1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 8 MAY 1984 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION PURSUANT TO AN ARBITRATION CLAUSE WITHIN THE MEANING OF ARTICLE 181 OF THE EEC TREATY , ARTICLE 153 OF THE EAEC TREATY AND ARTICLE 42 OF THE ECSC TREATY FOR AN ORDER REQUIRING ROYALE BELGE SA , BRUSSELS , ACTING ON ITS OWN BEHALF AND AS THE AUTHORIZED AGENT OF 16 OTHER INSURANCE COMPANIES WHICH ARE PARTIES TO A COLLECTIVE INSURANCE POLICY CONCLUDED WITH THE INSTITUTIONS OF THE EUROPEAN COMMUNITIES , TO PAY IT THE SUM OF BFR 4 352 040 WHICH IT HAS PAID UNDER ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS TO ONE OF ITS OFFICIALS IN RESPECT OF AN OCCUPATIONAL DISEASE . THE COMMISSION ALSO CLAIMS INTEREST FROM 23 AUGUST 1983 , THE DATE ON WHICH THE SUM WAS PAID TO THE OFFICIAL CONCERNED .
2 IN SUPPORT OF ITS APPLICATION THE COMMISSION CONTENDS THAT THE OFFICIAL IN QUESTION ( HEREINAFTER REFERRED TO AS ' MR X . ' ), WHO TOOK UP HIS DUTIES AT THE COMMISSION IN 1964 , CONTRACTED AN ILLNESS WHICH WAS RECOGNIZED AS AN OCCUPATIONAL DISEASE IN 1983 . ACCORDING TO ARTICLE 73 OF THE STAFF REGULATIONS , AN OFFICIAL IS INSURED AGAINST THE RISK OF OCCUPATIONAL DISEASE ON THE CONDITIONS LAID DOWN BY RULES DRAWN UP BY COMMON AGREEMENT OF THE INSTITUTIONS OF THE COMMUNITIES . BY CONCLUDING WITH THOSE INSTITUTIONS ON 28 JANUARY 1977 A COLLECTIVE INSURANCE POLICY AGAINST ACCIDENTS AND OCCUPATIONAL DISEASES , THE INSURANCE COMPANIES FOR WHOM ROYALE BELGE ACTS AS AGENT UNDERTOOK TO COVER THE FINANCIAL CONSEQUENCES OF THE OBLIGATIONS ASSUMED BY THE COMMUNITIES UNDER THE STAFF REGULATIONS IN RESPECT OF OCCUPATIONAL DISEASES SUFFERED BY THE PERSONS TO WHOM ARTICLE 73 OF THE STAFF REGULATIONS APPLIES .
3 THE DEFENDANT DOES NOT DISPUTE THE CALCULATION OF THE SUM CLAIMED OR THE CIRCUMSTANCES RELIED UPON BY THE COMMISSION . IT MAINTAINS , HOWEVER , THAT THE ILLNESS SUFFERED BY MR X . IS NOT AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF ARTICLE 73 OF THE STAFF REGULATIONS AND THAT THEREFORE THE COMMISSION IS NOT REQUIRED UNDER THE REGULATIONS TO ASSUMEANY OBLIGATION TOWARDS HIM . IN SUCH CIRCUMSTANCES THE DEFENDANT IS NOT REQUIRED TO PAY ANYTHING UNDER THE TERMS OF THE COLLECTIVE INSURANCE POLICY .
4 ARTICLE 3 ( 1 ) OF THE RULES PROVIDED FOR BY ARTICLE 73 OF THE STAFF REGULATIONS ( HEREINAFTER REFERRED TO AS ' THE JOINT RULES ' ) RECOGNIZES AS OCCUPATIONAL DISEASES ALL DISEASES CONTAINED IN THE ' EUROPEAN LIST OF OCCUPATIONAL DISEASES ' ANNEXED TO THE COMMISSION RECOMMENDATION OF 23 JULY 1962 ( JOURNAL OFFICIEL 1962 , P . 2188 ) TO THE EXTENT TO WHICH AN OFFICIAL HAS BEEN EXPOSED TO THE RISK OF CONTRACTING THEM IN THE PERFORMANCE OF HIS DUTIES WITH THE EUROPEAN COMMUNITIES . HOWEVER , ARTICLE 3 ( 2 ) PROVIDES THAT ' ANY DISEASE OR AGGRAVATION OF A PRE-EXISTING DISEASE NOT INCLUDED IN THE LIST REFERRED TO IN PARAGRAPH ( 1 ) SHALL ALSO BE CONSIDERED AN OCCUPATIONAL DISEASE IF IT IS SUFFICIENTLY ESTABLISHED THAT SUCH DISEASE OR AGGRAVATION AROSE IN THE COURSE OF OR IN CONNECTION WITH THE PERFORMANCE BY THE OFFICIAL OF HIS DUTIES WITH THE COMMUNITIES ' .
