61976C0115
OPINION OF MR ADVOCATE GENERAL WARNER
DELIVERED ON 22 FEBRUARY 1978
Contents
Introductory
The law
The facts in general
The facts — first period
The facts — second period
Conclusions as to the second period
The facts — third period
Conclusions as to the third period.
The facts — fourth period
Conclusions as to the fourth period
Final conclusions
My Lords,
Introductory
It is somewhat ironic that, in this case, in which I shall have to criticize the Commission for excessive delays, I am myself delivering my opinion only today though the hearing took place as long ago as 13 October 1977. Your Lordships know well, however, the pressures that have led to that situation. It may be, indeed, that it would be fair to lay that delay also at the door of the Commission, tor, on 26 November 1974, the Council invited the Commission to formulate proposals for the establishment of a tribunal of first instance to adjudicate upon disputes between the Community Institutions and members of their staffs, with a view to relieving this Court of just such pressures. Yet no such proposal has yet been laid before the Council.
The applicant in this case is Mr Leonardo Leonardini, a nuclear engineer and a former Euratom official. On 25 April 1966 he was injured in a road accident whilst on his way from Brussels to the Centrale Nucleaire des Ardennes at Chooz. It is not disputed that that accident occurred in the course of his employment, nor is it disputed that as a result of his injuries he suffers partial permanent invalidity. On 16 September 1976, more than 10 years later, a letter was sent to him by the Commission's Director General of Personnel and Administration (Annex 1 to the Application), informing him that his partial permanent invalidity had been assessed at 16 %, and that a lump sum of 382361 Belgian francs would be paid to him in respect of such invalidity. That sum was calculated under Article 73 of the Staff Regulations, which provides:
‘1.   An official is insured, from the date of his entering the service, against the risk of occupational disease and of accident subject to rules drawn up by agreement between the Institutions of the Communities after consulting the Staff Regulations Committee. He shall contribute to the cost of insuring against non-occupational risks up to 0.1 % of his basic salary.
Such rules shall specify which risks are not covered.
2.   The benefits payable shall be as follows:
(a)
In the event of death:
Payment …; of a lump sum equal to five times the deceased's annual basic salary calculated by reference to the amounts of salary received during the twelve months before the accident…
to the deceased official's spouse
(b)
In the event of total permanent invalidity:
Payment to the official of a lump sum equal to eight times his annual basic salary calculated on the basis of the amounts of salary received during the twelve months before the accident.
(c)
In the event of partial permanent invalidity:
Payment to the official of a proportion of the sum provided for in subparagraph (b), calculated by reference to the scale laid down in the rules referred to in paragraph 1.
…’
Hence the sum received by the applicant represented 16 % of eight times his basic salary in 1965-1966.
The applicant's claim in the present action is for interest on that sum from the date of the accident or, in the alternative, from the end of September 1969, that being, the applicant submits, the date by which the Commission could reasonably be expected to have assessed his degree of invalidity.
The law
Before I turn to the facts relevant to that claim, I should I think make these observations about the law.
First, at the time of the applicant's accident the rules envisaged by Article 73 had not in fact been drawn up. So much indeed transpired in Case 18/70 Duraffour v Council [1971] 2 ECR 515, where it was also found that, pending the adoption of such rules, the Council had effected with a consortium of private insurance companies a group accident policy covering its officials. That was still the situation when Case 101/74 Kurrer v Council [1976] ECR 259 came before the Court. In the Duraffour case, the Court held that, notwithstanding that situation, the Council was directly liable under Article 73 to the widow of one of its officials and that she was not bound by the terms of the policy. In the Kurrer case the Court similarly held that the provisions of the Staff Regulations prevailed over the terms of the policy, which could not derogate from the rights that an official derived directly from those Regulations; the absence of rules drawn up by agreement between the Institutions could not adversely affect an official.
Secondly, there is a strong argument for saying that a claim for invalidity benefit under Article 73 ought, as a normal rule, to carry interest from the date of the accident, because entitlement to such benefit arises by virtue of the accident and the amount of the benefit is calculated by reference to the official's salary during the year before the accident, yet in the nature of things the benefit cannot be paid until the degree of invalidity has been assessed, which in turn can only be done once the final extent of the injuries has become known, which may well take a long time. If no such interest is payable, then the longer it takes to assess the extent of the injuries the less, in real terms, the benefit will amount to. As the Court pointed out, however, in the Kurrer case — albeit obiter, because no claim for interest had been made in that case — such interest could only be awarded if the Staff Regulations expressly provided for it. (The Court suggested that, alternatively, such interest might be awarded if the policy provided for it. But I doubt if that can be right. Given that the rights of an official, or of his dependants, are governed by the Staff Regulations to the exclusion of the terms of any contract of insurance entered into by his employing Institution, it must, I think, also be accepted that he, or they, cannot benefit from any provision for interest contained in that policy.)
