JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

21 March 1996

Case T-10/95

Akli Chehab

v

Commission of the European Communities

‛Officials — Partial permanent invalidity — Recognition of aggravation’

Full text in French II-419

Application for:

annulment of a decision by which the Commission recognized only a 3% aggravation of the applicant's permanent partial invalidity and for an order that the Commission redress the nonmaterial damage allegedly suffered by the applicant in the course of the proceedings.

Decision:

Annulment; other claims dismissed.

Abstract of the Judgment

The applicant suffered several accidents, the first of which, in 1967, resulted in his being recognized as suffering 28% invalidity. Following the second accident, in 1978, he was recognized as suffering 10% permanent partial invalidity (‘PPI’), under the procedure provided for in Article 73 of the Staff Regulations of Officials of the European Communities and the Rules on the insurance of officials against the risk of accident and of occupational disease (‘the Accident Rules’). After a further accident in 1983, the medical officer appointed in accordance with Article 19 of the Accident Rules determined a degree of PPI of 4%. Subsequently, pursuant to Article 21 of the Accident Rules, the appointing authority notified to the applicant a draft decision in which it envisaged recognizing a degree of PPI of 4% and informed him of the possibility of seeking an opinion from the medical committee provided for in Article 23 of the Accident Rules.

The applicant requested that an opinion be obtained from the medical committee, and the latter concluded that, since the applicant had already suffered an accident in 1978, the aggravation of his previous condition had resulted in 4% PPI. The applicant was then recognized as suffering a further 1% PPI in respect of the 1983 accident. He subsequently submitted an application for his case to be reopened, and a new medical committee was therefore appointed. That committee, noting the existence of a previous condition of which account had been taken, assessed the degree of PPI as 8%. It referred in its medical report to the work of Dr M., who had been called on to examine the applicant from the neurological point of view and had concluded that the degree of permanent invalidity could be determined at that time as 10%. On 22 March 1994 the appointing authority, after querying on its own initiative the difference between the degrees of PPI arrived at by the medical committee and Dr M. determined the applicant's degree of PPI as 8% reflecting ‘3% permanent invalidity, representing the aggravation of the applicant's state of health as compared with that found by the last medical committee’. In response to a letter from the applicant challenging the conclusions of the medical committee, the appointing authority asked Dr R., the third member of the medical committee, to give an exact definition of the applicant's ‘previous condition’. The applicant, on being informed by the appointing authority of Dr R.'s reply, maintained his complaint, which was subsequently rejected by the Commission on the ground that the applicant had produced no evidence to challenge the medical assessment according to which the previous state of health taken into account by the medical committee derived from the aftereffects of two earlier accidents. The Commission considered that, in those circumstances, it was obliged to take a decision on the basis of the conclusions of the medical committee.

The claim for annulment of the contested decision

Admissibility

In staff cases, the forms of order sought from the Community judicature must have the same subject-matter as those set out in the complaint and may contain only heads of claim based on the same matters as those relied on in the complaint, provided however that those heads of claim may, before the Community judicature, be developed by means of pleas and arguments not necessarily appearing in the complaint but closely linked to it. In this case, it is clear that the claims for annulment have the same subject-matter as those set out in the complaint, since they are directed in both cases against the Commission decision of 22 March 1994 (paragraph 26).

See: 242/85 Geist v Commission [1987] ECR 2181, para. 9; T-4/92 Vardakas v Commission [1993] ECR II-357, para. 16

As regards the congruence of the heads of claim, the Court of First Instance finds that, in his complaint, the applicant criticizes the Commission for failing to take into consideration the 10% PPI proposed by Dr M. Also, the complaint does not expressly mention the specific problem of the divergence between the 8% PPI determined by the medical committee and the 3% recognized by the appointing authority. Although the application does deal with the problem of the difference between the percentages of PPI, it does not claim that the appointing authority should have accepted the 10% proposed by Dr M. It follows that, in those two respects, the requisite congruence is lacking. Nevertheless, since the applicant asked, in his complaint, that a degree of 10% rather than 8% be recognized, it is clear that, a fortiori, he objected at the same time to recognition of the degree of 3 % challenged in the application. Consequently, the head of claim directed against the limitation to 3% must be regarded as intrinsically contained in that directed against the limitation to 8%, so that the head of claim set out in the complaint and that relied on in the application partially support each other (paragraphs 27 and 28).

