JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

14 September 2010

Case F-79/09

AE

v

European Commission

(Civil service — Officials — Social security — Occupational sickness and accident insurance — Article 73 of the Staff Regulations — Refusal to recognise the occupational origin of a disease — Hypersensitivity to electro-magnetic fields)

Application: brought under Articles 236 EC and 152 EA, in which AE seeks annulment of the Commission’s decision of 15 December 2008 refusing to recognise his medical condition as an occupational disease, and annulment of the Commission’s decision rejecting his complaint against that decision, together with an order that the Commission pay EUR 12 000 in compensation for the non-material damage which he considers he suffered.

Held: The Commission is ordered to pay the sum of EUR 2 000. The remainder of the claims in the action are dismissed. The Commission is ordered to bear its own costs and pay a quarter of the applicant’s. The applicant is ordered to bear three quarters of his own costs.

Summary

1. Officials — Social security — Insurance against the risk of accident and of occupational disease — Medical Committee — Appointment of doctors

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 22)

2. Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Refusal by one of the members of the Medical Committee to sign the report

(Staff Regulations, Art. 73)

3. Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Medical Committee’s discretion

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 23)

4. Officials — Social security — Insurance against the risk of accident and of occupational disease — Establishing whether a disease results from an official’s occupation

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 3)

5. Officials — Social security — Insurance against the risk of accident and of occupational disease — Occupational disease — Definition

(Staff Regulations, Art. 73; Rules on insurance against the risks of accident and of occupational disease, Art. 3(2))

6. European Union law — Principles — Duty to act within a reasonable time — Infringement in an administrative procedure — Effects

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

7. European Union law — Principles — Duty to act within a reasonable time — Administrative procedure — Criteria for assessment

1. The Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease do not lay down any particular specialisation requirements for members of the Medical Committee and allow both the official concerned and the administration complete freedom to choose their doctor. Admittedly, Article 22 of the new Rules on insurance which came into force on 1 January 2006 requires the third doctor to have ‘expertise in assessing and treating bodily injury’. However, that provision governs only the appointment of the third doctor and therefore does not adversely affect either the official’s right to appoint, completely freely, a doctor whom he trusts, or the administration’s freedom to choose the doctor representing it in the Medical Committee.

The Rules on insurance also do not lay down any right to object to the doctors appointed to sit in a Medical Committee, the official’s rights being protected by the presence of his trusted doctor and by a doctor appointed with the agreement of the latter.

(see paras 51, 54)

See:

186/80 Suss v Commission [1981] ECR 2041, paras 9 to 11

2. The report by the Medical Committee is not vitiated by a formal defect because one of its members refused to sign it, provided that it is established that the member who declined to sign had the opportunity to put his point of view to the other two members.

(see para. 56)

See:

T-31/89 Sabbatucci v Parliament [1990] ECR II-265, summary publication, para. 2; T-20/00 OP Commission v Camacho-Fernandes [2003] ECR-SC I-A-75 and II-405, paras 47 and 48

3. The duty of the Medical Committee provided for in Article 23 of the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease to assess medical questions entirely objectively and independently requires, first, that the Committee has available to it all the information it might need and, second, that it has full discretionary power. The medical assessments, properly speaking, made by the Medical Committee, must be regarded as definitive where they have been issued under proper conditions. The Court only has the power to ascertain, first, whether the Committee was constituted and functioned properly and, second, whether its opinion is lawful, in particular whether it contains a statement of reasons allowing an assessment to be made of the considerations on which it is based, and whether it establishes a comprehensible link between the medical findings it contains and the conclusions reached. Where the Medical Committee is required to answer complex medical questions relating to a difficult diagnosis or to the causal link between the disorder from which the official concerned is suffering and the performance of his duties with a Community institution, it must indicate in its opinion the factors in the file on which it has relied and, in the event of significant discrepancy, its reasons for departing from certain relevant medical reports drawn up at an earlier stage which were more favourable to the official.

(see paras 64-65)

See:

T-300/97 Latino v Commission [1999] ECR-SC I-A-259 and II-1263, paras 41 and 78; T-27/98 Nardone v Commission [1999] ECR-SC I-A-267 and II-1293, paras 30, 68 and 87; T-145/01 Latino v Commission [2003] ECR-SC I-A-59 and II-337, para. 47

F-39/05 Beau v Commission [2006] ECR-SC I-A-1-51 and II-A-1-175, para. 35

4. Under Article 3(2) of the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, where the disorder in question is not in the European schedule of occupational diseases annexed to Commission Recommendation 90/326, it is for the official in question to establish with sufficient certainty that the origin of his disorder lies in the performance of his duties or occurred during the performance of his duties within the Union institutions. That is why, where there is any doubt about that origin, the competent authority is entitled to refuse to accept the occupational origin of the disease, since there is no rule or principle that the official should have the benefit of the doubt.

(see para. 82)

See:

C-180/03 P Latino v Commission [2004] ECR I-1587, paras 36 to 39

5. In complex situations where the origin of an official’s disease lies in a number of causes, both occupational and extra-occupational, and physical or psychological, which have each contributed to the development of that disease, it is for the Medical Committee to ascertain whether the official’s performance of his duties in the service of the Union’s institutions has a direct link with his disease, for example, as a trigger for that disease. In such cases, it is not required, for the disease to be recognised as having an occupational origin, that it should have its sole, basic, preponderant or predominant cause in the performance of duties.

(see para. 83)

See:

T-4/96 S v Court of Justice [1997] ECR II-1125, paras 79 and 80

6. Compliance with the reasonable time requirement in the conduct of administrative procedures constitutes a general principle of Union law whose observance the Courts of the Union ensure and which is laid down as a component of the right to sound administration by Article 41(1) of the Charter of Fundamental Rights of the European Union.

However, infringement of the reasonable time principle does not, as a general rule, justify the annulment of a decision taken as the culmination of an administrative procedure. It is only where the passing of an excessive period is likely to affect the content itself of the decision adopted as the culmination of the administrative procedure that failure to observe the reasonable time principle affects the validity of the administrative procedure. Any excessive period taken to process an application for recognition of the occupational origin of a disease cannot, therefore, as a rule, affect the content itself of the opinion adopted by the Medical Committee or that of the final decision adopted by the institution. Such a period cannot, save in exceptional circumstances, alter the Medical Committee’s assessment of whether or not a disease is occupational in origin. The main practical consequence of the Civil Service Tribunal’s annulment of a decision taken in the light of the Medical Committee’s assessment would be counterproductive in that it would prolong the procedure still further on the ground that it had already gone on too long.

However, the Union courts have the power of their own motion to order the administration to pay compensation where a reasonable time has been exceeded, since such compensation represents the best form of reparation for an official, provided that the parties have been given an opportunity to submit their observations on that solution.

(see paras 99-101, 104)

See:

C-39/00 P SGA v Commission [2000] ECR I-11201, para. 44; C-197/09 RX-II M v EMEA [2009] ECR I-12033, para. 41

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, paras 162 to 167

judgment of 12 May 2010 in T-491/08 P Bui Van v Commission, para. 88

F-33/08 V v Commission [2009] ECR-SC I-A-1-403 and II-A-1-2159, para. 211, on appeal before the General Court of the European Union, Case T-510/99 P

7. The reasonableness of the duration of an administrative procedure must be appraised in the light of the circumstances specific to each case and, in particular, its context, the various procedural stages followed by the institution, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved.

(see para. 105)

See:

C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, para. 29; C-385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I-6155, paras 182 to 188

T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, para. 55