Thirdly, the Court, in the same Judgment, intimated that wrongful delay on the part of an Institution in the payment to an official of a benefit due to him under Article 73 could found a claim on his part for damages. I do not doubt that that is right. The ‘unlimited jurisdiction’ conferred on the Court by the last sentence of Article 91 (1) of the Staff Regulations in ‘disputes of a financial character’ is very wide. It seems to me, moreover, reasonable that the Court should use, in the assessment of such damages, a measure that consists in applying to the amount of the relevant benefit an appropriate rate of interest for the period for which the Court judges that payment of the benefit in question was wrongfully denied to the official in question. So far as the appropriate rate of interen is concerned, the applicant here has suggested 8 %. The Commission has not quarrelled with that suggestion. That is in fact the rate at which the Court awarded interen in Case 58/75 Sergy v Commission [1976] ECR 1139.
It is however, in my opinion, important not to confuse the Court's jurisdiction to award damages for wrongful delay, which may be measured by means of the application of a rate of interen, and its jurisdiction, where it makes a pecuniary award, whether of a specific sum (as in Case 11/63 Lepape v High Authority [1964] ECR 61, Rec. 1964 p. 121) or of a sum by way of damages (as in Sergy v Commission), to award also interen on that sum from a specified date. It was to my mind of such confusion that the Commission was guilty when it submitted, in reliance on the Lepape and Sergy cases, that the applicant here could not claim interen for any period before the date of his Application to the Court or, at the earliest, the date of his complaint under Article 90 (2) of the Staff Regulations on which that Application was founded.
Lastly as regards the law, the Commission submitted, in reliance on Cases 27 & 39/59 Campolongo v High Authority (Rec. 1960, p. 795), that a person could not claim interest in respect of wrongful delay unless he had given some kind of formal notice that he would do so. In fact there was in Campolongo v High Authority no allegation of wrongful delay. The relevant claim there was for ordinary interen on specific sums that the Court had held the High Authority liable to pay to the applicant, namely, the amount standing to his credit in the Staff Provident Fund of the ECSC and the amount of his pan pension contributions with, in each case, compound interen thereon at a rate specified in Article 91 of the then General Regulations of the ECSC. The decision of the Court was simply that, in the circumstances, an award of interen on that sum itself was not warranted. But, in reaching that decision, the Court said obiter, among other things, that interest in respect of wrongful delay could not be awarded in the absence of prior notice and that, moreover, there was no provision in Community law for the award of it. The General Regulations of the ECSC, which were there relevant contained however no provision, like that in Article 91 (1) of the present Staff Regulations, giving the Court unlimited jurisdiction in disputes of a financial character. I do not therefore think that the dicta of the Court in the Campolongo case can be regarded as affording reliable guidance here.
Thus there are, in my opinion, in this case three questions:
(1)
Was the Commission guilty of wrongful delay?
(2)
If so, at what sum should the damages for that delay be assessed?
(3)
Should such damages carry interest and, if so, at what rate and as from what date?
The facts in general
To answer the first question necessitates a close examination of the facts.
The story of what happened between the date of the applicant's accident and that of the payment to him of the sum of 382361 francs was, at the suggestion of the Commission and with the concurrence of the applicant, divided for the purposes of the argument into four periods, as follows:
(1)
the period from the date of the accident to 11 January 1969, when the Commission informed the applicant of an offer by its insurers to settle the claim on the footing that his degree of permanent invalidity was to be assessed at 6 % and inviting him to say whether he agreed to that proposal;
(2)
the period from 11 January 1969 to 7 June 1972, when the Commission informed the applicant that it had decided to assess his degree of invalidity for the purposes of Article 73 at 6 % and had given instructions that day for the sum of 143386 francs to be, accordingly, paid into his bank account;
(3)
the period from 7 June 1972 to 2 July 1974, when the applicant was medically examined by Professor Parrini of Milan, following a decision of the Commission revoking its decision of 7 June 1972;
(4)
the period from 2 July 1974 to 16 September 1976.
Much light was thrown on the deuils of that story by the contents of a file put in by the Commission as the result of a request made by the Court at the close of pleadings. That file conutains the bulk of the Commission's correspondence relating to the matter, numbered consecutively. (I shall refer to documents in it that are not annexed to any pleading by their number, preceded by the word ‘File’.)
The facts — first period
There is no real dispute as regards the firn period. The applicant does not allege any wrongful conduct on the pan of the Commission during that period.
In brief, the day after the accident, the applicant produced a medical certificate signed by Dr Lorthioir, who had treated him (Annex 27 to the Application). A year later he produced a certificate (dated 12 April 1967) from the same doctor estimating the partial permanent invalidity suffered by the applicant as a result of the accident at 20 % (Annex 26 to the Application). Those certificates showed that the applicant had suffered a number of injuries, including dental injuries.
