Opinion of Mr Advocate General Alber delivered on 5 March 1998. - H v Commission of the European Communities. - Appeal - Officials - Invalidity procedure - Assessment of facts. - Case C-291/97 P.



European Court reports 1998 Page I-03577



Opinion of the Advocate-General

A - Introduction

1 By judgment of 3 June 1997 (1) the Court of First Instance gave judgment in an action which Mrs H, (2) a former official of the Commission, had brought against that institution. She sought the annulment of the Commission's decisions of 27 September 1994 (retiring her) and 27 June 1995 (rejecting her complaint against that decision) and also the annulment of the Invalidity Committee's opinion of 13 September 1994 finding that the appellant was unfit for work.

2 The Court of First Instance dismissed the application as inadmissible in so far as it sought the annulment of the Invalidity Committee's opinion and the decision of 27 June 1995. As to the remainder, the application was dismissed as unfounded.

3 By notice of appeal dated 5 August 1997 Mrs H brought an appeal against that judgment.

B - Facts and parties' submissions

4 The facts giving rise to the judgment of the Court of First Instance are as follows. In this regard, it should be observed that at one point two distinct procedures (one for the purpose of retiring the appellant and the other with a view to placing her on sick leave) were in progress at the same time.

5 The appellant was first of all required on 17 March 1993 to take sick leave pursuant to Article 59(2) of the Staff Regulations of Officials of the European Communities (hereinafter `the Staff Regulations').

6 The appellant lodged a complaint against that decision by letter of 3 June 1993. According to the appellant, however, this letter was mislaid by the Commission. She therefore lodged a fresh complaint against the Commission's decision by letter of 13 June 1993.

7 In the meantime, Mrs H was promoted to Grade B 3 by decision of 20 April 1993.

8 With reference to the (allegedly mislaid) complaint of 3 June 1993, the Commission informed the appellant by letter of 17 June 1993 - which was sent by ordinary post to the appellant's address in Brussels - that it proposed to refer the matter to the Invalidity Committee for an opinion pursuant to Article 59(3) of the Staff Regulations. Mrs H was furthermore requested to appoint a doctor of her choice to represent her on that Invalidity Committee. Since the appellant failed to respond, that request was repeated in a letter of 15 July 1993, which was also sent by ordinary post and in which the Commission informed the appellant that it would request the President of the Court of Justice to appoint a doctor in the event of her continuing failure to appoint a doctor.

9 The Commission, according to the appellant, informed her by letter of 3 December 1993, which she received on 18 January 1994, of the decision which it had adopted in response to the complaint of 13 June 1993. However, that fully reasoned decision made no reference to the letters of 17 June and 15 July 1993.

10 On 14 January 1994 Mrs H brought an action before the Court of First Instance (3) against the Commission in the form of an application for the annulment of the Commission's decision of 17 March 1993 placing the appellant on sick leave. The appellant withdrew this action on 18 April 1995.

11 Since the appellant failed to appoint a doctor of her own choice, the Commission, by letter of 17 December 1993, requested the President of the Court of Justice to appoint a doctor in accordance with the second paragraph of Article 7 of Annex II to the Staff Regulations.

12 In answer to the Commission's letter of 3 December 1993 the appellant informed the Commission on 18 April 1994 that she intended to go to Italy to look for a doctor to represent her on the Invalidity Committee. However, she says that she received no answer from the Commission.

13 By letter of 20 June 1994 the Commission was informed of the decision of the President of the Court of Justice concerning the appointment of a doctor for the appellant. According to the Commission, the doctor appointed by it wrote to Mrs H on the same day informing her of the establishment and composition of the Invalidity Committee. However, the appellant denies having received that letter.

14 On 13 September 1994 the Invalidity Committee, without hearing the appellant (since she refused to attend the meeting on the date appointed), reached the conclusion that she was suffering from total permanent invalidity preventing her from performing the duties corresponding to a post in her career bracket and that it was therefore obliged to suspend her employment with the Commission.

