CELEX: C2001/200/83
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-181/01 P: Appeal brought on 25 April 2001 by N against the judgment delivered on 13 February 2001 by the Court of First Instance of the European Communities (Fifth Chamber) in Case T-2/00 N v Commission of the European Communities

14.7.2001              EN                    Official Journal of the European Communities                                      C 200/47
Appeal brought on 25 April 2001 by N against the                        —    Infringement of Articles 72 and 73 of the Staff Regu-
judgment delivered on 13 February 2001 by the Court                          lations and of Article 2(1) and (2) of the Rules: The Court
of First Instance of the European Communities (Fifth                         of First Instance confined its examination to the issue of
Chamber) in Case T-2/00 N v Commission of the European                       transmission of the pathogen and took no account of the
                          Communities                                        view that the consequences of an accident are not limited
                                                                             to its immediate effects but may manifest themselves at a
                                                                             later time. Given that a particular pathology can derive
                        (Case C-181/01 P)                                    only from a specific cause, the proof lies in re ipsa: it is
                                                                             sufficient to link the contamination with its cause. The
                         (2001/C 200/83)                                     appellant observes, first, that the circumstances of his
                                                                             contamination were purely sexual. He then observes that
                                                                             even if the Court of First Instance’s argument that the CM
An appeal against the judgment delivered on 13 February                      did not treat the tearing of the condom as the cause of
2001 by the Court of First Instance of the European Communi-                 contamination or was not able to define such tearing
ties (Fifth Chamber) in Case T-2/00 N v Commission of the                    precisely were to be accepted — quod non — all the
European Communities was brought before the Court of                         other factual, chronological and medical circumstances
Justice of the European Communities on 25 April 2001 by N,                   described by the MC add up to a presumption such that
represented by the lawyer G. Durazzo.                                        the appellant’s infection can be classified as an accident.
                                                                             In any event, if the circumstances indicated do not
                                                                             constitute an ‘occurrence’ of the kind referred to in
The appellant claims that the Court of Justice should:                       Article 2(1) of the Rules, they do add up to a ‘factor’ of
                                                                             the kind mentioned in the alternative.
—     declare the appeal admissible and well founded,
—     set aside the contested judgment,
                                                                        —    Infringement of the rules governing the Commission’s
                                                                             non-contractual liability (Article 288 EC): the conduct
—     grant the form of order sought in the   application (1),
                                                                             and misconduct of the appointing authority, if only
                                                                             because of the fact that the disposal of the case was
—     order the Commission to pay the costs at both instances                thereby delayed, have had a psychological and stressful
      and to reimburse the Joint Sickness Insurance Fund costs               impact on the appellant to an extent greater than that
      incurred by the appellant.                                             which would be suffered by a person in perfect health or
                                                                             in proceedings in an ordinary staff case. Since the damage
                                                                             is not directly quantifiable, the appellant relies on a fair
Pleas in law and main arguments                                              assessment to be made by the Court.
—     Distortion of the opinion of the Medical Committee (MC)
      and infringement of the principle that measures must be
      construed according to their actual content; materially           (1) OJ C 79 of 18.3.2000.
      incorrect findings conflicting with the content of the said
      opinion; infringement of the legal principle concerning
      the interpretation of complex measures; infringement of
      the principles expounded in case-law concerning the
      conditions applicable to the propriety, interpretation and
      content of opinions of medical committees; illogical
      and contradictory statement of reasons; breach of the
      presumption of good faith; infringement of Article 19 of
      the Rules on the Insurance of Officials of the European
      Communities against the Risk of Accident and of Occu-
      pational Disease (‘the Rules’).
—     Infringement of Article 73 of the Staff Regulations and of        Reference for a preliminary ruling by the Oberlandesger-
      Articles 2, 4, 7 and 19 of the Rules: in order to avoid           ichts Düsseldorf of 22 March 2001, in the case of Saatgut-
      defining the incident at issue as an accident (that is to say,        Treuhandverwaltungs GmbH against Werner Jäger
      HIV infection), the CM introduced into the debate the
      concepts of consent to risk and irresistible violence and
      the possibility of treating different conditions as being                                 (Case C-182/01)
      the same and not giving rise to invalidity. The Court of
      First Instance, after declaring that it had jurisdiction to
      examine whether the appointing authority, in endorsing                                   (2001/C 200/84)
      the opinion of the MC, which refers in its conclusions to
      the concept of ‘accident’, respected the meaning of the
      relevant provisions, did not conclude, as it should have          Reference has been made to the Court of Justice of the
      done, that those assessments were incorrect.                      European Communities by order of the Gerichtshof of