Case F-77/07: Action brought on 31 July 2007 — Labate v Commission
Date: 2007-09-22
Institutions: Civil Service Tribunal
Subjects: European Commission, action by staff, occupational disease, regulations for civil servants, smoking, survivor's benefit, universal health coverage

C 223/22

EN

Official Journal of the European Union

22.9.2007

Action brought on 31 July 2007 — Labate v Commission

(Case F-77/07)

(2007/C 223/38)

Language of the case: English

Parties

Applicant: Kay Labate (Tarquinia,
Forrester, Queen's Counsel)

Italy)

(represented by:

I. S.

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

— Annul the Commission's decisions of 6 October 2006 and

18 October 2004,

— Order the Commission to pay to the Applicant the sums
provided for by the Article 73 of the Staff Regulations of
Officials of the European Communities (the ‘Staff Regula-
tions’) and Article 9 of the Common Rules on the insurance
of officials of the European Communities against the risk of
accident and of occupational disease (the ‘Insurance Rules’),

— Prescribe such other or further relief as justice may require,

— Order the Commission to pay the costs of

the present

action.

Pleas in law and main arguments

former European
The applicant, Mrs. Kay Labate, widow of
Commission official Mario Labate, on her own behalf and on
behalf of her husband's estate, contests the Commission's deci-
sions refusing to recognise the lung cancer of her husband as an
occupational disease.

Mr Labate was an official with the Commission for 29 years,
during which time he was exposed, according to the Applicant,

to a large amount of secondhand tobacco smoke. He was
declared permanently invalid following the discovery of the lung
cancer which subsequently led to his death. He submitted a
request for recognition of the illness as an occupational disease.
While acknowledging Mr Labate's exposure to secondhand
tobacco smoke and finding no other cause for his lung cancer,
the Medical Committee in its decision nonetheless stated that it
could not establish with certainty the connection with his
professional activities. The Commission accordingly denied the
request, following the finding by the Medical Committee that
the connection between the disease and Mr Labate's professional
activities was not sufficiently established.

The applicant submits that the Commission erred as a matter of
law by concluding that the cancer suffered by Mr. Labate is not
covered by Article 73 of the Staff Regulations. She claims that
the standard of ‘certainty’ employed by the Medical Committee
is unreasonably strict and contrary to the case-law.

The applicant also submits that the Medical Committee failed to
address the possibility that
the secondhand tobacco smoke
which Mr. Labate was exposed to could have aggravated his
cancer, as defined in Article 3 of the Insurance Rules. Further,
the Commission failed to address the issue that although
secondhand tobacco smoke is not itself listed under that Article,
several specific carcinogenic elements of secondhand tobacco
smoke are listed and therefore covered by Article 73 of the Staff
Regulations. The applicant claims that the Medical Committee
wrongly attempted to examine questions of proof and evidence,
beyond its competence, rather than merely establishing the
medical facts.

Finally the Applicant contends that the decision by the Commis-
sion contained inadequate reasoning and that the time it took
the Commission to arrive at a decision was excessive and
contrary to principle of good administration. Had the decision
been taken before Mr Labate's death and had it recognised his
illness as work related, he would have received 8 years of salary
by way of compensation.