Judgment of the Court (First Chamber) of 5 April 1973. - Marie Noé-Dannwerth v European Parliament. - Case 51-72.



European Court reports 1973 Page 00433

Greek special edition Page 00513

Portuguese special edition Page 00189



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OFFICIALS - SOCIAL SECURITY - INSURANCE - AFFILIATION - CONDITIONS - CONTRIBUTIONS - PAYMENT BY THE INSURED - OBLIGATIONS OF THE ADMINISTRATION

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ART . 72 )

2 . OFFICIALS - SOCIAL SECURITY - INSURANCE - ILLNESS - UNJUSTIFIED ABSENCES FROM WORK - MEDICAL EXPENSES - RIGHT TO BENEFITS

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ART . 72 )

3 . OFFICIALS - SOCIAL SECURITY - PARTICULARLY DIFFICULT POSITION - GIFTS, LOANS OR ADVANCES - GRANT - OPTIONAL NATURE

( STAFF REGULATIONS OF OFFICIALS OF THE EC, ART . 76 )

Summary

1 . IN THE ABSENCE OF PROVISION IN THE STAFF REGULATIONS TO THE CONTRARY, AFFILIATION OF AN OFFICIAL TO THE SOCIAL INSURANCE SCHEME ESTABLISHED BY THE COMMUNITY CANNOT BE QUESTIONED AS LONG AS HE REMAINS AN OFFICIAL . ALTHOUGH IT IS TRUE THAT IT IS A CONTRIBUTORY SCHEME, PAYMENT OF THE CONTRIBUTIONS NEVERTHELESS DOES NOT CONSTITUTE AN ESSENTIAL CONDITION OF AFFILIATION, AS THE ADMINISTRATION MAY, IN THE EVENT OF THE OFFICIAL LOSING THE BENEFIT OF HIS REMUNERATION, EITHER CALL ON HIM TO CONTINUE PAYMENT OF HIS CONTRIBUTIONS OR PAY THE CONTRIBUTIONS DIRECTLY AND THEREAFTER RECOVER THEM BY RECOURSE TO LAW .

2 . IF ABSENCES FROM WORK ARE NOT JUSTIFIED BY THE ILLNESS FROM WHICH THE OFFICIAL SUFFERS, THIS DOES NOT NECESSARILY MEAN THAT ALL THE EXPENSES INCURRED THROUGH THAT ILLNESS ARE THEMSELVES UNJUSTIFIABLE AND DO NOT GIVE RISE TO A RIGHT TO BENEFITS .

3 . ARTICLE 76 IMPOSES NO SPECIFIC OBLIGATION ON THE COMMUNITY AUTHORITIES, BUT AIMS AT GIVING THEM THE OPTION OF COMING TO THE ASSISTANCE OF OFFICIALS OR FORMER OFFICIALS WHO FIND THEMSELVES IN DIFFICULTY .

Parties

IN CASE 51/72

MARIE NOE-DANNWERTH, OFFICIAL OF THE EUROPEAN PARLIAMENT IN LUXEMBOURG, REPRESENTED BY VICTOR BIEL, A LAWYER PRACTISING BEFORE THE COUR SUPERIEURE DE JUSTICE, IN LUXEMBOURG, HAVING CHOSEN HER ADDRESS FOR SERVICE IN HIS CHAMBERS AT 71 RUE DES GLACIS, LUXEMBOURG, APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ITS SECRETARY GENERAL, HANS ROBERT NORD, ACTING AS AGENT, WITH THE ASSISTANCE OF ALEX BONN, OF THE LUXEMBOURG BAR, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN HIS CHAMBERS AT 22 COTE D'EICH, LUXEMBOURG, DEFENDANT,

Subject of the case

APPLICATION FOR

- ANNULMENT OF THE REFUSAL OF THE EUROPEAN PARLIAMENT TO PAY THE APPLICANT THE AMOUNT OF HER SALARY FROM 15 JUNE 1970 TO 12 DECEMBER 1970,

- REIMBURSEMENT FOR THE SAME PERIOD OF THE EXPENSES FOR SICKNESS INCURRED BY THE APPLICANT .

