Opinion of Mr Advocate General Lenz delivered on 27 June 1991. - Raimund Vidrányi v Commission of the European Communities. - Officials - Recognition of the occupational origin of a disease - Appeal. - Case C-283/90 P.



European Court reports 1991 Page I-04339



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. In my view, the appeal which Mr Vidrányi has brought against the judgment of the Court of First Instance of 12 July 1990 may be analysed - with reference to the Report for the Hearing as regards the details of the case - as follows.

2. 1. In the first place, it is claimed that the assessment by the Court of First Instance of the question whether certain purely administrative documents should have been communicated to the appellant to enable him to comment was unlawful. The documents - as the Court is aware - contain statements made by the appellant' s former superiors in 1982 concerning the working conditions which he experienced until his retirement on the ground of ill-health in 1979.

3. The appellant takes the view that the principle of a fair hearing required that he be given the opportunity to comment on the abovementioned statements, because only in that way could an objective and complete representation of the situation and the events which are significant for his legal position (the possible application of Article 73 of the Staff Regulations) be guaranteed. Since the Court of First Instance did not criticize the Commission' s conduct as a breach of procedure, its judgment must be regarded as being vitiated by an error in law.

4. The Court of First Instance is known to have dealt with that criticism by the appellant in paragraph 31 et seq. of the grounds for its decision, in particular in paragraph 33 of the judgment. With reference to the judgment in Case 140/86 (1) (where it was stated that documents "relating to the findings of fact concerning an incident at work which may serve as a basis for a procedure for the recognition of the existence of an accident at work or an occupational disease" must be recognized as being of a medical nature), the Court of First Instance was of the opinion that such an appraisal was also appropriate with regard to the abovementioned reports concerning the appellant' s working conditions and it was for that reason that the refusal to communicate them directly to him was justified.

5. In that respect, the appellant pointed out that the judgment cited was concerned with completely different facts and that it was quite clear from the arguments put forward therein that it did not correspond to his own case. The Court of First Instance had thus made a false subsumption under a rule of law of the facts presented to it and could thus rightly be accused of an "infringement of Community law" within the meaning of Article 51 of the Statute of the Court of Justice.

6. In my opinion - if I may say so at this point - that observation is quite correct.

7. It should first be pointed out that the law relating to officials in the Community is also governed by the important principle according to which everyone is entitled to a fair hearing. That principle is referred to in the judgment in Case 140/86 where, in paragraph 7, it is emphasized that decisions taken by the appointing authority and affecting an official' s administrative status and career must not be allowed to be based on facts concerning his conduct which are not contained in his personal file.

8. As regards access to "documents of a medical nature" in the context of a procedure for the recognition of an occupational disease, the aforementioned judgment states in the following paragraphs - and rightly so - that the principle referred to must be qualified somewhat. It is emphasized here that that possibility afforded to the official (namely to be granted access to documents of a medical nature) must be reconciled with the requirements of medical confidentiality "which make every doctor the judge of whether he can inform the persons whom he is treating or examining of the nature of the illnesses from which they may be suffering". There thus appears to be justification for granting only indirect access to the documents of a medical nature through the interposition of a medical examiner appointed by the official.

9. It is important, however, not only that the consequences of that judgment (in so far as the concept of "documents of a medical nature" is concerned) are entirely governed by the considerations set out in paragraph 11 (the doctor must be the judge of whether he can inform the persons whom he is treating or examining of the nature of the illnesses from which they may be suffering), which certainly excludes purely administrative documents. It is also important to realize that it was a question in the case cited of documents whose direct communication to the person concerned could cause him anxiety (which might be medically apparent), from which it had to be determined that - contrary to what the appellant claimed - it was right for them not to be placed in his personal file. That point is not actually made in the words used in the judgment itself (which merely speaks of documents relating to the findings of fact concerning an incident at work); in that respect, however, the words of the Advocate General are quite clear, when he states (in paragraph 20 of his Opinion) that it is a question of the documents concerning the incident of contamination which describe the circumstances of the contamination and the results of analyses, in particular medical analyses, carried out to determine the doses to which the victim was exposed.

