61984C0118
OPINION OF ADVOCATE GENERAL
SIR GORDON SLYNN
delivered on 2 May 1985
My Lords,
Article 73 (1) of the Staff Regulations provides: ‘An official is insured, from the date of his entering the service, against the risk of occupational disease and of accident subject to rules drawn up by common agreement of the institutions of the Communities after consulting the Staff Regulations Committee’. The Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (‘the Insurance Rules’) lay down, pursuant to Article 73, the conditions under which officials are insured throughout the world against the risk of accident and of occupational disease. Article 3 of the Rules provides:
‘(1)
The diseases contained in the “European List of Occupational Diseases” annexed to the Commission Recommendation of 23 July 1962 (Journal Officiel 1962, No 80, p. 2188/62; no English version) and to any supplements thereto shall be considered occupational diseases to the extent to which the official has been exposed to the risk of contracting them in the performance of his duties with the European Communities.
(2)
Any disease or aggravation of a preexisting disease not included in the List referred to in paragraph 1 shall also be considered an occupational disease if it is sufficiently established that such disease or aggravation arose in the course of or in connection with the performance by the official of his duties with the Communities.’
A decision as to whether a disease is of an occupational nature is taken by the appointing authority on the basis of the findings of the doctor appointed by the institution, but only after notifying the official of the doctor's findings and the draft decision. The official has a right to ask for a medical committee of three doctors to be appointed, one of whom is chosen by him (Articles 19, 21 and 23 of the Rules).
By contract dated 28 January 1977 between the Community institutions on the one hand, and Royale belge SA and the other insurance companies which it represents in these proceedings on the other hand, it was agreed that the insurance companies would cover the financial consequences of the obligations undertaken by the Communities in respect of occupational accidents and illnesses of officials to whom Article 73 of the Regulations and the rules made under it applied. By Article 3 (3) of the contract, a draft decision which may lead to the payment of money must be shown to the insurers before being sent to the claimants in accordance with agreed procedures. Article 5 of the contract provides that any dispute between the parties can be submitted to the Court (i.e. under Article 181 of the EEC Treaty). The insurers agree, however, not to pursue that course as to any question of a medical nature when the decision of the appointing authority as to the financial rights of the claimant is in conformity with the finding of the doctor approved by the insurers or the medical committee appointed under Article 23 of the Rules. There is not, either in the Rules or in the contract, any express provision that the insurers may insist on having an applicant medically examined by the insurers' doctor, or on the case being referred to a medical committee before the appointing authority's decision is taken.
The case arises from the illness of a Commission official whom I shall refer to as Mr X. He entered the service of Euratom in 1962 and the EEC in 1964, working as an auxiliary agent. In 1968 he suffered a sharp drop in grade from auxiliary A I to temporary B 1. From January to December 1972 he went back to auxiliary A I. In January 1973 he was given a temporary contract in Grade A 6 Step 3. Later in 1973 he was made a probationer in that grade and step, and with effect from 1 April 1974 he was finally established in that grade and step. From July 1981 onwards it appears that the institution stopped giving him any work to do and no further periodical reports were made on him.
By a letter dated 19 May 1982 Mr X. made an application under Article 73 of the Staff Regulations and under the Insurance Rules on the grounds of an occupational disease. The Commission had him examined, first by a doctor nominated by the Commission, who found that he suffered, inter alia, from a depressive state and instability. Uncertainty in his career had clearly had an effect on his life. He advised that a psychiatrist be consulted. By letter dated 15 July 1982 the Commission asked Professor Duret-Cosyns, an expert in psychosomatic illnesses, to examine the applicant. The doctor gave her diagnosis as follows: Mr X. had been depressed since 1968. This state had been formally attributed by his different doctors to professional insecurity which objectively was extremely stressful and discouraging. His permanent appointment in 1974 might have put an end to his ailments, even with the disappointment of not reaching a post at the level to which he aspired, if it had come about in a ‘more normal’ time, but unfortunately, the anxious reacţionai depression had apparently crystallized in the meantime. The doctor found at the time of writing her report that Mr X.'s state was extremely serious: in addition to a basic depressive state partially controlled by the medicine which Mr X. was taking, that is to say antidepressants and medicine against anxiety, he was suffering from chronic diarrhoea. Furthermore, disorders of an obsessional kind had appeared (repetitive acts, obsessive ideas, complicated rituals for everyday gestures) which made him absolutely incapable of working. This neurotic type of aggravation had, in the doctor's view, been brought about by Mr X.'s forced inactivity dating back to July 1981. The doctor's conclusion was that Mr X.'s disease, consisting of chronic reacţionai depression, complicated by multiple functional disturbances and aggravated by obsessional neurosis, had to be considered as a disease of an occupational origin. The doctor gave as her opinion that Mr X.'s invalidity was total, that is to say it amounted to 100%.