Grounds

1 BY AN APPLICATION RECEIVED AT THE COURT REGISTRY ON 17 JULY 1972, THE APPLICANT BROUGHT BEFORE THE COURT AN ACTION DIRECTED AGAINST THE REFUSAL OF THE EUROPEAN PARLIAMENT TO PAY HER SALARY FALLING DUE BETWEEN 15 JUNE 1970 AND 12 DECEMBER 1970 AND TO REIMBURSE THE MEDICAL EXPENSES INCURRED BY HER FOR THE SAME PERIOD .

2 THE ACTION ALSO SUBMITS THAT THE APPLICANT SHOULD BE GRANTED THE BENEFIT OF ARTICLE 76 OF THE STAFF REGULATIONS .

THE FIRST HEAD OF THE SUBMISSIONS

3 THE DEFENDANT ALLEGES THE INADMISSIBILITY OF THOSE SUBMISSIONS, PLEADING THAT THE DECISION ADVERSELY AFFECTING THE APPLICANT IS THAT CONTAINED IN THE LETTER DATED 18 JUNE 1970 FROM THE DIRECTOR-GENERAL OF THE ADMINISTRATION, IN RESPECT OF WHICH THE TIME LIMITS FOR THE COMMENCEMENT OF THE ACTION HAVE EXPIRED .

4 BY A LETTER DATED 18 JUNE 1970, THE DIRECTOR-GENERAL OF THE ADMINISTRATION INFORMED THE APPLICANT THAT SINCE THE NUMBER OF ABSENCES CONSIDERED AS UNAUTHORIZED HAD EXHAUSTED THE ANNUAL LEAVE, UNDER ARTICLE 60 OF THE STAFF REGULATIONS, SHE WOULD LOSE THE BENEFIT OF HER SALARY FROM 15 JUNE 1970 .

5 EVENTUALLY, THE APPLICANT HAVING BEEN GRANTED THE BENEFIT OF AN INVALIDITY PENSION, WITH EFFECT FROM 1 OCTOBER 1971, THE DIRECTOR-GENERAL OF THE ADMINISTRATION INFORMED HER BY A LETTER DATED 22 OCTOBER 1971 THAT HER ABSENCES FROM DUTY WERE CONSIDERED AS AUTHORIZED FROM 12 DECEMBER 1970 AND THAT SHE WOULD THUS REGAIN THE BENEFIT OF HER SALARY FROM THAT DATE .

6 SUCH LETTER CONSTITUTES A NEW DECISION, TAKEN WITH REGARD TO THE CHANGE IN THE CIRCUMSTANCES CONSIDERED BY THE LETTER DATED 18 JUNE 1970 .

7 IN THE LATTER LETTER, THE DIRECTOR-GENERAL OF THE ADMINISTRATION APPLIED TO THE APPLICANT THE PROVISIONS OF ARTICLE 60 OF THE REGULATIONS, PROVIDING FOR THE OFFICIAL' S LOSS OF THE BENEFIT OF HIS REMUNERATION, WHEREAS, IN THE DECISION DATED 22 OCTOBER 1971, HE FIXED THE DATE FROM WHICH, THE DISPUTED ABSENCES HAVING BEEN CONSIDERED AUTHORIZED, THE APPLICANT RECOVERED SUCH BENEFIT .

8 THIS LATTER DECISION, INSTEAD OF CONFIRMING A PRECEDING ACT, THUS CONSTITUTED A NEW ACT, IMPLYING THE LIMITED WITHDRAWAL OF THE DECISION DATED 18 JUNE 1970 .

9 THE APPLICANT HAVING CLAIMED, BY A LETTER DATED 7 DECEMBER 1971, THE TOTAL WITHDRAWAL FROM 15 JUNE 1970 OF THE SAID DECISION, THE DIRECTOR-GENERAL OF THE ADMINISTRATION IN HIS LETTER OF 7 JANUARY MAINTAINED HIS POSITION ON THE LIMITED WITHDRAWAL .

10 HE SPECIFIED HOWEVER IN THAT COMMUNICATION THAT HE DID NOT CONSIDER THE APPLICANT' S LETTER DATED 7 DECEMBER 1971 AS A COMPLAINT INSTITUTED BY VIRTUE OF ARTICLE 90 OF THE REGULATIONS .

