that regard, the second invalidity committee failed, in particular, to give any sufficient explanation as to why it had not examined the potential impact of the facts apparent from the administrative file on the applicant’s state of health, even though the file nevertheless clearly refers to serious workplace conflict and ‘harassment’ of the applicant. This failure to state adequate reasons affects both the findings conveyed to the appointing authority and the contested decision, and this plea must therefore be upheld as well founded. |
| --- | --- |

88

In short, it follows from the foregoing that, first, the second invalidity committee did not provide to the necessary legal standard explanations as to the reasons which led it to differ from the earlier medical reports that provide clear evidence of the occupational origin of the applicant’s disease and, secondly, nor did it sufficiently explain the reasons why the applicant’s invalidity could not have arisen from an occupational disease. In that regard, the second invalidity committee failed, in particular, to give any sufficient explanation as to why it had not examined the potential impact of the facts apparent from the administrative file on the applicant’s state of health, even though the file nevertheless clearly refers to serious workplace conflict and ‘harassment’ of the applicant. This failure to state adequate reasons affects both the findings conveyed to the appointing authority and the contested decision, and this plea must therefore be upheld as well founded.

| 89 | It should be recalled, as indicated in paragraph 58 above, that the General Court considers it appropriate to examine the arguments alleging misinterpretation of the concept of an occupational disease under the third plea, which itself alleges a manifest error of assessment. |
| --- | --- |

89

It should be recalled, as indicated in paragraph 58 above, that the General Court considers it appropriate to examine the arguments alleging misinterpretation of the concept of an occupational disease under the third plea, which itself alleges a manifest error of assessment.

The third plea in law, alleging a manifest error of assessment and misinterpretation of the concept of an occupational disease

The third plea in law, alleging a manifest error of assessment and misinterpretation of the concept of an occupational disease

| 90 | The applicant contends that the second invalidity committee was concerned only with his current state of health and did not investigate the origin of his disease. That is apparent in particular, he asserts, from the questions that Drs M. and H. asked at the meeting of 7 May 2014. The conclusion that there are no arguments establishing a causal link between his incapacity for work and the occupational stress factor is therefore based on a manifest error of assessment. In support of his arguments, the applicant quotes passages from various medical reports that found that his incapacity for work originated in the pressure he suffered at work. |
| --- | --- |

90

The applicant contends that the second invalidity committee was concerned only with his current state of health and did not investigate the origin of his disease. That is apparent in particular, he asserts, from the questions that Drs M. and H. asked at the meeting of 7 May 2014. The conclusion that there are no arguments establishing a causal link between his incapacity for work and the occupational stress factor is therefore based on a manifest error of assessment. In support of his arguments, the applicant quotes passages from various medical reports that found that his incapacity for work originated in the pressure he suffered at work.

| 91 | The applicant is also of the view that, if the second invalidity committee believes that his invalidity was due to excessive alcohol consumption, it was incumbent upon that committee to provide medical evidence to that effect. The applicant notes that the file contains nothing on that point. In particular, the file contains no information capable of demonstrating any consumption of alcohol whatsoever — let alone excessive consumption. According to the applicant, the second invalidity committee merely needed to request the results of blood tests he had undergone before 2000 which would, moreover, have proven that he did not drink alcohol. |
| --- | --- |

91

The applicant is also of the view that, if the second invalidity committee believes that his invalidity was due to excessive alcohol consumption, it was incumbent upon that committee to provide medical evidence to that effect. The applicant notes that the file contains nothing on that point. In particular, the file contains no information capable of demonstrating any consumption of alcohol whatsoever — let alone excessive consumption. According to the applicant, the second invalidity committee merely needed to request the results of blood tests he had undergone before 2000 which would, moreover, have proven that he did not drink alcohol.

| 92 | Accordingly, in so far as the second invalidity committee, by a majority, attributes the invalidity to extra-occupational factors, whether or not the existence of those extra-occupational factors can be classified as a cause, and moreover the sole cause, of the invalidity is not in the applicant’s view a medical assessment, in contrast to the appointing authority’s assertions in the decision rejecting the complaint. |
| --- | --- |

92

Accordingly, in so far as the second invalidity committee, by a majority, attributes the invalidity to extra-occupational factors, whether or not the existence of those extra-occupational factors can be classified as a cause, and moreover the sole cause, of the invalidity is not in the applicant’s view a medical assessment, in contrast to the appointing authority’s assertions in the decision rejecting the complaint.

| 93 | The applicant also argues that, by focusing the examination solely on his current state of health and his state of health before the events to which the OLAF report relates, the second invalidity committee misinterprets the concept of an occupational disease because it has failed to express an opinion on the deterioration in his state of health originating in his professional situation. |
| --- | --- |

93

The applicant also argues that, by focusing the examination solely on his current state of health and his state of health before the events to which the OLAF report relates, the second invalidity committee misinterprets the concept of an occupational disease because it has failed to express an opinion on the deterioration in his state of health originating in his professional situation.

| 94 | The Committee of the Regions refutes the applicant’s arguments. According to the Committee of the Regions, the appointing authority did in fact review the proceedings, by verifying and assessing whether the second invalidity committee had satisfied itself that it had all the information necessary for it to carry out its task and was duly informed of the requirements arising from implementation of the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56). |
| --- | --- |

94

The Committee of the Regions refutes the applicant’s arguments. According to the Committee of the Regions, the appointing authority did in fact review the proceedings, by verifying and assessing whether the second invalidity committee had satisfied itself that it had all the information necessary for it to carry out its task and was duly informed of the requirements arising from implementation of the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56).

| 95 | The applicant, it argues, also wrongly contends that the second invalidity committee based itself solely on his current state of health. The finding that the origin of his invalidity was extra-occupational was in fact only made after it had examined the applicant’s medical and administrative files and with reference to his medical and psychological history and to his current medical situation and his explanations. |
| --- | --- |

95

The applicant, it argues, also wrongly contends that the second invalidity committee based itself solely on his current state of health. The finding that the origin of his invalidity was extra-occupational was in fact only made after it had examined the applicant’s medical and administrative files and with reference to his medical and psychological history and to his current medical situation and his explanations.

| 96 | Lastly, the Committee of the Regions argues that consideration of the applicant’s current state of health in order to assess whether his invalidity is potentially of occupational origin is a medical appraisal properly so-called and is therefore not open to review by the General Court. The same applies to the extra-occupational factors in the invalidity. |
| --- | --- |

96

Lastly, the Committee of the Regions argues that consideration of the applicant’s current state of health in order to assess whether his invalidity is potentially of occupational origin is a medical appraisal properly so-called and is therefore not open to review by the General Court. The same applies to the extra-occupational factors in the invalidity.

| 97 | It should be noted that, in view of the limited judicial review which the General Court is required to exercise in the case of medical appraisals properly so-called, a criticism alleging manifest error of assessment in an opinion of the invalidity committee cannot succeed (see, to that effect, judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 103 and the case-law cited). |
| --- | --- |

97

It should be noted that, in view of the limited judicial review which the General Court is required to exercise in the case of medical appraisals properly so-called, a criticism alleging manifest error of assessment in an opinion of the invalidity committee cannot succeed (see, to that effect, judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 103 and the case-law cited).

| 98 | However, as with the review it carries out in areas involving complex assessments, in particular in cases where numerous elements, such as expert reports, opinions or consultations, are available, the courts of the European Union, charged with reviewing a decision by an invalidity committee or a decision by an appointing authority based in turn on the former decision, must verify among other things, not only whether the evidence relied on is accurate in purely factual terms and whether it is reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, by analogy, judgment of 8 December 2011, Chalkor v Commission, C‐386/10 P, EU:C:2011:815, paragraph 54). |
| --- | --- |

98

However, as with the review it carries out in areas involving complex assessments, in particular in cases where numerous elements, such as expert reports, opinions or consultations, are available, the courts of the European Union, charged with reviewing a decision by an invalidity committee or a decision by an appointing authority based in turn on the former decision, must verify among other things, not only whether the evidence relied on is accurate in purely factual terms and whether it is reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see, by analogy, judgment of 8 December 2011, Chalkor v Commission, C‐386/10 P, EU:C:2011:815, paragraph 54).

| 99 | The Courts of the European Union must, in particular, carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward, and their review cannot be limited by the discretion available to the invalidity committee or the appointing authority to choose which information to take into account or to exclude as the basis of its decision. Under the circumstances, the limited judicial review of medical appraisals properly so-called cannot prevent the EU court from verifying whether the invalidity committee took account of all the factors that appear to be manifestly relevant to the task entrusted to it. |
| --- | --- |

