OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 26 JUNE 1975 ( 1 )

Mr President,

Members of the Court,

I — Facts

The applicant entered the service of the Commission in 1960 and is an official in Grade C 3 (Clerical Officer). Until 1968, he worked in the printing works of that institution in the offset shop.

Since 1964, he has been suffering from a complaint of the respiratory system, the origin of which he ascribes to the conditions under which he performed his official duties. In fact he was employed in unhealthy premises in a basement and was exposed to the effects of irritants.

He repeatedly applied for and obtained periods of sick leave from that time onwards.

In particular, from September 1965 to September 1968, that is in three years, the total length of these periods of sick leave was more than twelve months.

The last subparagraph of Article 59 (1) of the Staff Regulations enables the appointing authority to refer the matter to an Invalidity Committee in such a case.

The administration did this on 27 September 1968 by requesting such a committee to examine the applicant in order to decide whether he was suffering from total permanent invalidity making it impossible for him to perform the duties corresponding to a post in his career bracket.

The Invalidity Committee which was then set up reached the conclusion that Mr Vellozzi's state of health at that time did not prevent him from working but necessitated his being assigned to a post where there was protection from the elements, in healthy premises and in an atmosphere free from any substance which was an irritant to the respiratory tracts. Finally, it acknowledged that the conditions in which the applicant had worked previously since 1960 ‘are, in the main, the cause of his asthmatic or asthmatiform bronchitis’.

Before being informed of these conclusions, the administration had however already transferred the applicant from 5 July 1968 to another post in the Directorate-General for Competition where he was to be entrusted with the work of filing and delivering office equipment.

But Mr Vellozzi deduced from the report of the Invalidity Committee that his sickness was caused by his work and should therefore give him the right to payment of a sum for partial permanent invalidity within the meaning of Article 73 of the Staff Regulations and to the reimbursement of all medical and pharmaceutical expenses incurred in the treatment of his complaint.

He claimed the benefit of these provisions of the Staff Regulations without success and brought an application before the Court on 9 June 1971 for the annulment of thé implied rejection of his claims. He requested that he be awarded 30 % partial permanent invalidity and accordingly he claimed the benefit of the application of Article 73.

By judgment of 13 July 1972, the Court (Second Chamber) dismissed his application on the grounds that the applicant could not rely upon the report of the Invalidity Committee set up in 1968 to maintain that the latter had acknowledged that he was suffering from partial permanent invalidity; therefore the applicant was not justified in requesting that the new Invalidity Committee which he asked to be set up be simply instructed to decide the degree of the alleged invalidity and to determine the amount of medical and pharmaceutical expenses to be reimbursed to him; on the contrary, the terms of the report of the Invalidity Committee of 5 December 1968 justified the setting up of a new Committee instructed inter alia to decide the causes of any invalidity from which the applicant might be suffering.

After the application had been brought, the administration had moreover given an Invalidity Committee composed of Dr Therasse, who was appointed by the Court of Justice, Dr d'Avanzo, the applicant's own doctor, and Dr de Coster, who was appointed by agreement between the other two doctors, the task of deciding not only whether Mr Vellozzi might be suffering from total permanent invalidity but also of investigating whether the latter was suffering from partial permanent invalidity because of his working conditions, and if so, to decide the degree of that invalidity.

This new Committee reported its conclusions, which were drawn up by Dr de Coster and confirmed by Dr Therasse, to the administration on 31 March 1973. This report concludes that the applicant is suffering from partial permanent invalidity assessed at 10 % and that a study of the symptoms of his complaint does not prove that it was caused by his occupation.

On 10 December 1975, the administration sent the applicant a copy of these conclusions. He refused to consider them valid because they had not been adopted unanimously by the three doctors of whom the Invalidity Committee was made up.

On 2 January 1974 he requested that a third Invalidity Committee be set up.

On 23 April 1974 he brought a first application entered under Case 42/74 against the decision to reject his request.

Meanwhile, the Head of the Individual Rights and Privileges Division hat reminded the applicant on 3 April that Dr Romain, the Commission's medical officer, had examined him on 15 March 1973 and found him fit for work under the conditions laid down by the 1968 Invalidity Committee. Accordingly, it informed him of the decision of the appointing authority to consider his absence unauthorized and to apply Article 60 of the Staff Regulations to him by deducting this absence from his annual leave from the time when he received the letter and then to suspend payment of his salary.

After this decision had been confirmed on 10 and 14 May 1974, Mr Vellozzi was informed on 11 July that since his annual leave entitlement was used up for the current year, his salary for July was stopped as a precaution in accordance with Article 60.

