Judgment of the Court (Third Chamber) of 29 November 1984. - Benoît Suss v Commission of the European Communities. - Official - Benefits payable in the event of invalidity resulting from an accident. - Case 265/83.



European Court reports 1984 Page 04029



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - SOCIAL SECURITY - INSURANCE AGAINST ACCIDENT AND OCCUPATIONAL DISEASE - INVALIDITY - DEGREE OF INVALIDITY - FIXED BY THE COMPETENT MEDICAL COMMITTEE - REVIEW BY THE COURT - SCOPE

( STAFF REGULATIONS OF OFFICIALS , ART . 73 ; RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE , ARTS 16 TO 23 )

2.OFFICIALS - SOCIAL SECURITY - INSURANCE AGAINST ACCIDENT AND OCCUPATIONAL DISEASE - INVALIDITY - DEGREE OF INVALIDITY - FIXED BY THE COMPETENT MEDICAL COMMITTEE - CONSULTATION OF ANOTHER DOCTOR

( STAFF REGULATIONS OF OFFICIALS , ART . 73 ; RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE , ARTS 16 TO 23 )

3.OFFICIALS - SOCIAL SECURITY - INSURANCE AGAINST ACCIDENT AND OCCUPATIONAL DISEASE - INVALIDITY - DEGREE OF INVALIDITY - FIXED BY THE COMPETENT MEDICAL COMMITTEE - FREEDOM OF APPRAISAL - EARLIER FINDINGS - LEGAL FORCE

( STAFF REGULATIONS OF OFFICIALS , ART . 73 ; RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE , ARTS 16 TO 23 )

4.OFFICIALS - SOCIAL SECURITY - INSURANCE AGAINST ACCIDENT AND OCCUPATIONAL DISEASE - INVALIDITY - AGGREGATE INVALIDITY RATE AND ALLOWANCE - FIXED BY THE APPOINTING AUTHORITY - DRAFT DECISION NOTIFIED TO THE INTERESTED PARTY - ALTERATIONS IN THE DEFINITIVE DECISION - ALTERATION OF THE AGGREGATE INVALIDITY RATE AND ALLOWANCE - NOT PERMISSIBLE

( STAFF REGULATIONS OF OFFICIALS , ART . 73 ; RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE , ARTS 16 TO 23 )

Summary

1 . THE REMEDIES PROVIDED FOR BY THE STAFF REGULATIONS MAY IN PRINCIPLE BE EMPLOYED ONLY IN ORDER TO OBTAIN A REVIEW BY THE COURT CONFINED TO QUESTIONS CONCERNING THE CONSTITUTION AND PROPER FUNCTIONING OF THE MEDICAL COMMITTEES PROVIDED FOR IN THE COMMUNITY RULES ON INSURANCE AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE . THE COURT ' S REVIEW MAY NOT EXTEND TO MEDICAL APPRAISALS PROPERLY SO-CALLED .

2 . NOTHING PROHIBITS THE MEDICAL COMMITTEE PROVIDED FOR IN THE COMMUNITY RULES ON INSURANCE AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE , LAWFULLY CONSTITUTED , FROM CONSULTING , BY COMMON AGREEMENT , OTHER DOCTORS IF IT CONSIDERS IT IS NECESSARY TO DO SO .

3 . THERE IS NO PROVISION IN THE COMMUNITY RULES ON INSURANCE AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE WHICH REQUIRES THE MEDICAL COMMITTEE , LAWFULLY CONSTITUTED UNDER THOSE RULES , TO CONSIDER AS DEFINITIVE THE CONTENTS OF MEDICAL REPORTS OR OTHER OPINIONS PREVIOUSLY ADOPTED .

4 . THE APPOINTING AUTHORITY MAY NOT DEPART , TO THE DETRIMENT OF THE OFFICIAL OR THOSE ENTITLED UNDER HIM , FROM THE CONCLUSIONS WHICH IT REACHED IN ITS DRAFT DECISION NOTIFIED IN ACCORDANCE WITH THE COMMUNITY RULES ON INSURANCE AGAINST THE RISK OF ACCIDENT AND OCCUPATIONAL DISEASE WHEN IT ADOPTS ITS FINAL DECISION UNDER THOSE RULES . HOWEVER , THAT PRINCIPLE APPLIES ONLY TO THE DRAFT DECISION ITSELF , FIXING AN AGGREGATE INVALIDITY RATE AND AN ALLOWANCE CALCULATED ON THAT BASIS ; IT DOES NOT APPLY TO THE VARIOUS COMPONENTS OF THE REPORT OF THE DOCTOR APPOINTED BY THE INSTITUTION .

