CELEX: 61966CC0003
Language: en
Date: 1966-11-23
Title: Opinion of Mr Advocate General Gand delivered on 23 November 1966. # Cesare Alfieri v European Parliament. # Case 3-66.

OPINION OF MR ADVOCATE-GENERAL GAND
   DELIVERED ON 23 NOVEMBER 1966 (
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      Mr President,
   
      Members of the Court,
   By a decision of 13 November 1965 of the President of the European Parliament, Cesare Alfieri, an official of that institution, was granted the invalidity pension referred to in Article 78 of the Staff Regulations, with effect from 1 December 1965. He requests you to annul the said decision and also contests, in so far as is necessary, the decisions concerning the setting up and composition of the Committee which decided his case together with the report of that Committee.
   The facts in which the contested step occurred are sufficiently well-known to you through the report of the hearing and the statements of the witnesses for me to be able to refrain from repeating them at this point.
   Instead I wish in the first place to dismiss two objections of inadmissibility which the defendant has raised against the application, while ultimately relying on the wisdom of the Court in the matter.
   First Mr Alfieri does not base his application on a defect in the retirement decision itself, but rather on the alleged illegality of the steps which preceded it. This point had already emerged at the outset of the proceedings, by which time the applicant had already made a complaint through official channels to the President of the European Parliament on 22 October 1964. However,
   since this letter was of a private and personal nature, it seems impossible to consider it as a complaint within the meaning of Article 90 of the Staff Regulations. Furthermore, your case-law is firmly established to the effect that the applicant may always rely on defects vitiating the preliminary procedure in respect of a decision which ultimately affects him adversely (that is, the retirement decision). Secondly the European Parliament maintains that Mr Alfieri wished to take advantage of apparent lacunae in the Staff Regulations to obstruct his retirement which was made necessary by his state of health. For example, he refused to appoint a doctor to represent him on the Invalidity Committee, which was not only his right but his duty. It is alleged that this obstruction prevents him from relying on Article 91 of the Staff Regulations and that his application is improper. To which one might reply that if, as in the present case, there is a dispute between an institution and one of its servants concerning the legality of an act adversely affecting the latter, under Article 91 it is your duty to give a ruling on the dispute. The legality of the position adopted by the applicant — which I shall come to examine in connexion with the complaints which he raises — comes within the substance of the case and does not concern its admissibility. What are the provisions of the Staff Regulations and of the Annexes thereto which govern the matter? According to Article 59, an official who provides evidence of incapacity to perform his duties because of sickness or accident shall automatically be entitled to sick leave. In this situation, the duration of his leave is not limited, although it is necessarily temporary, and he is in active employment within the meaning of the Staff Regulations. The leave ends either when the person concerned is cured and returns to work or when the Invalidity Committee finds that he suffers from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket. In such a case, the official shall cease to perform his duties and shall be retired (Article 53) and is entitled to an invalidity pension the rate of which is to be calculated under Article 78.
   These are the basic rules. With regard to the course of the proceedings, it is possible that it is the sick official (or his family) who, having given up hope of recovering health, wishes to have his invalidity recognized so as to be able to leave the service permanently. The provisions do not mention this possibility, but it is self-evident that the administration must at the request of the person concerned bring the matter before the Committee. It is also possible that, if the servant is absent for a long time, the institution itself, wishing to have the post held by the servant actively filled, may commence the proceedings. Article 59 of the Staff Regulations provides that the appointing authority may refer to the Invalidity Committee (it is not obliged to do so) the case of any official whose sick leave totals more than twelve months in any period of three years. You know the rather unusual method whereby this Committee is constituted. Of the three doctors who form the Invalidity Committee, the first shall be appointed by the President of this Court, the second by the person concerned and the third by the agreement of the first two doctors. This system implies, for its normal functioning, the cooperation of the servant the state of whose health is under consideration, and is supplemented by the right conferred upon the official to submit to the Committee any reports or certificates from his regular doctor or from any other medical practitioners whom he may have consulted.
   Although the composition of this Committee and its manner of functioning afford the best protection of the interests of the official, it would be too much to say that recourse to the Committee is provided in his exclusive interests. It is desirable that the question should be settled by doctors and not by officials, precisely because it is a purely medical matter. At the same time as protecting the official, it has regard for logical and good administration. What must be emphasized is that the Committee's conclusions, which under Article 9 of Annex II require to be communicated to the appointing authority, guide the decision which it must take, to the extent that in this sphere it only has what might be termed a limited power. The institution is bound to apply Articles 53 and 78 only to an official whom the Committee has recognized as suffering from permanent invalidity. On the other hand, it may not retire a servant whose case the Committee has been unable to examine, or whom the Committee did not recognize as suffering from permanent invalidity. The facts of the case are known, and the entire dispute in the application centres around the circumstances in which the Committee was constituted.
   