As to whether the applicant put forward an argument which is common to the pre-litigation procedure and the proceedings before the Court, it appears that it was in particular because of the absence of any ‘previous condition’ in his case that the applicant sought, in his complaint, recognition of 10% PPI; another aspect concerning the existence of a possible previous condition was brought to the attention of the Commission in the same complaint, in that the applicant thought it necessary for Dr M. to be asked whether the 10% PPI suggested by the latter applied as from 1990 or as from the date of the accident, which amounts to asking whether the period between that date and 1990, covered by the percentages of PPI already recognized in respect of that accident (4% + 1%), should possibly be regarded as reflecting a previous condition. It was also because of the existence of a previous condition that the applicant considers, in his application, that he is entitled to recognition of at least 8% PPI. After learning of the terms of reference of the medical committee, disclosed for the first time in an annex to the rejoinder, the applicant also complained - under circumstances conforming with the requirements of Article 48(2) of the Rules of Procedure - that there was impropriety in the findings of the medical committee concerning the previous condition. The Court of First Instance therefore finds that an argument common to the two procedures was put forward in the claim concerning a ‘previous’ pathological ‘condition’. In those circumstances - and in view of the fact that the complaint, lodged by the applicant without the assistance of a lawyer, must be interpreted not restrictively but with an open mind - the Court of First Instance considers that in this case the requirement of congruence between the complaint and the application is satisfied. Accordingly, the application for annulment should be declared admissible.

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 11

Substance

The sole plea in law put forward by the applicant

The Commission is required to respect findings of a medical nature made by a medical committee and cannot substitute its own assessments; it must merely appraise their legal consequences. The medical assessments properly so called made by the medical committee must be regarded as final where they have been made under the requisite conditions. Judicial review can be carried out only as to the due constitution and functioning of such a committee and the due adoption of the opinions which it issues (paragraph 41).

See: T-64/94 Benecos v Commission [1995] ECRSC II-769, para. 42, and references therein to case-law of the Court of Justice and the Court of First Instance

The Court of First Instance observes that the applicant's action is directed solely against the interpretation of the opinions of the medical committee by the administration which, according to the applicant, disregarded those opinions by limiting the degree of PPI to 3 %. The applicant thus essentially claims that the appointing authority misinterpreted the opinions of the medical committee, which found an aggravation of the applicant's state of health, assessed as 8%, having regard to all the percentages of PPI recognized previously (paragraph 43).

Since the applicant relies on the case-law according to which it is for the Community judicature to examine the decision of the appointing authority taken on the basis of a medical opinion, it must be held that the plea in law put forward in the application relates also to the question of the ‘comprehensible link’ between the medical findings and the decision of the appointing authority. Moreover, after learning of the terms of reference of the medical committee, the applicant stated that the degree of invalidity to be examined in relation to any previous condition was to be indicated by the medical committee in its report and concluded from this that, on the assumption that the medical committee intended to determine overall PPI, it was under an obligation to indicate clearly any degree of invalidity recognized previously which was to be deducted from its final evaluation. He added that ‘in the absence of any indication to the contrary’, the 8% PPI recognized can be understood only as excluding the aggravation of his state of health. Thus, the applicant complained that the medical committee's opinion contained an irregularity concerning the finding and/or the evaluation of a previous condition as compared with the aftereffects of the 1983 accident. At the hearing, the applicant expanded that complaint, putting forward a further argument to the effect that no comprehensible link could be established between the poorly drafted medical reports and the contested decision, which was based on those reports, and asked the Court of First Instance to find that there was no comprehensible link within the meaning of the case-law cited (paragraphs 44 to 46).

