OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 27 OCTOBER 1983

My Lords,

On 27 November 1981 an Invalidity Committee appointed under Article 9 of and Annex II to the Staff Regulations found that Mr Cohen, then employed by the Commission in Grade L/A 4, was affected by a total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket for the purposes of Article 78 of the Staff Regulations. The Committee declared, however, that the invalidity was not due to any of the factors referred to in the second paragraph of that article. The Commission accordingly issued a decision dated 11 December 1981 that he should be retired on 1 January 1982 pursuant to Article 53 of the Regulations. The amount of the pensions was fixed under the third paragraph of Article 78 on the basis of what he would have been entitled to at age 65 if he had remained in service. That amount is lower than the amount which would have fallen to be paid under the second paragraph of Article 78. Mr Cohen lodged a complaint against the Commission's decision which was rejected by the Commission on 5 October 1982. He now seeks the annulment of such part of the Invalidity Committee's decision as ruled that his invalidity did not result from a public-spirited act, of the Commission's decision of 11 December 1981 and of the Commission's rejection of his complaint, on a number of substantive and procedural grounds. In the alternative, he asks for a declaration that Article 78, paragraph 2 is to be read as requiring the higher pension to be paid for public-spirited acts committed before he entered into the Commission's employment. He asks for a new Invalidity Committee to be appointed, alternatively for an enquiry to be held to establish whether or not the Committee ever considered the causal connection between his current condition and the acts upon which he relies.

Mr Cohen's underlying contention is that his invalidity arises from his activities in the Dutch resistance in the 1939—45 war and that these qualify him for higher rate of pension provided by the second paragraph of Article 78.

To this end he has referred to a certificate from his general practitioner, Dr Gohdes, who was appointed by him as a member of the Invalidity Committee and which bears the same date as the Committee's report. That certificate states that it was very probable that there was a relationship between Mr Cohen's medical condition and the years which he had spent in the Dutch resistance. In similar vein, is a certificate dated 2 February 1982 from a neurosurgeon, Dr Langie to the effect that it was likely that the condition he described was connected with the life which Mr Cohen had led in the resistance. Mr Cohen also relies upon the fact that his claim for a special pension from the Dutch authorities on the basis of his bravery in the resistance movement, and of the medical state resulting from it, was accepted on 6 December 1982.

He complains that in violation of Article 25, paragraph 2 of the Staff Regulations, the grounds on which the Committee's and the Commission's decisions were taken, adversely affecting him, are not stated. Moreover, he says that Article 78 and certain general rules of law, requiring reasons to exist for a decision, were not observed. The Committee did not go into the question as to. the causation of his illness and did not even ask him about it. On the face of their decision, he says that it is- quite impossible to know whether they ignored or were unaware of the public-spirited acts upon which he relies, or whether they: rejected them because they considered that they did not constitute public-spirited acts, or because in law they could not be taken into account. It is submitted that the Committee were wrong in fact in rejecting the causal link between his activities and his condition; they were wrong in law in that they excluded them as taking place before the period of his employment.

The Commission replies that the Committee is not required to give more reasons than it did in the light of the provisions of Article 9, paragraph 3, of Annex II to the Regulations, that the proceedings of the Committee shall be in secret. Moreover it is said that the general practitioner Dr Gohdes's attention, having been particularly drawn to the second paragraph of Article 78, the Committee did expressly rule that there was no link between a public-spirited act and his condition and that ruling is final. The fact that other medical evidence might contradict the Committee is irrelevant. In any event it is said that these acts cannot be relied on as a matter of law because of the time when they occurred; participation in the resistance movement is not to be treated as a public-spirited act within the meaning of the Regulations.

I agree with the Commission that the claim for annulment of the rejection of the complaint is inadmissible. That however leaves the essential question as to whether the Invalidity Committee's decision and the Commission's first decision are invalid.

