CELEX: 61971CC0031
Language: en
Date: 1973-11-15
Title: Opinion of Mr Advocate General Reischl delivered on 15 November 1973. # Antonio Gigante v Commission of the European Communities. # Case 31-71.

OPINION OF MR ADVOCATE-GENERAL REISCHL
   DELIVERED ON 15 NOVEMBER 1973 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   Today I have to consider a case concerning the effects of an accident suffered by Mr Gigante, an official of the Commission.
   I would first like to make the following remarks about the factual situation as it has developed since the time of the accident.
   Mr Gigante took up a post with the Commission of the European Communities in 1960. Pursuant to the Staff Regulations he was established as an official with effect from 1 January 1962. At first he was employed in the Roneo Department as an ‘opérateur auxiliaire’. With effect from 1 June 1964 he was appointed clerical assistant, Category C 4, in the Directorate-General for Administration and Personnel, where he was apparently concerned with photo-copying work.
   On 13 November 1962, on the way home from his place of work, Mr Gigante suffered a motor accident.
   Following this accident Mr Gigante was unfit for work until 2 January 1963. In 1963, in account of the continuing necessity for medical treatment, he undertook half-day working. On 18 December 1963 the Commission's medical officer established that Mr Gigante was capable of performing photo-copying work, with the proviso that a chair must be available for him during rest periods. At this time, and subsequently, the medical treatment apparently continued.
   Since the Commission — as we know from other cases — has instituted insurance cover for accidents suffered by its employees, the relevant insurance company also took in hand the case of Mr Gigante. This company informed the Commission, in January 1965, that its doctor had established that Mr Gigante had completely recovered from his injuries, and that no lasting effects of the accident were apparent which could justify the finding that he was unfit for work. The Commission's medical officer was also of this opinion. Mr Gigante, however, disagreed. Accordingly, an attempt was made — as provided for in the insurance policy — to elucidate this question by means of arbitration. As the Commission has stated, this attempt was subsequently frustrated by Mr Gigante's refusal to cooperate. The insurance company, therefore, in July 1968, invoked the period of limitation contained in the insurance policy and made no further payments (whereas, apparently, up to January 1965 all medical and pharmaceutical expenses occasioned by the accident had been refunded).
   In view of the fact that Mr Gigante had been absent from work up to the end of 1967 for more than 600 days on grounds of ill-health the appointing authority decided, in October 1967, to refer Mr Gigante's case to the Invalidity Committee. This procedure, for various reaons which are no longer of interest, was delayed. However, on 7 January 1970, the Invalidity Committee made its report. It came to the conclusion that the accident had not given rise to any total permanent invalidity and that it was not impossible for Mr Gigante to perform duties corresponding to a post in his career bracket. This report was not, however, signed by Mr Gigante's doctor. Moreover, by letter of 12 February 1970 he stated that Mr Gigante was not capable of continuing to perform his previous duties and that his invalidity amounted to more than 10 %.
   The disagreement therefore continued. The details, in particular further examinations performed by the official doctors in Brussels and Ispra, can be disregarded. I will simply mention, since it was stated during the court proceedings, that Mr Gigante lodged a formal complaint against the appointing authority on 17 February 1971, pursuant to Article 90 of the Staff Regulations. In this complaint he claimed, leaving aside those aspects not further pursued during the proceedings, that expenses which had arisen during the period from 1963 to 1970 for the treatment of the effects of the accident had only been partially reimbursed; under this head an amount of FB 90391 remained due. Furthermore he requested that an Invalidity Committee be convened pursuant to Article 59 (3) of the Staff Regulations and that Article 73 (2) (c) of the Staff Regulations be applied, that is to say, that a specified capital amount be paid by reason of the partial permanent invalidity occasioned by the accident.
   Up to the end of the two months' period laid down by Article 91 of the Staff Regulations, Mr Gigante received no response to this claim. It was only in a letter dated 29 April 1971 that it was suggested to him by the Directorate-General for Administration and Personnel that a new Invalidity Committee should be convened, constituted differently from that which had exercised its functions during 1970.
   Mr Gigante did not see this as an adequate response to his complaint and thus appealed to the Court of Justice on 16 June 1971.
   Subsequent to the filing of the action the appointing authority issued a decision to the effect that the case should again be referred to the Invalidity Committee, with the effect that — as provided in Article 7 of Annex II to the Staff Regulations — in August 1971 a doctor was appointed by the President of the Court of Justice. After the applicant had also appointed a doctor, the Directorate-General for Administration and Personnel informed the first-appointed doctor by letter dated 29 September 1971 that together with the doctor appointed by the applicant he should choose a third doctor. At the same time the task of the Invalidity Committee was outlined: it was to investigate whether the applicant was suffering any permanent partial invalidity which would make it impossible for him to perform the duties corresponding to a post in his career bracket, and whether the partial invalidity, the extent of which would have to be determined, was the direct result of the accident suffered. The doctor appointed by the applicant received notification to this effect on 15 October 1971. In January 1972 the task of the Invalidity Committee was widened at the instigation of the applicant's lawyer. It was further to investigate whether additional medical treatment of the effects of the accident were necessary, and whether the expenses claimed by the applicant could be regarded as having been caused by the accident, so as to see whether a corresponding allocation would have to be undertaken.
   Thereafter attempts were made to constitute the Invalidity Committee, pursuant to Article 7 of Annex II to the Staff Regulations. These attempts continued after the opening of the oral proceedings before the Court of Justice on 14 June 1972, but were unsuccessful, the two doctors first appointed being unable to reach agreement. The details of this matter are known to the Court from the numerous letters exchanged by the doctors which have been produced before the Court.
   The Court was informed of this situation by a communication from the Commission of 26 April 1973, further requesting that the President of the First Chamber should constitute the Invalidity Committee by naming the third doctor. This request was not granted; instead it was proposed to the parties on 17 May 1973 that, with the agreement of the doctors already appointed, a joint application to the President of Chamber be formulated, to the effect that the President or the Chamber might appoint a third doctor. The doctor first appointed by the President of the Court of Justice indicated his agreement in this matter. However, the doctor appointed by the applicant did not agree, as appears from a communication from the applicant's lawyer dated 15 June 1973.
   In view of the facts as presented above the Chamber decided to recommence the oral proceedings in this case. This took place at the hearing on 24 October 1973.
   It is at this stage in the proceedings that I now have to give my considered opinion on this case.
   Allow me to begin by recalling the applicant's submissions.
   They are set out as follows in the application:
   It is submitted that the Court should
   
