CELEX: 62008TJ0377
Language: en
Date: 2009-12-09 00:00:00
Title: Judgment of the General Court (Appeal Chamber) of 9 December 2009. # European Commission v Gerhard Birkhoff. # Appeal - Public service - Officials - Social security. # Case T-377/08 P.

JUDGMENT OF THE GENERAL COURT (Appeal Chamber)
      9 December 2009
      Case T-377/08 P
      European Commission
      v
      Gerhard Birkhoff
      (Appeal – Civil service – Officials – Social security – Health insurance – Reimbursement of medical expenses – Annulment at first instance of the decision refusing prior authorisation for reimbursement of the costs of acquisition of
         a wheelchair – Distortion of the clear sense of evidence)
      
      Appeal: brought against the judgment of the European Union Civil Service Tribunal (First Chamber) in Case F-76/07 Birkhoff v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, seeking to have that judgment set aside.
      
      Held: The judgment of the European Union Civil Service Tribunal (First Chamber) in Case F-76/07 Birkhoff v Commission is set aside. The decision of the Settlements Office of 8 November 2006 is set aside. Mr Gerhard Birkhoff and the European
         Commission are to bear their own costs in relation to the present instance. The Commission is to pay all the costs relating
         to the proceedings at first instance.
      
      Summary
      1.      Officials – Social security – Sickness insurance – Medical costs – Repayment – Refusal – Complaint – Decision to reject –
            Obligation to state the reasons on which the decision is based
      (Staff Regulations, Art. 90(2))
      2.      Officials – Social security – Sickness insurance – Medical costs – Repayment – Refusal – Judicial review – Limits
      (Staff Regulations, Art. 72)
      3.      Officials – Administration's duty to have regard for the interests of officials – Taking into consideration of official’s
            interests
      (Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease,
            Art. 35(2))
      1.      The reasons for a decision rejecting a complaint are deemed to be identical to those for the decision against which the complaint
         was made.
      
      Where the Settlements Office refuses, on the basis of the unfavourable opinion of the Medical Adviser, to reimburse certain
         medical costs under Article 20 of the Common Rules, and the official concerned lodges a complaint alleging that the reason
         for that refusal was too general or brief, the administration may, in response to that complaint, provide more explicit reasons
         during the prelitigation procedure. Such specific reasons relating to the individual case, notified prior to the initiation
         of proceedings before the courts, are deemed to be identical to those for the decision to refuse reimbursement and must therefore
         be regarded as relevant information for assessing the lawfulness of that decision.
      
      (see paras 55-56)
      See: C‑115/92 P Parliament v Volger [1993] ECR I‑6549, para. 22; C‑150/03 P Hectors v Parliament [2004] ECR I‑8691, paras 47 to 49; T‑586/93 Kotzonis v ESC [1995] ECR II‑665, para. 105; T‑66/98 Gaspari v Parliament [1999] ECR-SC I‑A‑55 and II‑287, paras 30 to 33; T‑34/99 Pipeaux v Parliament [2000] ECR-SC I‑A‑79 and II‑337, paras 18 and 19; T‑281/01 Huygens v Commission [2004] ECR-SC I‑A‑203 and II‑903, para. 107
      
      2.      Review by the courts does not extend to medical appraisals properly so-called, which must be regarded as definitive provided
         that the conditions in which they are made are not irregular.
      
      The views of a Medical Adviser and a Medical Council solely on the purely technical question of whether a defective wheelchair,
         given the material used in its manufacture and the cause of the damage to its back, might reasonably be repaired or whether
         it was justified, for safety reasons, to pay for the purchase of a new wheelchair, do not express any medical appraisal properly
         so-called. Consequently, the case-law on the restricted judicial review of medical opinions does not apply in such a case.
      
      (see paras 68-70)
      See: 2/87 Biedermann v Court of Auditors [1988] ECR 143, para. 8; T‑33/89 and T‑74/89 Blackman v Parliament [1993] ECR II‑249, para. 44; T‑191/01 Hecq v Commission [2004] ECR-SC I‑A‑147 and II‑659, para. 62
      
      3.       The administration’s duty to have regard for the welfare of its servants, which reflects the balance of reciprocal rights
         and obligations established by the Staff Regulations in the relationship between the official authority and the civil servants,
         means in particular that when the authority takes a decision concerning the situation of an official, it should take into
         account not only the interests of the service but also those of the official concerned.
      
      The appointing authority infringes its duty to have regard for the welfare of its servants where it fails to take account
         of the situation of an applicant, a retired official, seeking reimbursement of the costs of replacing his daughter’s defective
         wheelchair, when that authority is aware that the applicant lives in a different Member State from that of his daughter and
         that the wheelchair was purchased in the first Member State and repaired in the second. That situation inevitably makes it
         particularly difficult for the applicant to demonstrate the cause of the wheelchair’s defectiveness and to prove that his
         paraplegic daughter needs a new wheelchair in order to be able to lead a decent private and professional life.
      
      The appointing authority is accordingly obliged to take a more active role in investigating the case, by considering, in particular,
         the application by analogy of Article 35(2) of the Common Rules on the insurance of officials of the European Communities
         against the risk of accident and of occupational disease, according to which the administration, before taking a decision
         on a complaint, may, where the point at issue is of a medical nature, seek expert medical advice, ‘the cost of the expert
         opinion [being] borne by the Joint Sickness Insurance Scheme’. Since the point at issue is a technical one, the appointing
         authority should ask itself, therefore, whether it is preferable, in financial terms, to assist the applicant in finding a
         technical expert, at the Joint Sickness Insurance Scheme’s expense, or to consider reimbursing the cost, possibly up to a
         certain ceiling, of purchasing a new wheelchair.
      
      (see paras 87-89)
      See: 33/79 and 75/79 Kuhner v Commission [1980] ECR 1677, para. 22; C‑298/93 P Klinke v Court of Justice [1994] ECR I‑3009, para. 38; T‑156/05 Lantzoni v Court of Justice [2006] ECR-SC I‑A‑2‑189 and II‑A‑2‑969, para. 88