Opinion of Mr Advocate General Alber delivered on 20 April 1999. - Arnaldo Lucaccioni v Commission of the European Communities. - Appeal - Action for damages. - Case C-257/98 P.



European Court reports 1999 Page I-05251



Opinion of the Advocate-General

A - Introduction

1 In this case an official who left active service on the ground of permanent invalidity (the appellant) is appealing against the judgment of the Court of First Instance (1) dismissing his application for damages.

2 The appellant worked for many years for the Commission in Brussels in the Berlaymont Building, which was contaminated by asbestos, in particular during the period when the building was being extended. When he became ill with pulmonary carcinoma, this was recognised as an occupational disease and a condition of total permanent invalidity was confirmed. On this basis, he received, in addition to his pension, benefits totalling BEF 25 794 194, in accordance with Article 73 of the Staff Regulations of Officials of the European Communities (`the Staff Regulations') and Article 14 of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (`the Insurance Rules'). In his original application for damages the appellant had made further claims for damages and sought additional benefits from the Commission. This application was dismissed by the Court of First Instance, and the appellant is now appealing that judgment to the Court.

B - Applicable provisions

3 The relevant portion of Article 73 of the Staff Regulations (Chapter 2 - Social Security) provides:

`1 An official is insured, from the date of his entering the service, against the risk of occupational disease and of accident subject to rules drawn up by common agreement of the institutions of the Communities after consulting the Staff Regulations Committee. He shall contribute to the cost of insuring against non-occupational risks up to 0.1% of his basic salary.

...

2. The benefits payable shall be as follows:

...

(b) In the event of total permanent invalidity:

Payment to the official of a lump sum equal to eight times his annual basic salary calculated on the basis of the monthly amounts of salary received during the 12 months before the accident.

...'

4 Chapter II (Benefits) of the Insurance Rules provides as follows:

- Article 12:

`1. Where an official sustains total permanent invalidity as a result of an accident or an occupational disease, he shall be paid a lump sum provided for in Article 73(2)(b) of the Staff Regulations.

2. Where an official sustains partial permanent invalidity as a result of an accident or of an occupational disease, he shall be paid a lump sum calculated on the basis of the rates laid down in the invalidity scale contained in the Annex hereto.'

- Article 14:

`After consulting ... the Medical Committee referred to in Article 23 the official shall be granted an allowance in respect of any injury or permanent disfigurement which, although not affecting his capacity for work, constitutes a physical defect and has an adverse effect on his social relations.

This allowance shall be determined by analogy with the rates laid down in the invalidity scale referred to in Article 12. Where disfigurement results from an anatomical functional lesion the abovementioned rates shall be increased accordingly.' (2)

C - The Facts

5 The appellant, born on 31 January 1941, entered the Commission's service in 1962, and over the period between 1967 and 1987 worked for about 16 years, except for a four-year period of service in Japan, in the Berlaymont Building in Brussels, most recently at Grade B1.

6 On 15 January 1990 the appellant suffered a haemoptysis. The doctors whom he consulted concluded, after examining him, that he had bronchial cancer.

7 On 12 March 1990 the appellant underwent a lobectomy (removal) of the left upper lobe of the lung. The surgeon expressed the view that the appellant presented sequelae of tuberculosis of the left upper lobe. (3) Despite the initial diagnosis of cancer no tumour could be detected on the tissue removed. At the surgeon's request a sample of the tissue removed from the lung was tested by the mineralogical laboratory at the Hôpital Erasme. In a report dated 30 August 1990, signed by Professor De Vuyst, a rate of 680 asbestic bodies per gramme of dry tissue was determined. (4)

8 On 26 November 1990 the appellant sent the administration and the appointing authority (the Commission) a note in which he stated, in accordance with Article 17 of the Insurance Rules and with a view to obtaining benefit under Article 73 of the Staff Regulations, that he had contracted lung cancer in the form of an epidermoid carcinoma which had entailed his having a left upper lobectomy and resulted in chronic asthmatiform bronchitis. He requested a decision to recognise this as an occupational disease and to determine a rate of permanent invalidity under Article 19 of the Insurance Rules. In his view the diseases were attributable to the fact that he had been exposed to asbestos in the Berlaymont Building, especially during the reconstruction phase from 1967 to 1969.

9 By letter of 18 January the director of Directorate DO `Personnel - Rights and Obligations' of the Directorate-General for Personnel and Administration (DX IX) (the personnel director) informed the appellant that in view of his state of health his case would be referred to the Invalidity Committee provided for in Article 78 of the Staff Regulations. The appellant could apply for his condition to be recognised as an occupational disease under Article 73 of the Staff Regulations. However, as the two procedures could lead to quite different results, the personnel director stated that it would be best to conduct them in parallel.

10 In a letter of 27 February 1991 to the personnel director, the appellant nominated the doctor he had chosen for the purposes of the Invalidity Committee, referring to his note of 26 November 1990. He also asked that the decisions resulting from the two procedures should be formulated not only in parallel but uniformly, and that they should take effect simultaneously.