See: T-121/89 and T-13/90 X v Commission [1992] ECR II-2195, para. 45, and references therein to the case-law of the Court of Justice

The applicant developed his argument as to the dubious nature of any comprehensible link, raising further points about which he had learned only after the rejoinder was lodged. In so doing he acted in conformity with the first subparagraph of Article 48(2) of the Rules of Procedure. The Court of First Instance considers that the sole plea in law put forward by the applicant can be interpreted as meaning that the limitation by the appointing authority of the degree of PPI to 3 % is unlawful, primarily because the medical opinions at issue clearly indicate 8% PPI and, alternatively, because those opinions contain irregularities concerning the finding and/or appraisal of a previous condition, with the result that they cannot serve as a legal basis for the contested decision (paragraphs 47 and 48).

The merits of the plea in law

It is necessary to examine the propriety of the medical opinions at issue and, more particularly, whether they were sufficiently clear to enable the appointing authority to arrive at the contested limitation of the PPL In that connection, it is apparent from the documents before the Court that the medical committee had been instructed, in particular, to indicate whether or not any permanent invalidity persisted after the accident suffered by the applicant on 29 January 1983 and, if so, to determine the degree thereof. The medical committee was required to take account of any influence of the applicant's previous state of health, it being made clear in its terms of reference that ‘the degree of invalidity to be taken into account in relation to such previous state is to be indicated’. That differentiation between the aftereffects of the 1983 accident alone and any physical injuries attributable to other events is accounted for by the fact that, under the system established by the Accident Rules, the recognition, in respect of a specific accident, of a given degree of PPI, with its attendant financial consequences, must be limited only to the aftereffects of that accident. Where the medical committee finds, in a procedure relating to such an accident, that the aftereffects of other accidents have persisted or been aggravated, those findings may prompt the person concerned and the appointing authority to initiate a new procedure for possible recognition of a separate degree of PPI for those accidents (paragraphs 49 to 51).

In the present case, such differentiation was all the more necessary since the applicant, in his request that his case be reopened, claimed aggravation of the aftereffects of the ‘various accidents suffered by him during his period of activity with the Commission’. Even though the appointing authority limited the terms of reference of the medical committee to the 1983 accident, it was nevertheless clear that the applicant claimed overall aggravation of his state of health, which he did not wish to be limited only to the 1983 accident. Moreover, the 1983 accident had already given rise to twofold recognition of PPI (4% plus 1 %), for which reason it was also important to indicate whether or not that PPI came within the scope of such previous condition as might be determined by the medical committee. In those circumstances, the appointing authority was under a particular obligation to ensure, by virtue of its duty to have regard for the welfare of officials, that any previous condition of the applicant was actually made clear, that is to say expressed in plain figures, so that the applicant would be able, in any later procedure, to give effect to any right to recognition of other PPI (paragraph 52).

The Court of First Instance finds that the medical committee, in its medical report, failed, in breach of its terms of reference, to draw a comparison with that previous condition. That report is therefore vitiated by an irregularity. As a result, it is impossible to conclude, solely on the basis of the medical report and having regard to the long history of the applicant's various accidents, what relationship existed between his previous condition and the degree of 8% PPI found by the medical committee (paragraph 53).

It is nevertheless necessary to verify whether or not that irregularity was rectified subsequently. The request by the appointing authority for information concerning consideration by the medical committee of the previous condition at issue can be explained only by a doubt concerning the divergence between the degrees of PPI, a doubt prompted specifically by the failure to give a figure in respect of the previous condition mentioned in the medical report. In a supplementary report, the medical committee still did not give a clear figure for the previous condition concerned but ‘concedes’ that the difference ‘is explained’ by the fact that the previous condition was taken into account. That passage confines itself to giving an explanation of the earlier report ex post facto. It must therefore be held that that supplementary report did not dispel the uncertainties raised by the earlier medical report and, by failing to give a figure for the earlier condition, was not in conformity with the committee's terms of reference (paragraphs 54 to 56).

