61979CJ0107_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 107/79
LILY SCHUERER, A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 11 AVENUE ERNESTINE, BRUSSELS, REPRESENTED BY ERNEST ARENDT, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT, 34/B/IV RUE PHILIPPE II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALAIN VAN SOLINGE, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY DANIEL JACOB, 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 REVERSAL OF THE COMMISSION ' S DECISION OF 14 AUGUST 1978 AWARDING AN INVALIDITY PENSION TO THE APPLICANT ON THE BASIS OF THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS AND OF THE COMMISSION ' S DECISION OF 3 APRIL 1979 REJECTING THE ADMINISTRATIVE COMPLAINT SUBMITTED BY THE APPLICANT ON 5 OCTOBER 1978 UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS SEEKING ANNULMENT OF THE DECISION OF 14 AUGUST 1978 AND THE AWARD OF THE APPLICANT ' S PENSION ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS AND THE APPOINTMENT OF A BOARD OF MEDICAL EXPERTS,
Grounds
1 THIS APPLICATION, DATED 2 JULY 1979, HAS BEEN BROUGHT BY A FORMER OFFICIAL OF THE COMMISSION WHO WAS RETIRED ON 1 SEPTEMBER 1978 ON GROUNDS OF TOTAL INVALIDITY .
2 THE APPLICANT CLAIMS THAT THE COURT SHOULD REVERSE THE COMMISSION ' S DECISION OF 14 AUGUST 1978 AWARDING HER INVALIDITY PENSION UNDER THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS AND THE COMMISSION ' S DECISION OF 3 APRIL 1979 REJECTING THE COMPLAINT THROUGH OFFICIAL CHANNELS BROUGHT BY THE APPLICANT ON 5 OCTOBER 1978 UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS SEEKING ANNULMENT OF THE DECISION OF 14 AUGUST 1978 AND THE AWARD OF HER PENSION ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS . THE APPLICATION ALSO SEEKS THE APPOINTMENT OF A BOARD OF MEDICAL EXPERTS .
3 THE SECOND AND THIRD PARAGRAPHS OF ARTICLE 78 OF THE STAFF REGULATIONS OF OFFICIALS PROVIDE AS FOLLOWS :
' ' WHERE THE INVALIDITY ARISES FROM AN ACCIDENT IN THE COURSE OF OR IN CONNEXION WITH THE PERFORMANCE OF HIS DUTIES, FROM AN OCCUPATIONAL DISEASE, FROM A PUBLIC-SPIRITED ACT OR FROM RISKING HIS LIFE TO SAVE ANOTHER HUMAN BEING, THE INVALIDITY PENSION SHALL BE 70% OF THE BASIC SALARY OF THE OFFICIAL .
WHERE THE INVALIDITY IS DUE TO SOME OTHER CAUSE, THE INVALIDITY PENSION SHALL BE EQUAL TO THE RETIREMENT PENSION TO WHICH THE OFFICIAL WOULD HAVE BEEN ENTITLED AT THE AGE OF 65 YEARS IF HE HAD REMAINED IN THE SERVICE UNTIL THAT AGE ' ' .
4 ON 26 OCTOBER 1976 THE APPLICANT SUSTAINED A FALL ON A STAIRWAY AT THE COMMISSION IN BRUSSELS . THE APPLICATION STATES THAT :
' ' . . . ON THE OCCASION OF THE FALL SHE STRUCK HER CHEST ON THE EDGE OF THE TOP STEP ; SHE IMMEDIATELY FELT SEVERE CHEST PAINS ; SHE THEREAFTER EXPERIENCED PALPITATIONS AND SUFFERED FROM A SEVERE CARDIAC MALAISE, SHE IMMEDIATELY ATTENDED AT THE MEDICAL SERVICE OF THE COMMISSION . . . ' '
THE MEDICAL SERVICE DETECTED AN AURICULAR FIBRILLATION AND ORDERED HER TO CEASE WORK . THE APPLICANT CONCEDES THAT SHE DID NOT REPORT THIS ACCIDENT TO THE ADMINISTRATION .