11 IN THESE CIRCUMSTANCES AND TAKING ACCOUNT OF THE EQUIVOCAL NATURE OF THE ABOVE-MENTIONED COMMUNICATION, THE APPLICANT WAS ABLE TO CONCLUDE FROM IT THAT SHE WAS STILL IN A POSITION TO LODGE A COMPLAINT WITHIN THE PRESCRIBED TIME LIMITS .

12 BY A LETTER DATED 23 MARCH 1972, THE APPLICANT PRESENTED THE DIRECTOR-GENERAL WITH A CLAIM, SEEKING, INTER ALIA, TO OBTAIN THE REIMBURSEMENT OF SALARY FALLING DUE BETWEEN 15 JUNE 1970 AND 12 DECEMBER 1970 .

13 BY REASON OF THE SUBMISSIONS WHICH IT CONTAINS, SUCH LETTER MUST BE CONSIDERED AS A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE REGULATIONS .

14 IF THE LETTER OF 7 JANUARY 1972 WHICH IS THE BASIS OF THE PRESENT DISPUTE, ONLY CONSTITUTED A CONFIRMATION OF THE DECISION OF 22 OCTOBER 1971, THE CLAIM DATED 23 MARCH 1972 MUST BE CONSIDERED AS HAVING BEEN PRESENTED WITHIN THE TIME LIMITS FOR CONTENTIOUS ACTION AND THEREFORE SUSPENDED THE TIME LIMITS APPLICABLE THERETO .

15 THE DIRECTOR-GENERAL OF THE ADMINISTRATION HAVING BY A LETTER OF 19 MAY 1972 REFUSED TO COMPLY WITH THIS COMPLAINT, THE ACTION BROUGHT AGAINST THIS REFUSAL ON 17 JULY 1972 IS THUS ADMISSIBLE .

16 THE EUROPEAN PARLIAMENT JUSTIFIED ITS DECISION TO PAY THE SALARY FALLING DUE FROM 12 DECEMBER 1970, BY PLACING RELIANCE ON A MEDICAL CERTIFICATE OF THE SAME DATE, ISSUED BY DR RENATE COLLIER AND FILED BY THE PARTY CONCERNED ON 3 FEBRUARY 1971 .

17 THIS CERTIFICATE MENTIONS A DIFFERENT DISEASE FROM THAT MENTIONED IN THE PREVIOUS CERTIFICATES .

18 ON 6 SEPTEMBER 1971, THE INVALIDITY COMMITTEE, CONVENED AGAIN, DECLARED THE APPLICANT TO BE AN INVALID ON THE BASIS OF THE SAME DISEASE AS IN THE CERTIFICATE ISSUED BY DR RENATE COLLIER .

19 WITH REGARD TO THIS FINDING, THE APPOINTING AUTHORITY CONSIDERED THAT THE ABSENCES OF THE APPLICANT COULD NO LONGER BE REGARDED AS UNAUTHORIZED FROM THE DATE OF THE CERTIFICATE OF 12 DECEMBER 1970 .

20 ON THE OTHER HAND THE APPLICANT CONTENDS THAT HER ABSENCES MUST BE CONSIDERED AS AUTHORIZED FROM 15 JUNE 1970 .

21 FOR THIS PURPOSE, SHE INVOKES ESPECIALLY A MEDICAL CERTIFICATE, ISSUED IN MADRID IN JUNE 1970, WHICH SHE CONVEYED TO THE PARLIAMENT BY A LETTER DATED 15 JUNE 1970 .

22 THIS CERTIFICATE MENTIONS A DISEASE DIFFERENT FROM THE ONE WHICH LED THE APPOINTING AUTHORITY TO RECOGNIZE THE APPLICANT' S TOTAL INVALIDITY .

23 IN THESE CIRCUMSTANCES, THE APPOINTING AUTHORITY WAS RIGHT TO BASE ITSELF, WHEN IT TOOK ITS DECISION, ON THE DATE OF DR RENATE COLLIER' S CERTIFICATE .

24 THE ACTION MUST, ON THIS FIRST HEAD, BE DISMISSED UNFOUNDED .

THE SECOND HEAD OF THE SUBMISSIONS

25 THE DEFENDANT DEDUCES, FROM THE INADMISSIBILITY OF THE FIRST HEAD OF THE SUBMISSIONS, THE INADMISSIBILITY OF THE SUBMISSIONS AIMING TO OBTAIN REIMBURSEMENT OF THE MEDICAL EXPENSES INCURRED FROM 15 JUNE 1970 TO 12 DECEMBER 1970 .

26 THE DEFENDANT CONTENDS THAT ITS REFUSAL TO PAY OUT THE SALARY FALLING DUE DURING THIS PERIOD INEVITABLY INVOLVED THE REFUSAL TO REIMBURSE THE MEDICAL EXPENSES IN QUESTION .

27 IT APPEARS FROM THE CORRESPONDENCE EXCHANGED BETWEEN THE PARTIES THAT IT WAS BY HIS DECISION OF 7 JANUARY 1972 THAT THE DIRECTOR-GENERAL OF THE ADMINISTRATION EXPRESSED HIS OPINION, IN AN EXPLICIT AND FORMAL MANNER, ON THE REIMBURSEMENT OF THE MEDICAL EXPENSES INCURRED BY THE APPLICANT BEFORE 1 OCTOBER 1971 AND ON THE DATE FROM WHICH THIS REIMBURSEMENT WOULD BE MADE .

28 THE APPLICANT HAVING, IN HER CLAIM OF 23 MARCH ASKED FOR THE REIMBURSEMENT OF THE SAID EXPENSES, THE DIRECTOR-GENERAL OF THE ADMINISTRATION, BY LETTER DATED 19 MAY 1972, REFUSED TO CONCEDE THIS CLAIM .

29 IT FOLLOWS FROM THE PRECEDING CONSIDERATIONS THAT THE ACTION, IN AS FAR AS IT IS DIRECTED AGAINST THE REFUSAL EXPRESSED IN THIS LETTER HAS BEEN INSTITUTED WITHIN THE TIME LIMITS AND IS THUS ADMISSIBLE ON THIS POINT .

30 THE DEFENDANT MAINTAINS THAT SINCE THE SCHEME OF SICKNESS INSURANCE ESTABLISHED BY THE COMMUNITIES IS OF A CONTRIBUTORY NATURE, AFFILIATION TO THIS SCHEME TERMINATES FROM THE MOMENT THAT THE OFFICIAL LOSES THE BENEFIT OF HIS SALARY AND FOR THIS REASON NO LONGER PAYS THE NECESSARY CONTRIBUTIONS .

31 IT APPEARS FROM THE EXPRESS TERMS OF ARTICLE 72 OF THE REGULATIONS THAT AFFILIATION TO THE SAID SCHEME OF SICKNESS INSURANCE IS BASED ON THE STATUS OF THE OFFICIAL, WITHIN THE MEANING OF THE REGULATIONS .

32 IN DEFAULT OF PROVISIONS TO THE CONTRARY IN THE REGULATIONS, THE AFFILIATION OF AN OFFICIAL TO THE SCHEME OF SOCIAL INSURANCE ESTABLISHED BY THE COMMISSION CANNOT BE QUESTIONED, AS LONG AS HE RETAINS HIS STATUS OF OFFICIAL .

33 WHILST IT IS TRUE THAT THIS SCHEME IS OF A CONTRIBUTORY NATURE, THE PAYMENT OF CONTRIBUTIONS DOES NOT CONSTITUTE AN INDISPENSABLE CONDITION OF AFFILIATION, THE ADMINISTRATION BEING ABLE, IN THE CASE WHERE THE OFFICIAL LOSES THE BENEFIT OF HIS SALARY, EITHER TO PUT HIM IN A POSITION TO CONTINUE HIS CONTRIBUTIONS OR TO PAY DIRECTLY THE CONTRIBUTIONS WHICH THE ADMINISTRATION WILL THEN BE ABLE TO RECOVER BY RECOURSE TO LEGAL MEASURES .

34 BESIDES, THE CIRCUMSTANCE THAT THE SICKNESS WHICH THE OFFICIAL IS SUFFERING FROM DOES NOT JUSTIFY HIS ABSENCES FROM DUTY, DOES NOT NECESSARILY IMPLY THAT ALL THE EXPENSES HE HAS INCURRED BY REASON OF THIS SICKNESS ARE, THEMSELVES, UNJUSTIFIED AND DO NOT GIVE RISE TO ANY RIGHT TO BENEFITS .