15 The appellant has alleged both in the proceedings before the Court of First Instance and in the proceedings on appeal that the medical conclusions on the basis of which she was placed on sick leave and declared unfit for work were arrived at without her having been examined and without the findings of other examinations which she had at her disposal being taken into account. In that regard she gave to understand that she could have provided favourable assessments from other doctors, had she been duly notified.

16 The appointing authority informed the appellant by letter of 27 September 1994 that it had decided, in accordance with the opinion of the Invalidity Committee, to retire her, pursuant to Article 53 of the Staff Regulations, with effect from 1 October 1994. In that regard, the Commission has submitted that this letter, enclosing the contested decision and containing an acknowledgement of receipt, was delivered to the applicant's address on the same day by officials of the security office. Since the appellant was not present, however, the acknowledgement of receipt was not signed by her.

17 On 10 January 1995 the appellant acknowledged receipt of the appointing authority's decision; furthermore, in the proceedings before the Court of First Instance she stated that she had only received the letter on that date.

18 On 6 April 1995 the appellant lodged a complaint against the decision of 27 September 1994.

19 By decision of 27 June 1995, which the appellant claims only to have received on 18 July 1995, the Commission rejected the appellant's complaint.

20 Before the Court of First Instance the appellant claimed that the Commission's decision of 27 September 1994 retiring her, its decision of 27 June 1995 rejecting her complaint against that decision and the opinion of the Invalidity Committee of 13 September 1994 should be annulled.

21 The application was dismissed on grounds which will be repeated in summary form below when I examine the pleas which the appellant has put forward in support of her appeal.

22 Mrs H claims that the Court should:

1. declare the appeal admissible and well founded;

2. set aside the judgment of the Court of First Instance; and

3. declare that her previous action was admissible and well founded.

C - Analysis

1. Admissibility of the appeal

23. Since only the Commission deals with the issue of the admissibility of the appeal, I shall begin by examining the arguments which it puts forward.

24. The Commission maintains, principally, that Mrs H's appeal is limited to complaining that the Court of First Instance assessed the facts incorrectly. An appeal is only admissible, however, where it is based on grounds which relate to the breach of rules of law, to the exclusion of any assessment of the facts. Since the appellant merely submits that the Court of First Instance committed an error in assessing the facts put forward by the parties and the evidential force thereof, the Court must dismiss the appeal as inadmissible.

25. The Court of Justice has consistently held that if an appeal is to be admissible under Article 168a of the EC Treaty and meet the requirements of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure it must clearly state which aspects of the judgment which the Court is requested to set aside are criticised and the legal arguments which specifically support the request, and cannot be limited to repeating or reproducing verbatim the pleas in law and arguments already submitted to the Court of First Instance, including those based on factual allegations expressly dismissed by that Court. (4) Such an appeal merely seeks, in reality, reconsideration of the application submitted to the Court of First Instance, which is precluded under Articles 49 and 51 of the EC Statute of the Court of Justice. (5)

26. By the first plea in support of her appeal Mrs H complains of a breach of her rights under the second and third paragraphs of Article 26 of the Staff Regulations in conjunction with Article 7 of Annex II thereto.

27. The second paragraph of Article 25 of the Staff Regulations provides:

`Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based'.

28. Article 26 of the Staff Regulations concerns the content of the personal file. Subparagraph (a) of the first paragraph provides that the personal file [of an official] is to contain all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct.

29. The second and third paragraphs are worded as follows:

`Documents shall be registered, numbered and filed in serial order; the documents referred to in subparagraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed.

The communication of any document to an official shall be evidenced by his signing it or, failing that, shall be effected by registered letter.'

30. As regards the Invalidity Committee, the second paragraph of Article 7 of Annex II to the Staff Regulations provides:

`Should the official fail to appoint a doctor, the President of the Court of Justice of the European Communities shall appoint one.'

