II —

As regards the second remaining point, the convening of the Invalidity Committee, we have to recognize that it has now been done and on the basis claimed by the applicant. The only problem is that one of its tasks has not yet been fulfilled and that the report has not been signed by all three doctors; rather the doctor appointed by the applicant has made objections. Strictly this need not concern us any more. On the basis of the application, which is the criterion, and having regard to the fact that an Invalidity Committee has been convened and that proceedings with the objectives as known have been commenced, essentially it could suffice to find that the application has been satisfied on this point too, and simply rule on the question of the costs of the application. I do not want however, to leave it there. I can also imagine that the Chamber, which has already thought it reasonable to have a hand in the constitution of the Invalidity Committee, considers it proper to say a few additional words in the judgment on the problem which has lately arisen. In my view no difficulties arise from the fact that the Invalidity Committee has not completely fulfilled its task. The Committee has said it is ready to consider the remaining point as soon as the necessary documents are available, and if what the Commission has said at the hearing is correct, this should already be the case. The Commission has therefore to await the supplementary report of the Committee and then to draw the necessary consequences with regard to the reimbursement of the medical and pharmaceutical expenses. No inquiry need be made in the present proceedings as to who is responsible for the delay, since this question lies clearly outside the subject-matter of the application. Nor do any problems arise with regard to the first of the two conclusions in the report of the Invalidity Committee. On this, in the view of the doctor appointed by the applicant, there are no differences. It is true that this doctor advocates the deletion of the second part of the second point of the said conclusions. Since the remark contained therein has however obviously no medical significance on its own, the proposed deletion does not seriously affect the conclusion of the report. The appointing authority can thus immediately draw the necessary consequences from these basic findings of the Invalidity Committee. Differences of opinion remain, on the other hand, on the third and fourth points of the conclusions of the Invalidity Committee. The doctor appointed by the applicant does not consider it right to accept a partial permanent invalidity of only 10 %. On this he refers to the evidence of Italian doctors and the fact that 20 % invalidity was discussed in the Committee. As regards the recovery from the consequences of the accident he does not object to the date of 16 October 1970, but is of the opinion that subsequent treatment is also referable to the accident. Thus the question arises whether there is a valid report or whether such can be said to be the case only when all three doctors concur. On this question, which was the main one to be canvassed at the hearing on 23 January 1975, let me say at once that the applicant's argument that unanimity is necessary does not appear convincing to me. I do not think any thorough investigation of the question whether the principle of unanimity or majority decision prevails in the Communities is called for to draw conclusions on the interpretation of the Staff Regulations, which do not expressly say whether unanimity is required or majority decision suffices in the work of the Invalidity Committee. In my view it suffices if, in answering the question which has arisen, we are guided by the problems which have obviously arisen in this action. The present application has shown to what difficulties the system obtaining, under which a committee of three doctors has to be appointed in the familiar manner, can lead. Basically, they could only be overcome by the Court endeavouring to compensate in a law-making manner for the inadequacies of the Staff Regulations. As regards the question of formulating the opinion of the Invalidity Committee, it is probably sufficiently clear that the principle of unanimity could block the whole procedure even without ill will on the part of a doctor, because there is no possibility of replacing under some superior power a doctor who objects on medical grounds. To solve our problem the principle of the ‘effet utile’ must be applied. It must be assumed that the Staff Regulations, when they provide for the convening of an Invalidity Committee to judge certain questions, cannot reasonably contemplate a procedure which thwarts any result. If however the conclusion of invalidity proceedings is to be guaranteed, this necessarily means that majority decisions must suffice. I would consider it right to mention these considerations in the judgment and thus apprise the parties of them. The Commission would then know that it has valid conclusions of an Invalidity Committee, even if they are given by only two doctors, and that it is entitled to draw the necessary administrative consequences from this.