CELEX: 62001TJ0048
Language: en
Date: 2004-03-03
Title: Judgment of the Court of First Instance (Second Chamber) of 3 March 2004. # François Vainker and Brenda Vainker v European Parliament. # Officials - Occupational disease - Article 73 of the Staff Regulations - Claim for damages - Irregularities in the procedure for recognition of the occupational origin of a disease - Damage - Damage suffered by the spouse of a former official. # Case T-48/01.

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)
      3 March 2004
      Case T-48/01
      François Vainker and Brenda Vainker
      v
      European Parliament
      (Officials – Occupational disease – Article 73 of the Staff Regulations – Claim for damages – Irregularities in the procedure for recognition of the occupational origin of a disease – Damage – Damage suffered by the spouse of a former official)
      Full text in English II - 0000
      Application:         for three applications for damages pursuant to Article 236 EC and the second paragraph of Article 288 EC, in order to make
         good damage allegedly suffered, first, by the applicant Mr Vainker, by reason of the fact that he has contracted an occupational
         disease and, second, by the applicants as a result of the mishandling by the defendant institution of the claim for compensation
         under Article 73 of the Staff Regulations of Officials of the European Communities.
      
      Held:         The Parliament is ordered to pay Mr Vainker the sum of EUR 60 000. The Parliament is ordered to pay the applicant, Mr Vainker,
         the sum of GBP 8 244.94 by way of reimbursement of legal costs incurred during the procedure for recognition of the occupational
         origin of  Mr Vainker’s disease. The Parliament is ordered to pay the applicant, Mr Vainker, default interest on the sum of
         EUR 617 617.94 from 29 November 1999 to 9 January 2002. The rate of that interest must be calculated on the basis of the rate
         fixed by the European Central Bank for its main refinancing operations, in force from time to time during the period concerned,
         plus two percentage points. The remainder of the application is dismissed. The Parliament is ordered to pay its own costs
         and two thirds of those of the applicants.
      
      Summary
      1.     Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Damage – Causal link
      2.     Officials – Organisation of departments – Posting of staff – Discretion of the administration – Limits – Interest of the service
            – Respect for the principle of equivalence of posts – Judicial review – Limits
      (Staff Regulations, Art. 7)
      3.     Officials – Administration’s duty to have regard for the welfare of its servants – Scope – Limits
      4.     Officials – Social security – Insurance against accidents and occupational diseases – Establishment of the occupational origin
            of the disease – Procedure – Handing over of all relevant documents to the doctor(s) appointed by the institutions – No full
            enquiry as provided for in Article 17(2) of the Rules on the insurance of officials against the risk of accident and of occupational
            disease – Irregularity
      (Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease,
            Arts 17(2) and 19)
      5.     Officials – Social security – Insurance against accidents and occupational diseases – Establishment of the occupational origin
            of the disease – Procedure – Access by the official to documents in the medical file – Indirect access
      (Staff Regulations, Art. 73; Rules on the insurance of officials against the risk of accident and of occupational disease,
            Art. 17)
      6.     Officials – Non-contractual liability of the institutions – Service-related fault – Incorrect interpretation of a provision
            of the Staff Regulations not in itself a service-related fault – Negligent conduct towards an official in breach of the duty
            to have regard for his welfare – Service-related fault
      7.     Procedure – Application initiating proceedings – Procedural requirements – Summary of the pleas in law relied upon – Similar
            requirements for submissions in support of a plea in law – Complaints not set out in the application – Catch-all reference
            to the annexes – Inadmissible
      (EC Statute of the Court of Justice, Art. 19, first para.; Rules of Procedure of the Court of First Instance, Art. 44(1))
      8.     Officials – Non-contractual liability of the institutions – Damage – Compensation – Late adoption of a decision recognising
            the occupational origin of an official’s disease and establishing his invalidity rate – Right to compensatory interest on
            capital as provided for in Article 73 of the Staff Regulations – Period for the payment of interest
      (EC Treaty, Art. 179 (now Art. 236 EC); Staff Regulations, Art. 73)
      9.     Officials – Non-contractual liability of the institutions – Damage suffered by the spouse as a result of the official’s occupational
            disease – No liability
      1.     The Community can only be held liable for damages if a number of conditions are satisfied as regards the illegality of the
         allegedly wrongful act committed by the institutions, the actual harm suffered, and the existence of a causal link between
         the act and the damage alleged to have been suffered.
      
      (see para. 52)
      See: C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, para. 42; T-165/95 Lucaccioni v Commission [1998] ECR-SC I-A-203 and II-627, para. 56
      
      2.     The institutions have wide discretion to organise their departments to suit the tasks entrusted to them and to assign the
         staff available to them in the light of such tasks, on condition, however, that the staff are assigned in the interests of
         the service and in conformity with the principle of assignment to an equivalent post.
      
      Furthermore, any problems which might be caused to his former department by the departure of an official and the benefit to
         his new department which might be obtained from his reassignment are considerations which are governed by the broad discretion
         which the institutions have to organise their departments. Consequently, the Court’s review must be confined to ascertaining
         whether the appointing authority kept within limits which are not open to criticism and did not misuse its discretion.
      
      (see paras 86-87)
      See: T-78/96 and T-170/96 W v Commission [1998] ECR-SC I-A-239 and II-745, paras 87 and 92, and the case-law cited
      
      3.     The administration’s duty to have regard for the welfare of its servants reflects the balance of reciprocal rights and obligations
         established by the Staff Regulations in the relationship between the official authority and the civil servants. A particular
         consequence of this duty is that when the official authority takes a decision concerning the situation of an official it should
         take into consideration all the factors which may affect its decision and that when doing so it should take into account not
         only the interests of the service but also those of the official concerned.
      
      (see para. 125)
      See: 321/85 Schwiering v Court of Auditors [1986] ECR 3199, para. 18; T-133/89 Burban v Parliament [1990] ECR II-245, para. 27; T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249, para. 96
      
      4.     For a Medical Committee validly to issue a medical opinion, it must be in a position to have notice of all documents which
         may be useful for its assessments. This argument may be applied, by analogy, to the findings issued by the doctor(s) appointed
         by the institutions referred to in Article 19 of the Rules on the insurance of officials against the risk of accident and
         of occupational disease.
      
      Thus, where no full enquiry as provided for in Article 17(2) of the Rules has been carried out in order to obtain all the
         particulars necessary to determine the nature of the disease, whether it has resulted from the official’s occupation and the
         circumstances in which it arose, the doctor appointed by the institution is not in a valid position to issue his findings.
      
      It follows that the institution behaves improperly in not drawing up an enquiry report in accordance with the requirements
         of that article on the basis of a full and objective examination of the circumstances.
      
      (see paras 126, 132-134)
      See: T-187/95 R v Commission [1997] ECR-SC I-A-253 and II-729, para. 49; T-27/98 Nardone v Commission [1999] ECR-SC I-A-267 and II-1293, para. 68
      
      5.     In the context of a procedure for the recognition of the occupational origin of a disease, observance of the rights of the
         official is ensured, having regard to the particular nature of the documents in question, by the possibility for him to acquaint
         himself with the particulars in the file prepared by the appointing authority by the interposition of the doctor of his choice
         and to appoint a doctor to defend his interests within the Medical Committee. By providing for indirect access to documents
         of a medical nature through the interposition of a medical examiner appointed by the official, the rules reconcile the rights
         of the official with the requirements of medical confidentiality.
      
      (see para. 137)
      See: 140/86 Strack v Commission [1987] ECR 3939, para. 12; C-283/90 P Vidrányi v Commission [1991] ECR I-4339, para. 23; T-154/89 Vidrányi v Commission [1990] ECR II-445, para. 34
      
      6.     As a rule, the adoption by the administration of an incorrect interpretation of a provision of the Staff Regulations does
         not in itself constitute a service-related fault.
      
      However, the adoption, in respect of an official who has lodged objections to the conduct of a procedure for establishing
         the occupational origin of a disease, of a negligent course of action involving the communication of inaccurate or contradictory
         information, in breach of the duty to have regard for his welfare, does constitute a wrongful act.
      
      (see paras 142, 149)
      See: 79/71 Heinemann v Commission [1972] ECR 579, para. 11; T-94/92 X v Commission [1994] ECR-SC I-A-149 and II-481, para. 52
      
      7.     Under the first paragraph of Article 19 of the Statute of the Court of Justice and Article 44(1) of the Rules of Procedure
         of the Court of First Instance the application initiating the proceedings must contain a summary of the pleas in law relied
         on. Since that requirement is mandatory, the issue of compliance with it may be raised by the Court of First Instance of its
         own motion. The summary of the pleas relied on must be sufficiently clear and precise to enable the defendant to prepare its
         defence and the Court to rule on the action, if necessary without any other supporting information. Similar requirements are
         called for where a submission is made in support of a plea in law. Moreover, it is not for the Court to seek and identify
         in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential
         and instrumental function.
      
      (see para. 151)
      See: T-231/99 Joynson v Commission [2002] ECR II-2085, para. 154 and the case-law cited
      
      8.     Where the decision recognising that an official’s disease is occupational in origin and fixing his rate of invalidity is adopted
         late, owing to irregularities or negligence attributable to the institution in question, the official concerned may claim,
         by way of damages under the general system of non-contractual liability applicable in the context of Article 179 of the EC
         Treaty (now Article 236 EC), default interest on the lump sum to which he is entitled, under Article 73 of the Staff Regulations
         for the period between the date on which the institution should reasonably have been in a position to adopt the decision recognising
         his occupational disease if it had acted with all due diligence and the date on which the lump sum is paid.
      
      (see para. 188)
      See: T-300/97 Latino v Commission [1999] ECR-SC I-A-259 and II-1263, para. 99
      
      9.     A claim by the spouse of an official with an occupational disease for compensation for harm which results from the injury
         suffered by the official but which does not constitute part of the harm for which the institution can be held liable in its
         capacity as employer must be dismissed.
      
      (see paras 210, 212)
      See: 169/83 and 136/84 Leussink and Brummelhuis v Commission [1986] ECR 2801, para. 22
      
JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)(*)
      
      3 March 2004 
      (Officials – Occupational disease – Article 73 of the Staff Regulations – Claim for damages – Irregularities in the procedure for recognition of the occupational origin of a disease – Damage – Damage suffered by the spouse of a former official)
      In Case T-48/01, 
      François VAINKER, former official of the European Parliament and  Brenda VAINKER, his wife, resident in Middlesex (United Kingdom), represented by J. Grayston and A. Bywater, solicitors, 
      
      applicants, 
      v
      European Parliament, represented by H. von Hertzen and D. Moore, acting as Agents, and D. Waelbroeck, lawyer, with an address for service in
         Luxembourg, 
      
      defendant, 
      APPLICATION for damages pursuant to Article 236 EC and the second paragraph of Article 288 EC, in order to make good damage
         allegedly suffered, first, by the applicant, Mr Vainker, by reason of the fact that he has contracted an occupational disease
         and, second, by the applicants as a result of the mishandling by the defendant institution of the claim for compensation under
         Article 73 of the Staff Regulations of Officials of the European Communities,
      
      THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),
      Registrar: H. Jung,
      having regard to the written procedure and following the hearing of 29 January 2003,
      gives the following
      Judgment
       Legal background
      1        
         
          The first subparagraph of Article 73(1) of the Staff Regulations of Officials of the European Communities (hereinafter ‘Staff
         Regulations’) provides that an official is insured, from the date of his entering the service, against the risk of occupational
         disease and of accident.  Under Article 73(2)(b) and (c) of the Staff Regulations, the benefit payable in the event of total
         permanent invalidity consists of a lump sum equal to eight times the annual basic salary of the official concerned calculated
         on the basis of the monthly amounts of salary received during the 12 months before the accident and, in the event of partial
         permanent invalidity, of a proportion of that sum, calculated by reference to the scale laid down in the rules referred to
         in Article 73(1) of the Staff Regulations.  The rules on the insurance of officials of the European Communities against the
         risk of accident and of occupational disease (hereinafter  ‘the Rules’) establish, pursuant to Article 73 of the Staff Regulations,
         the conditions under which an official is insured against such risks and the procedure to be applied to claims for compensation.
         
