JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

13 June 2012

Case F‑63/10

BL

v

European Commission

(Civil service — Former official — Social security — Accident — Closure of the procedure for the application of Article 73 of the Staff Regulations — Temporal application of the scale annexed to the new version of the rules on insurance against the risk of accident and of occupational disease — Length of the procedure)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which BL, a former official of the European Commission, seeks, inter alia, annulment of the decision of 28 October 2009 by which the appointing authority closed the procedure opened under Article 73 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) and assessed his physical/mental impairment (‘disability’) at 6%.

Held: The decision of 28 October 2009 is annulled. The Commission is ordered to pay the applicant the sum of EUR 2 500. The action is dismissed as to the remainder. The Commission is to bear its own costs and is ordered to pay the costs incurred by the applicant.

Summary

1. Officials — Social security — Insurance against the risk of accident and of occupational disease — Invalidity — Allowance — Entitlement to payment — Conditions — Consolidation of all injuries

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 19(3))

2. Acts of the institutions — Temporal application — Scale annexed to the rules on the insurance of officials of the European Union against the risk of accident and of occupational disease — Application of the scale in force on the date when all the injuries consolidated — Application of the new scale established after that date — Breach of the principle of legitimate expectations

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 30)

1. Article 73 of the Staff Regulations provides that an official is ‘insured, from the date of his entering the service’ against the risks of occupational disease and of accident. That provision also specifies that the benefits covering those risks are ‘payable’ to the official.

However, although the EU legislature has established an insurance scheme against the risk of accident and of occupational disease, the institutions, acting under Article 73(1) of the Staff Regulations, have made the conferring of entitlement to the insurance benefits in question, and therefore their payment, dependent on compliance with a number of conditions.

Thus, under Article 19(3) of the common rules on the insurance of officials against the risk of accident and of occupational disease, the decision defining the degree of disability can be taken only after the insured party’s injuries have consolidated, consolidation being the condition of a victim whose injuries have stabilised in such a way that they no longer appear likely to get better or heal and that treatment is, in principle, no longer recommended except in order to prevent them from getting worse. This means that entitlement to payment of the allowance provided for in Article 73(2)(c) of the Staff Regulations in the event of partial permanent invalidity arises only when all the injuries have consolidated. Consequently, it is only as from that date that the insured party has a right to have his disability assessed.

(see paras 46-49)

See:

14 July 1981, C‑186/80 Suss v Commission, para. 15

21 May 1996, T‑148/95 W v Commission, para. 36

17 February 2011, F‑119/07 Strack v Commission, para. 88

2. In a procedure opened under Article 73 of the Staff Regulations of Officials of the European Union, since the situation of the insured party, in the light of his right to have his disability rating assessed, was fully constituted at the time of the consolidation of his injuries, he must, in principle, have applied to him the disability rating scale in force on the date of that consolidation.

If the date of adoption by the appointing authority of the draft decision assessing the insured party’s rate of disability and the amount of the corresponding lump sum were to be adopted as the relevant date for the determination of the applicable disability rating scale, as appears from Article 30 of the new version of the common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, that could lead to the application of different rules to persons whose injuries nevertheless consolidated at the same time, depending on the degree of promptness shown by the administration in dealing with their respective cases, which would not be without a risk of arbitrariness.

In the light of the foregoing considerations, it is apparent that Article 30 of those rules, in so far as it provides that the scale annexed to those rules is applicable, in the absence of a draft decision of the appointing authority determining the rate of disability, to insured parties who are victims of an accident or an occupational disease and whose injuries consolidated before the date of its entry into force, that is, on 1 January 2006, refers, in the case of those insured parties, to situations fully constituted under the disability rating scale annexed to the old Insurance Rules. Article 30 of the rules therefore gives, in that regard, retroactive effect to the scale annexed to them.

The application of the disability rating scale annexed to the new version of the rules to insured parties who were victims, before the entry into force of those rules on 1 January 2006, of an accident or an occupational disease and whose injuries consolidated before that same date, necessarily infringed the legitimate expectations of those insured parties. Consequently, the new rules must be declared illegal in so far as they provide for the application of the scale annexed to them to insured parties who are victims of an accident or an occupational disease and whose injuries consolidated prior to their entry into force.

(see paras 50, 54, 56, 60, 62)

See:

18 October 2011, T‑439/09 Purvis v Parliament, paras 39 and 40