11 The personnel director informed the appellant, in a letter of 15 March 1991, that the procedures under Article 73 and Article 78 of the Staff Regulations would be conducted separately. He pointed out that the procedure to determine the existence of an occupational disease would last much longer than the procedure under Article 78 to establish incapacity for work. However, the recognition of an occupational disease, if that were the outcome, would take effect retroactively and would apply from the time when permanent invalidity was established.

12 According to a letter of 21 May 1991 from the personnel director, the two procedures were being separated so that the appellant would obtain financial support as quickly as possible. Although it would be desirable to conduct the two procedures at the same time, this would not necessarily lead to a simultaneous result.

13 The Invalidity Committee (5) met on 10 June 1991. It concluded that the appellant should be regarded as suffering from total permanent disability and could no longer perform the duties corresponding to a post in his career bracket; he was therefore required to terminate his service with the Commission.

14 On 16 July 1991 the personnel director, in his capacity as appointing authority, took a decision retiring the appellant, in accordance with Article 53 of the Staff Regulations, and granted him an invalidity pension determined in accordance with the third paragraph of Article 78 of the Staff Regulations, with effect from 1 August 1991. This pension is equal to 70% of the appellant's basic salary, and thus corresponds to the normal pension which an official receives after 35 years of pensionable service according to the second paragraph of Article 77 of the Staff Regulations.

15 By letter of 15 October 1991 the appellant submitted a complaint, in accordance with Article 90(2) of the Staff Regulations, against the decision of 16 July 1991 retiring him. By letter of 3 March 1992 the Commission rejected the appellant's complaint. The appellant did not appeal to the Court of First Instance against the decision rejecting his complaint.

16 In the context of the procedure then being conducted to recognise the occupational nature of the disease, pursuant to Article 73 of the Staff Regulations, the Commission appointed Dr Dalem, of the University of Liège, to draw up the medical report provided for in Article 19 of the Insurance Rules. Dr Dalem sought the assistance of Professor Bartsch, a specialist in pneumology at the Institut Provincial Ernest Malvoz in Liège.

17 On the basis of an examination of the appellant, an analysis of the documents in the file and further correspondence with various doctors, Professor Bartsch drew up a report in which he concluded that no occupational disease was present. On the basis of that report Dr Dalem drafted his medical report for the Commission, in which he also concluded that there was no occupational disease. The appellant, he stated, was not suffering from bronchial cancer and although his longs actually contained asbestos fibres there was no evidence of fibrosis caused by asbestos, so that the appellant was not suffering from asbestosis either.

18 By note of 17 February 1992 the head of the unit `Insurance against Accidents and Occupational Disease' informed the appellant of Dr Dalem's conclusions and forwarded to him a draft decision rejecting his request to be recognised as suffering from an occupational disease, pursuant to Article 21 of the Insurance Rules. However, the appellant continued to follow the procedure laid down in Article 73 of the Staff Regulations and requested that the Medical Committee provided for in Article 23 of the Insurance Rules be convened.

19 At its first meeting on 13 April 1993, in particular because of the different results obtained by the various laboratories, the Medical Committee (6) was not unanimous on the connection between the appellant's exposure to asbestos and his carcinoma. It therefore decided to request three further examinations. The results of these were as follows: Professor De Vuyst found 235 000 fibres of crocidolite (blue asbestos), amosite, anthophyllite and chrysolite per gramme of dry tissue; Professor Donelli confirmed the presence of chrysolite; Professor Woitowitz found 350 000 fibres of crocidolite and amosite per gramme of dry tissue and 300 000 fibres of chrysolite per gramme of dry tissue.

20 Following a second meeting on 25 February 1994 the Medical Committee filed a majority report on 1 March 1994 (Dr Cognigni and Professor Maltoni voted against Professor Brochard). In the Committee's view, the appellant's pulmonary carcinoma was to be regarded as an occupational disease; his permanent total invalidity was 100% and was to be backdated to the date on which it was first diagnosed (January 1990). Having regard to the permanent signs (scars, deformation of the left breast, reduced muscle strength in the left arm) and the serious psychological disturbances which the appellant was experiencing, he was awarded an extra 30% compensation on the basis of Article 14 of the Insurance Rules.

21 By letter of 15 April 1994 the director-general of DG IX informed the appellant of the Medical Committee's findings in the following terms:

`I am in a position to award you a rate of total permanent invalidity of 130%, but I must point out that at this stage the medical questions raised in connection with the recognition of your occupational disease are subject to final arbitration.'

He informed the appellant that, in accordance with Article 73(2)(b) of the Staff Regulations, he would be paid a lump sum of BEF 25 794 194. This lump sum, paid to the appellant on 28 April 1994, was made up as follows:

annual basic salary 2 480 211 x 8 BEF 19 841 688 BEF x 8

Degree of invalidity x 1.3 as additional compensation under Article 14 of the Insurance Rules BEF 5 952 506

BEF 25 794 194

22 On 15 May 1994 the appellant requested the Commission, inter alia:

- to communicate the findings of the Medical Committee to the Invalidity Committee so that the latter might amend its opinion and declare that his total invalidity was the consequence of an occupational disease;

- to provide him with a statement for the BEF 25 794 194;

- to pay him interest on the lump sum, plus the difference between his salary and his pension since August 1991;

- and to pay him ECU 3 000 000 damages for non-material harm.

