Judgment — ECLI:EU:T:2004:61
Date: 2004-03-03
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Organization of departments;Admissibility and examination of applications, forms of order sought and pleas in law;Insurance against accident and occupational disease;Effect of the outcome of the action for annulment;Obligations of the administration
Procedure: Action for damages - successful;Action for damages - unfounded;Staff cases

summary of the pleas in law relied on. Since that requirement is mandatory, the issue of compliance with it may be raised by the Court of its own motion. The summary of the pleas relied on, it should be pointed out, must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Similar requirements are called for where a submission is made in support of a plea in law. Moreover, it must be pointed out that it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgment in Case T-231/99 Joynson v Commission [2002] ECR II-2085, paragraph 254, and the case-law cited). 152 That submission is, therefore, inadmissible. – The fifth submission, that no details were given to the doctor appointed by the institution for the purposes of the procedure 153 The fifth submission is that the Parliament did not ask Dr Lipsedge to take account of the report by Dr Bamber of 17 June 1999 and determine Mr Vainker’s degree of partial permanent invalidity and did not ask that doctor to take a view on the stabilisation of Mr Vainker’s condition. 154 As regards the alleged failure to ask Dr Lipsedge to take account of Dr Bamber’s report of 17 June 1999, the Court of First Instance notes that, as the Parliament rightly points out, the report by Dr Lipsedge of 25 September 2000 mentions Dr Bamber’s report of 17 June 1999 in the list of documents consulted in the drafting of the report. 155 Even if the Parliament did not expressly ask Dr Lipsedge to take account of Dr Bamber’s report of 17 June 1999, that fact cannot constitute an irregularity, since the Parliament sent Dr Lipsedge that report by Dr Bamber for the purposes of reaching the findings provided for by the first indent of the first subparagraph of Article 19 of the Rules. 156 That conclusion cannot be affected by the fact that the findings of the two reports differ on the subject of the stabilisation of Mr Vainker’s illness. 157 As regards the Parliament’s alleged failure expressly to ask Dr Lipsedge to take a view on the stabilisation of Mr Vainker’s condition, it must be borne in mind that according to the first paragraph of Article 20 of the Rules the decision defining the degree of invalidity is to be taken after the official’s injuries have consolidated. That provision is intended to prevent the degree of invalidity from being decided while the official’s illness may still be subject to change, with implications for the degree of invalidity he suffers. 158 According to the file, in an undated fax to Dr Lipsedge, the Parliament noted that the report of 25 September 2000, drawn up by that doctor, did not calculate the degree of permanent invalidity suffered by Mr Vainker and asked Dr Lipsedge to confirm that the failure to calculate the degree of permanent invalidity in that report was due to the fact that Mr Vainker’s illness was potentially reversible, as recorded in that report, which made it impossible to make such a calculation at that stage. 159 It is also apparent from the file that, by letter of 5 October 2000, Dr Lipsedge confirmed the Parliament’s suggested ground for the failure to calculate a degree of permanent invalidity. 160 It follows that, in fact, the Parliament expressly consulted Dr Lipsedge as to whether he could take a view on the stabilisation of Mr Vainker’s condition. 161 It follows from the foregoing that the fifth submission must be rejected. The second part of the plea, that the procedure was unduly lengthy 162 As regards the second part of the plea, that the procedure was unduly lengthy, it must be observed, as a preliminary point, that the Parliament’s conduct resulted in the repetition of most of the steps taken in the procedure initiated by Mr Vainker’s letter of 14 November 1997 and concluded on 12 November 1999. 163 It appears from the file that, by letter of 12 November 1999, the President of Parliament acknowledged that Mr Vainker had justifiably lodged complaints on 14 July 1999 and 17 October 1999 against the Parliament’s refusal to reopen the procedure and against the draft decision of 15 June 1999 and the final decision of 10 September 1999. In his complaints, Mr Vainker criticised the Parliament, inter alia, for the fact that the administrative inquiry consisted solely of the note of the Jurisconsult. 164 It follows that the Parliament must be held liable for a delay of approximately two years in the procedure. 165 The Court of First Instance considers that the Parliament’s argument that the length of the procedure is directly attributable to the fact that Mr Vainker’s illness had not stabilised cannot be upheld. 166 Although it is true that the rate of Mr Vainker’s invalidity and the amount of the payment provided for by Article 73(2)(c) of the Staff Regulations could not be determined as long as his illness had not stabilised, as the Parliament contends, it must be recognised that the irregularities in the procedure recorded above could not have helped to improve Mr Vainker’s state of health and thereby ensure stabilisation of his illness. 