JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

12 March 1996

Case T-361/94

Henry A. Weir

v

Commission of the European Communities

‛Officials — Partial permanent invalidity — Equal treatment — Increase in the cost of living — Delay in dealing with the file — Default interest — Admissibility’

Full text in German II-381

Application for:

first, annulment of the decision adopted by the Commission of 25 February 1994 pursuant to Article 73 of the Staff Regulations of Officials of the European Communities, or, in the alternative, payment of compensatory interest and, secondly, default interest.

Decision:

Application dismissed.

Abstract of the Judgment

On 17 October 1987 the applicant, a former official of the Commission, suffered an accident which the Commission recognizes as being an accident within the meaning of Article 73 of the Staff Regulations of Officials of the European Communities. The appointing authority was informed in October 1989 by the doctor treating the applicant that injuries consecutive upon the accident had consolidated and that there was partial permanent invalidity, whereupon the appointing authority decided, on the basis of the findings of the Invalidity Committee, to retire the applicant at the end of September 1990.

The Commission's medical officer examined the applicant in November 1990 in order to determine the degree of invalidity that should be taken into account for the purpose of a lump sum payment pursuant to Article 73 of the Staff Regulations and concluded that there was 7% partial permanent invalidity. That conclusion was the subject of a draft decision by the Commission dated 12 April 1991 which was notified to the applicant on 26 April 1991. The applicant had meanwhile sent to the Commission two expert medical opinions to be taken into account in the assessment of his invalidity and on 25 June 1991 requested, in accordance with Article 73 of the Staff Regulations and Article 21 of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (‘the Rules’), that the Medical Committee should be convened. Since the two doctors appointed could not agree on the appointment of a third doctor, at the Commission's request the third doctor was appointed by the President of the Court of Justice on 18 June 1993. After the applicant had been examined, the Medical Committee agreed to recognize a degree of partial permanent invalidity of 25%. Subsequently, on 25 February 1994, the Commission adopted a decision (the contested decision), definitively fixing the degree of invalidity at 25 % and calculated the allowance provided for in Article 73(2)(c) of the Staff Regulations on the basis of the applicant's monthly salary for the 12 months preceding the accident. The lump sum provided for was paid on 30 March 1994.

After the Commission had expressly rejected the applicant's complaint lodged under Article 90(2) of the Staff Regulations against the contested decision, he brought the present action.

First head of claim for the annulment of the Commission's decision of 25 February 1994

The applicant relies on a single plea in law to the effect that the principle of equal treatment of officials has been infringed, inasmuch as the Commission calculated the lump sum payment under Article 73(2)(b) and (c) of the Staff Regulations on the basis of the monthly salary received ‘for the 12 months preceding the accident’ and not on the basis of the monthly salary which the applicant would have received had he not suffered the accident in the course of the 12 months preceding the opinion of the Medical Committee. He did not contest the degree of invalidity fixed at 25 % (paragraphs 22 and 23).

Admissibility of the plea

Although it is true that Article 90(2) of the Staff Regulations does not, itself, lay down conditions as regards the content and, in particular, the grounds set out in a complaint within the meaning of that article, the rule that the complaint and the application should be consistent requires that for a plea in law raised before the Community judicature to be admissible it should already have been raised in the course of the pie-litigation procedure, in order to ensure that the appointing authority is made aware with sufficient certainty of the objections of the person concerned to the impugned decision. The purpose of Article 90 of the Staff Regulations is to permit and encourage the amicable settlement of differences which have arisen between officials and the administration. In order to comply with that requirement it is essential that the administration should be in a position to know with sufficient certainty the complaints or wishes of the person concerned. It follows that the official may not confine himself to relying, in the complaint, on the relevant facts. The complaint must also indicate, even if not formulated in legal terms, the complaints raised by the applicant in support of his challenge to the decision at issue. An official may not seek from the Community judicature forms of order with a subject-matter other than that raised in the complaint or put forward heads of claim based on matters other than those relied on in the complaint; the pleas in law and arguments made to the Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it (paragraphs 27 and 28).

See: T-19/90 von Hoessle v Court of Auditors [1991] ECR II-615, para. 34; T-1/91 Della Pietra v Commission [1992] ECR II-2145, para. 24; T-496/93 Alio v Commission [1995] ECRSC II-405, para. 26

The Court considers that the complaint as it is worded neither makes any reference to the present plea in law nor contains anything from which the Commission, even endeavouring to interpret the complaint in an open frame of mind, could have inferred that the applicant wished to plead a breach of the principle of equal treatment (paragraphs 29 and 39).

See: 133/88 Del Amo Martinez v Parliament [1989] ECR 689, para. 13

In his complaint, the applicant claims only, first, that the amount of the lump sum should be increased by a sum in an amount that will compensate for the reduction in its real value between the date of the accident and the date of its payment and, secondly, that default interest should be paid on it. However, in the present plea, he claims in essence that application of the provisions of Article 73(2)(b) and (c) stricto sensu constitutes an infringement of the principle of equal treatment to his detriment, such discrimination residing in the fact that an official whose injuries have consolidated at a later date will receive a smaller allowance in terms of purchasing power than an official affected by the same degree of invalidity but in whose case all the findings could be made on the date of the accident. The applicant queries the correctness of the assessment made by the Court of First Instance in Case T-8/90 Colmant v Commission, asserting that the Court did not take sufficient account of the existence of such discrimination (paragraph 31).

See: T-8/90 Colmant v Commission [1992] ECR II-469, paras 29, 39 and 40

The Court considers that consideration of the question whether the claims set out in the complaint are well founded is quite different from consideration of this plea, so that there is no close link between the latter and a simple request for an adjustment of the amount of capital granted in order to compensate for its allegedly reduced value in real terms. Accordingly the complaint was not sufficiently explicit to enable the institution to which it was addressed to respond appropriately. The correctness of that assessment is corroborated by the fact that it is evident from the Commission's response to the complaint that it had not understood that the applicant wished to rely on infringement of the principle of equal treatment. Moreover, the reference to ‘the case-law’ with regard to the legal basis of the claims made in the complaint is not sufficiently explicit. Hence this plea must be held inadmissible and the head of claim dismissed (paragraphs 32 to 34).

See: T-32/89 and T-39/89 Marcopoulos v Court of Justice [1990] ECR II-281, para. 28

Second head of claim seeking an order that the Commission should recalculate the lump sum payment on the basis of the basic monthly salary that the applicant would have earned during the 12 months preceding the opinion given by the Medical Committee

The Community judicature may not, without encroaching upon the prerogatives of the administrative authority, issue directions to a Community institution. Accordingly this head of claim must be dismissed as inadmissible (paragraph 37).

See: T-20/92 Moat v Commission [1993] ECR II-799; T-510/93 Obst v Commission [1994] ECRSC II-461

Third head of claim seeking, in the alternative, compensatory interest in order to take account of the alleged reduction in the real value of the allowance paid

Since the conditions governing the admissibility of an action laid down by Articles 90 and 91 of the Staff Regulations are a matter of public policy, the Community judicature may examine them of its own motion. The request for compensatory interest must be dismissed, inasmuch as it is closely associated with the head of claim seeking the annulment of the decision in question which must itself be dismissed as either inadmissible or unfounded. Even if it were thought that the damage which the applicant claims he has suffered was caused by conduct which did not amount to a decision, the Staff Regulations require the pre-litigation procedure to take place in two stages comprising a request and a complaint within the meaning of Articles 90 and 91 of the Staff Regulations. In this case the procedure was not followed. Even if the letter headed ‘Complaint pursuant to Article 90(2) of the Staff Regulations’ fell to be interpreted as constituting a request within the meaning of Article 90(1) of the Staff Regulations as regards the request for the award of compensatory interest, it would be necessary to hold that the applicant did not introduce a complaint against the Commission's dismissal ofthat ‘request’. This head of claim is therefore inadmissible (paragraphs 47 to 49).

See: T-1/91 Della Pietra v Commission [1992] ECR II-2145, para. 34; T-65/91 White v Commission [1994] ECRSC II-23, para. 137

Fourth head of claim for the award of default interest calculated on the allowance from 17 October 1987 and in the alternative from 12 April 1991

The award of default interest can be envisaged only in a case where the principal sum owed is certain or can at least be ascertained on the basis of established objective factors and if payment of the allowance has subsequently been unduly delayed by the administration. Moreover, entitlement to payment of the allowance for permanent invalidity does not arise as each injury consolidates but only upon consolidation of the whole of the injuries; that interpretation is, moreover, corroborated by Article 20 of the Rules (paragraphs 52 and 53).

See: 156/80 Morbelli v Commission [1981] ECR 1357, para. 34; 186/80 ECR 2041, paras 15 and 16; C-136/92 P Commmission v Bramili Litoidi and Others [1994] ECR I-1981, para. 53; Case T-8/90 Colmant v Commission [1992] ECR II-469, para. 37

The allowance provided for in Article 73 is only payable as from the date on which the degree of permanent invalidity has been finally fixed. Since the principal sum owed in this case was not certain in its amount nor ascertainable on the basis of established objective factors, it did not become payable until the Medical Committee had adopted its final decision. Accordingly the Commission was neither obliged nor able to pay the capital before that date. It subsequently adopted the decision at issue and paid the capital to the applicant. In the circumstances, the Court of First Instance considers that the Commission properly fulfilled its obligation to make the payment and that this head of claim must therefore be dismissed (paragraphs 54 and 55).

See: 152/77 B v Commission [1979] ECR 2819, para. 21

Operative part:

The application is dismissed as inadmissible inasmuch as it seeks orders addressed to the Commission and that the Commission be ordered to pay compensatory interest.

For the rest the application is dismissed as unfounded.