Like the Council, the Commission had taken out an insurance policy to cover its naff against the risk of accident. Hence, in May 1967, the applicant was examined by a doctor acting on behalf of the Commission's insurers, Dr De Roover. On 16 January 1968, the applicant handed to the Commission a report dated 22 November 1967 made by Dr Colwaert, the dentist then treating him for the dental injuries he had received in his accident, assessing his partial permanent invalidity in respect of those injuries alone at 25 % (Annexes 24 and 25 to the Application). In that report Dr Colwaert expressed the opinion that the applicant would require treatment for those injuries, off and on, for many years to come, in particular by way of dental prosthetics. It seems that Dr Colwaert was a consultant to the Commission's Medical Service. His report and the applicant's covering note were forwarded by the Commission to its insurers. On 9 May 1968, the insurers wrote to the Commission asking to be informed when the applicant's treatment, particularly his dental treatment, had finished and adding that a certificate as to the applicant's degree of invalidity could then be furnished (Annex I to the Defence). On 18 September 1968, the Commission forwarded to the insurers a certificate dated 15 September 1968 drawn up by Dr Rosau, a dental surgeon in Livorno who had treated the applicant, stating that his dental treatment had been completed, and that the degree of his permanent invalidity was in the range 35 % to 38 % (File Nos 17 and 18). Dr De Roover, however, had taken a distinctly unsympathetic attitude towards the applicant (see File No 12) and the insurers informed the Commission on 30 December 1968 that they considered the applicant's degree of invalidity to be 6 % (File No 19). It appears that, in so doing, they based themselves on official Belgian scales. On 11 January 1969 the Commission wrote to the applicant informing him of this fact and inviting his agreement (Annex 23 to the application). That was the end of the first period.
The reason why, according to the applicant, a line can be drawn at that point is that by that date it was possible to make a definitive assessment of his degree of invalidity, notwithstanding the fact that his injuries would require treatment for a long time thenceforward, and perhaps for the rest of his life. Drawing on Belgian legal text-books, Counsel for the applicant labelled that situation ‘consolidation’. As against that, the Commission points to the fact that the applicant subsequently produced a certificate dated
15 February 1969 prepared by Professor Zaffaroni of Milan, assessing his degree of invalidity at 55 % (File No 24) and certificates dated 25 January 1971 and
16 January 1971 prepared by Professor Zaffaroni and Dr Curci respectively, assessing the degree of his invalidity at 38 % (Annex XXI to the Rejoinder). The Commission accepts, however, that it is difficult to determine how far these different figures were the result of a worsening of the applicant's injuries and how far they represented subjective differences in assessment. It is fair also to say that those last two certificates were obtained by the applicant and sent by him to the Commission as the result of an inquiry addressed to him on behalf of the Commission late in 1970.
The facts — second period
To return to the story, on 18 January 1969 the Applicant wrote a note to the Commission by which he declined to accept the insurers' offer (Annex 22 to the Application). In that note he vigorously criticized Dr De Roover and pointed to the discrepancy between Dr De Roover's assessment of his injuries and the figures put forward by the doctors and dentins who had treated him. Also, by what seems to have been a stroke of legal insight, the applicant anticipated this Court's decision in the Duraffour case and drew the Commission's attention to its own obligations to himself under Article 73 of the Staff Regulations. This seems to have left the officials of the Commission responsible for handling the case nonplussed. Their difficulty was due to the absence of the rules envisaged by Article 73. On 14 February 1969 a note was addressed to the Legal Service of the Commission asking it to advise (File No 22). That advice was not however forthcoming unul 7 May 1969. In the meantime, in internal memoranda dated 21 February 1969 and 18 April 1969 it was suggested that the applicant should be invited to avail himself of the arbitration procedure provided for by the insurance policy (File Nos 23 and 32). This however was not done. The applicant's note of 18 January 1969 was left unacknowledged.
Irritated by that silence, as well he might be, the applicant on 3 March 1969 wrote a note to the official directly concerned warning him that he (the applicant) was about to approach the Director General of Personnel and Administration in person about the matter (Annex XX to the Rejoinder). That drew a reply, dated 6 March 1969, to the effect that his case was under consideration (Annex 21 to the Application). On 12 March 1969 the applicant did write to the Director General, then Mr Lambert, asking for a prompt decision (Annex 20 to the Application).
On 7 May 1969 the Legal Service gave its written advice, which was addressed to Mr Lambert (File No 32). It too anticipated the decision in the Duraffour case. The Legal Service advised that the rights of officials to invalidity benefit flowed directly from Article 73 of the Staff Regulations and not from the insurance contraa entered into by the Commission. The advice continued with a passage which is worthy of quotation:
‘on peut par consequent en conclure que lorsqu'un fonctionnaire se pretend victime d'un accident, l'Administration a le pouvoir et le devoir de reconnaître s'il s'agit effectivement d'un accident correspondant aux risques couverts par l'article 73 du Statut, d'évaluer et de fixer, le cas échéant, le taux d'invalidité en s'entourant des avis de médecins compétents, tels ses médecins contrôleurs ou conseils, et de verser au fonctionnaire l'indemnité prévue par l'article 73. Si le fonctionnaire n'est pas d'accord sur l'interprétation de l'article 73, sur la notion d'accident adoptée par l'Administration ou sur la constatation des faits de la cause ou sur le taux d'invalidité et celui de l'indemnité accordée il peut au titre de l'article 90 du Sutut présenter une réclamation à l'autorité investie du pouvoir de nomination et déposer au titre de l'article 91 un recours devant la Cour de Justice en demandant l'annulation de la décision prise par l'Institution.
Dans ces conditions, on ne voit pas très bien comment pourrait s'insérer une procédure d'arbitrage dans l'application de l'article 73 du Statut et quelle pourrait être son utilité.
