JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

21 March 1996

Case T-376/94

Georgette Otten

v

Commission of the European Communities

‛Officials — Invalidity Committee — Composition — Decision retiring an official on grounds of invalidity’

Full text in French II-401

Application for:

annulment of the Commission's decision of 13 January 1994 granting the applicant an invalidity pension fixed in accordance with the third paragraph of Article 78 of the Staff Regulations of Officials of the European Communities and for an order that the Commission pay a token ecu as reparation for the nonmaterial damage allegedly suffered by the applicant by reason of the contested decision.

Decision:

Claim for annulment allowed; for the rest, application dismissed.

Abstract of the Judgment

By letter of 23 June 1993 the Director of the ‘Rights and Obligations’ Directorate of the Directorate-General of Personnel and Administration (DG IX) informed the applicant that, owing to her frequent absences on medical grounds, he had decided to refer the matter to the Invalidity Committee and asked her to make known as soon as possible the name of the doctor of her choice for the purpose of representing her on that committee.

In the absence of any reply from the applicant, the Head of the ‘Administration of Individual Rights’ Unit repeated, in a letter dated 8 September 1993, the request for notification of the identity of the doctor responsible for representing her on the Invalidity Committee and stated that if she failed to give such notification he would ask the President of the Court of Justice of the European Communities to appoint a doctor of his own motion in accordance with the second paragraph of Article 7 of Annex II to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’).

On 29 September 1993 the applicant sent a letter to DG IX in which she stated in particular that as soon as she received her mail she would reply to the invalidity proposal by appointing the doctor of her choice.

On 24 November 1993 the Head of the ‘Administration of Individual Rights’ Unit informed Dr N that the applicant had chosen him to represent her on the Invalidity Committee.

At the conclusion of its meeting on 13 December 1993 the Invalidity Committee, composed of Drs M, T and N, found that the applicant was suffering ‘from permanent invalidity, regarded as total’.

On 13 January 1994 the appointing authority adopted, on the basis of the Invalidity Committee's findings, a decision retiring the applicant with effect from 1 February 1994 and granting her, with effect from the same date, an invalidity pension in accordance with the third paragraph of Article 78 of the Staff Regulations.

On 18 April 1994 the applicant submitted a complaint, registered at the Commission on 20 April 1994, against the decision retiring her and granting her an invalidity pension under the third paragraph of Article 78 of the Staff Regulations. Her complaint was rejected.

The claim for annulment

Plea in law alleging infringement of Article 7 of Annex II to the Staff Regulations

Admissibility

Although the statement of the relief sought in an action may contain only ‘heads of challenge ’ which are based on the same legal ground as those raised in the complaint, those heads of challenge may, before the Community judicature, be developed by the submission of pleas in law and arguments not necessarily appearing in the complaint but closely linked to it. The administration is, moreover, required, at the pre-litigation stage, not to interpret complaints restrictively but, on the contrary, to consider them with an open mind.

Sec: 242/85 Geist v Commission [1987] ECR 2181, para. 9; 133/88 Del Amo Martinez v Parliament [1989] ECR 689; T-496/93 Allo v Commission [1995] ECRSC II-405

In her letter of complaint of 20 April 1994 the applicant not only formulated two heads of complaint but also expressly referred to the argument relied on in three previous letters, including that of 29 September 1993. In that letter the applicant had made it clear that she had not yet appointed the doctor of her choice to represent her on the Invalidity Committee and that she would not made her choice until she had received the answers to her questions. The Court considers that in the light of that reference the complaint must be construed as also containing the plea alleging the lack of any appointment by the applicant of a doctor of her choice.

Substance

It is settled case-law that medical appraisals, in the strict sense, formulated by the medical committee must be considered definitive where the conditions in which they are issued are not irregular. Judicial review can extend only to the questions whether such a committee was properly constituted and conducted its business in accordance with correct procedures and whether the opinions issued by it satisfy formal requirements. It is therefore important that the Community judicature should strictly review compliance with the rules relating to the proper constitution and functioning of invalidity committees. Among the foremost of those rules is that laid down in Article 7 of Annex II to the Staff Regulations which assures officials that their rights and interests will be safeguarded by the presence on the committee of a doctor who has their trust.

See: T-64/94 Benecos v Commission [1995] ECRSC II-769, para. 42; T-47/93 Cv Commission [1994] ECRSC II-743, para. 47

That strict review of observance of an official's right to appoint a doctor of his choice to represent him on the invalidity committee means that, in the event of a dispute, the institution to which the official belongs must be in a position to supply documentary — or at least other reliable — evidence of the choice made by him. In that respect, it should be noted that the second paragraph of Article 7 of Annex II to the Staff Regulations confers on the institution the right, should the official fail to appoint a doctor, to request the President of the Court of Justice to appoint one of his own motion.

The claim for compensation

It is settled case-law that the annulment of an act contested by an official in itself constitutes appropriate and — as a rule — adequate reparation for all harm he may have suffered. The Court considers that, in the circumstances of this case, annulment of the contested decision will suffice to make full reparation for any harm suffered by the applicant.

See: T-52/90 Volger v Parliament [1992] ECR II-121, para. 46

Operative part:

The Commissions decision of 13 January 1994 granting the applicant an invalidity pension is annulled.

For the rest, the application is dismissed.