A request from the Commission for further information on specific questions set out in a letter from Mr Reynier dated 9 December 1982 was replied to by Dr Duret-Cosyns on 18 December 1982. She says:
‘(1)
The 100% total invalidity corresponds, in my opinion, to Mr X.'s incurable mental illness resulting from the prolonged, stressful and discouraging professional insecurity which he has been subjected to, and from the total forced inactivity which has brought about a process of neurotic aggravation which is extremely serious in a man of his age.
(2)
I do not think that any concomitant external or personal factors can intervene in the 100% total invalidity. No factor of that kind appeared either in his medical file, as was clearly stated at page 2 of my report, or in the extremely thorough examination which I gave the person concerned.
(3)
The invalidity is total. The prognosis is wholly unfavourable since it is an incurable mental illness, as I said at point 1 above. In this connection, I wish to repeat that it is a disease which has been evolving for 14 years and that appreciable aggravation has occurred since 1981. Furthermore, in view of the type of pathology, and since it is an incurable illness, it does not seem to me that any improvement can occur when Mr X. is no longer faced with his present working environment.’
Although the insurers' agent, having seen Dr Duret-Cosyns' report, notified the Commission on 22 December 1982 that the insurers did not accept that Mr X. suffered from an occupational illness, they did not apparently ask for a doctor nominated by them to examine Mr X.
On 1 July 1983 the Commission sent Mr X a draft decision pursuant to Article 21 of the Insurance Rules, deciding that he could benefit from the application of Article 73 and the Insurance Rules and that his condition was recognized as an occupational disease for this purpose. The draft decision fixed the rate of permanent invalidity at 100% as from the date of his first incapacity for work, namely 21 June 1973. In application of Article 73 (2)(b) of the Staff Regulations the draft decision provided that he would be paid a lump sum of BFR 4352040. Mr X. was paid this sum on 23 August 1983. By a letter dated 30 November 1983 the Commission asked the insurance company Royale belge to cover it for this sum in execution of the insurance contract between them dated 28 January 1977. By a letter dated 13 December 1983 Royale belge refused to do so.
The defendants do not dispute the calculation of the amount paid to Mr X., but say that under Article 1 (1) of the insurance contract they were not obliged to refund the amount to the Commission since the Commission was not required to pay that amount to Mr X. by the Staff Regulations because Mr X.'s illness was not an ‘occupational disease’ within the meaning thereof.
The defendants have made two submissions as to the definition of ‘occupational disease’. First they say that for there to be an ‘occupational disease’ within the meaning of Article 3 (2) of the Insurance Rules it must be sufficiently established (1) that the disease or aggravation of a disease was caused by the working life of the official or, in other words, that there is a connection between the sickness and the occupation, and (2) that there is a sufficiently direct relationship between the disease on the one hand and on the other hand a specific and normal risk inherent in the duties which the official performed. The defendants rely in this respect on the Court's case-law as laid down in Case 257/81 K. v Council [1983] ECR 1, particularly paragraph 20 of the judgment at p. 12 and the Opinion at pp. 17 to 18, Case 189/82 Seiler v Council [1984] ECR 229, particularly paragraphs 16 and 17, and the Opinion of Mr Advocate General Roemer in Case 29/71 Vellozzi v Commission [1972] ECR 513 at p. 523. The defendants summarize this case-law in the proposition that there is an ‘occupational disease’ only where there is an occupation, or duties are performed, which create a risk of the disease from which the staff member is suffering, a risk over and above that to which the population generally is exposed.