’
That advice was of course correa. It was the Commission's duty to make its own assessment, under Article 73 of the Staff Regulations, of the degree of invalidity afflicting the applicant. If he disagreed with that assessment he was entitled to challenge it under Articles 90 and 91 of the Staff Regulations. Arbitration under the policy could only be between the Commission and the insurers; it was irrelevant so far as the applicant was concerned.
On 2 June 1969 the applicant wrote again to Mr Lambert protesting about the delays to which his case had been subjected and seeking an interview with him (Annex 19 to the Application). A month later, on 2 July 1969, the applicant had an interview with Mr Lambert, which was also attended by Mr Blenkers, the Head of the Individual Rights and Privileges Division. According to a contemporaneous note of that interview signed by Mr Blenkers, Mr Lambert, on the basis of the advice of the Legal Service, and in accordance with the applicant's wish, gave instructions for the degree of his invalidity to be assessed by the Commission's Medical Service, if necessary in collaboration with an appropriate specialin (Annex VII to the Defence). On behalf of the applicant it was pleaded that what in fact was agreed was that the assessment should be made by an independent doctor to be chosen by agreement between the Head of the Commission's Medical Service and the applicant's own doctor. This however does not accord with what the applicant himself wrote in a note dated 9 July 1969 to Dr Semiller, the Head of the Commission's Medical Service (File No 36). With that note the applicant sent to Dr Semiller copies of all the medical reports in his possession and, in it, told him that the Directorate General of Personnel and Administration would be asking him for an opinion. It does not however seem to me to matter what precisely was agreed, because whatever it was, virtually nothing was done to give effect to it during the next 18 months. On 6 February 1970 Mr Blenkers, in response to an inquiry by Mr Lamben about the state of affairs in the applicant's case, wrote that nothing appeared to have been done to give effect to the instructions give by Mr Lamben on 2 July 1969 (File No 38). No explanation of that inaction has ever been given by anyone on behalf of the Commission.
It appears that during 1970 officials of the Commission were busy negotiating at a leisurely pace with the insurers over a method of arbitration between the Commission and the insurers without the participation of the applicant (File Nos 39 to 46). On 16 November 1970 Mr Blenkers wrote to the Medical Service (File No 47) stating that the insurers had agreed to such an arbitration procedure, asking the Medical Service to nominate a doctor to represent the Commission in the arbitration, and stating that the applicant should only be informed of such parts of the proceedings as might appear to be an application of Article 73.
On 27 November 1970, and by reminders dated 22 December 1970 and 27 January 1971 Dr Semiller asked the applicant whether the medical treatment of the consequences of his accident had ended, and for the name of the doctor treating him (Annexes II, III and IV to the Defence). The applicant replied to those notes on 28 January 1971 pointing out that he would always require treatment as a result of the injuries he had received in the accident and explaining why. It was submitted on his behalf — and I agree — that this was not the same as admitting that the extent of his permanent invalidity could not be established. In response to the request for the name of his doctor, the applicant stated that the names of the doctors who had treated him were already apparent from the documents in the Commission's possession but that, in the circumstances, he had thought it right to seek up-to-date medical reports. He explained that, owing to the exigencies of his work, he had not been able to see the doctors concerned until the Christmas holiday and that this was why he had not replied sooner to Dr Semiller's notes (Annex 1 to the Reply). A few days later (on 1 February 1971) the applicant did forward to Dr Semiller the certificates drawn up by Professor Zaffaroni and Dr Curci to which I have already referred.
Shortly afterwards, on 16 February 1971, a note was written to Mr Lamben by Mr Reichert, the Director of Financial Service, concerning a claim under Article 73 by another official of the Commission (File No 53). Basing himself on the advice given by the Legal Service in May 1969, Mr Reichen suggested that the official concerned should be informed of the degree of invalidity assessed by the Commission in accordance with the opinion of its Medical Service, leaving him free to avail himself of Articles 90 and 91 of the Staff Reguladons if he wished to challenge that assessment, and that arbitration and setdement with the insurers could follow afterwards. Mr Reichert also suggested that that procedure should be applied in all similar cases. In the context of the present action, it is interesting to observe that Mr Reichert suggested that, by doing this, a liability for interest on the lump sum could be avoided. On 23 February 1971 Mr Lambert agreed to the adoption of that procedure, and on 14 April 1971 Mr Blenkers wrote to Dr Semiller asking him to apply it in (among others) the applicant's case (File No 54).
Dr Semiller's only reaction appears to have been to send to the applicant, on 22 July 1971, a note asking him to furnish a certificate from Dr Rosati stating when the treatment he had administered to the applicant had ended (Annex V to the Defence). To that note the applicant never replied in writing. At first sight it might be thought that he had already met its requirement when he had furnished Dr Rosati's certificate in September 1968. The next document on the file (Annex 18 to the Application) evinces however that, at that time, the applicant was still being treated by Dr Rosati. That document is another note, dated 23 September 1971, addressed by the applicant to Mr Lamben asking, in the mon polite terms, that a decision should be made on his claim. To that note the applicant annexed a summary of the medical reports he had already furnished and of the reasons why he would continue to need treatment at lean annually for the foreseeable future.