167 Suffice it to observe, in that connection, that, by letter of 23 February 1999 to the Secretary-General of the Parliament, Mr Vainker’s doctor, Dr Rehling, put that institution on notice of the serious repercussions on Mr Vainker’s health entailed by the length of the procedure, in the following terms: ‘I understand that Mr Vainker applied for recognition that his illness was work-related in November 1997. Fifteen months have passed and there has been no apparent progress in the administrative process relating to this application. This delay, and the Parliament’s apparent failure to recognise and accept its responsibility for his illness, continues in my opinion, to have a damaging effect on Mr Vainker’s health, and the health and well being of his family. I would, therefore, urge you to hasten the resolution of this very difficult and sensitive problem.’ 168 Furthermore, it is apparent from the file that Mr Vainker and Mrs Vainker wrote to the Parliament on several occasions to alert it to the damaging effect on Mr Vainker’s health of the manner in which the procedure was being conducted. 169 Against that background, the Parliament’s reliance on circumstances of which it was at least partly the cause to justify the length of the procedure is unfounded. 170 The second part of the plea is therefore well founded. 171 In the light of the irregularities found on examination of the first and third submissions in the first part of the single plea and the second part of that plea, that is, the facts that the administrative inquiry was conducted in breach of Article 17(2) of the Rules and that the Parliament gave the applicants false or contradictory information and the excessive length of the procedure, it must be held that, in the procedure for recognition of the occupational nature of Mr Vainker’s disease, the Parliament engaged in unlawful conduct such as to give rise to the liability of the Community. 2. Damage and causal link a) Arguments of the parties 172 Mr Vainker submits that the Parliament’s misconduct during the course of the procedure from the time of his request of 14 November 1997 caused the applicants profound pain and suffering. That pain and suffering was a direct result of the wrongful acts of the defendant. He assesses the material and non-material damage caused at EUR 100 000. 173 Mr Vainker also states that while he was seeking the annulment of the procedure and had been given false information by the Parliament, Mrs Vainker, who was acting on his behalf as he was too unwell to take action, found it necessary to have recourse to the services of a lawyer. The legal costs of which reimbursement is sought amount to GBP 8 244.94. 174 The Parliament points out that Mr Vainker fails to identify the exact nature of the alleged ‘pain and suffering’, which is in violation of the settled case-law requiring an applicant to identify in his initial action the details of the alleged damage. Mr Vainker also fails to establish why an amount of EUR 100 000 can be regarded as an appropriate compensation. 175 The Parliament adds that Mr Vainker fails to establish that he was forced to incur the legal costs claimed and that, in order to obtain their reimbursement, it is not sufficient to establish that an amount of GBP 8 244.94 was effectively paid. It points out that, in so far as the costs are those of the proceedings before the Court of First Instance, if the applicant is successful in his application, those costs will be recoverable. As to the costs of previous legal advice or assistance, it is settled case-law that these are not recoverable costs (Case C-294/90 DEP British Aerospace v Commission [1994] ECR I-5423). b) Findings of the Court Preliminary observations 176 As a preliminary point, it must be observed that, by his second head of claim, Mr Vainker claims the payment of EUR 100 000 for material and non-material damage caused by the conduct of the defendant considered here under C. In that connection, a distinction must be made between the non-material damage alleged and certain aspects of the material damage. According to the file, the material damage caused by the conduct in question comprises the legal costs referred to in the applicants’ third head of claim and the default interest referred to in the fourth head of claim and considered below under D (paragraphs 186 to192 below). As the applicants have not established or even alleged other aspects of material damage suffered by Mr Vainker, a distinction must be made at this stage between the non-material damage suffered by Mr Vainker and referred to in the applicants’ second head of claim and the legal costs claimed in the third head of claim. 177 According to settled case-law, the burden of proving a causal link between a fault committed by an institution and the damage pleaded falls on the applicants (see Joined Cases C-363/88 and C-364/88 Finsider and Others v Commission [1992] ECR I-359, paragraph 25). The non-material damage 178 It must be held that the irregularities in the procedure until the time when the Parliament informed Mr Vainker that the procedure would be reopened, not only had the consequences on the health and well being of his family referred to in the letter of Dr Rehling cited in paragraph 167 above, but also resulted in suffering for Mr Vainker which was particularly serious in the context of the procedure at issue and liable to constitute non-material damage. 179 It follows that the causal link between the non-material damage suffered by Mr Vainker and the conduct of the Parliament is established. 