JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

12 May 2016

Christian Guittet

v

European Commission

‛Civil service — Former official — Social security — Accident — Article 73 of the Staff Regulations — Closure of the procedure — Fixing of rate of partial permanent invalidity — Payment supplementary to the lump sum paid in the event of partial permanent invalidity — Implementation of a judgment annulling a measure — Incurable and total deafness’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Christian Guittet seeks, in particular, annulment of the decision of 6 October 2014 by which the appointing authority of the European Commission closed the procedure opened under Article 73 of the Staff Regulations of Officials of the European Union, in the version applicable to the dispute (‘the Staff Regulations’), and granted the applicant a rate of partial permanent invalidity of 68.5%.

Held:

The decision of 6 October 2014 closing the procedure opened under Article 73 of the Staff Regulations of Officials of the European Union following the accident of 8 December 2003, of which Mr Guittet was the victim, is annulled in so far as that decision fixed at 65% the rate of partial permanent invalidity granted to Mr Guittet under Article 12 of the rules common to the institutions of the European Union on insurance against the risk of accident and of occupational disease, in the version in force prior to 1 January 2006. The European Commission is ordered to pay Mr Guittet the sum of EUR 5000. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay the costs incurred by Mr Guittet.

Summary

Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Period of waiting extended by unlawfulness of a decision of an institution — Non-material harm to be made good through adequate compensation

Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Refusal of one of the members of the Medical Committee to sign the report — Procedural defect — None — Conditions

Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Composition of the Medical Committee — Participation of experts who have worked with the institution concerned for many years — Lawfulness — Undermining of impartiality — Conditions

Officials — Social security — Insurance against the risk of accident and of occupational disease — Supplementary allowance under the rules on insurance against the risk of accident and of occupational disease — Determination — Fixing of the rate of partial permanent invalidity — Procedures

Although the supplementary allowance paid under Article 14 of the Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, in the version last amended on 18 July 1997, is determined by analogy with the rates laid down in the invalidity scale referred to in Article 12 of those Rules, the fixing of the amount of that allowance and therefore of the corresponding rate of partial permanent invalidity is independent of the fixing of the amount of the lump sum paid under Article 12, and therefore of the partial permanent invalidity rate determining the amount of that lump sum. The purpose of the supplementary allowance paid under Article 14 of the old Insurance Rules is to compensate not for the partial permanent invalidity from which the official is suffering, which is the subject of the lump sum paid under Article 73(2)(c) of the Staff Regulations, but, in accordance with the provisions of Article 14, for any injury or permanent disfigurement which, although not affecting his capacity for work, constitutes a physical defect and has an adverse effect on his social relations. Being thus paid for injuries other than those for which the lump sum for partial permanent invalidity is paid under Article 12 of the old Insurance Rules, the decision fixing the rate of that invalidity under Article 12 is independent of the decision fixing the rate of partial permanent invalidity under Article 14 of those Rules. (see para. 60)

What is a reasonable duration for an administrative procedure depends on the circumstances of each case and, in particular, its context, the various procedural steps followed by the institution, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved. As regards the civil service, the institution is responsible for the speed at which the doctors work who are members of the Medical Committee tasked with deciding on the invalidity rate to be fixed for the official concerned. However, in so far as it is established that a delay is ascribable to the dilatory or even obstructive conduct of the official or of the doctor he has appointed to represent him, the institution must not be held responsible for that delay. In that regard, an insured party cannot be criticised, in a procedure initiated under Article 73 of the Staff Regulations, for having forwarded, though the doctor he has appointed, any comments which he considers necessary to enable the Medical Committee to reach its decision. However, the communication of fresh comments relating to issues addressed previously serves to lengthen the period required for the adoption of a decision closing the procedure initiated under Article 73 of the Staff Regulations and becomes dilatory where such comments continue to be made even though it is clearly evident that a majority opinion has definitively been reached within the Medical Committee. In such a situation, the time taken for the Medical Committee to do its work cannot be ascribable to the institution’s inaction. (see paras 79, 80, 89) See: Judgments of 22 October 1997 in SCK and FNK v Commission,T‑213/95 and T‑18/96, EU:T:1997:157, para. 57, and 11 April 2006 in Angeletti v Commission, T‑394/03, EU:T:2006:111, paras 152-154 Judgment of 1 July 2010 in Füller-Tomlinson v Parliament, F‑97/08, EU:F:2010:73, para. 167, and order of 30 June 2011 in Marcuccio v Commission, F‑14/10, EU:F:2011:99, para. 49

The medical assessments, properly speaking, made pursuant to Article 73 of the Staff Regulations by the Medical Committee provided for by the Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, in the version last amended on 18 July 1997, must be regarded as definitive where they have been issued under proper conditions. The Tribunal has the power only to ascertain, first, whether the Committee was constituted and functioned properly and, second, whether its opinion is lawful, in particular whether it contains a statement of reasons allowing an assessment to be made of the considerations on which it is based, and whether it establishes a comprehensible link between the medical findings it contains and the conclusions reached. Where the Medical Committee is required to answer complex medical questions relating to a difficult diagnosis or to the causal link between the disorder from which the official concerned is suffering and the performance of his duties with an EU institution, it must indicate in its opinion, inter alia, the evidence in the file on which it has relied and, in the event of significant discrepancy, its reasons for departing from certain relevant medical reports drawn up at an earlier stage which were more favourable to the official. Furthermore, while the procedural guarantees of the insured party before the Medical Committee must be strictly reviewed by the Tribunal, that review must have regard to the actual nature of that Committee’s work, the purpose of which is not to settle an adversarial debate but to make medical findings. The exercise of the Tribunal’s judicial review of whether the Medical and Invalidity Committees were constituted and functioned properly and whether the opinions they issued were lawful is thus a corollary of the absence of judicial review of their medical assessments properly speaking. (see paras 117-120, 133, 162) See: Judgments of 19 January 1988 in Biedermann v Court of Auditors, 2/87, EU:C:1988:17, para. 16, and 4 October 1991 in Commission v Gill, C‑185/90 P, EU:C:1991:380, para. 24 Judgment of 16 June 2000 in C v Council, T‑84/98, EU:T:2000:156, para. 43 and the case-law cited therein Judgments of 21 October 2009 in V v Commission, F‑33/08, EU:F:2009:141, para. 129 and the case-law cited therein, and 14 September 2010 in AE v Commission, F‑79/09, EU:F:2010:99, paras 64 and 65 and the case-law cited therein

As regards the composition of a Medical Committee, the fact that a doctor and a professor of medicine have worked with an institution’s Medical Service for a number of years does not prove that those doctors are unable to perform their duties impartially. In particular, that fact is not sufficient, in the absence of any evidence on this point, and unless it is assumed that lasting collaboration undermines neutrality as a matter of principle, to prove that those doctors have a link of dependence with the insurer of the institution concerned and that when examining the individual situation of an insured party they breached the ethical requirements to which every medical expert is subject. (see para. 124) See: Judgment of 21 October 2009 in V v Commission, F‑33/08, EU:F:2009:141, para. 179

The Medical Committee’s report is not vitiated by a procedural defect merely because one of its members refused to sign it. However, in order to comply with the principle of the collegiality of the proceedings of the Medical Committee, it must be established that the member who declined to sign the report was given the proper opportunity to put forward his views before the other two members. (see para. 134) See: Judgment of 12 December 2012 in BS v Commission, F‑90/11, EU:F:2012:188, para. 38 and the case-law cited therein

In a procedure opened under Article 73 of the Staff Regulations, a brief and imprecise statement of reasons for the Medical Committee’s final report fixing an official’s rate of partial permanent invalidity cannot be regarded as sufficient to enable the official concerned to understand and properly assess the considerations on which the Medical Committee, by a majority decision, has based its findings. The primary purpose of a statement of reasons is to reduce the risk of arbitrariness by requiring the author of the disputed decision to organise its reasoning into a single coherent entity. In that regard, it is for the Medical Committee, in its final report, to give an explicit and reasoned response to the argument which caused a difference of opinion between its members. (see paras 146, 149, 167) See: Judgments of 14 September 2010 in AE v Commission, F‑79/09, EU:F:2010:99, para. 65, and 18 November 2015 in Diamantopoulos v EEAS, F‑30/15, EU:F:2015:138, para. 25 and the case-law cited therein

Given that medical assessments properly speaking cannot be the subject of judicial review, a criticism alleging that the medical assessments contained in the opinion of the Medical Committee are vitiated by a manifest error of assessment cannot succeed. In that regard, if the Union court were to examine a plea alleging a manifest error in the assessment of an official’s hearing impairment by the Medical Committee, that would lead the court to anticipate the fresh assessment which the Committee would have to make in compliance with its judgment in order to eliminate the effects of the illegalities identified, which would constitute an infringement of Article 266 TFEU. However, an assessment which is not a medical assessment properly speaking would be amenable to judicial review of its administrative scope. In that regard, the court is entitled, when evaluating the hearing loss of the person concerned, to review compliance with a national rule in so far as it requires the person to undergo tests in addition to those under a different national rule in order to determine his total hearing capacity. (see paras 163, 170, 173) See: Judgment of 6 February 2015 in BQ v Court of Auditors, T‑7/14 P, EU:T:2015:79, para. 45 Judgments of 14 September 2011 in Hecq v Commission, F‑47/10, EU:F:2011:137, para. 45; 7 May 2013 in McCoy v Committee of the Regions, F‑86/11, EU:F:2013:56, para. 105, and 26 March 2014 in CP v Parliament, F‑8/13, EU:F:2014:44, paras 91 and 92

When determining the degree of an official’s invalidity, the official Belgian invalidity scale is to be applied, in the case of EU officials and other staff members, as a supplementary measure, since the scale annexed to the Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, in the version last amended on 18 July 1997, refers to it only for cases not expressly provided for by that scale. It is therefore necessary, specifically, that when Article 712 of the official Belgian invalidity scale is applied in the case of an EU official or other staff member, it must be reconciled with the relevant rules arising from the scale annexed to the Insurance Rules, which in particular means that such an official or staff member with curable or partial deafness must not be given a partial permanent invalidity rate greater than the maximum given under the scale annexed to the Insurance Rules for incurable and total deafness. (see para. 169)

The annulment of an unlawful act may constitute, in itself, appropriate and, in principle, sufficient compensation for any non-material harm which that measure may have caused, unless the applicant shows that he has sustained non-material harm that can be separated from the illegality on which the annulment is based and cannot be compensated in full by that annulment. In that regard, if the annulment of an act does not eliminate the effects of the illegality on the delay in a procedure for fixing an official’s rate of partial permanent invalidity under Article 14 of the Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, in the version last amended on 18 July 1997, then that annulment will not, in itself, be sufficient to compensate for any harm which the illegality caused in that respect for the person concerned. Where, as a result of the withdrawal of a decision, the person concerned is once again in a position of having to await the definitive and full settlement of the procedure opened under Article 73 of the Staff Regulations, that prolonging of the period of waiting and uncertainty constitutes non-material harm which it is for the institution concerned to make good through adequate compensation. It cannot be inferred, as a matter of principle, from the reopening of the procedure under Article 73 of the Staff Regulations that a claim for damages is premature, where compensation is already due for genuine and definite harm. (see paras 186-188) See: Judgment of 9 July 1987 in Hochbaum and Rawes v Commission, 44/85, 77/85, 294/85 and 295/85, EU:C:1987:348, para. 22 Judgments of 9 November 2004 in Montalto v Council, T‑116/03, EU:T:2004:325, para. 127, and 10 December 2008 in Nardone v Commission, T‑57/99, EU:T:2008:555, para. 56 Judgments of 8 May 2008 in Suvikas v Council, F‑6/07, EU:F:2008:55, para. 151; 14 July 2011 in Petrilli v Commission, F‑98/07, EU:F:2011:119, para. 28 and the case-law cited therein; 11 December 2013 in A v Commission, F‑142/12, EU:F:2013:193, para. 92, and 15 October 2014 in de Brito Sequeira Carvalho v Commission, F‑107/13, EU:F:2014:232, para. 141