Opinion of Mr Advocate General Lenz delivered on 27 October 1987. - Heinz Günther Jänsch v Commission of the European Communities. - Officials - Accident at work. - Case 277/84.



European Court reports 1987 Page 04923



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts of the case

1 . The present case is concerned with the alleged sequelae of an accident in a nuclear power-station which the applicant was visiting on instructions from the defendant .

2 . The applicant puts forward numerous claims, from which the subject of the dispute and the substantive claims may be described as follows :

( i ) the applicant first challenges the defendant' s decision of 17 January 1984 whereby recognition of an occupational disease, following proceedings under Article 73 of the Staff Regulations, was implicitly withheld;

( ii ) he requests a declaration that the ( majority ) report underlying that decision is invalid both on procedural and on substantive grounds;

( iii ) h e requests the appointment of a new Medical Committee;

in the alternative the commissioning of a further medical report,

in the further alternative a declaration by the Court that he has an occupational disease and is entitled to the benefits relating thereto;

( iv ) Finally, the applicant applies for damages for having been employed, despite an established skin disorder, in areas subject to the risk of radiation from 1973 until December 1975;

( v ) In his application to the Court the applicant includes for the first time a request that the minority medical report by Doctor Kater be recognized as the only valid report and that compensation be awarded to him for damage to his career and all other material damage suffered .

3 . From a purely economic point of view the applicant seeks a lump-sum settlement under Article 73 ( 2 ) of the Staff Regulations ( namely the payment of a lump sum equal to eight times his annual basic salary ) and the defrayment in full of all the medical expenditure occurred as a result of the "occupational disease" in accordance with Article 73 ( 3 ) thereof . In addition, he seeks a ruling that in principle he must be compensated for all consequential damage, as well as damages on account of the defendant' s failure to provide for his welfare .

B - Opinion

Admissibility of the application

4 . The defendant raises extensive objections to the admissibility of the applicant' s claims . It considers admissible only the request for a judicial review of the decision of 17 January 1984, and of the medical report on which it is based .

5 . The defendant' s notification of 17 January 1984 represents a decision which in principle is open to challenge under Articles 90 and 91 of the Staff Regulations . Article 28 of the Rules on the insurance of Officials of the European Communities against the risk of accident and of occupational disease ( hereinafter referred to as "the Insurance Rules ") expressly provides that decisions taken pursuant to the Insurance Rules may be contested under Articles 90 and 91 of the Staff Regulations . A review of that decision by the Court of Justice is therefore permissible . In connection with that judicial review it is also permissible for the Court to examine the medical report on which the decision is based, within the limits laid down by the Court in its case-law .

6 . An application for the appointment of a new Medical Committee is not admissible . The independent constitution of a Medical Committee does not lie within the powers of the Court of Justice but represents a procedure to be undertaken by the administration in accordance with its own rules . Even the manner in which the members of the Committee, and in particular the parties' medical nominees, are appointed cannot necessarily be altered by the Court .

7 . In any event, the purpose of such a claim is also achieved by an annulment of the decision on the grounds that the medical report is invalid, with the result that the applicant' s interests do not require judicial protection in this instance .

8 . The claim that the Court should order a further medical for the purposes of varying the disputed decision is also inadmissible . It is thus irrelevant that this claim was put forward in the alternative . In this regard, too, it must be conceded that so radical an intervention in an administrative procedure under the combined provisions of Article 73 of the Staff Regulations and the Insurance Rules lies beyond the powers of the Court . In defining its jurisdiction to undertake a review, the Court has repeatedly indicated that the proceedings of a Medical Committee and decisions based thereon may only be reviewed for evidence of procedural irregularities, legal misconceptions of certain concepts, or manifest errors in the assessment of the facts or in the conclusions drawn . ( 1 ) Defects of that kind may, however, only lead to the annulment of the contested decision .

9 . The question whether the claim that a further report be obtained would be admissible as a simple offer of evidence may be left aside . The only facts open to judicial review in accordance with the abovementioned case-law do not in any case necessitate a further expert opinion .

10 . For the same reasons which militate against both the appointment of a new Medical Committee and the commissioning of a further report, an ex officio finding of the existence of an occupational disease is beyond the jurisdiction of the Court . It is true that, in disputes of a financial character, the Court of Justice has unlimited jurisdiction under Article 91 ( 1 ) of the Staff Regulations; however, where a decision is based on medical reports which themselves are open only to limited review, jurisdiction over the contents of the decision cannot exceed the powers of the authorities . Entitlements under Article 73 of the Staff Regulations, like the entitlements under Article 10 et seq . of the Insurance Rules, are a legal consequence of any effective finding that an occupational disease has been contracted or that an accident has occurred . Those claims cannot therefore be allowed independently of recognition of the existence of those required facts and the procedure leading thereto . It follows that the benefits in question may only be claimed once the prescribed procedure has reached a conclusion . That applies not only to the lump-sum payment under Article 73 ( 2 ) but also to the full reimbursement of costs incurred on medical grounds under Article 73 ( 3 ). The same necessarily applies to payments to third parties ( for example under Article 73 ( 2 ) ( a ) of the Staff Regulations ) and to the benefits provided under the Insurance Rules, in particular in respect of consequential damage .

11 . As regards the question whether damages may be claimed over and above the lump-sum payments under Article 73 of the Staff Regulations and the Insurance Rules adopted pursuant to them, the following observations may be made : The defendant is of the opinion that the amounts qualifying for reimbursement under Article 73 of the Staff Regulations and the Insurance Rules are "exhaustive ". Stated in such a categorical manner, that contention cannot be accepted . In Joined Cases 169/83 and 136/84 the Court held that benefits payable under the Insurance Rules "are not to be regarded as providing full compensation in all cases ". ( 2 ) It cannot be inferred from the Insurance Rules that any additional compensation is excluded . Accordingly, an award by the Court presupposes that the defendant could be held liable for a injury under general law and that the benefits payable under the Staff Regulations are insufficient . ( 3 )

12 . The plaintiff' s claim for damages for having been employed in areas subject to the risk of radiation between 1973 and December 1975 despite an established skin disorder is, however, confronted by an obstacle unconnected with the general law on compensation . The claim is not contingent upon the claims made under the procedure laid down in Article 73 of the Staff Regulations but rests on an alternative set of allegations . ( 4 ) This type of claim runs counter to the requirement that claims must be certain . Since it has been accepted that the claims for a review of the procedure under Article 73 are admissible, the claim based on an alternative conflicting version of the facts cannot be allowed .

13 . The applicant' s request for compensation for damage to his career and all other material injury is open to objection simply because of its uncertainty . That claim was put forward for the first time in the application to the Court . Even on a liberal interpretation, the official complaint, which delimits the permissible scope of the dispute, cannot be considered to contain such a claim . It must therefore be dismissed as inadmissible . Even the applicant' s reference to the Herpels case ( 5 ) cannot affect that conclusion . It is true that, in that case, the Court of Justice admitted a claim in damages which had not been expressed as such in the official complaint . As its reason for doing so, however, it stated that the claim was simply contingent on the annulment of the unfavourable decision in dispute . In the present case, there is no such dependency between the applicant' s claims because he seeks damages in addition to the compensation he may claim under Article 73 of the Staff Regulations and the Insurance Rules adopted thereunder .

Substance

14 . It therefore remains to examine the legality of the defendant' s contested decision of 17 January 1984 and the procedure culminating therein . It should first be considered whether the full text of the Insurance Rules is applicable and therefore whether they may serve as a criterion for assessing the disputed procedure both in procedural and in substantive terms . At the time of the events in Gundremmingen, the Insurance Rules were not yet in force . Even the defendant' s administrative practice of applying the Insurance Rules to an incident which occurred a year before those Insurance Rules entered into force does not mean that they must be applicable . However, since the applicant formally requested that they be applied and the defendant responded by following a practice in conformity with those rules, it seems permissible to apply them .

15 . At that stage of the proceedings the defendant pointed out that, in order for the Insurance Rules to be applied, damage had to be found . That statement can be understood to mean that, before the benefits provided under the Insurance Rules can be awarded, damage must be established, and this is indeed the object of those Rules . Since the Insurance Rules were in fact adhered to in the appointment of the Medical Committee and in the determination of its modus operandi and the defendant expressly based its decision of 17 January 1984 on Article 23 thereof, it seems appropriate to apply those rules . The contested procedure should therefore be assessed with regard to the Insurance Rules as well .

16 . According to Article 21 of the Insurance Rules, the appointing authority must, before taking a decision pursuant to Article 19, notify the official of the draft decision . The defendant' s letter of 25 October 1976 may be treated as such a draft decision, since it clearly states that the notification does not preclude further consideration and a fresh decision on the applicant' s case . Since the Insurance Rules had not yet entered into force at that time, it is immaterial that the letter was not expressed to be a draft decision .