Quite what had happened between 22 July 1971 and 23 September 1971 is not clear from the papen, nor was it much clarified in the pleadings. All that is certain is that the applicant was on sick leave from 19 to 30 July of that year. It seems reasonable to suppose that he had a period of ordinary leave after that. It also seems reasonable to suppose that, as was suggested on his behalf, he had some oral communication with Dr Semiller on his return from leave.
At all events, the applicant's note caused Mr Lambert, on 11 October 1971, to ask Mr Reichen to inform him (Mr Lamben) of the state of affairs in the applicant's case (File No 58). In his note to Mr Reichert, Mr Lamben added that it appeared to him ‘indispensable’ that a decision should be reached in the applicant's case ‘dans des délais normaux’.
Mr Reichen replied to Mr Lambert's note on 15 October 1971 (File No 59). In so doing he recited the (by then) well-known facts of the case and concluded that, essentially, the Medical Service of the Commission had let the Commission down in that it had neither appointed a doctor for the arbitration with the insurers nor proceeded with its own assessment of the applicant's invalidity.
On 21 October 1971 Dr Semiller wrote again to the applicant asking whether his treatment had ended and, if not, what was the name of the doctor treating him (Annex VI to the Defence). On 4 November 1971, the applicant was examined by a Dr Ellens on behalf of the Commission's Medical Service. In the light of that examination, Dr Semiller gave it as his opinion, in a note dated 22 December 1971, that the applicant's degree of invalidity was 6 % (Annex VIII to the Defence). This appears to have enabled the Commission to settle fairly promptly with its insurers. On or about 4 February 1972 it was agreed that the insurers should pay a sum of 143386 Belgian francs on the footing that the applicant's degree of invalidity was 6o/o (File Nos 66, 66 bis and 66 ter). On 3 January 1972 an order for payment of the same sum had been drawn up in favour of the applicant (File No 69 bis). It was not however unul six months later, on 7 June 1972, that the applicant was notified of the decision that his degree of invalidity should be fixed at 6 % (Annex 12 to the Application, Annex IX to the Defence) and that the sum of 143386 Belgian francs was accordingly paid to him. Part of that six months seems to have been taken up in desultory discussion between officials of the Commission as to the scales to be applied, a problem that Mr Lambert had asked them to consider as early as November 1971 and which he had found it necessary to remind them of in January 1972 (see File Nos 62, 65 and 67). The rest of the delay has remained unexplained.
That brings me to the end of the second period.
Conclusions as to the second period
As I have already indicated the applicant contends that the Commission ought to have reached a decision as to the degree of his permanent invalidity by the end of September 1969. I have come to the conclusion that that contention is well founded. I make full allowance for the difficulties with which the Commission was confronted owing to the non-existence of the rules envisaged by Article 73. But by May 1969 it had been told by its own Legal Service what should be done, and in early July 1969 Mr Lamben had taken the trouble to give, personally, instructions that it should be done. A period of three months after that should have been sufficient to enable the Medical Service to give its opinion and for the Commission to reach a decision on the basis of that opinion. Instead of that, the inaction and procrastination which resulted in the decision of the Commission not being reached until 7 June 1972. I would accordingly hold that, as regards the second period, the Commission was liable for wrongful delay amounting to two yean and eight months (i.e. the whole of the years 1970 and 1971 plus three months in 1969 and five in 1972).
It was contended on behalf of the Commission that the applicant was to some extent himself to blame for that delay, in that on several occasions he had failed to answer, or failed promptly to answer, inquiries addressed to him by Dr Semiller. It does not however appear to me that those failures on the applicant's pan caused any substantial delay. Moreover, if I am right in thinking that the Commission ought to have reached its decision by the end of September 1969, Dr Semiller's inquiries addressed to the applicant in 1970 and 1971 were irrelevant.
It would in my opinion be reasonable for Your Lordships to assess the damages payable by the Commission to the applicant in respect of that wrongful delay by applying to the sum of 382361 francs which he finally received an interen rate of 8 % for two years and eight months. This, if my arithmetic is correct, would result in a figure of 81570 francs.
The facts — third period
The applicant's reaction to the award to him of the sum of 143386 francs was twofold.
Firn he returned that sum to the Commission. His motives in so doing are understandable enough, but it should be emphasized that he need not have done it. The payment of that sum to him had not been made in any way conditional on his accepting it in full setdement of his claim. As a matter both of fact and of law he could have kept the 143386 francs and pursued the balance of his claim.
Secondly the applicant, on 19 June 1972, submitted a complaint under Article 90 (2) of the Staff Regulations challenging the assessment made by the Commission of his degree of invalidity (Annex 11 to the Application).
As a result, the Commission decided to have the degree of the applicant's invalidity determined by an independent doctor appointed by mutual agreement between the Commission's medical adviser and the applicant's doctor. That decision was notified to the applicant on 25 September 1972 (Annex 10 to the Application). By the penultimate paragraph of the decision, the Directorate General of Personnel and Administration was entrusted with its implementation in conjunction with the applicant. In reply to a note written by the applicant on 18 December 1972 Mr Lambert confirmed to him on 29 January 1973 that the effect of the decision was to revoke that of 7 June 1972 (Annexes 8 and 9 to the Application). Nothing was, however, then said about the implementation of the new decision.