31. Mrs H alleges a number of formal and procedural irregularities on the occasion of the establishment and composition of the Invalidity Committee. According to the Staff Regulations, the Invalidity Committee is to give both parties the opportunity to express their views. Even if the decision of the President of the Court of Justice appointing a doctor to represent the appellant on the Invalidity Committee is an administrative measure, the procedure prior to and subsequent to that decision must be inter partes. Accordingly, the Commission was under an obligation to communicate both its request to the President and the President's decision to the appellant in the manner provided for in the third paragraph of Article 26 of the Staff Regulations. Similarly, the communication of the letter of 20 June 1994 informing her of the establishment and composition of the Invalidity Committee should have been evidenced by the appellant's signing it or, failing that, have been effected by registered letter. The Court of First Instance committed an error of law by failing to find that the Commission acted in breach of what the appellant considers to be the procedural requirements.

32. By her second plea in law, Mrs H complains that there has been a breach of her rights under Article 9 of Annex II to the Staff Regulations. The second paragraph of that article provides that the Invalidity Committee's conclusions are to be communicated to the appointing authority and to the official concerned.

33. Mrs H denies that the Invalidity Committee's conclusions were communicated to her in accordance with the applicable provisions. The Court of First Instance committed an error of law by accepting the facts put forward by the Commission as having evidential value without considering the requirements relating to communication.

34. It is for the Court of First Instance alone to assess the value which should be attached to the evidence adduced before it. (6) However, an appeal is admissible in so far as the decision of the Court of First Instance is claimed to be incompatible with rules of law the observance of which it had to ensure. (7) Similarly, it is possible to raise in support of an appeal pleas relating to the legal assessment of facts and seeking to establish that the Court of First Instance committed an error in law. (8)

35. Under Article 26 of the Staff Regulations, the communication of any documents concerning an official's administrative status is to be evidenced by his signing it or, failing that, is to be effected by registered letter. Since the appellant complains that the Court of First Instance disregarded that provision and further alleges that it inferred from the facts submitted by the Commission information not contained therein, the Court of First Instance is alleged to have reached its decision without observing certain rules of law and to have erred in assessing the evidence. Both pleas in support of the appeal must therefore be regarded as admissible.

36. In paragraphs 39 and 40 of its judgment the Court of First Instance rightly held that the application was inadmissible in so far as the Commission's decision of 27 June 1995 was concerned. Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only where this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought. (9) An action which is brought against a mere rejection is therefore to be regarded as an action against the contested measure, in the present case the appointing authority's decision.

37. Furthermore, the Invalidity Committee's opinion is merely a preparatory act in the context of the procedure for compulsory retirement under Article 53 of the Staff Regulations and cannot be the subject of an action. An action can only be brought against the decision taken at the conclusion of this procedure and, on that occasion, contest the legality of earlier steps which are closely linked to it. (10)

2. Substance

(a) First plea in support of the appeal

38. By her first plea, Mrs H complains of a number of formal irregularities in respect of the communication of letters concerning the establishment and composition of the Invalidity Committee. She claims that since neither the Commission's decision to request the President of the Court of Justice to appoint a doctor to represent her nor the final decision of the President of the Court of Justice concerning the doctor in question should have been sent by ordinary post she was not properly notified of those decisions. Nor was she properly informed of the final composition and the meeting of the Invalidity Committee. It follows from the principle that the procedure before the Invalidity Committee is inter partes and the importance of its conclusions that the communication of those documents should have been evidenced by the appellant's signature or effected by registered letter.

39. The Court of First Instance points out in paragraph 77 of its judgment that it is apparent beyond doubt from the case-file that the appellant was aware that the Invalidity Committee was to meet and of its composition. In that regard, however, the Court relies principally on the Commission's submissions. Thus paragraph 81 of the judgment states that the appellant was informed by, inter alia, the letter of 20 June 1994 from the doctor appointed by the Commission of the final composition of the Invalidity Committee, although Mrs H denies having received that letter.

