JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

28 September 2011





Case F-23/10





Finola Allen

v

European Commission

(Civil service – Social security – Serious illness – Article 72 of the Staff Regulations – Extension of sickness cover under the JSIS – Criterion of absence of insurance under another scheme)

Application: brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Allen seeks annulment of the Commission’s decisions refusing to recognise the existence of a serious illness and refusing to extend sickness cover under the Joint Sickness Insurance Scheme of the institutions of the European Union.

Held: The decisions of 30 June 2009, 17 July 2009 and 7 January 2010 by which the Commission refused to recognise that the applicant was suffering from a serious illness and refused to extend her sickness cover are annulled. The remainder of the heads of claim are dismissed. The Commission is ordered to bear all the costs.

Summary

1. Officials – Actions – Act adversely affecting an official – Definition – Rejection of a request for recognition of the existence of a serious illness – Refusal to extend sickness cover under the Joint Sickness Insurance Scheme – Included

(Staff Regulations, Art. 72(1))

2. Officials – Social security – Sickness insurance – Illnesses recognised as of ‘comparable seriousness’ to those expressly listed in Article 72 of the Staff Regulations

(Staff Regulations, Art. 72)

3. Union law – Interpretation – Texts in several languages – Uniform interpretation – Consideration of different language versions

(Staff Regulations, Art. 72)

4. Officials – Social security – Sickness insurance – Serious illness – Determination – Criteria

(Staff Regulations, Art. 72)

5. Officials – Actions – Prior administrative complaint – Rejection decision – Substitution of grounds for the disputed measure

(Staff Regulations, Arts 90 and 91)

6. Citizenship of the European Union – Right to move and reside freely in the territory of the Member States – Directive 2004/38 – Conditions governing right to reside under Union law

(European Parliament and Council Directive 2004/38, Art. 7)

1. Recognition of the existence of a serious illness enables the person concerned to receive, under point 2 of Chapter 5 of Title III of the General Implementing Provisions (GIP) for the reimbursement of medical expenses, adopted by the Commission, 100% reimbursement of medical costs linked to the illness concerned. Such recognition is granted following a request to that effect, as provided for in point 3 of Chapter 5 of Title III of the GIP, if the illness in question is regarded as satisfying the definition of ‘serious illnesses’ given in point 1 of Chapter 5 of Title III of the GIP.

In addition, in the event of recognition of the existence of a serious illness, the divorced spouse of an official is entitled to receive, in respect of medical costs linked to that illness, extension of cover under the Joint Sickness Insurance Scheme of the institutions of the European Union beyond the period of one year from the official date of the divorce, provided that the spouse meets a number of cumulative conditions set out in point 2 of Chapter 3 of Title I of the GIP.

Consequently, as it is adopted following a special procedure and entails a number of effects on the situation of the person concerned, a decision refusing to recognise the existence of a serious illness constitutes, as such, an act adversely affecting the person who has made a request to that effect. At the same time, where the person who has made a request to that effect is the ex-spouse of an official, such a decision may form the basis for a separate decision refusing to extend his or her sickness cover under the Joint Sickness Insurance Scheme of the institutions of the European Union.

(see paras 38-40)

2. Regarding the recognition of a serious illness, the criteria set out in point 1 of Chapter 5 of Title III of the General Implementing Provisions for the reimbursement of medical expenses, adopted by the Commission, do not appear to be manifestly inappropriate or misconceived in the light of the objective pursued, namely to identify illnesses of a comparable seriousness to those expressly listed in Article 72 of the Staff Regulations.

To begin with, the four illnesses expressly listed in Article 72 of the Staff Regulations are liable in a number of cases to have particularly serious physical or mental consequences, are likely to be drawn out and need aggressive therapeutic procedures requiring the prior diagnosis to be clear, which in turn requires special analyses or investigations. Such illnesses are also liable to expose the person concerned to the risk of a serious handicap.

Moreover, it is apparent from the wording itself of Article 72(1) of the Staff Regulations that, even if they concern one of the four illnesses expressly listed in that article, only cases that are particularly serious may be classified as a serious illness and thus enable the person concerned to benefit from the more favourable arrangements applying in the event of recognition of such an illness.