Dr Semiller was told of the procedure to be adopted under the decision by a note dated 24 January 1973 from the Head of the ‘Sickness, Insurance, Accidents and Occupational Diseases’ Service in the Directorate-General of Personnel and Administration (File No 76).
On 28 June 1973, the applicant wrote to Mr Baichère, the new Director General of Personnel and Administration, complaining, amongst other things, about the lack of attention being given to his case by the Medical Service and asking that it should be handled by someone other than Dr Semiller (Annex 7 to the Application). The applicant was at that time about to leave the Commission's service under the provisions of Council Regulation No 2350/72. He did so with effect from 1 July 1973. In that note he gave Mr Baichère the address at which it would be possible to reach him in Italy.
By a note dated 6 July 1973, enlarged upon, it seems, in a telephone conversation on 9 July, Dr Semiller informed the Directorate General of Personnel and Administration that despite repeated inquiries in March, May and June the Medical Service had failed to obtain from the applicant the name of the doctor chosen by him to act jointly with Dr Semiller in appointing the independent doctor envisaged in the Commission's decision of 25 September 1972. The inquiries were said to have been oral (Annex X to the Defence and File No 80). Dr Semiller was instructed to write to the applicant in Italy, by express registered mail, to ask him to nominate the doctor who was to act for him for that purpose. Such a letter was sent by Dr Semiller to the applicant on 12 July 1973 (Annex XI to the Defence). It requested a reply by 31 August 1973. No reply thereto having been received from the applicant, a reminder was sent to him on 19 September 1973, again by express registered mail (Annex XII to the Defence). In a note dated 16 October 1973, Dr Semiller recorded that he had at that date still received no reply from the applicant (File No 88), but on 29 October 1973 Mr Baichère was able to address to Dr Semiller a note saying that the applicant had just ‘confirmed’ that Professor Zaffaroni was the doctor who would an on his behalf (File No 90). In that note Mr Baichère asked Dr Semiller now to accelerate ‘la conclusion de ce dossier’.
For some reason Dr Semiller left it till 12 December 1973 before he wrote to Professor Zaffaroni asking for his suggestions as to how they should proceed (Annex XIII to the Defence). On 21 January 1974 he sent him a reminder (Annex XV to the Defence). The reminder crossed Professor Zaffaroni's reply which was also dated 21 January 1974 and in which he explained that the delay had been due to his absence from Milan for the Christmas holidays (Annex XIV to the Defence). Professor Zaffaroni put forward three names of specialists in Milan from among whom an umpire might be chosen and suggested that the umpire might either examine the applicant in the presence of the doctors representing the parties with a view to the three making a joint assessment, or that he might make his assessment alone after receiving written opinions from the other two. On 5 March 1974 Dr Semiller replied accepting the first name on Professor Zaffaroni's list, that of Professor Pariini, but saying nothing as to the procedure to be followed (Annex XVI to the Defence). By a letter dated 18 March 1974 Professor Zaffaroni agreed to that nomination and also asked Dr Semiller either to nominate a doctor to represent him or to give his assent to Professor Parrini acting alone (Annex XVII to the Defence). On 22 May 1974 the applicant wrote again to Mr Baichère asking that the matter should be expedited (File No 99). On 27 May 1974, Dr Semiller wrote to Professor Parrini informing him that he had been appointed to act as umpire, enclosing the Commission's scales for calculating degrees of invalidity, but saying nothing about the actual procedure to be followed other than that Professor Parrini should send his opinion and his fee note to the Commission at its address in Brussels (Annex XVIII to the Defence).
On 2 July 1974, the applicant was examined by Professor Parrini in Milan in circumstances which have given rise to controversy. There has been placed before us a letter dated 2 May 1977 from Professor Parrini to the Applicant's Counsel (Annex 3 to the Reply) in which Professor Parrini states that his secretary telephoned the Commission's Medical Service twice to inform it of the date of the examination; that she was assured that a representative of that Service would attend; and that, on the day, he and Dr. Zaffaroni waited an hour for that representa uve to tum up, after which he (Professor Parrini) proceeded with the examination. On behalf of the Commission on the other hand it was stated that Dr Semiller never received notice of the date of the examination; and he was profferred as a witness to that effect. The Court did not however summon him or Professor Parrini's secretary as witnesses because the material question here is not why what happened happened, but whether the Commission dealt with it with reasonable promptitude. Very possibly the Medical Service of the Commission was informed of the date of the examination but the message failed to get through to Dr Semiller.
Conclusions as to the third period
So ended the third period. It would in my opinion be far from just to the Commission to hold, as the applicant in effect invited us to do, that the whole of it constituted a period of wrongful delay on its part. There was no undue delay on the Commission's part in formulating on 25 September 1972 its decision on his complaint of 19 June 1972. Moreover the nature of that decision was such that its implementation must necessarily take a certain amount of time. Nor does it seem to me that the applicant himself was wholly free from blame for delays. Whatever the reasons, it was not till October 1973 that he nominated a doctor to take part on his behalf in the procedure envisaged by that decision. It is, in my opinion, no answer to that to say, as was said on his behalf, that the Commission knew well who his doctor was. In fan he had consulted a number of doctors and dentists. Anyone in possession only of the facts appearing from the papers available to the Commission might well have guessed that the person currently treating him was Dr Rosau. But that guess would, as it turned out, have been wrong; and, in any case, the Commission was under no obligation to make a guess.