            —
         
         
            declare the implicit rejection of the applicant's complaint (the contents of which I have indicated above) null and void;
         
      
            —
         
         
            declare the decision of 29 April 1971 null and void in so far as it requires the applicant not to appoint to the Invalidity Committee the doctor with whom he had been undergoing treatment;
         
      
            —
         
         
            order the defendant to re-introduce the procedure for the convening of the Invalidity Committee, which would have the task of deciding whether the applicant was suffering any permanent total or partial invalidity by reason of which he was not capable of performing the duties corresponding to a post in his career bracket; to report on the extent of his invalidity, with reference to Article 73 (2) (c); and to establish what therapy should be considered for the treatment of the effects of the accident;
         
      
            —
         
         
            order the Commission to reimburse the applicant in respect of medical and pharmaceutical expenses, and in particular, order the payment of a sum of FB 90391
         
      However, following the applicant's subsequent rejoinders, I have the impression that these submissions have not been maintained in this form; this is true at least of the final submission contained in the application. From the correspondence produced before the Court it is clear that the applicant's lawyer, on 3 November 1971, expressed the wish to the Commission that the Invalidity Committee should also examine whether the medical and pharmaceutical expenses claimed by the applicant should be reimbursed pursuant to Article 73 (3) of the Staff Regulations. The Commission complied with this request in formulating the task assigned to the Invalidity Committee. We can therefore assume that this part of the application need no longer be specifically considered by the Court.
   Accordingly the Court has only to rule on the following:
   
            1.
         
         
            the claim for annulment of the decision of 29 April 1971, and
         
      
            2.
         
         
            the claim that the Commission be ordered to institute the procedure for the convening of the Invalidity Committee and to give the Committee a specific task, namely that outlined above.
         
      I will therefore restrict my opinion to a consideration of these claims.
   
            1.
         
