61979C0731
OPINION OF MR ADVOCATE GENERAL MAYRAS
DELIVERED ON 20 NOVEMBER 1980 (
1
)
Mr President,
Members of the Court,
I —
Having been employed by the European Parliament from 1 May 1975, as a “special adviser” (Article 5 of the Conditions of Employment of Other Servants of the European Communities), B. became an official and medical officer of that institution on 1 February 1977.
On 22 February 1978 B. wrote to Mr H. Nord, Secretary-General of the European Parliament, complaining that his health had deteriorated owing in his view to the deplorably unhygienic condition of his consulting room. He pointed out that he had already raised that question with the administration on several occasions and that owing to the state of his health he had had to work part-time since 31 January 1978. He therefore asked for an impartial inquiry to be held to ascertain the cause and the extent of what he called an “occupational” disease.
In so doing he was referring, by implication but without any doubt, to Article 73 of the Staff Regulations of Officials of the European Communities and also to 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”), adopted pursuant to the said Article 73 by the European Parliament as far as he was concerned on 27 January 1977. Articles 17 to 23 of the Rules determine the procedure and functioning of the “Medical Committee” for the purpose of establishing the occupational nature of any invalidity.
On 6 March 1978 the Secretary-General assured B. that he would do all that he possibly could to contribute to the restoration of his health. He promised him that in the very near future experts would consider how his consulting room could be improved. He expressed his “personal” view that B.'s request for an inquiry to be held to establish the extent and origin of the sickness of which he complained ought to be granted and he informed B. that Mr Vinci, Director-General for Administration, Personnel and Finance at the European Parliament, would get in touch with him on that question.
On 21 or 22 March 1978 the medical officer of the Council of Europe, and the other members of a “Committee of Inquiry”, in the company of an architect and B., inspected the latter's premises in the Schuman Building. Finding that B.'s working conditions appeared to be poor and that his consulting room was not suitable for its purpose, the medical officer suggested a number of improvements.
On 16 April 1978 B. wrote to the Secretary-General in order to express his satisfaction at the efficiency with which the expert inspection of his consulting room had been conducted, to convey to him certain observations concerning the officials belonging to the administration of the Parliament's Secretariat and to request him once again to initiate the procedure relating to occupational disease provided for by the Staff Regulations “since the expert report had unequivocally concluded that his consulting room was pathogenic”. He seemed to be referring to Article 17 of the Rules.
On 13 June 1978 B. produced a certificate signed by Dr Stein, his own doctor, certifying that owing to his state of health he needed three months' sick leave. As from that date he ceased work, even part-time, at the European Parliament.
In a reply dated 16 June 1978 the Director-General for Administration informed him that he was planning “to set up a ‘Medical Board’with instructions to give an opinion on:
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His present state of health;
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The possible connexion between his state of health and his working conditions at the Parliament;
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The advisability of initiating the procedure in the Staff Regulations for retiring him on the ground of invalidity.”
He asked B. to give him at the earliest opportunity the name of the doctor whom he was appointing to be a member of the Medical Board, on which ä doctor appointed by the institution and a doctor appointed by agreement between the first two doctors would also sit.
This expression “Medical Board” is ambiguous because it appears to embrace both the Invalidity Committee referred to in Article 53 of the Staff Regulations and in Article 7 of Annex II thereto and the Medical Committee referred to in Article 23 of the Rules which I have already mentioned. It constitutes a tertium genus since none of those provisions mentions a “board”; yet there is no doubt that both the administration and the applicant had in mind primarily the “Medical Committee” and that the procedure for retirement on the ground of invalidity under Article 78 was not to be initiated until after the conclusions of that committee were known.
On 13 July 1978 B. informed Mr Van Nuffel, Director for Personnel and Social Affairs at the European Parliament, that he was appointing Dr P. Stein to look after his interests on the “Committee of Inquiry”. On 1 December 1978 Mr Van Nuffel notified B. that Dr H. Maddens would represent the institution on the “Medical Board”.
The setting up of this “Board” encountered numerous difficulties and its business had not been completed on 12 October 1979, the date when the application in this case was registered; each party blames the other for the delay.
On 21 June 1979 Mr Opitz, acting Secretary-General of the European Parliament, notified B. that, since his sick leave totalled more than twelve months in a period of three years (the last subparagraph of Article 58 (1) of the Staff Regulations), he had decided to refer his case to the Invalidity Committee and he asked B. to forward to him the name of the doctor of his choice to look after his interests.
On 2 July 1979 B. informed the acting Secretary-General that he would be represented on the Invalidity Committee by Dr P. Stein, the doctor whom he had already instructed nearly a year before to look after his interests on the “Committee of Inquiry”, whilst emphasizing that in his view the procedure already under way for obtaining an expert opinion on the question whether he was suffering from an occupational disease had priority and that it was advisable to conclude it before the Invalidity Committee commenced work.
For its part, the administration appointed Dr Maddens whom it had already instructed to look after its interests on the Medical Board.