On the other hand there can be no doubt that, during this period too, certain officials of the Commission were guilty of unexplained and excessive delays, which go part of the way to explain why the Commission's decision of 25 September 1972 was not implemented until July 1974. Thus it has not been explained why it took from 25 September 1972 to 24 January 1973 for Dr Semiller to be instructed to implement the decision, nor why it then took Dr Semiller until March 1973 before he first asked the applicant to nominate a doctor. There is there a period of six months that seems to have been wholly wasted. Nor has it been explained why, after Dr Semiller had received Mr Baichère's note of 29 October 1973, it took him until 12 December 1973 to write to Professor Zaffaroni, nor why after he had received Professor Zaffaroni's letter of 21 January 1974, it took him until 5 March 1974 to reply to it, and then incompletely. There was a further such gap between Professor Zaffaroni's letter to Dr Semiller of 18 March 1974 and the tatter's reply of 27 May 1974.
All in all it would in my opinion be fair to hold that the Commission was responsible during the third period for wrongful delays amounting to nine months. It would not however, in my opinion, be fair to assess the damages in respect of those delays by applying a rate of interen to the whole sum of 382361 francs. The applicant had, at the beginning of the period, received the sum of 143386 francs and the circumstance that he had returned it ought not, in my opinion, to result in an increase in the Commission's liability. I would therefore assess the damages for this period by applying the 8 % interest rate to the balance of 238975 francs. This would mean, according to my arithmetic, an award of 14338 francs.
The faca — fourth period
On 23 July 1974, Professor Parrini sent his repon to Dr Semiller (Annex XIX to the Defence), mentioning that Professor Zaffaroni had been present at the examination, and fixing the applicant's degree of invalidity at 17 %. There is no record of any reaction to this by Dr Semiller until 3 December 1974 when he sent a note to Mr Rogalla, the Head of the Staff Regulations Division of the Commission, informing him of Professor Parrini's opinion, complaining about the circumstances of the examination, and stating that in the opinion of the Commission's Medical Service, ‘after fresh examination and on the basis of the scales now applicable at the Commission’, the applicant's degree of invalidity was 5.5 % (Annex XXVI to the Rejoinder). To that note there appears to have been no reply until 16 May 1975.
In the meantime, on 15 April 1975, the applicant wrote to a Member of the Commission asking him if he would intercede with the Directorate General of Personnel and Administration with a view to its reaching some decision following his examination by Professor Parrini (Annex 6 to the Application). To that the Member of the Commission in
question replied promising an early decision (Annex 5 to the Application).
On 16 May 1975 Mr Rogalla addressed a note to Dr Semiller saying that Professor Parrini should not have afforded Dr Zaffaroni the opportunity of being present at the examination and of subsequently discussing the case without according the same facilities to Dr Semiller's Service. He advised that a meeting be arranged as soon as possible between that Service and Professor Parrini ‘thus ensuring to the Commission the opportunity of a discussion with Professor Parrini as to a just percentage of disability’ (File No 105). Eventually such a meeting took place on 22 September 1975, but not until after Dr Semiller had, seemingly, against Mr Rogalla's advice, explored the possibility of having Professor Parrini replaced by another umpire (File Nos 106 and 108). The meeting was apparently followed by an exchange of medical correspondence. In the midst of this, on 21 October 1975 the applicant submitted a request under Article 90 (1) of the Staff Regulations for a decision as to his degree of invalidity. He also asked that, in view of the delay for which the Commission had been responsible, the sum that would be due to him as a result of such decision should be paid to him with interest (Annex 3 to the Application). On 28 October 1975 Mr Rogalla wrote to Dr Semiller informing him of that request and asking him to press Professor Parrini for some observations that he had promised so that, as soon as they were received, the case could be disposed of.
Having (on a date that does not appear from the papers) received those observations, whereby Professor Parrini adhered to his assessment of 17 %, Dr Semiller, on 20 January 1976, wrote a long note to Mr Rogalla explaining why he could not agree with that assessment and considered that the maximum should be 6 % (File No 114). To that Mr Rogalla replied on 23 January 1976 that, whilst he did not question Dr Semiller's medical judgment, the fact was that the Commission had decided on 25 September 1975 that the degree of the applicant's invalidity should be assessed by an independent doctor appointed by mutual agreement and that his assessment could not be made subject to the approval of the Commission's Medical Service. The sole reason why Professor Parrini's opinion had been questionable was because he had examined the applicant in the presence of his own doctor but in the absence of any representative of the Commission's Medical Service. That flaw had since been remedied, Dr Semiller having had an opportunity of putting his views to Professor Parrini. It must follow that, if Professor Parrini's opinion had been given objectively and honestly (and it would be extremely difficult to prove that it was not) it must be accepted (File No 116). It has of course at no time been suggested that Professor Parrini's opinion was anything other than honest and objective.
