61977CJ0152_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 152/77
MISS B ., AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY L . JACONIS AND G . BETTONI, ADVOCATES AT THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CENTRE LOUVIGNY B/IV, 34 RUE PHILIPPE II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIORGIO PINCHERLE, ACTING AS AGENT, AND WILMA VISCARDINI, ADVOCATE AT THE PADUA 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, PRINCIPALLY FOR AN ORDER FOR THE COMMISSION TO PAY TO THE APPLICANT UNDER ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS AN INVALIDITY BENEFIT CORRESPONDING TO 100% INVALIDITY,
Grounds
1 THE APPLICATION LODGED ON 16 DECEMBER 1977 SEEKS TO OBTAIN PAYMENT TO THE APPLICANT OF AN INVALIDITY BENEFIT UNDER ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS IN RESPECT OF PERMANENT INVALIDITY RESULTING FROM THE ACCIDENT WHICH SHE SUSTAINED ON 3 JANUARY 1968 IN THE COURSE OF HER EMPLOYMENT WITH THE COMMISSION .
2 THE QUESTION OF THE DEGREE OF INVALIDITY RESULTING FROM THAT ACCIDENT FIRST FORMED THE SUBJECT OF ARBITRATION PROCEEDINGS . DR VITA OF MILAN, WHO WAS APPOINTED TO ACT AS ARBITRATOR WITH THE AGREEMENT OF BOTH PARTIES, FOUND IN AN OPINION GIVEN ON 21 FEBRUARY 1975 THAT THE INJURY GIVING RISE TO COMPENSATION WAS TO BE ASSESSED AT 15% OF THE MAXIMUM SUM ASSURED . THE APPLICANT CLAIMED THAT THAT OPINION WAS NOT APPROPRIATE ON THE GROUND THAT IT ONLY TOOK ACCOUNT OF THE BODILY INJURY SUFFERED TO THE EXCLUSION OF THE INJURY OF A MENTAL NATURE . THE PARTIES SUBSEQUENTLY AGREED TO ASK ANOTHER DOCTOR, DR BELLINI OF LATINA, TO ACT AS ARBITRATOR AND TO GIVE A MEDICO-LEGAL OPINION ON THE QUESTION WHETHER IT WAS ' ' NECESSARY TO FIX A DEGREE OF PARTIAL PERMANENT INVALIDITY, IN ADDITION TO THAT OF 15% ALREADY DETERMINED, IN RESPECT OF POSSIBLE INJURIES OF A MENTAL NATURE RESULTING DIRECTLY AND EXCLUSIVELY FROM THE ACCIDENT ' ' . IF SO, DR BELLINI WAS TO FIX THAT DEGREE OF INVALIDITY .
3 IN HIS REPORT OF 26 OCTOBER 1976 DR BELLINI CONCLUDED THAT DR VITA ' S MEDICAL REPORT HAD NOT TAKEN ACCOUNT OF THE MENTAL INJURIES WHICH, AS THEY DERIVED
DIRECTLY AND EXCLUSIVELY FROM THE APPLICANT ' S ACCIDENT, HAD RESULTED IN ' ' TOTAL PERMANENT INVALIDITY ' ' .
4 IN A LETTER OF 1 DECEMBER 1976 TO THE COMMISSION THE APPLICANT ASKED FOR THE ARBITRATION AWARD TO BE IMPLEMENTED . AS THE COMMISSION DOUBTED WHETHER DR BELLINI ' S CONCLUSIONS WERE APPROPRIATE HAVING REGARD TO ARTICLE 73 OF THE STAFF REGULATIONS IT DID NOT COMPLY WITH THAT REQUEST . WHEN NO REPLY WAS RECEIVED TO THE COMPLAINT THROUGH OFFICIAL CHANNELS SUBMITTED BY THE APPLICANT SHE LODGED THE PRESENT APPLICATION WITHIN THE TIME-LIMITS PRESCRIBED BY THE STAFF REGULATIONS .
ADMISSIBILITY
5 WITHOUT PUTTING FORWARD A FORMAL PLEA OF INADMISSIBILITY THE COMMISSION HAS POINTED OUT THAT IN OCTOBER 1977 THE APPLICANT HAD ACCEPTED A PROPOSAL BY THE COMMISSION FOR A FURTHER QUESTION TO BE PUT TO DR BELLINI IN ORDER TO CLARIFY THE MEANING AND SCOPE OF HIS EARLIER REPORT . SHE THEREFORE BY IMPLICATION CONSENTED TO THE REOPENING OF THE ARBITRATION PROCEDURE, AS A RESULT OF WHICH HER REQUEST BECAME DEVOID OF PURPOSE .