         
            The first point can be discussed very briefly.
            The Commission has asserted that the condition imposed by its letter of 29 April 1971 was not subsequently maintained. Certainly no such restriction was mentioned during the subsequent arrangements for the invalidity procedure; in fact the Commission was quite prepared — as appears from the relevant written instructions — to accept the applicant's doctor unconditionally as a member of the Invalidity Committee.
            The point at issue here is therefore settled, and, moreover, without the express withdrawal of the communication of 29 April 1971, which the applicant wrongly considered necessary. Accordingly, with reference to this aspect of the application, it may simply be stated that, the purpose of the proceedings having been removed, it merely remains to make an order as to costs, to which matter I will return later.
         
      
            2.
         
         
            I would like to make the following remarks about the applicant's second and clearly his principal claim, namely that proceedings be instituted before the Invalidity Committee with a precise delineation of the task which the Committee is to undertake.
            Firstly, the question may be left open whether, under the Staff Regulations, the procedure before the Invalidity Committee is appropriate at all to cases such as this, and whether the Committee can be required to undertake a task such as has been described.
            Admittedly, it could be argued in this connection that certain provisions of the Staff Regulations (Articles 53 and 78, as well as Article 13 of Annex VIII) intimate that an Invalidity Committee is principally concerned to determine whether the requirements of Article 78 are present, that is to say a total permanent invalidity. On the other hand, this can be countered by the assertion that the Invalidity Committee can also have jurisdiction in other cases, for example — as provided at Article 1 (1) of Annex VIII to the Staff Regulations — when the appointing authority decides ‘to admit that official to guaranteed benefits in respect of invalidity or death only after a period of five years from the date of his entering the service of the Communities.’ Or — pursuant to Article 59 (2) of the Staff Regulations — where an official, if his state of health so requires, or if a member of his household is suffering from a contagious disease, may be required to take leave after examination by the institution's medical officer.
            Academic lawyers too (cf. Euler, Europäisches Beamtenstatut, p. 130) argue plausibly that the Invalidity Committee could also be convened pursuant to Articles 24 or 73 (2) of the Staff Regulations. In the final resort, as already remarked, this question can admittedly be left open in the present case. The decisive factor is that the Commission has in fact, as requested by the applicant, instituted the procedure for the convening of the Invalidity Committee and entrusted the latter with a task extending farther than usual.
            Furthermore, in relation to the section of the application now under consideration, I must recall what it was incumbent upon the Commission to do, in cases such as the present, according to the Staff Regulations in force in 1971. In effect, it could only take the decision to institute the procedure for the convening of the Invalidity Committee and entrust the Committee with a specified task. Pursuant to Article 7 of Annex II to the Staff Regulations, which is particularly relevant here, the Commission's powers are in fact exhausted when it has requested the President of the Court of Justice to appoint a doctor. Any further action necessary to constitute the Committee lies outside the sphere of influence of the Commission, since this involves the appointment of a doctor by the relevant official and the appointment of a third doctor, to be chosen by the two doctors originally appointed. Accordingly the conclusion may be drawn that the second portion of the application is also now devoid of purpose, since the Commission has carried out all its obligations under the Staff Regulations, and in so far as, up to the present, it has not revoked the powers conferred.
            However, it must be clear to all concerned in view of the submissions made during the oral proceedings, that a simple finding that the proceedings before the Court had also to this extent become devoid of purpose would be unsatisfactory. It is therefore not surprising that proposals were made as to the possibility of a way out of the dilemma, that is to say the apparent deadlock in the invalidity proceedings, in the context of this action before the Court.
            The first thought which springs to mind is to proceed by way of an application by analogy of Article 7 (2) of Annex II to the new Staff Regulations, that is to say to require the President of the Court of Justice to appoint a doctor for the applicant, on the basis that the failure of the invalidity proceedings is attributable to the applicant's behaviour. On closer inspection however certain objections become immediately apparent. The suggested solution would in fact imply a finding that the applicant had not appointed a suitable doctor, that is to cay it would presuppose a judgment as to the behaviour of the doctor appointed by the applicant. There can be no doubt that such a judgment is not within the jurisdiction of this Court, not least because the doctor in question did not simply refuse to cooperate in the appointment of a third doctor, but put forward medical reasons for a specified choice.
            I would say at once that it also appears to me questionable to propose that the applicant should be requested to instruct his doctor that he should indicate his agreement with the proposal for a solution published on 17 May 1973 by the Court of Justice. Although I still consider this proposal to be a reasonable one, it does however lie outside the ambit of the Staff Regulations now in force, and cannot therefore be imposed upon the applicant's doctor, since he has a right of decision in this matter.
            Finally therefore, there only remains the proposal that use should be made of the fact that the applicant's lawyer gave an affirmative answer to the question put by the President of Chamber as to whether the Court of Justice, in the applicant's view, should do everything necessary to ensure that the Invalidity Committee could fulfil its task, since this can only mean that the applicant regards the appointment of a third doctor by the Court of Justice as being necessary. This does in fact appear to be the course to follow, and indeed the Commission has also made a proposal to this effect, so that we may now speak, if not of agreement between the doctors, at least of agreement between the parties.
            However, even as regards the above considerations, I doubt whether the Court can immediately adopt and implement them. In saying this I am thinking of the fact that the applicant's doctor, who is still acting as a member of the Invalidity Committee, is not in agreement with this solution. This must not simply be ignored, since as the law stands with regard to the Staff Regulations it is not possible to intervene in the doctor's decision. Moreover one has the impression that the two doctors already appointed have not made sufficient efforts to reach a compromise, and this perhaps in the thought that the Court was prepared to act in their place without more ado. In particular the doctors do not seem to have considered the possibility of reaching a compromise presented by the fact that the Invalidity Committee (Euler has emphasized this fact) can also consult experts. In my view it is not inconceivable that in this way, that is to say upon the condition that a specially qualified doctor should at all times cooperate in the examination of the applicant, the doctors, who arc as yet in disagreement, could still reach agreement.
            Accordingly I would propose as a solution that in view of the law relating to the Staff Regulations there remains no other possibility than that these proceedings also be declared devoid of purpose as regards the second part of the application and leave it to the parties to try to find a solution in the context of the administrative procedure.
            Of course, were such a solution not to be reached by the time set by the Chamber, then in view of the gaps in the law as it stands, to which moreover the Commission, quite independently of the present case, should turn its attention, it would of course be necessary to go back to the joint proposals of the parties and for the Court of its own motion to appoint a third doctor to the Invalidity Committee.
         
