JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

22 May 2007

Case F-99/06

Adelaida López Teruel

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Officials – Sick leave – Unauthorised absence – Arbitration proceedings – Period in which to appoint an independent doctor)

Application: brought under Articles 236 EC and 152 EA, in which Mrs López Teruel seeks annulment of OHIM’s decision of 20 October 2005 telling her that her absence since 7 April 2005 was unauthorised and instructing her to return to her post without delay.

Held: OHIM’s decision of 20 October 2005 is annulled inasmuch as it treats Mrs López Teruel’s absence as unauthorised absence from 8 to 20 February 2005 and from 7 April to 2 August 2005. The remainder of the application is dismissed. OHIM is ordered to bear its own costs and to pay one third of Mrs López Teruel’s costs.

Summary

1. Officials – Sick leave – Medical examination

(Staff Regulations, Art. 59(1), para. 6)

2. Officials – Sick leave – Medical examination

(Staff Regulations, Art. 59(1), paras 5 to 7)

3. Officials – Sick leave – Medical examination

(Staff Regulations, Art. 59(1), para. 7)

4. Officials – Principles – Principle of sound administration

(Charter of fundamental rights of the European Union, Art. 41)

1. The period of five days provided for in the sixth paragraph of Article 59(1) of the Staff Regulations after which, if no agreement is reached between the official’s doctor and the institution’s medical officer, the administration may unilaterally appoint an independent doctor to arbitrate on the conclusions of the medical examination in connection with sick leave, runs from the first contact between the doctor representing the official and the doctor appointed by the administration, though the latter does not have sole initiative to make that contact. Since it is not possible to identify from the wording of that provision exactly when the legislature intended that period to start, reference should be made to its ratio legis, which is to allow agreement to be sought guaranteeing that the official’s rights of defence are observed during the arbitration proceedings while also ensuring the rapid progress of those proceedings, so that the period cannot be started on the initiative of just one of the two parties.

The period is not merely for guidance, but is mandatory for both parties, and its expiry gives the administration not just the option, but the obligation to choose the arbitrating doctor from the list of independent doctors. It is not, however, a matter of public policy.

Since the arbitration proceedings are initiated on the official’s initiative, he cannot rely, for the purpose of disputing the administration’s decision to appoint an arbitrating doctor unilaterally, on the failure of the doctor he appointed to represent him to take full account of the mandatory nature of that time-limit. While it may, admittedly, be necessary in practice to point out to a doctor outside the institution that the time-limit for agreeing on the choice of an independent doctor is very short, the institution does not infringe one of its obligations in refraining from doing so, since the official’s doctor, in agreeing to represent him in the arbitration proceedings provided for in the Staff Regulations, is deemed to have also accepted the framework and the time-limits.

(see paras 44, 46-47, 50-52, 54, 97)

See:

4/67 Collignon v Commission [1967] ECR 469, 479

T-197/98 Rudolph v Commission [2000] ECR-SC I‑A‑55 and II‑241, para. 41

2. Where the opinion of the independent doctor confirms the conclusion of the medical examination arranged by the institution in connection with an official’s sick leave, the official’s absence may not be treated as unauthorised before the date of that examination even if, in that opinion, the view is taken that his absence was unjustified from an earlier date. While it is true that the first sentence of the seventh paragraph of Article 59(1) of the Staff Regulations confers binding status on the opinion of the independent doctor in all its aspects, the scope of that binding status is, however, made clear in the last two sentences of that paragraph, which state that the absence is treated as unjustified from the date of the examination.

However, since the fundamental reason for the very short time-limits within which the medical arbitration proceedings can be initiated and conducted is to guarantee that the medical examination for the arbitration proceedings is held as soon as possible after the medical examination arranged by the institution, and taking account of the duty of diligence which the provisions of the fifth to the seventh paragraphs of Article 59(1) of the Staff Regulations place on both the administration and the official, where the administration does not communicate the conclusion of the medical examination to the official within a reasonable period, his absence can be regarded as unjustified only from the date of that communication, since the period during which the official was awaiting that communication cannot be regarded as an unauthorised period of absence.

(see paras 61-63, 65-67)

3. The actual medical assessments given in the independent doctor’s opinion as part of the medical examination procedure required in connection with sick leave, just like those issued by the Medical and Invalidity Committees, must be regarded as definitive where they have been produced under lawful conditions. The Community judicature, which has no power to review those medical assessments, may only examine whether the medical opinion contains a statement of reasons allowing an assessment to be made of the considerations on which its conclusion is based, and whether it has established a comprehensible link between the medical findings it contains and the conclusion it reaches.

(see paras 74-76)

See:

277/84 Jänsch v Commission [1987] ECR 4923, para. 15

T-165/89 Plug v Commission [1992] ECR II‑367, para. 75; T-27/98 Nardone v Commission [1999] ECR-SC I‑A‑267 and II‑1293, para. 30; T-84/98 C v Council [2000] ECR-SC I‑A‑113 and II‑497, para. 43; T-191/01 Hecq v Commission [2004] ECR-SC I‑A‑147 and II‑659, para. 62

F-39/05 Beau v Commission [2006] ECR-SC I‑A‑1‑51 and II‑A‑1‑175, para. 35

4. In accordance with the principle of sound administration, when the administration takes a decision concerning the situation of an official, it must take into consideration all the factors which may affect its decision, and when doing so it should take into account not only the interests of the service but also those of the official concerned. However, the principle of sound administration does not, in itself, confer rights upon individuals, except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of fundamental rights of the European Union.

(see para. 92)

See:

T-196/99 Area Cova and Others v Council and Commission [2001] ECR II‑3597, para. 43; T-11/03 Afari v ECB [2004] ECR-SC I‑A‑65 and II‑267, para. 42; T-193/04 Tillack v Commission [2006] ECR II‑3995, para. 127