JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 May 2011



Case F-53/09

J

v

European Commission

(Civil service — Officials — Social security — Insurance against the risk of accident and of occupational disease — Article 73 of the Staff Regulations — Refusal to recognise the cause of an occupational disease — Obligation to conduct the procedure within a reasonable period)

Application: brought under Articles 236 EC and 152 EA, in which the applicant seeks, first, annulment of the Commission’s decision of 31 July 2008 refusing to recognise the disorder from which she is suffering as an occupational disease, and, second, an order that the Commission pay her symbolic damages of one euro in compensation for the non-material harm she claims to have suffered.

Held: The Commission is ordered to pay the applicant damages of one euro. The other claims in the action are dismissed. The Commission is ordered to pay, as well as its own costs, one quarter of the applicant’s costs. The applicant is ordered to bear three quarters of her own costs.

Summary

1. Officials — Social security — Insurance against the risk of accident and of occupational disease — Invalidity — Separate schemes — Single concept of occupational disease

(Staff Regulations, Arts 73 and 78; Rules on the insurance of officials against the risk of accident and of occupational disease, Arts 3(2) and 25)

2. Officials — Social security — Insurance against the risk of accident and of occupational disease — Establishing whether a disease results from an official's occupation — Burden of proof on the official

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 3)

3. Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Discretion of the Medical Committee — Judicial review — Limits — Obligation to state reasons — Scope

(Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease, Art. 23)

4. European Union law — Principles — Duty to act within a reasonable time — Breach in an administrative procedure — Effects

(Charter of Fundamental Rights of the European Union, Art. 41(1))

1. In the absence of any indication to the contrary in the Staff Regulations, the concept of occupational disease may not have, within those Regulations, a different meaning depending on whether Article 73 or Article 78 applies, even if those provisions each relate to a scheme with its own individual features.

However, the fact that the concept of occupational disease has the same legal meaning whether under Article 73 or Article 78 of the Staff Regulations does not mean that the Medical Committee provided for in the Common Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease is bound by the factual and medical assessments of the Invalidity Committee set up under Article 78 of the Staff Regulations, and vice versa. Thus the procedure for recognition of total or partial permanent invalidity pursuant to Article 73 of the Staff Regulations and the procedure for granting an invalidity pension under Article 78 of the Staff Regulations may legitimately produce different results in respect of the same factual situation, particularly as regards the question of the occupational origin of the disease from which the same official is suffering.

First of all, the benefits provided for in Articles 73 and 78 of the Staff Regulations are different from and independent of each other, even though they may apply concurrently; likewise, those provisions lay down two different procedures which may result in separate decisions independent of each other. Secondly, although it is desirable that, where appropriate, the two procedures should be conducted in concert and that the same medical authorities should be invited to give an opinion on the different aspects of the official’s invalidity, the legality of either procedure is not conditional upon such a requirement and in that regard the appointing authority has, according to the circumstances, a discretionary power. Thirdly, Article 25 of the Insurance Rules expressly states that recognition of total or partial permanent invalidity pursuant to Article 73 of the Staff Regulations and to the Insurance Rules in no way prejudices application of Article 78 of the Staff Regulations and vice versa.

This legal situation might be regarded as rather unsatisfactory. However, the risk of apparent conflict is inherent in the legislature’s deliberate establishment of two schemes involving separate medical authorities following different procedural rules. In particular, the Medical Committee reaches its decisions on the basis of the results of an administrative investigation, whereas the Invalidity Committee does not. As the Union’s legislation currently stands, it is therefore possible for these two committees to reach different conclusions on the same factual situation.

(see paras 55-60)

See:

4 October 1991, C-185/90 P Commission v Gill, paras 13 to 16

14 May 1998, T-165/95 Lucaccioni v Commission, para. 150; 1 July 2008, T-262/06 P Commission v D, para. 73 and the case-law cited therein, and para. 74

2. Article 3 of the Common Rules on the insurance of officials of the European Union against the risk of accident and of occupational disease introduces two insurance schemes for occupational diseases.

Article 3(1) of the Common Rules provides that, where the disease is contained in the ‘European schedule of occupational diseases’ annexed to Commission Recommendation 90/326 and any supplements thereto, it is considered an occupational disease. That provision establishes a statutory presumption which derogates from ordinary evidentiary law and is designed to protect the rights of the officials concerned, as regards diseases which have been scientifically proven to be, as a rule, associated with the performance of certain occupational activities. It is therefore sufficient for the official in question to prove that he was exposed, in the course of his duties, to the risk of contracting that disease. Any uncertainty concerning the causal link between the performance of duties and the disease cannot overturn that presumption.

