61971C0029
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 29 JUNE 1972 (
1
)
Mr President,
Members of the Court,
The applicant in the proceedings in which I am today giving my opinion entered the service of the Commission of the European Economic Community in 1960. He is an official in Grade C3 (Principal Clerical Officer) and for some years was a technician in offset printing in the printing department of the Commission. However since 1964 the applicant has apparently repeatedly suffered from diseases of the respiratory organs which have kept him away from work and necessitated medical treatment. From February 1968 onwards he was also unfit for work for a long period. He himself believes that this was caused by working conditions in the printing department (working in a basement and contact with irritant solutions) and indeed with effect from 5 July 1968 he was transferred to the Directorate-General for Competition where he was given other duties (filing of documents, distribution of office materials etc.).
In view of the frequent illnesses of the applicant (from September 1965 until September 1968 he was on sick leave for more than twelve months) and in view of the provisions of the third subparagraph of Article 59(1) of the Staff Regulations whereby ‘the appointing authority may refer to the Invalidity Committee the case of any official whose sick leave totals more than twelve months in any period of three years’ the appointing authority decided in the autumn of 1968 to have the health of the applicant examined by an Invalidity Committee. The appropriate procedure was initiated by a letter sent to the President of the Court of Justice on 27 September 1968 whereby the President of the Court of the Court of Justice was asked to appoint a doctor in accordance with Article 7 of Annex II to the Staff Regulations. Once set up, the Invalidity Committee was instructed, in a letter of 25 October 1968 from the Director-General for Personnel and Administration, to examine ‘whether the party concerned is suffering from permanent invalidity which may be regarded as total and which prevents him from carrying out the duties of a post of his career bracket’. The results of the examinations carried out for this purpose were set out in reports of 5 December 1968 and 13 January 1969. They established that ‘the current state of health of Mr Vellozzi does not prevent him from working’. However it was also emphasized that it was necessary that ‘the work should be carried out in a place sheltered from the elements in healthy premises and in an atmosphere free from any substance which might irritate the respiratory organs’. Finally the report also stated that ‘without saying that they are the sole cause, it may in all fairness be accepted that the conditions in which Mr Vellozzi worked for eight years are largely the cause of his bronchitis’.
In view of this latter conclusion the applicant took the view that his illness was to be regarded as an occupational disease. Accordingly he submitted claims under Article 73 of the Staff Regulations, namely a claim for compensation for partial permanent invalidity and a claim for full reimbursement of medical and pharmaceutical expenses (that is the proportion of the expenses which was not covered by sickness insurance). Apparently he put forward this view—we do not have the details—in a letter sent to the Directorate-General for Personnel and Administration on 12 November 1970. Since this application met with no success, on 12 February 1971 he submitted a formal complaint in accordance with Article 90 of the Staff Regulations to the President of the Commission. With reference to the above-mentioned report of the Invalidity Committee of 5 December 1968 he argued that because of the very bad working conditions he had caught an asthmatic bronchitis. Accordingly it should be admitted that he was suffering from an occupational disease and all the medical expenses which he had already incurred or might incur in the future should be reimbursed. In addition on the basis of a certificate from the Institute of Forensic Medicine and Insurance of the University of Rome of 15 May 1970 showing partial invalidity of 40 %, he sought recognition of this partial invalidity.
As he received no answer to his complaint he made an application to the Court of Justice on 9 July 1971 and thereby initiated the present proceedings. With his application he submitted the report of a Belgian doctor of 6 April 1971 which ended with the statement that ‘the present degree of invalidity may be assessed at 30 % subject to review hereafter’.
On the basis of the contents of the complaint and the last-mentioned certificate, the applicant claimed in his application that the Court should:
1.
Declare null and void the implied rejection of the complaint through official channels of 12 February;
2.
Declare that the applicant suffers from 30 % invalidity;
3.
Order the Commission in accordance with Article 73 of the Staff Regulations to pay the medical and pharmaceutical expenses amounting to Bfrs 100000;
4.
Order the Commission in accordance with Article 73 (2) (c) of the Staff Regulations to pay compensation a-mounting to Bfrs 100000;
5.
In the alternative: order that an Invalidity Committee or another committee of experts be set up and that this body be given the task of deciding the degree of invalidity caused by occupational disease.