      
      2       Under Article 17(1) of the Rules, an official who requests application of the Rules on grounds of an occupational disease
         must submit a statement to the administration of the institution to which he belongs within a reasonable period following
         the onset of the disease or the date on which it was diagnosed for the first time. The statement may be submitted by the official
         or, where the symptoms of the disease allegedly caused by his occupation become apparent after the termination of his service,
         the former official. 
      
      3       Article 17(2) of the Rules provides: ‘The Administration shall hold an inquiry in order to obtain all the particulars necessary
         to determine the nature of the disease, whether it has resulted from the official’s occupation and also the circumstances
         in which it arose.’
      
       Background to the dispute
      4        
         
          Mr Vainker, who was born in 1952, entered the service of the Parliament in 1979.  Since then he has held various legal posts
         within that institution.  On 1 April 1991 he was appointed to the Legal Service and was there promoted to grade A3 in November
         1992.  Mrs Vainker is his wife.
      
      5        
         
          In 1997 Mr Vainker suffered a nervous breakdown.  In that year he took sick leave twice.  The second period of sick leave
         began on 23 October 1997 and he has not resumed work since then.
      
      6        
         
          By letter of 14 November 1997 Mr Vainker submitted a request for recognition of the occupational nature of his disease and
         for the calculation of due compensation under Article 17 of the Rules.  In support of his request, he sent the Parliament’s
         Medical Officer the report of his doctor, Dr Rehling, of 17 November 1997, which recommended Mr Vainker’s retirement on medical
         grounds. 
      
      7        
         
          In a letter of 13 January 1998 Mr Vainker set out the link between his illness and the performance of his duties for the
         Parliament.  That letter was supplemented by a second one of 4 February 1999.
      
      8        
         
          In accordance with Article 17(2) of the Rules, the Parliament held an inquiry in order to obtain all the particulars necessary
         to determine the nature of the disease, whether it has resulted from the official’s occupation and the circumstances in which
         it arose.  It is clear from the court file that the only administrative document obtained in the course of that inquiry was
         a note from the Jurisconsult of Parliament, Mr Garzón Clariana, of 8 July 1998, in which he states inter alia that ‘the conditions
         under which Mr Vainker’s duties were performed were similar to those of the other heads of division in the Legal Service’
         (‘the note of the Jurisconsult’).
      
      9        
         
          Mr Vainker, his doctor, Dr Rehling, and Mrs Vainker took action on several occasions to have the claim expedited. 
      
      10      
         
          Mr Vainker sent a second medical report to the Parliament, drawn up on 3 May 1998 by another specialist, Dr Thomas, confirming
         the conclusions already reached by Mr Vainker’s usual doctor, Dr Rehling. 
      
      11      
         
          By letter of 17 July 1998, the Parliament informed Mr Vainker that the inquiry had been concluded and, in response to his
         request for a copy of the result of the inquiry, informed him that the report on the administrative inquiry was intended for
         the doctor appointed by the institution. 
      
      12      
         
          Between that date and 16 November 1998, Mr Vainker was examined by two doctors appointed by the Parliament, that is to say,
         first, on 21 August 1998, by Dr Boquel in Nancy (France), and then, on 20 and 29 October 1999, by Dr Van Acker in Brussels.
         
      
      13     By letter of 5 November 1998, Mr Vainker informed the Parliament of irregularities in the two medical examinations by Dr Van
         Acker, notably the fact that Dr Van Acker did not have a copy of his medical file.  Moreover, Dr Van Acker had arranged a
         third examination for 16 November 1998, whereas Mr Vainker took the view that Dr Van Acker had enough information to decide
         whether he was capable of working and asked the Parliament whether it was necessary for him to be examined again by that doctor.
      
      14      
         
          By letter of 16 November 1998, the Parliament sent to Mr Vainker the draft decision provided for in Article 21 of the Rules. 
         That draft decision stated that the disease from which he was suffering was of an occupational nature; that he was suffering
         from a hitherto unrecognised, but indisputable ‘pre-existing condition’; that Mr Vainker’s condition had not stabilised and
         that he should be re-examined in 12 to 18 months.  Mr Vainker was given notice that he had 60 days in which either to accept
         the draft decision or to request the consultation of the Medical Committee under Article 23 of the Rules. 
      
      15      
         
          Following several requests by the applicants, copies of the report of Dr Boquel and of the note of the Jurisconsult were
         sent to Mr Vainker’s doctor on 25 November 1998. 
      
      16      
         
          Having seen those two documents, Mr Vainker informed the Parliament, by letter of 1 December 1998 that he could not accept
         the draft decision.  In that letter he expressed the view that the note of the Jurisconsult, the applicant’s immediate superior,
         the contents of which he did not accept, did not represent an adequate administrative inquiry. He also stated that, to his
         knowledge, there was no report drawn up following the inquiry as laid down by Article 17 of the Rules. In his view, by conducting
         itself as it did, the Parliament had not properly discharged its obligation to hold an administrative inquiry under Article
         17 of the Rules.  He alleged, further, that the report by Dr Boquel ─ on the basis of which Dr Helmer, the doctor appointed
         for the purposes of the inquiry procedure, drew up the final expert’s report ─ was vitiated by errors.  Consequently, he asked
         the Parliament to annul the procedure and commence a new procedure. 
      
      17      
         
          That request was refused by letter of 19 April 1999, inter alia because the Rules make no provision for annulment and reopening
         of the inquiry procedure.  
      
      18      
         
          By letters of 4 February, 8 May and 20 June 1999, Mrs Vainker contacted the Parliament to defend the interests of her husband
         in the handling of his request for recognition of the occupational nature of his disease.  In particular, she asked that the
         procedure be expedited as its completion was crucial for her husband’s recovery.  In that correspondence mention is made of
         further contact made by Mrs Vainker with the Parliament in writing and, on several occasions, by telephone.   
      
      19      
         
          In the meantime, by decision of 29 April 1999, the Parliament retired Mr Vainker and granted him a pension for permanent
         total invalidity pursuant to Article 78 of the Staff Regulations with effect from 1 May 1999. 
      
      20      
         
          By letter of 15 June 1999 the Parliament sent Mr Vainker a new draft decision, replacing that of 13 November 1998, which
         omitted the reference to a ‘pre-existing condition’ but confirmed that the disease had not stabilised.  On 14 July 1999, Mr
         Vainker lodged a complaint under Article 90(2) of the Staff Regulations against that draft decision and the decision of the
         Parliament of 19 April 1999 refusing the annulment of the procedure. He annexed to the complaint sent to Parliament a medical
         report certifying that his condition had stabilised within the meaning of the first paragraph of Article 20 of the Rules (report
         by Dr Bamber of 17 June 1999). 
      
      21      
         
          On 10 September 1999, the Parliament adopted a final decision confirming the draft decision mentioned in the previous paragraph.
         On 17 October 1999, Mr Vainker lodged a further complaint under Article 90(2) of the Staff Regulations against that decision.
         
      
      22      
         
          By letter of 12 November 1999, the Parliament upheld Mr Vainker’s complaints and decided to annul the decisions taken previously
         pursuant to Article 19 of the Rules (the draft decisions and the final decision of 10 September 1999 recognising that he was
         suffering from an occupational disease), to recommence the administrative and medical inquiry in order to determine whether
         Mr Vainker’s illness resulted from his occupation and to withdraw Dr Boquel’s and Dr Helmer’s reports from the file.  
      
      23      
         
          In the course of this new procedure for recognition that Mr Vainker was suffering from an occupational disease, following
         a request from his lawyer, on 15 March 2000 the Parliament sent Dr Rehling (Mr Vainker’s doctor) the file which had been sent
         to Dr Lipsedge, the doctor appointed for the purposes of the new inquiry procedure to examine Mr Vainker.  He was examined
         by Dr Lipsedge on 31 May 2000. 
      
      24      
         
          In the meantime, by letter of 17 March 2000, Mr Vainker submitted a request pursuant to Article 90(1) of the Staff Regulations
         asking the Parliament, first, to compensate him for the material and non-material damage resulting from its breach of its
         obligation to provide a safe place of work and its obligation to make arrangements to protect his health, breaches which,
         he alleges, caused his illness and, second, to compensate Mr Vainker, his wife and their children for the non-material damage
         suffered as a result of the mismanagement of the procedure for recognition that Mr Vainker was suffering from an occupational
         disease. 
      
      25      
         
          As the Parliament did not reply to that request within the period prescribed, on 22 July 2000 Mr Vainker submitted a complaint
         pursuant to Article 90(2) of the Staff Regulations against the implied refusal of his request. 
      
      26      
         
          By letter of 28 August 2000, the Parliament notified Mr Vainker of its express refusal of his request of 17 March 2000. 
      
      27      
         
          The Parliament did not respond to the complaint of 22 July 2000 within the prescribed period. 
      
      28      
         
          On 23 November 2000, the Parliament sent Mr Vainker another draft decision recognising the occupational nature of his disease
         within the meaning of Article 19 of the Rules.  In that draft decision it was acknowledged that the illness from which Mr
         Vainker was suffering was a result of the performance of his duties at the Parliament but that it had not stabilised in so
         far as his condition may be reversible.  
      
      29      
         
          At the request of Mr Vainker, the report of Dr Lipsedge of 25 September 2000 on the basis of which the draft decision was
         drawn up was sent to his doctor.  That report reproduced certain passages from a report by Dr Van Acker one of the doctors
         appointed by the Parliament to examine Mr Vainker. 
      
      30      
         
          Having received that draft decision and the final report of Dr Lipsedge, Mr Vainker, first, on 7 December 2000, refused to
         accept the draft and requested that the Medical Committee, provided for by Article 21 of the Rules in the case of disagreement,
         be convened.  
      
      31      
         
          Second, by letter of 12 December 2000, he asked the President of the Parliament to apologise for remarks made about Mrs Vainker
         and also pointed out that the report by Dr Van Acker was not included in the list of documents in the file sent to Dr Lipsedge,
         of which he was notified by letter of 15 March 2000 from the Parliament. 
      
      32      
         
          By letter of 6 February 2001, the Parliament informed Mr Vainker that the report by Dr Van Acker was included in his medical
         file which was sent to Dr Lipsedge following a request by Dr Lipsedge to which Mr Vainker’s written authorisation was attached.
         
      
      33     
         
         Subsequently, the Medical Committee, which was convened solely to decide the question of the stabilisation of the illness
         from which Mr Vainker was suffering and the resultant rate of permanent invalidity, concluded unanimously, in its report of
         6 August 2001, that the illness had stabilised about a year previously and that the rate of invalidity imputed solely to the
         illness Mr Vainker suffered during and in connection with the performance of his duties at the Parliament was 75%. 
      
       Procedure and forms of order sought
      34     
         
         By application lodged at the Registry of the Court of First Instance on 28 February 2001, Mr and Mrs Vainker brought this
         action.
      
      35      
         
          By separate document lodged at the Registry of the Court of First Instance on 25 April 2001, the Parliament raised an objection
         of inadmissibility against the action. 
      
      36      
         
          Following changes in the membership of the Chambers of the Court of First Instance from 20 September 2001, the Judge Rapporteur
         was moved to the Second Chamber and the present case was, therefore, assigned to that Chamber.
      
      37      
         
          By order of 19 October 2001, the Court of First Instance (Second Chamber) reserved its decision on the objection of inadmissibility
         for the final judgment. 
      
      38      
         
          On 27 November 2001, the Parliament adopted a decision pursuant to Article 73 of the Staff Regulations fixing the rate of
         partial invalidity at 75% and granting Mr Vainker lump-sum compensation of EUR 617 617.94. 
      