99

The Courts of the European Union must, in particular, carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward, and their review cannot be limited by the discretion available to the invalidity committee or the appointing authority to choose which information to take into account or to exclude as the basis of its decision. Under the circumstances, the limited judicial review of medical appraisals properly so-called cannot prevent the EU court from verifying whether the invalidity committee took account of all the factors that appear to be manifestly relevant to the task entrusted to it.

| 100 | In the present case, as the Committee of the Regions notes, it is apparent from the summary medical report that the second invalidity committee examined the applicant’s medical and administrative files and referred to his extra-occupational and psychological history and to his current medical situation and his explanations in order to make the finding that the origin of his invalidity was not occupational. This confirms that, as the applicant argues, the second invalidity committee relied solely on his extra-occupational and psychological history and on his state of health in 2014. It is important to note in that regard that the second invalidity committee refers explicitly to the psychological history and to other extra-occupational factors, such as an excessive consumption of psychotropic substances and alcohol, which are apparent from the medical file, whereas the applicant’s difficult professional situation also appears in the medical and administrative files but is mentioned only very vaguely and is dismissed without explanation (see paragraphs 79 to 81 above). Indeed, if the second invalidity committee had examined a possible link between the applicant’s professional situation and his health, it would have been expanded upon, at least in the summary medical report, at equal length to his psychological history and his state of health in 2014. In actual fact, however, the report merely states, without further detail, that the second invalidity committee took the medical and administrative files into account. |
| --- | --- |

100

In the present case, as the Committee of the Regions notes, it is apparent from the summary medical report that the second invalidity committee examined the applicant’s medical and administrative files and referred to his extra-occupational and psychological history and to his current medical situation and his explanations in order to make the finding that the origin of his invalidity was not occupational. This confirms that, as the applicant argues, the second invalidity committee relied solely on his extra-occupational and psychological history and on his state of health in 2014. It is important to note in that regard that the second invalidity committee refers explicitly to the psychological history and to other extra-occupational factors, such as an excessive consumption of psychotropic substances and alcohol, which are apparent from the medical file, whereas the applicant’s difficult professional situation also appears in the medical and administrative files but is mentioned only very vaguely and is dismissed without explanation (see paragraphs 79 to 81 above). Indeed, if the second invalidity committee had examined a possible link between the applicant’s professional situation and his health, it would have been expanded upon, at least in the summary medical report, at equal length to his psychological history and his state of health in 2014. In actual fact, however, the report merely states, without further detail, that the second invalidity committee took the medical and administrative files into account.

| 101 | It should be noted, in that regard, that it is apparent from the file produced to the General Court that, even if the applicant had experienced health problems in the past, he was not suffering from those problems when he began work at the Committee of the Regions. However, during the period when he was performing his duties at the Committee of the Regions, in the course of those duties he suffered psychological harassment and pressure and experienced health problems at that time and shortly afterwards. However, the second invalidity committee seems to have omitted to examine those facts, which are nevertheless extremely significant in the present case. |
| --- | --- |

101

It should be noted, in that regard, that it is apparent from the file produced to the General Court that, even if the applicant had experienced health problems in the past, he was not suffering from those problems when he began work at the Committee of the Regions. However, during the period when he was performing his duties at the Committee of the Regions, in the course of those duties he suffered psychological harassment and pressure and experienced health problems at that time and shortly afterwards. However, the second invalidity committee seems to have omitted to examine those facts, which are nevertheless extremely significant in the present case.

| 102 | Accordingly, since the objective of the proceedings of the second invalidity committee was to establish or rule out a link between the applicant’s professional situation and his invalidity, it should be found that the committee could not suggest that it was relying solely on his psychological and extra-occupational history and on his state of health in 2014 without misinterpreting the concept of an occupational disease and thereby committing a manifest error of assessment such as to vitiate its summary medical report. That is particularly the case in so far as it has been established in the administrative file that the applicant was the victim of harassment and pressure in the course of his duties. It is relevant to note on that point that, in complex situations where the origin of an official’s disease lies in a number of causes, both occupational and extra-occupational, physical or psychological, which have each contributed to the development of that disease, it is for the medical committee to ascertain whether performance of the official’s duties in the service of the Union’s institutions has a direct link with his disease, for example, as a trigger for that disease. In such cases, it is not required, for the disease to be recognised as having an occupational origin, that it should have its sole, basic, preponderant or predominant cause in the performance of duties (judgment of 14 September 2010, AE v Commission, F‐79/09, EU:F:2010:99, paragraph 83). |
| --- | --- |

102

Accordingly, since the objective of the proceedings of the second invalidity committee was to establish or rule out a link between the applicant’s professional situation and his invalidity, it should be found that the committee could not suggest that it was relying solely on his psychological and extra-occupational history and on his state of health in 2014 without misinterpreting the concept of an occupational disease and thereby committing a manifest error of assessment such as to vitiate its summary medical report. That is particularly the case in so far as it has been established in the administrative file that the applicant was the victim of harassment and pressure in the course of his duties. It is relevant to note on that point that, in complex situations where the origin of an official’s disease lies in a number of causes, both occupational and extra-occupational, physical or psychological, which have each contributed to the development of that disease, it is for the medical committee to ascertain whether performance of the official’s duties in the service of the Union’s institutions has a direct link with his disease, for example, as a trigger for that disease. In such cases, it is not required, for the disease to be recognised as having an occupational origin, that it should have its sole, basic, preponderant or predominant cause in the performance of duties (judgment of 14 September 2010, AE v Commission, F‐79/09, EU:F:2010:99, paragraph 83).

| 103 | In the light of the foregoing, it should be found that the third plea in law, alleging a manifest error of assessment and misinterpretation of the concept of an occupational disease, must be upheld as well founded. |
| --- | --- |

103

In the light of the foregoing, it should be found that the third plea in law, alleging a manifest error of assessment and misinterpretation of the concept of an occupational disease, must be upheld as well founded.

The fourth plea in law, alleging infringement of the terms of reference of the second invalidity committee

The fourth plea in law, alleging infringement of the terms of reference of the second invalidity committee

| 104 | The applicant contends, essentially, that, when it examined his state of health in the 2014, the second invalidity committee infringed its terms of reference, which were to determine whether he was suffering from an occupational disease at the time his invalidity was established in 2007. |
| --- | --- |

104

The applicant contends, essentially, that, when it examined his state of health in the 2014, the second invalidity committee infringed its terms of reference, which were to determine whether he was suffering from an occupational disease at the time his invalidity was established in 2007.

| 105 | The Committee of the Regions submits that the second invalidity committee did comply with its terms of reference. According to the Committee of the Regions, that committee drew its medical conclusions from its proceedings, and the fact that it relied, in particular, on an ‘in-depth medical examination’ carried out on the applicant on 7 May 2014 and on his history does not amount to an infringement of its terms of reference. According to the Committee of the Regions, the applicant’s argument that the second invalidity committee ‘should have expressed an opinion retroactively to 2007’ must, on that point, be refuted, because it is tantamount to denying that the second invalidity committee was entitled to carry out any ‘in-depth medical examination’ whatsoever in 2014 and to make a medical appraisal of the whole file. |
| --- | --- |

105

The Committee of the Regions submits that the second invalidity committee did comply with its terms of reference. According to the Committee of the Regions, that committee drew its medical conclusions from its proceedings, and the fact that it relied, in particular, on an ‘in-depth medical examination’ carried out on the applicant on 7 May 2014 and on his history does not amount to an infringement of its terms of reference. According to the Committee of the Regions, the applicant’s argument that the second invalidity committee ‘should have expressed an opinion retroactively to 2007’ must, on that point, be refuted, because it is tantamount to denying that the second invalidity committee was entitled to carry out any ‘in-depth medical examination’ whatsoever in 2014 and to make a medical appraisal of the whole file.

| 106 | It should be noted that, according to its terms of reference, it was for the second invalidity committee to provide medical appraisals on the question of whether the invalidity was occupational in origin. It was therefore for that committee to ascertain whether or not, from a medical point of view, the applicant’s invalidity arose from an occupational disease whose origin was to be found in his working conditions when he was performing his duties at the Committee of the Regions (see, to that effect, judgment of 21 January 1987, Rienzi v Commission, 76/84, EU:C:1987:17, paragraphs 9 and 12). |
| --- | --- |

106

It should be noted that, according to its terms of reference, it was for the second invalidity committee to provide medical appraisals on the question of whether the invalidity was occupational in origin. It was therefore for that committee to ascertain whether or not, from a medical point of view, the applicant’s invalidity arose from an occupational disease whose origin was to be found in his working conditions when he was performing his duties at the Committee of the Regions (see, to that effect, judgment of 21 January 1987, Rienzi v Commission, 76/84, EU:C:1987:17, paragraphs 9 and 12).

