JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

1 July 2008

Case T-262/06 P

**Commission of the European Communities**

**v**

**D**

(Appeal – Civil service – Officials – Annulment at first instance of the Commission’s decision – Occupational disease – Refusal to recognise the occupational origin of the disease or of the worsening of the disease from which the applicant is
suffering – Admissibility of the appeal – Admissibility of the plea in law examined at first instance – Force of res judicata)

**Appeal:**brought against the judgment of the European Union Civil Service Tribunal (First Chamber) in Case F-18/05 *D* v *Commission* [2006] ECR-SC I‐A‐1‐83 and II‐A‐1‐303, and seeking to have that judgment set aside.

**Held:**The judgment of the European Union Civil Service Tribunal in Case F-18/05 *D* v *Commission* is set aside. The case is referred back to the Civil Service Tribunal. Costs are reserved.

**Summary**

1.      *Actions for annulment – Pleas in law – Definition*

*(Art. 230 EC)*

2.      *Officials – Actions – Judgment annulling a measure – Effects – Obligation to implement*

*(Art. 233 EC; Staff Regulations, Arts 73 and 78)*

1.      Where matters set out in an application for annulment under the heading ‘Facts’ are not, prima facie, intended to constitute
independent pleas in law capable of resulting in the annulment of the contested decision, but rather to describe the circumstances
which led to the dispute, it is not however possible to rule out, a priori, that this part of the application may contain
a statement setting out a plea of annulment or part of such a plea.

(see para. 52)

See: T‐209/01 *Honeywell* v *Commission* [2005] ECR II‐5527, paras 105 to 107

2.      Where the Community judicature annuls the appointing authority’s decision to grant an official an invalidity pension determined
in accordance with the third paragraph of Article 78 of the Staff Regulations, owing to an error by the Invalidity Committee
regarding the definition of the concept of occupational disease which may have influenced that decision, it is not ruling
on whether that disease was occupational in origin, which, in view of the discretion conferred on the Invalidity Committee
in medical matters, would be a finding of facts for which it has no jurisdiction. That being the case, if the appointing authority
subsequently decides that the disease was occupational in origin and grants the official an invalidity pension fixed in accordance
with the provisions of the third paragraph of Article 78 of the Staff Regulations, that conclusion does not have the force
of *res judicata* .

It follows that, when hearing an application for annulment of the decision to refuse to recognise that official’s disease
as occupational in origin for the purposes of Article 73 of the Staff Regulations, the Community judicature commits an error
of law in considering that the appointing authority cannot lawfully, without infringing the principle of *res judicata*, refuse to recognise that the official’s disease, which has an occupational origin for the purposes of the second paragraph
of Article 78 of the Staff Regulations, also has an occupational origin for the purposes of Article 73.

In any event, the benefits provided for in Articles 73 and 78 of the Staff Regulations are different and independent of each
other, although they may be paid concurrently. Similarly, those provisions provide for two different procedures which may
lead to different decisions that are independent of one another. Although it is desirable that, where appropriate, the two
procedures should be conducted in concert and that the same medical authorities should be invited to give an opinion on the
different aspects of the official’s invalidity, the legality of either procedure is not conditional upon such a requirement
and in that regard the appointing authority has, according to the circumstances, a discretionary power. Furthermore, Article 25
of the Rules on Insurance against the Risk of Occupational Accidents and of Occupational Disease provides that recognition
of even total permanent invalidity ‘shall in no way prejudice application of Article 78 of the Staff Regulations and vice
versa’. It follows that the procedure for recognition of total or partial permanent invalidity pursuant to Article 73 of the
Staff Regulations and the procedure for granting an invalidity pension under Article 78 of the Staff Regulations may legitimately
produce different results in respect of the same factual situation, particularly as regards the question of the occupational
origin of the disease from which the same official is suffering.

(see paras 70-74)

See: 731/79 *B* v *Parliament* [1981] ECR 107, paras 9 and 10; 257/81 *K* v *Council* [1983] ECR 1, para. 10; T‐165/95 *Lucaccioni* v *Commission* [1998] ECR-SC I‐A‐203 and II‐627, paras 136 and 137; T‐376/02 *O* v *Commission* [2004] ECR-SC I‐A‐349 and II‐1595, para. 45