On 16 May and 5 August 1974, the applicant lodged complaints against this decision the annulment of which he is requesting in a second application entered under Case 62/74.

As the two cases have been joined for procedure and judgment, you therefore have before you on the one hand, conclusions for the annulment of the rejection of the request to set up a new Invalidity Committee to apply to the applicant the provisions of Article 73 of the Staff Regulations concerning payment of sums in respect of partial permanent invalidity and consequently for a finding that the administration must set up a new Invalidity Committee for this purpose; and on the other, conclusions for the annulment of the decisions applying Article 60 of the Staff Regulations to the applicant and in particular that of 11 July 1974 whereby his monthly salary was stopped.

Before delivering my opinion on the applications, I would remind you that when the oral procedure took place on 20 February last, your Chamber took the initiative in suggesting to the parties that they enter into negotiations with the aim of settling the actions between them. But no setdement could be reached. In fact, on 28 April last, the representatives of the Commission suggested that the applicant be immediately assigned to a post which was considered by the medical officers to be compatible with his state of health.

The work in this post, which is in Division IX of the Directorate-General for Personnel (Documentation, Reproduction and Distribution of Documents), consists in the retouching of films. The premises on which this work is carried out are, according to a memorandum by the Directorate-General for Personnel, well lit and ventilated by four windows. Retouching of films is done with a product which is innocuous and odourless 20 cm away. Two doctors from the institution who were consulted considered that the applicant was perfectly fit to occupy this post.

On condition that Mr Vellozzi, who had still not returned to work, agreed straight away actually to take up the post which he was offered, the Commission stated that it was prepared to pay him his salary, only however from 20 February 1975, the date on which the parties had decided to seek an amicable settlement at the request of your Chamber.

But the applicant for his part adhered to his demands to have the decision to apply Article 60 of the Staff Regulations simply withdrawn and to receive payment of all his salary which had been witheld since July 1974.

In addition, he refused to accept delivery of the decision to transfer him and of the description of the new duties which he was being offered; he requested that these documents be sent to him by registered post.

Since the applicant on the other hand persisted in his refusal to resume duty in the post which he was offered and sent the administration five medical certificates from his own doctor to cover his absence from 1 January to 24 May 1975, which bore the same diagnosis as before, the Commission considered in the circumstances that it was impossible to reach a settlement and asked your Chamber to give a ruling on the applications.

For his part, the applicant's adviser has maintained his position.

In these circumstances the proceedings, which were stayed to enable this attempt at reaching a settlement to be made, are being resumed today.

II — The conclusions of the Invalidity Committee set up in 1973

The Commission raised an objection of inadmissibility to the first of the two applications, based on Article 91 of the Staff Regulations whereby an appeal to the Court submitted by an official against a decision adversely affecting him shall only lie on condition that the person concerned has previously submitted a complaint pursuant to Article 90(2) within the period prescribed therein.

The fact is that the applicant appealed directly to the Court against the decision dated 23 April 1974 whereby the competent authority rejected his request to set up a new Invalidity Committee, without having previously submitted a complaint. Therefore his first application is not admissible. However, I would suggest that you do not take the point of inadmissibility and that you give a ruling on the substance of the case.

In my opinion this solution is all the more advisable since the applicant's dispute as to the regularity of the conclusions of the Invalidity Committee set up in 1973 affects the result of each of the two cases before you.

I shall therefore examine the substance of the cases without dwelling upon the admissibility of the first application.

This examination will first deal with the circumstances in which the conclusions of the Invalidity Committee, set up to investigate in particular whether the applicant was suffering from partial permanent invalidity owing to his working conditions, were reached.

We know that these findings, which were reported to the administration on 31 March 1973 establish that the applicant is in fact suffering from 10 % partial permanent invalidity, but that on the other hand they consider that a study of Mr Vellozzi's symptoms does not prove that this was caused by his work, which amounts to saying that the Committee did not accept that there was a causal connexion between the invalidity and the applicant's previous working conditions.

But he maintains that the administration could not validly rely on such conclusions to refuse him the benefit of Article 73 of the Staff Regulations, on the ground that they were only reached by a majority, by two of the doctors who formed the Committee, since the third, the applicant's own doctor, who had been appointed by him, had refused to concur in the common opinion of his two colleagues.

I consider that this argument cannot be accepted.

Although Section 4 of Annex II to the Staff Regulations does not specify that the findings of an Invalidity Committee may be reached by a majority of the members of which it is made up, there seems to me to be no doubt that the rule of unanimity upon which the applicant is relying is not mandatory in the absence of any express provision.

