Order of the President of the Court of 5 December 1979. - B v European Parliament. - Case 731/79 R.



European Court reports 1979 Page 03629



Parties

Subject of the case

Grounds

Decision on costs

Operative part



Parties

IN CASE 731/79 R

B ., MEDICAL PRACTITIONER , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , RESIDING AT KELHEN AND REPRESENTED BY W . H . VERMEER , ADVOCATE AT THE AMSTERDAM BAR , HAVING AN ADDRESS FOR SERVICE IN LUXEMBOURG CARE OF DR P . STEIN , 2 AVENUE PESCATORE ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY F . PASETTI-BOMBARDELLA , DIRECTOR- GENERAL OF ADMINISTRATION , PERSONNEL AND FINANCE , KIRCHBERG , LUXEMBOURG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR ( A ) AN INTERIM ORDER ON THE EUROPEAN PARLIAMENT TO PUT AN END TO ALL MEASURES WHICH MIGHT HINDER THE ASCERTAINMENT OF WHETHER THE APPLICANT SUFFERS FROM AN OCCUPATIONAL DISEASE ; ( B ) AN INTERIM ORDER ON THE MEDICAL COMMITTEE TO PROCEED WITH ALL DUE DILIGENCE TO A COMPLETION OF THE DUTIES IMPOSED UPON IT CONSEQUENT UPON ITS APPOINTMENT UNDER THE RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE AND TO COMMUNICATE ITS OPINION TO THE EUROPEAN PARLIAMENT , AND ( C ) AN ORDER ON THAT INSTITUTION , WHENEVER THE MEDICAL COMMITTEE SHALL HAVE COMMUNICATED ITS OPINION TO IT , TO NOTIFY THE SAME TO THE APPLICANT , IN ACCORDANCE WITH ARTICLE 21 OF THE RULES ABOVEMENTIONED .

Grounds

1 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE AN APPLICATION TO SUSPEND THE OPERATION OF ANY MEASURE ADOPTED BY AN INSTITUTION OR FOR THE ADOPTION OF ANY INTERIM MEASURE IS NOT ADMISSIBLE UNLESS THERE EXIST CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS RELIED UPON BY THE APPLICANT ESTABLISH A PRIMA FACIE CASE FOR THE APPLICATION .

2 THOSE CONDITIONS ARE NOT FULFILLED IN THE PRESENT CASE .

3 THE REQUEST FOR AN ORDER THAT THE INVALIDITY COMMITTEE MAY NOT BE SET UP AND THAT IT BE PROHIBITED FROM UNDERTAKING INVESTIGATIONS BEFORE A FINAL DECISION REGARDING THE POSSIBLE EXISTENCE OF AN OCCUPATIONAL DISEASE HAS BEEN TAKEN MUST BE REFUSED . IT IS INDEED THE SAME REQUEST AS THAT WHICH IS MADE IN THE PRINCIPAL ACTION AND ACCORDINGLY CANNOT BE REGARDED AS AN INTERIM MEASURE WHICH WOULD NOT PREJUDICE THE SUBSTANCE OF THE CASE .

4 MOREOVER , UNDER THE FOURTH SUBPARAGRAPH OF ARTICLE 59 ( 1 ) OF THE STAFF REGULATIONS THE APPOINTING AUTHORITY MAY REFER TO THE INVALIDITY COMMITTEE THE CASE OF ANY OFFICIAL WHOSE SICK LEAVE TOTALS MORE THAN TWELVE MONTHS IN ANY PERIOD OF THREE YEARS . IT IS ESTABLISHED THAT THAT WAS THE CASE AS REGARDS THE APPLICANT AT THE DATE WHEN THE PARLIAMENT DECIDED TO HAVE RECOURSE TO THAT PROCEDURE . NO MATTER OF FACT OR OF LAW HAS BEEN ADVANCED WHICH WOULD INDUCE THE BELIEF THAT IN PUTTING THAT PROCEDURE INTO OPERATION THE DEFENDANT WAS PURSUING OBJECTIVES FOREIGN TO THOSE FOR WHICH THAT PROCEDURE WAS DESIGNED .

5 THE APPLICANT ' S FEAR THAT THE PUTTING INTO OPERATION OR EVEN THE CONCLUSION OF THE PROCEDURE CONCERNED WITH PREMATURE RETIREMENT UNDER ARTICLES 53 AND 59 OF THE STAFF REGULATIONS COULD HAVE AN ADVERSE EFFECT UPON THE OUTCOME OF THE PROCEDURE CONCERNED WITH ESTABLISHING , IN THE CONTEXT OF ARTICLE 73 OF THE SAME STAFF REGULATIONS , THE EXISTENCE OF THE CONDITIONS NECESSARY FOR THE AWARDING OF THE BENEFITS PROVIDED IN THE CASE OF OCCUPATIONAL DISEASE APPEARS TO BE GROUNDLESS WHEN REGARD IS HAD TO THE CLEAR WORDING OF THE SAID ARTICLE 73 , THE LAST SENTENCE OF PARAGRAPH ( 2 ) OF WHICH PROVIDES EXPRESSLY THAT THE BENEFITS PAYABLE IN THE CASE OF OCCUPATIONAL DISEASE MAY BE PAID IN ADDITION TO THOSE PROVIDED FOR IN THE CASE OF INVALIDITY WITHIN THE MEANING OF ARTICLE 59 OF THE STAFF REGULATIONS . AT ALL EVENTS , SUCH A FEAR DOES NOT WARRANT THE ADOPTION OF INTERIM MEASURES DELAYING THE OPERATION OF THE PROCEDURE LAID DOWN IN THE STAFF REGULATIONS FOR A CASE WHERE PROLONGED PERIODS OF SICK LEAVE RAISE DOUBTS AS TO THE ABILITY OF THE OFFICIAL IN QUESTION TO CONTINUE TO PERFORM HIS DUTIES . ON THE CONTRARY , THERE IS REASON TO BELIEVE THAT IT IS AS MUCH IN THE PROPER INTERESTS OF THE OFFICIAL AS IN THOSE OF THE INSTITUTION THAT , IF THEY ARE NOT TO BE CO-ORDINATED , THE TWO PROCEDURES SHOULD AT LEAST PROCEED IN PARALLEL AND THAT THEY SHOULD BE BROUGHT TO A CONCLUSION AT THE SAME TIME OR , IN ANY EVENT , WITHOUT ANY EXCESSIVE TIME-LAG .

6 THE INTERESTS OF THE APPLICANT ARE ADEQUATELY PROTECTED BY THE FACT THAT HIS PRINCIPAL APPLICATION , BEING ALSO DIRECTED AGAINST THE SETTING UP OF THE INVALIDITY COMMITTEE , LEAVES OPEN THE POSSIBILITY OF CONSIDERING WHETHER IT IS NECESSARY TO ANNUL THAT DECISION , IF IT SHOULD APPEAR , ON THE BASIS OF GROUNDS ADVANCED BY THE APPLICANT , THAT IT IS TAINTED WITH ILLEGALITY .

7 THE REQUEST FOR AN ORDER THAT THE MEDICAL COMMITTEE ENTRUSTED WITH THE TASK OF INVESTIGATING WHETHER THE APPLICANT IS SUFFERING FROM AN OCCUPATIONAL DISEASE SHOULD PURSUE ITS WORK WITH DILIGENCE ( ' ' MET VOORTVARENHEID ' ' ) AND THAT THE DEFENDANT SHOULD BE PROHIBITED FROM DELAYING THE PROGRESS OF ITS WORK IS WITHOUT SUBSTANCE . AT THE PRESENT STAGE OF THE PROCEEDINGS NO POINT OF FACT OR LAW HAS BEEN ADVANCED WHICH DEMONSTRATES THE LIKELIHOOD OF NEGLECT OR HOSTILITY ON THE PART OF THE DEFENDANT IN THIS REGARD . IT APPEARS ON THE CONTRARY THAT THE DELAY IS DUE , ON THE ONE HAND , TO CIRCUMSTANCES INDEPENDENT OF THE PARTIES ' WISHES , THE REPETITION OF WHICH MAY BE AVOIDED BY THE DILIGENCE OF THE MEDICAL COMMITTEE , AND ON THE OTHER HAND , TO THE ATTITUDE OF THE APPLICANT HIMSELF WHO HAS , ON SEVERAL OCCASIONS , OMITTED OR REFUSED TO KEEP APPOINTMENTS MADE WITH THE MEDICAL COMMITTEE .

8 THE APPLICANT HAS ACCORDINGLY NOT PUT FORWARD , UNDER ANY HEAD OF HIS APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , FACTUAL OR LEGAL SUBMISSIONS WHICH JUSTIFY THE APPLICATION , WITH THE RESULT THAT IT MUST BE DISMISSED .

Decision on costs

COSTS

9 IT IS APPROPRIATE AT THIS STAGE TO RESERVE COSTS .

Operative part

ON THOSE GROUNDS ,

THE JUDGE ACTING AS PRESIDENT

BY WAY OF INTERLOCUTORY DECISION ,

MAKES THE FOLLOWING

ORDER