61971CJ0031(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 31/71
ANTONIO GIGANTE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, LIVING AT BRUSSELS, 11 RUE DE LA PEPINIERE, REPRESENTED BY EMILE DRAPPIER, ADVOCATE AT THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 B IV, RUE PHILIPPE II, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIORGIO PINCHERLE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF PIERRE LAMOUREUX, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,
Subject of the case
APPLICATION
- FOR THE CONVENING OF AN INVALIDITY COMMITTEE PURSUANT TO ARTICLE 59 ( 1 ), PARAGRAPH 4, OF THE STAFF REGULATIONS,
- FOR THE REIMBURSEMENT TO THE APPLICANT OF THE SUM OF FB 90 391 BEING MEDICAL AND PHARMACEUTICAL EXPENSES INCURRED BY HIM AND NOT REIMBURSED,
Grounds
1 BY AN APPLICATION LODGED ON 16 JUNE 1971 THE APPLICANT REQUESTED THE ANNULMENT OF SEVERAL IMPLICIT AND EXPRESS DECISIONS OF THE COMMISSION RELATING TO THE APPOINTMENT OF AN INVALIDITY COMMITTEE WITHIN THE MEANING OF ARTICLE 59 ( 3 ) OF THE STAFF REGULATIONS, THE INSTITUTION OF THE PROCEDURE FOR THE CONVENING OF SUCH A COMMITTEE AND THAT THE COMMISSION BE ORDERED TO REIMBURSE TO HIM, PURSUANT TO ARTICLE 73 OF THE STAFF REGULATIONS, HIS MEDICAL AND PHARMACEUTICAL EXPENSES AMOUNTING TO FB 90 391 .
2 BY INTERLOCUTORY JUDGMENT OF 29 NOVEMBER 1973 IT WAS FOUND THAT THE COMMISSION, HAVING INITIATED THE PROCEDURE FOR CONVENING AN INVALIDITY COMMITTEE, HAD, IN SO FAR AS IT DEPENDED ON THE COMMISSION, SATISFIED THE APPLICANT'S CLAIMS IN RESPECT OF THE IMPLICIT AND EXPRESS DECISIONS CONTESTED .
3 THIS PART OF THE APPLICATION HAS THEREFORE BECOME DEVOID OF PURPOSE .
4 AS REGARDS THE IMPLEMENTATION OF THE PROCEDURE FOR CONVENING AN INVALIDITY COMMITTEE, SINCE THE TWO DOCTORS APPOINTED BY THE APPLICANT AND THE COMMISSION, THE DEFENDANT, COULD NOT REACH AGREEMENT ON THE APPOINTMENT OF A THIRD, THE ABOVEMENTIONED INTERLOCUTORY JUDGMENT DECIDED THAT, IF NECESSARY, THE COURT WOULD UNDERTAKE THE APPOINTMENT OF THIS THIRD DOCTOR .
5 BY ORDER OF 10 JANUARY 1974 THE COURT APPOINTED DR JACQUES GODENNE .
6 BY LETTER DATED 27 DECEMBER 1974 DR GODENNE SENT TO THE COURT THE MEDICAL REPORT MADE BY THE COMMITTEE .
7 THIS REPORT BEARS THE SIGNATURES OF PROFESSOR ROBERT DE MARNEFFE AND DR JACQUES GODENNE, DR EZIO D'AVANZO, THE MEMBER OF THE INVALIDITY COMMITTEE APPOINTED BY THE APPLICANT, HAVING REFUSED TO SIGN IT .
8 IT APPEARS BOTH FROM A LETTER FROM DR GODENNE AND FROM ONE OF THE SAME DATE FROM DR D'AVANZO THAT DR D'AVANZO CONSIDERS THAT SINCE HE CANNOT AGREE WITH CERTAIN POINTS IN THE OPINIONS OF HIS COLLEAGUES, THIS 'MEANT THAT AS A LOGICAL CONSEQUENCE' HE COULD NOT SIGN THE OPINION, THE DRAFT OF WHICH HAD BEEN SUBMITTED TO HIM .
9 AT THE HEARING ON 23 JANUARY 1975 THE APPLICANT ARGUED THAT BECAUSE DR D'AVANZO HAD NOT SIGNED THE MEDICAL REPORT IT COULD NOT BE REGARDED AS VALID, SO THAT THE PROCEDURE FOR A MEDICAL REPORT WAS NOT COMPLETED IN RESPECT OF THE MATTERS ON WHICH THE MEMBERS OF THE COMMITTEE WERE IN DISAGREEMENT .
10 THE COURT CANNOT ACCEPT THIS CONCLUSION .
11 IT APPEARS FROM THE MEDICAL REPORT AND FROM THE ABOVEMENTIONED LETTERS THAT THE THREE MEMBERS OF THE INVALIDITY COMMITTEE HAVE TAKEN PART IN THE DIFFERENT STAGES OF THE REPORT AND THAT IT IS ONLY WHEN IT CAME TO DRAFTING THE OPINION THAT DR D'AVANZO REFUSED TO TAKE PART IN THE WORK .
12 A MEMBER OF AN INVALIDITY COMMITTEE, APPOINTED BY ONE OF THE PARTIES, CANNOT, BY HIS ABSTENTION OR REFUSAL TO SIGN, BLOCK THE PROCEDURE PROVIDED FOR IN ARTICLE 59 AND MAKE THE APPLICATION OF THE PROVISIONS OF THE REGULATIONS IMPOSSIBLE .