In view of the medical questions in issue (which the Commission alleges are not sufficiently clarified) but also because the applicant remained away from work for a considerable period because of illness (a total Of approximately 300 days from January 1969 until June 1971) the Commission took the view, after the initiation of proceedings, that an Invalidity Committee should be set up with the duty of clarifying these issues. To this end it sent a letter on 30 July 1971 to the President of the Court of Justice who immediately appointed a doctor, by a letter of 18 August 1971, in accordance with Article 7 of Annex II to the Staff Regulations. The applicant was also invited to appoint a doctor and did so by a letter lodged on 27 August 1971. In this letter it was also stated that ‘I cannot agree with the setting up of an Invalidity Committee unless it has full powers and in particular is able to determine the degree of invalidity for the purposes on Article 73 of the Staff Regulations’. By letters of 29 September 1971 and 15 October 1971 these doctors were given the duty by the appointing authority of examining whether the applicant did suffer from partial permanent invalidity and, if so, of determining the degree thereof in order that the compensation due could be settled in accordance with Article 73 of the Staff Regulations. In addition, in a letter from the Commission of 10 January 1972 the doctors were asked to decide ‘whether the medical and pharmaceutical expenses for which reimbursement is sought should be considered to be the consequence of the occupational disease from which Mr Vellozzi is suffering and are covered by Article 73(3) and if this is not the case, make a break-down of these costs according to their cause (whether caused by the occupational disease or not)’.
After the Invalidity Committee had been fully constituted, that is after the first two doctors appointed had ‘by agreement’ appointed a third doctor in accordance with Asticle 7 of Annex II to the Staff Regulations, the first meeting was fixed for 23 February 1972. However the applicand did not comply with the request contained in a letter of 18 February 1972 to present himself for examination. In a letter of 21 February 1972 he gave as his reasons that the duties of the Invalidity Committee were not clearly defined and that they should be in the terms sought by the applicant (that is to say, the existence of occupational disease on the basis of the report of 5 December 1968 should be admitted and all that remained to be determined was the degree of invalidity and the break-down of the medical and pharmaceutical expenses. The applicant also failed to comply with the request from the Head of the Medical Department of the Commission in a letter of 25 February 1972 to authorize the medical file to be set to the Invalidity Committee. On 23 March 1972 by his Counsel he justified his refusal on the ground of the confidential nature of the file and by reference to Article 26 of the Staff Regulations and Article 9 of Annex II to the Staff Regulations.
In view of this, the commission emphasizes its view that the applicant no longer has any legal interest in his action. It therefore seeks a ruling that the application has lost its purpose and that it should be rejected in its entirety as inadmissible and unfounded.
My opinion in this matter is as follows:
1.
In the first instance we must examine the application for the annulment of the implied rejection of the applicant's complaint of 12 February 1971. Since this application contains various requests it may be divided into several parts.
(a)
In the foreground there clearly stands the claim for admission of an occupational disease allegedly caused by working conditions in the printing department of the Commission. In the view of the applicant it is justified on the basis of the report of 5 December 1968 alone but the Commission regards this report as insufficient and therefore seeks a further examination of the applicant.
In examining this point it must first be clarified what the requirements are for establishing occupational disease under the Community law relating to officials. This problem has no simple solution since the Staff Regulations do not contain a definition and the implementing provisions of Article 73 of the Staff Regulations which are to contain further details have not yet been adopted. As always where there exists a lacuna in Community law we must make an attempt to deduce certain criteria on the basis of the text of Community law, by making reference to national law and, in the present case, by looking at the relevant recommendations of the Commission. In so doing we must not seek guidance in national systems containing lists of occupational diseases which establish a presumption for the causal connexion with the exercise of an occupation since they are designed for situations which are closely defined and in addition vary considerably from one another. Apart from these we may accept the Commission's definition (the applicant made no attempt to formulate one) and come to the following conclusions. Occupational diseases (in the public service) are those which occur in the course of and by reason of the performance of official duties and where it is established that the performance of those duties was the principal or the predominant cause of the disease or of the aggravation of an existing disease. At the very least reliable proof must be required that the performance of the duties is a cause and of course the proper judgment can only be made by qualified doctors. In respect of these requirements we may follow the Commission and make reference to the national legislation and case-law and the problem of occupational diseases in the public service (in so far as there is not a special system for officials as in German law). Reference may also be made to the recommendation of the Commission for the adoption of a European list of occupational diseases (JO 1962, p. 2188) and the Commission's recommendation on the requirements for compensation in the case of occupational diseases (JO 1966, p. 2696) since they also state that they must be ‘diseases which are principally caused by the occupational activity’ and they emphasize that it must be sufficiently shown that the diseases were caused by the occupation. Finally it is relevant that the draft of rules for implementing Article 73 of the Staff Regulations were also apparently drawn up on this basis.
