JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

7 May 2013

Case F‑86/11

Robert McCoy

v

Committee of the Regions of the European Union

(Civil service — Officials — Invalidity pension — Article 78, fifth paragraph, of the Staff Regulations — Refusal to recognise that invalidity arose from an occupational disease)

Application: under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr McCoy seeks annulment of the decision of the Bureau of the Committee of the Regions of the European Union of 10 September 2010, in so far as the Bureau of the Committee of the Regions refused to recognise that the applicant’s invalidity arose from an occupational disease within the meaning of the fifth paragraph of Article 78 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), and an order against the Committee of the Regions to pay the sum of EUR 10 000 as compensation for the non-material damage which the applicant considers he suffered and to reimburse all the expenses connected with the invalidity procedure.

Held: The decision of the Bureau of the Committee of the Regions of the European Union of 10 September 2010 refusing to recognise that Mr McCoy’s invalidity arose from an occupational disease within the meaning of the fifth paragraph of Article 78 of the Staff Regulations is annulled. The action is dismissed as to the remainder. The Committee of the Regions of the European Union is to bear its own costs and is ordered to pay the costs incurred by Mr McCoy.

Summary

1. Actions brought by officials — Action against a decision rejecting a complaint — Admissibility

(Staff Regulations, Arts 90 and 91)

2. Officials — Invalidity — Invalidity Committee — Collegial nature of its work — Scope — Keeping of Minutes — Not an essential condition

(Staff Regulations, Annex II, Art. 7)

3. Officials — Invalidity — Invalidity Committee — Observance of the secrecy of proceedings — Scope — Summary medical report — Obligation to communicate to the appointing authority and directly to the official concerned — None

(Staff Regulations, Arts 26a and 78, fifth para.; Annex II(Art 9))

4. Officials — Invalidity — Invalidity Committee — Purpose of the provisions of the Staff Regulations

(Staff Regulations, Art. 78; Annex II(Art 9))

5. Officials — Invalidity — Invalidity Committee — Findings differing from those of the medical committee and from earlier medical reports — Obligation to state reasons — Scope — Official in a situation of workplace conflict with his superiors

(Staff Regulations, Arts 73 and 78)

6. Officials — Social security — Determining the occupational origin of the illness and invalidity — Separate procedures — Facts concerning the origin of the disease necessarily overlap with the facts concerning the origin of any invalidity

(Staff Regulations, Arts 73 and 78)

7. Pensions — Invalidity pension — Establishing whether a disease results from an official’s occupation — Competence of the medical committee — Scope — Limits

(Staff Regulations, Art. 78)

1. Claims for annulment formally brought against a decision to reject a complaint have the effect, where that decision lacks any independent content, of bringing before the Tribunal the act against which the complaint was submitted.

In that regard, where the decision rejecting the complaint confirms the initial act by providing details as regards its grounds, it is indeed the legality of the initial act adversely affecting the official or staff member that must be examined, taking into account the grounds given for the decision rejecting the complaint, those grounds being supposed to coincide with that act.

Consequently, the claims for annulment directed against the decision rejecting the complaint lack any independent content and the action must be regarded as being directed against the initial act, the grounds for which are stated in the decision rejecting the complaint.

(see paras 55-57)

See:

17 January 1989, 293/87 Vainker v Parliament, para. 8

10 June 2004, T‑258/01 Eveillard v Commission, paras 31- 32

18 April 2012, F‑50/11 Buxton v Parliament, para. 21 and the case-law cited

2. The invalidity committee must conduct its proceedings in a collegial manner, each of its members being in a position effectively to make known his view.

Moreover, the doctors on an invalidity committee are perfectly entitled to make their conclusions following their oral collegial discussions and prepare their reports subsequently in some cases, since that is not an essential condition for the validity of such a committee’s deliberations.

(see paras 61, 64)

See:

10 December 1987, 277/84 Jänsch v Commission; 19 June 1992, C‑18/91 P V v Parliament, para. 20

22 November 1990, T‑54/89 V v Parliament, para. 34; 27 février 2003, T‑20/00 Camacho-Fernandes v Commission, para. 45 et seq.