13 THE REGULATIONS, BY PROVIDING FOR A COMPOSITION OF THREE MEMBERS, IMPLY THAT IN THE EVENT OF DISAGREEMENT THE COMMITTEE MAY DECIDE BY A MAJORITY .
14 THE MEDICAL REPORT, REPRESENTING THE OPINION OF THIS MAJORITY, MUST BE REGARDED AS VALID WITHIN THE MEANING OF THE REGULATIONS, WITH ALL THE LEGAL CONSEQUENCES .
15 SINCE THE APPLICANT HAS RECEIVED SATISFACTION WITH REGARD TO THE CONVENING OF AN INVALIDITY COMMITTEE, THIS HEAD OF HIS APPLICATION HAS THEREFORE BECOME DEVOID OF PURPOSE .
16 WITH REGARD TO THE APPLICATION FOR REIMBURSEMENT OF THE MEDICAL AND PHARMACEUTICAL EXPENSES, THE INVALIDITY COMMITTEE HAD THE TASK OF DETERMINING :
'( D ) THE DATE, IF ANY, WHEN THE MEDICAL POSITION RESULTING FROM THE INJURIES CAUSED BY THE ACCIDENT OF 13 NOVEMBER 1962 HAD BECOME STABILIZED AND WHETHER FURTHER MEDICAL TREATMENT IS NECESSARY THEREAFTER;
( E ) WHETHER THE MEDICAL AND PHARMACEUTICAL EXPENSES, THE REIMBURSEMENT OF WHICH IS CLAIMED, WERE INCURRED AS A RESULT OF THE ACCIDENT AND WHETHER THEY ARE COVERED BY THE PROVISIONS OF ARTICLE 73 ( 3 ). IF IT IS FOUND THAT THEY ARE NOT, THE COMMITTEE IS TO MAKE A SEPARATE EVALUATION OF THE EXPENSES ACCORDING TO THEIR ORIGIN '.
17 IN ITS REPORT THE COMMITTEE STATED THAT THE INJURIES CAUSED BY THE ACCIDENT WERE STABILIZED ON 16 OCTOBER 1970 AND CONCLUDED THAT AS FROM THIS DATE THE MEDICAL TREATMENT NO LONGER RELATED TO THE CONSEQUENCES OF THE ACCIDENT .
18 IN THE ABSENCE OF A STATEMENT OF THE MEDICAL AND PHARMACEUTICAL EXPENSES OF WHICH THE APPLICANT IS CLAIMING REIMBURSEMENT, THE INVALIDITY COMMITTEE HAS FOUND ITSELF UNABLE TO ANSWER THE ABOVE QUESTION ( E ), BUT IS PREPARED TO CONSIDER IT IN A SUPPLEMENTARY REPORT .
19 THE COMMISSION'S DEPARTMENT WHICH HAD THE DOCUMENTS IN QUESTION HAS MEANWHILE, ACCORDING TO THE COMMISSION'S AGENT, SENT THE DOCUMENTS WITH A REQUEST FOR THIS SUPPLEMENTARY REPORT .
20 THE COURT UNDERSTANDS THAT DR D'AVANZO IS ENTITLED AS A MEMBER OF THE INVALIDITY COMMITTEE TO TAKE PART IN THE PREPARATION AND DRAFTING OF THIS SUPPLEMENTARY REPORT, NOTWITHSTANDING THE FACT THAT HE DID NOT SIGN THE ABOVEMENTIONED REPORT .
21 SO LONG AS THIS REPORT IS NOT AVAILABLE, THIS HEAD OF CLAIM CANNOT BE DECIDED .
22 IT IS IN THE PARTIES' INTEREST THAT THE COURT RULES WITHOUT DELAY ON THE HEADS OF CLAIM WHICH HAVE BECOME DEVOID OF PURPOSE SO THAT THEIR RELATIONS, POWERS AND RESPECTIVE RIGHTS ARE ESTABLISHED .
23 IN THESE CIRCUMSTANCES IT IS PROPER, BEFORE DECIDING THE APPLICATION FOR REIMBURSEMENT OF THE MEDICAL AND PHARMACEUTICAL EXPENSES, TO GIVE AN INTERLOCUTORY JUDGMENT ON THE OTHER HEADS OF CLAIM .
Decision on costs
24 COSTS SHOULD BE RESERVED .
Operative part
THE COURT ( FIRST CHAMBER )
ORDERS, BEFORE GIVING JUDGMENT ON THE CLAIM FOR REIMBURSEMENT OF THE MEDICAL AND PHARMACEUTICAL EXPENSES :
1 . THE APPLICATION FOR ANNULMENT OF THE IMPLICIT REJECTION OF THE ADMINISTRATIVE COMPLAINT OF 17 FEBRUARY 1971 AND THE DECISION CONTAINED IN THE LETTER FROM THE DIRECTOR FOR ADMINISTRATION AND PERSONNEL OF 29 APRIL 1971 HAS BECOME DEVOID OF PURPOSE .
2 . THE APPLICATION FOR THE CONVENING OF AN INVALIDITY COMMITTEE HAS BECOME DEVOID OF PURPOSE .
3 . COSTS ARE RESERVED .