Consistently with Mr Rogalla's view, which was in my opinion indubitably correct, a letter to be addressed to the applicant was on the same day (23 January 1976) prepared for Mr Baichère's signature. By that letter the applicant was to be informed that, following Professor Parrini's opinion, his degree of invalidity had been assessed at 17 %. The letter was signed by Mr Baichère on 28 January 1976 but was never sent. It was stopped because on the same day (28 January 1976) Dr Semiller addressed a strongly worded note to Mr Rogalla disputing his view (File No 117). As a result of that, a meeting was held on 4 February 1976 at which it was agreed that Dr Semiller should seek further clarification of his opinion from Professor Parrini (see File No 118). The outcome was a long letter from Professor Parrini dated 28 April 1976 in which he refuted Dr Semiller's criticisms of his opinion and pointed out that the method of computation he had used was such that his assessment could easily be converted to fit any scales of degrees of invalidity used by the Commission (File No 121).
On 19 May 1976 the applicant submitted a complaint under Article 90 (2) of the Staff Regulations against the implied decision rejecting his request of 21 October 1975 (Annex 2 to the Application).
On 12 July 1976 a note was written to Dr Semiller on behalf of the ‘Accidents and Occupational Diseases’ Section of the Directorate of Personnel and Administration urgently pressing him to effect the mathematical conversion from the scales used by Professor Parrini to the scales used by the Commission; Dr Semiller was asked to reply to that note by 15 August at the latest (File No 123). He did not do so. On 23 August 1976 a further note was sent to him by the same Section emphasizing the urgency of the matter (File No 124). On 29 August 1976 an eloquent memorandum was written to Mr Baichère by the Head of the responsible Division in the Directorate of Personnel and Administration, recounting all the difficulties that that Division had had over the case with Dr Semiller. A copy of that note was sent to, inter alios, Dr Semiller (File No 125).
On 6 September 1976, following a telephone conversation between someone in the ‘Accidents and Occupational Diseases’ Section and someone in the Medical Service, Dr Semiller produced a series of tables that can hardly be described as a mathematical conversion (File No 126). They were rather a tabulation of the respects in which his opinion differed from Professor Parrini's.
On 16 September 1976 Mr Baichère wrote to the applicant to say that his degree of invalidity had been assessed at 16 % and that he would accordingly be paid 382361 francs (Annex 1 to the Application).
Conclusions as to the fourth period
Manifestly, again during the fourth period there were unconscionable delays for which the Commission must be held liable. The difficulty is to assess their extent.
There was first a delay of over four months between the date of Professor Parrini's original repon (23 July 1974) and Dr Semiller's first reaction to it (3 December 1974). There was then a delay of over five months before Mr Rogalla replied to Dr Semiller's note of 3 December 1974 on 16 May 1975.
We were pressed on behalf of the applicant to hold the Commission liable also for the delay that then followed, while Dr Semiller was exploring the possibility of having Professor Parrini replaced by another umpire. I do not for my pan think that it was unreasonable, in the circumstances, for Dr Semiller to do that, particularly as he soon gave up the attempt.
Nor do I think that the Commission can be held liable in damages for the delay that occurred between 22 September 1975, when Dr Semiller first saw Professor Parrini, and 28 April 1976, when Professor Parrini wrote his letter finally refuting Dr Semiller's views. No doubt, with hindsight, one can say that it would have been better if Dr Semiller had accepted the views expressed by Mr Rogalla in his note of 23 January 1976. But Dr Semiller seems to have been trying to do his best in what he conceived to be the Commission's interests. The course he then took was in my opinion ill-judged rather than wrongful.
There is on the other hand to my mind no excuse for Dr Semiller's procrastination after he had received Professor Parrini's letter of 28 April 1976. It would not in my opinion be unfair to estimate the delay thereby wrongly caused at three months.
I would accordingly hold the Commission liable for wrongful delays during the fourth period amounting in all to twelve months. The appropriate measure of the damages being in my opinion 8 % of 238975 francs, I would award the applicant 19118 francs in respect of them.
Final conclusions
My total award would therefore be:
In respect of the second period
81 570 francs
In respect of the third period
14 338 francs
In respect of the fourth period
19 118 francs
Total
115 026 francs
or, say, 115000 francs.
The question remains whether that sum itself should carry interest and, if so, at what rate and from what date.
In my opinion it would be right to follow the precedents set by the Lepape and Sergy cases and to award interest on the damages. The Campolongo case is distinguishable because the sum awarded there itself contained an element of compound interest.
As to the rate of interest, I see no reason to suggest any other than 8 %.
As to the date from which interest should run, it seems to me that the date fixed in the Sergy case, i.e. the date of the complaint under Article 90 (2), would here be too early since it fell in a period in respect of which the damages themselves are in pan payable, whilst the date fixed in the Lepape case, i.e. that of the application to the Court, would perhaps here be a little late. Your Lordships have, I apprehend, a wide discretion in the matter and I think that, probably, justice would be done if Your Lordships ordered interest on the damages to run from the date of the Commission's decision finally assessing the lump sum payable to the Applicant, i.e. from 16 September 1976.
Lastly, the applicant is in my opinion entitled to an order for costs.