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            Faced with Mr Alfieri's consistent refusal to appoint a doctor to represent him on the Committee, Dr Stein, the former private doctor of the person concerned, was appointed by agreement between the President of the Medical Council of the Grand Duchy and the medical adviser of the European Parliament. Then this doctor and Dr Éloi Welter, who had previously been selected by the President of the Court of Justice, appointed as the third member of the Committee Dr Roger Welter, also a former private doctor of Mr Alfieri.
            This procedure does not comply with the provisions of Article 7 of Annex II, but this was brought about by the applicant himself. The applicant recognizes this and states in his reply that the choice of a doctor which is required of him under Article 7 is not ‘an obligation under the Staff Regulations and cannot be imposed on him, since he cannot be obliged to cooperate in proceedings of which he disapproves’. Starting from this premise, he deduced that, faced with a lacuna in the Staff Regulations, no provision of European or national law conferred the power on the President of the Medical Council to intervene and appoint a member of the Committee, and on the doctor, thus appointed, to combine in appointing the third member of this body. The irregularity committed was all the more serious since the unwilling participation of the two former regular doctors in the work of the Committee would necessarily involve them in a breach of professional secrecy. This is the first complaint which is set out in the application.
            This line of argument however suffers from a basic defect. Although the applicant had a free choice with regard to the doctor whom he wished to appoint, he was nevertheless bound to appoint one, when the institution requested him to do so, in order that the Committee might be formed. This was a real duty for him and, as the Parliament points out, refusal to comply with it constituted misconduct. His refusal may not paralyse the course of proceedings provided for by the Staff Regulations. The question then turns exclusively on how to remedy the failure to act of the official whose cooperation is in principle necessary in the normal course of these proceedings.
            Various solutions might be envisaged.
            For example, the institution might be released from its obligation to take an external opinion and might take its own decision on the basis of the facts at its disposal. Or else, if the setting up of the Committee was prevented by the attitude of the official, it might restrict itself to the sole member of the Committee already appointed by the President of the Court of Justice, and it would be sufficient for the administration to take the opinion of this professional man alone. But these radical solution both meet with serious objections. The first leaves out of account the fact that a medical question is to be settled and that it is undesirable to rely in this matter on officials who have no special qualifications in this sphere. The second fails to observe the emphasis which the Staff Regulations give to the collective nature of the opinion to be communicated to the institution: the opinion proceeding from a single doctor does not carry the same weight as that arising from the confrontation of various points of view.
            Moreover the Parliament appears to me to have acted very much in the spirit of the Regulations by endeavouring to constitute at all costs the three-member Committee provided for by Annex II. The complaint that in this matter it turned to the President of the Medical Council, who, it is claimed, has no power for this purpose, is unfounded, for although he does not have competence in the legal sense of the term, a certain moral authority to choose or propose a name cannot be denied him.
            There remains certainly the most delicate point that the second and third members of the Committee were both former private doctors of the official whose case they were required to consider. But, contrary to what is maintained by Mr Alfieri, it is not clear that these doctors were unable to give a decision on the state of his health without of necessity breaching the professional secrecy from which only he could release them. The medical file which had been transferred to it by the Parliament was brought before the Committee. Although we do not know what documents were on this file, we know that under the Staff Regulations an official on sick leave must produce a medical certificate and may be required to undergo a medical examination arranged by the institution. Conclusions might be drawn from these documents without the members of the Committee requiring of necessity to have resort to what they had learned as the applicant's regular doctors. I do not think that, taking into account the circumstances of the case, the first paragraph of Article 7 of Annex II to the Staff Regulations has been infringed.
         
      
            2.
         
         
            Mr Alfieri maintains secondly that by appointing two of his private doctors (more precisely his former private doctors) he was deprived of the additional protection of the first paragraph of Article 9 of the Annex. This is not so; no matter how the Committee was made up, the patient always had the opportunity to submit to it ‘any reports or certificates from his regular doctor or from any other medical practitioners whom he may have consulted’, to repeat the terms of the Article on which he relies.
         
      
            3.
         
