JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

15 July 1997

Case T-187/95

R

v

Commission of the European Communities

‛Officials — Sickness insurance scheme — Occupational disease — Concept of risk — Defective opinion of the Medical Committee’

Full text in French II-729

Application for:

in the first place, annulment of the Commission decision of 14 December 1994 rejecting the request that the disease from which the applicant's husband died should be recognized as occupational in origin, second, for default interest, and, third, for compensation.

Decision:

Annulment.

Abstract of the Judgment

The applicant's husband (Mr R) worked as a chemist in the Community institutions from 1958 to 1986, the year of his death. He was posted to a number of nuclear research centres.

In 1979, doctors detected indications that Mr R was infected with the Hepatitis B virus. Although the infection was treated, it became chronic from 1981. Mr R's state of health went into steady decline until his death on 21 June 1986.

By letter of 8 October 1986, the applicant asked the defendant to accept that her husband's disease had been occupational in origin and sought entitlement under Article 73(2) of the Staff Regulations applicable to Officials of the European Communities (‘the Staff Regulations’), which applies where an official has died as the result of an occupational disease.

Basing itself on a medical report drafted by the doctor acting for the appointing authority, and following an additional investigation by a radiologist at the Catholic University of Louvain (Belgium), the defendant informed the applicant, by letter of 19 March 1990, of its view that there was no causal link between the radiation to which Mr R had been exposed during his working life and the disease which led to his death.

By letter of 28 October 1991, the applicant applied for the matter to be brought before a Medical Committee pursuant to Article 23 of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (‘the Rules’).

The instructions given by the appointing authority to the Medical Committee, in their final version, were to determine:

— whether the disease from which Mr R died featured on the European List of Occupational Diseases; and

— whether the performance of his duties was the essential or preponderant cause of the disease from which he died or whether it could have contributed to the aggravation of a preexisting disease.

On 8 December 1993, the Medical Committee concluded that there had been no causal link between Mr R's profession and the infection with Hepatitis B.

Since those conclusions did not state explicitly whether the disease from which Mr R died was included on the European List of Occupational Diseases and did not cover the period during which Mr R was working in Bologna, the defendant requested the Medical Committee to draft an additional report setting out clearly its views on these two matters.

In its additional report, dated 2 May 1994 and signed by two of its three members, the Medical Committee concluded that ‘it does not appear that [Mr R] was subject to excessive occupational exposure to ionizing radiation throughout his entire career’.

On 14 December 1994, the defendant informed the applicant that it supported the view taken by the Medical Committee and that it could therefore not accede to the request that Mr R's disease be recognized as having been occupational in origin.

The forms of order seeking annulment

The first plea in law, based on procedural irregularities

The applicant contends that the defendant committed four procedural irregularities. First, she claims that it adversely affected the procedure by badly wording the instructions given to the Medical Committee and misleading the examination of the medical issues. Second, she submits that the defendant failed to provide the Medical Committee with all relevant information. Third, the procedure was, she claims, unduly lengthy. Fourth, she argues that the appointing authority wrongly failed to issue a second formal set of instructions to the Medical Committee following referral of the first medical report.

The allegedly mistaken course of the procedure

The medical assessments, properly speaking, drafted by the Medical Committee must be regarded as definitive where they have been issued under proper conditions. Judicial review can be exercised only in regard to the question whether such a Committee was properly established and operated correctly, as well as in regard to the propriety of the opinions which it issues (paragraph 35).

See: T-64/94 Benecos v Commission [1995] ECRSC II-769, para. 42; T-376/94 Onen v Commission [1996] ECRSC II-401, para. 47; T-10/95 Chehab v Commission [1996] ECRSC II-419. para. 41

For a Medical Committee validly to issue a medical opinion, the instructions given to it must inter alia cover all the issues which it must examine for the purpose of applying the relevant provisions of the Rules (paragraph 36).