Following the complaint in which the applicant emphasized, among other things, the absence of any condition antedating the various accidents suffered, the appointing authority sought information to enable it to determine ‘what exactly that previous condition was’. The Court of First Instance considers that Dr R.'s letter of reply likewise failed to provide the clarifications needed regarding the degree of PPI to be associated with the previous condition but is susceptible of different interpretations, which in fact the defendant relied on until conclusion of the procedure before the Court of First Instance (paragraphs 57 to 62).

It must be held that the real meaning of the term ‘previous condition’ used by the medical committee is subject to imprécisions and doubts, so that it is not possible to clarify either the nature of that condition or the degree of PPI deriving from it. It follows that the medical opinions on which the contested decision is based do not conform with the committee's terms of reference and that, at the same time, they fail to establish a comprehensible link between the medical findings which they contain and the conclusion which they reach (paragraph 63).

See: X v Commission, cited above, para. 45, and references therein to the case-law of the Court of Justice; Benecos v Commission, cited above, para. 42, and references therein to the case-law of the Court of Justice and Court of First Instance

Those medical opinions are not therefore capable of justifying the limitation of the degree of PPI to 3% in the contested decision, so that the sole plea in law put forward by the applicant must be upheld. Consequently, the Commission decision of 22 March 1994 must be annulled to the extent to which it imposes that limitation of the degree of PPI (paragraph 64).

The claim for compensation

In his reply, the applicant claims that the Commission disclosed without authorization certain matters relating to his state of health and even produced confidential medical reports covered by medical secrecy. The Commission, he claims, thus infringed his right to respect for his private life embodied in Article 8 of the European Human Rights Convention. In view of that new fact, which emerged in the course of the procedure, the applicant seeks reparation for the nonmaterial damage suffered in the form of an order that the Commission pay the token sum of one ECU (paragraph 65).

Whilst in certain circumstances Artide 48(2) of the Rules of Procedure allows new pleas in law to be introduced in the course of the proceedings, that provision cannot in any case be interpreted as authorizing an applicant to seek new forms of order from the Community judicature and thereby alter the subject-matter of the dispute. It is true that the Court of Justice has recognized that, in proceedings for annulment, claims against a measure that is withdrawn in the course of the proceedings by the institution from which it emanated may be regarded as directed against the new measure substituted for the withdrawn measure. However, such substitution does not alter the nature of the action for annulment initially brought. The position is quite different in this case, where the applicant added to his claim for annulment a claim for reparation, thereby altering the nature of the original dispute (paragraph 66).

See: 232/78 Commission v France [1979] ECR 2729, para. 3; 125/78 Gema v Commission [1979] ECR 3173, para. 26; 14/81 Alpha Steel v Commission [1982] ECR 749, para. 8; 103/85 Stahlwerke Peine-Salzgitter v Commission [1988] ECR 4131, para. 11; T-28/90 Asia Motor France v Commission [1992] ECR II-2285, para. 43

It must be added that in staff cases the admissibility of claims for compensation is subject to due observance of the prior administrative procedure provided for by Articles 90 and 91 of the Staff Regulations. Since the nonmaterial damage alleged by the applicant derived from the disclosure by the Commission of supposedly confidential information, the applicant should, before making that claim, have followed the two-stage administrative procedure comprising a request and a complaint within the meaning of Article 90(1) and (2) of the Staff Regulations, initiated by a request that the appointing authority compensate him for the alleged damage. However, that pre-litigation procedure was not followed in this case. It follows that the claim for compensation must in any event be declared inadmissible (paragraphs 67 and 68).

See: T-50/92 Fioroni v Parliament [1993] ECR II-555, paras 45 and 46

Operative part:

The Commission decision of 22 March 1994 is annulled in so far as it limits to 3% the degree of invalidity recognized as suffered by the applicant.

The remainder of the action is dismissed.