He also argued that the Commission had failed in its duty by exposing him to asbestos dust and through delays in dealing with his case.

23 By letter of 22 September 1994 the director of Directorate B `Rights and Obligations' of DG IX provided the figures requested but rejected the appellant's other requests.

24 On 15 December 1994 the appellant submitted a complaint pursuant to Article 90(2) of the Staff Regulations against the decision contained in the letter of 22 September 1994. By a decision of 3 May 1995, which was notified to the appellant on 29 May 1995, the Commission rejected the appellant's complaint.

25 On 29 August 1995 the appellant brought his action before the Court of First Instance, requesting it to rule that the Commission should:

- pay the difference between his salary as an official and his invalidity pension from 1 August 1991 until reaching pensionable age (31 January 2006) as compensation for material harm, this difference being provisionally estimated at BEF 15 000 000 and BEF 12 500 000, (7) and calculate the former amount;

- pay him the sum of ECU 1 000 000 as compensation for non-material harm.

He also claimed interest of 10% per annum on the amount of BEF 25 794 194 from 1 January 1990 or no later than 10 June 1991 until the final payment of this sum, the claim for interest being provisionally reckoned in the amount of BEF 15 000 000.

The Commission's decision of 22 September 1994, he submitted, should be declare null and void to the extent necessary.

This application was dismissed by judgment of 14 May 1998.

26 In its judgment the Court of First Instance concluded, inter alia, that the material damage suffered by the appellant as a result of the difference between his invalidity pension and his salary as an official up to the age of retirement should be regarded as having been effectively made good by the lump sum, totalling approximately BEF 25.8 million, which had been paid to him pursuant to Article 73 of the Staff Regulations. The non-material damage suffered by the appellant should likewise be regarded as having been made good, effectively, by the sum of BEF 5.95 million which had been paid to him pursuant to Article 14 of the Insurance Rules. Moreover, the Commission had not misused its discretion by not requiring the Invalidity Committee established on the basis of Article 78 of the Staff Regulations to determine, in the course of the procedure under Article 73 of thereof, whether the appellant's disease was occupational in origin.

27 On 15 July 1998 the appellant appealed against this judgment, pleading principally an `infringement of Community law by the Court of First Instance'. His plea of infringement is divided into four limbs. First, the Court of First Instance did not examine all the factors involving the Commission's liability according to ordinary law, namely fault, damage and the causal connection between fault and damage; it merely stated that the appellant had not shown that any damage existed. In so doing it failed to distinguish between this additional claim for compensation and that based on the Staff Regulations. Second, the Court of First Instance did not properly investigate the material and non-material damage suffered by the appellant. Third, the Court of First Instance subsumed the material and non-material damage suffered by the appellant under the lump sum paid to him under the social security scheme for Community officials, and did not advance any reasons for doing so. Fourth, the appellant argues that the Court of First Instance erred in law by failing to pay him interest for the delay in dealing with his case.

28 On these grounds he requested the Court:

1. to set aside the judgment of the Court of First Instance of the European Communities of 14 May 1998 in Case T-165/95, by which his claims had been dismissed as unfounded;

2. accordingly, to uphold his claims advanced at first instance, except for the claim for compensation for the material damage, estimated at BEF 12 500 00, arising from the sale of various items of real property;

3. to order the respondent to pay the costs of the proceedings.

29 In the view of the Commission, the appeal is partially inadmissible and entirely unfounded. The Court of First Instance, it argues, did not err in stating that the appellant had failed to prove any damage in excess of the sums paid to him, so that there was no need to consider further the additional factual conditions for entitlement to damages. Nor had the Court of First Instance erred in investigating the damage. These were merely assertions on the part of the appellant, which are however, inadmissible in appellate proceedings. The Commission also rejects, as being at the least inadmissible, the complaint that the Court of First Instance failed to give reasons. Here the appellant is criticising the Court's findings of fact, and this renders the argument inadmissible, since an appeal is confined to examination of questions of law. The appellant's final argument also consists largely of factual matters which have already been dealt with in the proceedings before the Court of First Instance. In any event, there is nothing in the appellant's arguments to warrant a conclusion in law different from that reached by the Court of First Instance.

30 The Commission therefore requests the Court:

1. to dismiss the appellant's appeal against the judgment of the Court of First Instance of 14 May 1998 as inadmissible, or at least as unfounded;

2. to reject the appellant's claim;

3. to make the appropriate order as to costs.

D - Grounds of the appeal

31 The appellant bases his appeal, in accordance with Article 51 of the Statute of the Court, on an infringement of Community law by the Court of First Instance. This plea is divided into four limbs.

