2.

The applicant relies in the second place on the fact that he was granted a provisional allowance, paid in two amounts corresponding to invalidity rates of 25% and 12% respectively. Inasmuch as the third paragraph of Article 20 provides for such payments only in respect of the undisputed proportion of the invalidity rate, the payment of that allowance fixed the undisputed proportion at 37%, that is to say the sum of the partial rates determined in May 1979 by the doctor appointed by the Commission. That rate was binding on the appointing authority and on the Medical Committee. Therefore the only issue which could be considered at any subsequent stage in the procedure was that of the proportion of the invalidity rate which was still a matter for dispute (in other words the questions whether the knee injury should be estimated at more than 2% and whether it was also necessary to take into account the disfigurement, which was not referred to in the report of 25 May 1979). It was therefore not permissible to decide that after the Medical Committee's intervention the applicant's permanent partial invalidity rate was only 34%. On the contrary, if account is taken of those elements of the Medical Committee's report in relation to which the Committee was still entitled to reach a conclusion, (in other words the assessment of the knee injury at 8% invalidity and the disfigurement at 1%), the applicant qualifies for compensation on the basis of an invalidity rate of at least 44% (25% for the eye injury, 10% for the head injuries, 8% for the knee injury and 1% for the disfigurement). The Commission has emphatically rejected that view. It stresses that in principle under Article 20 of the Rules the payment of a provisional allowance is considered only if the degree of invalidity cannot be definitively determined, and therefore before the sequelae have consolidated. That was not the case in this instance, since the applicant's injuries had already consolidated in May 1979 — as is clear from the Commission's draft decision —, and it was only because that draft decision was rejected and because the matter was referred to a Medical Committee that the procedure had not yet reached a conclusion. Moreover, it takes the view that in any case the undisputed invalidity rate was only 25%. That is clear from its letters dated 22 October 1979 and 30 January 1980, in which it was expressly stated that any further degree of invalidity would have to be confirmed by the Medical Committee. Therefore the allowance awarded during the proceedings in Case 186/80 ( 6 ) must not be taken into account. It was in fact paid not on the basis of Article 20 of the Rules; it was intended as a gesture of conciliation, and moreover was made expressly “sans aucune reconnaissance préjudiciable” and “sous toutes réserves généralement quelconques, et singulièrement sous réserve de l'avis qui sera émis par la Commission médicale et de la décision qui sera prise par l'AIPN au vu de cet avis”. On that basis, and because the Medical Committee was not bound by the findings of the medical examination in 1979 but was free to make its own assessment, there are therefore no grounds for challenging its conclusion that the definitive invalidity rate was only 34%. I find it difficult to accept the Commission's position on that point. In the first place, I do not find convincing the view that the third paragraph of Article 20 applies only where the injuries have not yet definitively consolidated. It seems to me entirely reasonable to grant a provisional allowance in respect of the undisputed proportion of the invalidity rate even where there is a dispute as to the total invalidity rate, and where the final figure is to be determined by a Medical Committee, which may take considerable time. In any case it is impossible to escape the fact that the Commission actually applied the third paragraph of Article 20 of the Rules in this instance. It must therefore abide by its decision and must accept that the consequences of the application of that provision may be used against it. The payment of an additional provisional allowance representing a 12% invalidity rate in the course of the proceedings in Case 186/80 ( 7 ) was made in connection with a claim asking the Court to order the Commission to pay such a provisional allowance and the Commission itself stated in its defence that “le chef de la demande du requérant relative à cette indemnité complémentaire devient ainsi sans objet”. On the other hand the Commission did indeed make that payment subject to the abovementioned reservations. There is clearly a contradiction here. However, in my view the Court resolved the problem when it stated in paragraph 23 of the decision in Case 186/80 ( 7 ) that the issue had been settled by the payment of an additional provisional allowance. That can only mean that the reservations expressed by the Commission were regarded as irrelevant or that they were in any case not construed as meaning that it would be possible to reconsider the matter and arrive at a decision less favourable to the applicant. The settlement of the issue does not mean that the question was solved on a purely temporary basis, as the Commission believes. On the contrary it implies that the applicant obtained satisfaction. However, since there is no other legal basis for the Commission's payment, the fact that he obtained satisfaction must mean that the payment was made in respect of the undisputed proportion of the invalidity rate within the meaning of Article 20 of the Rules and therefore the proportion which the administration may not subsequently revise. At the same time, therefore, the invalidity rate of 37% acquired binding effect. (Moreover, the principle prohibiting reformatio in peius is also relevant, since Article 22 of the Rules and the wording of the provision on expenses in Article 23, which clearly do not envisage that the findings of the Medical Committee may be less favourable than those of the doctor appointed by the appointing authority, both suggest that that principle applies in respect of the Medical Committee). Because when the payment was made the appointing authority could rely only on the medical report of 25 May 1979, and because its letter of 15 October 1980 expressly referred to the fact that the doctor in question had been consulted, that means also that there could no longer be any dispute as regards the invalidity rates established by him, namely 25% in respect of the eye injury, 10% for the head injuries and 2% for the knee injury. Indeed the only questions which were still a matter for dispute were that of how the disfigurement resulting from the accident was to be assessed and whether the knee injury could be assessed at more than 2 % invalidity. The Medical Committee should have been given a correspondingly limited brief. It follows that the Medical Committee's findings in relation to the neurological sequelae must be disregarded because they lack any legal basis. If it is assumed that in other respects the Medical Committee's report cannot be challenged and that therefore there is no need to repeat that procedure (I will return to that matter below), then its findings concerning the degree of invalidity arising from the knee injury (8%) and that to be attributed in respect of the disfigurement (1%) must be retained. However, that would mean that the applicant is entitled to compensation in respect of permanent partial invalidity of at least 44%. In the special circumstances of this case I have no doubt whatsoever that even though the Court cannot normally make findings of a medical character, that percentage should be specified in the judgment (whether that is sufficient will not become clear until all the submissions have been considered).