3. The invalidity committee, meeting in the context of a procedure concerning recognition, under the fifth paragraph of Article 78 of the Staff Regulations, of the occupational origin of the invalidity of the official concerned, is not required to prepare, for the attention of the appointing authority and before the adoption of the latter’s administrative decision, a summary medical report relating to its proceedings, since that authority cannot, in any event, have access to that report, which is covered by the secrecy of the proceedings of the invalidity committee.

The summary medical report which the invalidity committee prepares in support of its conclusions is part of the committee’s proceedings, which are secret by reason of their nature, content and implications of a medical origin, and is not therefore communicated either to the appointing authority or directly to the official concerned. That medical report appears on the medical file of the official concerned, to which the latter has access under Article 26a of the Staff Regulations.

Accordingly, it is necessary to distinguish the conclusions of the invalidity committee, which must necessarily be communicated to the appointing authority before it takes a decision, from the medical analyses and considerations that may be contained in the summary medical report, or reports, of the invalidity committee or of some of its members, which appear on the medical file of the official concerned but which are not communicated to the appointing authority.

(see paras 65-67)

See:

3 June 1997, T‑196/95 H v Commission, para. 95

6 November 2012, F‑41/06 RENV Marcuccio v Commission, para. 151, on appeal before the General Court, Case T‑20/13 P

4. The provisions of the Staff Regulations relating to the invalidity committee are designed so as to confer upon medical experts the task of definitively appraising all medical questions, which no appointing authority, because of its internal administrative composition, could do.

(see para. 78)

See:

27 February 1992, T‑165/89 Plug v Commission, para. 75; 23 November 2004, T‑376/02 O v Commission, para. 29 and the case-law cited

5. Where the invalidity committee is dealing with complex medical issues concerning the causal link between the condition suffered by the person concerned and his occupation with an institution, it is for that committee to indicate the information on the file on which it relies and, in the event of significant divergence, to give the reasons why it differs from certain earlier and relevant medical reports more favourable to the person concerned.

Moreover, even though an invalidity committee to which reference has been made under Article 78 of the Staff Regulations may reach conclusions that are different from those adopted by the medical committee to which reference has been made under Article 73 of the Staff Regulations, where the invalidity committee dealing with the case of the official concerned wishes to wait for the result of the procedure under Article 73 of the Staff Regulations it is necessary for it to give the reasons which led it to differ from the assessments contained in the medical reports which allowed recognition to be given of the occupational origin of the disease under Article 73 of the Staff Regulations and to provide those reasons clearly and comprehensibly, either in its conclusions communicated to the appointing authority, or in a summary medical report which it may subsequently prepare.

In that regard, in a case in which mention is made of the existence of a workplace conflict between the person concerned and his superiors, as well as a working environment that is hostile to that person, not only in earlier medical reports but also in other official documents concerning him — although it is generally difficult to produce written evidence to demonstrate the existence of mistreatment on the part of superiors — it is incumbent on the invalidity committee give clear and precise reasons for its decision not to take into account such evidence.

(see paras 85-86, 96)

See:

15 December 1999, T‑300/97 Latino v Commission, paras 77-78

14 September 2010, F‑79/09 AE v Commission, paras 66, 67 and 72; 11 May 2011, F‑53/09 J v Commission, paras 56 to 61 and 92 and the case-law cited

6. Although the procedure initiated under Article 73 of the Staff Regulations, the purpose of which is to determine whether an official’s disease is of occupational origin, is legally separate from the procedure initiated under Article 78 of the Staff Regulations in order to determine whether the applicant’s invalidity is of occupational origin, the facts in both procedures are the same or, at any rate, those concerning the origin of the disease necessarily overlap with those concerning the origin of any invalidity.

(see para. 109)

7. It is for the invalidity committee, according to its terms of reference, to provide medical appraisals, and not appraisals of a legal nature, on the question of whether the invalidity arose from an occupational disease. It is therefore for the invalidity committee to ascertain whether or not, from the medical point of view, an official’s invalidity arose from an occupational disease, the origin of which is to be found in his working conditions.

(see para. 119)

See:

21 January 1987, 76/84 Rienzi v Commission, paras 9 and 12