180 In the light of the foregoing, the Court of First Instance, assessing ex aequo et bono the non-material damage suffered by Mr Vainker and taking account inter alia of the seriousness of the defendant’s conduct towards Mr Vainker, considers that a sum of EUR 60 000 represents sufficient compensation. Legal costs 181 As regards the claim for reimbursement of legal costs, it must be observed that the order in British Aerospace v Commission, cited above, to which the Parliament refers, and all the case-law to that effect in staff cases (see, for example, the orders of 5 July 1993 in Case T-84/91 DEP Meskens v Parliament [1993] ECR II-757, and of 25 June 1998 in Joined Cases T-177/94 DEP, T-377/94 DEP and T-99/95 DEP Altmann and Others and Stott v Commission [1998] ECR-SC I-A-299 and II-883), concern recoverable costs incurred for the purposes of the litigation before the Community Court. However, by this head of claim, Mr Vainker is seeking reimbursement of legal costs incurred during the pre-litigation procedure, while he was seeking the compensation provided for by Article 73 of the Staff Regulations, by way of a principal claim for damages, which cannot be confused with the head of claim concerning the costs of the case proper. 182 Here the sums claimed by Mr Vainker were incurred not as a result of the operation of the pre-litigation procedure as such but by the mishandling of that procedure. 183 In that regard, it should be borne in mind that the Court of First Instance has already held that, at the time when Mrs Vainker found it necessary to have recourse to the services of a lawyer, the procedure for the recognition of the occupational nature of Mr Vainker’s disease was tainted by irregularities. 184 It follows that the causal link between the legal costs for the pre-litigation procedure and the conduct of the Parliament must be considered to be established. 185 As the Parliament has not disputed the amount of that damage as such it follows that the Parliament must be ordered to pay Mr Vainker the sum of GBP 8 244.94. D – The claim for payment of default interest 1. Arguments of the parties 186 Mr Vainker seeks an order that Parliament pay default interest on the amount of the payment made under the Rules between the time when that payment ought reasonably to have been made and the time when it was paid. At the hearing Mr Vainker made clear, first, that his claim for default interest concerns in particular the delay in payment of the lump sum compensation provided for by Article 73(2)(c) of the Staff Regulations and, second, that the rate of that interest should be in accordance with the Court’s practice as revealed in its case-law. 187 The Parliament points out that Mr Vainker claims interest of 8% on the amount of the lump sum without establishing the date as from which this interest should run. Moreover, it considers that, if interest is due, it should be fixed at a maximum of 4.5% so as to reflect the rates most recently fixed by the Court of First Instance (Case T-231/97 New Europe Consulting v Commission [1999] ECR II-2403, paragraph 71). 2. Findings of the Court 188 As regards the determination of the period for which such interest must be paid, it must be observed, as a preliminary point, that it has been held that ‘where the decision recognising that an official’s disease is occupational in origin and fixing his rate of permanent invalidity is adopted late, owing to irregularities or negligence attributable to the institution in question, the official concerned may claim, by way of damages under the general system of non-contractual liability applicable in the context of Article 179 of the EC Treaty (now Article 236 EC), default interest on the lump sum to which he is entitled, under Article 73 of the Staff Regulations for the period between the date on which the institution should reasonably have been in a position to adopt the decision recognising his occupational disease if it had proceeded with all due diligence and the date on which the lump sum is paid’ (judgment in Case T-300/97 Latino v Commission [1999] ECR-SC I-A-259 and II-1263, paragraph 99). 189 It should also be noted that it was held in paragraph 164 above that the Parliament must be held liable for the unduly lengthy procedure. 190 In the light of the case-law cited, the claim under consideration must first be reclassified as a claim for default interest on the capital sum at issue and then the period in respect of which that interest is to be calculated in accordance with that case-law must be determined. 191 Between the letter of 12 November 1999 from the Parliament informing Mr Vainker that the procedure had been reopened and the decision of the appointing authority of 27 November 2001, which fixed Mr Vainker’s rate of invalidity and granted him compensation of EUR 617 617.94, a period of 2 years and 15 days elapsed. As the procedure was initiated by letter from Mr Vainker of 14 November 1997, a decision fixing the amount of the payment could have been made two years and 15 days after the start of the procedure, in other words on 29 November 1999. Accordingly, the period in respect of which default interest must be paid is that between 29 November 1999 and 9 January 2002, the date on which Mr Vainker received that sum. 192 As for the percentage of the annual rate of default interest to be applied, the Court considers that that rate must be calculated on the basis of the rate fixed by the European Central Bank for its main refinancing operations, in force from time to time during the period concerned, plus two percentage points. E – The claims for compensation for the damage allegedly suffered by Mrs Vainker 1. Arguments of the parties 193 Mrs Vainker specifies that her claim is based on both Article 236 EC and Articles 235 EC and 288(2) EC. She submits that the material and non-material damage she has endured are a direct result of her dealings with the Parliament during its handling of the application for recognition of the occupational nature of her husband’s disease and the procedure for compensation under the Rules, and that, in the circumstances, her situation is different from that analysed in Leussink, cited above. 