The Committee's finding that the invalidity does not arise from an accident in the performance of his duties or from an occupational disease, or from a public-spirited act or from risking his life to save another human being is in general terms. That finding does not indicate that the Committee considered the wartime activities or whether there was a causal link between these and his invalidity. There is no evidence that they were expressly asked to do so, nor has any file been produced to show that this issue was raised. If it was not raised, and there was nothing to indicate the point, then it seems to me that Committee were entitled to give their decision in general terms as they did (see by way of analogy Case 257/81 K. v Council judgment of 12 January 1983 (not yet published). If however the point was raised, it seems to me that the Committee should have made a finding as to whether there was a causa! link between the activities and the condition. I do not accept the Commission's argument that the secrecy of the medical proceedings entitle them, the Committee, to refuse to do this. Such a finding of causation or lack of causation can easily be made without medical secrets being revealed in the Committee's decision. Nor do I accept the Commission's arguments that, because his general practitioner, a member of the Committee knew about his activities, the Committee must have gone into the question. Nor do I accept the Commission's argument that it is a sufficient remedy for Mr Cohen to be able to talk to his own nominee about the problem.

However, leaving aside these points, the essential question remains as to whether acts done before employment can be relied on for the purposes of Article 78, paragraph 2. For the purpose of considering that question, I assume that the acts here were capable in law of constituting public-spirited acts and that there was a causal link between them and his condition.

The matter then becomes one of interpretation. I reject the argument put forward on behalf of Mr Cohen that the wording here is so clear, leading only to one possible reading of the text that there is no need to construe the matter at all. There is, it seems to me, an inherent ambiguity in the words which has to be resolved. I would not however, take into account the proposal for a Commission Regulation which was made by the Commission and to which Counsel for the Commission has referred. It seems to me that the essential task is to look at the words in the context of the regulation and to ask whether the public-spirited act can, as a matter of interpretation, occur at any time or only during the period of employment.

It is to be noted that the first category of qualifying acts in the second paragraph of Article 78 is that where the accident occurs “in the course of or in connection with the performance of his duties”. That provision clearly relates only to events occurring during the period of his employment. The express provision is there, however, as I read it, in order to exclude accidents occurring in situations not related to the employment rather than to define the relevant period. It does not seem to me to follow, because there is an express limitation of the first category, that a failure to include a limitation for the others means that they are to be read without limitation of time.

The second category in the second paragraph is “occupational disease” which causes invalidity and the third, a public-spirited act or risking of life to save another human being. Finally, in the third paragraph comes invalidity due to some other cause. In none of these is any time specifically indicated. It is however to be noted that, in contrast with Article 73 of the Regulations, where benefits are provided for occupational disease or accident, Article 78 requires that the invalidity shall prevent the official from performing his duties. It is therefore to be seen in the context of a period of employment.

Obviously, as Mr Cohen argues, the quality of the act may be the same whenever it occurs. A pre-service act may be even more meritorious than a different act done during service. This however is not the test. The sole question is one of interpretation of the time when the relevant events in order to qualify must occur.

In broad terms, a pension paid to an employee is to compensate for what is done or what happens during service. A retirement pension is for a period of service rendered and is a form of deferred salary. An invalidity pension is paid to compensate for an invalidity arising during service. It seems to me that as a matter of construction the ultimate cause of the invalidity for the purposes of the second paragraph of Article 78, must also occur during the period of service. The cause of the invalidity may be an event or it may be an aggravation of an existing condition. Where an event is specified as giving entitlement to the person, without any indication as to when the event must occur in order to qualify, in my view, the event must occur during the period of service. Thus, if there had simply been a provision in paragraph 2 that the higher pension is payable if the invalidity arises from an accident, without more, I would have construed that as meaning an accident occurring during service. Deterioration of a preexisting condition due to an accident which caused invalidity during service would, in my view, be capable in law of being “some other cause” within paragraph 3 of Article 78, even if the original accident occurred pre-service. In the same way, the public-spirited act, or the risking of life to save another, must in my view, occur during service. Deterioration during service, or a preexisting condition due to a public-spirited act done pre-service, which causes invalidity during service, is again due to “some other cause” and therefore within paragraph 3 of the Article.

I am accordingly of the opinion that since, in the present case, the facts specified, assuming that they constituted public-spirited acts, did not occur during service, they cannot be relied on for the purposes of Article 78 (2). Since no other events during service are relied on, the Invalidity Committee and the Commission came to the only conclusion to which they could come in law.

Accordingly, in my view, the application should be dismissed and each side should bear its own costs.