First limb: claim for damages, examination of the facts establishing liability

Arguments of the parties

32 The appellant criticises the Court of First Instance for having failed to examine all the facts establishing the additional liability of the Commission according to ordinary law, namely fault, damage and the causal connection between fault and damage. A supplementary claim for compensation had been made under that head, together with a claim for payment on the basis of the Staff Regulations. Referring to the Court's judgment in the Leussink (8) case, in which it was stated that an official's claim for additional compensation is not barred `... where the institution is responsible for the accident according to general law and the benefits payable under the staff insurance scheme are insufficient to provide full compensation for the injury suffered', the appellant argues that when there is a claim for damages the liability of the institution in question must first be established. Only at a second stage, if liability has been established, is the extent of the damage payable to be ascertained, taking into account any benefits which may already have been paid on the basis of the social security scheme. The Court of First Instance, however, made no finding as to the Community's liability. Not one of the breaches alleged to have been committed by the Commission was investigated by it. The Court of First Instance's decision was legally flawed in that it did not examine the fault, the damage and the causal link between them. The faults alleged to have been committed by the Commission were numerous and extremely serious. These points should have been addressed before the question of the existence of damage.

33 The contested judgment was also legally flawed in that the Court of First Instance, by confining itself to the question of whether damage existed, wrongly confused two compensation systems which are independent of each other. Entitlement under the two systems rests on different sets of facts and results in different types of compensation.

34 The appellant contends that what is at issue here is, on the one hand, the system for payment of a lump sum pursuant to Article 73 of the Staff Regulations and, on the other, liability according to ordinary law based on the liability of an institution for fault. However, if claims under the two heads are to be compared there must be an investigation of the facts giving rise to the claims, that is to say, confirmation of total invalidity and the presence of fault, in this case by the Commission. However, the Court of First Instance failed to consider the question of fault by the Commission, and thus erred in law.

35 For the Commission, it follows from the case-law on non-contractual liability of the Community that if one of the conditions justifying a claim for damages is absent, there will be no liability on the part of the institution concerned. Since the appellant has not shown that any further harm exists which ought to be compensated, the Commission cannot be liable, regardless of whether the other conditions are satisfied or not. The presence of actual harm is required if an unlawful act imputed to one of the institutions is to render the Commission liable. The Commission likewise relies on the Leussink judgment, pointing out that in that case the Court examined all the conditions only because compensation based on the Staff Regulations would not have been sufficient. However, no binding order of priority to be followed in deciding on a claim for damages can be inferred from that judgment. If one of the required criteria is lacking, there will be no entitlement to damages and no need to consider the other conditions. On this point there is no error of law in the findings by the Court of First Instance in the judgment under appeal.

36 As for the objection that two independent claims for damages have been confused, there is, according to the Commission, no legal principle whereby the harm caused and its extent must be appraised in the light of the faults committed. Compensation must always be determined by reference to damage actually incurred.

Analysis

37 It must first be stated that a potential claim for damages is governed by the general principles of law which are common to the legal systems of the Member States; this is evident from the concept enshrined in Article 215, second paragraph, of the EC Treaty. According to the consistent case-law of the Court and of the Court of First Instance, this means that the following three conditions must be met:

- unlawfulness of the conduct imputed to the institutions;

- the fact of damage;

- existence of a causal link between the conduct and the damage complained of. (9)

38 In the judgment under appeal (10) the Court of First Instance stated, referring to its established case-law, that in an action for damages by an official the Community's liability is dependent on several condition being met concurrently - the unlawfulness of the conduct imputed to the institutions, the fact of damage and the existence of a causal link. From this the Court of First Instance concluded, in paragraph 57 of the judgment under appeal, that even if the Commission were shown to have been at fault, the Community would be liable only if actual harm not otherwise covered had occurred and been proven.

39 The Court of First Instance therefore considered, in paragraphs 58 to 105, whether the appellant had both argued and demonstrated the fact of actual damage not already compensated by the benefits paid by the Commission. Having decided, following this detailed examination, that no further harm existed which merited compensated, the Court stated in paragraph 105 of the judgment under appeal that this plea had to be dismissed and that it was not necessary to consider whether the Commission had been at fault.

40 Contrary to the view of the appellant, this approach by the Court of First Instance does not constitute an infringement of Community law within the meaning of Article 51 of the Statute of the Court.

41 The only aspect of the appellant's argument which can be upheld is that the existence of a claim for damages depends on the three abovementioned conditions being met. However, it is nowhere stated in the case-law of either Community Court that a strict order of priority has to be followed in examining those criteria. It is not apparent that there is any general binding principle of law common to the legal systems of the Member States, and nor has the appellant shown there to be such a principle, that fault must first be established on the part of the institution concerned before actual damage can be ascertained at a second stage.

42 Although it may appear regrettable from the view of the person concerned that the Court of First Instance, before which he brought his action, made no finding on the question of a possible unlawful act by the institution, it is logical, if only for reasons of procedural economy, to confine the legal examination to a single missing criterion, if such absence is more easily ascertainable.