Relations between those two doctors became so acrimonious that the former lodged a complaint against the latter with the Ordre Belge des Médecins [Belgian Medical Association] and B. even complained to the administration that it had prevented him from taking out invalidity insurance with the Van Breda company or had not intervened on his behalf to enable him to take out such insurance. However, those claims were rejected by an order of the Judge acting as President of the Court of Justice dated 5 December 1979 ([1979] ECR 3635).
On 10 August 1979 B. informed the Director for Personnel and Social Affairs that he intended to submit a complaint under Article 90 (2) of the Staff Regulations on the ground that the Invalidity Committee had been set up before the Medical Board had delivered its opinion.
Since the doctors representing B. and the administration respectively on the Invalidity Committee could not agree on the appointment of a third person, the President of the Court of Justice, following requests made by the Secretary-General of the European Parliament on 10 September 1979 and 21 December 1979, appointed Dr. Gérard de Ren on 8 January 1980 pursuant to Article 7 of Section 4 of Annex II to the Staff Regulations.
In the meantime the complaint announced by B. had been sent to the European Parliament's Director for Personnel and Social Affairs on 16 September 1979.
On 12 October 1979 B. brought the present action before the Court and at the same time made an application under Article 91 (4) of the Staff Regulations for the adoption of interim measures with the object of obtaining an adjournment of the proceedings of the Invalidity Committee pending the adoption of a final decision as to the occupational nature of his illness.
That application was dismissed by an order made on 5 December 1979 by the Judge acting as President of the Court, the President himself being unable to attend. On 15 January 1980 the President of the European Parliament expressly rejected the applicant's complaint of 16 September 1979.
II —
When the oral procedure was opened on 18 September 1980 the relief sought by the applicant was:
(i)
a declaration that the setting up or the working of an Invalidity Committee within the meaning of Article 59 (1) of the Staff Regulations was unlawful and should therefore be suspended, or, in the alternative, an order requiring the European Parliament to stop or suspend the setting up or working of that Committee pending a final decision following the inquiry into the occupational nature of the disease from which he claimed to be suffering;
(ii)
an order requiring the European Parliament to put an end to any measure which might hinder, delay or thwart the work of the Medical Board to ascertain whether the applicant was suffering from an occupational disease; and
(iii)
a declaration that the work of that Board should be actively continued in accordance with the Rules.
For its part, the Parliament contended that the Court should dismiss the application as inadmissible or, in any event, as unfounded.
III —
If the financial aspects of the matter alone are considered the applicant's interest may be explained by the fact that the consequences of retirement on the ground of invalidity differ considerably from the results of a finding that an official is suffering from an occupational disease.
In the event of total permanent invalidity Article 73 (2) (b) of the Staff Regulations (a provision found in the Chapter entitled “Social Security Benefits”) provides for payment of a lump sum equal to eight times the official's annual basic salary.
In the event of partial permanent invalidity (Article 73 (2) (c) of the Staff Regulations) the lump sum is calculated by reference to the rates laid down in the invalidity scale. An annuity may be substituted for the lump sum (Article 13 of the Rules). Furthermore, Article 10 (1) of the Rules provides for the reimbursement of all the expenses necessary in order to restore as completely as possible the official's bodily or mental health and in order to pay for all care and treatment required and also, where appropriate, or the expenses incurred in his functional and occupational rehabilitation. Thus the aim is to restore the victim's health and to enable him to return to work.
On the other hand the invalidity referred to in Article 78 of the Staff Regulations (which is in the Chapter entitled “Pensions”) is a form of early retirement; the rate of the invalidity pension is no more than the rate of 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. It is only where the invalidity arises from an accident or an occupational disease that the rate of the invalidity pension is fixed at 70% of basic salary (the second paragraph of Article 78 of the Staff Regulations).
It is true that according to the last sentence of Article 73 (2) of the Staff Regulations the social security benefits provided in the event of occupational disease may be paid in addition to the benefits provided for in Chapter 3 dealing with pensions, but that implies that, “if they are not to be coordinated, the two procedures should at least proceed in parallel and that they should be brought to a conclusion at the same time or, in any event, without an excessive time-lag”, as is stated in paragraph 5 of the order of 5 December 1979 ([1979] ECR 3633).
The applicant took the view that if the procedure under Article 78 was completed before the procedure under Article 73 had been concluded, even though the latter had been initiated first, and if the composition of the Medical Committee were the same as that of the Invalidity Committee, he might suffer irreparable damage; for example he might be forced to sell his house. He further observed that the tasks of the two committees are different: the Medical Committee's primary task is to carry out an etiological inquiry; the Invalidity Committee is primarily concerned with drawing up an official report and making a prognosis.
The Parliament submitted that the validity of its decision to initiate the invalidity procedure could not be challenged since on the date when it was taken, 21 June 1979, the applicant had been on sick leave since 1 June 1978, that is to say for more than twelve months. As long as there was no finding that he was or was not an invalid, B., in spite of his being absent, continued to receive the whole of his salary as an official working part-time; from the point of view of the proper management of public funds the administration must take care to ensure that the Community does not incur unjustified expenditure and the Parliament went on to say that there was some risk of the applicant's post remaining vacant for a long time, whereas it is good administrative practice to fill vacant posts quickly.