5 DECISIONS AS TO WHETHER DISEASES ARE OF AN OCCUPATIONAL NATURE ARE TAKEN BY THE APPOINTING AUTHORITY ON THE BASIS OF THE FINDINGS OF THE DOCTOR OR DOCTORS APPOINTED BY THE INSTITUTION . IF THE OFFICIAL SO REQUIRES , A DECISION IS NOT TAKEN UNTIL AFTER A MEDICAL COMMITTEE CONSISTING OF THREE MEMBERS , ONE OF WHOM IS APPOINTED BY THE OFFICIAL , HAS BEEN CONSULTED ( ARTICLES 19 , 21 AND 23 OF THE JOINT RULES ).
6 THIS ACTION ARISES FROM AN APPLICATION LODGED BY MR X . WITH THE COMMISSION ON 19 MAY 1982 REQUESTING IT TO APPLY ARTICLE 73 OF THE STAFF REGULATIONS TO HIM ON THE GROUNDS OF AN OCCCUPATIONAL DISEASE . ACCORDING TO A MEDICAL REPORT DATED 15 JULY 1982 AND DRAWN UP BY DR SIMONS , THE DOCTOR APPOINTED BY THE COMMUNITIES , MR X ., WHO ENTERED THE SERVICE OF THE COMMISSION IN 1964 AS A MEMBER OF THE AUXILIARY STAFF AT THE AGE OF 44 AND WAS ESTABLISHED IN HIS POST IN 1974 , SUFFERED IN PARTICULAR FROM ASTHENIA , FATIGABILITY , DEPRESSION AND INSTABILITY . THE REPORT CONCLUDED , AFTER TAKING INTO ACCOUNT THE COURSE OF MR X . ' S CAREER , THAT HE ' HAD NEVER IN FACT HAD A SECURE POSITION ' WHICH HAD CLEARLY HAD AN EFFECT ON HIS LIFE . DR SIMONS FINALLY SUGGESTED THAT THE OPINION OF A PSYCHOLOGIST BE SOUGHT .
7 THE COMMISSION THEN SENT A LETTER ON 15 JULY 1982 TO DR DURET-COSYNS , A SPECIALIST IN PSYCHOSOMATIC ILLNESSES , REQUESTING HER TO ' CONDUCT A PSYCHOLOGICAL EXAMINATION OF THE PERSON CONCERNED WHO HAS LODGED AN APPLICATION TO BE TREATED AS SUFFERING FROM AN OCCUPATIONAL DISEASE ' .
8 IN HER REPORT DATED 15 OCTOBER 1982 THE SPECIALIST FOUND THAT MR X . ' S STATE WAS ' EXTREMELY SERIOUS ' : HIS ILLNESS , ' CONSISTING OF CHRONIC REACTIONAL DEPRESSION , COMPLICATED BY MULTIPLE FUNCTIONAL DISTURBANCES AND AGGRAVATED BY OBSESSIONAL NEUROSIS ' , RENDERED HIM ABSOLUTELY INCAPABLE OF WORKING . THE SPECIALIST ' S CONCLUSION THAT MR X . ' S ILLNESS HAD TO BE REGARDED AS A DISEASE OF AN OCCUPATIONAL ORIGIN WAS BASED INTER ALIA ON THE FOLLOWING CONSIDERATIONS : ' MR X . HAS BEEN DEPRESSED SINCE 1968 . THIS STATE HAS BEEN FORMALLY ATTRIBUTED BY DIFFERENT DOCTORS , INCLUDING DR ROMAIN , THE MEDICAL OFFICER OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , TO PROFESSIONAL INSECURITY WHICH , OBJECTIVELY , WAS EXTREMELY STRESSFUL AND DISCOURAGING . HIS PERMANENT APPOINTMENT IN 1974 MIGHT HAVE PUT AN END TO HIS AILMENTS , EVEN WITH THE DISAPPOINTMENT OF NOT REACHING A POST AT THE LEVEL TO WHICH HE ASPIRED , IF IT HAD COME ABOUT IN A MORE NORMAL TIME . UNFORTUNATELY , THE ANXIOUS REACTIONAL DEPRESSION HAD APPARENTLY CRYSTALLIZED IN THE MEANTIME . ALL THE MEDICAL CERTIFICATES AND REPORTS ON FILE SHOW THAT MR X . ' S ADMINISTRATIVE PROBLEMS AND HIS INSECURITY AT WORK ARE RESPONSIBLE FOR HIS STATE OF HEALTH . THERE IS NO MENTION OF ANY INTERCURRENT DISORDER . MOREOVER , SINCE JULY 1981 HE HAS BEEN GIVEN NO MORE WORK ; NO FURTHER PERIODIC REPORTS HAVE BEEN MADE ON HIM . . . OWING TO THIS INACTIVITY HIS NERVOUS STATE HAS SERIOUSLY DETERIORATED . '
