JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

22 May 2007

Case F-97/06

**Adelaida López Teruel**

**v**

**Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)**

(Officials – Invalidity – Rejection of a request for an Invalidity Committee to be convened)

**Application:**brought under Articles 236 EC and 152 EA, in which Mrs López Teruel seeks annulment of OHIM’s decision of 6 October 2005 refusing
her request for an Invalidity Committee to be convened under Article 78 of the Staff Regulations.

**Held:**OHIM’s decision of 6 October 2005 refusing the applicant’s request for an Invalidity Committee to be convened is annulled.
OHIM is ordered to pay the costs.

**Summary**

1.      *Officials – Invalidity – Initiation of the procedure to establish invalidity – Conditions*

*(Staff Regulations, Arts 59(4) and 78, first para.; Annex VIII, Art. 13)*

2.      *Officials – Invalidity – Initiation of the procedure to establish invalidity – Conditions*

*(Staff Regulations, Arts 59(1) and 78, first para.; Annex VIII, Art. 13)*

1.      An official’s right to an invalidity allowance, guaranteed by the provisions of the first paragraph of Article 78 of the Staff
Regulations and Article 13(1) of Annex VIII to the Staff Regulations, which may not be recognised until the end of the procedure
to establish invalidity, implicitly but necessarily includes the right of that official to have that procedure initiated if
he meets the conditions laid down by the provisions referred to. Those provisions do not give the appointing authority a discretion,
much less a simple option, to decide whether or not to initiate the procedure to establish invalidity, but they confer on
it circumscribed powers, in that the competent authority is obliged to initiate the procedure to establish invalidity if it
finds that the conditions laid down by those provisions are met. Accepting that a referral to the Invalidity Committee is,
in any event, simply an option for the administration would be contrary to the provisions of Article 78 of the Staff Regulations,
since making referral to the Invalidity Committee subject to such conditions would have the effect of rendering the right
conferred on the official redundant. The appointing authority is thus justified in refusing to initiate the procedure to establish
invalidity only if one of the required conditions is not met. Thus an official who is not obliged by his state of invalidity
to end his service, either because he has previously been granted a retirement pension or because he has already resigned,
is not entitled to request the initiation of the procedure to establish invalidity.

Article 59(4) of the Staff Regulations, which allows the appointing authority to refer to the Invalidity Committee the case
of any official whose sick leave totals more than 12 months in any period of three years, referral to the Invalidity Committee
then being merely an option, does not apply in a case where an official asks the administration to convene the Invalidity
Committee. That provision specifically refers to cases where it is the administration which takes the initiative to initiate
the procedure to establish invalidity. That is why it authorises the appointing authority to initiate that procedure on its
own initiative only where the official’s sick leave totals more than a certain duration: such a time requirement guarantees
that the official has a reasonable period in which to recover and resume his duties before being retired on the grounds of
invalidity. It follows that the appointing authority cannot refuse to initiate a procedure to establish invalidity at the
request of the official concerned on the ground that his sick leave totals less than the 12 months required and that he therefore
does not satisfy the time condition provided for in Article 59(4) of the Staff Regulations, since that time condition is not
effective against an application brought under Article 78 of the Staff Regulations.

(see paras 48-53, 56)

See:

12/83 *Bähr* v *Commission* [1984] ECR 2155, paras 12 and 13; C‐181/03 P *Nardone* v *Commission* [2005] ECR I‐199, para. 39

T-84/98 *C* v *Council* [2000] ECR-SC I‐A‐113 and II‐497, para. 68; T-302/01 *Birkhoff* v *Commission* [2003] ECR-SC I‐A‐245 and II‐1185, para. 38

F-119/05 *Gesner* v *OHIM* [2007] ECR-SC I-A-1-000 and II-A-1-000, para. 33

2.      The provisions of Article 59(1) of the Staff Regulations on sick leave and of the first paragraph of Article 78 on the invalidity
allowance organise separate procedures with different objectives. However, it follows from the unequivocal provisions of Article
13 of Annex VIII to the Staff Regulations, which lays down, in accordance with Article 78 of the Staff Regulations, the conditions
on which an official is entitled to an invalidity pension, that the procedure to establish invalidity may be initiated only
in relation to an official who is obliged to end his service with the Communities because he is suffering from an invalidity
preventing him from performing his duties. It follows that an official who is not prevented from performing his duties because
of his state of health manifestly cannot claim an invalidity pension.

That is why, notwithstanding the separate natures of the procedures provided for in Article 59(1) and the first paragraph
of Article 78 of the Staff Regulations, the administration may rely on the outcome of arbitration proceedings which have found
an official fit to perform his duties in order to refuse to allow him to be examined by an Invalidity Committee, where the
disorder which the official intends to bring before the Invalidity Committee is the same as that examined by the arbitrating
doctor. Likewise, the administration may base a refusal to convene an Invalidity Committee on such an outcome if the official’s
application is unreasonable, in particular if it is merely intended, without any new information, to dispute the findings
of the medical arbitration proceedings or to invoke, without providing proof, the existence of a new disorder.

(see paras 59-61)

See:

42/74 and 62/74 *Vellozzi* v *Commission* [1975] ECR 871, paras 25 to 27; *Bähr* v *Commission*, para. 12; *Nardone* v *Commission*, para. 39