43 Moreover, the appellant has failed to establish on his part the existence of an interest warranting legal protection in having the Court of First Instance make a finding on the issue of fault despite concluding that there was no harm. Such an interest might have been present if special protection had been required in the form of a finding of fault by the Commission in order to compensate for potential future harm, but no such argument was made. If further harm occurs at a later stage the appellant remains free to claim compensation if none has already been granted.

44 Contrary to the appellant's argument the judgment in Leussink case, to which both parties have referred, cannot be construed in any other way. Admittedly, in that case, which involved an action for damages, the Court began its examination of the question of liability by dealing with the condition of fault, in order to ascertain the damage to be compensated, proceedings at a third stage to a consideration of the causal link. However, it is also clear from this judgment that the Court was initially concerned with the question of whether the claimant had an entitlement additional to the claim under the Insurance Rules. (11) In that case the applicant had made a claim to that effect.

45 In paragraph 13 of its judgment the Court stated that an official's claim for additional compensation is not excluded if the institution is responsible for an accident according to general law and the benefits under the Staff Regulations are not sufficient to guarantee full compensation for the damages sustained. The Court then stated that it is necessary to consider, secondly, whether the Commission can be held liable for the accident; if so, it must then be considered whether the benefits payable under the Staff Regulations are insufficient to provide full compensation, and whether the causal link has been adequately demonstrated.

46 The Court therefore dealt in a preliminary examination with the question whether the damage alleged by the claimant in that case could be compensated at all through an action for damages. Since damage of the kind argued could not be excluded, the Court considered all the factual criteria for entitlement to compensation.

47 In the present case also, the Court of First Instance first of all dealt with the question whether the appellant had in fact sustained actual harm which required to be compensated by the Community.

48 The appellant was thus unable to show that the Court of First Instance had erred in law when considering the claim for damages by failing to address the issue of possible fault, and stating merely that there was no actual harm.

49 The first limb of the appellant's plea is therefore unfounded and should be dismissed.

Second limb: incorrect assessment of the damage

Arguments of the parties

50 In this connection the appellant argues that he has suffered material and non-material harm that has not been compensated under either Article 73 of the Staff Regulations or Article 14 of the Insurance Rules. Since the Court of First Instance failed to acknowledge this in the judgment under appeal, its assessment of damage was legally flawed.

51 The appellant defines material damage as loss of income and other assets. He defines non-material damage as physical and occupational impairment, anxiety caused by the obligation to work in an environment harmful to health, anxiety relating to his disease and future development, physical pain due to the disease and after-effects of the operations, as well as failure by the Commission to admit its liability and the consequent loss of confidence in that institution.

52 According to the appellant, the lump sum benefits paid on the basis of Article 73 of the Staff Regulations did not make up the difference between the invalidity pension and his salary as an official. He argues that loss of future salary constitutes damage. Payment of these sums would merely be additional justified compensation, not unjustified enrichment going beyond Article 73 of the Staff Regulations. A distinction has to be drawn here between a claim under Article 73 of the Staff Regulations and a claim seeking to establish liability on the part of the Commission. However, since the appellant is in fact arguing for additional compensation, this cannot already be covered by Article 73 of the Staff Regulations.

53 Furthermore, the compensation provided under Article 14 of the Insurance Rules does not, in the appellant's view, cover the non-material damage which he has suffered. When, however, the Court of First Instance states, as it does in paragraph 85 of the judgment under appeal, that Article 14 of the Insurance Rules does cover non-material damage as well, this is an error in law.

54 The appellant also states that in the proceedings before the Court of First Instance he referred to two judgments, one delivered by the French Court of Cassation on 3 December 1992 and the other by the Turin Magistrates' Court on 9 April 1997, in order to show that under the ordinary law applying in the legal systems of the Member States, the employers concerned had been found to be seriously at fault in `asbestos cases'. In those cases the outcome was that both the material and the non-material damage suffered by the parties concerned had been compensated by means of substantial damages.

55 The Court of First Instance, however, stated erroneously, in paragraph 88 of the judgment under appeal, that the appellant had not succeeded in showing that the sum he was claiming could be granted by the courts of the Member States as compensation for comparable non-material damage. In the appellant's view his contentions on this point had been merely of a supplementary nature, and if the Court of First Instance was convinced that they lacked substantiation, it should have clarified the matter ex proprio motu.

56 The Commission objects that this limb of the appellant's plea is inadmissible. He has, it claims, confined himself to repeating or stating afresh reasoning and arguments already advanced before the Court of First Instance, particularly those which that Court had already expressly rejected. For the Commission, therefore, this limb of the plea is a renewed application for examination of the subject-matter already dealt with in the proceedings before the Court of First Instance. That, however, is not admissible in appellate proceedings.

57 The Commission therefore deals with the appellant's argument only in an ancillary sense.

58 The Court of First Instance did not, according to the Commission, err in finding that compensation additional to Article 73 of the Staff Regulations could be claimed only if it were found that the rules in the Staff Regulations do not afford sufficient compensation. Furthermore, the Court of First Instance arrived at a proper evaluation of both the material and the non-material damage suffered by the appellant. It concluded that the estimated material damage of the appellant - making due allowance for the difference between his invalidity pension and his salary as an official until reaching pensionable age - should be regarded as already covered, effectively, by the lump sum of approximately BEF 25 800 000 paid on the basis of Article 73 of the Staff Regulations. This conclusion does not, however, contradict either Article 73 of the Staff Regulations or the case-law of the Court.

59 The Commission also argues that the Court of First Instance did not err in law in deciding, as regards compensation for non-material damage, that this should be regarded as effectively compensated by the sum of BEF 5 950 000 paid to the appellant on the basis of Article 14 of the Insurance Rules. As for the appellant's further arguments on the question of non-material damage, these are mere assertions and do not demonstrate actual harm.

60 The Commission also rejects as inadmissible the appellant's argument concerning national case-law on compensation for damages. This complaint was directed against a non-essential part of the Court of First Instance's reasoning, and should be rejected as inadmissible, because a complaint of this nature cannot overturn a judgment. Moreover, the judgments cited by the appellant cannot be used to determine non-material damage, so that the Court of First Instance, in its judgment, was correct in finding that the appellant had failed to establish that a sum in the amount claimed could be granted by the courts of the Member States in compensation for comparable non-material damage.

Analysis

61 It should first be noted that in his arguments the appellant confines himself mainly to repeating facts and opinions which had already been addressed in the proceedings before the Court of First Instance. However, since an appeal to the Court, under Article 51 of its Statute, is limited to the examination of questions of law, the appellant's arguments to this effect must, according to the consistent case-law, (12) be rejected as inadmissible.

62 I shall, however, consider briefly, by way of alternative submission, the question whether this head of complaint is well-founded. According to the case-law of the Court, an official of the European Communities may seek compensation additional to a lump sum based on Article 73 of the Staff Regulations only if it is evident in a particular case that the compensation provided for in the Staff Regulations is not sufficient. This also follows from the fact that the meaning and purpose of the payment under Article 73 otherwise would be defeated and the person concerned would be unjustifiably enriched. However, this simply means that the estimated actual damage must be set against the benefits paid under Article 73 of the Staff Regulations or Article 14 of the Insurance Rules. Only if these benefits are insufficient to provide compensation will the way be open for a supplementary claim.

63 The case-law (13) is likewise consistent in stating that the compensation benefits paid under Article 73 of the Staff Regulations or Article 14 of the Insurance Rules are intended to cover not only the financial consequences of an accident or occupational disease, but also the physical and psychological consequences.

64 Turning to the estimation of the material damage suffered by the appellant, it is evident from paragraphs 71 to 78 of the judgment under appeal that the Court of First Instance regarded this as being adequately covered by the payment of a total sum of BEF 25 800 000 on the basis of Article 73 of the Staff Regulations. In its reasoning the Court of First Instance, in paragraph 76, dealt explicitly with the difference invoked by the appellant between his invalidity pension and his salary as an official until reaching retirement age. On this point the Court of First Instance stated that even assuming payment of compensation amounting to BEF 8 400 000 claimed by the appellant - a claim which lacked substantiation - the damage which had occurred was already effectively covered; even if the sum of BEF 5 950 000 paid under Article 14 of the Insurance Rules were to be deducted from the amount of BEF 25 794 194, the sum remaining exceeds the amount of the claim, so that no damage remains.

65 If, however, the actual material damage suffered by the appellant had already been fully compensated by benefits under Article 73 of the Staff Regulations, no scope remains for any supplementary claims for compensation in excess of these. On this point the Court of First Instance did not err in rejecting the plea, and it follows that the appeal based on it is unfounded.

66 As regards compensation for the non-material damage pleaded by the appellant, he is correct is stating that Article 14 of the Insurance Rules does not refer expressly to psychological impairment. In the light of the case-law of both Courts, however, the question should also be asked in this connection whether the benefits paid to the appellant have already sufficiently compensated him for the harm he claims to have suffered. If that has been achieved by virtue of the Staff Regulations and the Insurance Rules, this would be an obstacle to any supplementary claim for damages.

67 On this point the Court of First Instance stated, in paragraphs 83 to 91 of the judgment under appeal, that on the basis of the expert report of the Medical Committee, pursuant to Article 14 of the Insurance Rules, and in order specifically to compensate him for physical impairment and for serious `psychological' disturbance, the appellant had received, in addition to the sum payable under Article 73 of the Staff Regulations, a further payment of BEF 5 950 000. Contrary to the appellant's view, the Court of First Instance did therefore deal quite adequately with the question of compensation for non-material damage. In estimating the damage, it concluded in paragraph 87 that in equity, damage of this kind could be evaluated at a maximum of BEF 5 950 000. It is of course quite conceivable that in principle a higher figure could be set on non-material damage. Damage of this kind, however, can be properly estimated only on the basis of the invalidity scale, and such an estimation is essentially dependent on the particular case concerned. This, however, is a discretionary decision, and the fact that the medical assessments of the appellant's state of health disagree shows that neither the Commission nor the Court of First Instance made any error of law in the matter.