9 IN REPLY TO A REQUEST BY THE COMMISSION FOR FURTHER INFORMATION ON THE QUESTION INTER ALIA WHETHER ANY CONCOMITANT EXTERNAL OR PERSONAL FACTORS COULD BE DISCERNED IN MR X . ' S ILLNESS , DR DURET-COSYNS STATED IN A LETTER DATED 18 DECEMBER THAT : ' ( 1 ) THE 100% TOTAL INVALIDITY CORRESPONDS , IN MY OPINION , TO MR X . ' S INCURABLE MENTAL ILLNESS RESULTING FROM THE PROLONGED , STRESSFUL AND DISCOURAGING PROFESSIONAL INSECURITY TO WHICH HE HAS BEEN SUBJECTED AND FROM THE TOTAL FORCED INACTIVITY WHICH HAS BROUGHT ABOUT A PROCESS OF NEUROTIC AGGRAVATION WHICH IS EXTREMELY SERIOUS IN A MAN OF HIS AGE . ( 2)I DO NOT THINK THAT ANY CONCOMITANT EXTERNAL OR PERSONAL FACTORS CAN INTERVENE IN THE 100% TOTAL INVALIDITY . NO FACTOR OF THAT KIND APPEARS EITHER IN HIS MEDICAL FILE , AS WAS CLEARLY STATED AT PAGE 2 OF MY REPORT , OR IN THE EXTREMELY THOROUGH EXAMINATION WHICH I GAVE THE PERSON CONCERNED . . . ' .
10 AFTER RECEIVING THAT REPLY , THE COMMISSION INFORMED MR X . ON 1 JULY 1983 THAT ARTICLE 73 OF THE STAFF REGULATIONS WOULD BE APPLIED TO HIM OWING TO THE OCCUPATIONAL ORIGIN OF HIS ILLNESS AND THAT THE LUMP SUM PROVIDED FOR IN THAT ARTICLE AMOUNTED IN HIS CASE TO BFR 4 352 040 . THAT SUM WAS PAID TO MR X . ON 23 AUGUST 1983 . BY A LETTER DATED 30 NOVEMBER 1983 THE COMMISSION REQUESTED THE DEFENDANT TO REIMBURSE THAT AMOUNT IN ACCORDANCE WITH THE COLLECTIVE INSURANCE POLICY ; THAT REQUEST WAS REJECTED BY THE DEFENDANT IN A LETTER DATED 13 DECEMBER 1983 .
11 THE DEFENDANT CONTENDS THAT AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF THE RELEVANT PROVISIONS CANNOT BE SAID TO EXIST UNLESS TWO CONDITIONS ARE SATISFIED : FIRST , IT MUST BE ESTABLISHED THAT THE DISEASE IN QUESTION WAS ACTUALLY CAUSED BY THE OCCUPATION OF THE OFFICIAL CONCERNED ; SECONDLY , IT MUST BE ESTABLISHED THAT THE RISK OF CONTRACTING THE DISEASE IS INHERENT IN THE OCCUPATIONAL ACTIVITY OF THE PERSON CONCERNED INASMUCH AS THE PERFORMANCE OF HIS DUTIES MUST SPECIFICALLY EXPOSE HIM TO THAT RISK . IN ORDER FOR A DISEASE TO BE CLASSIFIED AS AN ' OCCUPATIONAL ' DISEASE , IT IS THEREFORE NECESSARY AT ALL EVENTS FOR THE DUTIES PERFORMED BY THE OFFICIAL TO PRESENT THE RISK OF A SPECIFIC DISEASE DUE TO AN ABNORMALLY PATHOGENIC ENVIRONMENT .