      39      
         
          Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber) decided to open the oral procedure
         and adopted measures of organisation of procedure by asking the parties to reply to certain written questions and to produce
         certain documents. The parties complied with those requests. 
      
      40     By order of 7 January 2003, the Court of First Instance, pursuant to Article 68 of its Rules of Procedure, ordered the summoning
         of 12 witnesses and an advance of the funds necessary in connection with the examination of those witnesses by the cashier
         of the Court of First Instance.  On application by the applicants the Court of First Instance (Second Chamber) decided that
         the witnesses would be heard in camera.  The 12 witnesses summoned were: Mrs Delia Borelli, assistant to the Jurisconsult
         in the secretariat of the Legal Service of the Parliament in Brussels from 1 January 1986 to 1 March 1999, Mr Garzón Clariana,
         Jurisconsult of the Parliament, Mr Anders Neergaard, administrator in the Legal Service of the Parliament since 1 November
         1996, Mr Poul Runge Nielsen, administrator in the Legal Service of the Parliament from 16 July 1997 to 1 May 2000, Mr Christian
         Pennera, Head of Division in the Legal Service of the Parliament from 1 June 1991, Mr Ezio Perillo, Head of Division in the
         Legal Service of the Parliament from 1 April 1993 to 30 April 1999, Mr Manfred Peter, Head of Division in the Legal Service
         of the Parliament from 1 January 1986 to 1 May 1999, Mr Didier Petersheim, administrator in the Legal Service of the Parliament
         from 1 January 1986 to 1 November 1997, Mr Johann Schoo, Head of Division in the Legal Service of the Parliament from 1 January
         1992 to 30 June 1999, Mrs Chris Strelkova, secretary to Mr Vainker between March 1996 and December 1997, Mrs Els Vandenbosch,
         administrator in the Legal Service of the Parliament between 1992 and 1999, and Mr Enrico Vinci, former Secretary-General
         of the Parliament.
      
      41     The witnesses were heard at the hearing of 28 January 2003. 
      42      
         
          The parties presented oral argument and answered questions put to them by the Court of First Instance at the public hearing
         on 29 January 2003. 
      
      43      
         
          The applicant Mr Vainker, claims, at the stage of the reply, that the Court should: 
      
      ─      order the defendant to compensate him for the material and non-material damage resulting from the fact that he is suffering
         from an occupational disease caused by the alleged conduct of the defendant.  Accordingly, Mr Vainker claims payment of:
      
      ─      EUR 628 329.10 for loss of earnings;
      ─      EUR 200 000 for loss of career, or, such sum as the Court may fix ex aequo et bono;
      ─      an annuity from the age of 62 to compensate him for loss of pension rights, or, such capital sum as the Court may fix ex aequo
         et bono;
      
      ─      order the defendant to pay EUR 100 000 for the material and non-material damage caused to Mr Vainker as a result of the errors
         allegedly made by the defendant during the course of the procedure for recognition that he is suffering from an occupational
         disease and for compensation in respect thereof,
      
      ─      order the defendant to pay GBP 8 244.94 to reimburse legal costs paid whilst Mr Vainker was seeking the compensation provided
         for by Article 73 of the Staff Regulations and by the Rules,
      
      ─      and to pay default interest at a rate of 8% on the amount eventually awarded under the said Rules and any other award of interest
         payment which the Court thinks just and appropriate.
      
      44     The applicant, Mrs Vainker, claims that the Court should:
      ─      order the defendant to pay her EUR 50 000 in damages for the material and non-material damage caused her by the defendant’s
         conduct during the procedure brought by Mr Vainker for recognition that he is suffering from an occupational disease and for
         compensation in respect thereof,
      
      ─      and to pay her GBP 1 145 compensation to reimburse medical expenses which are not reimbursed under other provisions of the
         Staff Regulations;
      
      45     The applicants claim that the Court should
      ─      order the defendant to pay all the costs.
      46      
         
          The defendant contends that the Court should: 
      
      ─      declare the application to be inadmissible and in any event manifestly unfounded;
      ─      award costs in accordance with Article 88 of the Rules of Procedure.
       Admissibility
      47     The Parliament calls on the Court to conclude that the actions for damages brought by Mr Vainker are manifestly premature
         and, as such, inadmissible. 
      
      48      
         
          The Parliament submits that, since, at the time when the action was brought, the procedure for recognition that Mr Vainker
         was suffering from an occupational disease and for determination of the lump-sum compensation was not completed, the need
         for additional compensation was a purely hypothetical matter and there was, accordingly, no real dispute between the parties
         for the Court to resolve.  
      
      49     At the hearing, in reply to a question by the Court, the Parliament stated that it was discontinuing its objection of inadmissibility.
         
      
      50     It must be observed that the pre-litigation procedure was conducted properly in the present dispute, both as regards the case
         stated and its objective.  Although the decision of the Parliament of 27 November 2001, referred to in paragraph 38 above,
         granting lump-sum compensation to Mr Vainker under Article 73 of the Staff Regulations, was made during the course of proceedings,
         it altered neither the reasons why the applicant considered the Parliament had caused him damage nor its nature.  Its sole
         effect was to reduce the amount of the compensation which the applicant considers he can claim.  The applicant took account
         of that new element by reducing the amount claimed.  In the circumstances, this action cannot be considered premature or inadmissible
         on that basis. 
      
       Substance
      A –  Preliminary observations
      51     
         
         The application concerns, first, reparation for the material and non-material damage suffered by Mr Vainker as a result of
         the occupational disease he contracted whilst an official of the Parliament. Given that lump-sum compensation of EUR 617 617.94
         has in the meantime been granted to him under the applicable procedure under the Staff Regulations, Mr Vainker, in his reply,
         reduced the amounts claimed under that head to the three elements listed in paragraph 43 under Mr Vainker’s first head of
         claim.  Next, the second, third and fourth heads of claim concern reparation for the material and non-material damage suffered
         by Mr Vainker as a result of the manner in which the Parliament conducted the administrative procedure for recognition that
         he was suffering from an occupational disease and for setting the amount of the lump-sum compensation (‘the procedure’). 
         Then, in its fifth and sixth heads of claim, the application seeks compensation for the material and non-material damage suffered
         by Mrs Vainker during the procedure.
      
      52     According to settled case-law, the Community will incur legal liability only if a set of conditions, regarding the illegality
         of the allegedly wrongful act committed by the institution concerned, the suffering of actual harm and the existence of a
         causal link between the act and the alleged damage, are satisfied (Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 42, and Case T-165/95 Lucaccioni v Commission [1998] ECR-SC I-A-203 and II-627, paragraph 56). 
      
      53      
         
          It must be considered, first, whether the first of those conditions which are required for the liability of the Community
         to be incurred is met by the claim for compensation made in the first head of claim of the applicants (see below, under B). 
         Next, the second group of claims falls to be considered, set out in the second and third heads of claim (see below, under
         C), and in the fourth head of claim (see below, under D).  Finally, the claims for compensation made by Mrs Vainker, in the
         fifth and sixth heads of claim, must be addressed separately (see below, under E).
      
      B –  The request for reparation of the damage suffered by Mr Vainker by reason of the fact that he is suffering from an occupational
            disease caused by the alleged conduct of the Parliament
      1.     The unlawful conduct of the Parliament
      a)     Arguments of the parties 
      54      
         
          Mr Vainker submits that the occupational disease from which he suffers is the result of the Parliament’s failure to provide
         a safe place of work and to put in place or apply any procedures that might have identified and prevented his illness.  He
         points out that the Community institutions are obliged to respect all the rules in force in relation to the health and safety
         of workers at work, inter alia, those deriving from Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures
         to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1).  At the hearing, while he acknowledged
         that Directive 89/391/EEC was addressed to the Member States, Mr Vainker pointed out that the directive was also applicable
         to the European institutions under its Article 2(1).
      
      55     Mr Vainker points out that the working conditions to which he was exposed and the errors he attributes to the Parliament are
         set out in detail in Dr Lipsedge’s report, in his letters to the Parliament of 13 January 1998 and 4 February 1999 and in
         the statements of his former colleagues annexed to the administrative report drawn up after the second administrative inquiry. 
         
      
      56     He considers that his workload in the Legal Service of the Parliament was clearly heavier than that borne by a number of his
         colleagues and that he had to deal with some very sensitive files, which placed him under constant strain, in particular a
         staff case, the ‘de Compte’ case, which was in principle outside his remit, and a property matter, on which the ad hoc support
         of colleagues made available to him by Parliament was insufficient.  He adds that he did not have the support of his superiors,
         notably the Jurisconsult of Parliament, over the difficulties he encountered in performing his duties.  Rather, he alleges
         that the Jurisconsult showed a total lack of understanding and interest regarding the climate of tension in which he worked,
         for example, by handing opinions drafted by Mr Vainker to his colleagues to be checked, without mentioning this to him.  He
         was also required to travel every week between Brussels and Luxembourg to attend departmental meetings held on a Friday or
         a Monday morning, regardless of the fact that he travelled to the United Kingdom from Brussels every weekend to be with his
         family.  In conclusion he states that the Jurisconsult’s conduct during this time was felt by him to amount to harassment
         and bullying. 
      
      57     In this connection, Mr Vainker gives many examples typical of the difficulties he encountered in carrying out his duties.
         
      
      58     Further, he states that he went to see the Parliament’s Medical Officer in October 1996 because he feared that he was going
         to have a breakdown.  At the hearing, Mr Vainker added that he asked the Medical Officer to take the measures necessary to
         improve his poor state of health.  He takes the view that the Parliament, having been put on notice of his state of health
         at the time of that medical appointment, should have transferred him out of the Legal Service either between November 1996
         and May 1997 or when the applicant returned from sick leave on 15 September 1997. 
      
      59      
         
          Mr Vainker also states that, in November 1996, he approached the Director-General for Personnel, the Budget and Financial
         Control, with a request to the then Secretary-General for a transfer out of the Legal Service, and that, following that approach
         the Secretary-General informed him that he was trying to obtain the Jurisconsult’s consent for his secondment to his (the
         Secretary-General’s) office.  Just before the Christmas holiday that year, the Jurisconsult summoned him to a meeting at which
         he told him that he had not acceded to the request that he be seconded to the office of the Secretary-General on the basis
         that he was needed by the Legal Service.  Mr Vainker informed the Jurisconsult on that occasion that he was over-burdened,
         that the workload in other sectors of the Legal Service was far less onerous than his own and that he was exhausted and much
         in need of a holiday. 
      
      60      
         
          Further, Mr Vainker maintains that, during his first spell of sick leave between 26 May 1997 and 14 September 1997, the Director-General
         for Personnel, the Budget and Financial Control, told Mr Vainker by telephone that in light of his situation a transfer was
         called for.
      
      61      He complains that, despite all his entreaties, the Parliament had no internal procedures in place to ensure compliance with
         its general obligations and to assist him, in particular when he went back to work after his first spell of sick leave.  He
         submits that any official who is carrying out all the duties expected of him is entitled to the support and help of his superiors,
         the Medical Service and the Staff Committee, whatever his grade. 
         
         
      
      62     Mr Vainker seeks compensation from the Parliament for several counts of damage alleged to have been caused by its ‘failure
         to provide [Mr Vainker] with a safe place of work and to put in place, or apply, any procedures that might have identified
         and ... prevented his invalidity’. First, he seeks compensation for financial loss equivalent to the loss of salary as a result
         of his early retirement reduced by the amount paid to him by way of lump-sum compensation, in other words EUR 617 617.94. 
         He considers that his loss of salary is equivalent to the difference between his invalidity pension and the basic salary he
         would have received as an official between the date his early retirement began and the date of his 62nd birthday, increased by a percentage taking account of future increases in salary for officials and reduced by an actuarial
         factor to be determined.  He also seeks the payment of an annuity from the age of 62 to compensate him for loss of pension
         rights, or, such capital sum as the Court may fix ex aequo et bono.  Second, Mr Vainker seeks compensation for the non-material
         damage he allegedly suffered by reason of the loss of his career.  On that basis he claims compensation of EUR 200 000 for
         loss of career, or, in the alternative, such sum as the Court may fix ex aequo et bono.
      