5 ON 3 AUGUST 1978 THE INVALIDITY COMMITTEE WHICH WAS CONVENED ON THE INITIATIVE OF THE DEFENDANT AND WAS COMPOSED OF DR CALLEBAUT, APPOINTED BY THE COMMISSION, DR S ' JONGERS, APPOINTED BY THE APPLICANT, AND DR VENIORY, APPOINTED BY THE FIRST TWO DOCTORS, CONCLUDED :
' ' MRS SCHUERER ' S PERMANENT INVALIDITY, WHICH IS REGARDED AS TOTAL, MAY ARISE FROM AN ACCIDENT IN THE COURSE OF THE PERFORMANCE OF HER DUTIES BUT DOES NOT ARISE FROM AN OCCUPATIONAL DISEASE, FROM A PUBLIC-SPIRITED ACT OR FROM HAVING RISKED HER LIFE TO SAVE ANOTHER HUMAN BEING ' ' .
6 IN A SUPPLEMENTARY MEMORANDUM SENT TO THE DEFENDANT ON 8 JANUARY 1979 THE INVALIDITY COMMITTEE STATED THAT :
' ' THE PRINCIPAL FEATURE OF THE PATHOLOGICAL PICTURE PRESENTED BY MRS SCHUERER IS AN ILLNESS OF LONG STANDING AND WITHOUT ANY RELATIONSHIP OF CAUSE AND EFFECT TO THE PATIENT ' S WAY OF LIFE AND OFFICIAL DUTIES . AGAINST THAT BACKGROUND OF CHRONIC ILLNESS THERE OCCURRED A PAROXYSMAL ATTACK ON 26 OCTOBER 1976 . THAT PAROXYSMAL ATTACK, WHICH HAS CONTRIBUTED TO THE PATIENT ' S PRESENT STATE OF
INVALIDITY, OCCURRED ( ACCORDING TO THE PATIENT ), FOLLOWING THE ASCENT OF A STAIRWAY AT HER PLACE OF WORK AND FOLLOWING A STUMBLE ON THE TOP STEP . ALTHOUGH AN UNCERTAIN HYPOTHESIS, BOTH OF THOSE FACTS TOGETHER COULD AT BEST BE REGARDED AS THE EVENT POSSIBLY TRIGGERING OFF THE PAROXYSMAL ATTACK . . . WHICH COULD HAVE OCCURRED FORTUITOUSLY OR COINCIDENTALLY AT THE TIME OF ASCENDING THE STAIRWAY . . . IN MEDICINE IT IS OFTEN DIFFICULT TO REJECT THEORETICALLY THE HYPOTHESIS OF SOME LINK BETWEEN AN ACCIDENT CLAIMED BY THE PATIENT AND THE PATHOLOGY OF WHICH HE COMPLAINS . THESE LAST-MENTIONED CONSIDERATIONS WERE THE REASON FOR THE USE OF THE WORD ' MAY '
IN THE EARLIER REPORT OF THE INVALIDITY COMMITTEE ' ' .
7 AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 13 JULY 1972 IN CASE 29/71 VELLOZZI ( 1972 ) ECR 513, THE EXISTENCE OF AN OCCUPATIONAL DISEASE CAUSING TOTAL OR PARTIAL PERMANENT INVALIDITY OF THE OFFICIAL AND GIVING HIM THE RIGHT TO BENEFIT UNDER ARTICLE 73 OR ARTICLE 78 OF THE STAFF REGULATIONS AS THE CASE MAY BE MUST APPEAR CLEARLY AND PRECISELY FROM THE RELEVANT CONCLUSIONS OF THE INVALIDITY COMMITTEE REFERRED TO IN ARTICLE 13 OF ANNEX VIII TO THE STAFF REGULATIONS .