Generally speaking, in fact, the bodies provided for in the Staff Regulations of Officials and the opinion of which is required before the administration can take certain decisions regarding its servants are made up of an uneven number of members. This is not just the case with Invalidity Committees, but also for example with the Disciplinary Boards referred to in Section 3 of the same Annex. This rule is intended to enable their opinions or findings to be reached by a majority vote.

If the principle of unanimity were acknowledged, this would cause the working of these bodies to be crippled and would prevent them from being able legally to make a decision when only one of their members refused to concur in the opinion of the majority.

Secondly, the composition of Invalidity Committees, which are bodies independent of the administration, is so organized as to guarantee their impartiality: only one of the three doctors of whom they are made up is nominated by the institution concerned; the official whose case is being examined may for his part appoint the doctor of his choice; the third doctor is chosen by agreement between the first two. In these circumstances, it may occur that the views of either the doctor appointed by the official or the one nominated by the administration are not in agreement with the common opinion of the other two members of the Committee, but this situation does not invalidate conclusions reached by a majority.

The question was moreover decided to this effect by the judgment of the Second Chamber of 14 December 1966 (Case 3/66, Alfieri v European Parliament, [1966] ECR 437). This finding has just been upheld by a judgment of the First Chamber of 12 March 1975 (Case 31/71, Gigante v Commission) which has not yet been published.

In this case, it is not disputed that the conclusions of the Invalidity Committee were drawn up by Dr de Coster, the doctor chosen by agreement between the other two members of the Committee and countersigned by Dr Therasse. Only Dr d'Avanzo, the doctor appointed by the applicant, refused to approve them.

However, these conclusions were reached legally. The administration could rely upon the opinion thus delivered by the Invalidity Committee to deduce that the partial permanent invalidity from which the applicant is suffering cannot be attributed to the post he held and cannot therefore justify the grant of a payment under Article 73 of the Staff Regulations.

These considerations also enable me to submit that Application 42/74 should be dismissed on the substance of the case. In fact, to justify his request that a new Invalidity Committee be set up, the applicant relied precisely on the irregularity which he claims invalidates the opinion of the Committee which was set up to examine his case in 1973 because this opinion was not reached unanimously.

The administration therefore rejected this request legitimately since it had in its possession conclusions which were reached legally by the majority of its members by the Invalidity Committee which it had previously set up. It did not have to set up a new Invalidity Committee the terms of reference of which could only be identical to those which had been given to the previous one.

III — The application of Article 60 of the Staff Regulations

I now come to the case on the application of Article 60 of the Staff Regulations whereby: ‘Except in case of sickness or accident, an official may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorized absence which is duly established shall be deducted from the annual leave of the official concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period’.

You will remember that Mr Vellozzi had already had sick leave on numerous occasions from 1964 to 1968 until the first Invalidity Committee given the duty of examining his case held that although he was suffering from a bronchial complaint, he was fit to perform his duties on condition that the working conditions he was given were compatible with his state of health. Following this, the applicant only returned to work for a very short time.

Mr Vellozzi puts forward as his first argument against this decision that Article 60 cannot be applied to an official whose absence is caused by sickness. In fact, this article expressly makes an exception for cases of sickness or accident and Article 59 (1) of the Staff Regulations in turn provides: ‘An official who provides evidence of incapacity to perform his duties because of sickness or accident shall automatically be entitled to sick leave’.

However, this provision makes the right to sick leave conditional upon the official's justifying that he is incapable of performing his duties because of the sickness from which he is suffering. The person concerned must not only notify the administration of his incapacity as soon as possible but he must produce a medical certificate if he is absent for more than three days. Finally, he may be required to undergo a medical examination arranged by the institution for which he works.

These provisions suffice to show that it is not enough to rely upon a bad state of health or some sickness for the absence to be considered authorized and so to avoid the application of Article 60. The official must justify a claim to be suffering from a complaint which is such as to make him incapable of performing his duties and his claim must be verified by the medical service of the administration.

This requirement of justifying absences is not satisfied merely by producing certificates from the official's own doctor stating that the official is unfit to work. It seems to me in this case to be well established that the medical certificates produced by the applicant only record the same bronchial complaint which the first Invalidity Committee held did not make Mr Vellozzi unfit to work, even though it recommended at the same time that he should be assigned to a different post. As for the second Invalidity Committee, it concluded that there was such a small degree of partial permanent invalidity that it could clearly not justify the applicant's incapacity to perform the duties to which he had been assigned since 1968.