194 She alleges that, as a result of the great difficulty Mr Vainker had in dealing with his application for recognition that he is suffering from an occupational disease and the claim for compensation arising out of this request, Mrs Vainker has had to deal with the application in place of her husband and to bear the brunt of dealing with the Parliament since November 1997. This in turn has had a significant detrimental effect on her health and well-being. 195 Mrs Vainker blames the Parliament for the fact that she has been obliged to exchange difficult correspondence with the Director-General for Personnel of the Parliament, that she has been supplied with erroneous information on the progress of her husband’s application and, as that progress has been very slow, has had to telephone the Parliament to find out what was happening on numerous occasions. 196 She alleges, further, that she has suffered as a result of the medical report by Dr Van Acker whose comments as to the cause of Mr Vainker’s illness were untrue and offensive. In that connection, she criticises the Parliament for submitting that medical report to Dr Lipsedge without a copy of Mr Vainker’s letter of 5 November 1998. In her view, had the letter been attached it would have put any reader on notice to treat any report of Dr Van Acker with caution. Furthermore, the Parliament’s fault is compounded by failing to include Dr Van Acker’s report in the list of documents submitted to Dr Lipsedge and by failing to supply the report to Mr Vainker’s doctor, Dr Rehling, who was to sit on the Medical Committee. 197 What is more, she understands that the Parliament also permitted to be circulated within its confines, for translation purposes, Dr Van Acker’s medical report containing those untrue and offensive comments without Mr Vainker’s letter of 5 November 1998 being attached to it. As a result Mrs Vainker’s reputation has been seriously diminished, thus causing suffering. 198 Moreover, Mrs Vainker points out that, towards the end of the year 2000, in large part as a result of the highly stressful time that they have endured because of the above events over the last few years, she and her husband have separated. 199 In conclusion, the past three years have caused Mrs Vainker considerable anxiety as she has had to care for her husband who has at times seemed to her to be suicidal. In addition, she has had to care for their three children who have inevitably been adversely affected by their father’s protracted illness. In her endeavour to pursue her husband’s claim for recognition of the occupational nature of his disease and in the knowledge from conversations with her husband’s doctor, Dr Rehling, that Mr Vainker could not make any sort of recovery until the procedure had been completed, she has had to deal with very trying circumstances in attempting to make the Parliament expedite the matter. 200 She submits that the conduct of the Parliament has caused her material and non-material damage. Consequently, she has required the support of a clinical psychologist, who in December 1998 diagnosed her as suffering from clinical depression, caused both by her husband’s deteriorating psychological state and the lack of resolution of his claim for compensation. Details of the condition of Mrs Vainker are to be found in the report of Dr Van Rooyen of 10 December 1998. 201 Therefore, Mrs Vainker claims compensation for the material and non-material damage caused to her and her non-reimbursed medical expenses relating to her psychotherapy sessions. 202 The Parliament contends essentially that the damage alleged by Mrs Vainker is the result of the occupational disease of her husband and that such damage does not constitute part of the harm for which an institution may be held liable in its capacity as employer (Leussink). 203 It follows from Mrs Vainker’s own statement that the past three years have caused her considerable anxiety as she has had to care for Mr Vainker and for their three children. It is also clear from her own statement that she took upon herself, on her own initiative, the task of pursuing Mr Vainker’s claim. 204 The Parliament accepts that, in actively assisting her husband in his contacts with the Parliament, Mrs Vainker may, herself, have become deeply and personally involved in the matter. However, the Parliament contends that the fact that she chose, voluntarily, to support her husband in his dealings with the Parliament does not, on its own, mean that it can be held in any respect directly liable, vis-à-vis Mrs Vainker. 205 The Parliament further contends that Mrs Vainker has failed to establish any unlawful conduct on the part of the Parliament which could have caused the alleged damage to her health and well-being. 2. Findings of the Court 206 Mrs Vainker claims payment of damages of EUR 50 000 by way of compensation for material and non-material damage allegedly caused to her by the Parliament during the procedure for recognition of the occupational nature of the disease of her husband, Mr Vainker, and for the fixing of the lump sum payment. She also claims payment of damages of GBP 1 145 by way of reimbursement of otherwise non-reimbursable medical expenses incurred for psychotherapy. 