Case C-181/01 P: Appeal brought on 25 April 2001 by N against the judgment delivered on 13 February 2001 by the Court of First Instance of the European Communities (Fifth Chamber) in Case T-2/00 N v Commission of the European Communities
Date: 2001-07-14
Institutions: Court of Justice
Subjects: AIDS, General Court (EU), action for annulment (EU), damages, health expenditure, infringement of EU law

14.7.2001

EN

Official Journal of the European Communities

C 200/47

Appeal brought on 25 April 2001 by N against the
judgment delivered on 13 February 2001 by the Court
of First Instance of the European Communities (Fifth
Chamber) in Case T-2/00 N v Commission of the European
Communities

(Case C-181/01 P)

(2001/C 200/83)

An appeal against the judgment delivered on 13 February
2001 by the Court of First Instance of the European Communi-
ties (Fifth Chamber) in Case T-2/00 N v Commission of the
European Communities was brought before the Court of
Justice of the European Communities on 25 April 2001 by N,
represented by the lawyer G. Durazzo.

The appellant claims that the Court of Justice should:

— declare the appeal admissible and well founded,

— set aside the contested judgment,

— grant the form of order sought in the application (1),

— order the Commission to pay the costs at both instances
and to reimburse the Joint Sickness Insurance Fund costs
incurred by the appellant.

Pleas in law and main arguments

— Distortion of the opinion of the Medical Committee (MC)
and infringement of the principle that measures must be
construed according to their actual content; materially
incorrect findings conflicting with the content of the said
opinion; infringement of the legal principle concerning
the interpretation of complex measures; infringement of
the principles expounded in case-law concerning the
conditions applicable to the propriety, interpretation and
content of opinions of medical committees;
illogical
and contradictory statement of reasons; breach of the
presumption of good faith; infringement of Article 19 of
the Rules on the Insurance of Officials of the European
Communities against the Risk of Accident and of Occu-
pational Disease (‘the Rules’).

— Infringement of Article 73 of the Staff Regulations and of
Articles 2, 4, 7 and 19 of the Rules: in order to avoid
defining the incident at issue as an accident (that is to say,
HIV infection), the CM introduced into the debate the
concepts of consent to risk and irresistible violence and
the possibility of treating different conditions as being
the same and not giving rise to invalidity. The Court of
First Instance, after declaring that it had jurisdiction to
examine whether the appointing authority, in endorsing
the opinion of the MC, which refers in its conclusions to
the concept of ‘accident’, respected the meaning of the
relevant provisions, did not conclude, as it should have
done, that those assessments were incorrect.

— Infringement of Articles 72 and 73 of the Staff Regu-
lations and of Article 2(1) and (2) of the Rules: The Court
of First Instance confined its examination to the issue of
transmission of the pathogen and took no account of the
view that the consequences of an accident are not limited
to its immediate effects but may manifest themselves at a
later time. Given that a particular pathology can derive
only from a specific cause, the proof lies in re ipsa: it is
sufficient to link the contamination with its cause. The
appellant observes, first, that the circumstances of his
contamination were purely sexual. He then observes that
even if the Court of First Instance’s argument that the CM
did not treat the tearing of the condom as the cause of
contamination or was not able to define such tearing
precisely were to be accepted — quod non — all the
other factual, chronological and medical circumstances
described by the MC add up to a presumption such that
the appellant’s infection can be classified as an accident.
In any event,
if the circumstances indicated do not
constitute an ‘occurrence’ of the kind referred to in
Article 2(1) of the Rules, they do add up to a ‘factor’ of
the kind mentioned in the alternative.

— Infringement of the rules governing the Commission’s
non-contractual liability (Article 288 EC): the conduct
and misconduct of the appointing authority,
if only
because of the fact that the disposal of the case was
thereby delayed, have had a psychological and stressful
impact on the appellant to an extent greater than that
which would be suffered by a person in perfect health or
in proceedings in an ordinary staff case. Since the damage
is not directly quantifiable, the appellant relies on a fair
assessment to be made by the Court.

(1) OJ C 79 of 18.3.2000.

Reference for a preliminary ruling by the Oberlandesger-
ichts Düsseldorf of 22 March 2001, in the case of Saatgut-
Treuhandverwaltungs GmbH against Werner Jäger

(Case C-182/01)

(2001/C 200/84)

Reference has been made to the Court of Justice of the
the Gerichtshof of
European Communities by order of