10. The facts which the Court of First Instance had to consider in Case T-154/89, (2) on the other hand, are clearly of quite a different nature, which must indeed suggest the conclusion that they should not have been treated in accordance with the rules laid down in Case 140/86.

11. Prompted by the appellant' s argument that the incapacity for work which led to his being retired on the ground of ill-health was the direct result of the conditions in which he had to perform his duties, the Commission - as already mentioned - arranged for an investigation into the matter among his former superiors (see the letter of 27 July enclosed with the statement in defence in Case T-154/89, where, incidentally, not only were working conditions in general mentioned, but comments were also invited in respect of the appellant' s complaints regarding the methods employed by his superiors and an alleged atmosphere of conflict).

12. As a result, three statements were received from former superiors of the appellant, of which the latter - as he complains - was not directly informed before the adoption of the decision challenged by him (those are the documents numbered III to VI annexed to the statement in defence in Case T-154/89).

13. A glance at those documents, which together amount to three typewritten sides, immediately makes it clear that, in so far as the statements are relevant to the case, which cannot be said of two of them, they certainly include no "medical assessments" or assessments of a related nature (for instance, concerning "troubles psychologiques", as the Commission' s Agent mistakenly thought at the oral proceedings) and thus assessments which (within the meaning of the judgment in Case 140/86) were not to be brought to the appellant' s attention. It is also significant that the Commission had no reservations about making those documents (the existence of which the appellant had apparently first become aware in 1986) available to him in the proceedings before the Court of First Instance (where - as has already been said - they were produced with the statement in defence).

14. From the contents of those documents (in one of which there is mention of an atmosphere of conflict and of the fact that the appellant complained about his superiors and they became annoyed with him) it is also clear, on the other hand, that the appellant, in accordance with the principle of a fair hearing, had to be given the opportunity to comment on them. That was the only way to avoid being left with a purely one-sided representation by his superiors (whose conduct is also relevant), and in that way the possibility would be afforded of insisting on the completion of the investigation, whereby another picture of the effects of the working conditions on the appellant' s disease could be obtained, which could have influenced his administrative status.

15. Furthermore, it is clear to me that it was not a matter of referring the appellant to the possibility of commenting through the doctor treating him. In so far as the Commission has in mind Article 21 of the Rules on Insurance of Officials against the Risk of Accident and Occupational Disease (according to which the official concerned may request that the full medical report which the doctor appointed by the institution has drawn up be communicated to a doctor chosen by him) it should be borne in mind that, clearly, no access could have been provided to the complete report drawn up following the inquiry within the meaning of Article 17 of those Rules (including the statements of the appellant' s former superiors). On the other hand, in so far as it is contemplating the fact that the appellant' s doctor had access to all the documents in the context of the procedure before the Medical Committee, it should not be forgotten that a reference in that way to making comments would mean that the discussion of purely administrative problems (the working conditions experienced by the appellant) must have taken place before the Medical Committee. The Medical Committee, however, is certainly not the appropriate forum for that, and it is also contrary to the conclusion reached in the judgment in Case 2/87 (3) that the Medical Committee does not have to determine a dispute. Its task - correctly interpreted - is rather to produce medical findings, while, in so far as preparatory works of an administrative nature are called for, they must be carried out by the Commission qua administrative body.

16. It must be accepted, therefore, that the appellant was right regarding his complaint against the Commission that the administrative proceedings which it held were not conducted correctly and also that the decision to the contrary of the Court of First Instance, which it reached owing to its failure to appreciate the scope of the judgment in Case 140/86, is tainted with an error in law. The consequences arising therefrom as regards the further proceedings will be discussed later.

17. In view of that unavoidable conclusion regarding the first submission in the appeal, it appears to be unnecessary to go into the associated complaint, according to which - since the appellant had no opportunity to comment on the abovementioned statements of his superiors - the Medical Committee had a duty to hear him, and also according to which the absence of any criticism in that respect in the judgment of the Court of First Instance is also to be regarded as an infringement of Community law.