      
            3.
         
         
            Permit me to say a few words as to the costs of these proceedings, on which in my view a decision can immediately be reached.
            In this decision, as well as Article 70 of the Rules of Procedure, according to which the institutions must bear their own costs in cases such as the present, that is where a settlement is reached as to the matter at issue, Article 69 (5) of the Rules of Procedure is also relevant and the Court of Justice is therefore free to make a decision as to costs.
            In this connection it should be borne in mind that the letter of the Directorate-General for Administration and Personnel of 29 April 1971 only became of no significance following the institution of these proceedings. Likewise it is important to remember that only after the beginning of the proceedings did the Commission decide once more to refer the applicant's case to the Invalidity Committee. Thus it can be said that the Commission's conduct induced the filing of the application.
            On the other hand of course the application became groundless following the Commission's decision to institute the procedure before the Invalidity Committee and its delineation of the task which the latter had to fulfil; one could date this in January 1972 at the latest. Thereafter there was no further cause for continuing the proceedings.
            In view of the above and the fact that in staff cases defendant institutions must in anv event bear their own costs, it is accordingly my view that the Commission should bear a part of the costs incurred by the applicant. The Chamber must assess this part as it thinks fit.
         
      
            4.
         
         
            Allow me to summarize the foregoing.
            In my view this case should be approached on the basis that the proceedings became groundless following acts undertaken by the Commission after the introduction of proceedings. In view of the fact that such a finding would not be satisfactory subsequent to the conclusion of the proceedings, consideration could be given, in the event of a failure to reach a positive result within a period to be specified by the Chamber, within which the doctors already appointed to the Invalidity Committee were to continue their efforts to reach agreement, to a return to the joint proposal of the parties, that is to say the appointment to the Invalidity Committee of a third doctor by the Court of its own motion. The decision as to costs is to be taken according to Articles 69 and 70 of the Rules of Procedure, in such a way that the Commission should bear a portion of the costs incurred by the applicant.
         
      (
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      )	Translated from the German.