However if we apply the principles so ascertained to the present case a number of objections may be raised against the applicant's view that the 1968 report is sufficient basis for the admission of a connexion between his sickness and his occupation.
It is also relevant that the duty of the Invalidity Committee at the time was to examine whether the applicant was permanently unfit for work within the meaning of Article 78 of the Staff Regulations. An examination of his state of health at that time (that is in December 1968) was therefore essential; emphasis was not however placed on finding the causes of any disease there might be. For that reason the Invalidity Committee did not undertake systematic tests of the applicant's allergy or of the solutions used but was content to rely on references to tests made in 1964 and 1966 (although the results of the first test were not known and the 1966 test apparently led to the conclusion that the plaintiff had no particular susceptibility). This also explains why the Invalidity Committee did not examine the question whether the applicant's work as a chauffeur from 1952 to 1958 (which also brought him into contact with irritant solutions) could have been a cause of the disease of the respiratory organs. Seen in this light it also becomes comprehensible that the somewhat incidental observations of the Invalidity Committee as to the causes of the disease are formulated in a very guarded and vague manner. I here refer to the statement ‘as to the etiology of the bronchitis, this is difficult to specify’. I also refer to the observations of the Invalidity Committee on the views of other doctors ‘who brought up the matter of solvent-based products used by Mr Vellozzi for some years in the course of his work’ that ‘this theory cannot be dismissed’ and I also refer to the sentence in the report: ‘on the other hand according to the evidence of the party concerned his work was carried out in humid and poorly ventilated premises which may have been a contributory cause of his bronchitis’. These must be taken into account in considering the conclusion drawn by the applicant and deciding what weight should be placed on the sentence ‘without saying that there are the sole cause, it may in all fairness be accepted that the conditions in which Mr Vellozzi worked for eight years are largely the cause of his bronchitis’. If these statements are viewed together then it can hardly be said that the report contains a definite assertion that the occupation of the applicant was a principal cause of his disease.
It must also be remembered that the report mentions that ‘lack of cooperation by the party concerned’ did not allow certain examination to be carried out properly. It is also expressly stated that the report was completed ‘without the undersigned doctors having been able to examine the medical file of the party concerned at the EEC’. It can thus be concluded that the examination was not as comprehensive as was thought necessary if a reliable statement of the cause of the disease was to be made. Finally it is also relevant that the report of another doctor of 6 April 1971 submitted by the applicant with his application only speaks in a very indefinite manner of ‘probability of allergy’ and states that the applicant has ‘an obstructive syndrome of an allergic nature which most probably relates to his previous occupation between 1960 and 1968’. Therefore in this report as well it is concluded that ‘closer examination would perhaps make it possible to determine exactly how the present illness started’.
Thus all these considerations hardly support the conclusion that the report of 5 December 1968 on its own is sufficient basis for the admission of the applicant's occupational disease. On the contrary we must rather accept the view of the Commission that further examinations are necessary (and of course all earlier medical documents are also relevant for the examination of the question of the cause). However it is thus clear that the rejection of the first point of the complaint lodged by the applicant cannot be challenged.
(b)
Secondly the applicant seeks in his official complaint payment of all the medical expense which he has already incurred or may incur in the future on the grounds that he had to have treatment for occupational disease and must continue to have such treatment. This claim must be seen in the context of head 3 of the application seeking that the Commission shall be ordered to pay medical and pharmaceutical expenses amounting to Bfrs 100000. The part of the original claim relating to expenses which may be incurred in the future has evidently been dropped.
However examination ot this claim snows immediately that even in its modified form it cannot be accepted. It is sufficient to refer to the previous statements which have shown that it must first be reliably determined whether the applicant has an occupational disease at all. What has to be clearly determined is whether Article 73 of the Staff Regulations is applicable, that is to say, the provision whereby an official suffering from occupational disease is entitled to recover even those expenses which are not covered under Article 72 of the Staff Regulations. In addition it must be stated even if the existence of occupational disease is admitted, it is not certain that all the expenses claimed by the applicant result from that disease. Thus even where the existence of occupational disease has been admitted it must in each case be determined by experts which of the expenses relate to its treatment. Only then it is possible to determine the extent of the claim.
Thus it is certain that the Commission was also justified in not allowing the second claim in the complaint and ordering a new examination to enable a proper solution to be found to the problem raised.
(c)
Thirdly and finally the applicant also claimed that he was suffering 40 % invalidity relying on a certificate from an institute in Rome. This claim is now also to be regarded in the context of the claims formulated in the application whereby admission of only 30 % invalidity is sought on the basis of another certificate.
