Opinion of Mr Advocate General Tesauro delivered on 13 December 1991. - M. F. v Commission of the European Communities. - Appeal - Officials - Compensation for accidents and occupational diseases - Invalidity pension(s) - Response seeking to have the decision of the Court of First Instance set aside in part. - Case C-346/90 P.



European Court reports 1992 Page I-02691



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. F., an official at the Commission, was removed from his post following a violent altercation, on 6 October 1982, with the Director-General for Personnel and Administration. By a judgment given on 29 January 1985, (1) the Court annulled the relevant decision on the ground that it did not contain an adequate statement of reasons. On 6 May 1985, the Commission adopted a fresh decision removing the applicant from his post. F. brought another action against that decision and the Court dismissed his application. (2)

On 22 March 1985, following the annulment of the first decision to remove him from his post, F. applied for an invalidity pension under Article 78 of the Staff Regulations of Officials ("the Staff Regulations"). By a letter of 11 June 1985, the administration informed him that, as a result of the fresh decision to remove him from his post, the "procedure in his case had become devoid of purpose". F. objected to that in a letter of 26 June 1985 and requested that the procedure under Article 78 be continued.

In the meantime the procedure provided for by Article 73 of the Staff Regulations for granting invalidity benefit was initiated at the applicant' s request. When the procedure was concluded, on 15 July 1988, the Commission adopted a decision fixing the applicant' s degree of invalidity at 50%, contrary to the findings of the Medical Committee. The Commission considered that the Medical Committee had exceeded its terms of reference in deciding that a degree of invalidity of 18%, the result of the events of 6 October 1982, should also be regarded as occupational in origin.

2. F. considered that the Commission had erred in fixing the degree of invalidity at 50%, in the decision of 15 July 1988, and had failed, moreover, to take into account his application for an invalidity pension in accordance with Article 78 of the Staff Regulations. He brought an action before the Court of First Instance claiming that the decision at issue should be annulled and that he should be awarded compensation.

By judgment of 26 September 1990, (3) the Court of First Instance partially allowed the application, annulling the Commission' s decision of 15 July 1988 in so far as it fixed the applicant' s degree of permanent invalidity at 50% instead of 68% as had been established by the Medical Committee. However, in the same judgment, the Court found that the plea based on infringement of Article 78 was inadmissible and dismissed the application for compensation as unfounded.

F. contested the judgment, as did the Commission by way of an appeal in the course of the proceedings, supported by the insurance company Royale Belge.

F.' s appeal

3. F.' s appeal relates both to the part of the judgment in which the Court considered the plea based on infringement of Article 78 of the Staff Regulations (paragraphs 22 to 24) to be inadmissible and to the part where the Court dismissed the application for compensation (paragraphs 30 to 36).

As regards the alleged infringement of Article 78, the applicant had argued before the Court that the Commission' s decision of 15 July 1988 was unlawful in so far as it had not taken into account the application he had made in a letter of 22 March 1985 for an invalidity pension under Article 78.

The Court noted that the Commission had only dealt with the applicant' s request under Article 73, that is to say without reconsidering the possibility of granting an invalidity pension pursuant to Article 78. The Court also stated that "even assuming that the aforementioned decision could be interpreted as containing an implied refusal to grant a request made by the applicant under Article 78, that refusal would constitute, in the absence of any new factors not taken into account in the decision of 11 June 1985, cited above, an act confirming the decision and could not, therefore, adversely affect the applicant. The application for the annulment of the decision of 15 July 1988, based on Article 78, is therefore inadmissible, even assuming there to have been an implied rejection of a request under Article 78" (paragraph 22).

It is essentially against that assertion that F.' s complaints, as set out in the appeal, are directed. He claims that the Court was wrong to consider that the decision of 11 June 1985 was a decision refusing his request under Article 78; on the contrary, it was a letter in which the Commission merely stated that the application had "become devoid of purpose", and that was as a result of the second decision to remove him from his post. In the applicant' s view, the Commission did not definitively communicate to him the explicit rejection of his request under Article 78 until the decision of 15 July 1988.

4. F. is therefore claiming, in effect, that he should be granted an extension of the mandatory time-limits laid down in Articles 90 and 91 of the Staff Regulations relating to the submission of complaints to the appointing authority and the instigation of proceedings before the Community courts.