      63      The Parliament denies any liability for Mr Vainker’s illness.  It contends that there is no evidence that the defendant failed
         to exercise the diligence required of it qua employer in this respect (Joined Cases 169/83 and 136/84 Leussink-Brummelhuis v Commission [1986] ECR 2801, paragraph 15). 
      
      64      
         
          First, the report of the Medical Committee of 6 August 2001 did not, contrary to Mr Vainker’s allegations, establish that
         the defendant failed to exercise the diligence required of it qua employer.  Moreover, that committee had no power to do so. 
         Indeed, Articles 19 et seq. of the Rules allow the Medical Committee only to give an opinion, upon the express request of
         the official, on the occupational nature of the disease and the resulting rate of invalidity and not on any additional liability
         of the institution. 
      
      65      
         
          Next, as regards the force of the statements in the report by Dr Lipsedge of 25 September 2000, the Parliament contends that
         Dr Lipsedge merely expresses his personal view on the basis of the statements by Mr Vainker and a number of interviews with
         his colleagues.  Dr Lipsedge, as an expert on medical matters, had no authority to establish any negligence, as a matter of
         law, on the part of the Parliament.  In any event, when reading this report, attention should be paid to Annex 3, according
         to which Mrs Strelkova, one of Mr Vainker’s colleagues, stated that he was advised by his doctor to come back on half time,
         but that he did not follow that advice and resumed his duties on a full time basis. 
      
      66      
         
          The Parliament contends, moreover, that Mr Vainker was by no means subject to more particular stress than his colleagues,
         as is apparent inter alia from a statement by his superior, the Jurisconsult, according to which:  ‘The conditions under which
         Mr Vainker’s duties were performed were similar to those of other heads of division in the Legal Service.’ 
      
      67      
         
          What is more, by note dated 22 October 1997, the Jurisconsult had advised the applicant’s colleagues in the Legal Service
         that his responsibilities would be strictly limited to three files (financing of buildings in Brussels, status of assistants
         of MEPs and questions relating to the pension fund for MEPs), it being expressly stated that the applicant should not be consulted
         on any other files, including the Court cases in which he had acted as agent of the Parliament.  
      
      68      
         
          Accordingly, there is no evidence that the defendant failed to exercise the diligence required of it qua employer vis-à-vis
         Mr Vainker.
      
      b)     Findings of the Court  
      69     It must first be considered whether the Parliament acted unlawfully as alleged by Mr Vainker during the period between the
         onset of his illness, at the end of 1996, and his second spell of sick leave, in October 1997.
      
       Mr Vainker’s workload
      70     As regards Mr Vainker’s workload, there is no evidence that there was a substantial difference between his workload and that
         of his fellow heads of division in the Legal Service. 
      
      71     According to Mr Vainker’s staff report for the period from 1995 to 1997 his duties in the Legal Service of the Parliament
         covered the following: ‘Coordination of the “contracts” sector. Follow-up to the “Espace Leopold” buildings project. Acting
         for the European Parliament before the Court of Justice, the Court of First Instance and the national courts, in cases involving
         contracts and staff cases. Debt recovery. Negotiation and assistance in debt cases involving the Parliament or its Members,
         political groups and officials of the institution’.
      
      72     It is also apparent from the court file, in particular from the statements by Mr Vainker’s colleagues annexed to the inquiry
         report of 7 February 2000 and the statements of several witnesses, that the task of coordinating in the contract sector involved
         the management of files which were weighty and difficult to manage, both in terms of their legal complexity and their economic
         importance, especially the Espace Léopold buildings file.  It therefore cannot be ruled out that the nature of the files which
         Mr Vainker had to deal with at the material time made his work in that Service particularly stressful.  On the other hand,
         nothing in the file or in the witness statements suggests that the workload allocated to Mr Vainker was greater than that
         borne by his colleagues in the Legal Service of the Parliament. 
      
      73     It hardly need be pointed out that, given the essentially subjective nature of an official’s ability to manage his professional
         commitments, the fact that the working conditions of an official, such as the number and complexity of the files to be managed,
         are more burdensome that those of his colleagues with the same level of seniority, cannot, in itself, constitute unlawful
         conduct on the part of the institution. 
      
      74     As regards the alleged lack of assistance from colleagues, according to the witness statements, Mr Vainker had the support
         of Mrs E. Vandenbosch on the Espace Léopold buildings file in Brussels, that of Mr D. Petersheim on the buildings file in
         Strasbourg and that of Mr A. Neergard on the Parliament’s dispute before the Luxembourg courts.  According to the witness
         statements, each head of division generally shared the assistance of two Grade A officials with another head of division. 
         In this case, Mr Vainker shared his staff, Mrs E. Vandenbosch and Mr D. Petersheim, with Mr E. Perillo, head of division in
         the Legal Service, at the material time.  It cannot be ruled out that, because of its complexity and the amount of money at
         stake, the Brussels buildings file might have needed the assistance of other lawyers in the Legal Service.  However, it does
         not appear from the file or the witness statements that Mr Vainker made any request to that effect to his superiors at the
         material time. 
      
      75     As regards the ‘de Compte’ case, it must be observed that, according to Mr Vainker’s staff report for 1995 to 1997, his duties
         in the Legal Service comprised, inter alia, ‘acting for the European Parliament before the Court of Justice, the Court of
         First Instance and the national courts, in cases involving contracts and staff cases’. As, in 1996 and 1997, the ‘de Compte’
         case involved an appeal brought before the Court of Justice against a judgment of the Court of First Instance in a staff case,
         it cannot be considered that that case was not within his duties in the Legal Service. Moreover, Mr Vainker himself mentioned
         that he was in charge of that file in 1982, in other words even before he took up his duties in the Legal Service of the Parliament,
         yet he has never taken steps at any stage in his career at the Parliament to have the file taken away from him.
      
       Practices in the Legal Service
      76     As regards the fact that the Jurisconsult handed Mr Vainker’s completed opinions to colleagues to be checked, and even changed,
         in a statement attached to the inquiry report of 7 February 2000, one of Mr Vainker’s colleagues, a head of division in the
         Legal Service of the Parliament at the material time, acknowledged that he had, at the request of the Jurisconsult, examined
         the files entrusted to Mr Vainker and discussed them with the Jurisconsult. Furthermore, according to the statements made
         by certain witnesses, the checking of the opinions of one head of division by another head of division at the request of the
         Jurisconsult, without informing the head of division concerned, was not a common practice in the Legal Service, and Mr Vainker
         was the only head of division subject to such treatment.
      
      77     Although such a practice certainly does not seem likely to foster a relationship of trust between the head of division concerned
         and his immediate superior, it cannot be considered that that conduct is, in itself, such as to give rise to the liability
         of the Community  for the occupational disease from which Mr Vainker suffers. 
      
      78     Finally, more specifically, the Jurisconsult’s conduct towards Mr Vainker cannot be considered to have amounted to harassment
         and bullying. It is true that, according to the statements made by certain witnesses, there was some tension in the professional
         relationship between the two people. On that point, the Jurisconsult himself admitted, in the statement he made as a witness,
         that he had made clear to Mr Vainker the professional disadvantages he felt were entailed in his family’s move to the United
         Kingdom, a matter on the subject of which Mr Vainker was very sensitive, as the Jurisconsult acknowledged at the hearing.
         Moreover, it cannot be ruled out that, at least at times, the Jurisconsult’s conduct towards Mr Vainker fell short of the
         respect due to a subordinate, as observed in paragraphs 76 and 77 above.
      
      79     However, there is no evidence that the conduct of the Jurisconsult exceeded the proper limits of a relationship between superior
         and subordinate to such an extent that it constituted an unlawful act on the part of the administration, particularly as the
         facts alleged against him relate to a period prior to Mr Vainker’s first spell of sick leave when only a limited group of
         people were aware of his state of health.
      
      80     As regards the submission concerning the departmental meetings, the Parliament cannot be criticised for organising departmental
         meetings in Luxembourg given that, apart from Mr Vainker, all the Grade A 3 administrators attending were posted to the Legal
         Service there. Moreover, as regards the fact that those meetings were held on a Monday or a Friday, whilst it emerged from
         the witness statements that a considerable number of them were held on those days of the week, Mr Vainker has not made clear
         whether he informed his superiors of the inconvenience arising as a result for him or whether he made any attempt, in consultation
         with the Jurisconsult, to balance his professional obligations and his family responsibilities. Furthermore, it must be observed
         that it is not apparent from the witness statements that those meetings were held every week as Mr Vainker alleged.
      
       The possibility of a transfer for Mr Vainker
      81     Mr Vainker also takes the view that the Parliament should have arranged his transfer to another department, either between
         November 1996 and May 1997, or from 15 September 1997, the date on which he returned from his first spell of sick leave.
      
      82     First, the extent to which the Parliament was aware or should have been aware of the adverse effect on Mr Vainker’s health
         of his assignment to the Legal Service must be considered in respect of the first period mentioned in the previous paragraph.
      
      83      
         
          As regards the action the institution’s doctor was asked to take in October 1996, it must first be observed that, in the
         light of Article 25 of the Staff Regulations, that doctor cannot be considered to be the competent authority within the institution
         to receive a request from an official or to take measures, other than those of a medical nature, to remedy the harmful effect
         on his health, alleged by him to result from his working conditions, especially where such measures concern the transfer of
         an official within the institution.
      
      84     In any event, Mr Vainker did not make clear what measures he asked the institution’s doctor to take and in particular whether
         those measures involved his transfer to another department.
      
      85     It follows that Mr Vainker has not established that he put the institution in a position to take a decision on any request.
      86      
         
          As regards the alleged request for a transfer to the general secretariat of the Parliament, made to the Director-General
         for Personnel, the Budget and Financial Control, in November 1996, it is settled case-law that the institutions enjoy a broad
         discretion to organise their departments to suit the tasks entrusted to them and to assign staff available to them in the
         light of such tasks, on condition, however, that the staff are assigned in the interests of the service and in conformity
         with the principle that assignment must be to an equivalent post (see, by analogy, Joined Cases T-78/96 and T-170/96 W. v Commission [1998] ECR-SC I-A-239 and II-745, paragraph 87). 
      
      87      
         
          Moreover, any problems which might be caused to an official’s department by his departure and the benefit to his new department
         which might be obtained from his reassignment are considerations which are governed by the discretionary power which the institutions
         enjoy in organising their departments.  Accordingly, the review undertaken by this Court must be confined to the question
         whether the appointing authority remained within the bounds of that discretion and did not use it in a manifestly wrong way
         (W. v Commission, cited above, paragraph 92, and the case-law cited).
      
      88     According to Mr Vainker, his transfer to the general secretariat was refused by his immediate superior, in other words, the
         Jurisconsult. He submits that the Jurisconsult justified that refusal by claiming that he was indispensable to the Legal Service.
      
      89     It is common ground that Mr Vainker did not think he would be formally transferred to a vacant post in the general secretariat
         but wished none the less to be moved to that department. Moreover, he states himself that he was well aware of how difficult
         it was for administrators in Grade A 3 to be transferred within his institution.
      
      90     Moreover, Mr Vainker points out that the transfer he wanted consisted in his being ‘loaned’ to the cabinet of the then Secretary-General.
         He states that, in that connection, the Secretary-General explained that, as he was nearing retirement, he was unfortunately
         not in a position formally to help him in this way, but that he was trying to make an arrangement with the Jurisconsult. Moreover,
         in his witness statement, the former Secretary-General of the Parliament confirmed that the transfer of Mr Vainker to the
         general secretariat would have entailed the cancellation of his post in the Legal Service and the creation of a new post in
         the general secretariat. Finally, it must be noted that Mr Vainker does not dispute that the Jurisconsult refused his transfer
         to the general secretariat in the interest of the service.
      
