JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

6 December 2012

Case T‑390/10 P

Paulette Füller-Tomlinson

v

European Parliament

(Appeal — Civil service — Members of the temporary staff — Social security — Occupational disease — Fixing of the rate of invalidity attributable to occupational disease — Application of the European Guide for Assessment, for medical purposes, of Physical and Mental Impairments — Distortion of the facts — Reasonable time)

Appeal: against the judgment of the Civil Service Tribunal of the European Union (Third Chamber) of 1 July 2010 in Case F‑97/08 Füller-Tomlinson v Parliament [2010] ECR-SC seeking to have that judgment set aside.

Held: The appeal is dismissed. Ms Paulette Füller-Tomlinson is to bear her own costs and to pay those incurred by the European Parliament in the course of the present proceedings.

Summary

1. Appeals — Pleas in law — Plea directed against a superfluous ground — Invalid plea in law — Rejection

2. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the facts and the evidence — Possible only where the clear sense of the evidence has been distorted

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1))

3. Appeals — Pleas in law — Inadequate statement of reasons — Civil Service Tribunal’s use of an implied statement of reasons — Lawfulness — Conditions

(Statute of the Court of Justice, Art. 36 and Annex I, Art. 7(1))

4. Appeals — Pleas in law — Need for a precise criticism of a point in the reasoning of the Civil Service Tribunal

(Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11; Rules of Procedure of the General Court, Art. 138(1), first para., (c))

5. Officials — Social security — Insurance against the risk of accident and of occupational disease — Invalidity — Fixing by the scale of an invalidity rate or range of invalidity rates — Discretion of the Medical Committee — Limits — Binding nature of the scale

(Staff Regulations, Art. 73(1) and (2)(c); Rules on insurance against the risk of accident and of occupational disease, Art. 11)

6. Appeals — Pleas in law — Plea submitted for the first time in the context of the appeal — Inadmissibility

(Rules of Procedure of the General Court, Arts 48(2), 139(2) and 144)

7. Officials — Social security — Insurance against the risk of accident and of occupational disease — Recognition of the occupational origin of the illness and fixing of the degree of permanent invalidity — Procedure — Making all relevant documents available to the doctor(s) appointed by the institutions — No full investigation — Irregularity

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 18)

8. Union law — Principles — Duty to act within a reasonable time — Breach in an administrative procedure — Effects

(Charter of Fundamental Rights of the European Union, Art. 41(1))

1. See the text of the decision.

(see paras 27, 71)

See:

C‑294/95 P Ojha v Commission [1996] ECR I‑5863, para. 52; judgment of 7 April 2011 in C‑321/09 P Greece v Commission, not published in the ECR, para. 61

T‑167/09 P Commission v Liotti [2012] ECR-SC, para. 21 and the case-law cited therein

2. See the text of the decision.

(see paras 41, 96, 110)

See:

T‑184/11 P Nijs v Commission [2012] ECR-SC, para. 29 and the case-law cited therein

3. See the text of the decision.

(see para. 44)

See:

T‑266/08 P Kerstens v Commission [2010] ECR-SC and the case-law cited therein

4. See the text of the decision.

(see paras 48-49, 77-78)

See:

C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, para. 34; C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, para. 68; C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, para. 426

T‑338/07 P Bianchi v ETF [2010] ECR-SC, para. 59; T‑98/11 P AG v Parliament [2012] ECR-SC, para. 24 and the case-law cited therein

5. Article 73(2)(c) of the Staff Regulations, which states that, in the event of partial permanent invalidity, the benefit paid to the official concerned is ‘calculated by reference to the scale laid down in the [common] rules’ on the insurance of officials against the risk of accident and of occupational disease, does not confer a binding character on the scale. Such wording, which merely implies that the benefit in question is determined on the basis of the types of physical and mental impairment listed by the scale and the invalidity rates or range of invalidity rates associated with them, may not be regarded as giving any indication whether the scale is binding or optional.

By contrast, Article 11(1) of the Insurance Rules, which states that total or partial permanent invalidity is to be measured in terms of physical or mental impairments ‘as laid down in the European … scale’, must be interpreted, on the basis of the terms used, as requiring the physical and mental impairments to be determined in accordance with the scale, thus conferring on it a binding character.

The Civil Service Tribunal therefore did not commit an error in law, in the light of the provisions of Article 73(2)(c) of the Staff Regulations and Article 11(1) of the Insurance Rules, in considering that the Medical Committee’s freedom of assessment concerns only the finding of the pathology from which the insured person is suffering and that, once that finding has been made, when it comes to determining the person’s physical and mental impairment, that freedom of assessment is circumscribed by the scale.

(see paras 60-62)

6. See the text of the decision.

(see para. 94)

See:

Nijs v Commission, paras 29 and 66 and the case-law cited therein

7. See the text of the decision.

(see para. 105)

See:

T‑48/01 Vainker v Parliament [2004] ECR-SC I‑A‑51 and II‑197, para. 133

8. See the text of the decision.

(see paras 115-116)

See:

C‑39/00 P SGA v Commission [2000] ECR I‑11201, para. 44; Greece v Commission, para. 32 and the case-law cited therein

T‑67/01 JCB Service v Commission [2004] ECR II‑49, paras 36 and 40 and the case-law cited therein; T‑394/03 Angeletti v Commission [2006] ECR-SC I‑A‑2-95 and II‑A‑2-441, para. 162