Parties

IN CASE 265/83

BENOIT SUSS , A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JACQUES GUINARD , OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF L . SCHILTZ , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DIMITRIOS GOULOUSSIS , AN ADVISER IN THE LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION CONCERNING THE BENEFITS PAYABLE UNDER ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS IN THE EVENT OF PERMANENT PARTIAL INVALIDITY RESULTING FROM AN ACCIDENT ,

Grounds

1 BY AN APPLICATION WHICH WAS LODGED AT THE COURT REGISTRY ON 28 NOVEMBER 1983 , BENOIT SUSS , A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR , INTER ALIA , THE ANNULMENT OF THE MEDICAL COMMITTEE ' S REPORT OF 13 JULY 1982 , A DECLARATION THAT THE COMMISSION ' S LETTER OF 3 FEBRUARY 1983 CONCERNING THE APPLICANT ' S PERMANENT PARTIAL INVALIDITY IS VOID AND A RULING TO DETERMINE THE BENEFITS WHICH ARE PAYABLE TO HIM , PURSUANT TO ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS , AS A RESULT OF THAT INVALIDITY .

2 IN 1977 THE APPLICANT WAS THE VICTIM OF AN ASSAULT . THE SEQUELAE OF THAT ASSAULT RESULTED IN PERMANENT PARTIAL INVALIDITY WHICH MADE IT IMPOSSIBLE FOR HIM TO CARRY OUT HIS DUTIES . THESE PROCEEDINGS CONCERN THE DEGREE OF THAT PERMANENT PARTIAL INVALIDITY . ON THE BASIS OF THAT INVALIDITY THE APPLICANT RECEIVES AN INVALIDITY PENSION . UNDER ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS HE IS ALSO ENTITLED TO AN ALLOWANCE IN THE FORM OF A LUMP SUM CALCULATED ON THE BASIS OF THE DEGREE OF INVALIDITY , AND TO THE REIMBURSEMENT AT 100% OF THE COSTS OF MEDICAL TREATMENT MADE NECESSARY BY THE ACCIDENT .

3 IN A REPORT OF 25 MAY 1979 THE DOCTOR APPOINTED BY THE COMMISSION FOR THE PURPOSE OF DETERMINING THE BENEFITS PAYABLE TO THE APPLICANT UNDER ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS ESTIMATED THE DEGREE OF INVALIDITY AT 25% FOR THE EYE INJURY , 10% FOR THE NEUROLOGICAL SYMPTOMS AND 2.25% FOR THE SEQUELAE IN RELATION TO THE KNEE . ACCORDING TO A PROPORTIONATE CALCULATION KNOWN AS THE ' ' BALTHAZAR RULE ' ' , WHICH WAS APPLIED IN THAT REPORT , THOSE RATES RESULTED IN AN AGGREGATE INVALIDITY RATE OF 34 % . ON THAT BASIS , ON 24 JULY 1979 , THE COMMISSION ADDRESSED TO THE APPLICANT A DRAFT DECISION IN ACCORDANCE WITH ARTICLE 21 OF THE RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE ( HEREINAFTER REFERRED TO AS ' ' THE RULES ' ' ).

4 THE APPLICANT DID NOT ACCEPT THAT DRAFT AND CONTESTED THE MEDICAL FINDINGS OF THE DOCTOR AND THE APPLICATION OF THE ' ' BALTHAZAR RULE ' ' . HE REQUESTED THAT THE MEDICAL COMMITTEE PROVIDED FOR IN ARTICLE 23 OF THE RULES DELIVER AN OPINION . AT THE SAME TIME , HE ASKED TO BE GRANTED A PROVISIONAL ALLOWANCE , PURSUANT TO ARTICLE 20 OF THE RULES , IN RESPECT OF THE UNDISPUTED PROPORTION OF THE INVALIDITY RATE . THE COMMISSION GRANTED THE ALLOWANCE BUT ONLY IN RESPECT OF AN INVALIDITY RATE OF 25% . SUBSEQUENTLY , THE COMMISSION ACCEPTED IN A LETTER DATED 30 JANUARY 1980 THAT THE PROVISIONS OF THE RULES EXCLUDED ANY REDUCTION UNDER THE ' ' BALTHAZAR RULE ' ' AND THAT THE AGGREGATE RATE OF PERMANENT PARTIAL INVALIDITY SHOULD BE OBTAINED BY ADDING UP THE VARIOUS PARTIAL RATES .

5 THE COMPOSITION OF THE MEDICAL COMMITTEE AND THE GRANT OF AN ADDITIONAL PROVISIONAL ALLOWANCE OF 12% WERE THE SUBJECT OF THE ACTION BROUGHT BEFORE THE COURT IN CASE 186/80 . AFTER THAT ACTION HAD BEEN BROUGHT , THE COMMISSION PAID THE APPLICANT , AS AN ADDITIONAL PROVISIONAL ALLOWANCE , A SUM CORRESPONDING TO A DEGREE OF INVALIDITY OF 12 % , IN ADDITION TO THE SUM ALREADY PAID AT THE RATE OF 25% . IT IS CLEAR FROM THE DECLARATIONS MADE BY THE COMMISSION ON THAT OCCASION THAT THE PAYMENT WAS MADE ' ' PENDING THE CONCLUSIONS OF THE MEDICAL COMMITTEE ' ' AND IN ORDER TO RENDER THE CLAIM IN QUESTION DEVOID OF PURPOSE , ' ' IN A SPIRIT OF CONCILIATION . . . ENTIRELY WITHOUT PREJUDICE TO THE COMMISSIONS POSITION IN ANY WAY AND , IN PARTICULAR , WITHOUT PREJUDICE TO THE MEDICAL COMMITTEE ' S REPORT ' ' . IN ITS JUDGMENT OF 14 JULY 1981 (( 1981 ) ECR 2041 ) THE COURT NOTED THAT THE CLAIM IN QUESTION HAD BECOME DEVOID OF PURPOSE .

6 THE MEDICAL COMMITTEE , COMPOSED OF THREE DOCTORS , MET ON 13 JULY 1982 IN THE PRESENCE OF A FOURTH DOCTOR , DR DARO , A SURGEON PRACTISING IN LUXEMBOURG , WHO WAS CALLED IN FOR CONSULTATION BY THE UNANIMOUS AGREEMENT OF THE THREE MEMBERS OF THE MEDICAL COMMITTEE . ACCORDING TO THE REPORT DRAWN UP BY THE COMMITTEE , AFTER HAVING EXAMINED THE APPLICANT AND HAVING STUDIED THE VARIOUS REPORTS AND CERTIFICATES CONTAINED IN THE FILE , THE COMMITTEE ESTIMATED THE AGGREGATE INVALIDITY RATE AT 34% , THAT IS , 25% FOR THE LOSS OF VISION IN THE LEFT EYE , 8% FOR THE SEQUELAE IN RELATION TO THE LEFT KNEE AND 1% FOR DISFIGUREMENT . IN ADDITION IT TOOK 1 APRIL 1979 AS THE DATE OF THE CONSOLIDATION OF THE INJURIES AND CONSIDERED THAT THERE WAS NO NEED FOR FURTHER TREATMENT OR THERAPY . ACCORDING TO THE REPORT THAT CONCLUSION WAS REACHED ' ' WITH THE UNANIMOUS AGREEMENT OF THE FOUR DOCTORS PRESENT , DULY CONSTITUTING THE MEDICAL COMMITTEE ' ' . THE REPORT BEARS THE SIGNATURES OF THE THREE MEMBERS OF THE MEDICAL COMMITTEE AND THAT OF DR DARO .

7 ON 3 FEBRUARY 1983 THE COMMISSION INFORMED THE APPLICANT THAT IT ACCEPTED THE CONCLUSIONS OF THAT REPORT , AND THAT CONSEQUENTLY THE APPLICANT SHOULD REPAY A SUM OF BFR 281 219 CORRESPONDING TO THE DIFFERENCE BETWEEN THE PROVISIONAL ALLOWANCE RECEIVED BY HIM ON THE BASIS OF A DEGREE OF INVALIDITY OF 37% AND THE LUMP SUM TO WHICH HE WAS ENTITLED IN RESPECT OF A DEGREE OF INVALIDITY FIXED AT 34 % . IN ADDITION IT STATED THAT THE REIMBURSEMENT AT 100% OF THE COSTS OF TREATMENT , UNDER ARTICLE 73 ( 3 ) OF THE STAFF REGULATIONS , WAS NOT JUSTIFIED AFTER 1 APRIL 1979 , AND THAT A SUM OF BFR 24 922 HAD BEEN PAID UNDULY . THAT AMOUNT WAS THEREFORE CARRIED FORWARD TO BE DEDUCTED FROM FUTURE CLAIMS FOR REIMBURSEMENT OF MEDICAL EXPENSES .

8 THE COMPLAINT AGAINST THE MEDICAL COMMITTEE ' S REPORT AND AGAINST THAT DECISION OF THE COMMISSION , SUBMITTED BY THE APPLICANT ON 25 APRIL 1983 UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS , WAS REJECTED BY A DECISION OF 3 OCTOBER 1983 . THE APPLICANT HAS NOW BROUGHT THIS ACTION , WHEREBY HE SEEKS :

THE ANNULMENT OF THE MEDICAL COMMITTEE ' S REPORT AND THE COMMISSION ' S DECISION OF 3 FEBRUARY 1983 ;

THE GRANT OF AN ALLOWANCE CORRESPONDING TO A DEGREE OF INVALIDITY OF 56% ;

THE FIXING OF THE DATE OF CONSOLIDATION AS 1 APRIL 1979 FOR THE NEUROLOGICAL AND OPHTHALMIC SEQUELAE AND 4 MAY 1982 FOR THE MENISCAL SEQUELAE AND A DECLARATION THAT THERMAL CURES ARE NECESSARY ;

IN ANY EVENT A DECLARATION THAT THE DEGREE OF INCAPACITY ON WHICH THE PAYMENT OF THE PROVISIONAL ALLOWANCE WAS BASED IS DEFINITIVE , AND A NEW EXPERT OPINION IN RESPECT OF THE SEQUELAE STILL UNDER DISCUSSION ;

THE AWARD OF AN ADDITIONAL SUM OF BFR 50 000 AND INTEREST ON THE AMOUNT OF THE ALLOWANCE BECAUSE OF THE IMPROPER DELAY IN PAYING THAT ALLOWANCE .

THE MEDICAL COMMITTEE ' S REPORT

9 IN SUPPORT OF HIS APPLICATION , THE APPLICANT CLAIMS THAT THE MEDICAL COMMITTEE ' S REPORT IS VITIATED BY A PROCEDURAL DEFECT INASMUCH AS A DOCTOR WHO WAS NOT A MEMBER OF THE COMMITTEE PARTICIPATED IN ITS DELIBERATIONS AND SIGNED ITS REPORT . THE MEDICAL COMMITTEE OUGHT TO HAVE ACCEPTED AT LEAST THE DEGREE OF INVALIDITY PREVIOUSLY ESTABLISHED BY THE DOCTOR APPOINTED BY THE COMMISSION , AND BY THE COMMISSION WHEN IT PAID THE PROVISIONAL ALLOWANCE . MOREOVER , THE MEDICAL COMMITTEE FAILED TO ASSESS CORRECTLY THE SEQUELAE IN RELATION TO THE APPLICANT ' S KNEES , BECAUSE ITS EXAMINATION WAS TOO CURSORY . THOSE SEQUELAE SHOULD HAVE BEEN ASSESSED AT 20% , AS THEY HAD BEEN BY TWO EMINENT DOCTORS CONSULTED BY HIM .

10 THE COMMISSION CONSIDERS THAT THE APPLICATION IS INADMISSIBLE IN SO FAR AS THE APPLICANT ASKS THE COURT TO SUBSTITUTE ITS OWN ASSESSMENT FOR THE FINDINGS OF THE MEDICAL COMMITTEE AND THE APPOINTING AUTHORITY . IT MAINTAINS MOREOVER THAT THE AGREEMENT OF A FOURTH DOCTOR DOES NOT CONSTITUTE AN IRREGULARITY IN THE MEDICAL COMMITTEE ' S REPORT . THE MEDICAL COMMITTEE ' S FREEDOM OF MEDICAL APPRAISAL CANNOT BE RESTRICTED BY PREVIOUS FINDINGS . THERE IS NOTHING TO SUGGEST THAT IT IS POSSIBLE TO CALL IN QUESTION THE CONSCIENTIOUSNESS OF THE DELIBERATIONS OF THE MEDICAL COMMITTEE , WHICH TOOK INTO ACCOUNT IN ITS REPORT THE MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT .

11 THE COURT WOULD POINT OUT , FIRST , THAT AS IT HELD IN ITS JUDGMENT OF 21 MAY 1981 ( CASE 156/80 , MORBELLI V COMMISSION , ( 1981 ) ECR 1357 ), ARTICLES 19 TO 23 OF THE RULES ARE INTENDED TO CONFER UPON MEDICAL EXPERTS THE TASK OF APPRAISING IN THEIR ENTIRETY MEDICAL QUESTIONS WHICH ARE RELEVANT TO THE OPERATION OF THE INSURANCE SCHEME SET UP BY THE RULES . THE ORGANIZATION OF THAT COMPLAINTS PROCEDURE AND THE CARE WITH WHICH THE PROVISIONS QUOTED STRIVE TO ENSURE THE BALANCE AND OBJECTIVITY OF MEDICAL COMMITTEES ARE EVIDENCE OF A DESIRE TO SETTLE DEFINITIVELY AT THAT STAGE , IN CASE OF DISPUTE , ALL QUESTIONS OF A MEDICAL NATURE . IN THOSE CIRCUMSTANCES THE REMEDIES PROVIDED FOR BY THE STAFF REGULATIONS MAY IN PRINCIPLE BE EMPLOYED ONLY IN ORDER TO OBTAIN A REVIEW BY THE COURT CONFINED TO QUESTIONS CONCERNING THE CONSTITUTION AND PROPER FUNCTIONING OF THE MEDICAL COMMITTEES . THE COURT ' S REVIEW MAY NOT EXTEND TO MEDICAL APPRAISALS PROPERLY SO-CALLED .

12 IN THE LIGHT OF THOSE CONSIDERATIONS IT SHOULD BE NOTED THAT IN THIS CASE THE MEDICAL COMMITTEE WAS CORRECTLY CONSTITUTED , IN ACCORDANCE WITH ARTICLE 23 OF THE RULES , BY TWO DOCTORS APPOINTED BY THE TWO PARTIES AND BY A THIRD DOCTOR APPOINTED BY AGREEMENT BETWEEN THOSE TWO DOCTORS . NOTHING PROHIBITS THE MEDICAL COMMITTEE FROM CONSULTING , BY COMMON AGREEMENT , OTHER DOCTORS IF IT CONSIDERS IT IS NECESSARY TO DO SO , SINCE THE NATURE OF THE INJURIES TO BE ASSESSED MAY REQUIRE THE OPINION OF A SPECIALIST . THE FACT THAT THE DOCTOR CALLED IN AS A CONSULTANT WAS PRESENT IN THAT CAPACITY DURING THE COMMITTEE ' S DELIBERATIONS AND THAT HE ADDED HIS SIGNATURE TO THE MEDICAL COMMITTEE ' S REPORT CANNOT THEREFORE BE REGARDED AS A PROCEDURAL IRREGULARITY .

13 THERE IS NO PROVISION IN THE RULES WHICH REQUIRES THE MEDICAL COMMITTEE TO CONSIDER AS DEFINITIVE THE CONTENTS OF MEDICAL REPORTS OR OTHER OPINIONS PREVIOUSLY ADOPTED . THE COMMITTEE ' S TASK , WHICH CONSISTS IN CONSIDERING ENTIRELY OBJECTIVELY AND INDEPENDENTLY MEDICAL QUESTIONS , REQUIRES THAT IT BE ALLOWED COMPLETE FREEDOM OF APPRAISAL . NO COMPLAINT MAY BE LEVELLED AT THE MEDICAL COMMITTEE ON THE GROUND THAT , IN RELATION TO CERTAIN ASPECTS OF THE APPLICANT ' S INJURIES , IT REACHED CONCLUSIONS DIFFERENT TO THOSE OF THE DOCTOR PREVIOUSLY APPOINTED BY THE COMMISSION AND THOSE OF THE COMMISSION ITSELF IN ITS DRAFT DECISION , OR THOSE OF OTHER DOCTORS CONSULTED BY THE APPLICANT .

14 AS REGARDS THE SEQUELAE IN RELATION TO THE KNEES , IT IS CLEAR FROM THE MEDICAL COMMITTEE ' S REPORT THAT IT CONSIDERED THE RELEVANT MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT . MOREOVER , THERE IS NOTHING TO SUGGEST THAT THE CONCLUSIONS WHICH IT REACHED ON THAT POINT RESULT FROM AN IRREGULARITY CAPABLE OF VITIATING ITS DECISIONS .

15 IT FOLLOWS FROM THE FOREGOING THAT THE ACTION IS UNFOUNDED IN SO FAR AS IT SEEKS THE ANNULMENT OF THE MEDICAL FINDINGS MADE BY THE MEDICAL COMMITTEE AND IN SO FAR AS IT ASKS THE COURT TO RULE ON THE MEDICAL QUESTIONS EXAMINED BY THE COMMITTEE AND TO ORDER A NEW EXPERT OPINION .

THE COMMISSION ' S DECISION ON THE DEGREE OF INVALIDITY AND THE DATE OF CONSOLIDATION

16 THE APPLICANT ALSO CLAIMS THAT THE DEGREE OF INVALIDITY PREVIOUSLY ESTABLISHED BY THE DOCTOR APPOINTED BY THE COMMISSION , AND BY THE COMMISSION ITSELF IN ITS DRAFT DECISION OF 24 JULY 1979 AND WHEN IT PAID THE ADDITIONAL PROVISIONAL ALLOWANCE OF 12 % , IS BINDING ON THE COMMISSION . IT WAS NOT ENTITLED TO ALTER ITS ORIGINAL FINDING TO THE DETRIMENT OF THE APPLICANT , FOLLOWING THE COMPLAINT AND THE REFERRAL OF THE MATTER TO THE MEDICAL COMMITTEE . THAT IS TRUE NOT ONLY FOR THE AGGREGATE RATES BUT ALSO FOR EACH OF THE VARIOUS COMPONENTS . BY ADDING UP THE MOST FAVOURABLE PARTIAL RATES ESTABLISHED IN THE FIRST PLACE IN THE MEDICAL REPORT OF 25 MAY 1979 AND SECONDLY BY THE MEDICAL COMMITTEE , THE APPLICANT IS ENTITLED TO A RATE OF AT LEAST 44% . IN ANY EVENT THE COMMISSION MAY NOT DEMAND THE REPAYMENT OF THE SUM PAID AS A PROVISIONAL ALLOWANCE .

17 THE COMMISSION OBJECTS THAT WHEN IT ADOPTS A DECISION IT IS NOT IN ANY WAY BOUND BY EARLIER FINDINGS . ITS DRAFT DECISION , WHICH THE APPLICANT DID NOT ACCEPT , AND THE PAYMENT OF THE PROVISIONAL ALLOWANCE SUBJECT TO SUBSEQUENT DECISIONS WERE IN NO WAY DEFINITIVE . NEITHER THE DECISION NOR THE PAYMENT CAN THEREFORE BIND THE COMMISSION AS TO ITS FINAL DECISION .

18 UNDER THE RULES , IN PARTICULAR ARTICLES 16 AND 18 THEREOF , IT IS FOR THE ADMINISTRATION , INITIALLY , TO CONDUCT AN INQUIRY AND , INTER ALIA , TO OBTAIN ANY EXPERT MEDICAL OPINION NECESSARY FOR THE IMPLEMENTATION OF THE RULES . AT THAT STAGE IN THE PROCEDURE THE ADMINISTRATION IS NOT BOUND BY THE OPINION ISSUED BY A DOCTOR APPOINTED BY IT . IT IS FREE TO DECIDE WHETHER OR NOT TO FOLLOW SUCH AN OPINION OR TO OBTAIN FURTHER EXPERT OPINIONS . THE OFFICIAL OR THOSE ENTITLED UNDER HIM CANNOT INFLUENCE THE COURSE OF THAT INQUIRY AND INSIST ON OBTAINING EXPERT OPINIONS . AT THE END OF THAT FIRST STAGE IN THE PROCEDURE , THE ADMINISTRATION ADOPTS THE POSITION WHICH IT CONSIDERS OBJECTIVELY JUSTIFIED AND SETS OUT ITS CONCLUSIONS IN A DRAFT DECISION NOTIFIED TO THE OFFICIAL OR THOSE ENTITLED UNDER HIM , IN ACCORDANCE WITH ARTICLE 21 OF THE RULES .

19 FOLLOWING THAT NOTIFICATION , UNDER THE SECOND PARAGRAPH OF ARTICLE 21 OF THE RULES , THE OFFICIAL OR THOSE ENTITLED UNDER HIM MAY LODGE A COMPLAINT AGAINST THE CONCLUSIONS REACHED BY THE ADMINISTRATION IN ITS DRAFT DECISION . UNDER THAT PROCEDURE HE MAY REFER THE MATTER TO THE MEDICAL COMMITTEE PROVIDED FOR IN ARTICLE 23 OF THE RULES . THE PROCEDURE IS INTENDED TO SAFEGUARD THE INTERESTS OF THE OFFICIAL AND THOSE ENTITLED UNDER HIM AND TO ALLOW THEM TO PUT FORWARD THEIR VIEWS ON THE MEDICAL FINDINGS . THE ADMINISTRATION , FOR ITS PART , MAY NOT REFER TO THE MEDICAL COMMITTEE .

20 IN FOLLOWS FROM THE FOREGOING THAT , IN ACCORDANCE WITH A PRINCIPLE WIDELY RECOGNIZED IN THE LEGAL ORDERS OF THE MEMBER STATES WITH REGARD TO PROCEDURES OF COMPLAINT OR APPEAL OF A JUDICIAL OR ADMINISTRATIVE NATURE , THE APPOINTING AUTHORITY MAY NOT DEPART , TO THE DETRIMENT OF THE OFFICIAL , FROM THE CONCLUSIONS WHICH IT REACHED IN ITS DRAFT DECISION NOTIFIED IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 21 OF THE RULES WHEN IT ADOPTS THE FINAL DECISION . HOWEVER , THAT PRINCIPLE APPLIES ONLY TO THE DRAFT DECISION ITSELF , FIXING AN AGGREGATE INVALIDITY RATE AND AN ALLOWANCE CALCULATED ON THAT BASIS ; IT DOES NOT APPLY TO THE VARIOUS COMPONENTS OF THE REPORT OF THE DOCTOR APPOINTED BY THE INSTITUTION . THAT REPORT MERELY REPRESENTS AN OPINION WHICH IS NOT BINDING ON THE APPOINTING AUTHORITY AND WHICH IS NOT PART OF THE DECISION ADOPTED BY THAT AUTHORITY .

21 IN THIS INSTANCE THE REPORT OF THE DOCTOR APPOINTED BY THE COMMISSION AND THE COMMISSION ' S DRAFT DECISION HAD FIXED AN AGGREGATE RATE OF 34% , ARRIVED AT BY APPLYING THE PROPORTIONAL CALCULATION KNOWN AS THE ' ' BALTHAZAR ' ' RULE TO PARTIAL DEGREES WHICH ADDED UP IN THEMSELVES TO 37.25% . THE COMMISSION EXPRESSLY ACKNOWLEDGED IN ITS LETTER DATED 30 JANUARY 1980 THAT THE TOTAL OF THE PARTIAL RATES COULD NOT BE REDUCED ON THE BASIS OF THE ' ' BALTHAZAR ' ' RULE , SINCE THAT RULE WAS NOT APPLICABLE UNDER THE RELEVANT COMMUNITY PROVISIONS . THE COMMISSION THUS INCREASED TO 37.25% THE AGGREGATE PERMANENT PARTIAL INVALIDITY RATE WHICH IT HAD ESTABLISHED IN ITS DRAFT DECISION . MOREOVER , THAT IS WHY IN THE COURSE OF THE PROCEEDINGS IN CASE 186/80 THE COMMISSION PAID AN ADDITIONAL PROVISIONAL ALLOWANCE , THEREBY ACKNOWLEDGING THAT THE RATE IN QUESTION REPRESENTED ' ' THE UNDISPUTED PROPORTION OF THE PERMANENT INVALIDITY RATE ' ' WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 20 . IN ITS DEFINITIVE DECISION THE COMMISSION WAS THEREFORE NOT ENTITLED TO DEPART FROM THE RATE OF 37.25% , WHICH IT HAD PREVIOUSLY ACCEPTED , TO THE DETRIMENT OF THE APPLICANT .

22 THE APPLICANT ALSO CONTESTS THE FIXING OF THE DATE OF THE CONSOLIDATION OF THE SEQUELAE AS 1 APRIL 1979 . IN THAT CONNECTION IT MUST BE NOTED THAT THE COMMISSION ' S DRAFT DECISION OF 24 JULY 1979 , ON THE BASIS OF THE OPINION OF THE DOCTOR APPOINTED BY THE COMMISSION , TOOK AS THE DATE OF CONSOLIDATION THE DATE OF THAT OPINION , NAMELY 18 MAY 1979 . FOR THE REASONS WHICH HAVE BEEN SET OUT ABOVE , THE COMMISSION WAS NOT ENTITLED TO FIX A DATE OF CONSOLIDATION EARLIER THAN THAT IN ITS FINAL DECISION .

23 IT FOLLOWS THAT , BY FIXING A PERMANENT PARTIAL INVALIDITY RATE OF LESS THAN 37.25% AND BY TAKING AS THE DATE OF CONSOLIDATION OF THE SEQUELAE OF THE ACCIDENT A DATE EARLIER THAN 18 MAY 1979 , THE COMMISSION EXCEEDED THE LIMITS OF ITS DISCRETION UNDER THE RULES , HAVING REGARD TO THE CONCLUSIONS WHICH IT REACHED IN ITS DRAFT DECISION . THE DECISION OF 3 FEBRUARY 1983 MUST BE ANNULLED IN SO FAR AS IT OVERSTEPS THOSE LIMITS .

THE CLAIMS FOR THE AWARD OF AN ADDITIONAL ALLOWANCE AND INTEREST

24 IN SUPPORT OF HIS CLAIM THAT THE COURT SHOULD ORDER THE COMMISSION TO PAY HIM AN ADDITIONAL ALLOWANCE OF BFR 50 000 THE APPLICANT MERELY REFERRED TO ARTICLE 73 OF THE RULES OF PROCEDURE AND CITED NO OTHER CIRCUMSTANCE OF FACT OR OF LAW CAPABLE OF SUPPORTING SUCH A CLAIM . IT IS SUFFICIENT TO NOTE IN THAT RESPECT THAT PROVISION RELATES TO RECOVERABLE COSTS AND THOSE ARE THE SUBJECT OF THE DECISION AS TO COSTS .

25 AS REGARDS THE PAYMENT OF INTEREST , IT IS SUFFICIENT TO NOTE THAT THAT CLAIM HAS BECOME DEVOID OF PURPOSE SINCE THE ALLOWANCE DEFINITIVELY AWARDED SCARCELY DIFFERS FROM THAT PAID ON A PROVISIONAL BASIS AND THAT A CLAIM FOR DAMAGES IN THE FORM OF INTEREST WAS ALREADY DISMISSED IN THE JUDGMENT OF 14 JULY 1981 , CITED ABOVE .

26 IT FOLLOWS FROM ALL THE ABOVE-MENTIONED CONSIDERATIONS THAT THE APPLICATION IS WELL-FOUNDED IN SO FAR AS , IN ITS DECISION OF 3 FEBRUARY 1983 , THE COMMISSION ESTABLISHED AN AGGREGATE PERMANENT PARTIAL INVALIDITY RATE OF LESS THAN 37.25% AND FIXED A DATE EARLIER THAN 18 MAY 1979 AS THAT OF THE CONSOLIDATION OF THE SEQUELAE OF THE ACCIDENT , AND IN SO FAR AS THE COMMISSION CLAIMED THE REPAYMENT OF THE BENEFITS RELATING THERETO , BUT THAT THE REMAINDER OF THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .

Decision on costs

COSTS

27 UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .

28 SINCE THE COMMISSION HAS FAILED IN THE MAIN PART OF ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . ANNULS THE COMMISSION ' S DECISION OF 3 FEBRUARY 1983 IN SO FAR AS IT ESTABLISHES AN AGGREGATE PERMANENT PARTIAL INVALIDITY RATE OF LESS THAN 37.25% , IN SO FAR AS IT FIXES A DATE EARLIER THAN 18 MAY 1979 AS THAT OF THE CONSOLIDATION OF THE SEQUELAE OF THE ACCIDENT AND IN SO FAR AS IT CLAIMS THE REPAYMENT OF THE BENEFITS RELATING THERETO ;

2.DISMISSES THE REMAINDER OF THE APPLICATION ;

3.ORDERS THE COMMISSION TO PAY THE COSTS .