6 THE COURT CANNOT ACCEPT THAT ASSESSMENT OF THE APPLICANT ' S CONDUCT OR THE CONCLUSIONS DRAWN BY THE DEFENDANT AS REGARDS HER INTEREST IN BRINGING THE ACTION . ALTHOUGH IT IS TRUE THAT THE APPLICANT AGREED THAT AN ADDITIONAL QUESTION BE PUT TO DR BELLINI SHE DID NOT APPROVE THE TERMS OF THE QUESTION ACTUALLY PUT BY THE COMMISSION . IN THOSE CIRCUMSTANCES IT CANNOT BE CLAIMED THAT THERE WAS AGREEMENT BETWEEN THE PARTIES TO REOPEN THE ARBITRATION PROCEDURE . THAT PROCEDURE WAS TERMINATED BY THE REPORT OF 26 OCTOBER 1976, WHICH IS THEREFORE THE FINAL BASIS FOR DETERMINING THE RECIPROCAL RIGHTS AND OBLIGATIONS OF THE PARTIES . THE SUBSEQUENT CORRESPONDANCE AND NEGOTIATIONS WHICH TOOK PLACE BETWEEN THEM HAVE NOT SERVED TO ALTER THAT SITUATION . THE APPLICANT ' S COMPLAINT THROUGH OFFICIAL CHANNELS AND HER APPLICATION IN FACT CONCERN THE SUBJECT-MATTER OF THE ORIGINAL REQUEST AND THE APPLICATION, WHICH WAS LODGED WITHIN THE PRESCRIBED TIME-LIMITS, IS ADMISSIBLE .
SUBSTANCE
7 THE APPLICANT SEEKS, PRINCIPALLY, THE IMPLEMENTATION OF THE ARBITRATION AWARD BY DR BELLINI IN THE REPORT OF 26 OCTOBER 1976 AND, ACCORDINGLY, THE PAYMENT OF AN AMOUNT CORRESPONDING TO 100% INVALIDITY MINUS THE AMOUNT ALREADY PAID WHICH CORRESPONDS TO THE 15% INVALIDITY RECOGNIZED BY THE FIRST ARBITRATION AWARD . IN THE ALTERNATIVE THE APPLICANT SEEKS PAYMENT OF AN AMOUNT CORRESPONDING TO 60% INVALIDITY IN ADDITION TO THE 15% ALREADY RECOGNIZED . THE COMMISSION CONTENDS THAT THE COURT SHOULD DISMISS BOTH THE APPLICANT ' S PRINCIPAL AND ALTERNATIVE CLAIMS AND, IN THE ALTERNATIVE, SHOULD FIX A DEGREE OF INVALIDITY WHICH IS HIGHER THAN THE 15% ALREADY RECOGNIZED .
8 IT MUST BE STATED FIRST OF ALL THAT THE ARBITRATORS '
OPINIONS IN QUESTION WERE GIVEN BY VIRTUE OF A CLAUSE IN THE INSURANCE POLICY TAKEN OUT BY THE COMMISSION IN THE PERIOD BEFORE THE ADOPTION OF RULES FOR THE IMPLEMENTATION OF ARTICLE 73 OF THE STAFF REGULATIONS AND APPLICABLE AT THE TIME OF THE EVENTS GIVING RISE TO THE PRESENT APPLICATION . THE ARBITRATION PROCEDURES FOLLOWED THE PROPER COURSE AND THE OPINIONS OF THE ARBITRATORS, IN PARTICULAR THAT OF DR BELLINI OF 26 OCTOBER 1976, THUS FORM THE LEGAL BASIS FOR THE RELATIONSHIPS BETWEEN THE PARTIES IN THE MATTER IN DISPUTE IN SO FAR AS THEY DO NOT EXCEED THE LIMITS OF THE COMMISSION ' S OBLIGATIONS UNDER ARTICLE 73 . THE DISAGREEMENT BETWEEN THE PARTIES CONCERNS, FIRST, THE CONCEPT OF INVALIDITY WITHIN THE MEANING OF THAT ARTICLE AND, SECONDLY, THE MEANING AND SCOPE OF DR BELLINI ' S OPINION .
