JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

26 February 2003

Case T-145/01

Benito Latino

v

Commission of the European Communities

‛Officials — Occupational disease — Validity of the opinion of the Medical Committee — Evidence of the occupational origin of the disease — Scientific uncertainty — Proper conduct of the procedure preceding the reference to the Medical Committee’

Full text in French II-337

Application for:

the annulment of the decision of the Commission of 10 August 2000 rejecting the applicant's request that it acknowledge the occupational origin of his arthritic symptoms and charging to the applicant the fees and incidental expenses of the doctor appointed by the applicant to the Medical Committee and half of the fees and incidental expenses of the third doctor making up the committee.

Held:

The decision of the Commission of 10 August 2000 is annulled insofar as it charges to the applicant the fees and incidental expenses of the doctor appointed by the applicant to the Medical Committee and half of the fees and incidental expenses of the third doctor. The remainder of the application is dismissed. The parties are ordered to bear their own costs.

Summary

Officials — Social security — Insurance against accident and occupational disease — Determination of the occupational origin of the illness — Burden of proof on the official — Illness not included in the European List of Occupational Diseases — Insufficient evidence of the potential effect of the performance of duties on the development of a multifactorial illness

Under the Rules on the insurance of officials of the European Communities against the risk of accident and occupational disease, the task entrusted to the Medical Committee of considering medical questions entirely objectively and independently requires that it have all the information likely to be useful to it, and that it be allowed complete freedom of appraisal. The medical assessments, properly speaking, must be regarded as definitive where they have been issued under proper conditions. The Court can only review whether the Medical Committee was properly established and operated correctly and whether its opinion was regular, in particular whether it contained reasons enabling the reader to assess the considerations on which it is based and whether it has established a comprehensible link between the medical findings which it contains and the conclusions reached. In particular, 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 a Community 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 47-48) See: T-27/98 Nardone v Commission [1999] ECRSC I-A-267 and II-1293, paras 30, 68, 87 and 88; T-300/97 Latino v Commission [1999] ECRSC I-A-259 and II-1263, para. 41; T-84/98 C v Council [2000] ECRSC I-A-113 and II-497, para. 43; T-47/97 Plug v Commission [2000] ECRSC I-A-119 and II-527, para. 117

In so far as a given illness is likely to result from a number of different factors (multifactorial illness), recognition of the occupational origin of an official's illness does not presuppose that it is caused essentially or preponderantly by the performance of his duties in the service of the Communities. Where the illness has several causes, occupational and non-occupational, which have each contributed to its appearance, it is for the Medical Committee to determine whether the performance of his duties — whatever assessment might be made of that factor's significance in relation to the non-occupational factors — bears a direct relation to the official's illness. Where there is a multifactorial illness whose possible occupational origin is, as scientific knowledge now stands, difficult or even impossible to prove in an individual case, unless there are special circumstances, the Medical Committee is entitled to take into consideration, where relevant, the results of an epidemiological study that may show, on the basis of statistical data, whether and to what extent there is generally a causal link between the performance of a given occupational activity and the appearance, aggravation or acceleration of that illness. The Medical Committee is fully entitled, where appropriate, and provided that it was conducted using rigorous methods, to take the results of such a study as a basis for concluding that such a causal link in all probability exists in a particular case. Such a medical finding would be sufficient to establish satisfactorily that a causal link exists, in accordance with the provisions of Article 3(2) of the Insurance Rules. Under the ordinary law of evidence, proof may be furnished by any means, in particular by advancing solid, precise and consistent evidence showing that, in the case in question, the occupational origin of the condition is objectively likely and may reasonably be presumed. (see paras 50-52) See: T-4/96 S v Court of Justice [1997] ECR II-1125, paras 79 and 80

Where the Medical Committee concludes that it is impossible, as scientific knowledge now stands, to prove the occupational origin of the disorder from which an official is suffering, the question of whether that condition may nevertheless be classed as an occupational disease for the purposes of Article 73 of the Staff Regulations is solely a matter for the administration, subject to review by the Community judicature. Article 3 of the Insurance Rules establishes two sets of rules governing insurance for occupational illnesses. Article 3(1) provides that, where the illness is contained in the ‘European List of Occupational Diseases’ annexed to the Commission Recommendation of 22 May 1990 (OJ 1990 L 160, p. 39) or any supplements thereto, it shall be considered an occupational disease. It is then sufficient for the official concerned to prove that he has been exposed, in the course of his duties with the Communities, to the risk of contracting that disease. Any uncertainty as to the causal link between the performance of his duties and the disease cannot rebut this presumption in law, which derogates from the ordinary law of evidence and may not therefore be given a wide interpretation. However, under Article 3(2) of the Insurance Rules, it is for the official concerned to use all means to furnish evidence that a causal link exists. Although the fact that it is in some cases impossible to prove such a link may lead to unfair situations, mere proof that the performance of duties with the Communities has a potential effect on the appearance, aggravation or acceleration of a multifactorial disorder does not permit the inference that the occupational origin of that disorder is established with sufficient certainty. In that context, the Court may not assume the role of the legislature in accepting that, in the case of certain multifactorial illnesses, the official concerned must have the benefit of the doubt where it is objectively impossible to determine on the one hand whether the performance of those duties did actually influence the deterioration in the official's health, and on the other hand to what extent that performance contributed — in relation to any non-occupational factors — to that deterioration. (see paras 81, 83-84,86-87) See: 76/84 Rienzi v Commission [1987] ECR 315, paras 9 to 12; C-185/90 P Commission v Gill [1991] ECR I-4779, paras 17 and 18; T-154/89 Vidrányi v Commission [1990] ECR II-445, para. 48; T-2/00 N v Commission [2001] ECR-SCI-A-37 and II-135, para. 41

As regards the fees and incidental expenses of doctors who are members of the Medical Committee, the last paragraph of Article 23(2) of the Insurance Rules provides that, in exceptional cases and by decision of the appointing authority taken following the opinion of its appointed doctor, all such fees and incidental expenses may be paid by the institution. That provision allows the appointing authority a broad discretion. However, in a case where there is scientific uncertainty surrounding the origin of the disorder in question and where, according to the Medical Committee, its occupational origin cannot be excluded and is even ‘possible’, the duty of care, which requires the competent authority to take into consideration the interests not just of the service, but also of the official concerned, obliges it to contemplate applying that provision in the official's favour. In refraining from obtaining the opinion of the doctor which it has appointed to the Medical Committee before deciding to charge the official the fees and incidental expenses of the doctor appointed by him and half the fees and incidental expenses of the third doctor, the institution fails to comply with the obligations arising from its duty of care to the official and the principle of sound administration. (see paras 92-93)

It is for the legislature to determine the rules governing insurance against occupational illness. Article 73(1) of the Staff Regulations refers only to the principle of such insurance, subject to rules drawn up by common agreement of the institutions. Even if the institutions had the possibility of adopting by common agreement an approach that is more favourable to persons suffering from a multifactorial illness whose origin cannot be proved with sufficient certainty, making such cover dependent, under Article 3(2) of the Insurance Rules, on evidence of the probable existence of a causal link between the performance of duties for the Communities and the development, acceleration or aggravation of the illness is not incompatible with the principle of insurance as set out in Article 73(1) of the Staff Regulations, which specifically makes enjoyment of that guarantee subject to the conditions defined in the Insurance Rules. The Community institutions are not required either by the principle of proportionality or by the duty of care to grant benefits intended to cover the risks of occupational illness where the existence of only a potential causal link between the performance of duties in the service of the Communities and the illness has been established, when it is highly probable, as scientific knowledge now stands, that the illness results from a cause that has nothing to do with the performance of those duties. (see paras 95-96)