Secondly, the defendants argue that Article 3 (2) of the Insurance Rules should not be extended too far. They say that Article 3 (1), which refers to the ‘European List of Occupational Diseases’ annexed to the Commission Recommendation of 23 July 1962, is the basic provision and Article 3 (2) merely serves to prevent hardship arising from the inevitable shortcomings of the List, by allowing a victim to prove the occupational origin of any disease not mentioned in the List. However, Article 3 (2) should be construed eiusdem generis with Article 3 (1) which lays down the basic rule and it should only be applied in the most exceptional cases. In spite of the express words of Article 3 (2), the defendants thus submit that it is not sufficient to establish that the illness arose or was aggravated in the course of or in connection with the performance by the official of his duties. It must further be asked (1) whether those duties inevitably involve in themselves or by reason of the unhealthy surroundings in which they must be performed the risk of contracting a specific disease and (2) whether that risk actually materialized. This second submission relies on the wording of the Commission Recommendation of 23 July 1962 and the subsequent Commission Recommendation of 20 July 1966 (No 66/462; Journal Officiel 1966, p. 2696; no English version).
Finally, the defendants consider the particular situation of Mr X. and say that the disease from which he suffers cannot be considered as an ‘ccupational disease’ within the meaning of Article 3 (2) of the Insurance Rules because it was not caused by his working life. In the defendants' submission the risk of the illness from which he suffers was not inherent in Mr X.'s job; it was actually an illness arising from Mr X.'s maladjustment to his situation.
As to the first of these submissions, the Commission argues that K. v Council and Vellozzi v Commission are irrelevant and that Seiler v Council, particularly paragraphs 18 and 22, implicitly reject the defendants' argument that the risk of the illness must be inherent in the occupation itself or in the surroundings in which it is carried out. The Commission relies on the wording of Article 3 (2) (‘any disease or aggravation ... ’) to argue that any disease whatsoever can qualify as an occupational disease as long as the causal link with the duties performed is established. The Commission says that this is borne out by the fact that the Annex to the Insurance Rules specifically mentions incurable insanity, whereas there are no specific duties within the Communities which present a risk of psychic disorders by reason of the abnormally pathogenic nature of the environment. Furthermore, the Commission argues that the defendants' first submission would have the result that officials carrying out administrative duties, who make up the vast majority of the beneficiaries of the insurance, would never be able to qualify as suffering from an occupational disease.
The Commission answers the defendants' second submission by saying that Article 3 (2) is perfectly clear and therefore may not be interpreted in terms of the Commission Recommendations of 1962 and 1966. Neither does Article 3 (2) have to be read subject to Article 3 (1). The two paragraphs set up separate rules. Under paragraph 1 the right to compensation is almost automatic once the official has established that he suffers from an illness on the List. The defendants are seeking to add an extra condition to paragraph 2, namely that the risk should be inherent in the duties, but such an additional condition is not justified by the terms of paragraph 2. It is sufficient for the purposes of paragraph 2 to show (a) that the applicant suffers from the illness and (b) that the illness is caused by his occupation. In this case the letters from Dr Duret-Cosyns establish that she found that Mr X.'s illness arose from his working life and that it was therefore an ‘occupational disease’ within the meaning of Article 3 (2) of the Insurance Rules. That is sufficient.
In my opinion it is plain that an applicant cannot succeed under Article 3 (1) unless the disease from which he suffers is included in the List referred to, and unless it can be shown that the applicant was exposed to the risk of contracting such a disease in the performance of his duties. Paragraph 2 of the article proceeds on a different basis. It covers ‘any’ disease or aggravation of a preexisting disease, which it is sufficiently established ‘arose in the course of or in connection with the performance by the official of his duties with the Communities’. It may be that, as a matter of medical science, some diseases can never be shown to be so caused. If so they will always be excluded. Other diseases may be capable of being so caused, but on the facts may not sufficiently be shown to have been so caused. In such a case the applicant fails. There is not, however, contrary to what the defendants submit, any a priori obligation on the applicant to show a specific risk inherent in the duties which the official performs. The sole question is one of causation ‘in the course of’ or ‘in connection with’ the performance of those duties. If that is established the applicant succeeds. It does not seem to me that the clear words of Article 3 (2) (which make no reference to the inherent likelihood of or possibility of a disease being caused) are to be cut down by reference to the recommendations of the Commission on which the defendants rely.