      91     On that point, even if the Jurisconsult had been contacted by the relevant department or the Secretary-General of the Parliament
         to authorise Mr Vainker’s transfer to the general secretariat, he cannot be criticised for having refused such a transfer
         in the interests of the service, given that such a transfer would have entailed the cancellation of a post in the service
         for which he was responsible.
      
      92     However, it would be a different matter if it should prove that the administration was aware, in good time, of the seriousness
         of Mr Vainker’s illness, of the fact that it was occupational in origin and the risk, from the point of view of the aggravation
         of Mr Vainker’s state of health, entailed in his assignment to the Legal Service.
      
      93     In the event, Mr Vainker did not adduce any clear evidence to show that he sent to the  Director-General for Personnel, the
         Budget and Financial Control a clear request for a transfer based on medical grounds. In that connection, it must be observed
         that the file contains no such request nor any other request for transfer which may have been submitted to the administration.
         Moreover, Mr Vainker does not allege in his submissions that he cited medical reasons as the grounds for his request for a
         transfer. Apart from the medical certificates presented by Mr Vainker at the time of his sick leave, the file contains no
         other medical certificates specifically recommending that the administration take administrative measures with a view to improving
         his state of health, such as his transfer to another department of the Parliament. In that connection, the only document from
         the administration contained in the file concerning Mr Vainker’s request for a transfer is the letter from the Director-General
         for Personnel of 19 April 1999, a date subsequent to the period at issue. In that letter, the Director-General for Personnel
         stated, first, that his Directorate-General was aware of the difficulties Mr Vainker was experiencing in performing his duties
         and which led him to request, several times, to be transferred to another post and, second, that the administration’s refusal
         of those requests was always based on the requirements of the service.
      
      94     Furthermore, according to the file and the witness statements, no one, apart from those working most closely with Mr Vainker
         in the Legal Service in Brussels, was aware of the seriousness of his state of health until the time of his first spell of
         sick leave on 26 May 1997.
      
      95     Moreover, according to the statement by the former Secretary-General of the Parliament, he was not aware of the reasons which
         led Mr Vainker to request a transfer to the general secretariat.
      
      96     Against that background, the Parliament cannot be criticised for not transferring Mr Vainker before his first spell of sick
         leave.
      
      97     As regards the initial period after Mr Vainker’s return to the Legal Service on 15 September 1997, it must be observed that
         Mr Vainker has not established that he informed the administration that there were medical grounds for his request for a transfer.
         Thus, the medical certificate of Dr Rehling of 3 September 1997 certifies that Mr Vainker was able to resume work on 15 September
         1997, but it does not state that it was necessary to transfer Mr Vainker to another department for medical reasons.
      
      98     Moreover, the Jurisconsult, by note of 22 October 1997, limited the number of files allocated to Mr Vainker to three. That
         note is worded as follows:
      
      ‘In response to the concern expressed by Mr PETER and in an endeavour to ensure clarity, I confirm that Mr VAINKER is from
         now on to concentrate on the three files I have allocated to him (financing of buildings in Brussels, status of assistants
         of MEPs and questions relating to the pension fund for MEPs).
      
      Consequently, he is not to be consulted on other files, including those relating to the litigation in which he has acted as
         Parliament’s agent and for which new agents must therefore be appointed immediately.
      
      These provisions do not, of course, prevent consultation between colleagues where this is genuinely necessary.
      The above instructions are to be applied strictly, as they are issued not only in the interests of the service but also, it
         should be noted, for the benefit of the person concerned.’ 
      
      99     At the hearing, the Parliament contended that the note of the Jurisconsult of 22 October 1997 merely confirmed the measures
         adopted by the Jurisconsult and implemented prior to 22 October 1997.
      
      100   In that connection, even if the measures set out in the note of the Jurisconsult were only applied from 22 October 1997, it
         should be borne in mind that, on that date, Mr Vainker had resumed his duties following his first spell of sick leave a little
         over a month previously.  That amount of time cannot be considered excessive for the adoption by the institution of measures
         intended to enable Mr Vainker to deal with the difficulties he experienced, given that he has not established that he had
         explained clearly to the administration the impact of his working environment on his state of health.
      
      101   Against that background the Parliament cannot be criticised for not transferring Mr Vainker to another department from 15
         September 1997.
      
       Conclusion
      102   In the light of all the foregoing, and regrettable as it is that Mr Vainker, a model official in the Legal Service of the
         Parliament, should have contracted an occupational disease, it must be held that Mr Vainker has not established that the Parliament
         has committed an unlawful act in connection with the onset of that disease such as to give rise to the liability of the Community.
      
      C –  The claim for compensation for the material and non-material damage suffered by Mr Vainker as a result of the irregularities
            allegedly attributable to the Parliament in the procedure for recognition of the occupational origin of his disease
      1.     The unlawful conduct of the Parliament
      a)     Arguments of the parties
      103    
         
          Mr Vainker complains that the Parliament made errors during the procedure which constitute breaches of the duty to have regard
         to the welfare of officials (Joined Cases T-112/96 and T-115/96  Séché v  Commission [1999] ECR-SC I-A-115 and II-623, paragraph 147) and of the principle that administrative procedures affecting the interests
         of officials should be completed within a reasonable time (Case T-226/89 de Compte v Parliament [1991] ECR II-781, paragraph 88). Moreover, the combination of errors made by the Parliament amounts to a breach of the general
         principle of sound administration. The conduct of the Parliament suggests that it sought chiefly to protect its own interests
         and those of the Jurisconsult at the expense of the health and well-being of Mr Vainker.  That unsatisfactory conduct on the
         part of the Parliament is all the more serious given that it was put on notice on numerous occasions of the fact that Mr Vainker’s
         state of health meant that he could not cope with the prolongation of the procedure.
      
      104    
         
          He points out that the procedure was still unfinished at the time the present action was brought.  That was a result of the
         Parliament’s dilatory behaviour, its inability to apply correctly the procedure under the Rules and its supplying misleading
         and erroneous information. In that connection, Mr Vainker presented his version of the facts which can be summarised as follows.
         
      
      105   Between receipt of Mr Vainker’s letter of 13 January 1998, setting out the link between his illness and the exercise of his
         duties at the Parliament, and the Parliament’s note of 18 May 1998 to the Jurisconsult in which the latter is asked to describe
         the duties of the applicant in the Legal Service and the conditions under which those duties were performed, the Parliament
         did nothing about drawing up its report on the administrative inquiry.  The Parliament began to do something only once the
         applicant had submitted a second medical report by Dr Thomas.
      
      106   Moreover, the note of 8 July 1998 of the Jurisconsult was totally inadequate as it made no attempt to reply to Mr Vainker’s
         letter of 13 January 1998 and made no objective appraisal of his working conditions. Furthermore, Mr Vainker was refused a
         copy of this report, without justification, before going to Nancy to see Dr Boquel.
      
      107   In addition, the total inadequacy of the report following the inquiry meant that neither Dr Helmer nor Dr Boquel was given
         a true picture of Mr Vainker’s working conditions by the Parliament. That influenced Dr Boquel’s report, which was unacceptable.
      
      108   What is more, Mr Vainker claims that he would not have made the journey to Nancy in August 1998 to be examined by Dr Boquel
         if he had seen that report beforehand. He criticises the Parliament for the fact that he was only given a copy of that report
         via his doctor, which he received on 25 November 1998, after Mrs Vainker had threatened to seek independent legal advice.
      
      109   Mr Vainker also alleges that he was obliged to request the reopening of the procedure by letter of 1 December 1998. That request
         was initially refused by the Secretary-General’s office on the basis that the draft decision of 13 November 1998 was not an
         act adversely affecting him, which he disputed.  Subsequently Mrs Vainker told her husband that she had been informed in a
         telephone call from the Secretary-General’s office that the procedure would be restarted.  However, this was then contradicted
         by the letter from Mr Cointat, Director-General for Personnel, of 25 March 1999 which stated that the Parliament was legally
         unable to restart the procedure, a statement which the applicants consider to be erroneous.
      
      110   Further, he alleges that the Parliament gave him false information in the letter of 19 April 1999, from the Director-General
         for Personnel in which it was stated that ‘there is no such concept as a partial occupational disease’, whereas the Court
         of First Instance has recognised this concept in its judgment in Case T-4/96 S. v Court of Justice [1997] ECR-SC I-A-179 and II-533, ECR II-1125.  Mr Cointat encouraged Mr Vainker to accept the draft decision which alleged
         a ‘pre-existing condition’. However, such a condition, if found, would serve to reduce any capital sum payable under the Rules.
         In light of this, Mrs Vainker, who was by then looking after her husband’s interests due to his incapacity, felt obliged to
         seek independent legal advice.
      
      111   Moreover, after two complaints were lodged under Article 90(2) of the Staff Regulations the appointing authority finally acceded
         to Mr Vainker’s request and ordered the recommencement of the procedure by letter of 12 November 1999.  Thus, after two years
         the procedure had not advanced in any significant way and was effectively back to square one.
      
      112   The Parliament is alleged to have then drawn up a second defective report following an administrative inquiry.  
      113   What is more, the Parliament did not advise Dr Lipsedge that he had to take account of Dr Bamber’s medical report and determine
         the rate of partial permanent invalidity.
      
      114   Finally, Dr Lipsedge was not expressly asked whether Mr Vainker’s disease had stabilised, with the result that the Parliament
         erroneously interpreted the words ‘potentially reversible’ in his report to justify the finding in the draft decision that
         Mr Vainker’s  disease had not yet stabilised.
      
      115   The Parliament takes the view that it committed no errors during the procedure.
      116    
         
          In response to Mr Vainker’s allegation that the duration of the procedure was excessive, the Parliament contends that the
         duration of the procedure is a direct result of the fact that Mr Vainker’s medical condition had not yet stabilised.  The
         rate of invalidity and the amount of lump-sum compensation as required by Articles 73(2)(b) or (c) of the Staff Regulations
         could not be determined as long as the consolidation of the applicant’s illness was not established.
      
      117    
         
          The Parliament contends that the diagnosis of the applicant’s medical condition, a psychiatric illness occasioned by stress,
         is by its very nature a particularly complex matter.  The fact that there have been legitimate differences of expert medical
         opinion because of the complexity of this field of medical science could not give rise to the non-contractual liability of
         the Parliament because of the time it had taken to sort out these differences (judgment in  Lucaccioni v  Commission, cited above, paragraphs 153 and 154).
      
      118   On the question of the stabilisation of Mr Vainker’s condition, the Parliament points out that it based its position, as it
         was required to, on an independent expert medical report, which is clear inter alia from the letter of 5 October 2000 from
         Dr Lipsedge in reply to a request from the Parliament. It also states that the Medical Committee, provided for by Article
         21 of the Rules, concluded unanimously, in its report of 6 August 2001, that the applicant’s state of health had stabilised
         and that the rate of his permanent invalidity amounted to 75% and that ‘this stabilisation occurred approximately one year
         ago’, that is to say, in August 2000 and almost one year later than the date set by Dr Bamber, in his report of 17 June 1999,
         according to which Mr Vainker’s condition had stabilised at the time that report was drawn up, in other words, in 1999.
      
      119    
         
          In the circumstances, the consolidation of Mr Vainker’s medical condition was only firmly established on 6 August 2001, so
         that only as from that time could the amount of lump-sum compensation be calculated as required by Articles 73(2)(b) or (c)
         of the Staff Regulations. 
      
      120    
         
          Immediately following the receipt of the Medical Committee’s findings on 21 August 2001, the Parliament wrote to the insurer,
         Axa-Royale Belge SA, to request payment of the sum of EUR 669 624.57 to Mr Vainker as soon as possible. 
      