40. As regards the establishment of the Invalidity Committee, the Court of First Instance held that the appointment by the President of the Court of Justice of a doctor to represent an official on an Invalidity Committee pursuant to the second paragraph of Article 7 of Annex II to the Staff Regulations, where the official concerned has failed to appoint such a doctor, is not a judicial procedure but more in the nature of an administrative measure. Accordingly, the procedure does not need to be inter partes. (11)

41. The Court of Justice has consistently held that the provisions relating to the Invalidity Committee are designed so as to confer upon medical experts the task of definitively appraising all medical questions. It may be inferred from this that judicial review may not extend to medical appraisals properly so-called, which must be considered definitive, provided that the conditions in which they are made are not irregular. On the other hand, judicial review may extend to questions concerning the proper constitution and functioning of those committees, and also the formal propriety of the opinions which they issue. (12) To that extent the Court of First Instance is able to review the opinion. Where such defects (defects relating to form or to the manner of communication) exist the opinion may, even where the medical part is correct, be invalid in its entirety and hence inoperative.

42. The proper establishment of the Invalidity Committee also requires that the essential provisions as to form and procedure be observed. Having regard to the (adverse) consequences which the conclusions of the Invalidity Committee may have for the officials concerned, and since the appointing authority is not authorised to amend or replace those conclusions according to its own opinion, both the establishment and the composition of the Invalidity Committee should have been communicated to the appellant in accordance with the third paragraph of Article 26 of the Staff Regulations, since those measures may have consequences which adversely affect officials.

43. It is, admittedly, not apparent from the provisions of the second paragraph of Article 25 and the third paragraph of Article 26 of the Staff Regulations precisely which documents in fact require special communication. However, the decision to order a meeting of an invalidity committee, the opinion of that committee and, finally, the decision of the appointing authority to retire the official are of such weighty significance that it appears necessary - also from the aspect of the employer's duty of care towards its employees - to apply the stricter provisions as to form and procedure. It is not clear from the wording of Articles 25 and 26 of the Staff Regulations which decisions or documents are covered by the requirement laid down in the third paragraph of Article 26. Nor, in particular, is it apparent from the first paragraph of Article 26 which documents must be in the personal file. It would be desirable if the Staff Regulations contained more precise rules in that regard, in order to ensure that the procedure is contested properly. Even though from a formal point of view the decisions of the appointing authority merely constitute an administrative measure, the serious consequences they may entail cannot be overlooked. Decisions which lead to compulsory retirement concern an official's administrative status and, simply because of their serious consequences, require to be communicated in the form provided for in the third paragraph of Article 26 of the Staff Regulations. That applies a fortiori in the present case, where initially there were two separate procedures between the appellant and the Commission at the same time. It cannot be excluded that the appellant considered that letters sent in the context of the procedure relating to the establishment and composition of the Invalidity Committee concerned the procedure relating to sick leave. That might have been avoided if the letters had been properly communicated as provided for in the third paragraph of Article 26 of the Staff Regulations.

44. Irrespective of the form of communication, the Court of First Instance concluded that all the necessary information was made available to the appellant and that she was thus in a position to participate in the procedure in point. However, the Court did not examine the question whether the communication of the documents in question was effected in accordance with the formal requirements. It cannot be concluded merely from the fact that the Commission sent the letters by ordinary post or had them delivered by an official of the security office that by and large they were properly communicated.

45. In that regard the Court of First Instance failed to have sufficient regard to the rights which the appellant enjoyed under the third paragraph of Article 26 and drew the wrong conclusion from the information made available to it or ascribed to it an evidential value which does not correspond to the provisions of the third paragraph of Article 26 of the Staff Regulations.

46. To that extent, the appeal is well founded.

(b) Second plea in support of the appeal

47. By her second plea in support of her appeal the appellant alleges that there has been a breach of her rights under the first paragraph of Article 9 of Annex II to the Staff Regulations.

48. In essence, this plea is based on arguments similar to those put forward in support of the first plea. According to the appellant, the Court of First Instance committed an error of law in finding that the Commission properly communicated to her the decision relating to the establishment and composition of the Invalidity Committee.

49. Under the first paragraph of Article 9 of Annex II to the Staff Regulations an official is entitled to submit to the Invalidity Committee any reports or certificates from his regular doctor or from any medical practitioners whom he may have consulted. In order to ensure that the official concerned is able to exercise that right, however, and having regard to the serious consequences which the conclusions of the Invalidity Committee may have for him, it is essential in this situation, too, that the relevant documents be either communicated by registered letter or evidenced by the official's signing them.

