JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

21 July 2016

Carlo De Nicola

v

European Investment Bank (EIB)

‛Civil service — EIB staff — Sickness insurance — Refusal to reimburse medical expenses — Laser treatment — Treatment lacking scientific validity — Rules governing the appointment of an independent doctor — Competent medical association — Opinion of the independent doctor — Scope of judicial review — Grounds for refusal of reimbursement — Internal provisions on sickness insurance — Objective of laser therapy — Palliative effects on pain — Prior authorisation from the medical adviser — Material harm — Premature claims — Non-material damage — Amount not quantified — Inadmissibility’

Application:

under Article 270 TFEU, by which Mr De Nicola essentially seeks, first, annulment of the decision of 4 December 2014 by which the European Investment Bank (‘EIB’ or ‘the Bank’) refused to reimburse him for medical expenses relating to treatment with a high power FP3 laser, and of ‘all related acts, whether consequential or prior’, including numerous letters from the Bank concerning the issue, and secondly, an order for the Bank and the European Union to compensate him for the damage he claims to have suffered.

Held:

The decision of the European Investment Bank of 4 December 2014, by which it refused to reimburse Mr De Nicola the cost of FP3 laser treatment, is annulled. The action is dismissed as to the remainder. The European Investment Bank is to bear its own costs and is ordered to pay Mr De Nicola’s costs.

Summary

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Action seeking compensation for loss caused by an EU institution — No indications as to the loss suffered — Inadmissibility

European Union — Representation before the EU judicature — Action for damages brought against the European Union seeking compensation for damage allegedly suffered as a result of the European Investment Bank’s refusal to reimburse medical expenses — Representation of the European Union by the Bank

Officials — Staff of the European Investment Bank — Social security — Sickness insurance — Medical expenses — Reimbursement — Refusal — Lack of therapeutic value of the treatment — Opinion of a third doctor — Lack of precision in the question put to the third doctor — No meaningful consideration of the potential effect of the treatment in question on the member of the sickness insurance scheme — Unlawful — Annulment

Officials — Staff of the European Investment Bank — Social security — Sickness insurance — Expert medical report — Appointment of a third doctor — Obligation of the Bank to request the appointment of a third doctor by the medical association suggested by the member of staff concerned — None

Actions brought by officials — Staff of the European Investment Bank — Acts adversely affecting an official — Meaning — Opinion of a third doctor obtained following disagreement between the medical officer and the attending doctor — Preparatory act — Not included

Under the first paragraph of Article 21 of the Statute of the Court of Justice, applicable to proceedings before the Civil Service Tribunal by virtue of Article 7(1) of Annex I to that statute, and under Article 50(1)(d) of the Rules of Procedure, the application must state, amongst other things, the subject-matter of the proceedings and the form of order sought. The application is thus the formal document initiating proceedings, in which the applicant is required to state the subject-matter of the dispute. In that regard, the definition of the subject-matter of the proceedings in the application must enable the Tribunal to identify with precision the acts which the applicant seeks to have annulled, bearing in mind that the Tribunal cannot in any circumstances rule ultra petita, ordering an annulment which goes beyond that sought by the applicant. Thus, a claim for annulment which does not make express reference to the act or acts which the applicant seeks to have annulled, and does not enable the acts in question to be identified with sufficient precision, cannot meet the requirements imposed by Article 50(1)(d) of the Rules of Procedure. Consequently, to the extent that it concerns all related acts whether consequential or prior to the decision challenged, a claim for annulment must be dismissed as being manifestly inadmissible. (see paras 55-57) See: Judgment of 14 September 1999 in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, para. 52 Judgment of 20 May 2010 in Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, para. 30 Judgment of 11 November 2014 in De Nicola v EIB, F‑55/08 RENV, EU:F:2014:244, para. 42

Only acts or measures which produce binding legal effects such as to affect, directly and immediately, the interests of an applicant by bringing about a distinct change in his legal position can be regarded as acts adversely affecting him. In the case of acts or decisions adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge, and not intermediate measures whose purpose is to prepare the final decision. Acts preparatory to a decision do not adversely affect officials and an applicant may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure. Thus, although some purely preparatory measures may adversely affect an official inasmuch as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action, and must be challenged in an action brought against that act. In the case of a procedure conducted in accordance with internal provisions of the European Investment Bank on sickness insurance for obtaining the opinion of a third doctor in the event of disagreement between the medical adviser and the attending doctor of the member of staff in question, since it appears clearly from the wording of those provisions that the final decision in relation to the reimbursement of medical expenses incurred by the member of staff is taken by the Bank, after the opinion of the third doctor has been obtained, it is only when that decision is taken that the legal position of the member of staff is affected, and not when the third doctor provides his opinion or, a fortiori, when correspondence is sent seeking such an opinion. (see paras 59-61) See: Judgment of 8 March 2005 in D v EIB, T‑275/02, EU:T:2005:81, paras 43 and 44 and the case-law cited Judgment of 20 May 2010 in Commission v Violetti and Others, T‑261/09 P, EU:T:2010:215, para. 46 Judgment of 23 November 2010 in Marcuccio v Commission, F‑65/09, EU:F:2010:149, para. 42