      121    
         
          On 27 November 2001 the Parliament took a decision based on the Medical Committee’s report, on the amount of the compensation
         payment. The compensation was set at EUR 617 617.94.  
      
      122    
         
          The Parliament contends that it is clear from the report by Dr Lipsedge of 25 September 2000 that, contrary to Mr Vainker’s
         allegations, Dr Lipsedge was aware of Dr Bamber’s report establishing the date of stabilisation of Mr Vainker’s illness.
      
      b)     Findings of the Court
      123   Mr Vainker relies on a single plea, alleging breach of the duty to have regard for the welfare of officials, of the principle
         that administrative procedures affecting the interests of officials should be completed within a reasonable time and of the
         principle of sound administration. The plea is in two parts, one relating to irregularities in the procedure and the other
         to the excessive length of that procedure.
      
       The first part of the plea, alleging irregularities in the procedure
      –       Preliminary observations
      124   
         
         The irregularities in the procedure consist, according to Mr Vainker, in the inadequacy of the first report on the inquiry,
         the failure to forward that report to Mr Vainker before his visit to Dr Bocquel, the giving of false information by the Parliament,
         the unsuitability of the second inquiry report and the failure to ask  Dr Lipsedge to take account of the report by Dr Bamber
         and to take a position on the stabilisation of Mr Vainker’s condition.
      
      125   
         
         Before those five submissions are considered in turn, it must be observed that, according to settled case-law, the duty of
         the administration to have regard for the interests of its officials reflects the balance of the reciprocal rights and obligations
         established by the Staff Regulations in the relationship between a public authority and public servants. That duty implies
         in particular that when such an authority takes a decision concerning the position of an official, it should take into consideration
         all the factors which may affect its decision and that when doing so it should take into account not only the interests of
         the service but also those of the official concerned (Case 321/85 Schwiering v Court of Auditors [1986] ECR 3199, paragraph 18; Case T-133/89 Burban v Parliament [1990] ECR II-245, paragraph 27, and Joined Cases T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249, paragraph 96).
      
      –       The first submission: the inadequacy of the  first report following the inquiry 
      126   As regards the first allegation, that the first inquiry report was flawed, it must be observed, first, that the purpose of
         the inquiry conducted by the administration, referred to in Article 17(2) of the Rules is ‘to obtain all the particulars necessary
         to determine the nature of the disease, whether it has resulted from the official’s occupation and also the circumstances
         in which it arose’. 
      
      127   In the present case, the first inquiry merely served to obtain, in addition to the medical documents and the documents produced
         by Mr Vainker, the note of the Jurisconsult.
      
      128   According to the expert medical report, of 30 September 1998, by Dr Helmer, the doctor appointed by the institution for the
         purposes of the first procedure, the documents and medical reports on the file examined by that doctor and forwarded to Dr
         Bocquel comprised:
      
      ‘Request for recognition of an occupational disease submitted by Mr François VAINKER on 14.11.1997, received on 17.11.1997.
      Full report of the professional career of and difficulties encountered by Mr VAINKER, drawn up by him on 13.01.1998.
      Letter sent by Dr REHLING to Dr DI PAOLANTONIO on 17.11.1997.
      Expert psychiatric report drawn up by Dr Roger THOMAS on 03.05.1998.
      Certificate issued by Dr DI PAOLANTONIO on 12.06.1998.
      Administrative note from Mr GARZON CLARIANA of 08.07.1998.’
      129   In a case such as the present one, in which, inter alia, the workload and working conditions of the official concerned are
         under scrutiny as the alleged cause of the occupational illness at issue, the opinion of the official’s immediate superior
         is, of course, one of the pieces of evidence the administration must obtain in an inquiry. However, given that, according
         to his letter of 13 January 1998, Mr Vainker took the view that the conduct of the Jurisconsult towards him was partly the
         cause of the onset of his illness, the administration could not accept such an opinion as sufficient on its own for an analysis
         of those working conditions. Since the purpose of an administrative inquiry is to obtain, in an objective manner, all the
         particulars necessary to determine whether a disease has resulted from an official’s occupation and the circumstances in which
         it arose, the inquiry should have included an analysis of the working conditions of the person concerned, if necessary including
         a hearing of his testimony, as thorough and objective as that of his illness as such.
      
      130    
         
          It must therefore be held that the first administrative inquiry conducted by the Parliament does not fulfil the requirements
         of Article 17(2) of the Rules.
      
      131   Moreover, there is no evidence on the file that the administration prepared the report provided for by Article 17(2) of the
         Rules following the administrative inquiry.
      
      132   What is more, according to settled case-law, for a Medical Committee validly to issue a medical opinion, it must be in a position
         to have notice of all documents which may be useful for its assessments (Case T-187/95 R v Commission [1997] ECR-SC I-A-253 and II-729, paragraph 49, and Case T-27/98 Nardone v Commission [1999] ECR-SC I-A-267 and II-1293, paragraph 68). That reasoning must be applied by analogy to the findings of the doctor(s)
         appointed by the institutions under Article 19 of the Rules.
      
      133   It follows from the foregoing that, in the absence of a full inquiry and without a full report on the inquiry conducted, the
         doctor appointed by the institution was not in a position validly to reach the findings provided for by Article 19 of the
         Rules.  
      
      134   It follows that, in not drawing up a report on the inquiry on the basis of a full and objective examination of the facts,
         the Parliament conducted itself unlawfully, with the result that the first submission is well founded.
      
      –       The second submission, that the first report on the inquiry was not sent to Mr Vainker in time
      135   As regards the second submission, that the first report on the inquiry was not sent to Mr Vainker before his visit to Dr Bocquel,
         on 21 August 1998, it has been held, in paragraph 131 above, that there is no evidence on the file that the administration
         prepared a report following the first administrative inquiry. Moreover, according to the file, the only item obtained in the
         first administrative inquiry conducted by the Parliament, apart from medical documents and documents produced by Mr Vainker,
         was the note of the Jurisconsult. It follows that the Parliament did not draw up the report on the inquiry referred to in
         the third subparagraph of Article 17(2) of the Rules.
      
      136    
         
          Furthermore, according to settled case-law, documents relating to the findings of fact concerning an incident at work which
         may serve as a basis for a procedure for the recognition of the existence of an accident at work or an occupational disease
         within the meaning of the Rules must also be recognised as being of a medical nature (Case 140/86 Strack v Commission [1987] ECR 3939, paragraph 13, and Case T-154/89 Vidrányi v Commission [1990] ECR II-445, paragraph 33).
      
      137   It must also be observed that, in the procedure for recognition of the occupational nature of a disease, observance of the
         rights of the official is ensured, having regard to the particular nature of the documents in question, by the possibility
         for the official concerned to acquaint himself with the particulars in the file prepared by the appointing authority by the
         interposition of the doctor of his choice and to appoint a doctor to defend his interests within the Medical Committee.  It
         is by providing for indirect access to documents of a medical nature through the interposition of a medical examiner appointed
         by the official that the Rules reconcile the rights of the official with the requirements of medical confidentiality (Case
         C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 23, Strack, cited above, paragraph 12, and the judgment of the Court of First Instance in Vidrányi v Commission, cited above, paragraph 34). 
      
      138   In the present case, it is not disputed that Mr Vainker’s doctor received the note of the Jurisconsult on 25 November 1998.
         
      
      139   It follows that the Parliament, in forwarding the note of the Jurisconsult to Mr Vainker’s doctor, used the appropriate channel
         to meet the applicant’s requests.
      
      140   As regards the allegation that the note of the Jurisconsult was sent to Mr Vainker’s doctor late, the Parliament was under
         no obligation to send the result of the administrative inquiry to Mr Vainker before his visit to Dr Bocquel, on 21 August
         1998. 
      
      141   In the light of the foregoing observations, the second submission must be rejected.
      –       The third submission, that false information was given
      142   As regards the third submission, that the Parliament gave false information, it must first be observed that, according to
         settled case-law, as a rule, the adoption of an incorrect interpretation of a provision of the Staff Regulations does not
         in itself constitute a service-related fault (Case 79/71 Heinemann v Commission [1972] ECR 579, paragraph 11, Case T-94/92 X v Commission [1994] ECR-SC I-A-149 and II-481, paragraph 52).
      
      143   However, it must be pointed out that the Parliament repeatedly sent the applicants incorrect or contradictory information
         solely in order to refuse Mr Vainker’s request for annulment of the procedure under way and without addressing the substantive
         objections he had raised against that procedure.
      
      144   On that point, according to the file, in a letter of 25 March 1999 sent to Mrs Vainker, the Director-General for Personnel
         expressed the mistaken view that it was impossible to annul the procedure, on the ground that the Rules made no provision
         for such a possibility.
      
      145   Then, by letter of 19 April 1999 to Mr Vainker, the Director-General for Personnel of the Parliament expressed the view that,
         in the absence of any specific provision in the Rules, the procedure could be annulled only if it were established that there
         had been a procedural defect, which he ruled out.
      
      146   The letter of 1 December 1998, by which Mr Vainker requested annulment, inter alia because of irregularities in the administrative
         inquiry, constituted a complaint within the meaning of Article 90(2) of the Staff Regulations (Case T-205/95 Cordiale v Parliament [1998] ECR-SC I-A-177 and II-551, paragraphs 34, 35 and 38). The Parliament would thus have been able to accede to that request
         by Mr Vainker if it had, at that stage, acknowledged the irregularities in the inquiry which he alleged.
      
      147   Second, by letter of 14 January 1999, the Secretary-General of the Parliament justified the refusal to reopen the procedure
         by the fact that the draft decision of the appointing authority of 13 November 1998 did not adversely affect Mr Vainker given
         that that draft decision recognised the occupational nature of his disease. However, that draft decision recorded the existence
         of an ‘unrecognised but indisputable pre-existing condition’ that is to say of a non-occupational element which triggered
         the onset of Mr Vainker’s illness. If that decision had become definitive, as provided for in Article 21 of the Rules, it
         would have entailed the reduction of the payment provided for by Article 73 of the Staff Regulations (Case T-4/96 S v Court of Justice [1997] ECR-SC I-A-179 and II-533, ECR II-1125, paragraphs 80 and 87).
      
      148    
         
          Finally it must be held that the statement by the Director-General for Personnel in his letter of 19 April 1999 that there
         is no such concept as a partial occupational disease, disregarded the case-law. In paragraphs 80 and 87 of the judgment in 
         S v Court of Justice cited above, the Court of First Instance recognised the existence of non-occupational factors likely to trigger the onset
         of an official’s illness and concluded that the appointing authority was required to take such factors into account, where
         they are recorded by the Medical Committee, in calculating the amount of the payment provided for by Article 73(2) of the
         Staff Regulations.
      
      149   Thus, in repeatedly arguing against Mr Vainker, despite the valid observations of the applicants, the Parliament engaged in
         negligent conduct vis-à-vis Mr Vainker, in breach of its duty to have regard to the welfare of officials, conduct which was,
         therefore, unlawful and liable to cause damage to Mr Vainker. Consequently, the third submission in the first part of the
         plea is well founded.
      
      –       The fourth submission, that the second report on the inquiry was defective
      150   As regards the fourth submission, that the second report on the inquiry was defective, it must be observed that Mr Vainker
         confines himself to alleging, in the application, that the second report on the inquiry was inappropriate, without clarifying,
         even in outline, in the body of the application, the reasons why he considers that the report is defective
      
      151    
         
          On that point, it must be borne in mind that, under the first paragraph of Article 19 of the Statute of the Court of Justice
         and Article 44(1) of the Rules of Procedure of the Court of First Instance the application initiating the proceedings must
         contain a summary of the pleas in law relied on. Since that requirement is mandatory, the issue of compliance with it may
         be raised by the Court of its own motion. The summary of the pleas relied on, it should be pointed out, must be sufficiently
         clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without
         any other supporting information. Similar requirements are called for where a submission is made in support of a plea in law.
         Moreover, it must be pointed out that it is not for the Court to seek and identify in the annexes the pleas and arguments
         on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (judgment
         in Case T-231/99 Joynson v Commission [2002] ECR II-2085, paragraph 254, and the case-law cited).
      