Those criteria do not exceed the limits of what is appropriate and necessary in order to achieve the legitimate objective pursued by the rules in question, which seek to limit the award of the various benefits linked to recognition of the existence of a serious illness solely to those illnesses which are particularly serious. Consequently, point 1 of Chapter 5 of Title III of the General Implementing Provisions does not offend against the principle of proportionality.

(see paras 49-52)

See:

23 November 2010, F-65/09 Marcuccio v Commission, paras 51 to 53 and 70, on appeal before the General Court of the European Union, Case T-85/11 P

3. The necessity for uniform application and, accordingly, for uniform interpretation of European Union law makes it impossible to consider one version of a text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim sought to be achieved, in the light in particular of the versions drawn up in all the languages of the European Union.

(see para. 57)

See:

13 September 2011, T-62/10 P Zangerl-Posselt v Commission, para. 42, on appeal to the General Court, Case T-62/10 P

4. As far as medical assessments made by the medical officer and the medical council are concerned, review by the Union judicature may not extend to medical assessments properly so-called, which must be considered definitive, provided that the conditions in which they are made are not unlawful.

The criteria for serious illness (shortened life expectancy, illness which is likely to be drawn-out, the need for aggressive diagnostic and/or therapeutic procedures, and the presence or risk of a serious handicap) fall within the category of medical assessments, because, in order to give an opinion on whether one or other of those criteria is met, the medical officer and the medical council do not merely establish facts, they undertake a genuine assessment of those facts, an assessment which requires competence in the field of medicine.

However, even if its review does not extend to specifically medical assessments such as those relating to the seriousness of an illness, the court must verify, especially if the procedure does not offer the same level of safeguard in terms of the balance between the parties as the procedures provided for in Articles 73 and 78 of the Staff Regulations, that the medical officer or the medical council has conducted a specific and thorough examination of the situation presented to it. Moreover, it is for the administration to establish that an assessment of this nature has been made.

As regards the application of point 1 of Chapter 5 of Title III of the General Implementing Provisions for the reimbursement of medical expenses, adopted by the Commission, the intention of the authors of that provision, as shown by the use of the words ‘involve, to varying degrees, the following four elements’, was to provide for interdependent indicators to be taken into account in relation to one another by the medical officer or the medical council, with the view to enabling a comprehensive assessment of the seriousness of the consequences of the illness in question and thereby investing the practitioners with considerable latitude in the medical evaluation of the particular situations they are called upon to assess.

The medical officer or the medical council may not therefore, when examining a request for recognition of the existence of a serious illness, merely consider in isolation some of the criteria listed in point 1 of Chapter 5 of Title III of the General Implementing Provisions, or even limit the assessment solely to the criteria which do not appear to be met. Thus, although one of the criteria may appear not to be satisfied when considered in isolation, examination of it in the light of the assessment made of the other criteria may lead to the opposite conclusion, namely that that criterion is in fact satisfied, such that the medical officer or the medical council is precluded from undertaking consideration of merely one criterion taken on its own.

Consequently, it is for the Union judicature, in the context of the limited review it may exercise over opinions issued by the medical bodies intervening during the course of the procedure for recognising the existence of a serious illness, to ensure that those opinions were adopted on the basis of a specific and thorough examination of the state of health of the person concerned, an examination that takes into account in a comprehensive manner, as required by point 1 of Chapter 5 of Title III of the General Implementing Provisions, the four interdependent criteria set out in that point.

(see paras 73, 75-80)

See:

9 December 2009, T-377/08 P Commission v Birkhoff, paras 67 and 68

5. Although in the scheme of legal remedies provided for in Articles 90 and 91 of the Staff Regulations the administration may decide, when it expressly rejects a complaint, to vary the grounds on which it had adopted the contested measure, such variation may not take place after the proceedings against the contested measure have been brought before the Civil Service Tribunal. Moreover, the administration is not entitled to substitute an entirely new statement of reasons for the initial, erroneous, statement in the course of the proceedings.

(see para. 98)

See:

12 May 2010, T-560/08 P Commission v Meierhofer, para. 59

6. Article 7 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States lays down the conditions under which all Union citizens have, under European Union law, the right of residence in the territory of another Member State for a period longer than three months, without however preventing a Member State from issuing a residence permit to a Union citizen under less stringent conditions.

(see para. 106)