Since the internal provisions of the European Investment Bank on the reimbursement of medical expenses do not specify the medical association which the Bank is to consult in the event of disagreement between the medical adviser and the attending doctor of the member of staff, the Bank is not required, in any circumstances, to request that the third doctor be appointed by the medical association to which the specialist who provided the care or treatment at issue belongs. Furthermore, it follows from the internal provisions that, while the appointment of a third doctor arises from a request by the insured, it is for the Bank, and not for the insured himself, to consult the relevant medical association. Under those provisions, the Bank has a certain latitude in selecting the medical association. In this regard, while the member of staff may suggest that the Bank should consult a particular medical association, such a suggestion cannot of itself give rise to an obligation on the part of the Bank to follow it. (see paras 71, 72)

The remedies available to members of staff of the European Union may not generally be employed in order to challenge medical appraisals properly so-called, which must be regarded as definitive provided that the conditions in which they are made are not irregular. The EU judicature does not have the necessary competence in medical matters to enable it to endorse or invalidate a medical assessment, or to arbitrate among several conflicting medical assessments. In this regard, medical appraisals properly so-called made by a third doctor, appointed under the internal provisions of the European Investment Bank on sickness insurance, must be regarded as definitive where they have been made regularly. The EU judicature has the power only to ascertain, first, whether the third doctor was appointed in a regular manner and, secondly, whether his opinion is regular, 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. In this context, the EU judicature may also find it appropriate to consider whether the conclusions reached by the third doctor are based on a premiss which has been correctly defined, and thus whether they are relevant. (see paras 104,105) See: Judgment of 9 December 2009 in Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, para. 68 Judgments of 18 September 2007 in Botos v Commission, F‑10/07, EU:F:2007:161, para. 39; 14 September 2010 in AE v Commission, F‑79/09, EU:F:2010:99, para. 64; of 28 September 2011 in Allen v Commission, F‑23/10, EU:F:2011:162, para. 71, and 29 February 201 in AM v Parliament, F‑100/10, EU:F:2012:24, para. 65

While it is true that, under Article 13(7) of the Protocol on the Statute of the European Investment Bank, the President has power to engage and discharge its staff, it does not follow from that provision that every decision which has implications for employment relationships within the Bank must necessarily be adopted by the President of the Bank personally. On the contrary, the effectiveness of the Bank’s organisation requires, as in any other institution or body of the European Union and, more generally, in any undertaking, that it be possible to delegate the adoption of such decisions to certain groups or certain persons within those institutions or bodies. In this regard, in EU law, a delegation of implementing powers is lawful provided that it is not formally prohibited by any legislative provision. (see paras 115, 116) See: Judgments of 18 October 2001, X v ECB, T‑333/99, EU:T:2001:251, para. 102 and the case-law cited and 16 December 2004 in De Nicola v EIB, T‑120/01 et T‑300/01, EU:T:2004:367, paras 97 and 98

Members of the sickness insurance scheme of the European Investment Bank are not automatically entitled to reimbursement of all their medical expenses. For the purpose of safeguarding the financial equilibrium of its sickness insurance scheme, the Bank has laid down, amongst other things, in its internal provisions on sickness insurance, rules for situations where the reimbursement of certain categories of medical expenses may be refused, or specific conditions for entitlement to reimbursement for certain services. Thus, while a member of the Bank’s sickness insurance scheme may reasonably take the view that his medical expenses will generally be reimbursed within the limits laid down by the internal provisions on sickness insurance, reimbursement of certain expenses may lawfully be refused by the Bank if, after consulting the medical officer and, if appropriate, a third doctor, it considers that those expenses are excessive or relate to unnecessary treatments or services, or if the member has failed to seek prior authorisation from the medical officer for services not covered by the reimbursement scale. Furthermore, it is entirely justified that the cost of treatments or services whose therapeutic value is scientifically disputed should not be reimbursed by the sickness insurance scheme, which is financed by the entirety of its membership and by the Bank itself. Against that background, the internal provisions on sickness insurance do contemplate the lack of therapeutic value of a treatment, since they enable the Bank legally to refuse to reimburse medical expenses which it considers to be unnecessary. This includes, a fortiori, medical expenses relating to treatments which are considered to be futile, in the sense of having no therapeutic value. Furthermore, the internal provisions on sickness insurance certainly do not provide that the Bank is required, where it considers that particular medical expenses are not necessary, to reimburse them at least in part. Such an interpretation of the provisions, which would have the effect of obliging the Bank to grant, to varying degrees, every claim for reimbursement which is not expressly excluded under Section II of Annex II of the internal provisions on sickness insurance, would run counter to the proper management of the sickness insurance system and undermine the balance which must be struck, and indeed is difficult to maintain, between the cost of reimbursable medical services and the contributions of the members. (see paras 123-125, 127, 128) See: Judgment of 18 September 2007 in Botos v Commission, F‑10/07, EU:F:2007:161, para. 63

In relation to the reimbursement of medical expenses, where the European Investment Bank refuses to reimburse the cost of treatment on the ground that it served no purpose, without the potential effect of the treatment on the pain suffered by the insured person in question being examined in any meaningful way in the opinion of the third doctor, as a result of a lack of precision in the question put to him in this regard by the Bank itself, the decision refusing reimbursement is tainted by an irregularity resulting in its nullity. (see para. 140)

Where the liability of the European Union is at issue as a result of an act of one of its institutions, it is represented before the EU judicature by the institution or institutions against which the facts giving rise to liability are alleged. In this regard, in so far as it is directed against the European Union, without further detail, a claim for compensation for non-material damage alleged to have been suffered by a member of staff of the European Investment Bank, as a result of the Bank’s refusal to reimburse medical expenses, must be regarded as being directed against the Bank itself. (see para. 156) See: Order of 6 January 2015 in Kendrion v European Union, T‑479/14, EU:T:2015:2, para. 15 and the case-law cited