JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

26 July 2014

Luigi Marcuccio

v

European Commission

‛Appeal — Civil service — Officials — Pensions and invalidity allowance — Retirement on grounds of invalidity — Invalidity Committee — Composition — Appointment of doctors — Failure on the part of the official concerned to appoint the second doctor — The second doctor appointed by the President of the Court of Justice — Appointment of a third doctor by agreement between the first and second doctors appointed — Article 7 of Annex II to the Staff Regulations — Action at first instance dismissed after referral back by the General Court’

Appeal:

against the judgment of the European Union Civil Service Tribunal (First Chamber) of 6 November 2012 in Marcuccio v Commission (F-41/06 RENV), seeking to have that judgment set aside.

Held:

The appeal is dismissed. Mr Luigi Marcuccio is to bear his own costs and is ordered to pay the costs incurred by the European Commission in the appeal proceedings.

Summary

Officials — Invalidity — Invalidity Committee — Composition — Appointment of doctors — Appointment of third doctor by agreement between the first and second doctors appointed, or, failing that, by the President of the Court of Justice — Change of doctor selected following replacement of the first and second doctors — Lawfulness (Staff Regulations, Annex II, Art. 7) Officials — Invalidity — Invalidity Committee — Composition — Appointment of doctors — Decision appointing the first third doctor not withdrawn before appointment of a new third doctor — Appointment of the new third doctor adopted following a different procedure from the decision appointing the first third doctor — Infringement of the principle of contrarius actus — None (Staff Regulations, Annex II, Art. 7) Officials — Invalidity — Invalidity Committee — Composition — Appointment of doctors — Change of doctor selected — Lawfulness (Staff Regulations, Annex II, Art. 7) Officials — Rights and obligations — Duty of loyalty — Definition — Scope — Obligation to cooperate with the Invalidity Committee if it so requests (Staff Regulations, Art. 21) Officials — Sick leave — Medical examination — Content — Administration’s discretion — Judicial review — Scope (Staff Regulations, Art. 59(1), third subpara.) Officials — Invalidity — Invalidity Committee — Observance of the secrecy of proceedings — Scope (Staff Regulations, Annex II, Art. 9, second and third paras)

According to the third paragraph of Article 7 of Annex II to the Staff Regulations, in the event of failure to agree on the appointment of a third doctor within two months of the appointment of the second doctor, the third must be appointed by the President of the Court of Justice at the request of one of the parties concerned. According to the first paragraph of Article 7, the third doctor is appointed by agreement between the two doctors appointed by the institution and the official concerned. Agreement between the two appointed doctors on the name of the third doctor takes precedence over appointment by the President of the Court of Justice, which is made and remains valid only in the absence of agreement between the two doctors in question. In particular, in a situation where a doctor originally appointed by the institution or by the official concerned or even both of those doctors are no longer available and thus have to be replaced by other doctors, it would not be in the interest of the proper conduct of the Invalidity Committee’s proceedings for the two doctors to have to keep the third doctor already appointed. As doctors appointed by the institution and the official concerned, they must be able to exercise fully the rights and powers conferred on them by the first paragraph of Article 7 of Annex II to the Staff Regulations. Those doctors must be in a position to agree on another doctor. (see paras 89, 90) In an invalidity procedure, the principle of contrarius actus is not infringed by the fact that the appointment of a new third doctor was neither preceded by the withdrawal of the decision appointing the first third doctor to the Invalidity Committee by the President of the Court of Justice, nor was it adopted according to the same procedure as the decision appointing the first third doctor. The first paragraph of Article 7 of Annex II to the Staff Regulations requires only that the third doctor be appointed by agreement between the two doctors appointed by the institution and the official concerned. The purpose of the third paragraph of Article 7 is to remedy the absence of agreement between those two doctors. Appointment of the third doctor ex officio by the President of the Court of Justice therefore takes the place, in exceptional cases, of appointment as a general rule by agreement between the two doctors in question. Consequently, appointment by the President of the Court of Justice is no different in nature from appointment by the two doctors. Thus, the appointment of the third doctor by the President of the Court of Justice does not constitute an act of a judicial nature but rather an act of an administrative nature. (see para. 93) See: T-196/95 H v Commission [1997] ECR-SC I-A-133 and II-403, para. 80 The gradual replacement of one or more members of an Invalidity Committee, ultimately even resulting in its composition being completely changed, does not automatically render the existence of that committee or its mandate inoperative. (see para. 100) In an invalidity procedure, repeated refusal to cooperate with the Invalidity Committee is not consistent with the duty of loyalty and cooperation incumbent upon every official under the first paragraph of Article 21 of the Staff Regulations. (see para. 103) See: T-146/94 Williams v Court of Auditors [1996] ECR-SC I-A-103 and II-329, para. 96 and the case-law cited therein Under the third subparagraph of Article 59(1) of the Staff Regulations, an official on sick leave may be required at any time to undergo a medical examination organised by the institution. As regards the content of that examination, it is for the medical service of the official’s institution to decide, on the basis of the official’s state of health, what type of tests is appropriate or essential, even where the tests concerned are psychiatric, and the Union judicature can only review whether there has been a manifest error. (see paras 105, 106) The third paragraph of Article 9 of Annex II to the Staff Regulations provides that the proceedings of the Invalidity Committee must be secret. The secrecy of the Invalidity Committee’s proceedings is due to their nature, content and implications of a medical origin. Consequently, it is not a breach of the third paragraph of Article 9 of Annex II to the Staff Regulations for the appointing authority to know that the Committee has delivered an opinion unanimously. (see para. 110)

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

26 July 2014

Luigi Marcuccio

v

European Commission

‛Appeal — Civil service — Officials — Pensions and invalidity allowance — Retirement on grounds of invalidity — Invalidity Committee — Composition — Appointment of doctors — Failure on the part of the official concerned to appoint the second doctor — The second doctor appointed by the President of the Court of Justice — Appointment of a third doctor by agreement between the first and second doctors appointed — Article 7 of Annex II to the Staff Regulations — Action at first instance dismissed after referral back by the General Court’

Appeal

:

against the judgment of the European Union Civil Service Tribunal (First Chamber) of 6 November 2012 in Marcuccio v Commission (F-41/06 RENV), seeking to have that judgment set aside.

Held

:

The appeal is dismissed. Mr Luigi Marcuccio is to bear his own costs and is ordered to pay the costs incurred by the European Commission in the appeal proceedings.

Summary

Officials — Invalidity — Invalidity Committee — Composition — Appointment of doctors — Appointment of third doctor by agreement between the first and second doctors appointed, or, failing that, by the President of the Court of Justice — Change of doctor selected following replacement of the first and second doctors — Lawfulness (Staff Regulations, Annex II, Art. 7) Officials — Invalidity — Invalidity Committee — Composition — Appointment of doctors — Decision appointing the first third doctor not withdrawn before appointment of a new third doctor — Appointment of the new third doctor adopted following a different procedure from the decision appointing the first third doctor — Infringement of the principle of contrarius actus — None (Staff Regulations, Annex II, Art. 7) Officials — Invalidity — Invalidity Committee — Composition — Appointment of doctors — Change of doctor selected — Lawfulness (Staff Regulations, Annex II, Art. 7) Officials — Rights and obligations — Duty of loyalty — Definition — Scope — Obligation to cooperate with the Invalidity Committee if it so requests (Staff Regulations, Art. 21) Officials — Sick leave — Medical examination — Content — Administration’s discretion — Judicial review — Scope (Staff Regulations, Art. 59(1), third subpara.) Officials — Invalidity — Invalidity Committee — Observance of the secrecy of proceedings — Scope (Staff Regulations, Annex II, Art. 9, second and third paras)