III —

Faced with these criticisms the Commission does not deny the imperfections of its system. It merely thinks that they are not sufficiently serious to call in question its legality. It points out the complexity of the subjectmatter and emphasizes all the efforts it has made, including devising the system in dispute, and which it is still making in order to ensure that its officials receive a fair reimbursement of their sickness expenses. It also stresses that a large number of the applicant's comments are suggestions for the setting up of another system which are not for him to make in the context of the present proceedings and which, besides, would be much open to criticism. I share the Commission's view on this point and do not wish to waste the Court's time arguing about the legal relevance and the practicalities of the reforms proposed by the applicant: direct reimbursement in the currency in which the expenses arose and choice of the rate valid on the day of the refund for the exchange between the currency in which the expenses arose and that in which they are reimbursed by the Fund. These considerations clearly lie within the field of de lege ferenda and also seem to me to be irrelevant for the purpose of making a reasoned assessment of the system now under examination. It is equally true that the problems of currency exchange are complex and difficult, if not impossible, to resolve entirely satisfactorily from the legal point of view. Finally, it is indisputable that the Commission cannot be blamed for the often severe variations in the value of currencies on the international currency exchange market. It was the task of the Commission only to find a balance between the inevitable constraints imposed by the administration of a complex system extending over the entire world and the higher exigencies of justice which dictate that all patients in comparable situations be reimbursed on an equal basis. Therefore the Commission could not regard itself as bound by a duty to achieve a given result (“obligation de résultat”) but only by a duty to choose an appropriate means (“obligation de moyen”), to adopt this cardinal distinction of French law on civil liability. That means that in the present case the defendant is not obliged to reimburse exactly 80% to all officials who incur sickness expenses anywhere in the world. The use of the words “up to 80% of the expenditure incurred” in Article 71 (1) of the regulations also militates against this meaning, since, as the defendant says, this expression may be interpreted as meaning that an approximate percentage rate is' intended at which expenditure is to be reimbursed. But these factors must not result in the Commission's having complete freedom of action. It had the duty to devise a system fitted to the factual circumstances in question and, if experience proved that the chosen system was unsuitable, to improve it within the shortest possible time. It seems to me that the Commission has not exercised all the diligence required of it. This emerges first of all from the fact that the accounting officer of the Commission was himself prevented by the depreciation of the lira from observing the rule laid down by the Decision of 6 November 1974 according to which “in the middle of each quarter, and on the basis of the exchange rates applied at that moment on the unofficial market in Brussels”, the accounting officer is to “issue the rates to be used from the commencement of the following quarter”. The documents provided in Annex 5 to the defence show that the rates to be used from the commencement of a given quarter were not laid down in the middle of the previous quarter but at a date much closer to their entry into force. The file also shows that these rates were again altered during the actual course of the quarter in which they came into force, probably because the accounting officer was aware of the imperfections of the system selected in a period of severe currency instability. The defendant's negligence also stems from the delay in modifying the rules of whose defects it was aware, as the attitude of its accounting officer proves. In fact it has waited until 1 April this year, that is four years and five months, before replacing the system of quarterly rates by a system of monthly rates applicable to all expenses covered by Annex I to its decision of 6 November 1974, save sickness and accident expenses (Articles 71 and 73 (3) of the Staff Regulations). As regards the latter expenses, the Commission has decided that the rate to be applied shall remain a quarterly rate but that this shall be issued on the first working day of the quarter concerned. Without giving a definitive judgment in the limited context of this case upon the value of this amendment, it does seem to me to be a more realistic approach. It is only the long delay taken to introduce this amendment which I criticize, whereas the decision itself was an internal one and taken by written procedure and was apparently easy to amend. In view of these facts, none of the arguments for the defence manages to change my unfavourable view. The Commission points out that the sickness insurance scheme in favour of its officials is by and large a generous one and stresses the efforts it has made to establish conversion rates for little known currencies into Belgian francs and I readily acknowledge this. But these circumstances do not seem to me to be such as to absolve it as regards the specific problem which concerns us. Moreover, when pointing out that losses are often minimal it forgets to take into account the fact that these losses are relative when calculated in comparison with the 80% refund laid down by the Staff Regulations and that if occasional minor losses can be tolerated, regular losses cannot. The Commission also criticizes the applicant for abusing the right of free choice of practitioner given by Article 9 (1) of the Rules on Sickness Insurance because in almost all cases he has submitted bills for treatment given in Germany. The Commission feels that