18. If one considers (as I myself do) that it was necessary for the appellant to be given the opportunity to comment in respect of purely administrative documents before the Medical Committee' s inquiry was held, then clearly it was also not necessary for the Medical Committee to hold a hearing concerning purely administrative documents and to forward to the official concerned the documents referring to him to enable him to comment. Suffice it to say that a criticism along those lines was thus rightly dismissed as irrelevant by the Court of First Instance.

19. The appellant has further complained that his criticism regarding the report of the Medical Committee on which the contested decision was based was not recognized as well founded by the Court of First Instance.

20. In that respect - according to the current state of the proceedings - three things are concerned:

- the appellant maintains, basically, that the view of the Court of First Instance according to which it has only a limited power of review with regard to findings of a medical nature is not well founded. In view of the fact that there are now two tiers of court for disputes in the law relating to officials, he argues that it would be appropriate to review the case-law which has been applicable up to now (or, better still, to abandon it), with the consequence that, where the medical report drawn up by the doctor already involved was called in question, it would be possible to order that another report be drawn up.

21. - The appellant also considers that the contents of the report (or the reasons on which it is based) are open to criticism in so far as there is no "comprehensible link" between the medical findings contained in the report and the conclusions drawn from it (within the meaning of the judgment in Case 277/84). (4)

22. - Moreover, the appellant is of the opinion that the report of the Medical Committee is open to criticism because a part of the task given to the Committee remains undone. A statement was due concerning the question whether the performance of the duties given to the appellant constituted the essential cause of the aggravation of a pre-existing disease; there is a lack of any finding in that respect in the report of the Medical Committee.

23. In that respect, it should first be noted that it is certainly unimportant that the criticism referred to was not already raised before the Court of First Instance and that the Court thus has to deal, at least in part, with new submissions. According to the relevant procedural rules (Article 113(2) of the Rules of Procedure of the Court) it is perfectly clear that such an extension of the subject-matter in the course of the proceedings relating to an appeal is not to be regarded as inadmissible. The decisive point is rather that the subject-matter of the proceedings may not be changed and it has certainly not been since the new criticism raised merely serves as a further ground for the annulment of the Commission' s decision of 13 January 1989.

24. It is also clear, however - once more anticipating the outcome of my deliberations - that the judgment of the Court of First Instance can scarcely be called into question in the way just described.

25. In my view, therefore, the Court of First Instance has given no cause for complaint by adhering to the case-law according to which judicial review does not extend to medical findings (see Cases 265/83 (5) and 2/87). That case-law definitely corresponds to the nature of judicial review in practice and clearly has no connection with the number of tiers of courts practising it. It is appropriate, moreover, to refer to the scheme of the relevant rule already mentioned, which provides for a two-tier medical appraisal (first of all by a doctor appointed by the administration and then by a Medical Committee acting, so to speak, as an appeal body) and from which it was rightly inferred that it was for the Medical Committee to settle definitively questions of a medical nature (see judgment in Case 156/80). (6) Last but not least, it is also significant that the appellant was unable to demonstrate that that rule, the fairness of which is evident, does not correspond to basic administrative principles (as they could, for instance, have been taken from national rules).

26. As far as the scheme of the report on the questions of a medical nature is concerned, it is in fact correct that the significance of the working conditions as regards the appellant' s disease (disregarding two passing remarks about tension at work and the appellant' s idée fixe that he was persecuted by his superiors) is mentioned only in the conclusion of the report. However, in view of the reference (based on the information obtained from the statements of the appellant' s former superiors) to normal working conditions to the fact that it is impossible to see how they could have influenced the appellant' s disease, it cannot be said, in spite of the brevity of which the report of the Medical Committee can be accused, that the report is not definitive within the meaning of the judgment in Case 277/84.

27. Also beyond reproach in my view is the fact that the report does not speak, as was suggested in the brief given to the Committee, of an aggravation of the appellant' s disease owing to the performance of his duties. It was significant for the doctors that, as far as they were aware, the working conditions did not differ from what was normal. They concluded that those conditions must have had no relevance for the appellant' s disease and thus also - at least implicitly - showed that the working conditions could also not have led to an aggravation of the appellant' s disease.