| 107 | In so far as the fourth plea may be interpreted as alleging that the second invalidity committee failed to comply with its terms of reference as regards examining the origin of the applicant’s invalidity, it should be noted that, according to its terms of reference, it was for the committee to provide medical appraisals, and not appraisals of a legal nature, on the question of whether the invalidity was occupational in origin. It was therefore incumbent on that committee to ascertain whether or not, in medical terms, the applicant’s invalidity arose from an occupational disease whose origin was to be found in his working conditions (see, to that effect, judgment of 21 January 1987, Rienzi v Commission, 76/84, EU:C:1987:17, paragraphs 9 and 12). |
| --- | --- |

107

In so far as the fourth plea may be interpreted as alleging that the second invalidity committee failed to comply with its terms of reference as regards examining the origin of the applicant’s invalidity, it should be noted that, according to its terms of reference, it was for the committee to provide medical appraisals, and not appraisals of a legal nature, on the question of whether the invalidity was occupational in origin. It was therefore incumbent on that committee to ascertain whether or not, in medical terms, the applicant’s invalidity arose from an occupational disease whose origin was to be found in his working conditions (see, to that effect, judgment of 21 January 1987, Rienzi v Commission, 76/84, EU:C:1987:17, paragraphs 9 and 12).

| 108 | From that perspective, it must be held that, strictly speaking, the invalidity committee did perform the task assigned to it, since, in the 7 May 2014 conclusions, it stated that, in medical terms, the applicant’s invalidity ‘did not arise from an occupational disease’. |
| --- | --- |

108

From that perspective, it must be held that, strictly speaking, the invalidity committee did perform the task assigned to it, since, in the 7 May 2014 conclusions, it stated that, in medical terms, the applicant’s invalidity ‘did not arise from an occupational disease’.

| 109 | In the light of the foregoing, the fourth plea is unfounded and should be dismissed. |
| --- | --- |

109

In the light of the foregoing, the fourth plea is unfounded and should be dismissed.

The seventh plea in law, alleging infringement of the reasonable time principle

The seventh plea in law, alleging infringement of the reasonable time principle

| 110 | The applicant claims that, having regard for its length, the period of 19 months that elapsed between delivery of the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), and conclusion of the proceedings of the second invalidity committee, on 10 November 2014, warrants a finding that the reasonable time principle has been infringed. The applicant criticises the Committee of the Regions for setting up the second invalidity committee only from 14 February 2014. He then notes that the second invalidity committee did not meet until 15 April and 7 May 2014. The applicant also criticises Dr H. for waiting until 10 November 2014 before sending the signed minutes to his representative, Dr G. He also asserts that, whereas the contested decision was made on 2 December 2014, it was only served on him by a letter of 22 December 2014, posted on 5 January 2015. |
| --- | --- |

110

The applicant claims that, having regard for its length, the period of 19 months that elapsed between delivery of the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), and conclusion of the proceedings of the second invalidity committee, on 10 November 2014, warrants a finding that the reasonable time principle has been infringed. The applicant criticises the Committee of the Regions for setting up the second invalidity committee only from 14 February 2014. He then notes that the second invalidity committee did not meet until 15 April and 7 May 2014. The applicant also criticises Dr H. for waiting until 10 November 2014 before sending the signed minutes to his representative, Dr G. He also asserts that, whereas the contested decision was made on 2 December 2014, it was only served on him by a letter of 22 December 2014, posted on 5 January 2015.

| 111 | According to the applicant, the explanation that the appointing authority gave in the decision rejecting the complaint, that one of the documents was corrupted, does not justify the delay in sending the minutes. |
| --- | --- |

111

According to the applicant, the explanation that the appointing authority gave in the decision rejecting the complaint, that one of the documents was corrupted, does not justify the delay in sending the minutes.

| 112 | The Committee of the Regions refutes the applicant’s arguments. |
| --- | --- |

112

The Committee of the Regions refutes the applicant’s arguments.

| 113 | It should be noted that the obligation to conduct administrative procedures within a reasonable time is a general principle of EU law which is enforced by the European Union courts and set forth, as an element of the right to good administration, in Article 41(1) of the Charter of Fundamental Rights of the European Union (see judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 135 and the case-law cited). |
| --- | --- |

113

It should be noted that the obligation to conduct administrative procedures within a reasonable time is a general principle of EU law which is enforced by the European Union courts and set forth, as an element of the right to good administration, in Article 41(1) of the Charter of Fundamental Rights of the European Union (see judgment of 7 May 2013, McCoy v Committee of the Regions, F‐86/11, EU:F:2013:56, paragraph 135 and the case-law cited).

| 114 | However, infringement of the reasonable time principle, assuming it is established, does not justify annulment of the contested decision on grounds of procedural irregularity. Any excessive delay in dealing with the applicant’s request for recognition of the occupational origin of the disease under Article 78 of the Staff Regulations cannot, in principle, affect the content itself of the invalidity committee’s opinion or of the contested decision. Such a delay cannot, save in exceptional situations, alter the assessment, by the invalidity committee, of the occupational origin of the invalidity under Article 78 of the Staff Regulations (judgment of 21 October 2009, V v Commission, F‐33/08, EU:F:2009:141, paragraph 210; see also, to that effect, judgment of 11 April 2006, Angeletti v Commission, T‐394/03, EU:T:2006:111, paragraph 163). Although the length of a medical procedure is indeed liable to affect the assessment of the seriousness and the consequences of a medical condition and make it more difficult to examine its cause (judgment of 14 September 2010, AE v Commission, F‐79/09, EU:F:2010:99, paragraph 102), in the present case it has not been established or even alleged that the excessive length of the procedure affected the fundamental elements in the light of which the second invalidity committee delivered its conclusions. The passage of an excessive length of time, supposing it to be established, is not therefore liable to affect the legality of the committee’s conclusions or, therefore, that of the contested decision. |
| --- | --- |

114

However, infringement of the reasonable time principle, assuming it is established, does not justify annulment of the contested decision on grounds of procedural irregularity. Any excessive delay in dealing with the applicant’s request for recognition of the occupational origin of the disease under Article 78 of the Staff Regulations cannot, in principle, affect the content itself of the invalidity committee’s opinion or of the contested decision. Such a delay cannot, save in exceptional situations, alter the assessment, by the invalidity committee, of the occupational origin of the invalidity under Article 78 of the Staff Regulations (judgment of 21 October 2009, V v Commission, F‐33/08, EU:F:2009:141, paragraph 210; see also, to that effect, judgment of 11 April 2006, Angeletti v Commission, T‐394/03, EU:T:2006:111, paragraph 163). Although the length of a medical procedure is indeed liable to affect the assessment of the seriousness and the consequences of a medical condition and make it more difficult to examine its cause (judgment of 14 September 2010, AE v Commission, F‐79/09, EU:F:2010:99, paragraph 102), in the present case it has not been established or even alleged that the excessive length of the procedure affected the fundamental elements in the light of which the second invalidity committee delivered its conclusions. The passage of an excessive length of time, supposing it to be established, is not therefore liable to affect the legality of the committee’s conclusions or, therefore, that of the contested decision.

| 115 | What is more, it should be noted that the applicant wrongly attributes the passage of a period of 19 months and responsibility for the ensuing alleged infringement of the reasonable time principle to the Committee of the Regions. Contrary to the applicant’s assertions, it was he who requested the Committee of the Regions to ask the President of the Court of Justice of the European Union to appoint a third doctor. The Committee of the Regions was only informed in February 2014 that Dr H. had been appointed. Moreover, it is apparent from the exchange of emails between Dr M. and Dr G. that on 19 September 2013 Dr G. expressed his preference for Dr L., proposed by Dr M. It was only on 8 November 2013 that the applicant informed the Committee of the Regions that neither he himself nor Dr G. had expressed their agreement to Dr L. being appointed. It can therefore be found that the applicant himself contributed to the delay caused by a doctor being appointed by the President of the Court of Justice of the European Union. |
| --- | --- |

115

What is more, it should be noted that the applicant wrongly attributes the passage of a period of 19 months and responsibility for the ensuing alleged infringement of the reasonable time principle to the Committee of the Regions. Contrary to the applicant’s assertions, it was he who requested the Committee of the Regions to ask the President of the Court of Justice of the European Union to appoint a third doctor. The Committee of the Regions was only informed in February 2014 that Dr H. had been appointed. Moreover, it is apparent from the exchange of emails between Dr M. and Dr G. that on 19 September 2013 Dr G. expressed his preference for Dr L., proposed by Dr M. It was only on 8 November 2013 that the applicant informed the Committee of the Regions that neither he himself nor Dr G. had expressed their agreement to Dr L. being appointed. It can therefore be found that the applicant himself contributed to the delay caused by a doctor being appointed by the President of the Court of Justice of the European Union.

| 116 | Accordingly, the seventh plea in law, alleging infringement of the reasonable time principle, must be rejected as unfounded. |
| --- | --- |

116

Accordingly, the seventh plea in law, alleging infringement of the reasonable time principle, must be rejected as unfounded.