Finally, the medical examinations carried out from October 1973 to May 1974 all decided that the applicant was fit for work. Even though at one of these examinations, in April 1974, Dr Turner, the medical officer, considered that it was necessary to cut out the work in the archives from the duties allocated to the applicant at that time, this reservation certainly did not invalidate the finding that he was fit to fill a post The reason for this observation was moreover that the department in which Mr Vellozzi should have worked had moved to a new building the month before and Dr Turners visit to it decided him to recommend this reservation which would not previously have been justified.

From 1971 to 1974 his absences ‘because of sickness’ were almost continuous. Not including periods of annual leave, he was absent for a total of 244 days in 1971, 337 days in 1972, 307 days in 1973 and finally for 174 days for the first half only of 1974.

Moreover, we know that since 1 July of last year, he has not returned to work.

After he was informed of the conclusions of the second Invalidity Committee which, whilst recognizing that he was suffering from slight partial permanent invalidity, acknowledged that he was fit to work, the applicant was formally requested to return to work and from that time on was warned of the consequences of a refusal on his part. Further examinations were then carried out periodically by the medical service of the Commission from October 1973 to the end of May 1974. Each of these examinations led to the conclusion that the applicant was in fact fit to work.

For this reason the administration took the decision on 3 April 1974 to apply to him the provisions of Article 60 of the Staff Regulations. Not until the following July did it state that since the applicant's annual leave entitlement had been used up, payment of his salary had thenceforth to be suspended, though only as a precaution.

Therefore producing certificates from his own doctor repeatedly in the same form for more than three years based on the sickness already found by the first Invalidity Committee in 1968 could not in any way provide the evidence required by Article 59 (1) that the applicant was incapable of performing his duties, especially when the further medical examinations clearly conformed that he was fit for work, at least in conditions compatible with his state of health.

Therefore the appointing authority was justified in considering, and it only decided to do so after exercising continuing patience, that the applicant's absences were unauthorized within the meaning of Article 60.

There remains the last argument which is no more acceptable. This is drawn from the provisions of Article 59 (3) of the Staff Regulations whereby: ‘Cases in dispute shall be referred to the Invalidity Committee for an opinion’.

The applicant maintains that the obligation imposed on the administration to consult the Invalidity Committee applies where, as in his case, a dispute arises as to whether an official is incapable because of sickness of performing his duties (paragraph 1) as well as to the situation envisaged in Article 59 (2) where an official is required by the administration to take leave after examination by a medical officer, if the state of health of this servant so requires or if a member of his household is suffering from a contagious disease.

On the contrary, the defendant maintains that the opinion of the Invalidity Committee is only required in the second situation.

I prefer the latter interpretation for, where sick leave is granted to an official upon request, it seems to me to follow clearly from the last paragraph of Article 59 (1) that the case must only be referred to the Invalidity Committee if the sick leave totals more than twelve months in any period of three years. This is moreover the logical answer: if, for quite a long period of time, an official has provided evidence of incapacity to perform his duties for a total of more than twelve months, the question whether he is in fact still fit to hold a post or whether, on the contrary, he is actually suffering from total permanent invalidity which renders him permanently unfit to do any work should certainly be investigated. This, you will remember, was also the procedure which the Commission invoked in 1968 after Mr Vellozzi had had sick leave totalling more than twelve months from September 1965 to September 1968.

On the other hand, it is hard to imagine that in every case where an official has been absent, even for a few days and claims that he has been sick, the administration must refer the matter to the Invalidity Committee if a dispute arises between it and the official as to whether the latter was in fact temporarily unfit for work. To accept such a wide interpretation would compel the institutions to refer cases to Invalidity Committees too frequently. The defendant is right in saying that this procedure must only be implemented in serious cases.

But, even if we accept the applicant's argument, it seems to me that in this case it was not necessary at all events to refer the matter to the Invalidity Committee for the simple reason that this had already been done in 1973 and that the Committee to whom the matter was referred at that time did not conclude in any way in its findings that the applicant was unfit for work because of the complaint which had been diagnosed. A serious dispute could only have arisen and there would only have been grounds for referring the matter to a new Committee if the applicant had either subsequently claimed that his state of health had greatly deteriorated or that he was suffering from a different illness from the one which had previously been diagnosed. But the applicant claims to justify his absences for more than three years by the same complaint of the respiratory system and he does not even allege that this illness has become worse so as to prevent him from performing his duties.

His request in 1974 that a third Invalidity Committee be set up was only based, as we know, on the irregularity which he claimed invalidated the conclusions of the Invalidity Committee which had previously been set up.

In these circumstances I conclude that the two Applications 42 and 62/74 should be dismissed and that, under Article 70 of the Rules of Procedure, the parties should bear their own costs.

( 1 ) Translated from the French.