OPINION OF MR ADVOCATE GENERAL DARMON

delivered on 11 December 1984 ( *1 )

Mr President,

Members of the Court,

Mrs Pasquali-Gherardi has brought this action for damages against the European Parliament, in its capacity as the appointing authority, in order to establish before this Court the Parliament's liability for its delay in assigning her to a post in keeping with the deterioration in her state of health.

Mrs Pasquali-Gherardi was recruited as an Italian-language shorthand-typist following her successful participation in Open Competition No EP/74/C and was appointed in Grade C 3 on 17 October 1979. On 15 November 1979, she suffered an accident at her place of work, which caused serious damage in the region of her left eye. The impairment of her sight as a result of that accident made it extremely difficult for her to continue the work of a shorthand-typist for which she had been recruited, and that is the reason why, on several occasions between the end of 1979 and spring 1981, she was obliged to absent herself from her work on sick leave. Those interruptions in her work were the basis of an unfavourable report on her probationary period; that report led to her dismissal, a decision which the appointing authority subsequently rescinded. The applicant is now an established official and was promoted to Grade C 2 with effect from 1 January 1982 by a decision of 14 January 1983.

The aftereffects of the accident raised the question of the degree of invalidity which should be recognized in the applicant's case. In order to deal with the matter, two procedures were set in motion.

The Director of Personnel and Social Affairs at the Parliament considered that the applicant's condition might be covered by Article 78 of the Staff Regulations, and that consequently it should be determined whether she had incurred ‘total permanent invalidity preventing [her] from performing the duties corresponding to a post in [her] career bracket.’ On 21 January 1982, he therefore referred the matter to the Invalidity Committee constituted in accordance with Article 7 of Annex II to the Staff Regulations. In its report, which was delivered on 28 January 1983, the Committee recommended that the applicant ‘should be assigned to a post corresponding to her career bracket but not involving a high level of visual effort’.

The second procedure, which was initiated subsequently, was an inquiry under the terms of Article 73 of the Staff Regulations to establish the amount of the lump sum to be paid in compensation by the Parliament on the basis of the invalidity rate to be determined by the Medical Committee constituted for that purpose. That committee, which was consulted at the applicant's request, ( 1 ) reported on 10 January 1984 in favour of an invalidity rate of 7%.

It is in the light of those circumstances that we must consider the dispute which arose between the appointing authority and the applicant as to whether it was possible for her to be assigned to duties better suited to her state of health. Since no solution has yet been found, Mrs Pasquali-Gherardi continues to work as a shorthand-typist. It is for that reason that she has brought this action, claiming that the Parliament failed to show due diligence in relieving her of duties which had become unsuitable as a result of her accident.

Before considering the substance of the application, I must examine its admissibility, which the defendant denies.

1. Admissibility

As the Parliament notes, the applicant brought her application without first submitting a complaint to the appointing authority, despite the provisions of Article 91 (2) of the Staff Regulations, which states that:

‘An appeal to the Court of Justice of the European Communities shall lie only if:

— the appointing authority has previously had a complaint submitted to it pursuant to Article 90 (2) within the period prescribed therein ...’.

The ‘prior’ complaint was in fact lodged after this action had been brought, and the Parliament argues that the action should therefore be declared inadmissible.

However, in order to show that she was justified in bringing proceedings directly before this Court, Mrs Pasquali-Gherardi relies on the reasoning adopted by the Court in the Marcato case (and consistently followed since) to the effect that a complaint to the appointing authority against a decision adopted by a selection board is pointless, because the administration is not competent to review it. ( 2 ) So in this case, the applicant argues, the damage she has suffered is irreversible; it is no longer possible for the Parliament to remedy it.

I am unable to accept that argument, which is based on a misapplication of the Marcato judgment to this case. The reason why the Court considered that a prior complaint to the appointing authority in order to contest the decision of a selection board was ‘nugatory’ was that a selection board was independent, so that its decisions could not be amended by the appointing authority. ( 3 ) For that reason, lodging a complaint ‘would merely result in a futile prolongation of the procedure’, ( 4 ) since the appointing authority is not empowered to annul or amend the selection board's decisions.

However, no valid analogy can be drawn between the circumstances which justify that economy of procedure and the situation here.

In this case, far from being nugatory, the applicant's use of the official complaints procedure laid down in Article 90 of the Staff Regulations would have served precisely the purpose ascribed to it by the Court: ‘to encourage an amicable settlement of the dispute ... ’. ( 5 ) Moreover, it would have fulfilled the ‘duty of loyalty’, which requires any complainant to make his complaints known to the appointing authority and enable it to settle the dispute immediately without having to go before the Court. ( 6 )

Finally, I should add that since this is an action challenging the appointing authority's failure to take a decision to transfer the applicant, Mrs Pasquali-Gherardi should have made a request, followed if necessary by a complaint, before commencing an action. The applicant has therefore failed to observe any part of the official complaints procedure, which was specifically established by the Staff Regulations to formalize disputes so as to bring them rapidly to a conclusion and, if possible, to avoid an application to the Court. The applicant's failure to do so is particularly difficult to understand in view of the fact that, as she has herself acknowledged, her object in bringing these proceedings was to compel the Parliament to take a decision on the matter.

All these considerations lead me to propose that the action brought by Mrs Pasquali-Gherardi should be declared inadmissible. I therefore examine the substance of her case solely in the alternative.