207 It must be acknowledged, as a preliminary point, that the repercussions on Mr Vainker’s health of the irregularities recorded on the part of the Parliament during the procedure may have been the source of certain adverse effects on Mrs Vainker. That is clear inter alia from the report by Dr Van Rooyen of 10 December 1998. 208 However, the Court finds that Mrs Vainker has not succeeded in establishing a causal link between the wrongful conduct of the Parliament during the procedure and the damage she alleges to have suffered. 209 Although it cannot be disputed that Mrs Vainker had direct contact with the institution in an effort to bring about progress in the procedure, it must be observed that the only person that procedure concerned was her husband, Mr Vainker. Moreover, it must be held that Mrs Vainker has not succeeded in establishing that the Parliament’s actions were the direct cause of the damage alleged. The existence of a causal link between the abovementioned facts alleged against the Parliament by Mrs Vainker and the damage she alleges cannot, therefore, be accepted. 210 Against that background, although there can be no doubt about the reality of the damage described by Mrs Vainker or about the existence of a link with her husband’s illness, they are nevertheless the indirect result of the injury suffered by Mr Vainker and do not constitute part of the harm for which the Parliament may be held liable in its capacity as employer (Leussink, cited above, paragraph 22). 211 As regards the alleged distribution of Dr Van Acker’s report for the purposes of translation, it must be observed that the Parliament cannot be held liable for an irregularity by reason of the forwarding of a medical report to its translation services, given that its officials, including those assigned to its translation service, are bound under Article 17 of the Staff Regulations by a duty of discretion with regard to the facts and information coming to their knowledge in the course of or in connection with the performance of their duties. 212 It follows from the foregoing that Mrs Vainker’s claim must be rejected. Costs 213 Under Article 87(3) of the Rules of Procedure, the Court may order that costs be shared or that each party is to bear its own costs if each party succeeds on some and fails on other heads. As the Parliament has failed on some heads, and having regard to the circumstances of the case, it must be ordered to bear its own costs and two thirds of the costs of the applicants. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber), hereby: 1. Orders the Parliament to pay Mr Vainker the sum of EUR 60 000. 2. Orders the Parliament to pay the applicant, Mr Vainker, the sum of GBP 8 244.94 by way of reimbursement of legal costs incurred during the procedure for recognition of the occupational origin of Mr Vainker’s disease. 3. Orders the Parliament to pay the applicant, Mr Vainker, default interest on the sum of EUR 617 617.94 from 29 November 1999 to 9 January 2002. The rate of that interest must be calculated on the basis of the rate fixed by the European Central Bank for its main refinancing operations, in force from time to time during the period concerned, plus two percentage points. 4. Dismisses the remainder of the application. 5. Orders the Parliament to pay its own costs and two thirds of those of the applicants. Forwood Pirrung Meij Delivered in open court in Luxembourg on3 March 2004. H. Jung J. Pirrung Registrar President Table of contents Legal background Background to the dispute Procedure and forms of order sought Admissibility Substance A – Preliminary observations B – The request for reparation of the damage suffered by Mr Vainker by reason of the fact that he is suffering from an occupational disease caused by the alleged conduct of the Parliament 1. The unlawful conduct of the Parliament a) Arguments of the parties b) Findings of the Court Mr Vainker’s workload Practices in the Legal Service The possibility of a transfer for Mr Vainker Conclusion C – The claim for compensation for the material and non-material damage suffered by Mr Vainker as a result of the irregularities allegedly attributable to the Parliament in the procedure for recognition of the occupational origin of his disease 1. The unlawful conduct of the Parliament a) Arguments of the parties b) Findings of the Court The first part of the plea, alleging irregularities in the procedure – Preliminary observations – The first submission: the inadequacy of the first report following the inquiry – The second submission, that the first report on the inquiry was not sent to Mr Vainker in time – The third submission, that false information was given – The fourth submission, that the second report on the inquiry was defective – The fifth submission, that no details were given to the doctor appointed by the institution for the purposes of the procedure The second part of the plea, that the procedure was unduly lengthy 2. Damage and causal link a) Arguments of the parties b) Findings of the Court Preliminary observations The non-material damage Legal costs D – The claim for payment of default interest 1. Arguments of the parties 2. Findings of the Court E – The claims for compensation for the damage allegedly suffered by Mrs Vainker 1. Arguments of the parties 2. Findings of the Court Costs 1 – Language of the case: