JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

15 December 2011

Case F‑30/10

Philippe de Fays

v

European Commission

(Civil service – Officials – Social security – Insurance against the risk of accident and of occupational disease – Article 73 of the Staff Regulations – Refusal to recognise the occupational origin of a disease)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr de Fays principally seeks annulment of the Commission’s decision refusing to recognise the occupational origin of the disease from which he suffers.

Held: The action is dismissed. The applicant is to pay all the costs.

Summary

1. Officials – Actions – Purpose – Ruling – Inadmissibility

(Staff Regulations, Art. 91)

2. Officials – Actions – Action against a decision rejecting a complaint – Effect – Referral of contested decision to the Tribunal – Exception – Decision not confirmatory in nature

(Staff Regulations, Arts 90 and 91)

3. Officials – Social security – Insurance against the risk of accident and of occupational disease – Expert medical report – Discretion of the Medical Committee – Limits

(Rules on insurance against the risk of accident and of occupational disease, Art. 22(3), first para.)

4. Officials – Social security – Insurance against the risk of accident and of occupational disease – Expert medical report – Discretion of the Medical Committee – Judicial review – Limits – Obligation to state reasons – Scope

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 22)

5. Officials – Social security – Insurance against the risk of accident and of occupational disease – Expert medical report – Composition of the Medical Committee – Requirement for members to be specialised – None

(Rules on insurance against the risk of accident and of occupational disease, Art. 22(1), third para.)

1. It is not for the Courts of the European Union to make rulings in the abstract in the context of a review of legality based on Article 91 of the Staff Regulations. Heads of claim in which the applicant requests the Union judicature to declare him unfit to work because of an occupational disease are therefore inadmissible.

(see para. 43)

See:

12 June 2002, T‑187/01 Mellone v Commission, para. 16

16 May 2006, F‑55/05 Voigt v Commission, para. 25, and the case-law cited therein

2. The administrative complaint and its rejection, whether express or implied, constitute an integral part of a complex procedure and are no more than a precondition for bringing the matter before the judicature. That being so, the action, even if formally directed against the rejection of the complaint, has the effect of bringing before the court the act adversely affecting the applicant against which the complaint was lodged, except where the rejection of the complaint has a different scope from that of the measure against which the complaint was lodged. An express decision rejecting a complaint may, in the light of its content, not be confirmatory of the measure contested by the applicant. That is the case where the decision rejecting the complaint contains a re-examination of the applicant’s situation in the light of new elements of law or of fact, or where it changes or adds to the original decision. In such cases, the rejection of the complaint constitutes a measure subject to review by the court, which will take it into consideration when assessing the lawfulness of the contested measure, and may even regard it as an act adversely affecting the complainant and replacing the contested measure.

(see para. 45)

See:

28 May 1980, 33/79 and 75/79 Kuhner v Commission, para. 9; 17 January 1989, 293/87 Vainker v Parliament, paras 7 and 8

12 December 2002, T‑338/00 and T‑376/00 Morello v Commission, para. 35; 10 June 2004, T‑258/01 Eveillard v Commission, para. 31; 14 October 2004, T‑389/02 Sandini v Court of Justice, para. 49; 7 June 2005, T‑375/02 Cavallaro v Commission, paras 63 to 66; 25 October 2006, T‑281/04 Staboli v Commission, para. 26

9 December 2009, T‑377/08 P Commission v Birkhoff, paras 50 to 59 and 64; 21 September 2011, T‑325/09 P Adjemian and Others v Commission, para. 32

3. It follows from the first paragraph of Article 22(3) of the Rules on the insurance of officials against the risk of accident and of occupational disease that, for the Medical Committee to be able properly to issue a medical opinion, it must be able to examine all the documents liable to be of use to it in its assessment. The Medical Committee may request additional examinations and consult experts in order to complete the case entrusted to it, or obtain opinions which are necessary for carrying out its task.

Furthermore, where it is apparent that, in the light of the particular complexity of the medical questions referred to it, the file before it does not contain the clear and consistent data it needs to carry out its task, it is for the Medical Committee to collect all the information necessary for its assessment. In that respect, where the members of the Medical Committee do not have specific knowledge of the diseases at issue, the Medical Committee must obtain any documents liable to be of use as a basis for its assessment and, where appropriate, request additional examinations and consult experts who are specialists in those diseases.

(see paras 63-65)

See:

15 December 1999, T‑300/97 Latino v Commission, para. 70

4. The duty of the Medical Committee provided for in Article 22 of the Rules on the insurance of officials against the risk of accident and of occupational disease to assess medical questions entirely objectively and independently requires, first, that the Committee has available to it all the information it might need and, second, that it has full discretionary power. The medical assessments, properly speaking, made by the Medical Committee must be regarded as definitive where they have been issued under proper conditions.

The Union Courts have the power to ascertain whether the Medical Committee’s opinion on recognition of the occupational origin of a disease 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. Furthermore, 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 institution, it must indicate in its opinion the factors 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.

(see paras 73, 89)

See:

14 September 2010, F‑79/09 AE v Commission, paras 64 and 65, and the case‑law cited therein

5. The Rules on the insurance of officials against the risk of accident and of occupational disease do not lay down any particular specialisation requirement either for the doctor appointed by the official concerned or for the doctor appointed by the appointing authority. The only requirement concerns the third doctor, who must, under the third paragraph of Article 22(1) of the Rules, have expertise in assessing and treating bodily injury. Consequently, it cannot reasonably be claimed that a Medical Committee was improperly constituted solely on the ground that its members did not have knowledge relating to the diseases at issue.

(see paras 83, 84)