JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

23 November 2010

Case F-65/09

Luigi Marcuccio

v

European Commission

(Civil service — Officials — Social security — Sickness insurance — Serious illness — Objection of illegality concerning the criteria adopted by the Medical Council — Rejection of claims for reimbursement of medical expenses)

Application: brought under Articles 236 EC and 152 EA, in which Mr Marcuccio seeks in particular, first, annulment of the Commission’s decision of 5 August 2008, adopted to comply with the judgment of the General Court of the European Communities of 10 June 2008 in Case T-18/04 Marcuccio v Commission, not published in the ECR, rejecting his application of 25 November 2002 for 100% reimbursement of the medical expenses incurred for treatment of the disorders because of which he has been on sick leave since 4 January 2002, second, annulment of the decision rejecting his complaint against that first decision, and third, an order that the Commission pay him the sum of EUR 25 000 in compensation for the harm he alleges he has suffered as a result of those decisions.

Held: The action is dismissed. The applicant is ordered to pay all the costs.

Summary

1. Officials — Actions — Act adversely affecting an official — Concept — Preparatory act — Not included

(Staff Regulations, Art. 90(2))

2. Officials — Social security — Sickness insurance — Serious illness — Determination

(Staff Regulations, Art. 72; Rules on Sickness Insurance, Annex I, Section IV(1))

3. Officials — Social security — Sickness insurance — Serious illness — Determination

(Staff Regulations, Art. 72; Rules on Sickness Insurance)

4. Officials — Decision adversely affecting an official — Obligation to state the reasons on which the decision is based — Application to have a certain disease recognised as a serious illness — Refusal on the basis of a medical opinion

(Staff Regulations, Art. 72)

5. Officials — Social security — Sickness insurance — Serious illness — Determination

(Staff Regulations, Art. 72(1))

1. Only acts or measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position can be regarded as acts adversely affecting him.

Acts preparatory to a decision do not adversely affect officials and an official may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure. Although some purely preparatory measures may adversely affect an official inasmuch as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action and must be challenged in support of an action brought against that act.

With regard to a procedure under Article 72(1) of the Staff Regulations seeking to have an illness recognised as a serious illness within the meaning of that provision, it is established that, under the Rules on Sickness Insurance, the final decision is taken by the appointing authority or the competent Settlements Office where it has been designated to do so by the appointing authority, following the opinion of the Office’s medical officer. It is only when that decision is taken and not when the medical officer issues his opinion that the official’s legal position is affected.

(see paras 41-43)

See:

35/67 Van Eick v Commission [1968] ECR 329, 341; 32/68 Grasselli v Commission [1969] ECR 505, paras 4 to 7; 78/87 and 220/87 Santarelli v Commission [1988] ECR 2699, para. 13

T-586/93 Kotzonis v ESC [1995] ECR II-665, para. 28; T-26/96 Lopes v Court of Justice [1996] ECR-SC I-A-487 and II-1357, para. 19

2. Consideration of the legality of the general criteria laid down by the Medical Council for determining whether a disease may be recognised as a serious illness, as provided for in Annex I, Section IV(1), of the Rules on Sickness Insurance for Officials of the European Union, drawn up pursuant to Article 72 of the Staff Regulations, is not a purely medical assessment which the Tribunal would not have jurisdiction to review. The point is not to analyse whether or not a medical assessment made in a particular case, such as a diagnosis issued by a doctor or a treatment prescribed by him, is appropriate, but to consider whether the measures of general application taken for the application of Article 72 of the Staff Regulations are such as to satisfy the legislature’s intention, which is that illnesses ‘of comparable seriousness’ to those mentioned in that article may be recognised as serious illnesses. However, such a review of legality involves the taking into account of medical considerations, which the court is not in the best position to assess, and this explains why the judicial review must be confined to declaring unlawful any manifest errors vitiating those measures of general application implementing Article 72 of the Staff Regulations.

(see para. 50)

See:

339/85 Brunotti v Commission [1988] ECR 1379

T-6/92 and T-52/92 Reinarz v Commission [1993] ECR II-1047, paras 54 to 57

F-105/05 Wils v Parliament [2007] ECR-SC I-A-1-207 and II-A-1-1187, paras 68 to 71 and the case-law cited therein; F-10/07 Botos v Commission [2007] ECR-SC I-A-1-243 and II-A-1-1345, paras 39 to 41 and 62 to 76

3. The illnesses 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 or chronic and need aggressive therapeutic procedures; the prior diagnosis must therefore be clear, which in turn requires special analyses or investigations. Those illnesses are also liable to expose the person concerned to the risk of serious disability.

It is clear from both Article 72 of the Staff Regulations and the rules on recognition of serious illnesses laid down in the Rules on Sickness Insurance for Officials of the European Union that such recognition is subject to an examination of the state of health of the person concerned and of the conditions of treatment of the disease in question.

Article 72 of the Staff Regulations does not merely set out a list of serious illnesses recognised as such a priori and in the abstract, irrespective of the situation of the person concerned. It provides that other illnesses may be recognised as of comparable seriousness by the appointing authority. Recognition of those other serious illnesses depends on a detailed examination of the state of health of the person concerned, conducted on the basis of a report by the doctor treating him, in the light of the criteria laid down by the Medical Council, all of which involve a precise analysis of the situation of the person concerned.

(see paras 52, 55-56)

4. A decision by which an institution refuses a request to have a certain disease recognised as a serious illness, referring to the opinion of the medical officer that two of the cumulative criteria for classifying a disorder as a serious illness were not satisfied, discloses the factual and legal reasons why the illness of the person concerned was not allowed that classification. Such a statement of reasons in the form of a reference, albeit succinct, may be accepted, particularly where the decision challenged by the official concerned occurs in a regulatory context already known to him, because he had previously taken similar steps. The brevity of such a statement of reasons is not such as to prevent the review which the Tribunal must conduct of such decisions.

(see paras 61-62)

See:

C-316/97 P Parliament v Gaspari [1998] ECR I-7597, paras 26 to 29

T-143/08 Marcuccio v Commission [2008] ECR-SC I-A-2-47 and II-A-2-321; T-34/99 Pipeaux v Parliament [2000] ECR-SC I-A-79 and II-337, para. 8

5. It is clear from the very wording of Article 72(1) of the Staff Regulations that only illnesses of a particular seriousness are capable of providing entitlement to 100% reimbursement of associated medical expenses. The general and imprecise notion of mental illness mentioned in that article can therefore refer only to illnesses which are, on an objective view, of a certain seriousness, rather than any psychological or psychiatric disorder, no matter how serious. There is no reason to think that, when it comes to disorders of that type, the legislature intended to apply a less restrictive definition than for physical disorders.

In the absence of any clarification, in Article 72 of the Staff Regulations, of which illnesses may be regarded as mental illnesses within the meaning of that provision, it is for the administration to consider, in each case, in the light of the criteria for defining a serious illness laid down by the Medical Council, whether the mental condition or psychological disorder from which the official suffers may have the particularly serious nature which, alone, would entitle him to 100% reimbursement of medical expenses.

The mere fact of suffering from such a condition does not automatically allow the official to obtain recognition of the benefit of 100% reimbursement of the costs associated with that condition.

(see paras 70-71, 73)