9 AS REGARDS THE CONCEPT OF INVALIDITY WITHIN THE MEANING OF ARTICLE 73 IT IS NOT DISPUTED THAT IN ADDITION TO PHYSICAL INJURIES THAT CONCEPT INCLUDES INJURIES OF A MENTAL NATURE . THE PARTIES DIFFER, HOWEVER, OVER THE QUESTION WHETHER THESE DISORDERS WHICH DO NOT DIRECTLY AFFECT THE MENTAL FACULTIES BUT ONLY CONCERN THE EMOTIONS MAY BE TAKEN INTO ACCOUNT .
10 IN THAT CONNEXION IT MUST BE SAID THAT THERE ARE NO GROUNDS FOR GIVING THE CONCEPT OF INVALIDITY A RESTRICTIVE INTERPRETATION . WITHIN THE MEANING OF THE ARTICLE IN QUESTION AN INVALID MUST BE REGARDED AS A PERSON WHO AS A RESULT OF AN ACCIDENT OR AN OCCUPATIONAL DISEASE IS TOTALLY OR PARTIALLY UNABLE TO LEAD A NORMAL ACTIVE LIFE . IF AN EXPERT MEDICAL ASSESSMENT ESTABLISHES THAT A MENTAL
INJURY WHICH ONLY AFFECTS THE EMOTIONS SATISFIES THAT CONDITION THERE IS NOTHING TO PREVENT ITS BEING CONSIDERED AS FALLING WITHIN THE CONCEPT OF INVALIDITY WITHIN THE MEANING OF ARTICLE 73 OF THE STAFF REGULATIONS . THE FACT THAT INJURIES OF THAT NATURE DO NOT APPEAR IN THE TABLE OF DEGREES OF PARTIAL PERMANENT INVALIDITY ANNEXED TO THE INSURANCE POLICY IS OF NO RELEVANCE IN THIS CONNEXION . LIKE ANY OTHER CASE FOR WHICH NO PROVISION IS MADE IN THE TABLE THE QUESTION OF SUCH AN INJURY MUST BE RESOLVED BY FIXING THE DEGREE OF INVALIDITY BY ANALOGY WITH THOSE CASES FOR WHICH EXPRESS PROVISION IS MADE .
11 IT MUST THEREFORE BE CONCLUDED IN THIS INSTANCE THAT DR BELLINI ' S REPORT, AS SUPPLEMENTED BY HIS EVIDENCE BEFORE THE COURT, DID NOT EXCEED THE LIMITS OF ARTICLE 73 OF THE STAFF REGULATIONS WHEN IF FOUND THAT, IN ADDITION TO THE PHYSICAL INJURY ASCERTAINED BY THE FIRST DOCTOR TO ACT AS ARBITRATOR, THE APPLICANT WAS AFFECTED BY PERMANENT INVALIDITY IN THE EMOTIONAL SPHERE .
12 THE COMMISSION MAINTAINS, HOWEVER, THAT IN ASSESSING THAT INVALIDITY AS TOTAL DR BELLINI APPLIED A CRITERION WHICH IS FOREIGN TO ARTICLE 73, THAT IS, THE APPLICANT ' S CAPACITY FOR WORK . ACCORDING TO THE COMMISSION THAT ARTICLE MUST BE INTERPRETED AS RELATING TO THOSE RISKS OF ACCIDENT WHICH AFFECT THE BODILY OR MENTAL HEALTH OF OFFICIALS, IRRESPECTIVE OF REPERCUSSIONS ON THEIR CAPACITY FOR WORK . THE APPLICANT, ON THE OTHER HAND, MAINTAINS THAT ARTICLE 73 MUST BE INTERPRETED AS RELATING TO INCAPACITY FOR WORK .
13 THE CHOICE BETWEEN THOSE TWO DIFFERENT INTERPRETATIONS OF ARTICLE 73, NEITHER OF WHICH IS POSITIVELY SUPPORTED BY THE WORDING OF THAT PROVISION, MUST BE DETERMINED BY THE POSITION OF THAT PROVISION WITHIN THE SOCIAL SECURITY SYSTEM OF OFFICIALS .