2. Substance

I should like first of all to remind the Court of the precise purpose of the action. Mrs Pasquali-Gherardi is not seeking to obtain compensation for the damage she sustained as a result of her accident. Her action for compensation relates solely to the damage produced by her worsened state of health since that accident, which she claims is due, on the one hand, to the appointing authority's failure to inform her immediately of the Invalidity Committee's conclusions and, on the other, to the appointing authority's delay in assigning her to a more appropriate position havingregard to the aftereffects of the accident. Thus the applicant needs to prove the existence of those errors and the reality of both the damage suffered and the causal link between the two. I shall, in so far as is necessary, examine those conditions in turn to see if they are met.

With regard to the two errors alleged against the Parliament, I would make the following remarks.

The complaint that the Invalidity Committee's report was not notified in due time cannot be accepted. Though it is true that Article 9 of Annex II to the Staff Regulations, which deals with the Invalidity Committee, lays down the rule that the Committee's conclusions are to be communicated to the official concerned, it does not specify a time-limit. In this case, those conclusions were made available to the applicant, after her lawyer had requested them, within two months from the delivery of the report. Although it may be regretted that that communication was not made as a matter of course, the period which elapsed does not appear to me to have been unreasonable.

The second error which Mrs Pasquali-Gherardi alleges against the Parliament is that it failed to look for a solution to deal with the health problem she had suffered since her accident, even though the question of transferring her to a more suitable position had been raised first in a letter of 8 December 1980 from the Director-General for Sessional and General Services, then again in a letter of 25 May 1982 from the Director of Personnel and finally in the Invalidity Committee's own recommendation dated 28 January 1983. In other words, although it had been recognized very early on that the duties for which she had been recruited were incompatible with her state of health, the Parliament did not act with the diligence which must be a feature of its dealings with its staff.

With regard to that claim, the following points deserve to be taken into consideration.

It is undeniable that the injury suffered by Mrs Pasquali-Gherardi as a result of her accident has reduced her visual capacity, so that the work she was recruited to do as a shorthand-typist has been causing her difficulties. It is also established that the applicant still continues to carry out her duties and that it would be desirable — the Parliament does not deny this — for her to receive another posting.

Nevertheless, the delay of which the applicant complains does not appear to me to constitute wrongful conduct on the part of the appointing authority. Despite what the applicant says, I do not think that the question of a transfer could really arise until the Invalidity Committee had made its recommendation. The administration's letter of 8 December 1980 does not constitute a valid basis for her argument, since it merely refers to ‘retirement on grounds of invalidity or any other solution’, without suggesting anything more specific.

Against that may be set the administration's letter of 25 May 1982, which refers to the possibility of transferring Mrs Pasquali-Gherardi on health grounds. However, if that solution was to be implemented it was necessary first of all to resolve the question whether the applicant was able to continue working, and that obviously depended on the conclusions of the Invalidity Committee.

It is true that the matter was referred to the Committee more than two years after the accident. However, it is necessary to bear in mind what happened in that period; the Parliament's medical officer, taking the view that the applicant's condition had not yet stabilized, had postponed the determination of her degree of invalidity until the middle of 1981, and it is precisely that period which saw the unfortunate episode of her dismissal — a measure which was very properly rescinded at the end of 1981 by the Parliament's Secretary-General. Between the latter decision and the reference to the Invalidity Committee, less than two months elapsed. Thus the date on which the Invalidity Committee delivered its conclusions is in fact the time at which the question of a transfer arose.

In fact, following that recommendation, the Parliament offered Mrs Pasquali-Gherardi two alternative posts, one in the Messengers Service, and the other in Personnel Archives. Although Mrs Pasquali-Gherardi does not deny that it was extremely difficult for the appointing authority to find a post in her career bracket which did not involve a high level of visual effort, and indeed goes so far as to admit that what she was looking for was a ‘miracle job’, she did not think fit to accept either of those two offers.

It is clear on those facts that Mrs Pasquali-Gherardi cannot complain of any delay on the part of the appointing authority in offering her a new posting suitable for her state of health. Consequently, I consider that the wrongful conduct with which the appointing authority is charged has not been established.

If nevertheless it should be held that the opposite was the case, it would then be necessary to consider whether the applicant really suffered damage as a result of the wrongful conduct. Mrs Pasquali-Gherardi maintains that her state of health has deteriorated as a result of the appointing authority's delay in assigning her to a more appropriate position.

I do not share the applicant's conviction. She has not adduced any proof — which might have included an expert medical opinion — either of her worsened state of health or of its connection with the delay alleged against the Parliament. The Medical Committee's report, which established a degree of invalidity limited to 7%, does not contain any evidence supporting the applicant's claim. Nor has any proof been provided of the existence of a causal connection, which cannot, despite what the applicant claims, be presumed.

To sum up, I propose:

(1) That the application should be declared inadmissible;

(2) In the alternative, that it should be declared unfounded;

(3) That, pursuant to Article 70 of the Rules of Procedure, each party should be ordered to bear its own costs.

( *1 ) Translated from the French.

( 1 ) Article 19 of the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease, adopted on 27 January 1977 by the European Parliament.

( 2 ) Case 44/71, Marcalo, [1972] ECR 427, at paragraphs 4 to 9.

( 3 ) Case 34/80, Allibii, [1981] ECR 665, at paragraph 7.

( 4 ) Case 7/77, von Wüllerstorff and Urbair, [1978] ECR 769, at paragraph 8.

( 5 ) Case 543/79, Birbe, [1982] ECR 4425, at paragraph 26.

( 6 ) Joined Cases 22 and 23/60, Elz, [1961] ECR 181, Opinion of Advocate General Roemer, at p. 192.