exchange risks act as a sort of counterbalance to the very generous rule contained in Article 9. That is not my way of thinking. As a matter of principle I believe that when a rule has been laid down even the potentially unfavourable consequences must be recognized and an attempt made to reduce them by appropriate means rather than by adopting a solution which would risk detracting from the efficacy of the rule. This might happen if sick officials employed in a country with a weak currency and coming from a country with a strong currency were forced to forego treatment for themselves and their dependants in their country of origin because of exchange losses. We should bear in mind too the numerous officials who obtain treatment in Switzerland. Over and above the personal position of the applicant it seems to me that officials avail themselves of the right to obtain health care abroad and in particular to consult a medical practitioner and receive treatment in their country of origin much more often than the defendant is willing to admit. Another consequence of the free choice of practitioner is the conversion — for which the applicant is strongly criticized — into German marks at the free market rate of the refund which was paid to him in lire. The Commission vigorously attacks this private initiative of the appellant which the Commission claims he should have left out of his calculations. But it is obvious that a doctor practising in Germany is paid in German marks and that the comparison between what is paid and what is reimbursed can only be made in the currency in which treatment is paid for and, since the transaction is effected by a private individual, at the rate of exchange applicable to private individuals. Furthermore, the calculations carried out by the applicant in support of his complaint through official channels show that an official employed in Brussels or Luxembourg who incurred the same expenses in German marks in the same quarters would have received, in Belgian francs and adopting the same methods of calculation, a much higher refund. The Commission points out once again that although it is true that a considerable variation in the exchange rate may occur to the detriment of officials between the date of treatment and that of reimbursement, the length of the interval between treatment and the request for reimbursement is largely in their own hands. It is true that according to the provisions of Article 13 of the Rules on Sickness Insurance the application for reimbursement may be made “during the calendar year following that in which treatment was administered”; this leaves at the outside nearly two years to do this. The Commission thinks that this prolonged lapse of time also gives persons covered by the insurance the opportunity to speculate on currencies. But to a considerable extent the length of the period between the date of treatment and the date of reimbursement is beyond the control of officials. This is true first for the period between the date of treatment and the date when the bill for fees or expenses is received by the patient. Secondly, and even more, it is also true for the period required for the administrative processing of claims which is the defendant's responsibility and which runs from the time bills are submitted to when they are actually reimbursed. The opportunities for speculation are therefore more limited than the Commission claims. Besides, if this danger exists, it should be counteracted otherwise than by choosing a conversion system whose scope in general inevitably affects all officials including those who speculate and those who do not. In view of the frequently shifting reality of the exchange market I do not think that a method exists which will completely eliminate this risk. The most one can do is reduce it. Perhaps I may be permitted to suggest that the period for the submission of sickness expenses for reimbursement should be reduced. This would, incidentally, facilítate the work of the departments responsible for making payments. In any event, is not the amendment introduced from the second quarter of this year, to bring the system closer into line with reality, the clearest admission of the shortcomings of the previous system? This search for a more suitable solution is another feature which this case has in common with the Newth case (cited above) which concerned the graduated allowance payable after retirement from employment in the interests of the service and also involved exchange losses for an official working in Italy as compared to officials working in Belgium or in Luxembourg. These losses were considered by the Court, following Mr Advocate General Reischl's opinion, to be in “breach of the principle of equality among officials whose circumstances are similar” (paragraph 13). I do not believe that the higher loss of Mr Newth compared to that of Mr Misenta (30% instead of 10 to 12%) and the rarity of retirement from employment in the interests of the service in comparison with the frequency of claims for sickness expenses constitute such decisive differences that there is a breach of equality of treatment in the first case and not in the second. Furthermore, in matters of sickness expenses, the predicament of the applicant is contrary to Article 72 (1) of the Staff Regulations and Annex I (Rules governing the reimbursement of medical expenses) to the Rules on Sickness Insurance. I therefore think it possible and desirable to transpose that solution to this dispute. Before finishing I feel I must draw the Commission's attention to certain drawbacks to decisions made by written procedure. The experience of dealing with this case has demonstrated that it is extremely difficult to discover the full and definitive wording of these decisions and the exact date on which they were adopted. Since they are measures of mandatory application even if they apply only within the Community institutions I think that they merit more than publication in “Administrative Notices” several months after they have entered into force.