17 . The defendant' s letter of 20 July 1977 informing the applicant that it intended to refer the case to a "Medical Commmittee" of three doctors for an expert opinion may be regarded as a specific application of Article 23 of the Insurance Rules .

18 . The applicant complains of certain procedural irregularities in the setting-up of the Medical Committee, which, he claims, invalidate its report . The procedure culminating in the definitive appointment of the Medical Committee composed of Dr Fliedner, Dr Roesler and Dr Kater was in fact slow and time-consuming . None the less, the Committee must in the event be regarded as properly constituted since the delays were, in the final analysis, attributable partly to the defendant, partly to the applicant and partly to neither party . Thus, neither the death of Professor Mahnstein, nor Dr Semiller' s decision to decline appointment on account of excessive work, nor the rejection of the proposed inclusion of Dr Rubileo on the grounds of his inadequate knowledge of German may be ascribed to either party or invalidate the proceedings . Even the defendant' s hesitation in designating Dr Horn, whose appointment as the third member of the Committee was agreed by Dr Kater and Dr Fliedner, may be justified by the argument that the very purpose of the Committee requires that the third member should take a neutral position . Since Dr Horn was an official of the defendant institution, his neutrality was open to doubt, so that even with the consent of Dr Fliedner and Dr Kater his appointment was not absolutely obligatory . Finally, the appointment of Dr Roesler by the Court of Justice as the third doctor on the Committee is a quite proper procedure which is laid down in the second paragraph of Article 23 of the Insurance Rules .

19 . Since the Medical Committee must be considered properly constituted, the next question is whether the modus operandi adopted by that Committee was regular . Two factors give rise to doubt here . First, no minutes of the meeting of 18 September 1981 approved by a majority are available and secondly the members of the Committee could not agree on the closure of the proceedings or on a report approved by all the members .

20 . It may well be regrettable that it was not possible to reach agreement on the content of the minutes . Nevertheless, the existence of such a record is not an essential prerequisite for valid committee deliberations, so that the procedure cannot be considered illegal on that ground .

21 . In this connection it is worthwhile recalling the Court' s case-law on the functioning of committees . The Court has held ( 6 ) that, where the Staff Regulations make provision for a three-member committee, they assume that it can take a majority decision in the absence of general agreement . Accordingly, if a report reflects a majority opinion, it should be regarded as valid for the purpose of the Staff Regulations, with all the legal consequences which that entails . Furthermore, it is not acceptable that the member of a Medical Committee designated by one of the parties concerned should be able, by withholding his signature, to obstruct the procedure and thereby defeat the application of the Staff Regulations . ( 7 ) The Court has made the same pronouncements in disputes over the proceedings of the Invalidity Committee provided for in Article 59 of the Staff Regulations . However, the principle that a majority report should be regarded as valid has also been confirmed in respect of the proceedings of a Medical Committee under Article 73 and the Insurance Rules adopted thereunder . ( 8 )

22 . Even though the above case-law relates primarily to the division of the experts' votes in the preparation of a report, it may, by extension, be inferred that, where there is disagreement in the course of the proceedings, the majority principle must enable the Committee to pursue its work . If, therefore, the members of the Committee have not established by common consent that their work is terminated - Dr Kater, for example, called for further inquiries - the proceedings are ended de facto when a majority report is drawn up .

23 . Neither the proceedings nor the report which emerged from the Committee' s work is invalid on the grounds that the Committee members had no opportunity of examining certain essential facts . The applicant stated that he submitted to the Medical Committee the private reports which he himself had commissioned . Dr Kater' s minority report also indicates that at the sitting of the Committee he set out all the circumstances which he considered important, but that his colleagues had not taken sufficient account of those circumstances in their report . The proceedings as such may therefore be regarded as having been properly conducted .

24 . There remains the question whether the majority report is vitiated by irregularities which invalidate it . Before discussing the individual statements contained in the conclusions of the majority report, it must be clearly stated once more that the Court of Justice has consistently stated that its jurisdiction to review the contents of a report is limited . Thus the remedies provided for by the Staff Regulations may in principle be employed only in order to obtain a review confined to questions concerning the constitution and proper functioning of the Committee . The medical appraisal as such must be considered definitive if it is adopted in accordance with the correct procedure . ( 9 ) The Court itself cannot determine whether or not an "occupational disease" exists . On the other hand, it does have jurisdiction to annul any decision which is illegal inasmuch as it is based on irrelevant conclusions reached by the Medical Committee . Such a shortcoming might for instance arise if the Medical Committee adopted an erroneous view of the concept of "occupational disease", or if its report did not show a reasonable link between its medical findings and its conclusions . ( 10 )

25 . Consequently, the Court of Justice has jurisdiction to examine whether an expert kept within the limits of the relevant provisions when referring to an "occupational disease ". ( 11 ) The same applies to the concept of "accident" as defined by Article 2 of the Insurance Rules . According to Article 3 ( 1 ) of those Rules, "occupational diseases" are all the diseases contained in the European List of Occupational Diseases annexed to the Commission Recommendation of 23 July 1962, ( 12 ) to the extent to which the official has been exposed to the risk of contracting such diseases in the performance of his duties .

26 . Under Article 3 ( 2 ) of the Insurance Rules any "disease or aggravation of a pre-existing disease not included in the List referred to in paragraph 1 ... if it is sufficiently established ( 13 ) that such disease or aggravation arose in the course of in connection with the performance by the official of his duties with the Communities" is also treated as an occupational disease . Thus a priori any disease may be recognized as an occupational disease, although those contained in the European List of Occupational Diseases are considerably easier to substantiate . An accident, evidence of which also gives to rise to claims for benefit under Article 73 of the Staff Regulations and the Insurance Rules, means "any occurrence or external factor of a sudden, violent or abnormal nature adversely affecting an official' s bodily or mental health ". ( 14 )

27 . In the conclusions of the majority report all those requirements are examined and dismissed as not having been satisfied . The experts express their views on the question of an "accident" and on that of an "occupational disease ". One of the applicant' s objections is that the experts failed to consider the effect on his mental health of the incident in Gundremmingen . However, the report expressly states that the "considerable mental stress" which the applicant claimed he suffered was taken into consideration, but that the incident at Gundremmingen was not a relevant cause of impairment to his mental health .

28 . The reasons given deny the existence of any causal connection between event and damage as required by the law on damages . Since the concept of causation in the law on damages implies a sufficient cause, the assessment made by the majority report discloses no error of law . Any further enquiry into the question whether that assessment is well founded is, as explained above, beyond the powers of the Court .

29 . The views expressed on the question of the existence of an occupational disease are not vitiated by any error of law either . In particular, the only relevant diseases contained in the European List of Occupational Diseases, namely category F 1 ( diseases due to ionizing radiation ) and category B 2 ( dermatitis contracted at work from substances not mentioned elsewhere ), were expressly discounted . As the defendant' s representative correctly observed at the hearing, exposure to radiation due to an accident occurs where there is unforeseen and unintentional exposure to radiation and one of the stated dosage-limits for employees exposed to radiation is exceeded . ( 15 ) That, however, was not the case .

30 . Since the applicant does not positively assert that his exposure to radiation exceeded the dosage limits, or at any rate provides no evidence to that effect, it cannot be concluded that the Committee was mistaken about the facts . Lastly, the experts deny that Article 3 ( 2 ) of the Insurance Rules is applicable, mainly on the ground that the incident of 19 November 1975 neither caused nor aggravated the skin rashes found earlier .

31 . Finally, it should be mentioned that even Dr Kater' s report, the content of which is accepted by the applicant, does not categorically state that damage exists . The statement that somatic sequelae cannot be ruled out is insufficient to constitute a finding that an accident or an occupational disease, within the meaning of the Staff Regulations, has occurred . There must be positive evidence of damage attributable to the events in question, because a decision under Article 73 of the Staff Regulations cannot take the form of a decision basically accepting that the events are potentially liable to cause damage .

32 . Having regard to the foregoing considerations, it must be assumed that the authors of the majority report neither proceeded on the basis of incorrect definitions nor drew manifestly wrong conclusions .