On this first argument I do not consider that the defendants are assisted by the cases which they cite. The remarks of Mr Advocate General Roemer in Vellozzi (at p. 523) were made prior to the adoption of the Insurance Rules, which are in issue here. As regards Case 257/81 K. v Council, firstly it is expressly stated in paragraph 10 of the judgment that ‘the Insurance Rules do not apply to this case’: the case concerned a request for invalidity pension under Article 78 of the Staff Regulations. Secondly, the case was concerned mainly with the procedure relevant to that request and, although the Court refers to occupational disease in paragraph 20 of its decision, the definition of ‘occupational disease’ was not in issue in the case. Finally, as regards Case 189/82 Seiler, paragraphs 16 and 17, relied on by the defendants, are less relevant to the point at issue than paragraph 22, where the Court says that it is the task of the medical committee ‘to examine whether or not the cardiac failure which caused the death of Mr Seingry was an aggravation of a preexisting disease and, if so, whether it is sufficiently established that such aggravation arose in the course of W in connection with the performance by the deceased official of his duties’.
The defendants' second submission cannot succeed either. In the light of the words ‘any disease ... not included in the List referred to in Article 3 (1)’, it cannot be maintained that Article 3 (2) must be read eiusdem generis with Article 3 (1) or with the List. On the contrary, it is expressly provided that ‘any’ disease qualifies if it fulfils the condition laid down. As the Commission rightly argued, Article 3 (2) is a separate provision which opens up a different area of entitlement from Article 3(1).
The essential question in this case is whether it can be shown that it was ‘sufficiently established’ that the illness from which Mr X. was suffering arose in the course of or in connection with the performance by him of his duties.
The Commission clearly acted on the basis of the expert opinion of Dr Duret-Cosyns in her two reports, no medical committee having been asked for by the applicant under Article 23 of the Insurance Rules and the insurers not having asked for him to be separately examined. Those reports are unequivocal. The illness was of occupational origin and resulted from the prolonged, stressful and discouraging professional insecurity to which he was subjected, without the intervention of any concomitant external or personal factors.
It does not seem to me that it can be said in this case that the expert was not given a sufficient indication as to her task. She was asked the right question, and elucidation was sought of relevant aspects of the question which she was asked to answer.
Nor can it be said from her reports that she approached her task in a way which was legally erroneous. There are two possibilities. One is that the illness or aggravation arose in ‘the course of’ the performance of the duties; the other is that it arose ‘in connection with’ the performance of the duties. It is accepted by both sides that the French text of the Rules ‘lorsqu'il est suffisamment établi qu'elle trouve son origine... à l'occasion de l'exercice des fonctions’ has a causative rather than a temporal connotation. It means the same as ‘in connection with’ in the English text, though I understand that the German text ‘anlässlich der Ausübung des Dienstes’ may be capable of a different meaning. ‘In connection with’ is clearly wider than ‘in the course of’, even though there must be a causal link between the illness and the activities. The prolonged insecurity and frustration giving rise to the disease were bound up with the work, and the aggravation which occurred from 1981 onwards arose from the fact that he was given no or virtually no work to do. It seems to me impossible to say that no reliance can be placed on any illness or aggravation of an illness caused by the failure to give him work, on the basis that these do not amount to ‘the performance by the official of his duties’. His obligation under his employment was to be available to do such work commensurate with his position as was given to him. To be required to be available but to do nothing is capable of constituting the performance of his duties for the purpose of Article 3 of the Rules.
In my opinion the doctor's opinion is not vitiated by any misdirection as to the relevant issues. Her medical opinion is conclusive as to the existence of the disease, its causal link with the performance of Mr X.'s duties and the extent of the invalidity. It follows that the defendants were not entitled to refuse to indemnify the Commission for the amount paid to Mr X. under Article 73 of the Staff Regulations.
The Commission also claims interest as from 23 August 1983, that is to say the date when it paid over the lump sum provided for in Article 73 of the Staff Regulations to Mr X. There appears to be no provision about interest in the insurance contract. However, the Commission did not ask the defendants to indemnify it until 30 November 1983. I am of the opinion that interest should run from 30 November 1983. For the time being the Court's practice is to award interest at 6%, though in my opinion, this rate should, in current conditions, be increased to 8%.
Accordingly, I am of the opinion that the Société anonyme Royale belge, acting in its own name and on behalf of the other companies which signed the insurance contract of 28 January 1977, is liable to pay the Commission the sum of BFR 4352040, with interest at 6% from 30 November 1983.