Given its very purpose, which is to enable the administration to review its decision, the pre-litigation procedure is of an evolving nature, so that, in the scheme of legal remedies provided for in Articles 90 and 91 of the Staff Regulations, the administration may decide, when it rejects a complaint, to vary, in the light of that complaint, the grounds on which it had adopted the contested measure. None the less, it is certainly the legality of the original act adversely affecting an official that is being examined, in the light of the reasons contained in the decision rejecting the complaint. It follows that, where the Settlements Office refuses to reimburse certain medical expenses on the basis of a brief, unfavourable opinion of its medical officer and the official concerned lodges a complaint, the administration may, in response to that complaint, provide more explicit reasons during the pre-litigation procedure. Such specific reasons relating to the individual case, notified prior to the initiation of proceedings before the courts, are deemed to be identical to those for the decision to refuse reimbursement and must therefore be regarded as relevant information for assessing the lawfulness of that decision.

With regard to sickness insurance, although a member of the Joint Sickness Insurance Scheme (JSIS) may legitimately consider that his medical expenses will, in principle, be reimbursed up to the ceilings laid down in Article 72(1) of the Staff Regulations, the reimbursement of certain costs may, however, lawfully be refused by the Settlements Office concerned if, after consulting the medical officer and, where appropriate, the Medical Council, the Office considers that those costs relate to treatment or services whose scientific validity is unproven. It is entirely justified that the cost of treatments or services whose therapeutic value or reliability as a diagnostic means is scientifically disputed should not be reimbursed by the JSIS, which is financed by its members and the institutions. It was in order to avoid endless or inextricable expert debate that the JSIS medical authorities — the medical officers and the Medical Council — were given the task of conducting appraisals in this context, their decisions being taken on the basis of the scientific literature, if necessary after consulting specialists or experts in the medical field in question.

However, even if review by the Courts does not extend to specifically medical assessments, it must verify that the medical officer or Medical Council has conducted a specific and thorough examination of the situation presented to it, especially if the procedure does not offer the same level of safeguard in terms of balance between the parties as the procedures provided for by Articles 73 and 78 of the Staff Regulations. Furthermore, it is for the administration to establish that an assessment of this nature has been made. In carrying out their specific and thorough examination, the medical officers, Medical Council and the administration must take a decision on the basis of the scientific literature and, if necessary, after consulting specialists, but since an examination of whether or not a treatment or hospitalisation is functional is a medical question, they must also take full account of the actual state of health of the person concerned. Moreover, the obligation to take account of the personal situation of the JSIS member is dictated by the duty to have regard for the welfare of staff, which broadly coincides with the obligation to conduct a full and thorough examination. In that regard, the Medical Council has merely advisory powers, as is clear from Article 41 of the Joint rules on sickness insurance for officials of the European Union. A recommendation of the Medical Council does not constitute, as such, a rule applicable by the administration or, consequently, a rule enforceable against officials and other EU staff. That being so, the opinion of the Medical Council cannot bind a medical officer in such a way as to prevent him from considering whether or not a given treatment was ‘functional’ in the case in question.

(see paras 38-40, 49, 50)

See:

Judgment of 9 December 2009 in Commission v Birkhoff, T‑377/08 P, EU:T:2009:485, paras 32, 61 and 88

Judgments of 18 September 2007 in Botos v Commission, F‑10/07, EU:F:2007:161, paras 63 and 64; 8 July 2008 in Birkhoff v Commission, F‑76/07, EU:F:2008:95, para. 62, and 28 September 2011 in Allen v Commission, F‑23/10, EU:F:2011:162, para. 76