14 IN THIS CONNEXION IT IS ESSENTIAL TO POINT OUT, FIRST, THAT THE INVALIDITY BENEFIT PROVIDED FOR IN ARTICLE 73 DIFFERS FROM THE INVALIDITY PENSION PROVIDED FOR IN ARTICLE 78, WHICH IS ONLY AWARDED IN THE CASE OF INCAPACITY FOR WORK . THE BENEFIT PROVIDED FOR IN ARTICLE 73, ON THE OTHER HAND, IS PAID WHATEVER THE CAPACITY OF THE PERSON CONCERNED TO CONTINUE TO PERFORM HIS DUTIES . PARTIAL PERMANENT INVALIDITY GIVES RISE TO A RIGHT TO THE BENEFIT EVEN IF IT DOES NOT IN ANY WAY AFFECT THE ABILITY OF THE PERSON CONCERNED TO PERFORM HIS DUTIES .
MOREOVER, THE DEGREE OF INVALIDITY, WHICH IS ONE OF THE FACTORS WHICH DETERMINES THE AMOUNT OF THE BENEFIT, IS FIXED AT FLAT RATES IN ACCORDANCE WITH A GENERAL SCALE WHICH DOES NOT TAKE ACCOUNT OF THE NATURE OF THE OFFICIAL ' S EMPLOYMENT . A GIVEN CATEGORY OF INJURIES, WHICH IN ONE OFFICIAL AMOUNTS TO TOTAL INCAPACITY FOR WORK BUT DOES NOT AFFECT THE CAPACITY FOR WORK OF ANOTHER OFFICIAL, GIVES A RIGHT TO THE SAME BENEFIT IN EACH CASE . ALTHOUGH IT IS TRUE THAT IN A GENERAL WAY THE DEGREE OF INCAPACITY FOR WORK FORMS THE BASIS FOR THE DEGREES OF INVALIDITY FIXED BY THE SCALE IT CANNOT BE SAID THAT THAT HAS BEEN THE ONLY DECISIVE CRITERION AND IT IS IN ANY EVENT ESTABLISHED THAT THE DEGREE OF INCAPACITY IS OF NO IMPORTANCE IN DETERMINING, IN EACH PARTICULAR CASE, THE DEGREE OF INVALIDITY . IN THESE CIRCUMSTANCES ARTICLE 73 CANNOT BE INTERPRETED BY REFERENCE TO COMPARABLE PROVISIONS IN THE LAWS OF THE MEMBER STATES, SPECIAL FEATURES AND CONDITIONS OF APPLICATION WHEREOF ARE, MOREOVER, DIFFERENT FROM THOSE OF THE PROVISION IN DISPUTE . THE RESULT IS THAT INVALIDITY WITHIN THE MEANING OF ARTICLE 73 MUST BE INTERPRETED AS REFERRING TO THE IMPAIRMENT OF THE BODILY OR MENTAL HEALTH OF THE OFFICIAL IRRESPECTIVE OF ANY DEGREE OF INCAPACITY FOR WORK WHICH MAY RESULT FROM THE ACCIDENT .
15 IN THE PRESENT CASE IT FOLLOWS FROM DR BELLINI ' S REPORT OF 26 OCTOBER 1976 AS SUPPLEMENTED BY HIS EVIDENCE BEFORE THE COURT THAT THE TOTAL PERMANENT INVALIDITY ASCERTAINED BY HIM REFERS TO THE INCAPACITY FOR WORK . BEFORE THE COURT DR BELLINI HAS EXPLAINED, AS HE HAD PREVIOUSLY DONE IN CORRESPONDENCE WITH THE COMMISSION, THAT THE LOSS OF MENTAL HEALTH SUFFERED BY THE APPLICANT AS A RESULT OF HER ACCIDENT MAY BE EVALUATED AT 60% .
16 HAVING REGARD TO THE INTERPRETATION OF ARTICLE 73 SET OUT ABOVE THE LATTER IS THE DEGREE OF INVALIDITY WHICH MUST BE ACCEPTED AND ADDED TO THE FIGURE OF 15% ASCERTAINED BY THE FIRST ARBITRATOR AS REGARDS THE IMPAIRMENT OF THE APPLICANT ' S BODILY HEALTH .