Again it can be shown without difficulty that, even in this modified form, the application cannot be successful. The appointing authority is really under no obligation to admit an alleged disability solely on the basis of medical certificates submitted by officials. This is evident since an Invalidity Committee is provided for in the Staff Regulations (Annex II, Articles 7 and 9) composed of three doctors which is therefore able to make a judgment on a broader basis and therefore more objectively. This Committee is furthermore not restricted to determining the permanent total invalidity since Article 59 of the Staff Regulations provided in general terms that ‘the case of any official whose sick leave totals more than twelve months in any period of three years’ may be referred to it.
Consequently the Commission was justified in refusing to admit partial invalidity solely on the basis of the certificates submitted by the applicant and, especially as the report of the Invalidity Committee of 5 December 1968 only refers to ‘slight symptoms of bronchitis’, it was also justified in ordering the initiation of a fresh invalidity procedure.
(d)
Altogether it may be held that the first claim for the annulment of the rejection of the complaint must be dismissed as unfounded.
2.
A further result of these considerations is that the second claim for determination of the invalidity at 30 % also fails.
On the one hand it is clear that the appointing authority is not obliged to make such an admission on the basis of the certificates submitted by the applicant and, on the other, it is also that the Court of Justice is equally unable to make such a determination on insufficient evidence.
3.
For the reasons set out above there is not much to be said to the third claim that the Commission be ordered to pay pharmaceutical and medical expenses amounting to Bfrs 100000 in accordance with Article 73 of the Staff Regulations.
As we have seen the prerequisite to any ruling on this is that the applicant must be suffering from an occupational disease. However this cannot be determined by the Court on the basis of the documents submitted but solely by an Invalidity Committee such as that to which the Commission has referred the case afresh. In addition it is necessary in any case to specify the expenses and to determine exactly whether they relate in their entirety or only partly to a possible occupational disease. This task can of course not be accomplished in legal proceedings but must rest with the experts of the Invalidity Committee.
The only possible solution is therefore to reject the third head of claim as unfounded.
4.
The same evidently applies to the fourth head of claim that the Commission be ordered to pay compensation amounting to Bfrs 100000 under Article 73 of the Staff Regulations. As a necessary prerequisite for this is also the determination of the existence and the extent of the occupational disease which cannot be done in legal proceedings but in the invalidity proceedings, again the only possibility is to reject the claim as unfounded.
5.
There only remains the alternative application for an order that the Invalidity Committee should be given the task of determining the extent of the disability caused by the applicant's alleged occupational disease.
Since, as we have seen, an Invalidity Committee has in fact been constituted there remains only the legal question whether its task should be defined in the way that the applicant seeks or whether the Commission was correct in assigning to it the more extensive terms of reference set out in the statement of the facts. The answer to this question can be relatively short in view of the considerations set out above. A requirement for the answer suggested by the applicant would be that the existence of an occupational disease was clearly shown. However since this has not appeared from the above considerations and in fact a fundamental clarification must be obtained, then the applicant's contention in this respect as well must be rejected.
6.
Accordingly the application fails on every point.
In conclusion may I say therefore that this result which, incidentally in view of the legal arguments of the applicant does not permit part of his costs to be imposed on the Commission, does not stand in the way of the implementation of the invalidity procedure as ordered by the Commission, principally because the conditions of Article 59 of the Staff Regulations seem to have been fulfilled by the applicant again since the conclusion of the first invalidity procedure. The applicant has therefore every reason to comply with the invitation from the newly formed Invalidity Committee to submit to examination. He is further not justified in refusing his consent to the production of his medical file. It is immediately evident that reliance on Article 26 of the Staff Regulations which relates to a different situation is out of the question. The confidentiality of the file in the matter of invalidity proceedings is already ensured by the relevant special provisions (Article 9 of Annex II to the Staff Regulations) whereby the proceedings of the Committee shall be secret. On the other hand it is certainly necessary, as was made clear from the previous statements, that the Committee has all the evidence before it in order to complete its task properly. This must certainly include the documents contained in the medical file concerning the applicant for the purpose of examining whether there exists an occupational disease and for the purpose of any necessary break-down of medical expenses. In his own interest therefore the applicant should, in the course of the proceedings to be carried out, avoid everything which might be regarded as breach of the duty of loyalty and cooperation to which decided cases have frequently made reference (see for example Case 3/66, Alfieri v Parliament [1966] ECR 437 at p. 488).
7.
My opinion may therefore be summarized as follows:
The application made by Mr Vellozzi must be rejected in its entirety as unfounded.
In accordance with Article 70 of the Rules of Procedure the parties shall bear their own costs.
(
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)	Translated from the German.