      152   That submission is, therefore, inadmissible.
      –       The fifth submission, that no details were given to the doctor appointed by the institution  for the purposes of the procedure
      153   The fifth submission is that the Parliament did not ask Dr Lipsedge to take account of the report by Dr Bamber of 17 June
         1999 and determine Mr Vainker’s degree of partial permanent invalidity and did not ask that doctor to take a view on the stabilisation
         of Mr Vainker’s condition.
      
      154   As regards the alleged failure to ask Dr Lipsedge to take account of Dr Bamber’s report of 17 June 1999, the Court of First
         Instance notes that, as the Parliament rightly points out, the report by Dr Lipsedge of 25 September 2000 mentions Dr Bamber’s
         report of 17 June 1999 in the list of documents consulted in the drafting of the report.
      
      155   Even if the Parliament did not expressly ask Dr Lipsedge to take account of Dr Bamber’s report of 17 June 1999, that fact
         cannot constitute an irregularity, since the Parliament sent Dr Lipsedge that report by Dr Bamber for the purposes of reaching
         the findings provided for by the first indent of the first subparagraph of Article 19 of the Rules.
      
      156   That conclusion cannot be affected by the fact that the findings of the two reports differ on the subject of the stabilisation
         of Mr Vainker’s illness.
      
      157    As regards the Parliament’s alleged failure expressly to ask Dr Lipsedge to take a view on the stabilisation of Mr Vainker’s
         condition, it must be borne in mind that according to the first paragraph of Article 20 of the Rules the decision defining
         the degree of invalidity is to be taken after the official’s injuries have consolidated. That provision is intended to prevent
         the degree of invalidity from being decided while the official’s illness may still be subject to change, with implications
         for the degree of invalidity he suffers.
      
      158   According to the file, in an undated fax to Dr Lipsedge, the Parliament noted that the report of 25 September 2000, drawn
         up by that doctor, did not calculate the degree of permanent invalidity suffered by Mr Vainker and asked Dr Lipsedge to confirm
         that the failure to calculate the degree of permanent invalidity in that report was due to the fact that Mr Vainker’s illness
         was potentially reversible, as recorded in that report, which made it impossible to make such a calculation at that stage.
      
      159   It is also apparent from the file that, by letter of 5 October 2000, Dr Lipsedge confirmed the Parliament’s suggested ground
         for the failure to calculate a degree of permanent invalidity.
      
      160   It follows that, in fact, the Parliament expressly consulted Dr Lipsedge as to whether he could take a view on the stabilisation
         of Mr Vainker’s condition.
      
      161   It follows from the foregoing that the fifth submission must be rejected.
       The second part of the plea, that the procedure was unduly lengthy
      162   As regards the second part of the plea, that the procedure was unduly lengthy, it must be observed, as a preliminary point,
         that the Parliament’s conduct resulted in the repetition of most of the steps taken in the procedure initiated by Mr Vainker’s
         letter of 14 November 1997 and concluded on 12 November 1999.
      
      163   It appears from the file that, by letter of 12 November 1999, the President of Parliament acknowledged that Mr Vainker had
         justifiably lodged complaints on 14 July 1999 and 17 October 1999 against the Parliament’s refusal to reopen the procedure
         and against the draft decision of 15 June 1999 and the final decision of 10 September 1999. In his complaints, Mr Vainker
         criticised the Parliament, inter alia, for the fact that the administrative inquiry consisted solely of the note of the Jurisconsult.
      
      164   It follows that the Parliament must be held liable for a delay of approximately two years in the procedure. 
      165   The Court of First Instance considers that the Parliament’s argument that the length of the procedure is directly attributable
         to the fact that Mr Vainker’s illness had not stabilised cannot be upheld.
      
      166   Although it is true that the rate of Mr Vainker’s invalidity and the amount of the payment provided for by Article 73(2)©
         of the Staff Regulations could not be determined as long as his illness had not stabilised, as the Parliament contends, it
         must be recognised that the irregularities in the procedure recorded above could not have helped to improve Mr Vainker’s state
         of health and thereby ensure stabilisation of his illness.
      
      167   Suffice it to observe, in that connection, that, by letter of 23 February 1999 to the Secretary-General of the Parliament,
         Mr Vainker’s doctor, Dr Rehling, put that institution on notice of the serious repercussions on Mr Vainker’s health entailed
         by the length of the procedure, in the following terms: ‘I understand that Mr Vainker applied for recognition that his illness
         was work-related in November 1997. Fifteen months have passed and there has been no apparent progress in the administrative
         process relating to this application. This delay, and the Parliament’s apparent failure to recognise and accept its responsibility
         for his illness, continues in my opinion, to have a damaging effect on Mr Vainker’s health, and the health and well being
         of his family. I would, therefore, urge you to hasten the resolution of this very difficult and sensitive problem.’
      
      168   Furthermore, it is apparent from the file that Mr Vainker and Mrs Vainker wrote to the Parliament on several occasions to
         alert it to the damaging effect on Mr Vainker’s health of the manner in which the procedure was being conducted.
      
      169   Against that background, the Parliament’s reliance on circumstances of which it was at least partly the cause to justify the
         length of the procedure is unfounded.
      
      170   The second part of the plea is therefore well founded.
      171   In the light of the irregularities found on examination of the first and third submissions in the first part of the single
         plea and the second part of that plea, that is, the facts that the administrative inquiry was conducted in breach of Article
         17(2) of the Rules and that the Parliament gave the applicants false or contradictory information and the excessive length
         of the procedure, it must be held that, in the procedure for recognition of the occupational nature of Mr Vainker’s disease,
         the Parliament engaged in unlawful conduct such as to give rise to the liability of the Community.
      
      2.     Damage and causal link
      a)     Arguments of the parties
      172   Mr Vainker submits that the Parliament’s misconduct during the course of the procedure from the time of his request of 14
         November 1997 caused the applicants profound pain and suffering. That pain and suffering was a direct result of the wrongful
         acts of the defendant. He assesses the material and non-material damage caused at EUR 100 000.
      
      173   Mr Vainker also states that while he was seeking the annulment of the procedure and had been given false information by the
         Parliament, Mrs Vainker, who was acting on his behalf as he was too unwell to take action, found it necessary to have recourse
         to the services of a lawyer. The legal costs of which reimbursement is sought amount to GBP 8 244.94.
      
      174    
         
          The Parliament points out that Mr Vainker fails to identify the exact nature of the alleged  ‘pain and suffering’, which
         is in violation of the settled case-law requiring an applicant to identify in his initial action the details of the alleged
         damage. Mr Vainker also fails to establish why an amount of EUR 100 000 can be regarded as an appropriate compensation. 
      
      175   The Parliament adds that Mr Vainker fails to establish that he was forced to incur the legal costs claimed and that, in order
         to obtain their reimbursement, it is not sufficient to establish that an amount of GBP 8 244.94 was effectively paid. It points
         out that, in so far as the costs are those of the proceedings before the Court of First Instance, if the applicant is successful
         in his application, those costs will be recoverable.  As to the costs of previous legal advice or assistance, it is settled
         case-law that these are not recoverable costs (Case C-294/90 DEP British Aerospace v  Commission [1994] ECR I-5423).
      
      b)     Findings of the Court
       Preliminary observations
      176   As a preliminary point, it must be observed that, by his second head of claim, Mr Vainker claims the payment of EUR 100 000
         for material and non-material damage caused by the conduct of the defendant considered here under C. In that connection, a
         distinction must be made between the non-material damage alleged and certain aspects of the material damage. According to
         the file, the material damage caused by the conduct in question comprises the legal costs referred to in the applicants’ third
         head of claim and the default interest referred to in the fourth head of claim and considered below under D (paragraphs 186
         to192 below). As the applicants have not established or even alleged other aspects of material damage suffered by Mr Vainker,
         a distinction must be made at this stage between the non-material damage suffered by Mr Vainker and referred to in the applicants’
         second head of claim and the legal costs claimed in the third head of claim.
      
      177    
         
          According to settled case-law, the burden of proving a causal link between a fault committed by an institution and the damage
         pleaded falls on the applicants (see Joined Cases C-363/88 and C-364/88  Finsider and Others v  Commission [1992] ECR I-359, paragraph 25). 
      
       The non-material damage
      178   It must be held that the irregularities in the procedure until the time when the Parliament informed Mr Vainker that the procedure
         would be reopened, not only had the consequences on the health and well being of his family referred to in the letter of Dr
         Rehling cited in paragraph 167 above, but also resulted in suffering for Mr Vainker which was particularly serious in the
         context of the procedure at issue and liable to constitute non-material damage.
      
      179   It follows that the causal link between the non-material damage suffered by Mr Vainker and the conduct of the Parliament is
         established.
      
      180   In the light of the foregoing, the Court of First Instance, assessing ex aequo et bono the non-material damage suffered by
         Mr Vainker and taking account inter alia of the seriousness of the defendant’s conduct towards Mr Vainker, considers that
         a sum of EUR 60 000 represents sufficient compensation.
      
       Legal costs
      181   As regards the claim for reimbursement of legal costs, it must be observed that the order in British Aerospace v Commission, cited above, to which the Parliament refers, and all the case-law to that effect in staff cases (see, for example, the orders
         of 5 July 1993 in Case T-84/91 DEP Meskens v Parliament [1993] ECR II-757, and of 25 June 1998 in Joined Cases T-177/94 DEP, T-377/94 DEP and T-99/95 DEP Altmann and Others and Stott v Commission [1998] ECR-SC I-A-299 and II-883), concern recoverable costs incurred for the purposes of the litigation before the Community
         Court. However, by this head of claim, Mr Vainker is seeking reimbursement of legal costs incurred during the pre-litigation
         procedure, while he was seeking the compensation provided for by Article 73 of the Staff Regulations, by way of a principal
         claim for damages, which cannot be confused with the head of claim concerning the costs of the case proper.
      
      182   Here the sums claimed by Mr Vainker were incurred not as a result of the operation of the pre-litigation procedure as such
         but by the mishandling of that procedure.
      
      183   In that regard, it should be borne in mind that the Court of First Instance has already held that, at the time when Mrs Vainker
         found it necessary to have recourse to the services of a lawyer, the procedure for the recognition of the occupational nature
         of Mr Vainker’s disease was tainted by irregularities.
      
      184   It follows that the causal link between the legal costs for the pre-litigation procedure and the conduct of the Parliament
         must be considered to be established.
      
      185   As the Parliament has not disputed the amount of that damage as such it follows that the Parliament must be ordered to pay
         Mr Vainker the sum of GBP 8 244.94.
      
      D –  The claim for payment of default interest
      1.     Arguments of the parties
      186   Mr Vainker seeks an order that Parliament pay default interest on the amount of the payment made under the Rules between the
         time when that payment ought reasonably to have been made and the time when it was paid. At the hearing Mr Vainker made clear,
         first, that his claim for default interest concerns in particular the delay in payment of the lump sum compensation provided
         for by Article 73(2)© of  the Staff Regulations and, second, that the rate of that interest should be in accordance with the
         Court’s practice as revealed in its case-law.
      
      187    
         
          The Parliament points out that Mr Vainker claims interest of 8% on the amount of the lump sum without establishing the date
         as from which this interest should run.  Moreover, it considers that, if interest is due, it should be fixed at a maximum
         of 4.5% so as to reflect the rates most recently fixed by the Court of First Instance (Case T-231/97 New Europe Consulting v Commission [1999] ECR II-2403, paragraph 71). 
      
