JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

23 November 1995

Case T-64/94

Dimitrios Benecos

v

Commission of the European Communities

‛Officials — Occupational disease — Partial permanent invalidity — Principle of sound management and good administration — Duty to provide assistance — Misuse of powers — Action for compensation’

Full text in French II-769

Application for:

annulment of the decision of the Commission of 15 March 1993 rejecting the application for recognition that the applicant suffers from an occupational disease; an award of damages by way of compensation for the material and nonmaterial damage which the applicant claims to have suffered.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, who was appointed an official of the Commission in January 1983, has been afflicted with astigmatic myopia since adolescence. At the end of May 1989, while suffering a temporary incapacity for work, he applied for recognition of his condition as an occupational disease pursuant to Article 73 of the Staff Regulations of Officials of the European Communities (the Staff Regulations) and to the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease (the Insurance Rules).

After expressing his disagreement with a draft decision finding that he had no entitlement under Article 73 of the Staff Regulations, the applicant requested that the matter be referred to the Medical Committee provided for by Article 23 of the Insurance Rules. Considering the Medical Committee's findings to be insufficiently clear on the question of the occupational origin of the condition at issue, the appointing authority first sought the advice of the insurers and then asked the Committee to reconvene. Before the Committee drew up its second report, the applicant, on his own initiative, contacted its chairman to say that his state of health had improved. On the basis of the second medical report, the applicant was informed that, although his condition could be regarded as crystallized, he could not on that account be deemed to suffer from partial permanent invalidity.

Following the rejection of his complaint against that decision and after being awarded an invalidity pension for the period during which he had been unable to perform the duties corresponding to a post in his grade, the applicant brought the present proceedings.

Substance

1. Tìxe plea alleging infringement of Article 73 of the Staff Regulations and of the Insurance Rules

According to settled case-law, the Commission may not question findings of a medical nature made by the Medical Committee or substitute for them its own assessment, and must do no more than determine the legal consequences to which those findings give rise. Medical assessments properly so-called, formulated by the Medical Committee, are to be regarded as definitive provided that they have been arrived at in accordance with correct procedure. Review by the Court is confined to questions concerning the proper constitution and modus operandi of such committees, and the formal correctness of the opinions they issue (paragraph 42).

See: 156/80 Morbelli v Commission [1981] ECR 1357, paras 18 and 20; 265/83 Suss v Commission [1984] ECR 4029. paras 9 to 15; 76/84 Rienzi v Commission [1987] ECR 315, para. 11; 2/87 Biedermann* Court of Auditors [1988] ECR 143. para. 8; C-185/90 P Commission v Gill [1991] ECR I-4779. para. 24; T-154/89 Vidrányi v Commission [1990] ECR II-445, para. 48 T-122/89 F. v Commission [1990] ECR II-517. paras 14 to 16; T-88/91 F. v Commission [1993] ECR II-13, para. 39; T-556/93 Saby v Commission [1995] ECRSC II-375, paras 35 and 40

In its first report, the Medical Committee expressed the opinion that the eye problems considered as a whole, comprising both organic disease and functional disorders, could only in part be attributed to occupational disease, but failed to specify in what measure. The appointing authority was thus left with no clear answer to the question whether the duties performed by the applicant at the Commission constitute the essential or predominant cause of his eye problems or of the aggravation of preexisting eye problems. The appointing authority acted properly, therefore, in not taking a decision on the application for recognition of an occupational disease, but requesting further clarification from the Medical Committee (paragraphs 45 and 46).

In its second report, the Medical Committee found that the applicant's invalidity rate had decreased. The Committee also defined its position with regard to the origin of the applicant's ophthalmic pathology, stating that, since the invalidity rate was entirely attributable to an organic disease, his condition could not be occupational in origin (paragraph 47).

The Court notes that the terms of reference established by the appointing authority for the second medical report clearly state that only the difference between the invalidity rate at the time when the applicant took up his duties and the invalidity rate at the time when his condition became crystallized is to be taken into account in order to determine the invalidity rate resulting from the aggravation of the applicant's eye problems. The applicant's argument that the Medical Committee added a paragraph extraneous to the terms of reference when assessing the invalidity rate at the time when he took up his duties, thereby venturing beyond the specific questions put by the appointing authority, must be rejected. The appointing authority was under a duty to take into consideration the second medical report in its entirety (paragraphs 48 and 49).

The Court observes that the terms of reference established by the appointing authority for the second report disclose that the appointing authority regarded the distinction between organic disease and functional disorders as irrelevant. The important question was whether the aggravation of the applicant's eye problems, considered as a whole, was of occupational origin. It follows that the appointing authority was under no obligation to put questions to the Medical Committee regarding the distinction it had drawn (paragraphs 50 and 51).

Furthermore, according to the case-law cited above, medical assessments properly so-called, formulated by a medical committee, must be regarded as definitive provided that they have been arrived at in accordance with correct procedure. There is nothing in the documents before the Court to suggest that the assessments formulated by this Medical Committee were not arrived at in accordance with correct procedure. Consequently, the fact that the distinction between organic disease and functional disorders is contested in another medical report is irrelevant. The plea must therefore be rejected (paragraphs 52 and 53).

2. Tlxe plea alleging breach of the principle of sound management and good administration

The Court finds that, even though the appointing authority amended the Medical Committee's terms of reference on several occasions and, on that account, the procedure was prolonged, it was justified in so doing by the circumstances of the case. It is evident on reading the various reports submitted by the Medical Committee that determination of the origin of the applicant's eye problems was a very difficult undertaking, in view of the complexity of the medical questions involved, which explains why the appointing authority had to issue terms of reference for the Medical Committee on a number of occasions in order to obtain a clear answer on that point. It must be held, therefore, that the applicant has failed to adduce any evidence to show that the Commission acted in breach of the principle of sound management and good administration (paragraphs 58 and 59).

See: T-132/89 Gallone v Council |1990] ECR II-549. para. 44

3. Tlie plea alleging breach of the duly to provide assistance

The duty to provide assistance laid down by Article 24 of the Staff Regulations also exists in cases in which the perpetrator of the acts envisaged by that provision is another official of the Communities. Nevertheless, it is established case-law that Article 24 is concerned with the defence of officials by the institution against the acts of third parties and not against the acts of the institution itself, the review of which is governed by other provisions of the Staff Regulations (paragraphs 64 and 65).

See: 18/78 Mrs V. v Commission [1979] ECR 2093. para. 15; 178/80 Bellardi-Ricci and Others v Commission [1981] ECR 3187. para. 23; 98/81 Munk v Commission [1982] ECR 1155; 191/81 Plug v Commission [1982] ECR 4229; T-24/91 Gómez González and Others v Coimai [1992] ECR II-1881. para. 58; T-25/91 Arto Hijos v Council [1992] ECR II-1907, para. 58; T-45/91 McAvoy v Parliament [19931 ECR II-83, para. 60; T-5/92 Tallarico v Parliament [1993] ECR II-477. para. 30

It is common ground that the decision contested in the present application is an act of an institution, namely the Commission. Article 24 is therefore not applicable in this case (paragraph 66).

4. The plea alleging misuse of powers

The Court notes, first, that the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred upon it and, secondly, that according to established case-law a decision is vitiated by misuse of powers only where it appears, on the basis of objective, relevant and consistent evidence, to have been taken for purposes other than those stated (paragraph 76).

See: T-146/89 Williams v Court of Auditors [1991] ECR II-1293, paras 87 and 88; T-80/92 Turner v Commission [1993] ECR II-1465, para. 70; T-586/93 Kotzonis v ESC [1995] ECRSC II-203, para. 73

The Court notes, first, that the third paragraph of Article 20 of the Insurance Rules states that the appointing authority is to grant a provisional allowance ‘corresponding to the undisputed proportion of the permanent invalidity rate’, where the degree of invalidity is considered to amount to at least 20%. However, it is clear from the arguments put forward by the parties that the invalidity rate was in dispute. Consequently, the applicant is wrong in alleging that the appointing authority could have granted him a provisional allowance (paragraph 78).

Secondly, the Invalidity Committee's opinion recognizing that the applicant's temporary invalidity is occupational in origin concerns temporary, not permanent, invalidity. Article 25 of the Insurance Rules states that ‘recognition of total or partial permanent invalidity pursuant to Article 73 of the Staff Regulations and to these Rules shall in no way prejudice application of Article 78 of the Staff Regulations and vice versa’. It follows that, in the present case, the Invalidity Committee's opinion is irrelevant (paragraph 79).

The Court points out that contacts between the appointing authority and the insurers do not in themselves constitute an irregularity. In any event, a procedural irregularity will not in principle entail annulment of a decision in whole or in part unless it is shown that, in the absence of such irregularity, the contested decision might have been substantively different. There is nothing in the documents before the Court in the present case to suggest that the contacts which took place between the appointing authority and the insurers could have influenced the contested decision (paragraph 80).

See: 209/78 to 215/78 and 218/78 Van Landenyck and Others v Commission [1980] ECR 3125; 150/84 Bernardi v Parliament [1986] ECR 1375, para. 28; Biedermann v Court of Auditors, cited above, para. 12; T-31/89 Sabbatucci v Parliament [1990] ECR II-265. para. 3; T-l/92 Tallarico v Parliament [1993] ECR II-107. paras 32 and 47

Examination of all the matters relied on by the applicant shows that the Commission has not used its powers for a purpose other than that for which they were conferred upon it (paragraph 81).

5. The claim for compensation

The Court points out that a claim for compensation is a separate form of action and that, pursuant to Article 91(1) of the Staff Regulations, the Court has unlimited jurisdiction in disputes of a financial character (paragraph 87).

In the present case, however, the claim for compensation is closely linked to the action for annulment. Since consideration of the pleas in law put forward in support of the action for annulment has not disclosed any unlawful act on the part of the Commission, and since therefore it has not been shown that the Commission has been guilty of a fault such as to cause it to incur liability, the claim for compensation must also be rejected (paragraph 88).

The applicant also asks the Court to appoint a medical specialist as an expert in order to resolve the doubts and contradictions surrounding his invalidity and the question whether the aggravation and deterioration of his condition may be ascribed to an occupational disease. It must be held, first, that that request is based on arguments adduced in connection with the preceding pleas in law and is not supported by any fresh argument and, secondly, that consideration of those pleas has shown that there is no reason to question the finding of the Medical Committee. The request cannot therefore be granted (paragraphs 89 and 90).

It follows from all the foregoing considerations that the application must be dismissed in its entirety (paragraph 91).

Operative part:

The application is dismissed.