61980CO0186_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 186/80 R
BENOIT SUSS, A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG, REPRESENTED BY ERNEST ARENDT OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS, 34 RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . DELMOLY, A MEMBER OF ITS LEGAL DEPARTMENT ACTING AS AGENT, ASSISTED BY R . ANDERSON OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE PURPOSE OF SECURING, BY MEANS OF AN INTERIM ORDER, A MODIFICATION OF THE COMPOSITION OF THE MEDICAL COMMITTEE SET UP IN PURSUANCE OF ARTICLE 23 OF THE RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE, AS WELL AS THE NOTIFICATION TO THE APPLICANT OF THE CONCLUSIONS OF THE INVALIDITY COMMITTEE REFERRED TO IN ARTICLE 9 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES AND OF A DETAILED STATEMENT OF THE CALCULATION OF HIS INVALIDITY PENSION,
Grounds
I - THE ADMISSIBILITY OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES
13 THE COMMISSION FIRST OF ALL SUBMITS THAT THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS INADMISSIBLE BECAUSE IT IS CONNECTED WITH A MAIN APPLICATION WHICH ALSO APPEARS TO BE PRIMA FACIE INADMISSIBLE . THAT INADMISSIBILITY IS DUE TO THE FACT THAT THE LATTER APPLICATION IS DIRECTED AGAINST THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT RESULTING FROM THE COMMISSION ' S FAILURE TO REPLY TO THE COMPLAINT THROUGH OFFICIAL CHANNELS LODGED BY THE APPLICANT ON 14 FEBRUARY 1980 AND NOT AGAINST THE LETTER OF 30 JANUARY 1980 WHICH IS IN FACT THE ACT ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS .
14 THIS OBJECTION CANNOT BE UPHELD AT THIS STAGE OF THE PROCEEDINGS . THE LETTER OF 30 JANUARY 1980 IS IN FACT PART OF A DISPUTE BETWEEN THE APPLICANT AND THE INSTITUTION WHICH HAS NOT YET BEEN SETTLED, SO THAT IT APPEARS TO BE UNCERTAIN WHETHER THE DOCUMENT CAN BE CLASSIFIED AS AN ACT ADVERSELY AFFECTING THE OFFICIAL WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES . THIS QUESTION, WHICH GOES TO THE SUBSTANCE OF THE CASE, CAN ONLY BE ANSWERED BY THE COURT WHICH ADJUDICATES UPON THE MAIN APPLICATION .
15 IN THE ALTERNATIVE THE COMMISSION PUTS FORWARD AN OBJECTION OF INADMISSIBILITY WITH REGARD TO THE APPLICANT ' S SECOND CLAIM, TO THE EFFECT THAT THE FULL REPORT OF THE INVALIDITY COMMITTEE, WHICH DECIDED HIS CASE, AND THE STATEMENT OF THE CALCULATION OF HIS PENSION ENTITLEMENTS SHOULD BE COMMUNICATED TO HIM . THE INSTITUTION TAKES THE VIEW THAT THAT REPORT FORMS PART OF A PROCEDURE SEPARATE FROM THAT ENVISAGED BY ARTICLE 73 OF THE STAFF REGULATIONS AND THAT IT THEREFORE HAS NO CONNEXION WITH THE PRESENT DISPUTE . FURTHERMORE IT POINTS OUT, AND THE ATTENTION OF THE APPLICANT WAS DRAWN TO THIS IN THE LETTER OF 30 JANUARY 1980, THAT THE MEMBERS OF THE MEDICAL COMMITTEE, ONCE IT HAS BEEN SET UP, WILL HAVE THE OPPORTUNITY TO ASK FOR THE COMPLETE FILE OF THE INVALIDITY COMMITTEE TO BE FORWARDED TO THEM . IN THIS RESPECT THE CLAIM IS THEREFORE PREMATURE .
16 ON THIS POINT THE COMMISSION ' S OBJECTION MUST BE UPHELD . IT SHOULD FIRST OF ALL BE STRESSED THAT, ALTHOUGH THE COMMUNICATION OF THE FILE OF THE INVALIDITY COMMITTEE IS MENTIONED IN THE COMPLAINT THROUGH OFFICIAL CHANNELS OF 14 FEBRUARY 1980, IT IS NOT ONE OF THE CLAIMS SET OUT IN THE MAIN APPLICATION . THERE IS MOREOVER NO DOUBT THAT AT THIS STAGE THE COMMUNICATION OF THE SAID FILE IS NOT MATERIAL SINCE THE INSTITUTION DOES NOT OBJECT TO ITS BEING COMMUNICATED TO THE MEDICAL COMMITTEE ONCE THAT COMMITTEE HAS BEEN SET UP . THIS HEAD OF CLAIM MUST THEREFORE BE STRUCK OUT AS IRRELEVANT AND IN ANY EVENT PREMATURE .
17 CONSEQUENTLY THE CONSIDERATION OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES MUST BE LIMITED TO THE MEASURES SOUGHT BY THE APPLICANT RELATING TO THE APPOINTMENT OF THE FIRST MEMBER OF THE MEDICAL COMMITTEE PROVIDED FOR BY ARTICLE 23 OF THE RULES .