The eighth plea in law, alleging infringement of the principle of collegiality

The eighth plea in law, alleging infringement of the principle of collegiality

| 117 | The applicant contends that by questioning Dr M. alone, who had met only with Dr H., without keeping Dr G. informed, the appointing authority infringed the principle of collegiality. |
| --- | --- |

117

The applicant contends that by questioning Dr M. alone, who had met only with Dr H., without keeping Dr G. informed, the appointing authority infringed the principle of collegiality.

| 118 | The Committee of the Regions, referring to the meetings of the second invalidity committee on 15 April and 7 May 2014 and the documents exchanged subsequently, argues that each member of the second invalidity committee had an opportunity effectively to make known his or her view and that the principle in question was accordingly not infringed. The Committee of the Regions also notes that the facts in the present case are very similar to those in the judgment of 7 May 2013McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), in which it was found that the principle of collegiality had not been infringed. |
| --- | --- |

118

The Committee of the Regions, referring to the meetings of the second invalidity committee on 15 April and 7 May 2014 and the documents exchanged subsequently, argues that each member of the second invalidity committee had an opportunity effectively to make known his or her view and that the principle in question was accordingly not infringed. The Committee of the Regions also notes that the facts in the present case are very similar to those in the judgment of 7 May 2013McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), in which it was found that the principle of collegiality had not been infringed.

| 119 | It is settled case-law that the invalidity committee must conduct its proceedings in a collegial manner, and that each of its members must have an opportunity freely to express an opinion (see, to that effect, judgments of 22 November 1990, V v Parliament, T‐54/89, EU:T:1990:71, paragraph 34, and of 27 February 2003, Camacho-Fernandes v Commission, T‐20/00, EU:T:2003:47, paragraph 45 et seq.). |
| --- | --- |

119

It is settled case-law that the invalidity committee must conduct its proceedings in a collegial manner, and that each of its members must have an opportunity freely to express an opinion (see, to that effect, judgments of 22 November 1990, V v Parliament, T‐54/89, EU:T:1990:71, paragraph 34, and of 27 February 2003, Camacho-Fernandes v Commission, T‐20/00, EU:T:2003:47, paragraph 45 et seq.).

| 120 | In the present case, it should be found that the principle invoked by the applicant has not been infringed. The second invalidity committee in fact met twice, on 15 April and 7 May 2014. At those meetings, after becoming familiarised with the entire medical and administrative files concerning the applicant, each doctor was able to express an opinion, both orally and in writing. Drs M. and H. issued signed findings and Dr G. was able to issue divergent findings. Those three doctors also had an opportunity to draw up their report which was subsequently included in the medical file. The plea alleging that the second invalidity committee infringed the principle of collegiality should therefore be rejected. |
| --- | --- |

120

In the present case, it should be found that the principle invoked by the applicant has not been infringed. The second invalidity committee in fact met twice, on 15 April and 7 May 2014. At those meetings, after becoming familiarised with the entire medical and administrative files concerning the applicant, each doctor was able to express an opinion, both orally and in writing. Drs M. and H. issued signed findings and Dr G. was able to issue divergent findings. Those three doctors also had an opportunity to draw up their report which was subsequently included in the medical file. The plea alleging that the second invalidity committee infringed the principle of collegiality should therefore be rejected.

| 121 | The eighth plea in law must therefore be rejected as unfounded. |
| --- | --- |

121

The eighth plea in law must therefore be rejected as unfounded.

| 122 | It follows that the fourth, seventh and eighth pleas in law must be rejected as unfounded. However, since the second plea, alleging failure to state reasons, and the third plea, alleging a manifest error of assessment and misinterpretation of the concept of an occupational disease, have been upheld as well founded, the contested decision should be annulled on the basis of those pleas. |
| --- | --- |

122

It follows that the fourth, seventh and eighth pleas in law must be rejected as unfounded. However, since the second plea, alleging failure to state reasons, and the third plea, alleging a manifest error of assessment and misinterpretation of the concept of an occupational disease, have been upheld as well founded, the contested decision should be annulled on the basis of those pleas.

The pleas in law based on circumstances arising after the contested decision was made and the claim for damages

The pleas in law based on circumstances arising after the contested decision was made and the claim for damages

| 123 | As indicated in paragraphs 56 and 57 above, the first, fifth and sixth pleas cannot affect the legality of the contested decision. Nevertheless, the unlawfulness to which those pleas refer must be taken into consideration in relation to the claim for damages. |
| --- | --- |

123

As indicated in paragraphs 56 and 57 above, the first, fifth and sixth pleas cannot affect the legality of the contested decision. Nevertheless, the unlawfulness to which those pleas refer must be taken into consideration in relation to the claim for damages.

The first plea in law, alleging infringement of Article 78 of the Staff Regulations by a failure to review the proceedings of the second invalidity committee

The first plea in law, alleging infringement of Article 78 of the Staff Regulations by a failure to review the proceedings of the second invalidity committee

| 124 | The applicant advances essentially three claims seeking to show that the appointing authority infringed its obligation to review the proceedings of the second invalidity committee. First, he argues, the appointing authority erred when it refused to consult the applicant’s medical file even though it had been invited to do so. Secondly, it erred by confining itself to questioning Dr M. (see paragraph 42 above) about whether the work of the second invalidity committee was conducted properly in order to satisfy itself that the proceedings in question had been conducted correctly. According to the applicant, that approach amounted to releasing the appointing authority from the review incumbent on it and depriving that review of any useful effect. Thirdly, the applicant submits that the appointing authority infringed procedural safeguards because it only questioned the doctor appointed by the Committee of the Regions in order to reply to questions relating to review of the proper conduct of the proceedings of the second invalidity committee, thereby breaching in particular the principle of impartiality. |
| --- | --- |

124

The applicant advances essentially three claims seeking to show that the appointing authority infringed its obligation to review the proceedings of the second invalidity committee. First, he argues, the appointing authority erred when it refused to consult the applicant’s medical file even though it had been invited to do so. Secondly, it erred by confining itself to questioning Dr M. (see paragraph 42 above) about whether the work of the second invalidity committee was conducted properly in order to satisfy itself that the proceedings in question had been conducted correctly. According to the applicant, that approach amounted to releasing the appointing authority from the review incumbent on it and depriving that review of any useful effect. Thirdly, the applicant submits that the appointing authority infringed procedural safeguards because it only questioned the doctor appointed by the Committee of the Regions in order to reply to questions relating to review of the proper conduct of the proceedings of the second invalidity committee, thereby breaching in particular the principle of impartiality.

| 125 | The Committee of the Regions refutes the applicant’s arguments. |
| --- | --- |

125

The Committee of the Regions refutes the applicant’s arguments.

| 126 | As regards the first claim, the Committee of the Regions submits that the appointing authority’s review is limited and that the authority did indeed exercise that review, in accordance with the applicable rules. |
| --- | --- |

126

As regards the first claim, the Committee of the Regions submits that the appointing authority’s review is limited and that the authority did indeed exercise that review, in accordance with the applicable rules.

| 127 | The Committee of the Regions refers to the document ‘Invalidity committee procedural manual’ and notes that, in Title IV ‘Functioning of the invalidity committee’, it enshrines the independence and secrecy of invalidity committee proceedings. According to the Committee of the Regions, it follows that the appointing authority cannot access the information those proceedings contain and has access only to the conclusions of the second invalidity committee, which do not contain any medical information, in order to make its decision. |
| --- | --- |

127

The Committee of the Regions refers to the document ‘Invalidity committee procedural manual’ and notes that, in Title IV ‘Functioning of the invalidity committee’, it enshrines the independence and secrecy of invalidity committee proceedings. According to the Committee of the Regions, it follows that the appointing authority cannot access the information those proceedings contain and has access only to the conclusions of the second invalidity committee, which do not contain any medical information, in order to make its decision.

| 128 | The Committee of the Regions also argues that, contrary to the applicant’s assertions, the appointing authority did not have a duty to consult the medical file. It is for the applicant, where applicable, explicitly to communicate information in the medical file to the appointing authority so that it can examine his complaint, setting out the links he believed could be made between that information and the claims made in his complaint. |
| --- | --- |

128

The Committee of the Regions also argues that, contrary to the applicant’s assertions, the appointing authority did not have a duty to consult the medical file. It is for the applicant, where applicable, explicitly to communicate information in the medical file to the appointing authority so that it can examine his complaint, setting out the links he believed could be made between that information and the claims made in his complaint.

| 129 | Moreover, according to the Committee of the Regions, the applicant’s invitation to the appointing authority to consult the medical file was made after the complaint was filed. |
| --- | --- |

129

Moreover, according to the Committee of the Regions, the applicant’s invitation to the appointing authority to consult the medical file was made after the complaint was filed.

| 130 | Furthermore, the Committee of the Regions noted that medical appraisals properly so-called cannot be disputed in appeal proceedings. Since the appointing authority’s review in that respect is limited, its duty is solely to assess the facts in the correct manner and to ensure that the applicable legal provisions are strictly applied in the context of the proceedings of the invalidity committee. |
| --- | --- |

130

Furthermore, the Committee of the Regions noted that medical appraisals properly so-called cannot be disputed in appeal proceedings. Since the appointing authority’s review in that respect is limited, its duty is solely to assess the facts in the correct manner and to ensure that the applicable legal provisions are strictly applied in the context of the proceedings of the invalidity committee.

| 131 | The Committee of the Regions therefore believes that the appointing authority cannot be criticised for failing to assess the facts in the correct manner or for infringing the applicable legal provisions. |
| --- | --- |

131

The Committee of the Regions therefore believes that the appointing authority cannot be criticised for failing to assess the facts in the correct manner or for infringing the applicable legal provisions.

| 132 | In respect of the second claim, the Committee of the Regions is of the view that it complied with the rules by questioning Dr M. The Committee of the Regions in fact argues that, by opting to gather the information necessary to process the complaint using a questionnaire, the appointing authority opted for the least intrusive method in order not adversely to affect the confidentiality of the proceedings of the second invalidity committee, medical confidentiality or the protection of sensitive personal data. |
| --- | --- |

132

In respect of the second claim, the Committee of the Regions is of the view that it complied with the rules by questioning Dr M. The Committee of the Regions in fact argues that, by opting to gather the information necessary to process the complaint using a questionnaire, the appointing authority opted for the least intrusive method in order not adversely to affect the confidentiality of the proceedings of the second invalidity committee, medical confidentiality or the protection of sensitive personal data.

| 133 | In respect of the third claim, that the appointing authority erred in questioning only the doctor appointed by the institution, the Committee of the Regions contends that the questions posed by the appointing authority were sufficiently neutral and precise to obtain objective replies from that doctor. The Committee of the Regions also confines itself to observing that, in the light of the ethical rules governing Dr M.’s profession, it seems unlikely that she would have breached her duty of independence. The fact that Dr M. was asked to answer the review questions therefore does not infringe the principle of impartiality. Such a claim is, according to the Committee of the Regions, tantamount to doubting the appointing authority’s impartiality when a complaint is referred to it. |
| --- | --- |

133

In respect of the third claim, that the appointing authority erred in questioning only the doctor appointed by the institution, the Committee of the Regions contends that the questions posed by the appointing authority were sufficiently neutral and precise to obtain objective replies from that doctor. The Committee of the Regions also confines itself to observing that, in the light of the ethical rules governing Dr M.’s profession, it seems unlikely that she would have breached her duty of independence. The fact that Dr M. was asked to answer the review questions therefore does not infringe the principle of impartiality. Such a claim is, according to the Committee of the Regions, tantamount to doubting the appointing authority’s impartiality when a complaint is referred to it.

| 134 | Moreover, the Committee of the Regions argues that the three doctors comprising the second invalidity committee were appointed in accordance with the rules in force and had an opportunity to express their opinions at the meetings of 15 April and 7 May 2014, which they did in fact do. In the view of the Committee of the Regions, Dr M. was only questioned once the proceedings of the second invalidity committee had concluded and after the applicant had lodged his complaint — by means of which, assisted where applicable by his doctor, he was able to assert his claims. |
| --- | --- |

134

Moreover, the Committee of the Regions argues that the three doctors comprising the second invalidity committee were appointed in accordance with the rules in force and had an opportunity to express their opinions at the meetings of 15 April and 7 May 2014, which they did in fact do. In the view of the Committee of the Regions, Dr M. was only questioned once the proceedings of the second invalidity committee had concluded and after the applicant had lodged his complaint — by means of which, assisted where applicable by his doctor, he was able to assert his claims.

| 135 | As regards, first, the claim that the appointing authority failed to carry out a sufficient review of the proceedings of the second invalidity committee by refusing to consult the medical file, there is reason to find, as the Committee of the Regions does, that, even if the applicant had lifted the confidentiality of the proceedings of the invalidity committee, it was for him to provide the appointing authority explicitly with the information in the medical file so that it could examine his complaint, setting out the links he believed he found between that information and the claims made. |
| --- | --- |

135

As regards, first, the claim that the appointing authority failed to carry out a sufficient review of the proceedings of the second invalidity committee by refusing to consult the medical file, there is reason to find, as the Committee of the Regions does, that, even if the applicant had lifted the confidentiality of the proceedings of the invalidity committee, it was for him to provide the appointing authority explicitly with the information in the medical file so that it could examine his complaint, setting out the links he believed he found between that information and the claims made.

| 136 | It should also be found that, in the present case, the appointing authority had drawn Dr M.’s attention to the main points that had led to the first invalidity committee’s decision being annulled in the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56). In an email of 2 April 2014, the appointing authority emphasised in particular, in the light of that judgment, the importance of the invalidity committee having all the data in advance, of complying with the obligation to state (general and specific) reasons, of arranging a medical examination and carrying out supplementary examinations if necessary, of sending its findings to the administration and of supplementing the medical file with at least one summary medical report. |
| --- | --- |

136

It should also be found that, in the present case, the appointing authority had drawn Dr M.’s attention to the main points that had led to the first invalidity committee’s decision being annulled in the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56). In an email of 2 April 2014, the appointing authority emphasised in particular, in the light of that judgment, the importance of the invalidity committee having all the data in advance, of complying with the obligation to state (general and specific) reasons, of arranging a medical examination and carrying out supplementary examinations if necessary, of sending its findings to the administration and of supplementing the medical file with at least one summary medical report.

| 137 | Nevertheless, in view of those considerations and the fact that, in his complaint, the applicant advanced several arguments seeking to show that not only the findings of the invalidity committee but also the summary medical report were vitiated by unlawfulness, in particular in the light of the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), the Committee of the Regions should at least, have consulted the report. However, when the applicant invited the Committee of the Regions to consult his medical file, it replied as follows in an email of 8 June 2015: ‘we do not wish to ask you for access to the summary medical report in the proceedings arising from the complaint’. |
| --- | --- |

137

Nevertheless, in view of those considerations and the fact that, in his complaint, the applicant advanced several arguments seeking to show that not only the findings of the invalidity committee but also the summary medical report were vitiated by unlawfulness, in particular in the light of the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), the Committee of the Regions should at least, have consulted the report. However, when the applicant invited the Committee of the Regions to consult his medical file, it replied as follows in an email of 8 June 2015: ‘we do not wish to ask you for access to the summary medical report in the proceedings arising from the complaint’.

| 138 | Failure to examine that document, even though the applicant had invited the appointing authority to consult it as important documentary evidence for handling the complaint, must be held to be a failure to review the proceedings of the second invalidity committee. Admittedly, the medical file is confidential and the Committee of the Regions did not have an opportunity to consult it before it made the contested decision, but it could at least have agreed to consult the summary medical report at the time of the complaint, once the applicant had invited it to do so. That would in practice have enabled the Committee of the Regions to verify whether the invalidity committee had complied with its legal and procedural obligations without thereby ruling on the medical appraisals. |
| --- | --- |

138

Failure to examine that document, even though the applicant had invited the appointing authority to consult it as important documentary evidence for handling the complaint, must be held to be a failure to review the proceedings of the second invalidity committee. Admittedly, the medical file is confidential and the Committee of the Regions did not have an opportunity to consult it before it made the contested decision, but it could at least have agreed to consult the summary medical report at the time of the complaint, once the applicant had invited it to do so. That would in practice have enabled the Committee of the Regions to verify whether the invalidity committee had complied with its legal and procedural obligations without thereby ruling on the medical appraisals.

| 139 | As regards the second claim, it should be noted that, in the present case, the appointing authority contacted the doctor appointed by the Committee of the Regions in order to ask her a series of questions with the aim of responding to the complaint. |
| --- | --- |

139

As regards the second claim, it should be noted that, in the present case, the appointing authority contacted the doctor appointed by the Committee of the Regions in order to ask her a series of questions with the aim of responding to the complaint.

| 140 | However, by confining itself to putting those questions to the doctor appointed by the institution and relying solely on her replies contained in the memorandum of 8 May 2015, the appointing authority failed to satisfy itself that it had adequately reviewed whether the proceedings of the second invalidity committee were conducted properly. Indeed, by failing to consult the two other doctors and refusing to consult the summary medical report, the appointing authority obtained only a partial picture of the proceedings of the second invalidity committee. In the present case it was in fact especially important that the appointing authority should satisfy itself that it had a full picture of those proceedings in order to review whether they were conducted properly, in particular in the light of the fact that various sets of proceedings between the applicant and the Committee of the Regions had already lasted for a number of years. |
| --- | --- |

140

However, by confining itself to putting those questions to the doctor appointed by the institution and relying solely on her replies contained in the memorandum of 8 May 2015, the appointing authority failed to satisfy itself that it had adequately reviewed whether the proceedings of the second invalidity committee were conducted properly. Indeed, by failing to consult the two other doctors and refusing to consult the summary medical report, the appointing authority obtained only a partial picture of the proceedings of the second invalidity committee. In the present case it was in fact especially important that the appointing authority should satisfy itself that it had a full picture of those proceedings in order to review whether they were conducted properly, in particular in the light of the fact that various sets of proceedings between the applicant and the Committee of the Regions had already lasted for a number of years.

| 141 | In respect of the third claim, it is apparent from the case-law that ‘Article 41 of the Charter provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union [and that] that requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned’ (judgment of 11 July 2013, Ziegler v Commission, C‐439/11 P, EU:C:2013:513, paragraph 155). |
| --- | --- |

141

In respect of the third claim, it is apparent from the case-law that ‘Article 41 of the Charter provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union [and that] that requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned’ (judgment of 11 July 2013, Ziegler v Commission, C‐439/11 P, EU:C:2013:513, paragraph 155).

| 142 | In the light of that case-law, it should be held that, since it did not consult the other doctors on the second invalidity committee, the appointing authority could not guarantee that it had acted in such a way that its examination of whether the proceedings of that committee were conducted properly was free of any doubt as to its impartiality. It should therefore be emphasised that, in circumstances such as those in this case, the appointing authority had a duty to ensure not only that the Committee of the Regions was acting impartially, but also that the applicant and third parties perceived its actions to be impartial. It is important to note in that respect that, in his complaint, the applicant had already questioned Dr M.’s impartiality. His doubts were based on the fact that Dr M. had already expressed an opinion unfavourable to him in connection with the first meeting of the second invalidity committee at a time when no medical examination, much less the ‘in-depth’ medical examination referred to in the minutes of the second meeting of 7 May 2015, could have been carried out. |
| --- | --- |

142

In the light of that case-law, it should be held that, since it did not consult the other doctors on the second invalidity committee, the appointing authority could not guarantee that it had acted in such a way that its examination of whether the proceedings of that committee were conducted properly was free of any doubt as to its impartiality. It should therefore be emphasised that, in circumstances such as those in this case, the appointing authority had a duty to ensure not only that the Committee of the Regions was acting impartially, but also that the applicant and third parties perceived its actions to be impartial. It is important to note in that respect that, in his complaint, the applicant had already questioned Dr M.’s impartiality. His doubts were based on the fact that Dr M. had already expressed an opinion unfavourable to him in connection with the first meeting of the second invalidity committee at a time when no medical examination, much less the ‘in-depth’ medical examination referred to in the minutes of the second meeting of 7 May 2015, could have been carried out.

| 143 | The Committee of the Regions therefore did not carry out a full review of the proceedings of the second invalidity committee and did not adequately ensure compliance with the principle of impartiality. |
| --- | --- |

143

The Committee of the Regions therefore did not carry out a full review of the proceedings of the second invalidity committee and did not adequately ensure compliance with the principle of impartiality.

| 144 | Accordingly, the three claims advanced in the context of the first plea in law appear to be well founded and will be taken into consideration when examining the claim for damages. |
| --- | --- |

144

Accordingly, the three claims advanced in the context of the first plea in law appear to be well founded and will be taken into consideration when examining the claim for damages.

The fifth plea in law, alleging infringement of the duty to have regard for the welfare of officials

The fifth plea in law, alleging infringement of the duty to have regard for the welfare of officials

| 145 | The applicant contends that the Committee of the Regions was made aware of the lack of review and the infringements of procedural safeguards, as referred to under the first plea in law, and should therefore have reacted, which however it did not do. This circumstance therefore amounts to an infringement of the duty to have regard for the welfare of officials. |
| --- | --- |

145

The applicant contends that the Committee of the Regions was made aware of the lack of review and the infringements of procedural safeguards, as referred to under the first plea in law, and should therefore have reacted, which however it did not do. This circumstance therefore amounts to an infringement of the duty to have regard for the welfare of officials.

| 146 | The Committee of the Regions submits that the appointing authority should not meddle in the proceedings of the invalidity committee, which must work completely independently. It also argues that the appointing authority properly satisfied itself that the proceedings of the second invalidity committee had been conducted correctly by putting questions to Dr M. The Committee of the Regions also notes that there were several exchanges of correspondence and that meetings were arranged between the applicant and the highest levels of the Committee of the Regions. Accordingly, it argues, it did not infringe its duty to have regard for the welfare of officials. |
| --- | --- |

146

The Committee of the Regions submits that the appointing authority should not meddle in the proceedings of the invalidity committee, which must work completely independently. It also argues that the appointing authority properly satisfied itself that the proceedings of the second invalidity committee had been conducted correctly by putting questions to Dr M. The Committee of the Regions also notes that there were several exchanges of correspondence and that meetings were arranged between the applicant and the highest levels of the Committee of the Regions. Accordingly, it argues, it did not infringe its duty to have regard for the welfare of officials.

| 147 | According to the case-law, the duty to have regard for the welfare of officials and the principle of good administration incumbent on the administration imply in particular that when it takes a decision concerning the situation of an official, the appointing authority must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned (order of 7 June 1991, Weyrich v Commission, T‐14/91, EU:T:1991:28, paragraph 50). |
| --- | --- |

147

According to the case-law, the duty to have regard for the welfare of officials and the principle of good administration incumbent on the administration imply in particular that when it takes a decision concerning the situation of an official, the appointing authority must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned (order of 7 June 1991, Weyrich v Commission, T‐14/91, EU:T:1991:28, paragraph 50).

| 148 | In the light of that principle and of the foregoing, in the review carried out by the appointing authority in the present case, it was in the interests of the service and of the applicant that the appointing authority took into consideration all the factors that might affect its decision. Accordingly, in addition to the 7 May 2014 conclusions, it should have consulted the summary medical report and the opinions of the three doctors on the second invalidity committee in order to have a fuller picture of the file. To the extent that it did not do so, the appointing authority also infringed its duty to have regard for the welfare of officials. Indeed, it bears repeating that, given the significant length of all the various proceedings between the applicant and the Committee of the Regions and the fact that the applicant was able to have doubts as to the impartiality of the doctor appointed by the institution, it was incumbent on the Committee of the Regions to satisfy itself that no such doubts could persist. However, by omitting to take measures to do so, the Committee of the Regions infringed its duty to have regard for the welfare of officials. |
| --- | --- |

148

In the light of that principle and of the foregoing, in the review carried out by the appointing authority in the present case, it was in the interests of the service and of the applicant that the appointing authority took into consideration all the factors that might affect its decision. Accordingly, in addition to the 7 May 2014 conclusions, it should have consulted the summary medical report and the opinions of the three doctors on the second invalidity committee in order to have a fuller picture of the file. To the extent that it did not do so, the appointing authority also infringed its duty to have regard for the welfare of officials. Indeed, it bears repeating that, given the significant length of all the various proceedings between the applicant and the Committee of the Regions and the fact that the applicant was able to have doubts as to the impartiality of the doctor appointed by the institution, it was incumbent on the Committee of the Regions to satisfy itself that no such doubts could persist. However, by omitting to take measures to do so, the Committee of the Regions infringed its duty to have regard for the welfare of officials.

| 149 | The fifth plea in law must therefore be held to be well founded and must be taken into account when examining claim for damages. |
| --- | --- |

149

The fifth plea in law must therefore be held to be well founded and must be taken into account when examining claim for damages.