33 . There remains only the question whether the defendant' s decision of 17 January 1984 was properly adopted under Article 19 of the Insurance Rules . That is doubtful, because the actual decision merely confirms another decision adopted in proceedings under Article 78 of the Staff Regulations ( invalidity ). As is clear from Article 25 of the Insurance Rules, the proceedings under Articles 73 and 78 of the Staff Regulations are completely independent of one another . It is therefore not permissible to combine the two proceedings and thereby prevent a clear distinction between the decisions to be taken in each case . The decision in the Article 78 proceedings had been adopted considerably earlier and was no longer in dispute . On the closure of the Medical Committee' s proceedings to establish whether an accident or occupational disease had occurred, only a decision in the proceedings under Article 73 of the Staff Regulations remained to be adopted . Since the defendant expressly based its decision on Article 23 of the Insurance Rules, the notification had to be construed as implying that the conditions for an award of benefits under Article 73 of the Staff Regulations were not fulfilled . Although a clearer formulation would have been desirable and appropriate, the notification of 17 January 1984 may be regarded as a decision for the purposes of Article 19 of the Insurance Rules .

34 . As far as the claims regarding any delayed injuries are concerned, it must be observed that the defendant had already pointed out in correspondence preceding the action before the Court that a further examination of the case and a fresh decision were possible should subsequent injuries come to light . At the oral hearing, too, the defendant' s representative again drew attention to that possibility .

35 . According to Article 17 of the Insurance Rules, it seems possible to recommence proceedings to establish an occupational disease . However, a decision as to whether the incident amounts to an "accident" within the meaning of the Staff Regulations acquires the force of res judicata . As regards an occupational disease, fresh facts would also have to be adduced . For the purpose of investigating fresh facts it is, of course, possible to reopen the proceedings .

36 . Costs are to be apportioned in accordance with Article 70 of the Rules of Procedure . In staff cases, institutions must bear their own costs . In the present case, however, I propose that Article 69 ( 3 ) of the Rules of Procedure should be applied, under which even a successful party may be ordered to pay all the costs . This award is warranted by the behaviour of the defendant institution, which is partly to blame for the dispute . Although the defendant based its decision of 17 January 1984 on the provisions of the Insurance Rules, it expressed it as a confirmation of a decision adopted in unrelated proceedings under Article 78 of the Staff Regulations . When the applicant asked for clarification, he received no answer . When he finally lodged an official complaint, the defendant failed to respond . In order not to forfeit his legal rights, the applicant was therefore obliged to apply to the Court .

I therefore propose that the Court should hold as follows :

C - Opinion

The application is dismissed . The defendant is ordered to bear the costs .

(*) Translated from the German .

( 1 ) See the judgments of 21 May 1981 in Case 156/80 Morbelli v Commission (( 1981 )) ECR 1357; of 26 January 1984 in Case 189/82 Seiler and Others v Council (( 1984 )) ECR 229; and of 29 November 1984 in Case 265/83 Suss v Commission (( 1984 )) ECR 4029 .

( 2 ) See the judgment of 8 October 1986 in Joined Cases 169/83 and 136/84 Brummelhuis and Leussink v Commission (( 1986 )) ECR 2801, at paragraph 12 .

( 3 ) See paragraph 14 of the abovementioned judgment .

( 4 ) See the third and fourth indents of the sixth head of claim in the application .

( 5 ) Judgment of 9 March 1978 in Case 54/77 Herpels v Commission (( 1978 )) ECR 585 .

( 6 ) See the judgment of 12 March 1975 in Case 31/71 Gigante v Commission (( 1975 )) ECR 343 and also the judgment of 9 July 1975 in Joined Cases 42 and 62/74 Vellozzi v Commission (( 1975 )) ECR 871 .

( 7 ) See the judgment of 16 December 1976 in Case 124/75 Perinciolo v Council (( 1976 )) ECR 1965 .

( 8 ) See the judgment of 23 April 1986 in Case 150/84 Bernardi v European Parliament (( 1986 )) ECR 1375 .

( 9 ) See the judgments in Case 156/80 (( 1981 )) ECR 1359, at paragraph 20, and in Case 265/83 (( 1984 )) ECR 4029, at paragraph 11 .

( 10 ) See the judgment in Case 189/82 (( 1984 )) ECR 229, at paragraph 15 .

( 11 ) See the judgment of 2 May 1985 in Case 118/84 Commission v Royale Belge (( 1985 )) ECR 1889, at paragraph 17 .

( 12 ) Journal Officiel, 31.8.1962, L 80, p . 2188 .

( 13 ) My emphasis .

( 14 ) Article 2 ( 1 ) of the Insurance Rules .

( 15 ) See Directive 80/836/Euratom, Official Journal 1980, L 246, p . 1 .