12 IN THE DEFENDANT ' S VIEW , THAT INTERPRETATION OF THE EXPRESSION ' OCCUPATIONAL DISEASE ' IS CONFIRMED BY ARTICLE 3 ( 1 ) OF THE JOINT RULES WHICH REFERS TO THE EUROPEAN LIST OF OCCUPATIONAL DISEASES . THE ENUMERATION OF OCCUPATIONAL DISEASES IN THAT LIST AND THE PREAMBLE TO THECOMMISSION ' S RECOMMENDATION ESTABLISHING THAT LIST SHOW THAT THE CONCEPT OF AN OCCUPATIONAL DISEASE IS CLEAR AND STRICT . ALTHOUGH ARTICLE 3 ( 2 ) OF THE JOINT RULES DOES NOT REFER TO THE EUROPEAN LIST OF OCCUPATIONAL DISEASES , UNDUE IMPORTANCE SHOULD NOT BE ATTRIBUTED TO THAT PROVISION SINCE ITS SOLE PURPOSE IS TO PREVENT THE INEVITABLY INCOMPLETE NATURE OF THE LIST FROM CAUSING INJUSTICE IN INDIVIDUAL CASES .
13 WITH REGARD TO THE SPECIFIC CASE OF MR X ., THE DEFENDANT MAINTAINS THAT DR DURET-COSYNS , THE SPECIALIST CONSULTED ABOUT THE CASE , WAS NOT GIVEN A PROPER INDICATION OF HER TASK AND THAT IN ANY EVENT SHE OMITTED TO STATE IN HER REPORT WHETHER OR NOT THE RISK OF THE DISEASE ESTABLISHED WAS INHERENT IN THE DUTIES PERFORMED AT THE COMMISSION ; SUCH A CAUSAL LINK CANNOT BE ESTABLISHED IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE SINCE MR X . ' S ILLNESS WAS NOT CAUSED BY HIS OCCUPATION BUT BY HIS INABILITY TO ADAPT HIMSELF TO THE POSITION ASSIGNED TO HIM BY THE COMMISSION UNDER THE STAFF REGULATIONS .
14 THE COMMISSION CONSIDERS THAT THE INTERPRETATION PROPOSED BY THE DEFENDANT IS NOT CONSISTENT WITH THE LANGUAGE OF ARTICLE 3 OF THE JOINT RULES . THAT PROVISION MAKES A VERY CLEAR DISTINCTION BETWEEN DISEASES ON THE EUROPEAN LIST OF OCCUPATIONAL DISEASES AND DISEASES ARISING IN THE COURSE OF OR IN CONNECTION WITH THE PERFORMANCE OF DUTIES FOR THE COMMUNITIES . IN ORDER TO DETERMINE WHETHER A DISEASE FALLS WITHIN THE LATTER CATEGORY , THE BACKGROUND AND GENERAL SCHEME OF THE EUROPEAN LIST ARE IRRELEVANT .
15 IN THE COMMISSION ' S VIEW , THERE IS NO ARGUMENT FOR RESTRICTING THE DISEASES REFERRED TO IN ARTICLE 3 ( 2 ) OF THE JOINT RULES TO THOSE WHICH ARISE FROM THE ABNORMALLY PATHOGENIC NATURE OF THE ENVIRONMENT IN WHICH THE DUTIES ARE PERFORMED . SUCH A NARROW VIEW WOULD MEAN THAT OFFICIALS PERFORMING ADMINISTRATIVE DUTIES WOULD ALMOST NEVER BE CAPABLE OF CONTRACTING AN OCCUPATIONAL DISEASE .
16 IN THE LIGHT OF THOSE CONSIDERATIONS THE COMMISSION CONCLUDES THAT THE SOLE CAUSAL LINK WHICH MUST BE ESTABLISHED BETWEEN A GIVEN DISEASE AND THE OCCUPATIONAL ACTIVITY OF AN OFFICIAL IS FOR THE DISEASE TO ARISE ' IN THE COURSE OF OR IN CONNECTION WITH THE PERFORMANCE OF HIS DUTIES ' . IN THIS CASE THE SPECIALIST ' S REPORT STATED THAT MR X . ' S ILLNESS HAD IN FACT ARISEN FROM HIS OCCUPATION . IN THOSE CIRCUMSTANCES THE DEFENDANT CANNOT REFUSE TO BEAR THE FINANCIAL CONSEQUENCES , AS PROVIDED FOR BY THE COLLECTIVE INSURANCE POLICY .
