2.

I would like to make the following remarks about the applicant's second and clearly his principal claim, namely that proceedings be instituted before the Invalidity Committee with a precise delineation of the task which the Committee is to undertake. Firstly, the question may be left open whether, under the Staff Regulations, the procedure before the Invalidity Committee is appropriate at all to cases such as this, and whether the Committee can be required to undertake a task such as has been described. Admittedly, it could be argued in this connection that certain provisions of the Staff Regulations (Articles 53 and 78, as well as Article 13 of Annex VIII) intimate that an Invalidity Committee is principally concerned to determine whether the requirements of Article 78 are present, that is to say a total permanent invalidity. On the other hand, this can be countered by the assertion that the Invalidity Committee can also have jurisdiction in other cases, for example — as provided at Article 1 (1) of Annex VIII to the Staff Regulations — when the appointing authority decides ‘to admit that official to guaranteed benefits in respect of invalidity or death only after a period of five years from the date of his entering the service of the Communities.’ Or — pursuant to Article 59 (2) of the Staff Regulations — where an official, if his state of health so requires, or if a member of his household is suffering from a contagious disease, may be required to take leave after examination by the institution's medical officer. Academic lawyers too (cf. Euler, Europäisches Beamtenstatut, p. 130) argue plausibly that the Invalidity Committee could also be convened pursuant to Articles 24 or 73 (2) of the Staff Regulations. In the final resort, as already remarked, this question can admittedly be left open in the present case. The decisive factor is that the Commission has in fact, as requested by the applicant, instituted the procedure for the convening of the Invalidity Committee and entrusted the latter with a task extending farther than usual. Furthermore, in relation to the section of the application now under consideration, I must recall what it was incumbent upon the Commission to do, in cases such as the present, according to the Staff Regulations in force in 1971. In effect, it could only take the decision to institute the procedure for the convening of the Invalidity Committee and entrust the Committee with a specified task. Pursuant to Article 7 of Annex II to the Staff Regulations, which is particularly relevant here, the Commission's powers are in fact exhausted when it has requested the President of the Court of Justice to appoint a doctor. Any further action necessary to constitute the Committee lies outside the sphere of influence of the Commission, since this involves the appointment of a doctor by the relevant official and the appointment of a third doctor, to be chosen by the two doctors originally appointed. Accordingly the conclusion may be drawn that the second portion of the application is also now devoid of purpose, since the Commission has carried out all its obligations under the Staff Regulations, and in so far as, up to the present, it has not revoked the powers conferred. However, it must be clear to all concerned in view of the submissions made during the oral proceedings, that a simple finding that the proceedings before the Court had also to this extent become devoid of purpose would be unsatisfactory. It is therefore not surprising that proposals were made as to the possibility of a way out of the dilemma, that is to say the apparent deadlock in the invalidity proceedings, in the context of this action before the Court. The first thought which springs to mind is to proceed by way of an application by analogy of Article 7 (2) of Annex II to the new Staff Regulations, that is to say to require the President of the Court of Justice to appoint a doctor for the applicant, on the basis that the failure of the invalidity proceedings is attributable to the applicant's behaviour. On closer inspection however certain objections become immediately apparent. The suggested solution would in fact imply a finding that the applicant had not appointed a suitable doctor, that is to cay it would presuppose a judgment as to the behaviour of the doctor appointed by the applicant. There can be no doubt that such a judgment is not within the jurisdiction of this Court, not least because the doctor in question did not simply refuse to cooperate in the appointment of a third doctor, but put forward medical reasons for a specified choice. I would say at once that it also appears to me questionable to propose that the applicant should be requested to instruct his doctor that he should indicate his agreement with the proposal for a solution published on 17 May 1973 by the Court of Justice. Although I still consider this proposal to be a reasonable one, it does however lie outside the ambit of the Staff Regulations now in force, and cannot therefore be imposed upon the applicant's doctor, since he has a right of decision in this matter. Finally therefore, there only remains the proposal that use should be made of the fact that the applicant's lawyer gave an affirmative answer to the question put by the President of Chamber as to whether the Court of Justice, in the applicant's view, should do everything necessary to ensure that the Invalidity Committee could fulfil its task, since this can only mean that the applicant regards the appointment of a third doctor by the Court of Justice as being necessary. This does in fact appear to be the course to follow, and indeed the Commission has also made a proposal to this effect, so that we may now speak, if not of agreement between the doctors, at least of agreement between the parties. However, even as regards the above considerations, I doubt whether the Court can immediately adopt and implement them. In saying this I am thinking of the fact that the applicant's doctor, who is still acting as a member of the Invalidity Committee, is not in agreement with this solution. This must not simply be ignored, since as the law stands with regard to the Staff Regulations it is not possible to intervene in the doctor's decision. Moreover one has the impression that the two doctors already appointed have not made sufficient efforts to reach a compromise, and this perhaps in the thought that the Court was prepared to act in their place without more ado. In particular the doctors do not seem to have considered the possibility of reaching a compromise presented by the fact that the Invalidity Committee (Euler has emphasized this fact) can also consult experts. In my view it is not inconceivable that in this way, that is to say upon the condition that a specially qualified doctor should at all times cooperate in the examination of the applicant, the doctors, who arc as yet in disagreement, could still reach agreement. Accordingly I would propose as a solution that in view of the law relating to the Staff Regulations there remains no other possibility than that these proceedings also be declared devoid of purpose as regards the second part of the application and leave it to the parties to try to find a solution in the context of the administrative procedure. Of course, were such a solution not to be reached by the time set by the Chamber, then in view of the gaps in the law as it stands, to which moreover the Commission, quite independently of the present case, should turn its attention, it would of course be necessary to go back to the joint proposals of the parties and for the Court of its own motion to appoint a third doctor to the Invalidity Committee.