61979CJ0107(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 107/79 REV .
LILY SCHUERER, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 11 AVENUE ERNESTINE, BRUSSELS, REPRESENTED BY JEAN-NOEL LOUIS, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN
LUXEMBOURG AT THE CHAMBERS OF NICOLAS BECKER, 16 AVENUE MARIE-THERESE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY D . GOULOUSSIS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY R . ANDERSEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, PLATEAU DE KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE REVISION OF THE JUDGMENT OF 12 JUNE 1980 OF THE FIRST CHAMBER OF THE COURT DISMISSING THE APPLICANT ' S APPLICATION FOR A DECLARATION THAT HER PENSION SHOULD BE AWARDED ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS OF OFFICIALS .
Grounds
1 UNDER THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, AN APPLICATION FOR REVISION OF A JUDGMENT OF THE COURT MAY BE MADE ONLY ON DISCOVERY OF A FACT WHICH IS OF SUCH A NATURE AS TO BE A DECISIVE FACTOR, AND WHICH, WHEN THE JUDGMENT WAS GIVEN, WAS UNKNOWN TO THE COURT AND TO THE PARTY CLAIMING THE REVISION .
2 ARTICLE 100 OF THE RULES OF PROCEDURE PROVIDES THAT, WITHOUT PREJUDICE TO ITS DECISION ON THE MERITS, THE COURT SITTING IN THE DELIBERATION ROOM, AFTER HEARING THE ADVOCATE GENERAL AND HAVING REGARD TO THE WRITTEN OBSERVATIONS OF THE PARTIES, IS TO GIVE IN THE FORM OF A JUDGMENT ITS DECISION ON THE ADMISSIBILITY OF THE APPLICATION .
3 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT, FOLLOWING AN ACCIDENT ON 26 OCTOBER 1976, THE APPLICANT WAS GIVEN EMERGENCY TREATMENT BY DR CALLEBAUT, A DOCTOR ATTACHED TO THE COMMISSION, WHO ADVISED HER TO CONSULT HER OWN DOCTOR . AS HER OWN DOCTOR WAS ABROAD, DR CALLEBAUT ADVISED HER TO CONSULT PROFESSOR S ' JONGERS . IN HIS LETTER OF 22 NOVEMBER 1976, PROFESSOR S ' JONGERS COMMUNICATED TO THE COMMISSION DOCTOR THE RESULT OF THE CLINICAL EXAMINATION WHICH HE HAD CARRIED OUT AND WHICH LED HIM TO THE CONCLUSION THAT IT WAS NECESSARY FOR THE PATIENT TO WORK PART-TIME FOR A PERIOD OF TWO MONTHS . IN HIS SECOND LETTER OF 14 FEBRUARY 1977, HE EXPRESSED HIS VIEW THAT A FURTHER THREE MONTHS '
LEAVE WAS ESSENTIAL .
4 IT IS COMMON GROUND THAT AS FROM 3 DECEMBER 1976 THE APPLICANT WORKED PART-TIME AND THAT, SUBSEQUENTLY, SHE WAS GRANTED LEAVE OF THREE MONTHS WHICH WAS THEN RENEWED REGULARLY FOR THREE-MONTH PERIODS THROUGHOUT 1977 .
5 IN SUPPORT OF HER APPLICATION FOR REVISION THE APPLICANT CLAIMS THAT THE FACT THAT PROFESSOR S ' JONGERS HAD WRITTEN THE TWO ABOVE-MENTIONED LETTERS TO THE COMMISSION DOCTOR, WITHOUT HER KNOWLEDGE, IS OF SUCH A NATURE AS TO BE A DECISIVE FACTOR WHICH, WHEN THE JUDGMENT WAS GIVEN, WAS UNKNOWN TO THE COURT AND TO THE APPLICANT . THE LETTERS CONSTITUTED A BREACH OF MEDICAL CONFIDENTIALITY AND THAT OUGHT TO HAVE PRECLUDED PROFESSOR S ' JONGERS, WHO SENT THEM, AND DR CALLEBAUT, WHO RECEIVED THEM, FROM SITTING AS MEMBERS OF THE INVALIDITY COMMITTEE .
6 IT IS THEREFORE NECESSARY TO CONSIDER THE CIRCUMSTANCES IN WHICH THE LETTERS WERE SENT . AFTER THE APPLICANT ' S ACCIDENT, DR CALLEBAUT GAVE HER ALL THE EMERGENCY TREATMENT WHICH HER CONDITION REQUIRED . HOWEVER, AS DOCTOR ATTACHED TO THE COMMISSION ' S MEDICAL SERVICE, HE WAS OBLIGED TO ADVISE HER TO CONSULT ANOTHER DOCTOR . THE APPLICANT THEN CONSULTED PROFESSOR S ' JONGERS BECAUSE HER REGULAR DOCTOR WAS ABSENT . IT WAS THEREFORE HIS RESPONSIBILITY TO TAKE THE MEASURES WHICH THE PATIENT ' S CONDITION REQUIRED . HE CONSIDERED IT APPROPRIATE THAT, INITIALLY, THE APPLICANT SHOULD WORK PART-TIME AND SUBSEQUENTLY HE PRESCRIBED THREE MONTHS '
SICK LEAVE . IN SENDING THE LETTERS, PROFESSOR S ' JONGERS DID NOT ACT AGAINST THE PATIENT ' S WISHES . IT IS SOUND ADMINISTRATIVE PRACTICE FOR THE INSTITUTION WITH WHICH THE OFFICIAL IS IN SERVICE TO RECEIVE INFORMATION OF A GENERAL NATURE CONCERNING THE HEALTH REASONS FOR THE OFFICIAL WORKING PART-TIME OR BEING GRANTED SICK LEAVE . THE DOCTOR TREATING THE PATIENT CANNOT THEREFORE BE ACCUSED OF COMMITTING A BREACH OF MEDICAL CONFIDENTIALITY BY COMMUNICATING SUCH REASONS TO THE INSTITUTION .
7 IN THOSE CIRCUMSTANCES, THE COURT CONSIDERS THAT THE FACTS PUT FORWARD BY THE APPLICANT ARE NOT OF SUCH A NATURE THAT THEY WOULD HAVE BEEN A DECISIVE FACTOR IN THE RESULT OF THE ORIGINAL ACTION, IF THEY HAD BEEN KNOWN BEFORE THE JUDGMENT WAS GIVEN . THE APPLICATION FOR REVISION IS THEREFORE INADMISSIBLE AND MUST BE DISMISSED .
Decision on costs
COSTS
8 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS FAILED IN HER APPLICATION . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION FOR REVISION AS INADMISSIBLE ;
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .