61987CJ0002_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 2/87
ERICH BIEDERMANN, AN OFFICIAL OF THE COURT OF AUDITORS, RESIDING AT 25 AM BOUNERT, RAMELDANGE ( GRAND DUCHY OF LUXEMBOURG ), ASSISTED AND REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 18A RUE DES GLACIS,
APPLICANT,
V
COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MICHAEL BECKER AND MARC EKELMANS, ACTING AS AGENT AND JOINT AGENT RESPECTIVELY, ASSISTED BY JEAN-AIME STOLL AS ADVISER, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS SEAT, 29 RUE ALDRINGEN,
DEFENDANT,
APPLICATION FOR THE ANNULMENT OF THE REPORT OF THE MEDICAL COMMITTEE OF 5 DECEMBER 1985 FIXING THE DEGREE OF INVALIDITY RESULTING FROM AN ACCIDENT SUFFERED BY THE APPLICANT, AND OF THE COURT OF AUDITORS' DECISION OF 8 OCTOBER 1986 REJECTING THE APPLICANT' S COMPLAINT IN WHICH HE REQUESTED THE ANNULMENT OF THE AFORESAID REPORT,
THE COURT ( FOURTH CHAMBER )
COMPOSED OF : G . C . RODRIGUEZ IGLESIAS, PRESIDENT OF CHAMBER, T . KOOPMANS AND C . KAKOURIS, JUDGES,
ADVOCATE GENERAL : J . L . DA CRUZ VILACA
REGISTRAR : P . HEIM
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 6 OCTOBER 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 27 OCTOBER 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 6 JANUARY 1987, ERICH BIEDERMANN, AN OFFICIAL OF THE COURT OF AUDITORS, BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE COURT OF AUDITORS ASSESSING THE DEGREE OF INVALIDITY SUFFERED BY HIM AT ONLY 9% AND OF THE REPORT OF THE MEDICAL COMMITTEE ON WHICH THAT DECISION WAS BASED AND FOR AN ORDER THAT A NEW MEDICAL COMMITTEE SHOULD RECOMMENCE FROM THE BEGINNING THE PREPARATION OF THE EXPERT OPINION, TAKING INTO ACCOUNT IN PARTICULAR THE PSYCHOLOGICAL SEQUELAE .
2 ON 8 DECEMBER 1980 THE APPLICANT WAS INVOLVED IN A TRAFFIC ACCIDENT WHICH RESULTED IN PERMANENT PARTIAL INVALIDITY ASSESSED AT 6% BY A DOCTOR CHOSEN BY THE DEFENDANT INSTITUTION IN ACCORDANCE WITH ARTICLE 18 OF THE RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE ( HEREINAFTER REFERRED TO AS "THE RULES ").
3 THE APPLICANT DID NOT ACCEPT THAT ASSESSMENT AND HE REQUESTED, PURSUANT TO ARTICLES 21 TO 23 OF THE RULES, THAT A MEDICAL COMMITTEE SHOULD BE CONSTITUTED TO DELIVER ITS OPINION ON THE DEGREE OF INVALIDITY TO BE DETERMINED . THE MEDICAL COMMITTEE WAS CONSTITUTED AND ASSESSED THE DEGREE OF INVALIDITY AT 9 %.
4 THE APPLICANT DID NOT AGREE WITH THE DEGREE OF INVALIDITY FIXED BY THE MEDICAL COMMITTEE AND SUBMITTED A COMPLAINT PURSUANT TO ARTICLE 90 OF THE STAFF REGULATIONS . HIS COMPLAINT WAS REJECTED BY THE DEFENDANT AND HE THEN BROUGHT THE PRESENT ACTION .
5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS, THE PROCEDURE BEFORE THE COURT AND THE SUBMISSIONS AND THE ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
6 IT IS NECESSARY AT THE OUTSET FOR THE COURT TO DECLARE OF ITS OWN MOTION THAT THE APPLICANT' S CLAIM THAT A NEW MEDICAL COMMITTEE SHOULD RECOMMENCE FROM THE BEGINNING THE PREPARATION OF THE EXPERT MEDICAL OPINION, TAKING INTO ACCOUNT IN PARTICULAR THE PSYCHOLOGICAL SEQUELAE, IS INADMISSIBLE .
7 THE APPLICANT' S COMPLAINTS CONCERN BOTH THE CONSTITUTION OF THE MEDICAL COMMITTEE AND THE CONDUCT AND RESULTS OF ITS PROCEEDINGS .
8 BEFORE THOSE COMPLAINTS ARE EXAMINED, IT MUST BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD ( SEE, MOST RECENTLY, THE JUDGMENT OF 29 NOVEMBER 1984 IN CASE 265/83 SUSS V COMMISSION (( 1984 )) ECR 4029 ) THAT THE REMEDIES PROVIDED FOR BY THE STAFF REGULATIONS MAY IN PRINCIPLE BE EMPLOYED ONLY IN ORDER TO OBTAIN A REVIEW BY THE COURT CONFINED TO QUESTIONS CONCERNING THE CONSTITUTION AND PROPER FUNCTIONING OF THE MEDICAL COMMITTEES . THE COURT' S REVIEW MAY NOT EXTEND TO MEDICAL APPRAISALS PROPERLY SO-CALLED, WHICH MUST BE REGARDED AS DEFINITIVE PROVIDED THAT THE CONDITIONS IN WHICH THEY ARE MADE ARE NOT IRREGULAR .
9 THE APPLICANT ALLEGES THAT THE CONSTITUTION OF THE MEDICAL COMMITTEE WAS DEFECTIVE ON THE GROUND THAT THE EXPERT CHOSEN BY THE DEFENDANT LACKED THE NECESSARY INDEPENDENCE SINCE HE HAD DRAWN UP THE FIRST MEDICAL REPORT, DISPUTED BY THE APPLICANT, AND HE ACTED AS A MEDICAL EXPERT FOR THE INSURER INVOLVED .
10 IN THAT REGARD THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 14 JULY 1981 IN CASE 186/80 ( SUSS V COMMISSION (( 1981 )) ECR 2041 ) THAT THE RULES ARE INTENDED TO ALLOW OFFICIALS TO BE EXAMINED TWICE, FIRST BY A DOCTOR ENJOYING THE CONFIDENCE OF THE INSTITUTION AND, IN THE EVENT OF DISAGREEMENT, BY A MEDICAL COMMITTEE TO WHICH BOTH PARTIES APPOINT A DOCTOR ENJOYING THEIR CONFIDENCE . THE INTERESTS OF THE OFFICIAL ARE SAFEGUARDED BY THE PRESENCE ON THE MEDICAL COMMITTEE OF A MEMBER ENJOYING HIS CONFIDENCE AND BY THE APPOINTMENT OF THE THIRD MEMBER OF THE COMMITTEE BY AGREEMENT BETWEEN THE TWO MEMBERS APPOINTED BY THE PARTIES OR, IF THEY FAIL TO AGREE, BY THE PRESIDENT OF THE COURT .
11 IT IS CLEAR FROM THE SAME JUDGMENT THAT, UNDER THOSE CIRCUMSTANCES, THERE IS NOTHING TO PREVENT THE INSTITUTION FROM APPOINTING THE SAME DOCTOR AS THE ONE WHOM IT DESIGNATED PURSUANT TO ARTICLE 19 OF THE RULES TO DRAW UP THE FIRST MEDICAL REPORT, AND IN THE SAME WAY THERE IS NOTHING TO PREVENT THE OFFICIAL FROM APPOINTING A DOCTOR WHO HAS ALREADY, AT THE OFFICIAL' S REQUEST, EXAMINED HIM IN ORDER TO DRAW UP A REPORT, AS DID THE APPLICANT IN THE PRESENT CASE .