The sixth plea in law, alleging infringement of Article 266 TFEU

The sixth plea in law, alleging infringement of Article 266 TFEU

| 150 | The applicant claims that the Committee of the Regions failed to implement the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56). It contends that the appointing authority did not effectively review the proceedings of the second invalidity committee, confining itself to putting questions to the doctor appointed by the institution, as referred to above. |
| --- | --- |

150

The applicant claims that the Committee of the Regions failed to implement the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56). It contends that the appointing authority did not effectively review the proceedings of the second invalidity committee, confining itself to putting questions to the doctor appointed by the institution, as referred to above.

| 151 | The Committee of the Regions refutes the applicant’s arguments and maintains that it did indeed implement the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56). |
| --- | --- |

151

The Committee of the Regions refutes the applicant’s arguments and maintains that it did indeed implement the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56).

| 152 | It should be recalled that, where a court annuls the act of an institution, under Article 266 TFEU, that institution must take the appropriate measures involved in implementing the judgment. According to settled case-law, in order to comply with and fully implement the judgment annulling a measure, the institution that issued the annulled measure is required to have regard not only to the operative part of the judgment, but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the act annulled (see order of 29 June 2005, Pappas v Committee of the Regions, T‐254/04, EU:T:2005:260, paragraph 36 and the case-law cited). |
| --- | --- |

152

It should be recalled that, where a court annuls the act of an institution, under Article 266 TFEU, that institution must take the appropriate measures involved in implementing the judgment. According to settled case-law, in order to comply with and fully implement the judgment annulling a measure, the institution that issued the annulled measure is required to have regard not only to the operative part of the judgment, but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the act annulled (see order of 29 June 2005, Pappas v Committee of the Regions, T‐254/04, EU:T:2005:260, paragraph 36 and the case-law cited).

| 153 | It must be recalled also that, under Article 266 TFEU, the institution concerned is required to ensure that any act intended to replace the annulled act is not vitiated by the same irregularities as those identified in the annulling judgment (see, to that effect, judgment of 10 November 2010, OHIM v Simões Dos Santos, T‐260/09 P, EU:T:2010:461, paragraphs 70 to 72). |
| --- | --- |

153

It must be recalled also that, under Article 266 TFEU, the institution concerned is required to ensure that any act intended to replace the annulled act is not vitiated by the same irregularities as those identified in the annulling judgment (see, to that effect, judgment of 10 November 2010, OHIM v Simões Dos Santos, T‐260/09 P, EU:T:2010:461, paragraphs 70 to 72).

| 154 | The annulment of a measure ordered by a court takes effect ex tunc and therefore has the effect of retroactively eliminating the annulled measure from the legal system. The defendant institution is required, by virtue of Article 266 TFEU, to take the necessary measures to reverse the effects of the illegalities as found in the judgment, which, in the case of an act that has already been executed, means restoring the applicant to exactly the position he was in prior to that act (order of 29 June 2005, Pappas v Committee of the Regions, T‐254/04, EU:T:2005:260, paragraph 37, and judgment of 15 April 2010, Angelidis v Parliament, F‐104/08, EU:F:2010:23, paragraph 36). |
| --- | --- |

154

The annulment of a measure ordered by a court takes effect ex tunc and therefore has the effect of retroactively eliminating the annulled measure from the legal system. The defendant institution is required, by virtue of Article 266 TFEU, to take the necessary measures to reverse the effects of the illegalities as found in the judgment, which, in the case of an act that has already been executed, means restoring the applicant to exactly the position he was in prior to that act (order of 29 June 2005, Pappas v Committee of the Regions, T‐254/04, EU:T:2005:260, paragraph 37, and judgment of 15 April 2010, Angelidis v Parliament, F‐104/08, EU:F:2010:23, paragraph 36).

ex tunc

| 155 | Whether the Committee of the Regions correctly implemented the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), in the present case must be examined in the light of those principles. |
| --- | --- |

155

Whether the Committee of the Regions correctly implemented the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), in the present case must be examined in the light of those principles.

| 156 | It should be emphasised in that respect that, as found when examining the first plea, the applicant has been able to establish that the Committee of the Regions did not sufficiently review the proceedings of the second invalidity committee. However, that failure to review cannot, in itself, be sufficient to establish that the Committee of the Regions infringed Article 266 TFEU. It is also for the applicant to indicate, in the light of the case-law cited in paragraphs 152 to 154 above, how that failure to review contributed to an infringement of the obligation to implement the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), which he has not done. |
| --- | --- |

156

It should be emphasised in that respect that, as found when examining the first plea, the applicant has been able to establish that the Committee of the Regions did not sufficiently review the proceedings of the second invalidity committee. However, that failure to review cannot, in itself, be sufficient to establish that the Committee of the Regions infringed Article 266 TFEU. It is also for the applicant to indicate, in the light of the case-law cited in paragraphs 152 to 154 above, how that failure to review contributed to an infringement of the obligation to implement the judgment of 7 May 2013, McCoy v Committee of the Regions (F‐86/11, EU:F:2013:56), which he has not done.

| 157 | Under those circumstances, the sixth plea in law should be rejected as unfounded. It will therefore not be taken into consideration in relation to the claim for damages. |
| --- | --- |

157

Under those circumstances, the sixth plea in law should be rejected as unfounded. It will therefore not be taken into consideration in relation to the claim for damages.

The claim for damages

The claim for damages

| 158 | The applicant seeks damages in the amount of EUR 5000 in respect of the unlawful acts that contributed to the period of waiting and uncertainty he is experiencing and in the amount of EUR 20000 in respect of the infringement of Article 266 TFEU by the Committee of the Regions. |
| --- | --- |

158

The applicant seeks damages in the amount of EUR 5000 in respect of the unlawful acts that contributed to the period of waiting and uncertainty he is experiencing and in the amount of EUR 20000 in respect of the infringement of Article 266 TFEU by the Committee of the Regions.

| 159 | The applicant argues that adoption of the contested decision meant that he once again had to await definitive settlement of the procedure commenced under Article 78 of the Staff Regulations, as a result of his invalidity being established back in June 2007. In his view, that period of waiting and uncertainty extended by the unlawfulness of both the decision of 10 September 2010 and the contested decision, gave rise to the non-material damage he is claiming. |
| --- | --- |

159

The applicant argues that adoption of the contested decision meant that he once again had to await definitive settlement of the procedure commenced under Article 78 of the Staff Regulations, as a result of his invalidity being established back in June 2007. In his view, that period of waiting and uncertainty extended by the unlawfulness of both the decision of 10 September 2010 and the contested decision, gave rise to the non-material damage he is claiming.

| 160 | Moreover, the applicant draws attention to the gravity of the contested decision, the nature of the unlawful acts committed and the circumstances in which they were committed. He also notes that the pre-litigation procedure itself contributed to revealing further unlawfulness, showing that the Committee of the Regions had refused to exercise its powers and had in particular, on two occasions, sought the unilateral opinion of the doctor appointed by the institution. |
| --- | --- |

160

Moreover, the applicant draws attention to the gravity of the contested decision, the nature of the unlawful acts committed and the circumstances in which they were committed. He also notes that the pre-litigation procedure itself contributed to revealing further unlawfulness, showing that the Committee of the Regions had refused to exercise its powers and had in particular, on two occasions, sought the unilateral opinion of the doctor appointed by the institution.

| 161 | Annulment of the contested decision is not, according to the applicant, capable of constituting in itself adequate and sufficient compensation for the non-material damage resulting from the serious uncertainty and anxiety caused by the illegality of that decision. |
| --- | --- |

161

Annulment of the contested decision is not, according to the applicant, capable of constituting in itself adequate and sufficient compensation for the non-material damage resulting from the serious uncertainty and anxiety caused by the illegality of that decision.

| 162 | The Committee of the Regions refutes the applicant’s claim for damages. It argues, essentially, that the applicant has not demonstrated the damage suffered, that the contested decision is not vitiated by any unlawfulness and that Article 266 TFEU has not been infringed. |
| --- | --- |

162

The Committee of the Regions refutes the applicant’s claim for damages. It argues, essentially, that the applicant has not demonstrated the damage suffered, that the contested decision is not vitiated by any unlawfulness and that Article 266 TFEU has not been infringed.

| 163 | As regards whether the applicant’s claims for damages are well founded, the liability of the EU implies the satisfaction of a number of conditions relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between the conduct and the damage complained of (judgment of 25 October 2017, Lucaccioni v Commission, T‐551/16, not published, EU:T:2017:751, paragraph 122). |
| --- | --- |

163

As regards whether the applicant’s claims for damages are well founded, the liability of the EU implies the satisfaction of a number of conditions relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between the conduct and the damage complained of (judgment of 25 October 2017, Lucaccioni v Commission, T‐551/16, not published, EU:T:2017:751, paragraph 122).

| 164 | It has been held that actions seeking compensation for damage caused by an institution to an official or other member of staff, brought on the basis of Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, are subject to more particular and specific rules than those deriving from the general principles which govern the non-contractual liability of the European Union under Article 268 and the second paragraph of Article 340 TFEU. It follows from the Staff Regulations that, unlike any other individual, an official or other member of the European Union’s staff is connected to the institution to which he belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned. Accordingly, when it acts in its capacity as employer, the European Union has a greater degree of responsibility, which is manifested in an obligation to compensate its staff in respect of loss caused by any unlawful conduct of the European Union in its capacity as employer, and in the context of European civil service litigation it is not necessary, in order to establish non-contractual liability on the part of an institution, to demonstrate a ‘sufficiently serious breach’, or ‘manifest and serious disregard’ of the limits of its discretion (see judgment of 19 June 2013, Goetz v Committee of the Regions, F‐89/11, EU:F:2013:83, paragraph 98 and the case-law cited). |
| --- | --- |

