Opinion of the Advocate General — ECLI:EU:C:1999:184
Date: 1999-04-20
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Appeal - unfounded;Staff cases

summary, it may be said of 
this plea likewise that it should be dis­
missed as inadmissible and in any event as 
unfounded. 
Fourth limb: Compensation for the delay of 
the Invalidity Committee in dealing with 
the case 
Arguments of the parties 
78. The appellant argues on this point that 
the Commission exceeded its discretion in 
making the start of an examination as to 
invalidity under Article 78 of the Staff 
Regulations dependent on the prior con­
clusion of a procedure under Article 73 
thereof. In the appellant's view, the Inva­
lidity Committee should also have dealt 
with the question of whether there was an 
occupational disease, and not solely with 
the question of invalidity. He contends that 
the link between his disease and his work 
would in that case probably have been 
recognised earlier by the Invalidity Com­
mittee. A claim for damages therefore 
arises because of the delay in dealing with 
this matter. The appellant essentially 
repeats the same arguments as those 
advanced in the original application, and 
concludes that the Court of First Instance 
erred in law by not admitting that, as a 
result of the Commission's conduct, he had 
suffered damage from the delay in examin­
ing his case. He also criticises the judgment 
under appeal for failing to rule that the 
Commission had misused its discretion in 
that respect. 
79. The Commission likewise considers 
this argument inadmissible, first because it 
does not adequately identify the contested 
passages in the judgment under appeal, and 
second because it is merely a statement of 
facts without legal argument. The Commis­
sion states, in the alternative, that the 
argument is also unfounded because the 
Court of First Instance, in the judgment 
under appeal, deals thoroughly with both 
of the procedures under Articles 73 and 78 
of the Staff Regulations, concluding that 
there was no misuse of discretion on the 
Commission's part. 
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OPINION OF MR ALBER — CASE C-257/98 Ρ 
Analysis 
80. Here likewise, it must first be stated 
that the appellant's arguments are confined 
essentially to a repetition of facts which 
have already been dealt with in the pro­
ceedings before the Court of First Instance. 
However, in appeal cases this Court may 
only concern itself with questions of law, 
and the appellant's arguments must there­
fore be rejected as inadmissible. 
81. Moreover, it is not clear in what sense 
the Court of First Instance is said to have 
made an error of law. Referring to the 
consistent case-law of this Court, the Court 
of First Instance begins by stating that a 
comparison between Articles 73 and 78 of 
the Staff Regulations shows that the bene­
fits specified in those provisions are differ­
ent from and independent of each other, 
although they may be granted concurrently. 
According to it, the two procedures are 
different and may result in 
decisions which differ from and are inde­
pendent of each other, as indeed Article 25 
of the Insurance Rules indicates. 14 The 
appointing authority enjoys discretion in 
each particular case when deciding how far 
the two procedures should be coordinated. 
Accordingly, the Court of First Instance 
was correct in stating, in paragraph 137 of 
its judgment, that this is not a precondition 
for the legality of either procedure, with the 
result that the Commission did not misuse 
its discretion in this area by not requiring 
the Invalidity Committee established under 
Article 78 of the Staff Regulations to 
decide, during the procedure under Arti­
cle 73 of the Staff Regulations, whether the 
appellant's disease was of an occupational 
nature. 
82. There would have been a misuse of 
discretion only if the Commission had had 
a compelling reason to put to the Invalidity 
Committee the same question as to the 
committee established under Article 73 of 
the Staff Regulations. The appellant was, 
however, unable to adduce or to demon­
strate any such compelling reason. Since 
the appeal also contains no further expla­
nation on this point, the argument must in 
any case be rejected as unfounded. 
83. In summary, therefore, it may be said 
that the plea based on infringement of 
Community law must be rejected as par­
tially inadmissible, but also in any event as 
unfounded in its entirety. 
Costs 
84. According to Article 122 of the Rules 
of Procedure of the Court, the decision on 
costs is to be made by the Court if the 
appeal is dismissed. Since in the present 
case the appellant has been unsuccessful, he 
should be ordered to pay the costs in 
accordance with Article 69(2), first subpar­
agraph, of the Rules of Procedure. 
14 — Article 25 of the Insurance Rules states: 'Recognition of 
total or partial permanent invalidity pursuant to Article 73 
of the Staff Regulations and to these Rules shall in no way 
prejudice application of Article 78 of the Staff Regulations 
and vice versa'. 
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LUCACCIONI V COMMISSION 
E — Conclusion 
85. For those reasons, I propose that the Court should: 
(1) dismiss the appeal; 
(2) order the appellant to pay the costs of the appeal proceedings. 
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