35 FOR THESE REASONS, IT MUST BE CONCLUDED THAT, SUBJECT TO VERIFICATION OF THE JUSTIFICATION FOR THESE EXPENSES, THE APPLICANT CAN CLAIM REIMBURSEMENT OF THE MEDICAL EXPENSES INCURRED BY HER BETWEEN 15 JUNE 1970 AND 12 DECEMBER 1970 .

36 THEREFORE, THE REFUSAL OF THE EUROPEAN PARLIAMENT TO REIMBURSE THESE EXPENSES, FOR THE SOLE REASON THAT THE APPLICANT LOST THE BENEFIT OF HER SALARY DURING THIS PERIOD, MUST BE ANNULLED .

THE THIRD HEAD OF THE SUBMISSIONS

37 THE APPLICANT MAINTAINS THAT THE EUROPEAN PARLIAMENT, BY REFUSING TO APPLY ARTICLE 76 OF THE REGULATIONS TO HER CASE, HAS FAILED IN THE OBLIGATIONS WHICH ARISE FROM THIS PROVISION .

38 BY ARTICLE 76 OF THE REGULATIONS " GIFTS, LOANS OR ADVANCES MAY BE MADE TO OFFICIALS, FORMER OFFICIALS OR WHERE AN OFFICIAL HAS DIED, TO THOSE ENTITLED UNDER HIM WHO ARE IN A PARTICULARLY DIFFICULT POSITION AS A RESULT INTER ALIA OF SERIOUS OR PROTRACTED ILLNESS OR BY REASON OF FAMILY CIRCUMSTANCES ".

39 BY THIS PROVISION, THE REGULATIONS IMPOSE NO EXPRESS OBLIGATION ON THE COMMUNITY AUTHORITIES, BUT AIM TO GIVE THEM THE OPTION OF HELPING OFFICIALS OR FORMER OFFICIALS WHO FIND THEMSELVES IN DIFFICULTY .

40 MOREOVER, THE EXCEPTIONAL AID PROVIDED BY ARTICLE 76 CAN ONLY BE GRANTED IN APPROPRIATE CASES WHERE THE PARTY CONCERNED IS IN A PARTICULARLY DIFFICULT POSITION .

41 IF THE CIRCUMSTANCES IN WHICH THE APPLICANT FOUND HERSELF UNTIL THE TIME WHEN SHE WAS GRANTED THE BENEFIT OF THE INVALIDITY PENSION WERE, ( HAD THE OCCASION ARISEN ) LIABLE TO CREATE A PARTICULARLY DIFFICULT POSITION WITHIN THE MEANING OF ARTICLE 76 OF THE REGULATIONS, NEVERTHELESS THE FACT REMAINS THAT THE MEASURES TAKEN WITH REGARD TO HER FOLLOWING THIS GRANT HAD THE EFFECT OF MODIFYING THESE CIRCUMSTANCES CONSIDERABLY .

42 LASTLY, THE ARGUMENT THAT THE APPLICANT DRAWS FROM THE PROVISIONS OF ARTICLE 24 OF THE REGULATIONS IS NOT RELEVANT TO THE CASE IN ISSUE, THESE PROVISIONS APPLYING TO CASES DIFFERENT FROM THOSE FALLING UNDER ARTICLE 76 .

43 UNDER ITS THIRD HEAD, THEREFORE, THE ACTION MUST BE DISMISSED .

Decision on costs

44 BY ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

45 THE APPLICANT HAS FAILED IN PART OF HER PLEAS .

46 BY ARTICLE 70 OF THE RULES OF PROCEDURE, THE EXPENSES INCURRED BY THE INSTITUTIONS IN ACTIONS BY COMMUNITY SERVANTS SHALL BE BORNE BY THE INSTITUTIONS .

47 IN THESE CIRCUMSTANCES, THE DEFENDANT SHOULD BE ORDERED TO BEAR, BESIDES ITS OWN EXPENSES, HALF OF THOSE INCURRED BY THE APPLICANT .

Operative part

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE EUROPEAN PARLIAMENT REFUSING TO REIMBURSE THE MEDICAL EXPENSES INCURRED BY THE APPLICANT BETWEEN 15 JUNE 1970 AND 12 DECEMBER 1970 .

2 . DISMISSES THE OTHER CAUSES OF ACTION .

3 . ORDERS THE DEFENDANT TO BEAR, BESIDES ITS OWN COSTS, HALF OF THOSE INCURRED BY THE APPLICANT .