164

It has been held that actions seeking compensation for damage caused by an institution to an official or other member of staff, brought on the basis of Article 270 TFEU and Articles 90 and 91 of the Staff Regulations, are subject to more particular and specific rules than those deriving from the general principles which govern the non-contractual liability of the European Union under Article 268 and the second paragraph of Article 340 TFEU. It follows from the Staff Regulations that, unlike any other individual, an official or other member of the European Union’s staff is connected to the institution to which he belongs by a legal employment relationship involving a balance of specific reciprocal rights and obligations, which is reflected in the institution’s duty to have regard for the welfare of the person concerned. Accordingly, when it acts in its capacity as employer, the European Union has a greater degree of responsibility, which is manifested in an obligation to compensate its staff in respect of loss caused by any unlawful conduct of the European Union in its capacity as employer, and in the context of European civil service litigation it is not necessary, in order to establish non-contractual liability on the part of an institution, to demonstrate a ‘sufficiently serious breach’, or ‘manifest and serious disregard’ of the limits of its discretion (see judgment of 19 June 2013, Goetz v Committee of the Regions, F‐89/11, EU:F:2013:83, paragraph 98 and the case-law cited).

| 165 | According to settled case-law, the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, unless the applicant demonstrates that he suffered non-material damage separable from the unlawfulness justifying the annulment and incapable of being entirely remedied by that annulment (judgment of 14 July 2011, Petrilli v Commission, F‐98/07, EU:F:2011:119, paragraph 28 and the case-law cited). |
| --- | --- |

165

According to settled case-law, the annulment of an unlawful measure may constitute, in itself, adequate and, in principle, sufficient compensation for all non-material damage which that measure may have caused, unless the applicant demonstrates that he suffered non-material damage separable from the unlawfulness justifying the annulment and incapable of being entirely remedied by that annulment (judgment of 14 July 2011, Petrilli v Commission, F‐98/07, EU:F:2011:119, paragraph 28 and the case-law cited).

| 166 | The applicant’s claim for damages must be examined in the light of those principles. |
| --- | --- |

166

The applicant’s claim for damages must be examined in the light of those principles.

| 167 | As regards any unlawfulness or wrongful act attributable to the Committee of the Regions, it should be recalled, first, that it has not been established in the present case that the Committee of the Regions infringed Article 266 TFEU. |
| --- | --- |

167

As regards any unlawfulness or wrongful act attributable to the Committee of the Regions, it should be recalled, first, that it has not been established in the present case that the Committee of the Regions infringed Article 266 TFEU.

| 168 | Secondly, it should be recalled that, in the present case, it was found that the contested decision ratifying the conclusions of the second invalidity committee was unlawful because it failed to state reasons and contained a manifest error of assessment. It is also relevant to note, as the applicant argues, that other irregularities were committed during the pre-litigation procedure. It was found in that regard that the Committee of the Regions inadequately reviewed the proceedings of the second invalidity committee and had infringed the principle of impartiality and the duty to have regard for the welfare of officials. It should be borne in mind in that respect, as the applicant asserted, essentially, in the pleas supporting his action, that the irregularities affecting the contested decision could have been prevented. Had the appointing authority not relied solely on the memorandum of 8 May 2015, but had taken measures in order sufficiently to review the proceedings of the invalidity committee, in particular by accepting the applicant’s invitation to consult the summary medical report and by putting questions to the other doctors on the second invalidity committee, it could have rectified the irregularities affecting the contested decision. By failing to act in that way, the Committee of the Regions contributed to prolonging the applicant’s uncertainty and anxiety. |
| --- | --- |

168

Secondly, it should be recalled that, in the present case, it was found that the contested decision ratifying the conclusions of the second invalidity committee was unlawful because it failed to state reasons and contained a manifest error of assessment. It is also relevant to note, as the applicant argues, that other irregularities were committed during the pre-litigation procedure. It was found in that regard that the Committee of the Regions inadequately reviewed the proceedings of the second invalidity committee and had infringed the principle of impartiality and the duty to have regard for the welfare of officials. It should be borne in mind in that respect, as the applicant asserted, essentially, in the pleas supporting his action, that the irregularities affecting the contested decision could have been prevented. Had the appointing authority not relied solely on the memorandum of 8 May 2015, but had taken measures in order sufficiently to review the proceedings of the invalidity committee, in particular by accepting the applicant’s invitation to consult the summary medical report and by putting questions to the other doctors on the second invalidity committee, it could have rectified the irregularities affecting the contested decision. By failing to act in that way, the Committee of the Regions contributed to prolonging the applicant’s uncertainty and anxiety.

| 169 | Thirdly, it should be noted that, in the present case, annulment of the contested decision is not sufficient to compensate for the damage suffered by the applicant. Indeed, as a result of the unlawfulness of the contested decision and the irregularities committed at the complaint stage, the applicant is once again in the same situation of apprehension and uncertainty as was caused by the unlawfulness of the decision of 10 September 2010. That prolonging of the period of waiting and uncertainty, caused by the unlawfulness of the contested decision, constitutes non-material harm, for which compensation is already due, which it is for the institution concerned to make good through adequate compensation assessed on an equitable basis (see, to that effect, judgment of 25 October 2017, Lucaccioni v Commission, T‐551/16, not published, EU:T:2017:751, paragraph 144). |
| --- | --- |

169

Thirdly, it should be noted that, in the present case, annulment of the contested decision is not sufficient to compensate for the damage suffered by the applicant. Indeed, as a result of the unlawfulness of the contested decision and the irregularities committed at the complaint stage, the applicant is once again in the same situation of apprehension and uncertainty as was caused by the unlawfulness of the decision of 10 September 2010. That prolonging of the period of waiting and uncertainty, caused by the unlawfulness of the contested decision, constitutes non-material harm, for which compensation is already due, which it is for the institution concerned to make good through adequate compensation assessed on an equitable basis (see, to that effect, judgment of 25 October 2017, Lucaccioni v Commission, T‐551/16, not published, EU:T:2017:751, paragraph 144).

| 170 | Having regard for all the foregoing circumstances, it must be found that the applicant has suffered clear non-material damage directly attributable to the behaviour of the Committee of the Regions. It is therefore appropriate to set the amount of the damages to compensate for non-material damage to be awarded to the applicant as a result of the unlawfulness committed by the Committee of the Regions, on an equitable basis, at EUR 5000. |
| --- | --- |

170

Having regard for all the foregoing circumstances, it must be found that the applicant has suffered clear non-material damage directly attributable to the behaviour of the Committee of the Regions. It is therefore appropriate to set the amount of the damages to compensate for non-material damage to be awarded to the applicant as a result of the unlawfulness committed by the Committee of the Regions, on an equitable basis, at EUR 5000.

Costs

Costs

| 171 | Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Committee of the Regions has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant. |
| --- | --- |

171

Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Committee of the Regions has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.

| | On those grounds,
  THE GENERAL COURT (Second Chamber)
  hereby: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

| | 1. | Annuls the decision of the Bureau of the Committee of the Regions of 2 December 2014 refusing to recognise the occupational origin of the disease resulting in Mr Robert McCoy’s invalidity within the meaning of the fifth paragraph of Article 78 of the Staff Regulations; |
| --- | --- | --- |

1.

1.

Annuls the decision of the Bureau of the Committee of the Regions of 2 December 2014 refusing to recognise the occupational origin of the disease resulting in Mr Robert McCoy’s invalidity within the meaning of the fifth paragraph of Article 78 of the Staff Regulations;

Annuls the decision of the Bureau of the Committee of the Regions of 2 December 2014 refusing to recognise the occupational origin of the disease resulting in Mr Robert McCoy’s invalidity within the meaning of the fifth paragraph of Article 78 of the Staff Regulations;

| | 2. | Orders the Committee of the Regions to pay Mr McCoy the sum of EUR 5000; |
| --- | --- | --- |

2.

2.

Orders the Committee of the Regions to pay Mr McCoy the sum of EUR 5000;

Orders the Committee of the Regions to pay Mr McCoy the sum of EUR 5000;

| | 3. | Orders the Committee of the Regions to pay the costs. |
| --- | --- | --- |

3.

3.

Orders the Committee of the Regions to pay the costs.

Orders the Committee of the Regions to pay the costs.

| | Prek


  Schalin


  Costeira


  Delivered in open court in Luxembourg on 23 October 2018.
  [Signatures] |
| --- | --- |

Prek

Schalin

Costeira

Delivered in open court in Luxembourg on 23 October 2018.

[Signatures]

---

(
  *1
  )	Language of the case: French.

*1