17 IT MUST BE POINTED OUT FIRST OF ALL THAT , IN VIEW OF THE PROVISIONS OF THE JOINT RULES TO WHICH THE INSURANCE POLICY REFERS , IT IS NOT FOR THE COURT TO DECIDE WHETHER IN A PARTICULAR CASE THE ILLNESS OF AN OFFICIAL MAY , NOTWITHSTANDING THE OPINION OF A MEDICAL EXPERT CONSULTED ABOUT THE CASE , BE DUE TO FACTORS OTHER THAN THOSE RELATING TO THE OFFICIAL ' S CONDITIONS OF WORK . HOWEVER , IN A CASE SUCH AS THIS , THE COURT MAY EXAMINE WHETHER AN EXPERT WHO HAS BEEN CONSULTED KEPT WITHIN THE LIMITS OF THE RELEVANT RULES WHEN REFERRING IN HIS OPINION TO AN OCCUPATIONAL DISEASE .
18 IT MUST NEXT BE STATED THAT BY EMPHASIZING THE IMPORTANCE OF THE PARTICULAR RISKS INHERENT IN THE PERFORMANCE OF SPECIFIC DUTIES BY THE OFFICIAL IN QUESTION , THE DEFENDANT MISINTERPRETS THE SCOPE OF THE CONCEPT OF OCCUPATIONAL DISEASE AS APPEARING IN THE RELEVANT PROVISION IN THIS CASE , NAMELY ARTICLE 3 ( 2 ) OF THE JOINT RULES . ALTHOUGH THE FIRST PARAGRAPH OF THAT ARTICLE REQUIRES THE OFFICIAL TO HAVE BEEN EXPOSED TO THE RISK OF CONTRACTING CERTAIN DISEASES , THE SECOND PARAGRAPH ADDS A SECOND CATEGORY OF OCCUPATIONAL DISEASES BY PROVIDING THAT DISEASES WHICH ARISE ' IN THE COURSE OF OR IN CONNECTION WITH THE PERFORMANCE OF HIS DUTIES ' ARE ' ALSO ' TO BE CONSIDERED OCCUPATIONAL DISEASES .
19 IN THIS CASE IT HAS NOT BEEN DISPUTED THAT THE OFFICIAL CONCERNED IS SUFFERING FROM 100% TOTAL INVALIDITY ; THAT SINCE HE TOOK UP HIS DUTIES IN 1964 , HIS CAREER HAD BEEN SUBJECT TO ABNORMAL CONDITIONS FROM THE POINT OF VIEW OF SECURITY OF EMPLOYMENT AND OF THE NATURE OF THE DUTIES ASSIGNED TO HIM ; AND THAT , FINALLY , THE REPORT DRAWN UP BY THE SPECIALIST IN PSYCHOSOMATIC ILLNESSES ESTABLISHED A CAUSAL LINK BETWEEN THOSE CONDITIONS AND THE OFFICIAL ' S INCAPACITY .
20 ON RECEIVING THAT REPORT , THE COMMISSION WAS UNABLE TO COME TO ANY CONCLUSION OTHER THAN THAT THERE WAS A RELATIONSHIP OF CAUSE AND EFFECT BETWEEN MR X . ' S CONDITIONS OF WORK AND HIS STATE OF HEALTH . IN REPLY TO THE COMMISSION ' S QUESTION WHETHER ANY ' CONCOMITANT EXTERNAL OR PERSONAL FACTORS ' AFFECTING THE OFFICIAL ' S INVALIDITY COULD BE DISCERNED , THE SPECIALIST STATED THAT MR X . ' S INCURABLE MENTAL ILLNESS AROSE FROM OCCUPATIONAL FACTORS UNAFFECTED BY CONCOMITANT EXTERNAL OR PERSONAL FACTORS .
21 IT FOLLOWS FROM THE FOREGOING THAT NEITHER THE SPECIALIST ' S TERMS OF REFERENCE NOR THE TERMS IN WHICH SHE DRAFTED HER REPORT LEAVE ANY DOUBT THAT SHE WAS SUFFICIENTLY INFORMED OF THE COMPASS OF HER TASK .
22 CONSEQUENTLY , THE DEFENDANT WAS NOT JUSTIFIED IN REFUSING TO INDEMNIFY THE COMMISSION FOR THE SUM WHICH IT PAID TO MR X . UNDER ARTICLE 73 OF THE STAFF REGULATIONS .
23 IT IS THEREFORE NECESSARY TO ORDER THE DEFENDANT TO PAY TO THE COMMISSION THE SUM OF BFR 4 352 040 TOGETHER WITH INTEREST AT THE RATE OF 8% FROM 30 NOVEMBER 1983 , THE DATE ON WHICH THE COMMISSION REQUESTED REIMBURSEMENT OF THAT SUM .