JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

8 July 2008

Case F-76/07

**Gerhard Birkhoff**

**v**

**Commission of the European Communities**

(Civil service – Officials – Social security – Sickness insurance – Reimbursement of medical expenses – Replacement of a wheelchair – Extent of review exercised by the Tribunal)

**Application:**brought under Articles 236 EC and 152 EA, in which Mr Birkhoff, a former Commission official, seeks annulment of the decision
of the Settlements Office of 8 November 2006 refusing the prior authorisation he needs under the rules in order to obtain
reimbursement of the cost of a new wheelchair.

**Held:**The decision of the Settlements Office of 8 November 2006 is annulled. The Commission is to bear all the costs.

**Summary**

1.      *Officials – Social security – Sickness insurance – Medical costs – Reimbursement*

*(Staff Regulations, Arts 59 and 72(1); Annex II, Art. 7; Rules on Sickness Insurance, Arts 20 and 27)*

2.      *Officials – Actions – Action against a decision vitiated by an error of law, but justifiable on a different ground – Circumstance
not precluding annulment – Exception – Administration’s powers circumscribed*

1.      While it is difficult for the Tribunal to verify whether the medical assessments produced by the Settlements Offices’ medical
officers are well founded, those assessments, even though they have been made in proper conditions, are not, however, either
definitive or removed from its scrutiny, unlike the medical assessments produced by the Invalidity Committee provided for
in Article 7 of Annex II to the Staff Regulations or the independent doctor referred to in Article 59 of the Staff Regulations.
Medical assessments expressed unilaterally by a doctor belonging to the institution do not offer the same safeguards of balance
between the parties and objectivity as assessments formulated by the Invalidity Committee, given its composition, or the arbitrating
doctor, in view of how he is appointed. Furthermore, neither the Staff Regulations nor the Joint Rules provide that medical
assessments produced by the Settlements Offices’ medical officers on claims for reimbursement of medical expenses may be disputed
before a medical authority offering the same safeguards of balance and objectivity as the Invalidity Committee or the independent
doctor.

That is why the Tribunal has a power of review, admittedly limited, but covering errors of fact and law and manifest errors
of assessment, over the refusal of a Settlements Office to authorise reimbursement of medical expenses referred to in the
Rules on Sickness Insurance for Officials of the Communities, and over the opinion of the Settlements Office’s medical officer
on which that refusal may have been based.

(see paras 50-52)

See:

156/80 *Morbelli* v *Commission* [1981] ECR 1357, paras 15 to 20; 2/87 *Biedermann* v *Court of Auditors* [1988] ECR 143, para. 8

T-43/89 *Gill* v *Commission* [1993] ECR II‐303, para. 36; T-34/99 *Pipeaux* v *Parliament* [2000] ECR-SC I‐A‐79 and II‐337, paras 29 and 30; T-191/01 *Hecq* v *Commission* [2004] ECR-SC I‐A‐147 and II‐659, paras 64 to 78; T-376/02 *O* v *Commission* [2004] ECR-SC I‐A‐349 and II‐1595, para. 29

F-99/06 *López Teruel* v *OHIM* [2007] ECR-SC I-A-0000 and II-0000, paras 74 to 76; F-10/07 *Botos* v *Commission* [2007] ECR-SC I-A-0000 and II-0000, paras 40 to 50

2.      In an action brought by officials, the fact that a decision by the administration which is vitiated by an error of law can
be lawfully justified on a different ground is not capable of preventing its annulment. The situation would be different if
the administration had no discretion and if, subsequently, the annulment of the contested decision would inevitably force
the administration to take another decision substantially the same as that annulled. The ground on which the administration
based its contested decision may not be replaced with a different ground during the proceedings unless the administration’s
powers were circumscribed when it adopted that decision.

(see para. 64)

See:

T-99/95 *Stott* v *Commission* [1996] ECR II‐2227, para. 32