JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

14 September 2011





Case F-12/09





A

v

European Commission

(Civil service – Officials – Occupational disease – Relationship between the procedures provided for in Articles 73 and 78 of the Staff Regulations – Provisional compensation – Reimbursement of medical expenses – Access to the individual file)

Application: brought under Articles 236 EC and 152 EA, whereby A seeks, in essence, annulment of the decision of 28 April 2008 whereby the appointing authority refused to adjudicate on the ‘implementation’ with regard to the applicant of Article 73(2)(b) of the Staff Regulations; annulment of the decision of 29 May 2008 whereby the appointing authority refused to communicate to the applicant a number of documents forming part of, or that ought to have formed part of, his medical file; annulment of the decisions of 29 May 2008 and 14 July 2008 refusing to reimburse certain travel expenses; compensation for the harm caused to the applicant by a series of errors alleged to have been committed by the Commission in the management of the procedure for the recognition of the occupational origin of his sickness.

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

Summary

1. Officials – Social security – Insurance against the risk of accident and of occupational disease – Invalidity – Compensation – Right to payment – Conditions – Consolidation of all the injuries

(Staff Regulations, Arts 73 and 2; Rules on Insurance against the Risk of Accident and of Occupational Disease, Arts 19(3) and (4))

2. Officials – Actions – Prior administrative complaint – Complaints based on the same grounds but having a legally distinct purpose – Admissibility

(Staff Regulations, Arts 90 and 91)

3. Officials – Social security – Insurance against the risk of accident and of occupational disease – Incapacity for work – 100% permanent invalidity – Distinct concepts

(Staff Regulations, Arts 73 and 78)

4. Officials – Social security – Insurance against the risk of accident and of occupational disease – Establishing whether a disease results from an official’s occupation – Procedure – Access by the official to the documents in the medical file – Indirect access

(Staff Regulations, Arts 26 and 73; Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease, Art. 17)

5. Officials – Social security – Insurance against the risk of accident and of occupational disease – Reimbursement of costs

(Staff Regulations, Arts 72 and 73(3); Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease, Art. 9)

1. Under Article 19(3) of the Rules on the Insurance of Officials against the Risk of Accident and of Occupational Disease, the decision defining the degree of invalidity is to be taken after the insured party’s injuries have consolidated. The right to payment of the compensation provided for in the event of total permanent invalidity and of partial permanent invalidity, referred to in Article 73(2)(b) and (c) respectively of the Staff Regulations, can therefore arise only after the insured party’s injuries have consolidated.

However, Article 19(4) of the Insurance Rules states that, where an occupational disease is confirmed, the appointing authority is to grant a provisional allowance corresponding to the undisputed proportion of the permanent invalidity rate, which is to be set off against the final benefit. Although the wording of Article 19(4) of the Insurance Rules does not expressly so provide, it follows from a systematic interpretation of that provision that it must be considered to apply where an occupational disease has been recognised, but where the consequences of that disease have not yet consolidated. Article 19(4) of the Insurance Rules follows immediately after Article 19(3) of those rules, according to which the decision defining the degree of invalidity is to be taken after the insured party’s injuries have consolidated.

It follows from those provisions that where the administration has recognised the occupational origin of an insured party’s disease, its obligations differ according to whether or not that disease has consolidated. If it has, the administration is under an obligation to determine the effect on the insured party’s physical and mental integrity. That obligation is without prejudice to the decision which the administration must take in that regard, in so far as it is foreseeable that an insured party may have an occupational disease without suffering such an effect. If the disease has not consolidated, the administration is under an obligation to consider whether the insured party is suffering from an undisputed proportion of permanent invalidity which will entitle him to payment of provisional compensation. There, too, the obligation borne by the administration is without prejudice to the decision which it must take in that regard, since it cannot be precluded that such an examination will lead to the finding that there is no proportion of permanent invalidity that is already definitive.

Thus, where the administration has recognised the occupational origin of an insured party’s disease, it is under an obligation to adopt a position on the pecuniary rights determined by Article 73(2) of the Staff Regulations and Article 19(4) of the Insurance Rules. The administration would not exhaust the powers conferred on it by Article 73 of the Staff Regulations and the Insurance Rules if, on an application by an insured party for recognition of the occupational origin of his disease, it confined itself to conferring such recognition, without establishing the possible financial consequences.

(see paras 99-102)

See:

17 February 2011, F-119/07 Strack v Commission, para. 89

2. An official is at liberty to rely on the same plea, the same argument or the same fact in support of several complaints which are legally distinct as regards their subject-matter.

(see para. 136)

See:

13 January 2010, F-124/05 and F-96/06 A and G v Commission, para. 205

3. There is a fundamental distinction between permanent invalidity within the meaning of Article 78 of the Staff Regulations, a concept equivalent to incapacity for work, thus justifying the grant of a replacement income in the form of an invalidity allowance, and permanent invalidity within the meaning of Article 73 of the Staff Regulations, equivalent to an adverse effect on physical and mental integrity, without its necessarily being a question of incapacity for work and thus payment of a replacement income. Consequently, to be totally unfit for work – an incapacity covered by Article 78 of the Staff Regulations – and to be afflicted by total permanent invalidity within the meaning of Article 73 of the Staff Regulations are two completely different things. While total invalidity within the meaning of Article 73 generally entails total incapacity for work, the converse is not necessarily true, since an official may be totally unfit for work within the meaning of Article 78 while suffering only a very low level of partial permanent invalidity within the meaning of Article 73.

(see paras 149, 150)

See:

27 June 2000, T-47/97 Plug v Commission, paras 73 and 74

4. Article 26 of the Staff Regulations provides that a personal file is to be maintained for each official, containing all documents concerning his administrative status and all reports relating to his ability, efficiency and conduct, together with any comments by the official on such documents. Documents may not be used or cited by the institution against an official unless they were communicated to him before being filed. The purpose of those provisions is to guarantee the official’s right of defence.

As regards access to documents of a medical nature in the context of a procedure for recognition of occupational disease, the Rules on insurance against the risks of accident and occupational disease of officials have established a specific procedure under which the complete medical report on which the decision which the appointing authority proposes to take is based is sent to the doctor chosen by the official and an appeal lies to a Medical Committee of which the doctor designated by the official forms part. Respect for the official’s rights requires that he be granted a means of access to documents of a medical nature concerning him. That right of access afforded to the official must, however, be reconciled with the requirements of medical confidentiality, which make every doctor the judge of whether he can inform the persons whom he is treating or examining of the nature of the illnesses from which they may be suffering. By providing for indirect access to documents of a medical nature through the interposition of a doctor appointed by the official, the Insurance Rules reconcile the rights of the official with the requirements of medical confidentiality.

Respect for the rights of the official requires that he be recognised as having a means of access not only to documents of a medical nature but also to the findings of fact that serve as a basis for the proposed decision. Hence, documents relating to the findings of fact concerning an incident at work which may serve as a basis for the procedure for the recognition of the existence of an accident at work or an occupational disease within the meaning of the Insurance Rules must also be recognised as being of a medical nature.

Moreover, the fact that certain documents are of a medical nature does not mean that such documents may not, in an appropriate case, affect the official’s administrative status. If that is the case then those documents must appear in the personal file of the person concerned.

Thus, first, the file which serves as a basis on which the doctor appointed by the institution or the Medical Committee appraises the occupational nature of a disease is of a medical nature and, accordingly, may be consulted only indirectly through the interposition of a doctor appointed by the official; and, second, factors of an administrative nature which may appear in that file and have an influence on the administrative status of the official must also appear in the personal file where, pursuant to Article 26 of the Staff Regulations, the official may consult them directly. All the documents submitted to the doctor appointed by the institution or to the Medical Committee thus come within the scheme for which the Insurance Rules provide. It is therefore necessary to place some of those documents in the official’s personal file, making it possible for him to acquaint himself with them, only where those documents are used for the appraisal or alteration of the official’s administrative status by the administration to which he belongs.

(see paras 189-195)

See:

28 June 1972, 88/71 Brasseur v Parliament, para. 11; 7 October 1987, 140/86 Strack v Commission, paras 7 and 9 to 13; 1 October 1991, C-283/90 P Vidrányi v Commission, paras 20 to 22, 24 and 25

12 July 1990, T-154/89 Vidrányi v Commission, paras 33 and 36; 3 March 2004, T-48/01 Vainker v Parliament, paras 136 and 137

5. Although the second subparagraph of Article 73(3) of the Staff Regulations provides that reimbursement of the expenses necessitated by the occupational disease is to be made only after exhaustion of and in addition to those which the official will receive under Article 72 of the Staff Regulations, the third subparagraph of Article 9(1) of the Rules on the insurance of officials against the risks of accident and occupational disease provides that the expenses necessitated by an accident are to be repaid after the assumption by the sickness insurance scheme provided for in Article 72 of the Staff Regulations of the proportion to be borne by that scheme in the conditions provided for therein.

Accordingly, both Article 73(3) of the Staff Regulations and the third subparagraph of Article 9(1) of the Insurance Rules must be interpreted as meaning that they provide only for additional repayment of the expenses incurred for services covered by Article 72 of the Staff Regulations, after repayment of the proportion of the expenses borne by the sickness insurance scheme. The accident insurance scheme is supplementary and thus does not provide for any reimbursement of expenses incurred for benefits which are not covered by the sickness insurance scheme and thus do not give rise to any payment by the sickness insurance scheme.

(see paras 206-207)

See:

1 December 2010, F-89/09 Gagalis v Council, para. 42