In order to examine whether the instructions given to the Medical Committee were in this case correctly worded, it is first necessary to identify the medical issues which had to be examined for the purpose of applying the relevant provisions (paragraph 37).

In this case, the relevant provision is Article 3 of the Rules. The scheme organized by Article 3(1) and (2) of the Rules operates around a central criterion: the inclusion of the disease in question on the European List of Occupational Diseases. If the disease features on that list, it will be occupational in nature if it is established that the official was exposed to the risk of contracting that disease in the performance of his duties (Article 3(1)). If the disease is not included on that list, it can be considered an occupational disease only if it is sufficiently established that it arose in the course of or in connection with the performance of his duties with the Communities (Article 3(2)) (paragraph 38).

The difference in the scheme applicable to these two situations can be explained by the Community legislature's desire to increase the protection of those workers whose work makes them more liable to the development of certain diseases by limiting the requirements of proof that they were occupational in origin (paragraph 39).

The exposure of the person concerned, in his work, to the risk of contracting the disease presupposes that there is a link, even if only potential, between the disease and the work. In the case where the disease from which the official died is included on the European List of Occupational Diseases, his heirs and next-of-kin need not show that the work was in fact the cause of the disease, but that it is plausible that the official contracted it while performing his work, that is to say, that there is a possibility that the disease had its origin in his work (paragraph 40).

It follows that, in order to determine whether the conditions set out in Article 3(1) of the Rules have been satisfied, the appointing authority must invite the Medical Committee to examine whether the person concerned was exposed, during his work with the European Communities, to the risk of contracting one of the diseases included on the European List of Occupational Diseases (paragraph 41).

In this case, despite the incomplete nature of the instructions given to it, the Medical Committee examined all the medical issues which had to be examined for the purpose of applying Article 3(1) of the Rules (paragraph 44).

The alleged inadequacy of the documents sent to the Medical Committee

For a Medical Committee validly to issue a medical opinion, it must be in a position to have notice of all documents which may be useful for its assessments (paragraph 49).

In this case, it is clear from the defendant's written replies to the questions put by the Court on 7 March 1997 and from Mr R's medical file that the Medical Committee did not have the whole of that file available to it (paragraph 50).

Lacking a complete medical file, that Committee acted in an irregular manner, with the result that its report was defective.

Taking account of the disease in question, the results of analyses, inter alia of Mr R's urine or blood, among them some 30 measurements of radionuclide levels which were not sent to the Medical Committee, were, in the Court's view, likely by their nature to be relevant for the Medical Committee's assessment. It cannot therefore be discounted that if the Committee had had access to those results the conclusions reached in its report might have been different.

Since that medical report constitutes the only basis of the contested decision, that decision is also defective.

The forms of order seeking compensation

With regard to the claim that the defendant be ordered to pay the applicant one symbolic Ecu by way of compensation for the nonmaterial damage suffered, the annulment of a measure contested by an official may in itself constitute appropriate and normally adequate compensation for the damage which that official may have suffered (paragraph 61).

See: T-52/90 Volger v Parliament [1992] ECR II-121, para. 46; Otten v Commission, cited above, para. 55

The claim for default interest

The grant of default interest may be considered only where the amount of the principal sum owed is certain or can at least be ascertained on the basis of established objective factors, and if payment of the compensation has then been unduly delayed by the administration (paragraph 66).

See: T-361/94 Weir v Commission [1996] ECRSC II-381, para. 52 and the case-law there cited

Given that the forms of order seeking annulment have been upheld on the ground that the work carried out by the Medical Committee was vitiated by a formal defect, it is not for the Court to give a view on the principle or, a fortiori, on the amount of any claim which the applicant may have against the defendant under Article 73 of the Staff Regulations. Those factors must consequently, in the context of the present case, be regarded as not having been established (paragraph 67).

Operative part:

The Commission decision of 14 December 1994, rejecting the request that the disease of the applicant's deceased husband be recognized as having been occupational in origin, is annulled.

The claim for compensation is rejected.

It is unnecessary to rule on the claim for default interest.