50. In regard to that problem, the Court of First Instance considered that it was proven that the appellant was sufficiently informed of the establishment and composition of the Invalidity Committee. In the Court's view that followed from the statements of the doctors appointed to the committee and from the letter of 20 June 1994 in which the doctor appointed by the Commission informed the applicant of the establishment and composition of the Invalidity Committee, although the appellant denies this.

51. On this point too, however, the Court of First Instance failed to examine the question whether the Commission acted lawfully. The question arises, in particular, whether communication might have been effected other than by ordinary post.

52. The first paragraph of Article 9 of Annex II to the Staff Regulations provides that the official may submit to the Invalidity Committee any reports or certificates from his regular doctor. This means the official concerned must also be in a position to be able to exercise his rights. That applies a fortiori where the Invalidity Committee's opinion, as regards its medical content, is binding on the appointing authority, which, in turn, adopts its decision on the basis of that opinion. It should also be pointed out here - as I have observed in point 43 - that two procedures were in progress at the same time. The Court of First Instance should therefore have examined whether communication was effected in accordance with the applicable provisions relating to form and procedure in force. Since the Court failed to undertake such an examination in the present case, however, it assumed that the Commission's submissions had a probative value. Although, from a practical viewpoint, there is much that points in favour of the Commission's view and of the interpretation of the Court of First Instance to the effect that the appellant was aware of the letters, the procedural irregularities in the communication of the letters none the less constitute a breach of her rights.

53. In that regard, too, the appeal is well founded.

54. Since the complaints raised in the appeal are successful, the contested judgment must be set aside and the Commission's decision of 27 September 1994 (retiring the official) must be declared void.

Costs

55. Under Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 69(2), which, pursuant to Article 118, applies to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since the Commission has been unsuccessful, it must be ordered to pay, in addition to its own costs, the costs which the appellant has incurred in the proceedings before the Court of First Instance and before the Court of Justice.

D - Conclusion

56. For all these reasons, I propose that this Court should give judgment as follows:

(1) The contested judgment of 3 June 1997 in Case T-196/95 is set aside.

(2) The Commission's decision of 27 September 1994 retiring the appellant is declared void.

(3) The Commission is to pay all the costs in both sets of proceedings.

(1) - Case T-196/95 H v Commission [1997] ECR-SC II-403.

(2) - Name changed in the interests of anonymity.

(3) - Case T-8/94 H v Commission, removed from the register by Order of 10 May 1995 (OJ 1995 C 159, p. 29).

(4) - Judgments in Case C-153/96 P de Rijk v Commission [1997] ECR I-2901 and Case C-18/91 P V v Parliament [1992] ECR I-3997; Orders in Case C-338/93 P De Hoe v Commission [1994] ECR I-819 and Case C-26/94 P X v Commission [1994] ECR I-4379.

(5) - Order in Case C-244/92 P Kupka-Floridi v Economic and Social Committee [1993] ECR I-2041.

(6) - Case C-362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I-4775 and Case C-136/92 P Commission v Brazelli Lualdi and Others [1994] ECR I-1981.

(7) - Orders in Case C-293/95 P Odigitria v Council and Commission [1996] ECR I-6129 and Case C-325/94 P An Taisce and WWF UK v Commission [1996] ECR I-3727.

(8) - Order in Case C-89/97 P(R) Moccia Irme v Commission [1997] ECR I-2327 and judgment in Case C-143/95 P Commission v Socurte and Others [1997] ECR I-1.

(9) - Joined Cases 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677 and Order in Case 371/87 Progoulis v Commission [1988] ECR 3081.

(10) - Order in Joined Cases 78/87 and 220/87 Santarelli v Commission [1988] ECR 2699 and judgment in Case T-586/93 Kotzonis v ESC [1995] ECR II-665.

(11) - Judgment in Case T-196/95 (cited in footnote 1), paragraph 80.

(12) - Case C-185/90 P Gill v Commission [1991] ECR I-4779, Case 2/87 Biedermann v Court of Auditors [1988] ECR 143 and Case T-165/89 Plug v Commission [1992] ECR II-367, paragraph 75.