12 LASTLY, THE COURT ALSO STATED IN THE JUDGMENT CITED ABOVE THAT THE FACT THAT THE DEFENDANT CHOSE A DOCTOR WHO WAS ALSO APPROVED BY THE INSURANCE COMPANY COULD IN NO WAY ADVERSELY AFFECT THE INTERESTS OF THE OFFICIAL .
13 IN THIS CASE, THE THIRD DOCTOR WAS APPOINTED BY AGREEMENT BETWEEN THE DOCTOR ENJOYING THE CONFIDENCE OF THE INSTITUTION AND THE DOCTOR ENJOYING THE CONFIDENCE OF THE OFFICIAL AND THE COMMITTEE' S REPORT WAS SIGNED BY ALL ITS MEMBERS WITHOUT RESERVATION . UNDER THOSE CIRCUMSTANCES, THE COURT MUST FIND THAT THE COMMITTEE WAS PROPERLY CONSTITUTED AND THE REQUIREMENTS OF BALANCE AND OBJECTIVITY ON WHICH ARTICLES 19 TO 23 OF THE RULES ARE FOUNDED WERE SATISFIED .
14 THE APPLICANT' S FIRST COMPLAINT MUST THEREFORE BE REJECTED .
15 THE APPLICANT MAKES A NUMBER OF ALLEGATIONS CONCERNING THE FUNCTIONING OF THE MEDICAL COMMITTEE, WHICH IN HIS CONTENTION CONDUCTED THE PROCEEDINGS IN AN IMPROPER MANNER .
16 FIRST OF ALL, HE STATES THAT HE WAS NOT ALLOWED TO PUT FORWARD HIS OWN VIEWS . IN THAT REGARD IT MUST BE STATED THAT THE RULES DO NOT REQUIRE THE PERSON CONCERNED TO BE HEARD BY THE MEDICAL COMMITTEE . IN THE LIGHT OF THE NATURE OF THE COMMITTEE' S WORK, WHICH IS INTENDED TO PRODUCE MEDICAL FINDINGS AND NOT TO DETERMINE A DISPUTE AFTER HEARING BOTH SIDES, SUCH A HEARING IS NOT REQUIRED BY THE PRINCIPLES CONCERNING THE RIGHT TO A FAIR HEARING .
17 SECONDLY, THE APPLICANT CLAIMS THAT THE MEDICAL COMMITTEE REFERS IN ITS REPORT TO AN EXAMINATION WHICH DOES NOT CORRESPOND TO THE EXAMINATION CARRIED OUT . HE ALLEGES THAT, CONTRARY TO THE STATEMENT IN THE REPORT, ONLY X-RAY AND TOMOGRAPHIC EXAMINATIONS WERE CARRIED OUT, BUT NOT A SCAN .
18 IT MUST BE STATED THAT THE APPLICANT' S COMPLAINT CONCERNS THE DEFINITION IN MEDICAL TERMS OF AN EXAMINATION WHICH HE DOES NOT CLAIM DID NOT TAKE PLACE . IT IS CLEAR FROM THE STATEMENTS CONTAINED IN THE LETTER FROM DR ARENDT ANNEXED TO THE COURT OF AUDITORS' DEFENCE, WHICH ARE NOT DISPUTED BY THE APPLICANT, THAT THE DOCTOR WHO CARRIED OUT THE EXAMINATION IN QUESTION EXPRESSLY DESCRIBED IT AS "AN X-RAY EXAMINATION AND SCAN ".
