JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

6 November 2012

Case F‑41/06 RENV

Luigi Marcuccio

v

European Commission

(Civil service — Officials — Referral back to the Tribunal after setting aside — Invalidity — Retirement on the grounds of invalidity — Composition of the invalidity committee — Lawfulness — Conditions)

Application: initially brought under Articles 236 EC and 152 EA, referred back to the Tribunal by judgment of 8 June 2011 in Case T‑20/09 P Commission v Marcuccio (‘the referring judgment’), setting aside in part the judgment of 4 November 2008 in Case F‑41/06 Marcuccio v Commission (‘the original judgment’), in which a ruling had been given on the action lodged at the Registry of the Tribunal on 12 April 2006, in which Mr Marcuccio sought, first, annulment of the Commission’s decision of 30 May 2005 retiring him on grounds of invalidity and of a number of measures related to that decision and, secondly, an order that the Commission pay him damages.

Held: The action is dismissed. The applicant is to bear his own costs and to pay those incurred by the Commission in Cases F‑41/06, F‑41/06 RENV and T‑20/09 P.

Summary

1. Actions brought by officials — Plea alleging lack of competence on the part of the body which adopted the act adversely affecting the official, infringement of an essential procedural requirement and inadequate reasoning — Plea involving a matter of public policy

2. Officials — Individual decision — Internal administrative decision — Obligation to clarify which internal statutory provisions apply with regard to deputising — None

(Art. 253 EC; Staff Regulations, Art. 25)

3. Officials — Invalidity — Invalidity committee — Official’s procedural rights

(Staff Regulations, Annex II, Arts 7 and 9)

4. Officials — Invalidity — Invalidity committee — Composition — Judicial review — Scope

(Staff Regulations, Annex II, Art. 7)

5. Officials — Invalidity — Invalidity committee — Composition — Resignation of doctor representing the official — Obligation on the other members of the committee or on the institution to ensure that the official is aware of the resignation — None — Exceptions

(Staff Regulations, Annex II, Art. 7)

6. Officials — Rights and obligations — Duty of loyalty — Definition — Scope — Obligation to appear before the invalidity committee if it so requests

(Staff Regulations, Art. 21)

7. Officials — Invalidity — Referral to the invalidity committee — Power narrowly defined by Article 59 of the Staff Regulations

(Staff Regulations, Art. 59(4))

8. Officials — Invalidity — Invalidity committee — Composition — Appointment of doctors — Alteration of choice — Whether permissible

(Staff Regulations, Annex II, Art. 7)

9. Officials — Sick leave — Medical examination — Content — Administration’s discretion — Judicial review — Scope

(Staff Regulations, Art. 59(1) and (4))

10. Officials — Invalidity — Invalidity committee — Composition — Replacement of the third doctor appointed ex officio by the President of the Court of Justice by a doctor chosen by mutual agreement by the two other doctors — Whether permissible — Conditions

(Staff Regulations, Annex II, Art. 7)

11. Officials — Social security — Invalidity pension — Possibility for the invalidity committee to monitor regularly how the official’s situation is developing — Scope

(Staff Regulations, Annex VIII, Art. 15)

12. Officials — Invalidity — Invalidity committee — Observance of the secrecy of proceedings — Scope

(Staff Regulations, Arts 26a and 78, fifth para., and Annex II, Art. 9, second and third paras)

1. Pleas alleging lack of competence on the part of the body which adopted the act adversely affecting an official, infringement of essential procedural requirements and the failure to state reasons, or to state adequate reasons, for a contested decision constitute matters of public policy which the European Union judicature must examine of its own motion.

(see para. 65)

See:

8 December 2011, C‑386/10 P Chalkor v Commission, para. 64

8 July 2010, T‑160/08 P Commission v Putterie-De-Beukelaer, para. 61 and the case-law cited

2. An institution is not required, in an internal administrative decision addressed by its services to one of its officials, to give specific references to internal statutory provisions relating to the system of deputising or, a fortiori, to cite the content of those provisions.

(see para. 74)

3. The proceedings of an invalidity committee do not take place within the context of an inter partes administrative procedure instituted against an official, nor are they intended to settle a dispute between the administration and its employee. The purpose of the proceedings of an invalidity committee is to produce medical findings enabling the administration to decide whether and to what extent the official concerned is affected by invalidity. Accordingly, the hearing of the official by such a committee is not required by the principles relating to the rights of the defence.

On the other hand, in the context of special administrative procedures such as the procedure to establish invalidity, the official concerned may claim procedural rights specific to such procedures that are separate from the rights of defence.

Thus, during the proceedings of an invalidity committee, the interests of the official are, in the first place, represented and safeguarded by the presence on the committee, under Article 7 of Annex II to the Staff Regulations, of the doctor representing him. Secondly, the appointment of the third doctor by agreement between the two members appointed by the parties or, if they fail to agree, by the President of the Court of Justice, constitutes a guarantee of impartiality in the conduct of the proceedings of the invalidity committee. Thirdly, under Article 9 of Annex II to the Staff Regulations, the official concerned may submit to the invalidity committee any reports or certificates from medical practitioners whom he may have consulted.

(see paras 79-81)

See:

19 January 1988, 2/87 Biedermann v Court of Auditors, paras 10 and 16

16 May 2012, F‑42/10 Skareby v Commission, para. 48

4. Owing to the importance of the role and the powers which the relevant provisions of the Staff Regulations confer on the invalidity committee, the Courts of the European Union are required to exercise strict review of the rules relating to the establishment and proper functioning of that committee. At the forefront of these is the rule contained in Article 7 of Annex II to the Staff Regulations, which ensures that the rights and interests of officials will be safeguarded by the presence on the committee of a doctor who has their trust. The existence of the conditions justifying the appointment of that doctor ex officio by the President of the Court of Justice must therefore be reviewed carefully, taking into account not only the conduct of the official concerned but also all the relevant information made available to the European Union Court.

(see para. 85)

See:

21 March 1996, T‑376/94 Otten v Commission, para. 47

5. The information which, in the context of a procedure to establish invalidity, the official and the doctor appointed by him to represent him on the invalidity committee may exchange between them, with regard in particular to the existence or maintenance of the mandate of the doctor thus appointed or rules for the implementation of that mandate, is covered by the contractual relationship and the relationship of trust which exist between that doctor and the official whom he represents. Therefore, except where there are serious suspicions and manifest evidence as to the actual origin of the communications which the members of the invalidity committee or the competent services of the institution receive directly from the doctor appointed by the applicant, the decision of that doctor informing the other members of the committee of his resignation from the mandate which the official has conferred on him does not entail for those members or for the services of the institution the obligation to ensure that that decision has actually been brought to the knowledge also of the official whom the doctor is deemed to represent. Within that contractual relationship and that relationship of trust between the doctor and the official whom he represents, awareness of such a decision on the part of that official is in principle taken for granted.

(see para. 91)

6. If the invalidity committee considers that it is appropriate to examine the official, it is for the official, in the context of the duty of loyalty and cooperation incumbent upon every official under Article 21 of the Staff Regulations, to exercise all due care to respond to the invitations to appear before the invalidity committee.

(see para. 98)

7. In the case of an official whose cumulated sick leave totals 12 months or more in any period of 3 years, reference to the invalidity committee is not a matter for the discretion of the appointing authority. On the contrary, such discretion is narrowly defined and expressly circumscribed by the conditions laid down in Article 59(4) of the Staff Regulations.

(see para. 104)

See:

16 June 2000, T‑84/98 C v Council, para. 66

8. Neither the letter nor the spirit of Article 7 of Annex II to the Staff Regulations prevents either the institution or the official from appointing a different doctor to represent them on the invalidity committee, inter alia if the doctor originally appointed is not available.

Consequently, where essential, individual decisions of the appointing authority concerning the composition ratione personae of the invalidity committee may be altered at any time during the committee’s proceedings.

Thus, 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 and does not necessarily mean that the appointing authority has referred the matter in question to two separate invalidity committees over time.

(see paras 119-120, 134)

See:

23 November 2004, T‑376/02 O v Commission, para. 42

9. Article 59(1) of the Staff Regulations permits an institution at any time to require an official on sick leave to undergo a medical examination, whether or not the invalidity committee provided for in Article 59(4) has been constituted. 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. Because of its nature, such a decision falls outside the remit of the Tribunal, save in the event of a manifest error.

(see para. 124)

10. Appointment ex officio by the President of the Court of Justice of the doctor to represent an official on the invalidity committee does not mean that the doctor thus appointed is not deemed to act on behalf of and in the interests of the official he is responsible for representing. On the contrary, in the exercise of his prerogatives under the Staff Regulations, that doctor must act in the interests of the official whom he represents and he is therefore, in that respect, fully empowered, under the first paragraph of Article 7 of Annex II to the Staff Regulations, to appoint the third doctor, by agreement with the doctor appointed by the institution.

Consequently, from the moment when the first and second doctors on the invalidity committee are deemed to be performing their duties, one in the interests of the institution and the other in the interests of the official concerned, those doctors must also be able to exercise in full the prerogatives granted them by the Staff Regulations. Therefore, from the moment they are called upon to assume the mandate of member of an invalidity committee, those two doctors must be able to appoint the third doctor, in the interests of the proper conduct of the proceedings of the invalidity committee, either by deciding to retain the third doctor already in place or, by reason, for example, of their preference for a doctor with another specialism, by deciding to appoint, by mutual agreement, a third doctor enjoying their trust.

Moreover, the appointment of the third doctor ex officio 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, which, because of that nature, cannot necessarily exclude all possibility of agreement between the doctors concerned. Moreover, as Article 7 of Annex II to the Staff Regulations states, mutual agreement between the two doctors on the name of the third doctor precedes appointment ex officio by the President of the Court of Justice, which therefore only takes place and remains valid failing agreement between the two doctors in question.

Since the purpose of Article 7 of Annex II to the Staff Regulations is to ensure, so far as is possible, that the third doctor enjoys the trust of both the doctor of the institution and the doctor of the official concerned, the two members of the invalidity committee, one representing the institution and the other the official concerned, cannot be deprived of the power they hold under the first paragraph of Article 7, namely to appoint the third doctor by mutual agreement, because of an earlier appointment ex officio by the President of the Court of Justice.

On the other hand, an opinion delivered unanimously by an invalidity committee cannot properly legitimise a posteriori, any irregularity affecting the lawfulness of the composition of that committee.

(see paras 135-136, 138-141)

See:

Biedermann v Court of Auditors, para. 10

3 June 1997, T‑196/95 H v Commission, para. 80

14 September 2011, F‑47/10 Hecq v Commission, para. 52

11. The employment of an official who is declared to be in a state of total permanent invalidity is merely suspended, since the evolution of his position within the institutions is subject to the continued existence of the conditions which justified that invalidity. That situation can be reviewed at regular intervals.

Therefore, the invalidity committee may recommend to the institution concerned, although the appointing authority is not bound by that suggestion, that it conduct a further periodic examination of the official after a period of two years, and then annually.

(see paras 145-146)

See:

22 December 2008, C‑198/07 P Gordon v Commission, para. 47

12. Article 9 of Annex II to the Staff Regulations draws a clear distinction between, in the second paragraph, the ‘Committee’s conclusions’, communicated to the appointing authority and to the official concerned and, in the third paragraph, the ‘proceedings of the Committee’ which, on the other hand, are and must remain ‘secret’.

The secrecy of the invalidity committee’s proceedings is due to their nature, content and implications of a medical origin. It is for those reasons that the proceedings of the invalidity committee cannot be communicated either to that authority or to the official concerned. On the other hand, acts of an administrative or procedural nature of the same committee, which are outside the framework of its medical responsibilities, such as the breakdown of votes on that committee or the findings it reaches at the outcome of its proceedings, have no reason to be subject to the requirement of medical secrecy and may be communicated to the appointing authority and the official concerned.

(see paras 150-151)