If the case were regarded from that viewpoint the real question of law would be whether, having decided to initiate the procedure relating to occupational disease, the administration may later decide to embark upon the procedure for retirement on the ground of invalidity and conclude the latter procedure when the former, which more fully protects the rights of the person concerned, has not yet been completed.
The administration maintains that the question whether an official's illness is of an occupational nature is distinct from the question of his capacity or incapacity to work. But although Article 25 of the Rules provides that “recognition of total or partial permanent invalidity pursuant to Article 73 of the Staff Regulations and to these Rules shall in no way prejudice application of Article 78 of the Staff Regulations and vice versa”, it may happen — and this is what in fact occurred in this case, as we shall see — that the absence of total or partial permanent invalidity within the meaning of Article 73 may indeed prejudice the application of Article 78.
IV —
However, the Court will not have to determine this interesting question if, as I believe, the application no longer has any purpose since the contested decisions have been replaced by administrative measures which restore the status quo.
Paragraph 4 of the order of 5 December 1979 in Case 794/79 R stated that the applicant “was, at his own request, the subject of a procedure concerned with ascertaining whether he was suffering from an occupational disease within the meaning of Article 73 of the Staff Regulations of Officials of the European Communities and ... furthermore ... of a procedure concerned with the possible cessation of his duties at the European Parliament on the ground of permanent invalidity within the meaning of Articles 53 and 59 of the same Staff Regulations” ([1979] ECR 3637).
Paragraph 4 of the order of the same date in Case 731/79 R stated that at that stage of the proceedings no matter of fact or law had been advanced which would induce the belief that in putting the invalidity procedure into operation “the defendant was pursuing objectives foreign to those for which that procedure was designed” ([1979] ECR 3633). The subsequent course of the proceedings does not invalidate that finding.
Notwithstanding the fact that on 28 November 1979 the Judge acting as President of the Court of Justice exhorted the parties and their doctors to do all in their power to accelerate the proceedings of the Medical Board, no progress was made. As a result on 21 January 1980 counsel for the applicant again asked the President of the Court of Justice to apply Article 23 of the Rules and to “appoint a Medical Committee” with a view to “breaking the deadlock”. But that seemed quite impossible in the light of the rules since the Invalidity Committee had been legally set up and was in existence. That applications was dismissed by an order dated 13 March 1980 ([1980] ECR 829).
As regards the “Medical Board”, Parliament has now adopted the decision which it stated to be imminent in its observations of 22 February 1980.
On 30 April 1980 the Secretary-General informed the applicant that Dr Maddens had convincingly proved that “the applicant's physical state of health must be considered perfectly normal, that he did not suffer from any occupational disease and that his working conditions at the European Parliament could not be regarded as detrimental to his health”.
He therefore advised the applicant that Article 73 of the Staff Regulations was not applicable in his case and that that advice was equivalent to a draft decision within the meaning of Article 21 of the Rules.
In those circumstances it is difficult to see how the Invalidity Committee might reach the conclusion that the applicant suffered from even partial permanent invalidity. At the oral hearing on 18 September 1980, at which the applicant was not represented, counsel for the European Parliament informed the Court that on 8 July 1980 the Secretary-General had told him that in accordance with Article 9 of Annex II to the Staff Regulations the Invalidity Committee had in turn decided that the applicant was not suffering from any form of invalidity.
In response to an invitation to do so, the applicant resumed work at the European Parliament on 15 July 1980 and was given permission to work only part-time until 15 October 1980; that permission was renewable for a further period extending until 31 December 1980.
However, on 25 June 1980 the applicant made a request pursuant to Article 21 of the Rules that the Medical Committee provided for in Article 23 to deliver its opinion. Let us hope that that Committee is in a position to function and that it is able to bring its proceedings to a successful conclusion.
There remains the decision as to costs, including the costs of the applications for the adoption of interim measures which led to the order of 5 December 1979.
The applicant asked the Court to order the Parliament to pay the costs, whilst the Parliament submitted that the whole of the costs should be borne by the applicant pursuant to the second subparagraph of Article 69 (3) of the Rules of Procedure. Since, broadly speaking, the responsibility must be evenly apportioned between the parties, and since the European Parliament in the end dropped its claim for costs, I shall not propose that the Court depart from the rule contained in Article 70 of the Rules of Procedure.
Taking into account, furthermore, the fact that in spite of his absence the applicant has continued to draw his salary — part-time — he has been fully compensated for the damage which he claims to have suffered.
I propose that the Court should declare:
That the application in Case 731/79 no longer has any purpose;
And that the parties bear the costs which they have incurred, including the costs of the applications for the adoption of interim measures (Case 731/79 R and Case 794/79 R).
(
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