8 IT APPEARS FROM THE INVALIDITY COMMITTEE ' S FIRST REPORT, UPON WHICH THE DISPUTED DECISION OF 14 AUGUST 1978 IS BASED, THAT THE APPLICANT ' S INVALIDITY RESULTS NEITHER FROM AN OCCUPATIONAL DISEASE NOR FROM A PUBLIC-SPIRITED ACT NOR FROM HAVING RISKED HER LIFE TO SAVE ANOTHER HUMAN BEING, WHICH ARE THE SEVERAL CONDITIONS FOR THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS . AS FOR THE OTHER CONDITION FOR THE APPLICATION OF THAT PROVISION - AN ACCIDENT IN THE COURSE OF OR IN CONNEXION WITH THE PERFORMANCE OF AN OFFICIAL ' S DUTIES - THE REPORT DOES NOT RULE OUT THE INVALIDITY ' S BEING POSSIBLY THE RESULT OF SUCH AN ACCIDENT . THE SOMEWHAT AMBIGUOUS WORDING USED IN THAT REGARD WAS CLARIFIED BY THE SUPPLEMENTARY MEMORANDUM OF 8 JANUARY 1979 .
9 ACCORDINGLY, THE DEFENDANT MAY NOT BE CRITICIZED FOR HAVING INFERRED FROM THE FIRST INVALIDITY REPORT THAT A RELATIONSHIP OF CAUSE AND EFFECT BETWEEN THE ALLEGED ACCIDENT AND THE INVALIDITY HAD NOT BEEN ESTABLISHED AND FOR HAVING UNDERSTOOD THE PHRASE ' ' THE INVALIDITY . . . MAY ARISE FROM AN ACCIDENT IN THE COURSE OF THE PERFORMANCE OF HER DUTIES ' '
AS EXPLAINED IN THE SUPPLEMENTARY
MEMORANDUM, NAMELY, THAT ' ' IN MEDICINE IT IS OFTEN DIFFICULT TO REJECT THEORETICALLY THE HYPOTHESIS OF SOME LINK BETWEEN AN ACCIDENT CLAIMED BY THE PATIENT AND THE PATHOLOGY OF WHICH HE COMPLAINS . ' '
THUS, THE COMMISSION WAS JUSTIFIED IN TAKING ITS DECISION TO AWARD THE APPLICANT ' S PENSION ON THE BASIS OF THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS RELYING ON THE OPINION OF THE INVALIDITY COMMITTEE, SINCE THAT COMMITTEE HAD NOT FOUND THAT THE APPLICANT ' S INVALIDITY SATISFIED ANY ONE OF THE CONDITIONS FOR THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS .
10 IT DOES NOT APPEAR FROM THE FILE IN THE CASE THAT THE COMPOSITION OF THE INVALIDITY COMMITTEE OR ITS WORKING METHODS HAVE BEEN CALLED IN QUESTION BY THE APPLICANT . THE SAID COMMITTEE VALIDLY REACHED A DECISION IN THE LIGHT OF THE VARIOUS MEDICAL REPORTS SUBMITTED BY THE APPLICANT AND AFTER HER HAVING BEEN AN IN-PATIENT FOR FOUR DAYS IN A TEACHING HOSPITAL . IN THESE CIRCUMSTANCES ITS CONCLUSIONS MUST BE REGARDED AS FINAL AND MAY NOT BE DISPUTED IN THE ABSENCE OF ANY NEW MATTER OF FACT ARISING .
11 THAT NEW MATTER OF FACT MAY NOT CONSIST IN THE PRODUCTION BY THE APPLICANT OF MEDICAL CERTIFICATES CALLING IN QUESTION THE CONCLUSIONS OF THE INVALIDITY COMMITTEE BUT PUTTING FORWARD NO GROUND WHICH WOULD SUGGEST THAT THAT COMMITTEE DID NOT HAVE KNOWLEDGE OF THE PRINCIPAL FACTS CONTAINED IN THE APPLICANT ' S MEDICAL RECORDS .
12 THE APPOINTMENT OF A BOARD OF MEDICAL EXPERTS SHOULD THEREFORE NOT BE ORDERED AND THE APPLICATION MUST BE DISMISSED .
Decision on costs
13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
14 THE APPLICANT HAS FAILED IN HER SUBMISSIONS .
15 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES, INSTITUTIONS SHALL BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION .
2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .