JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

14 September 2011





Case F-47/10





André Hecq

v

European Commission

(Civil service – Officials – Social security – Occupational disease – Articles 73 and 78 of the Staff Regulations – Lawfulness of the Medical Committee’s opinion – Refusal to recognise partial permanent invalidity)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Hecq seeks, in essence, annulment of the appointing authority’s decision of 7 September 2009 rejecting his request for recognition of a rate of partial permanent invalidity owing to his occupational disease.

Held: There is no need to adjudicate on the claims for annulment of the Commission’s decisions of 7 September 2009, in that they charge to the applicant the fees of the doctor whom he appointed to represent him on the Medical Committee and also half of the fees of the third doctor on the Medical Committee, appointed by common agreement. The claims for annulment of the decisions of 7 September 2009, in that they refuse to grant the applicant a rate of permanent invalidity, are rejected as unfounded. The applicant is ordered to pay all the costs.

Summary

1. Officials – Social security – Insurance against the risk of accident and of occupational disease – Expert medical report – Discretion of the Medical Committee – Judicial review – Limits

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 23)

2. Officials – Social security – Insurance against the risk of accident and of occupational disease – Medical Committee – Principle of the collegiate function of the committee

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 23)

3. Officials – Social security – Insurance against the risk of accident and of occupational disease – Permanent invalidity within the meaning of Article 73 of the Staff Regulations and Article 78 of the Staff Regulations – Distinct concepts

(Staff Regulations, Arts 73 and 78)

4. Officials – Social security – Insurance against the risk of accident and of occupational disease – Expert medical report – Medical Committee’s obligation to state reasons – Scope

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 23)

5. Officials – Social security – Insurance against the risk of accident and of occupational disease – Expert medical report – Composition of the Medical Committee

(Staff Regulations, Art. 73)

1. The medical assessments, in the strict sense, made by the Medical Committee provided for in Article 23 of the Rules on the insurance of officials against the risks of accident and occupational disease must be regarded as definitive where they are issued under lawful conditions. The Tribunal has the power only to ascertain, first, whether the Committee was constituted and functioned properly and, second, whether its opinion is lawful, in particular whether it contains a statement of reasons allowing an assessment to be made of the considerations on which it is based, and whether it establishes a comprehensible link between the medical findings it contains and the conclusions reached.

Thus, in the light of the limited power of review which the Civil Service Tribunal is able to exercise, an allegation that the Medical Committee’s opinion is vitiated by a manifest error of assessment cannot be upheld.

In such circumstances, a rigorous judicial review of the procedure followed by the Medical Committee would appear to be a significant guarantee of the rights of the insured party.

However, while the procedural guarantees of the insured party before that committee must be strictly reviewed by the Tribunal, the fact none the less remains that that review must have regard to the actual nature of that committee’s work, the purpose of which is not to settle an adversarial debate but to make medical findings.

(see paras 44-47)

See:

19 January 1988, 2/87 Biedermann v Court of Auditors, para. 16

14 September 2010, F-79/09 AE v Commission, paras 64 and the case-law cited and 89; 11 May 2011, F-53/09 J v Commission, para. 104

2. There is no express provision relating to the principle of collegiality in the rules on insurance against the risks of accident and occupational disease. That principle, which implies that each of the members of the Medical Committee must have the proper opportunity to express his views before the other members, is the corollary of the protection of the interests of the official, within the Medical Committee, by a doctor whom he trusts and also by the appointment of the third doctor by common agreement of the members appointed by each party.

The principle of collegiality does not mean that the Medical Committee cannot validly decide by a majority or that the principal responsibility for drawing up the Medical Committee’s report cannot be discharged by the two doctors in the majority on that committee.

Thus, where the doctor appointed by the official has been in a position to present his observations and his analysis of the official’s file at a meeting of the Medical Committee, the disagreement between, on the one hand, the other two doctors in the majority on that committee and, on the other, the doctor appointed by the official, who did not agree with the medical analysis of his colleagues following a collegiate examination of the official concerned and of his file, does not disclose any breach of the principle of the collegiality of the work of the Medical Committee or any irregularity of such a kind as to vitiate the report drawn up on its behalf. In particular, the fact that the doctor appointed by the official received for signature a report drawn up on behalf of the Medical Committee, prepared by his two colleagues in the majority and presented as being already finalised, and that in those circumstances he had no possibility other than to draft a dissenting note, is not in itself capable of constituting a breach of the principle of collegiality that should apply in the work of the Medical Committee.

(see paras 52, 55, 57, 58)

See:

15 November 2000, T-20/00 Camacho-Fernandes v Commission, paras 31 and 32

3. There is a fundamental distinction between total permanent invalidity within the meaning of Article 78 of the Staff Regulations, which is equivalent to incapacity for work and therefore for the need of a substitute income in the form of an invalidity allowance, and permanent invalidity within the meaning of Article 73 of the Staff Regulations, which is equivalent to an adverse effect on physical and mental integrity.

While total invalidity within the meaning of Article 73 of the Staff Regulations generally entails total incapacity for work, the converse is not necessarily true, as an official may be totally unfit for work within the meaning of Article 78 while suffering only a very small degree of partial permanent validity within the meaning of Article 73.

Furthermore, the invalidity allowance provided for in Article 73 of the Staff Regulations is distinguished from the invalidity allowance provided for in Article 78 of the Staff Regulations, which is granted only in the event of incapacity for work. Conversely, the allowance provided for in Article 73 of the Staff Regulations is granted to the person concerned irrespective of his capacity to continue to work. Partial permanent invalidity entitles the person concerned to compensation, even if it does not affect his ability to work. It follows that invalidity within the meaning of Article 73 of the Staff Regulations must be interpreted as referring to the adverse effect on the official’s physical or mental integrity, without regard to the degree of any incapacity to work.

It follows that, in the system of Articles 73 and 78 of the Staff Regulations, it cannot be precluded that an official placed in invalidity on the basis of Article 78 of the Staff Regulations owing to an occupational disease will not be granted any rate of partial permanent invalidity within the meaning of Article 73 of the Staff Regulations, the Rules on insurance against the risks of accident and occupational disease and the scale, if that disease has not caused any adverse effect on his physical or mental integrity within the meaning of those provisions.

(see paras 73-76)

See:

14 May 1998, T-165/95 Lucaccioni v Commission, para. 74; 27 June 2000, T-47/97 Plug, paras 73 and 74

4. Where the Medical Committee provided for in Article 23 of the Rules on the insurance of officials against the risks of accident and occupational disease has to deal with complex medical issues relating to a difficult diagnosis or the causal link between the disease from which the person concerned is suffering and the exercise of his occupation within an institution, it must, inter alia, indicate in its opinion the elements of the file on which it relies and, in the event of significant discrepancy, the reasons why it departs from certain earlier relevant medical reports which were more favourable to the person concerned.

The Medical Committee’s report is not required to be, in formal terms, a model of drafting. All that is required is that it contain a statement of reasons which permits an appraisal of the considerations on which its findings are based and that it establish a comprehensible link between the medical findings which it contains and the conclusions reached by the Medical Committee.

Furthermore, as the Medical Committee’s report is scientific in nature, the requirements of coherence and intelligibility must be assessed not from the point of view of the official himself but from that of the doctor representing him on the Medical Committee, whose role it is, among other things, to explain to his patient, should that be necessary, the grounds on which his request for recognition of an occupational disease was rejected.

(see paras 80, 86, 87)

See:

AE v Commission, paras 64 and 65 and the case-law cited; J v Commission, para. 96

5. When the three doctors on the Medical Committee provided for in Article 23 of the Rules on the insurance of officials against the risks of accident and occupational disease were appointed by the persons authorised to appoint them, the protection of the interests of the official is properly ensured by the presence of a doctor whom he trusts and by the appointment of the third doctor from outside the administration. In that regard, the Rules on insurance against the risks of accident and occupational disease do not lay down any particular requirement for specialisation on the part of the members of the Medical Committee. Thus, in so far as under those rules both the official concerned and the administration are entirely free in their choice of doctor, there is nothing to prevent the official from appointing a specialist doctor to represent him on the Medical Committee, should he wish to do so.

(see paras 107, 108)

See:

14 July 1981, 186/80 Suss v Commission, para. 9

AE v Commission, paras 50 and 51