      2.     Findings of the Court
      188    
         
          As regards the determination of the period for which such interest must be paid, it must be observed, as a preliminary point,
         that it has been held that ‘where the decision recognising that an official’s disease is occupational in origin and fixing
         his rate of permanent invalidity is adopted late, owing to irregularities or negligence attributable to the institution in
         question, the official concerned may claim, by way of damages under the general system of non-contractual liability applicable
         in the context of Article 179 of the EC Treaty (now Article 236 EC), default interest on the lump sum to which he is entitled,
         under Article 73 of the Staff Regulations for the period between the date on which the institution should reasonably have
         been in a position to adopt the decision recognising his occupational disease if it had proceeded with all due diligence and
         the date on which the lump sum is paid’ (judgment in Case T-300/97 Latino v Commission [1999] ECR-SC I-A-259 and II-1263, paragraph 99).
      
      189   It should also be noted that it was held in paragraph 164 above that the Parliament must be held liable for the unduly lengthy
         procedure.
      
      190   In the light of  the case-law cited, the claim under consideration must first be reclassified as a claim for default interest
         on the capital sum at issue and then the period in respect of which that interest is to be calculated in accordance with that
         case-law must be determined.
      
      191   Between the letter of 12 November 1999 from the Parliament informing Mr Vainker that the procedure had been reopened and the
         decision of the appointing authority of 27 November 2001, which fixed Mr Vainker’s rate of invalidity and granted him compensation
         of EUR 617 617.94, a period of 2 years and 15 days elapsed. As the procedure was initiated by letter from Mr Vainker of 14
         November 1997, a decision fixing the amount of the payment could have been made two years and 15 days after the start of the
         procedure, in other words on 29 November 1999.  Accordingly, the period in respect of which default interest must be paid
         is that between 29 November 1999 and 9 January 2002, the date on which Mr Vainker received that sum.
      
      192    
         
          As for the percentage of the annual rate of default interest to be applied, the Court considers that that rate must be calculated
         on the basis of the rate fixed by the European Central Bank for its main refinancing operations, in force from time to time
         during the period concerned, plus two percentage points. 
      
      E –  The claims for compensation for the damage allegedly suffered by Mrs Vainker
      1.     Arguments of the parties
      193    
         
          Mrs Vainker specifies that her claim is based on both Article 236 EC and Articles 235 EC and 288(2) EC. She submits that
         the material and non-material damage she has endured are a direct result of her dealings with the Parliament during its handling
         of the application for recognition of the occupational nature of her husband’s disease and the procedure for compensation
         under the Rules, and that, in the circumstances, her situation is different from that analysed in Leussink, cited above. 
      
      194    
         
          She alleges that, as a result of the great difficulty Mr Vainker had in dealing with his application for recognition that
         he is suffering from an occupational disease and the claim for compensation arising out of this request, Mrs Vainker has had
         to deal with the application in place of her husband and to bear the brunt of dealing with the Parliament since November 1997.
         This in turn has had a significant detrimental effect on her health and well-being.  
      
      195    
         
          Mrs Vainker blames the Parliament for the fact that she has been obliged to exchange difficult correspondence with the Director-General
         for Personnel of the Parliament, that she has been supplied with erroneous information on the progress of her husband’s application
         and, as that progress has been very slow, has had to telephone the Parliament to find out what was happening on numerous occasions. 
      
      196   She alleges, further, that she has suffered as a result of the medical report by Dr Van Acker whose comments as to the cause
         of Mr Vainker’s illness were untrue and offensive.  In that connection, she criticises the Parliament for submitting that
         medical report to Dr Lipsedge without a copy of Mr Vainker’s letter of 5 November 1998.  In her view, had the letter been
         attached it would have put any reader on notice to treat any report of Dr Van Acker with caution.  Furthermore, the Parliament’s
         fault is compounded by failing to include Dr Van Acker’s report in the list of documents submitted to Dr Lipsedge and by failing
         to supply the report to Mr Vainker’s doctor, Dr Rehling, who was to sit on the Medical Committee.
      
      197   What is more, she understands that the Parliament also permitted to be circulated within its confines, for translation purposes,
         Dr Van Acker’s medical report containing those untrue and offensive comments without Mr Vainker’s letter of 5 November 1998
         being attached to it.  As a result Mrs Vainker’s reputation has been seriously diminished, thus causing suffering. 
      
      198    
         
          Moreover, Mrs Vainker points out that, towards the end of the year 2000, in large part as a result of the highly stressful
         time that they have endured because of the above events over the last few years, she and her husband have separated. 
      
      199    
         
          In conclusion, the past three years have caused Mrs Vainker considerable anxiety as she has had to care for her husband who
         has at times seemed to her to be suicidal. In addition, she has had to care for their three children who have inevitably been
         adversely affected by their father’s protracted illness. In her endeavour to pursue her husband’s claim for recognition of
         the occupational nature of his disease and in the knowledge from conversations with her husband’s doctor, Dr Rehling, that
         Mr Vainker could not make any sort of recovery until the procedure had been completed, she has had to deal with very trying
         circumstances in attempting to make the Parliament expedite the matter.  
      
      200    
         
          She submits that the conduct of the Parliament has caused her material and non-material damage. Consequently, she has required
         the support of a clinical psychologist, who in December 1998 diagnosed her as suffering from clinical depression, caused both
         by her husband’s deteriorating psychological state and the lack of resolution of his claim for compensation. Details of the
         condition of Mrs Vainker are to be found in the report of Dr Van Rooyen of 10 December 1998. 
      
      201    
         
          Therefore, Mrs Vainker claims compensation for the material and non-material damage caused to her and her non-reimbursed
         medical expenses relating to her psychotherapy sessions. 
      
      202    
         
          The Parliament contends essentially that the damage alleged by Mrs Vainker is the result of the occupational disease of her
         husband and that such damage does not constitute part of the harm for which an institution may be held liable in its capacity
         as employer (Leussink). 
      
      203    
         
          It follows from Mrs Vainker’s own statement that the past three years have caused her considerable anxiety as she has had
         to care for Mr Vainker and for their three children.  It is also clear from her own statement that she took upon herself,
         on her own initiative, the task of pursuing Mr Vainker’s claim. 
      
      204   The Parliament accepts that, in actively assisting her husband in his contacts with the Parliament, Mrs Vainker may, herself,
         have become deeply and personally involved in the matter.  However, the Parliament contends that the fact that she chose,
         voluntarily, to support her husband in his dealings with the Parliament does not, on its own, mean that it can be held in
         any respect directly liable, vis-à-vis Mrs Vainker.
      
      205    
         
          The Parliament further contends that Mrs Vainker has failed to establish any unlawful conduct on the part of the Parliament
         which could have caused the alleged damage to her health and well-being.  
      
      2.     Findings of the Court
      206   Mrs Vainker claims payment of damages of EUR 50 000 by way of compensation for material and non-material damage allegedly
         caused to her by the Parliament during the procedure for recognition of the occupational nature of the disease of her husband,
         Mr Vainker, and for the fixing of the lump sum payment. She also claims payment of damages of GBP 1 145 by way of reimbursement
         of otherwise non-reimbursable medical expenses incurred for psychotherapy.
      
      207   It must be acknowledged, as a preliminary point, that the repercussions on Mr Vainker’s health of the irregularities recorded
         on the part of the Parliament during the procedure may have been the source of certain adverse effects on Mrs Vainker. That
         is clear inter alia from the report by Dr Van Rooyen of 10 December 1998.
      
      208   However, the Court finds that Mrs Vainker has not succeeded in establishing a causal link between the wrongful conduct of
         the Parliament during the procedure and the damage she alleges to have suffered.
      
      209   Although it cannot be disputed that Mrs Vainker had direct contact with the institution in an effort to bring about progress
         in the procedure, it must be observed that the only person that procedure concerned was her husband, Mr Vainker. Moreover,
         it must be held that Mrs Vainker has not succeeded in establishing that the Parliament’s actions were the direct cause of
         the damage alleged. The existence of a causal link between the abovementioned facts alleged against the Parliament by Mrs
         Vainker and the damage she alleges cannot, therefore, be accepted.
      
      210    
         
          Against that background, although there can be no doubt about the reality of the damage described by Mrs Vainker or about
         the existence of a link with her husband’s illness, they are nevertheless the indirect result of the injury suffered by Mr
         Vainker and do not constitute part of the harm for which the Parliament may be held liable in its capacity as employer (Leussink, cited above, paragraph 22). 
      
      211   As regards the alleged distribution of Dr Van Acker’s report for the purposes of translation, it must be observed that the
         Parliament cannot be held liable for an irregularity by reason of the forwarding of a medical report to its translation services,
         given that its officials, including those assigned to its translation service, are bound under Article 17 of the Staff Regulations
         by a duty of discretion with regard to the facts and information coming to their knowledge in the course of or in connection
         with the performance of their duties.
      
      212   It follows from the foregoing that Mrs Vainker’s claim must be rejected.
       Costs
      213    
         
          Under Article 87(3) of the Rules of Procedure, the Court may order that costs be shared or that each party is to bear its
         own costs if each party succeeds on some and fails on other heads. As the Parliament has failed on some heads, and having
         regard to the circumstances of the case, it must be ordered to bear its own costs and two thirds of the costs of the applicants.
         
      
      On those grounds, 
      THE COURT OF FIRST INSTANCE (Second Chamber),
      hereby:
      1.      Orders the Parliament to pay Mr Vainker the sum of EUR 60 000.
      2.      Orders the Parliament to pay the applicant, Mr Vainker, the sum of GBP 8 244.94 by way of reimbursement of legal costs incurred
            during the procedure for recognition of the occupational origin of Mr Vainker’s disease.
      3.      Orders the Parliament to pay the applicant, Mr Vainker, default interest on the sum of EUR 617 617.94 from 29 November 1999
            to 9 January 2002. The rate of that interest must be calculated on the basis of the rate fixed by the European Central Bank
            for its main refinancing operations, in force from time to time during the period concerned, plus two percentage points.
      4.      Dismisses the remainder of the application.
      5.      Orders the Parliament to pay its own costs and two thirds of those of the applicants.
      
               Forwood 
            
            
                Pirrung 
            
            
                Meij 
            
         Delivered in open court in Luxembourg on 3 March 2004.
      
               H. Jung 
            
             
            
                      J. Pirrung
            
          
            
                            President
            
             
         Table of contents
      
      Legal background
      Background to the dispute
      Procedure and forms of order sought
      Admissibility
      Substance
      A –  Preliminary observations
      B –  The request for reparation of the damage suffered by Mr Vainker by reason of the fact that he is suffering from an occupational
         disease caused by the alleged conduct of the Parliament
      
      1.  The unlawful conduct of the Parliament
      a)  Arguments of the parties
      b)  Findings of the Court
      Mr Vainker’s workload
      Practices in the Legal Service
      The possibility of a transfer for Mr Vainker
      Conclusion
      C –  The claim for compensation for the material and non-material damage suffered by Mr Vainker as a result of the irregularities
         allegedly attributable to the Parliament in the procedure for recognition of the occupational origin of his disease
      
      1.  The unlawful conduct of the Parliament
      a)  Arguments of the parties
      b)  Findings of the Court
      The first part of the plea, alleging irregularities in the procedure
      –  Preliminary observations
      –  The first submission: the inadequacy of the  first report following the inquiry
      –  The second submission, that the first report on the inquiry was not sent to Mr Vainker in time
      –  The third submission, that false information was given
      –  The fourth submission, that the second report on the inquiry was defective
      –  The fifth submission, that no details were given to the doctor appointed by the institution  for the purposes of the procedure
      The second part of the plea, that the procedure was unduly lengthy
      2.  Damage and causal link
      a)  Arguments of the parties
      b)  Findings of the Court
      Preliminary observations
      The non-material damage
      Legal costs
      D –  The claim for payment of default interest
      1.  Arguments of the parties
      2.  Findings of the Court
      E –  The claims for compensation for the damage allegedly suffered by Mrs Vainker
      1.  Arguments of the parties
      2.  Findings of the Court
      Costs
      * Language of the case: English.