         
            The applicant then contests the manner in which the Committee conducted its proceedings, together with the conclusions with reference to which the Parliament took its decision to retire him.
            I do not agree with him on the first point, since it is for the Commission, whose proceedings, pursuant to the third paragraph of Article 9 are to be secret, to conduct them as it thinks fit. In particular the provisions do not require the Committee to make a personal examination of the official and, contrary to what the applicant claims, the existence of many diseases and their consequences may be appraised from documents.
            On the other hand, it is clear that the conclusions of the Committee, to which the same Article refers, must by definition reflect, if not the unanimous opinion, at least the opinion of the majority of its members. For reasons which have been amply explained, Mr Alfieri disputes that this was so in the present case.
            Two facts appear clear from the report drawn up and signed on 5 November 1965 by the Chairman of the Committee: unanimous agreement on the finding that the state of his ill health had become permanent and that the patient suffered from total permanent invalidity preventing him from performing his duties; and the refusal of the two other members of the Committee to sign the minutes of the deliberations.
            The two aspects of this report do not necessarily conflict with each other: it is sufficient to imagine a case where refusal to sign the document is motivated by reasons other than disagreement on the substance of the conclusions, that is to say, on the sole point guiding the Parliament's subsequent decision.
            Nevertheless you considered the questions sufficiently important and doubtful to decide of your own motion to hear the three members of the Committee as witnesses. After hearing Dr Stein and Dr Roger Welter and reading the written statement sent to you by the Chairman of the Committee, whose state of health prevented him from travelling, it seems to me impossible to give a favourable interpretation to the terms of the report.
            I do not wish to dwell on the details of those two hearings in which reference might be made to certain discrepancies and silences. It is not important to decide for what reason or under what influence those doctors felt that they must adopt the attitude which they did on the Committee. It is no more necessary for me to appraise whether they were right in so doing. One may, however, experience surprise that they did not feel themselves bound to notify their change of opinion to the author of the report, as soon as they knew of the report, with the attitudes ascribed to them which they now dispute.
            But the important point is the statements which you have heard and which in their essentials arrive at the same results. Dr Roger Welter said that it is not true that the Committee reached agreement with regard to Mr Alfieri's state of health. And, in somewhat different terms, Dr Stein stated that the Committee made no finding and that he refused to sign the report as it did not correspond to the facts. Thus both dispute that there was a unanimous or even a majority opinion in the Committee in finding the applicant's degree of invalidity.
            Let us now compare this with the written statement addressed to you by Dr Éloi Welter. Certainly there is first of all the summary of his report of 5 November 1965, but, after noting that his two colleagues had refused to sign this document, the Chairman of the Committee concludes with this paragraph which must be quoted verbatim: ‘For this reason, the conclusions with regard to total permanent invalidity, which, in my opinion, emerged from our meeting of 22 September 1965, are only binding on their signatory’. Does this not recognize that from the outset there was a disagreement? Dr Eloi Welter thought at the outset that his colleagues were in agreement with him on the substance of the question of the degree of Mr Alfieri's invalidity; at the outset this was his opinion, but he now no longer holds this view.
            The conclusions which must necessarily be drawn from these findings appear to me the following. The cancellation of the conclusions of the report renders the retirement decision which the Parliament felt itself bound to take on the basis of the document addressed to it unfounded.
            This decision should therefore be annulled, without its being necessary to comment on the final complaint of the application which, inany event, seems to me unfounded. Mr Alfieri complains that the Committee did not properly consider, as the first paragraph of Article 13 of Annex VIII to the Staff Regulations requires, whether he was unfit for posts in his career bracket other than that which he held. The Committee's findings — if it is necessary to recall them — in fact give the impression that the disease from which the applicant suffers renders it impossible for him to perform any duty.
            I am aware that the solution which I suggest to you may be unsatisfactory in more than one respect. The decision of the Italian Parliament, which also retired Mr Alfieri on grounds of health, and the fact that the latter never formally maintained that he was capable of resuming his duties in the near future might give rise to the presumption that he actually suffers from permanent invalidity, as does the determination which he displayed in impeding the formation of the Committee to decide his case. But the question on which the contested decision depended was essentially medical; we may not substitute our appraisal for that of the doctors. Moreover, if the institution was right, as I have said, in by-passing by Mr Alfieri's obstruction, it remains bound to accept the opinion of the Invalidity Committee. This is a condition too clearly laid down in the Staff Regulations to admit of exceptions to it.
            Apart from the annulment which he requests, Mr Alfieri has brought before you conclusions for damages estimated by him at 120000 francs, of which 100000 francs represent the non-material damage which he suffered through being retired. This damage has not been proved, any more than the material damage which will disappear with the annulment of the contested decision; the conclusions of the application on this point should therefore be rejected.
         
      I am therefore of the opinion that:
   
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            the decision of the President of the European Parliament of 13 November 1965 retiring Mr Alfieri should be annulled,
         
      
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            the remaining conclusions of the application should be rejected,
         
      
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            the costs should be borne by the European Parliament.
         
      (
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      )	Translated from the French.