28. A final complaint by the appellant which remains to be dealt with refers to the fact that in the proceedings at first instance he relied on an infringement of Article 24 of the Staff Regulations (in the form of failure to provide assistance by the Commission' s Medical Service), and to the fact that the judgment of the Court of First Instance failed properly to address that point (justifying the inference that it had not duly investigated or considered the matter).

29. It must be pointed out immediately, however, that the appellant himself admits that the claims put forward before the Court of First Instance "n' ont presque rien à voir avec le manquement à l' article 24 du statut" and that, accordingly, there is no reason to set aside the judgment of the Court of First Instance on that ground. In his view the complaint referred to constitutes rather an appropriate basis for a claim for compensation and he is asking the Court to make a direct award in that respect if it does not consider it appropriate to refer the case back to the Court of First Instance.

30. It is clear to me that that claim also cannot be granted in these proceedings.

31. If the appellant himself begins with the assumption that the claims put forward at first instance have "almost nothing" to do with an infringement of Article 24 of the Staff Regulations, there is certainly no reason to criticize the judgment of the Court of First Instance for paying no particular attention to the argument referring to Article 24 of the Staff Regulations and thereby implicitly dismissing it.

32. If, on the other hand, it is certain, according to the explanation given by the appellant, that he is really seeking compensation, (and not only the annulment of the Commission' s decision of 13 January 1989), it is thus also clear that he is seeking to introduce a claim in the proceedings which he did not submit before the Court of First Instance. That, however, is certainly inadmissible. The proceedings in an appeal are confined to examining whether or not the judgment on the application brought at first instance was in order. To introduce new claims, on the other hand, is tantamount to extending the subject-matter of the proceedings and thus constitutes a step which Article 113(2) of the Rules of Procedure of the Court expressly describes as inadmissible. That does not determine, of course, whether it is still possible for the appellant to make such a claim against the Commission.

33. 5. Let me state, by way of summary, that the complaint against the judgment of the Court of First Instance that was first examined is the only one that can be upheld and that the judgment can therefore be regarded as irregular because it wrongly took the view that the Commission' s conduct in the administrative proceedings (the failure to communicate to the appellant the statements of his former superiors) was lawful.

34. If we ask ourselves now whether the only conclusion to be drawn from that statement is that the judgment of the Court of First Instance of 12 July 1990 is to be set aside and the case referred back to the Court of First Instance, or whether it is appropriate rather to take the view (as Article 54 of the Court' s Statute permits) that the state of the proceedings permits final judgment in the matter to be given directly, preference should, in my opinion, be given to the last-mentioned possibility. If my opinion is followed, it is already established that the administrative proceedings held by the Commission were not conducted in accordance with the rules. It cannot be ruled out, however, that that could have had consequences for the Medical Committee' s appraisal concerning the cause of the appellant' s disease and for the decision adopted by the Commission pursuant to Article 73 of the Staff Regulations. The Court can thus simply declare that that decision was reached in error and accordingly - as requested by the appellant - set it aside. It is then for the Commission to hold a new procedure (with the possibility, for the appellant, of arranging for more detailed investigations into his working conditions) and once again - possibly following a further vote of the Medical Committee - adopt a decision on the question whether the appellant' s disease had its origins in his working conditions.

Conclusion

35. In conclusion, therefore, I propose that the appeal brought by the appellant be declared well founded and the decision of the Commission which he attacked before the Court of First Instance be set aside. As far as the costs of the proceedings are concerned, in view of the outcome - since it can be said that the appellant has essentially been successful - there can be no hesitation in ordering that they be borne by the Commission.

(*) Original language: German.

(1) - Strack v Commission [1987] ECR 3939.

(2) - Case T-154/89 [1990] ECR II-445.

(3) - Biedermann v Court of Auditors [1988] ECR 143.

(4) - Jaensch v Commission [1987] ECR 4923.

(5) - Suss v Commission [1984] ECR 4029.

(6) - Morbelli v Commission [1981] ECR 1357.