68 It is indeed apparent from the Court of First Instance's statements in paragraph 85 of the judgment that - assuming as correct the appellant's argument that compensation for non-material damage on the basis of Article 14 of the Insurance Rules is not possible - this damage has nonetheless been compensated by payment of the above-mentioned sum. In any event, the amount of the payment fully covers the non-material damage sustained.

69 The Court of First Instance, in reliance on the report of the Medical Committee and the decision of the Commission, denied the existence of any damage in excess of the benefits already paid. It did not err in law by rejecting a supplementary claim for damages.

70 The appellant's argument concerning compensation for non-material damage must therefore in any event be rejected as unfounded.

71 Likewise, the argument that the decisions of courts of the Member States cited by the appellant have been disregarded must be rejected as lacking foundation. The Court of First Instance formed the view the appellant had been unable to demonstrate in the proceeding that a higher sum could, as he claimed, be granted by the courts of the Member States to compensate for comparable non-material damage in similar cases. This follows from paragraph 88 of the judgment under appeal. In this respect the Commission is also correct in stating that the judgments cited by the appellant do not warrant the conclusion that the compensation sought as a supplementary claim would be granted. Although the judgments cited contain findings of serious fault on the part of the employer and uphold claims for compensation on that score, this does not have as a consequence an independent entitlement to compensation, additional to that arising from Article 73 of the Staff Regulations or Article 14 of the Insurance Rules, such as would oblige the Commission to pay further benefits in the present case. Since the damage suffered by the appellant can be regarded as compensated, as already shown, there can be no further entitlement to damages.

72 This argument by the appellant should also be rejected as being in any event unfounded.

Third limb: failure to state reasons

Arguments of the parties

73 According to the appellant, the judgment of the Court of First Instance under appeal contains no objective verifiable statement of reasons as to why the compensation benefits already paid sufficiently compensate the material and non-material damage sustained. He states that he received only the sums to which he was entitled according to the provisions of the Staff Regulations and the Insurance Rules, and nothing more to compensate him for the tragic situation in which he found himself. He would, however, regard it as a token of justice if the Commission, which has seriously undermined his health through its own grave fault, were required to pay compensation on that account.

74 The Commission challenges the admissibility of this line of argument on several counts. First, the appellant is here going beyond his own ground of appeal, namely the infringement of Community law by the Court of First Instance. The argument that no proper statement of reasons had been given should have been advanced as a breach of procedure under Article 51 of the Statute of the Court. But the appellant does not do this. Moreover, he confines himself to a presentation of facts which have already been the subject of the proceedings before the Court of First Instance. Thus he again complains that the Court of First Instance made an mistaken estimation of the damage sustained. He is now seeking to calculate the damage according to the gravity of the faults committed. However, this flatly contradicts the spirit of Article 215, second paragraph, of the EC Treaty. Furthermore, it is clear from paragraphs 76 and 77 and 85 to 87 of the judgment under appeal that the Court of First Instance did in fact give grounds for its decision. In those paragraphs the Court of First Instance concludes that the damage sustained had been adequately compensated.

Analysis

75 I must agree with the Commission that the appellant's plea is inadmissible. It is confined essentially to facts and statements which have already been addressed in the proceedings before the Court of First Instance. From the statement of appeal and the statements made in the oral proceedings it appears that the appellant is in fact looking for a fresh appraisal of these facts for the purpose of justifying a supplementary claim for damages.

76 According to the Court's consistent case-law, however, this line of argument must be rejected as inadmissible. It must also be pointed out that the payment of compensation does not represent any kind of sanction against the author of the damage but is intended rather to compensate for the disadvantages arising from the event in which it occurred. In this sense, the question of the seriousness of the fault cannot play any role in determining the extent of the damage. Consequently, since the Court of First Instance states in paragraphs 76 to 78 of its judgment that the material damage suffered by the appellant is to be regarded as having been compensated by the lump sum paid out, providing comparative calculations on this point, the plea raised by the appellant on this matter must be rejected as unfounded. The outcome for the question of compensation for non-material damage must be the same, since here too the Court of First Instance concluded, after evaluating the damage which had actually occurred, that no further damage existed above and beyond that covered by the sums already paid. In this respect also reference is made to what the Court of First Instance said in paragraphs 83 to 91 of its judgment.

77 Finally, it should also be pointed out that the purpose of the payment made to the appellant was to compensate the damage sustained. This is, precisely, not payment of the `normal' retirement pension to which an official would be entitled according to the provisions of the Staff Regulations. In summary, it may be said of this plea likewise that it should be dismissed as inadmissible and in any event as unfounded.

Fourth limb: Compensation for the delay of the Invalidity Committee in dealing with the case

Arguments of the parties

78 The appellant argues on this point that the Commission exceeded its discretion in making the start of an examination as to invalidity under Article 78 of the Staff Regulations dependent on the prior conclusion of a procedure under Article 73 thereof. In the appellant's view, the Invalidity Committee should also have dealt with the question of whether there was an occupational disease, and not solely with the question of invalidity. He contends that the link between his disease and his work would in that case probably have been recognised earlier by the Invalidity Committee. A claim for damages therefore arises because of the delay in dealing with this matter. The appellant essentially repeats the same arguments as those advanced in the original application, and concludes that the Court of First Instance erred in law by not admitting that, as a result of the Commission's conduct, he had suffered damage from the delay in examining his case. He also criticises the judgment under appeal for failing to rule that the Commission had misused its discretion in that respect.