II - THE APPOINTMENT OF THE FIRST MEMBER OF THE MEDICAL COMMITTEE
18 THE APPLICANT SUBMITS THAT DR DE MEERSMAN, APPOINTED BY THE INSTITUTION TO BE A MEMBER OF THE MEDICAL COMMITTEE, THE COMPOSITION OF WHICH IS DETERMINED BY ARTICLE 23 OF THE RULES, HAS ALREADY PREJUDGED THE ISSUE BECAUSE HE HAS ACTED AS ADVISER TO THE INSTITUTION, PURSUANT TO ARTICLES 18 AND 19 OF THE RULES, DURING THE EARLIER STAGE OF THE MATTER . SINCE THE MEDICAL COMMITTEE PERFORMS THE FUNCTION OF AN ' ' APPEAL COURT ' '
AS FAR AS DR DE MEERSMAN ' S EXPERT REPORT IS CONCERNED, HE CANNOT HIMSELF BE A MEMBER OF THE COMMITTEE ; IT IS A MATTER OF PRINCIPLE THAT ' ' NO ONE MAY BE JUDGE IN HIS OWN CAUSE ' ' . FURTHERMORE DR DE MEERSMAN IS AT THE SAME TIME MEDICAL OFFICER OF THE INSURANCE COMPANY WITH WHICH THE COMMISSION HAS INSURED ITS STAFF . THERE IS THEREFORE A DOUBLE INCOMPATIBILITY IN THE CASE OF THIS DOCTOR AND THE APPLICANT ASKS THE COURT TO ACKNOWLEDGE THIS SO AS TO CAUSE THE INSTITUTION TO APPOINT ANOTHER DOCTOR WHO MAY GIVE A COMPLETELY INDEPENDENT OPINION .
19 THE COMMISSION CONSIDERS THAT THIS REQUEST IS UNFOUNDED . IN ITS VIEW THE APPOINTMENT OF DR DE MEERSMAN WAS ESSENTIAL FOR THE VERY GOOD REASON THAT HE HAD ALREADY, BY MEANS OF THE EXPERT REPORT PREVIOUSLY DRAWN UP, ACQUIRED A THOROUGH KNOWLEDGE OF THE APPLICANT ' S STATE OF HEALTH . THE FACT THAT THE COMMISSION ' S CHOICE HAS BEEN APPROVED BY THE INSURERS IS EXPLAINED BY THE LEGITIMATE CONCERN TO MAKE THE DECISION TO BE TAKEN APPLICABLE TO THEM . FURTHERMORE THE APPLICANT FAILS TO UNDERSTAND THE PRINCIPLES GOVERNING THE COMPOSITION OF THE MEDICAL COMMITTEE IN QUESTION . PURSUANT TO ARTICLE 23 OF THE RULES BOTH THE INSTITUTION AND THE OFFICIAL CONCERNED ARE EACH ENTITLED TO APPOINT A DOCTOR IN WHOM EACH HAS CONFIDENCE . EACH PARTY MUST BE FREE TO CHOOSE THE DOCTOR WHOM IT APPOINTS TO REPRESENT IT ; THE IMPARTIALITY OF THE MEDICAL COMMITTEE, VIEWED AS A WHOLE, IS GUARANTEED INASMUCH AS EACH OF THE PARTIES IS ACCORDED AN EQUAL RIGHT OF CHOICE AND THE TWO DOCTORS THUS APPOINTED TOGETHER CHOOSE BY AGREEMENT A THIRD DOCTOR WHOSE INDEPENDENCE VIS-A-VIS THE PARTIES IS THUS ENSURED .
20 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT APPLICATIONS FOR THE ADOPTION OF INTERIM MEASURES MUST INTER ALIA ' ' STATE . . . THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR ' ' .
21 THE APPLICATION DOES NOT MEET EITHER OF THESE TWO REQUIREMENTS .
22 ON THE ONE HAND, THE APPLICANT HAS NOT SUCCEEDED IN PROVING THAT THERE IS ANY IMPENDING DAMAGE FOLLOWING THE APPOINTMENT OF THE INSTITUTION ' S EXPERT, SEEING THAT THE PROTECTION OF HIS INTERESTS IS IN FACT PROPERLY ENSURED BY THE PRESENCE ON THE MEDICAL COMMITTEE OF A DOCTOR IN WHOM HE HAS CONFIDENCE AND BY THE FACT THAT THE THIRD EXPERT MUST BE APPOINTED BY AGREEMENT BETWEEN THE DOCTOR IN WHOM THE APPLICANT HAS CONFIDENCE AND THE MEMBER APPOINTED BY THE INSTITUTION .
23 ON THE OTHER HAND, THERE IS NO URGENT REQUIREMENT FOR ACTION TO BE TAKEN AT THIS STAGE WHEREAS THE APPLICANT, IF HE WERE ULTIMATELY TO TAKE THE VIEW THAT HIS RIGHTS AND INTERESTS HAVE, FOR WHATEVER REASON, BEEN PREJUDICED, WILL BE ABLE TO BRING AN ACTION AGAINST ANY DECISION TAKEN BY THE INSTITUTION ON THE BASIS OF THE MEDICAL COMMITTEE ' S REPORT .
24 CONSEQUENTLY THIS HEAD OF CLAIM MUST ALSO BE REJECTED .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT OF THE SECOND CHAMBER, TAKING THE PLACE OF THE PRESIDENT OF THE COURT PURSUANT TO ARTICLE 96 ( 1 ) OF THE RULES OF PROCEDURE,
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .
2 . COSTS ARE RESERVED .