17 IT ALSO FOLLOWS FROM THE EVIDENCE GIVEN BY DR BELLINI THAT THE DEGREE OF INVALIDITY ASCERTAINED BY HIM RESULTS SOLELY FROM THE ACCIDENT WHICH OCCURRED ON 3 JANUARY 1968, SO THAT THAT FIGURE NEED NOT BE REDUCED IN ORDER TO TAKE ACCOUNT OF ANY SUBSEQUENT CONTRIBUTORY CAUSES .
18 THE COMMISSION MUST THEREFORE BE ORDERED TO PAY THE APPLICANT THE AMOUNT CORRESPONDING TO 60% INVALIDITY, TO BE CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 73 OF THE STAFF REGULATIONS, IN ADDITION TO THE AMOUNT WHICH HAS ALREADY BEEN PAID TO HER ON THE BASIS OF A DEGREE OF INVALIDITY OF 15% .
INTEREST
19 THE APPLICANT ALSO SEEKS PAYMENT OF INTEREST AT THE RATE OF 5% ON THE AMOUNTS WHICH SHE CLAIMS AS DUE TO HER .
20 THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 26 FEBRUARY 1976 IN CASE 101/74 KURRER V COUNCIL ( 1976 ) ECR 259, AT P . 269, THAT SINCE THERE IS NO PROVISION OF THE STAFF REGULATIONS OR OF THE INSURANCE POLICY WHICH EXPRESSLY PROVIDES FOR THE PAYMENT OF INTEREST IT IS FOR THE APPLICANT TO ESTABLISH THAT THE DELAY IN PAYMENT OF THE ALLOWANCE CONSTITUTES A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT INSTITUTION WHICH HAS IN FACT CAUSED HIM DAMAGE .
21 THE BENEFIT PROVIDED FOR IN ARTICLE 73 IS ONLY PAYABLE AS FROM THE DATE ON WHICH THE DEGREE OF PERMANENT INVALIDITY HAS BEEN FINALLY FIXED . IN THIS INSTANCE THERE WAS NO DELAY ON THE PART OF THE COMMISSION IN PAYING THE BENEFIT CORRESPONDING TO THE PHYSICAL INJURY ONCE THE RELEVANT DEGREE OF INVALIDITY WAS FIXED BY DR VITA IN HIS ARBITRATION AWARD . AS REGARDS THE INJURY OF A MENTAL NATURE, THE DELAYS WHICH HAVE OCCURRED IN THE DETERMINATION OF THE DEGREE OF INVALIDITY ARE NOT SOLELY DUE TO NEGLIGENCE ON THE PART OF THE COMMISSION . IN PARTICULAR IT MUST BE REMEMBERED THAT DR BELLINI ' S REPORT OF 26 OCTOBER 1976 FIXING THE DEGREE OF INVALIDITY AT 100% WAS BASED UPON AN INTERPRETATION OF ARTICLE 73 OF THE STAFF REGULATIONS WHICH THE COURT HAS NOT ACCEPTED .
22 IT WAS NOT UNTIL 10 JANUARY 1978 THAT THE DEGREE OF INVALIDITY WAS FIXED IN SUCH A WAY AS TO ESTABLISH THE LIABILITY OF THE COMMISSION ON WHICH DATE DR BELLINI SENT A LETTER TO THE COMMISSION IN WHICH HE ASSESSED THE APPLICANT ' S LOSS OF MENTAL HEALTH AT 60% . IF IT HAS NOT BEEN POSSIBLE TO RESOLVE THE DIFFERENCE BETWEEN THE PARTIES ON THE BASIS OF THAT ASSESSMENT THAT IS PRIMARILY DUE TO THE APPLICANT ' S REFUSAL TO ACCEPT THE ASSESSMENT . THE COMMISSION IS THEREFORE NOT OBLIGED TO PAY INTEREST ON THE AMOUNT DUE .
Decision on costs
COSTS
23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . AS THE COMMISSION HAS, IN THE MAIN, FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE APPLICANT, MISS B ., BY WAY OF INVALIDITY BENEFIT THE AMOUNT CORRESPONDING TO A DEGREE OF INVALIDITY OF 60%, TO BE CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 73 OF THE STAFF REGULATIONS, IN ADDITION TO THE AMOUNT WHICH HAS ALREADY BEEN PAID TO HER ON THE BASIS OF A DEGREE OF INVALIDITY OF 15% .
2 . ORDERS THE COMMISSION TO BEAR THE COSTS .