It should be noted, in that connection, that the Court has consistently held that "the time-limits laid down in Articles 90 and 91 of the Staff Regulations are mandatory and are not subject to the discretion of the parties or of the Court, since they were laid down with a view to ensuring clarity and legal certainty". (4) The Court has stated that an extension of the time-limits may only be considered if there are important new facts capable of justifying a review. (5)

However, as the Court of First Instance correctly pointed out, the commencement before the Court of Justice of an action challenging the second decision to remove him from his post cannot be regarded as a new fact justifying the extension of the strict time-limits laid down in Articles 90 and 91 of the Staff Regulations. It follows that the applicant could only protect his rights, in anticipation of the outcome of his action, by contesting the decision of 11 June 1985 within the mandatory time-limits.

Finally, I consider it unimportant to establish whether the letter of 26 June 1985 was merely a letter clarifying the position, as the applicant and the Commission itself have maintained, or, on the contrary, as a complaint, as was held by the Court of First Instance. That is because in any event F.' s position remains unchanged: whichever way one looks at it, the decision of 11 June has become definitive, since it was not challenged within the time-limits laid down in Article 91(2) of the Staff Regulations.

The plea in question is therefore without foundation since there has been no error of law, in the present case, in the Court of First Instance' s interpretation.

5. The second plea in F.' s appeal relates to the dismissal of his application for compensation for damage suffered. Before the Court of First Instance, F. had relied, as the basis of his claim for damages, on both the Commission' s conduct during the procedure which led to the decision of 15 July 1988 being adopted, and the consequences flowing from that decision.

In his appeal, F. complains that the Court of First Instance refused to take into consideration the actual damage which he suffered as the result of the contested decision, and contests the Court of First Instance' s conclusion that "the annulment of the irregular decision and the consequent definition, by the Commission, of the applicant' s degree of permanent invalidity resulting from his occupation, in implementation of the present judgment, enables the applicant' s rights to be restored to him" (paragraph 34).

It is sufficient to note here that the Court of First Instance reached that conclusion on the basis of the comment that the applicant "has not specified in detail the damage allegedly suffered in the form, in particular, of an aggravation of his state of health and of his occupational circumstances. He has not proved, or offered to prove, either that such aggravation occurred after the adoption of the contested decision, or that there is a causal link between the damage allegedly suffered and the adoption of the decision in question" (paragraph 34).

F. is thus challenging, in fact, the Court of First Instance' s findings of fact, which are not open to appeal. The second plea is therefore inadmissible.

The Commission' s cross-appeal

6. The Commission' s appeal relates to the part of the judgment in which the Court of First Instance annulled the decision of 15 July 1988 for failing to take into account, as occupational disease, the 18% degree of invalidity resulting from the aforementioned incident of 6 October 1982 (paragraphs 12 to 17).

In support of its appeal, the Commission argues that the Court of First Instance misconstrued the contents of the medical report. It argues, in essence, that by considering that the 18% should not be excluded, for the purposes of calculating the allowance to be paid to F., the Medical Committee did not confine itself to medical assessments, but made one of a legal nature.

However, as is clear from the judgment contested on appeal, the Court of First Instance considered that "the Medical Committee confined itself to drawing the appropriate medical conclusions from its findings relating to the cause of the applicant' s disease and did not make appraisals of a legal nature" (paragraph 15). In particular, the Court stated that the Medical Committee had "adequately established that the aggravation of F.' s invalidity which followed the incident of 6 October 1982 was in fact caused in the performance of his duties in the service of the Community, in so far as it resulted, in the final analysis, from the applicant' s pre-existing occupational disease" (paragraph 14).

In the light of those statements, it is clear that the Commission is merely disputing the Court of First Instance' s appraisal of the facts. (6) The Commission' s appeal is therefore likewise inadmissible.

Conclusions

In the light of the foregoing, I propose that the Court dismiss both F.' s appeal and the Commission' s cross-appeal.

With regard to the costs, I propose that each party, including the intervener, should bear its own costs.

(*) Original language: Italian.

(1) ° Case 228/83 F. v Commission [1985] ECR 275.

(2) ° Case 403/85 [1987] ECR 645.

(3) ° Case T-122/89 F. v Commission [1990] ECR II-517.

(4) ° Case 191/84 Barcella v Commission [1986] ECR 1541, paragraph 12.

(5) ° See, for example, Case 231/84 Valentini v Commission [1985] ECR 3027, paragraph 14.

(6) ° See C-283/90 P Vidrányi v Commission [1991] ECR 4339, paragraph 16.