6.

Let us turn to the substance of the case. I would observe at the outset that there is no contradiction between the decision taken by the Medical Committee and the award of an invalidity pension at the rate of 70%. There are no serious grounds for contesting the statement made by Parliament, backed by calculations, that the said rate was granted under the third paragraph of Article 78 on the basis of Mr Bernardi's seniority and not because the invalidity was attributed to an alleged occupational cause. Having said that, it must, in the first place, be examined whether or not the procedure followed in the medical inquiry was unlawful. I shall therefore consider the following questions: (a) Was the medical inquiry referred to in Article 17 (2) of the Rules properly carried out? (b) Was the draft decision, referred to in the first paragraph of Article 21 of the Rules, properly taken and notified? The medical inquiry was entrusted to Dr De Meersman, who carried it out, with the assistance of Dr Stumper, in a manner which does not seem to warrant the Court's criticism. As far as the draft decision is concerned, matter are less clear-cut. Curiously, the draft decision is made up of three stages. First there is the letter of 10 June 1980 in which, as I have observed already, the applicant was asked to signify whether he accepted Dr De Meersman's finding that he was not suffering from an occupational disease and the draft decision to that effect which the appointing authority proposed to adopt, and was reminded that if he disagreed therewith he was entitled to have the matter referred to the Medical Committee. With that the substantive conditions laid down in the first paragraph of Article 21 might appear to have been fulfilled had it not transpired subsequently that the medical findings were merely provisional. That the findings were merely provisional did not become apparent until the second stage, namely the letter of 28 July 1980. In any event, however, before he received that letter Mr Bernardi asked, by letter dated 19 June 1980, for the matter to be referred to the Medical Committee. Thirdly there is the letter of 22 May 1981, of which I shall give the gist. The definitive findings, confirming the provisional findings, were notified to Mr Bernardi, who was informed that, in accordance with his request of 19 June, the matter would be referred to the Medical Committee for its opinion. Let me make it quite clear that I do not consider that manner of proceeding to be a model of administrative management. A draft decision ought not to be based on provisional findings. Admittedly the provisional findings did become definitive and the letter of 22 May 1981 did confirm that of 10 June 1980. But it would have been preferable had the draft decision not been taken until that date. It was then that Mr Bernardi should have been faced with the option provided for in the Staff Regulations between accepting the findings of the inquiry and challenging them by asking for the matter to be referred to the Medical Committee. Those three parts, although somewhat lacking in cohesion are, in my view, capable of being regarded as a whole which substantively satisfies the requirements laid down in Article 17 (2) and the first paragraph of Article 21 of the Rules. A further requirement is that the draft decision should have been taken and notified by the proper authority, namely, under Article 21 of the Rules, the appointing authority. Who is the appointing authority in this instance? The first paragraph of Article 2 of the Staff Regulations provides that: ‘Each institution shall determine who within it shall exercise the powers conferred ... on the appointing authority.’ That article, which is substantially the same as Article 2 in the former Staff Regulations of Officials of the EEC and the EAEC (Regulations No 31 (EEC), 11 (EAEC), of the Councils of 18 December 1961, Official Journal, English Special Edition 1959-1962, p. 135), authorizes the institutions to organize a system for the distribution and delegation of powers in this sphere. It appears from Decision No 175/62 of Parliament of 12 December 1962, which has been produced by Parliament, that in the case of officials in Mr Bernardi's category the powers conferred on the appointing authority by Article 73 of the Staff Regulations and by the relevant implementing rules are to be exercised ‘by the Secretary General, who is authorized to delegate his powers of administrative implementation to the Director General for Administration’ (point (i) (d) of the decision). That delegation of powers was made more flexible by the decision of 16 February 1982 of the Bureau of Parliament which authorized the Secretary General ‘to delegate his powers’, without specifying to whom. However, the delegation of powers by the Secretary General to the Head of the Social Affairs Division did not take place until 1 March 1982, that is to say after the three letters mentioned, the last of which is dated 22 May 1981. That delegation of powers was not — and, moreover, was not capable of being — in any way retroactive. What are the consequences as regards the legality of the draft itself and its notification? Two decisions of the Court are relevant to this point. In the more recent of the two (judgment of 30 May 1973 in Case 46/72 De Greef v Commission [1973] ECR 543), the Court held that a decision taken pursuant to Article 2 of the Staff Regulations (concerning the designation of the authority responsible for carrying out a hearing in a disciplinary procedure) had to be construed as ‘a distribution of business within the Commission's services’ rather than as the ‘conferment of rigid powers, the nonobservance of which could entail the nullity of acts done outside the limits laid down’ (paragraph 18 at p. 553). But the Court also laid down the limits of that flexibility by holding that ‘sub-delegation or deviation’ from the criteria for such distribution determined by the Commission could ‘only result in the nullity of an act done by the Administration if it is capable of affecting one of the guarantees given to officials by the Regulations or of affecting the principles of good administration in matters of staff administration’ (paragraph 21 at p. 553). The Court doubtless had in mind an earlier judgment to which Mr Advocate General Trabucchi had referred in his Opinion on the De Greef case. This is the other decision to which I referred and it was handed down in a case between the parties to the present proceedings (judgment of 16 March 1971 in Case 48/70 Bernardi v European Parliament [1971] ECR 175). In that case the Secretary General of Parliament had called upon an assistant translator to occupy on a temporary basis a post as translator. Mr Bernardi sought and obtained the annulment of that appointment on the ground that the aforementioned decision of the Bureau of Parliament of 12 December 1962 conferred the relevant powers not on the Secretary General but on the President, acting on a proposal of the Secretary General. A criterion emerges from those two judgments which is based on the distinction put forward by Mr Advocate General Trabucchi between purely ancillary activities (preparatory and implementing measures) and decisions involving the ‘discretion’ of the institution which are ‘binding’ on it (Opinion of Mr Advocate General Trabucchi in Case 46/72, [1973] ECR 557 at p. 561).