Article 3(2) of the Common Rules, on the other hand, requires a causal link to be established between the performance of duties and the appearance of the disease. Although the need to establish such a causal link may mean that certain multifactoral disorders are not recognised as having an occupational origin, under that same provision it is not possible to infer that the occupational origin of a multifactoral disorder is sufficiently established merely from evidence that the performance of duties may potentially affect the triggering, aggravation or acceleration of that disorder. In that respect, the Courts cannot assume the role of the legislature in order to allow that, in the case of certain multifactoral diseases, the official concerned must have the benefit of the doubt where it is objectively impossible to determine, first, whether the performance of those duties probably affected the deterioration in the official’s state of health and, second, to what extent that performance contributed to the deterioration compared with any extra-occupational factors.

Article 3(2) of the Common Rules thus guarantees insurance for individual cases, but on condition that the occupational origin of the disease in question is proved to the requisite legal standard. Within that legal framework, abandoning the requirement for such evidence, even to a lesser standard, for certain multifactoral diseases by accepting evidence merely of a potential causal link would be contrary not only to the wording of Article 3(2) of the Common Rules, but also to the aim and purpose of that article, which is to provide specific insurance against the risks of occupational disease in accordance with Article 73 of the Staff Regulations.

Furthermore, in complex situations where the origin of an official’s disease lies in a number of causes, both occupational and extra-occupational, and physical or psychological, which have each contributed to the development of that disease, it is for the Medical Committee to ascertain whether the official’s performance of his duties in the service of the Union’s institutions has a direct link with his disease, for example, as a trigger for that disease. In such cases, it is not required, for the disease to be recognised as having an occupational origin, that it should have its sole, basic, preponderant or predominant cause in the performance of duties.

(see paras 64-69)

See:

26 February 2003, T-145/01 Latino v Commission, paras 83, 84, 86 to 89

14 September 2010, F-79/09 AE v Commission, para. 83 and the case-law cited therein

3. The duty of the Medical Committee provided for in Article 23 of the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease to assess medical questions entirely objectively and independently requires, first, that the Committee has available to it all the information it might need and, second, that it has full discretionary power. The medical assessments, properly speaking, made by the Medical Committee must be regarded as definitive where they have been issued under proper conditions. The Court only has the power to ascertain, first, whether the Committee was constituted and functioned properly and, second, whether its opinion is lawful, in particular whether it contains a statement of reasons allowing an assessment to be made of the considerations on which it is based, and whether it establishes a comprehensible link between the medical findings it contains and the conclusions reached.

In the light of the limited judicial review exercised by the Court, criticism alleging a manifest error of assessment by the Medical Committee must fail.

Where the Medical Committee is required to answer complex medical questions relating to a difficult diagnosis or to the causal link between the disorder from which the official concerned is suffering and the performance of his duties with an institution, it must indicate in its opinion the factors in the file on which it has relied and, in the event of significant discrepancy, its reasons for departing from certain relevant medical reports drawn up at an earlier stage which were more favourable to the official.

(see paras 70, 91, 92, 104)

See:

AE v Commission, paras 64 and 65 and the case-law cited therein, and para. 89

4. Compliance with the reasonable time requirement in the conduct of administrative procedures constitutes a general principle of Union law whose observance the Courts ensure and which is laid down as a component of the right to sound administration by Article 41(1) of the Charter of Fundamental Rights of the European Union.

However, infringement of the reasonable time principle does not, as a general rule, justify the annulment of a decision taken as the culmination of an administrative procedure vitiated by delay. It is only where the passing of an excessive period is likely to affect the content itself of the decision adopted as the culmination of the administrative procedure that failure to observe the reasonable time principle affects the validity of the administrative procedure. Any excessive period taken to process an application for recognition of the occupational origin of a disease cannot, therefore, as a rule, affect the content itself of the opinion adopted by the Medical Committee or that of the final decision adopted by the institution. Such a period cannot, save in exceptional circumstances, alter the Medical Committee’s assessment of whether or not a disease is occupational in origin. The main practical consequence of the Civil Service Tribunal’s annulment of a decision taken in the light of the Medical Committee’s assessment would be counterproductive in that it would prolong the procedure still further on the ground that it had already gone on too long.

However, the Union courts have the power of their own motion to order the administration to pay compensation where a reasonable time has been exceeded, since such compensation represents the best form of reparation for an official, provided that the parties have been given an opportunity to submit their observations on that solution.

(see paras 113-115, 120)

See:

17 December 2009, C-197/09 RX-II M v EMEA, para. 41

11 April 2006, T-394/03 Angeletti v Commission, paras 162 to 167

12 May 2010, T-491/08 P Bui Van v Commission, para. 88

21 October 2009, F-33/08 V v Commission, para. 211, on appeal before the General Court of the European Union, Case T-510/09 P