79 The Commission likewise considers this argument inadmissible, first because it does not adequately identify the contested passages in the judgment under appeal, and second because it is merely a statement of facts without legal argument. The Commission states, in the alternative, that the argument is also unfounded because the Court of First Instance, in the judgment under appeal, deals thoroughly with both of the procedures under Articles 73 and 78 of the Staff Regulations, concluding that there was no misuse of discretion on the Commission's part.

Analysis

80 Here likewise, it must first be stated that the appellant's arguments are confined essentially to a repetition of facts which have already been dealt with in the proceedings before the Court of First Instance. However, in appeal cases this Court may only concern itself with questions of law, and the appellant's arguments must therefore be rejected as inadmissible.

81 Moreover, it is not clear in what sense the Court of First Instance is said to have made an error of law. Referring to the consistent case-law of this Court, the Court of First Instance begins by stating that a comparison between Articles 73 and 78 of the Staff Regulations shows that the benefits specified in those provisions are different from and independent of each other, although they may be granted concurrently. According to it, the two procedures are different and may result in

decisions which differ from and are independent of each other, as indeed Article 25 of the Insurance Rules indicates. (14) The appointing authority enjoys discretion in each particular case when deciding how far the two procedures should be coordinated. Accordingly, the Court of First Instance was correct in stating, in paragraph 137 of its judgment, that this is not a precondition for the legality of either procedure, with the result that the Commission did not misuse its discretion in this area by not requiring the Invalidity Committee established under Article 78 of the Staff Regulations to decide, during the procedure under Article 73 of the Staff Regulations, whether the appellant's disease was of an occupational nature.

82 There would have been a misuse of discretion only if the Commission had had a compelling reason to put to the Invalidity Committee the same question as to the committee established under Article 73 of the Staff Regulations. The appellant was, however, unable to adduce or to demonstrate any such compelling reason. Since the appeal also contains no further explanation on this point, the argument must in any case be rejected as unfounded.

83 In summary, therefore, it may be said that the plea based on infringement of Community law must be rejected as partially inadmissible, but also in any event as unfounded in its entirety.

Costs

84 According to Article 122 of the Rules of Procedure of the Court, the decision on costs is to be made by the Court if the appeal is dismissed. Since in the present case the appellant has been unsuccessful, he should be ordered to pay the costs in accordance with Article 69(2), first subparagraph, of the Rules of Procedure.

E - Conclusion

85 For those reasons, I propose that the Court should:

(1) dismiss the appeal;

(2) order the appellant to pay the costs of the appeal proceedings.

(1) - Judgment of 14 May 1998 in Case T-165/95 Lucaccioni v Commission [1998] ECR-SC I-A-203 and II-627.

(2) - In the invalidity scale the rates applicable to permanent partial invalidity are given as a percentage of the lump sum provided for permanent total invalidity. In cases not covered by this scale, the degree of invalidity is to be determined by analogy with the criteria listed in it.

(3) - The appellant had already been medically treated in 1953 for a condition of the left upper lung, spending ten months in a sanatorium.

(4) - In March 1990 and June 1991 further tissue samples from the lung were examined. In both instances asbestos particles were found in the samples. See paragraphs 11 and 14 of the judgment under appeal.

(5) - The Invalidity Committee consisted of the following three doctors: Dr Cognigni (appointed by the appellant), Dr Mancini (appointed by the Commission) and Professor Maltoni (appointed by the first two doctors).

(6) - The Medical Committee consisted of Dr Cognigni (appointed by the appellant), Professor Brochard (appointed by the Commission) and Professor Maltoni (appointed by the first two doctors).

(7) - The appellant had claimed damages for losses incurred in connection with sales of real property which he claimed had been necessary, provisionally estimating the damages at BEF 12 500 000.

(8) - Joined Cases 169/83 and 136/84 Leussink and Others v Commission [1986] ECR 2801, paragraph 13.

(9) - Joined Cases 197/80, 198/80, 199/80, 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle v Council and Commission [1981] ECR 3211, paragraph 18, and Case C-182/91 Forafrique Burkinabe v Commission [1993] ECR I-2161, paragraph 21.

(10) - See paragraph 56 of the judgment in Case T-165/95 (cited in footnote 1).

(11) - Judgment in Joined Cases 169/83 and 136/84, cited in footnote 8, paragraph 10 et seq.

(12) - Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 48, in Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 24.

(13) - Case 152/77 B v Commission [1979] ECR 2819, paragraph 14.

(14) - Article 25 of the Insurance Rules states: `Recognition of total or partial permanent invalidity pursuant to Article 73 of the Staff Regulations and to these Rules shall in no way prejudice application of Article 78 of the Staff Regulations and vice versa'.