19 THIRDLY, THE APPLICANT CLAIMS THAT THE COMMITTEE FAILED TO TAKE ACCOUNT OF THE REPORTS DRAWN UP IN ADVANCE BY VARIOUS DOCTORS AT HIS REQUEST . IN THAT REGARD IT SHOULD BE RECALLED THAT THE COURT RECOGNIZED IN ITS JUDGMENT OF 29 NOVEMBER 1984, CITED ABOVE, THAT THE MEDICAL COMMITTEE' S TASK, WHICH CONSISTS IN CONSIDERING MEDICAL QUESTIONS ENTIRELY OBJECTIVELY AND INDEPENDENTLY, REQUIRES THAT IT BE ALLOWED COMPLETE FREEDOM OF APPRAISAL . CONSEQUENTLY, IT IS FOR THE MEDICAL COMMITTEE TO DECIDE TO WHAT EXTENT ACCOUNT SHOULD BE TAKEN OF MEDICAL REPORTS DRAWN UP IN ADVANCE, AT THE REQUEST OF EITHER THE OFFICIAL OR THE INSTITUTION . IN THIS CASE, IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT THE MEDICAL COMMITTEE TOOK ACCOUNT OF THE PREVIOUS REPORTS AND SUBJECTED THEM TO CRITICAL APPRAISAL .
20 LASTLY, THE APPLICANT CLAIMS THAT THE COMMITTEE RELIED ON A NEUROLOGIST' S REPORT ALREADY USED AS THE BASIS FOR THE FIRST MEDICAL REPORT REQUESTED BY THE COURT OF AUDITORS PURSUANT TO ARTICLE 18 OF THE RULES, WHICH IS CONTESTED BY THE APPLICANT AND WHICH BEARS A DATE LATER THAN THE DATE OF THE SAID MEDICAL REPORT .
21 IT MUST BE STATED THAT THE INCONSISTENCY IN DATES REFERRED TO BY THE APPLICANT CONCERNS THE FIRST MEDICAL REPORT OBTAINED BY THE DEFENDANT PURSUANT TO ARTICLE 18 OF THE RULES . HOWEVER, THE MEDICAL COMMITTEE MET PRECISELY BECAUSE THE APPLICANT DISAGREED WITH THAT INITIAL REPORT, IN ORDER TO RE-EXAMINE HIS INJURIES . THE REPORT DRAWN UP BY THE COMMITTEE IS INDEPENDENT OF THE REPORT PREPARED UNDER ARTICLE 18 AND FORMS THE SOLE FOUNDATION FOR THE DECISION OF THE COURT OF AUDITORS; IT CANNOT BE AFFECTED BY THE ALLEGED PROCEDURAL IRREGULARITIES IN THE FIRST REPORT .
22 THE APPLICANT' S COMPLAINTS CONCERNING THE LEGALITY OF THE COMMITTEE' S PROCEEDINGS CANNOT THEREFORE BE UPHELD .
23 FINALLY, THE APPLICANT DISPUTES THE RESULTS OF THE MEDICAL COMMITTEE' S PROCEEDINGS ON THE GROUND THAT, IN ITS CONCLUSIONS, IT DID NOT TAKE INTO CONSIDERATION THE DAMAGE OF A PSYCHOLOGICAL AND SOCIAL NATURE RESULTING FROM THE ACCIDENT AND THEREFORE FAILED TO COMPLY WITH THE JUDGMENTS OF THE COURT IN THAT REGARD .
24 IT IS SUFFICIENT TO STATE THAT IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT THE MEDICAL COMMITTEE EXAMINED THE APPLICANT' S COMPLAINTS CONCERNING THE PSYCHOLOGICAL AND SOCIAL SEQUELAE AND THAT, IN THE EXERCISE OF ITS FREEDOM OF MEDICAL APPRAISAL, IT REJECTED SOME AS UNFOUNDED BUT NEVERTHELESS TOOK ACCOUNT OF "SUBJECTIVE SOMATIC COMPLAINTS" IN FIXING THE DEGREE OF INVALIDITY . THAT COMPLAINT MUST THEREFORE ALSO BE REJECTED .
25 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION MUST BE DISMISSED .
Decision on costs
COSTS
26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .
Operative part
ON THOSE GROUNDS,
THE COURT ( FOURTH CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION .
( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .