1 . ALTHOUGH THE DEFENDANT DECLARES THAT IT RELIES ON THE WISDOM OF THE COURT WITH REGARD TO THE ADMISSIBILITY OF THE APPLICATION OR OF CERTAIN OF ITS HEADS, IT CONSIDERS THAT IT IS INADMISSIBLE ON TWO GROUNDS . ( A ) WITH REGARD TO THE COMPLAINTS AGAINST THE STEPS PRIOR TO THE RETIREMENT DECISION, THE APPLICATION WAS FILED AFTER THE EXPIRY OF THE PERIOD LAID DOWN IN ARTICLE 91 OF BOTH THE STAFF REGULATIONS OF OFFICIALS OF THE ECSC AND THE STAFF REGULATIONS OF OFFICIALS OF THE EEC AND EAEC ( HEREINAFTER REFERRED TO AS ' THE STAFF REGULATIONS '). SINCE THE RETIREMENT PROCEDURE CONSISTS OF SEVERAL INTERDEPENDENT STEPS, THIS ARGUMENT WOULD BE TANTAMOUNT TO REQUIRING THE PERSONS CONCERNED TO BRING AS MANY ACTIONS AS THE NUMBER OF ACTS CAPABLE OF ADVERSELY AFFECTING THEM CONTAINED IN THE SAID PROCEDURE . HAVING REGARD TO THE CLOSE CONNEXION BETWEEN THE DIFFERENT STEPS COMPRISING THIS PROCEDURE, IT MUST BE ACCEPTED THAT IN AN ACTION CONTESTING THE RETIREMENT DECISION THE APPLICANT MAY CONTEST THE LEGALITY OF EARLIER STEPS WHICH ARE CLOSELY LINKED TO IT . IT FOLLOWS THAT THE COMPLAINTS MADE BY THE APPLICANT AGAINST THE APPOINTMENT OF THE MEMBERS OF THE INVALIDITY COMMITTEE TOGETHER WITH ITS COMPOSITION AND CONDUCT MAY BE TAKEN INTO CONSIDERATION IN DECIDING WHETHER THE RETIREMENT WAS VALID, THIS BEING THE MAIN ISSUE INVOLVED IN THE APPLICATION . ( B ) ACCORDING TO THE DEFENDANT, THE APPLICATION IS ' CONTRARY TO THE PRINCIPLE PROHIBITING THE IMPROPER EXERCISE OF RIGHTS '. IN FACT, SINCE THE APPLICANT REFUSED TO APPOINT A DOCTOR, IN ACCORDANCE WITH ARTICLE 7 OF ANNEX II TO THE STAFF REGULATIONS, THE DEFENDANT ALLEGES THAT IT IS ' INADMISSIBLE TO OBJECT TO THE PROCEDURE ADOPTED BY THE AUTHORITY TO ARRIVE, NOTWITHSTANDING HIS OBSTRUCTION, AT THE FINDING OF HIS INVALIDITY BY THE INVALIDITY COMMITTEE '. P.447 THE APPLICATION IS ESSENTIALLY DIRECTED AGAINST THE RETIREMENT DECISION, AN ACT ADVERSELY AFFECTING THE APPLICANT WITHIN THE MEANING OF ARTICLE 91 OF THE STAFF REGULATIONS AND WHICH HE HAS THEREFORE AN INTEREST IN CONTESTING . BESIDES, THE QUESTION WHETHER THE APPLICANT'S OWN CONDUCT IS SUCH AS TO WEAKEN THE COMPLAINTS MADE AGAINST THE SAID DECISION SHOULD BE CONSIDERED WITH THE SUBSTANCE OF THE CASE .
2 . THE APPLICANT REQUESTS THE COURT TO ORDER THE DEFENDANT TO PAY HIM 100 000 FRANCS FOR NON - MATERIAL DAMAGE AND ' 20 000 FRANCS, SUBJECT TO INCREASE, FOR LOSS OF INTEREST AND INJURY RESULTING FROM THE TEMPORARY UNAVAILABILITY OF FUNDS AND THE DELAY IN PAYMENT OF SALARY DUE '. SINCE THE ORIGINATING APPLICATION CONTAINS NO INDICATION HOW THESE AMOUNTS HAVE BEEN ASSESSED, ON THIS POINT IT FAILS TO SATISFY THE REQUIREMENTS OF ARTICLE 38(1)(C ) OF THE RULES OF PROCEDURE, UNDER THE TERMS OF WHICH THE APPLICATION ' SHALL CONTAIN...A BRIEF STATEMENT OF THE GROUNDS ON WHICH THE APPLICATION IS BASED '. CONSEQUENTLY, THESE CONCLUSIONS ARE INADMISSIBLE . IT FOLLOWS FROM ALL THE FOREGOING THAT THE PRESENT APPLICATION IS ADMISSIBLE, WITH THE EXCEPTION OF THE CONCLUSIONS REFERRED TO ABOVE AT 2 . II - THE SUBSTANCE OF THE CASE 1 . QUESTION TO BE RAISED BY THE COURT OF ITS OWN MOTION THE CONTESTED DECISION IS LIMITED TO PROVIDING THAT THE APPLICANT ' SHALL BE ENTITLED TO THE INVALIDITY PENSION ' WITHOUT EXPRESSLY RETIRING HIM . LOGICALLY, RETIREMENT PRECEDES THE GRANT OF AN INVALIDITY PENSION AND IS PROVIDED FOR IN ARTICLE 53 OF THE STAFF REGULATIONS . FURTHERMORE, IT ALTERS THE POSITION OF THE PERSON CONCERNED SO SERIOUSLY THAT THE VIEW MUST BE TAKEN, DESPITE THE SILENCE OF THE REGULATIONS, THAT IT IS REQUIRED TO BE MADE IN WRITING . CONSEQUENTLY, THE CONTESTED DECISION IS IRREGULAR IN THIS RESPECT . HOWEVER, SINCE THE DEFENDANT'S INTENTIONS ARE CLEAR IN THIS CASE, THIS IRREGULARITY IS NOT OF SUCH A NATURE AS TO ENTAIL THE ANNULMENT OF THE SAID DECISION . 2 . THE APPLICANT'S FIRST COMPLAINT THE APPLICANT CLAIMS THAT THERE IS NO PROVISION CONFERRING ON THE PRESIDENT OF THE MEDICAL COUNCIL THE POWER TO APPOINT A DOCTOR, IN THIS INSTANCE DR STEIN, AS A MEMBER OF THE INVALIDITY COMMITTEE, AND THAT SUCH AN APPOINTMENT CAN BE NO SUBSTITUTE FOR AN APPOINTMENT BY THE OFFICIAL CONCERNED . CONSEQUENTLY, BOTH THE APPOINTMENT OF DR PIERRE STEIN AND THAT OF DR ROGER WELTER, IN WHICH DR STEIN PARTICIPATED, ARE IRREGULAR . P.448 MOREOVER, THE STEPS IN QUESTION ARE ALSO CLAIMED TO BE IRREGULAR BECAUSE THESE TWO PERSONS WERE APPOINTED AGAINST THE APPLICANT'S WISHES . THEY WERE HIS FORMER PRIVATE DOCTORS AND CONSEQUENTLY THEIR PARTICIPATION IN THE PROCEEDINGS OF THE COMMITTEE COULD ONLY CONSTITUTE A BREACH OF PROFESSIONAL SECRECY . IT FOLLOWS FROM THE COMBINED PROVISIONS OF ARTICLES 53 AND 78 OF THE STAFF REGULATIONS THAT RETIREMENT CAN ONLY TAKE PLACE WHEN THE INVALIDITY COMMITTEE FINDS THAT THE PERSON CONCERNED SUFFERS FROM TOTAL PERMANENT INVALIDITY . UNDER THE TERMS OF ARTICLE 7 OF ANNEX II TO THE STAFF REGULATIONS, THE INVALIDITY COMMITTEE SHALL CONSIST OF THREE DOCTORS, THE FIRST AND SECOND OF THESE BEING APPOINTED BY THE PRESIDENT OF THE COURT OF JUSTICE AND BY THE PERSON CONCERNED RESPECTIVELY, WHILE THE THIRD SHALL BE CHOSEN BY AGREEMENT BETWEEN THE FIRST TWO DOCTORS . BY THUS EMPOWERING THE PERSON CONCERNED PARTIALLY TO DECIDE THE MEMBERSHIP OF THE COMMITTEE WHILE REFUSING THIS POWER TO THE INSTITUTION, AND RENDERING THE RETIREMENT DECISION DEPENDENT ON THE ASSENT OF AN INDEPENDENT EXPERT BODY, AND FINALLY BY PROVIDING IN ARTICLE 91 FOR THE RIGHT OF THE PERSON CONCERNED TO CONTEST SUCH A DECISION, THE STAFF REGULATIONS HAVE GIVEN THE LATTER VERY WIDE GUARANTEES AGAINST ANY POSSIBLE IRREGULARITY ON THE PART OF THE ADMINISTRATION . HOWEVER THESE PROVISIONS MUST NOT BE INTERPRETED AS MEANING THAT IT IS POSSIBLE FOR THE PERSON CONCERNED TO OBJECT TO THE FORMATION OF AN INVALIDITY COMMITTEE, PARTICULARLY BY REFUSING TO APPOINT A DOCTOR OF HIS OWN CHOICE . IF IT WERE OTHERWISE, AN OFFICIAL UNFIT FOR WORK WOULD BE IN A POSITION TO OBSTRUCT THE INSTITUTION IN ITS RIGHT AND DUTY TO RETIRE HIM AND TO FILL THE POST WHICH HE OCCUPIES . MOREOVER IT ALSO FOLLOWS FROM THE FUNDAMENTAL DUTY OF LOYALTY AND CO-OPERATION WHICH ALL OFFICIALS OWE TO THE AUTHORITY TO WHICH THEY BELONG THAT THE ABOVEMENTIONED POWER TO APPOINT A DOCTOR AT THE SAME TIME CONSTITUTES A DUTY . TAKEN TOGETHER, THE FOREGOING CONSIDERATIONS LEAD TO THE CONCLUSION THAT THE INSTITUTION HAS THE POWER, IF NECESSARY, TO REMEDY THE FAILURE OF THE PERSON CONCERNED TO APPOINT A DOCTOR, IN ORDER TO ENSURE THE SETTING UP AND FUNCTIONING OF AN INVALIDITY COMMITTEE, PROVIDED THAT ANY ELEMENT OF AN ARBITRARY NATURE IS AVOIDED AND THAT THE OFFICIAL'S INTERESTS ARE NOT UNNECESSARILY HARMED . P.449 IN THE PRESENT CASE, NEITHER THE DEFENDANT NOR THE OTHER AUTHORITIES WHO HAVE PARTICIPATED IN SETTING UP THE INVALIDITY COMMITTEE HAVE FAILED TO OBSERVE THIS REQUIREMENT . BASICALLY, THE DECISION TO ENTRUST THE APPOINTMENT OF THE SECOND DOCTOR TO THE PRESIDENT OF THE LUXEMBOURG MEDICAL COUNCIL, AN IMPARTIAL AND EXPERT AUTHORITY, APPEARS REASONABLE . MOREOVER, THE FACT THAT THE INVALIDITY COMMITTEE INCLUDED TWO OF THE APPLICANT'S FORMER PRIVATE DOCTORS DOES NOT RENDER ITS COMPOSITION IRREGULAR . ON THE CONTRARY, IT SHOULD BE POINTED OUT THAT ARTICLE 7 OF ANNEX II TO THE STAFF REGULATIONS EMPOWERS THE PERSON CONCERNED TO APPOINT A DOCTOR HIMSELF, CLEARLY PRESUPPOSING THAT THE PERSON CONCERNED WILL CHOOSE A PERSON IN WHOM HE HAS CONFIDENCE, AND THEREFORE IN THE MAJORITY OF CASES THAT IT WILL ACTUALLY BE ONE OF HIS PRIVATE DOCTORS . IT FOLLOWS FROM THESE CONSIDERATIONS AS A WHOLE THAT THE PRESENT COMPLAINT MUST BE REJECTED .
3 . THE APPLICANT'S SECOND COMPLAINT THE APPLICANT CLAIMS THAT, OWING TO THE APPOINTMENT OF TWO OF HIS PRIVATE DOCTORS, HE WAS DEPRIVED OF THE RIGHT GRANTED HIM BY ARTICLE 9 OF ANNEX II TO THE STAFF REGULATIONS, THAT IS TO SAY, OF SUBMITTING TO THE INVALIDITY COMMITTEE ANY REPORTS OR CERTIFICATES FROM HIS REGULAR DOCTOR . THIS COMPLAINT IS UNFOUNDED . IN FACT, IN SUCH CASES, IT IS CLEAR THAT THE PERSON CONCERNED MAY AVAIL HIMSELF OF THE ABOVEMENTIONED POWER BY REQUESTING THE PRIVATE DOCTORS IN QUESTION TO LODGE WITH THE COMMITTEE THE REPORTS OR CERTIFICATES IN QUESTION . IT IS NOT OPEN TO THE APPLICANT TO MAKE THE PRESENT COMPLAINT . IN FACT HIS ATTITUDE WAS TANTAMOUNT TO PROHIBITING DR PIERRE STEIN AND DR ROGER WELTER ACTING IN THE ABOVEMENTIONED MANNER AND MANIFESTED HIS INTENTION NOT TO CO-OPERATE IN ANY WAY IN THE WORK OF THE INVALIDITY COMMITTEE .
4 . THE APPLICANT'S THIRD COMPLAINT ( A ) THE APPLICANT SEES ANOTHER IRREGULARITY IN THE FACT THAT THERE WAS NO DELIBERATION OR DECISION BY THE INVALIDITY COMMITTEE, SINCE DR PIERRE STEIN AND DR ROGER WELTER REFUSED FROM A SPECIFIC POINT IN TIME TO PARTICIPATE IN THE PROCEEDINGS OF THIS COMMITTEE AND DID NOT SIGN THE FINAL REPORT SUBMITTED TO THE DEFENDANT INSTITUTION . P.450 UNDER THE TERMS OF THE SECOND PARAGRAPH OF ARTICLE 9 OF ANNEX II TO THE STAFF REGULATIONS, THE ' COMMITTEE'S ' CONCLUSIONS SHALL BE COMMUNICATED TO THE APPOINTING AUTHORITY . FURTHERMORE, AS WAS STATED IN CONNEXION WITH THE FIRST COMPLAINT, THE APPLICANT'S RETIREMENT CAN ONLY TAKE PLACE IF THE ' INVALIDITY COMMITTEE ', WHICH MUST BE COMPOSED OF THREE MEMBERS, HAS FOUND THAT THE PERSON CONCERNED SUFFERS FROM TOTAL PERMANENT INVALIDITY . IT IS CLEAR FROM THESE CONSIDERATIONS AS A WHOLE THAT THE RETIREMENT IS DEPENDENT ON THE ASSENTING OPINION OF AT LEAST THE MAJORITY OF THE MEMBERS OF THE COMMITTEE . THIS CONDITION WAS NOT COMPLIED WITH IN THE PRESENT CASE . FIRST OF ALL, WHEN DR ROGER WELTER WAS GIVING EVIDENCE TO THE COURT, HE DECLARED IN PARTICULAR THAT ' THE COMMITTEE MET AND DISCUSSED THE MATTER ', BUT ' IT IS NOT CORRECT THAT IT ARRIVED AT ANY CONCLUSION ON ( THE DEGREE OF THE APPLICANT'S INVALIDITY ) '. SECONDLY, DR PIERRE STEIN, WHO ALSO GAVE EVIDENCE, STATED IN PARTICULAR THAT ' WE DID NOT EVEN SIT AS A COMMITTEE ' AND THAT ' THE COMMITTEE THEREFORE MADE NO FINDING '. FINALLY, IN THE WRITTEN STATEMENT WHICH HE SENT TO THE COURT, DR ELOI WELTER ADMITTED THAT ' THE CONCLUSIONS WITH REGARD TO TOTAL PERMANENT INVALIDITY, WHICH, IN MY OPINION, EMERGED FROM OUR MEETING ON 22 SEPTEMBER 1965, ARE ONLY BINDING ON THEIR SIGNATORY ', THAT IS TO SAY, ON HIMSELF . IT IS CLEAR FROM THESE CONSIDERATIONS THAT THE CONTESTED DECISION IS IRREGULAR SINCE A PROCEDURAL REQUIREMENT OF THE STAFF REGULATIONS HAS NOT BEEN SATISFIED . HOWEVER, BY REFUSING TO APPOINT THE SECOND DOCTOR AND BY CATEGORICALLY OBJECTING TO DR PIERRE STEIN AND DR ROGER WELTER TAKING PART IN THE WORK OF THE INVALIDITY COMMITTEE, AN OBJECTION WHICH AMOUNTS TO REJECTING THOSE TWO DOCTORS, THE APPLICANT HAS HIMSELF BROUGHT ABOUT THE IRREGULARITY OF WHICH HE COMPLAINS . IT IS THUS SCARCELY OPEN TO HIM TO COMPLAIN OF THE WAY IN WHICH THE OTHER MEMBERS OF THE COMMITTEE, PARTICULARLY DR ELOI WELTER, HAVE THOUGHT FIT TO PERFORM THEIR DUTIES AS MEMBERS OF THE SAID COMMITTEE . IN THESE CIRCUMSTANCES, HE MAY NOT COMPLAIN EITHER THAT THE CONTESTED DECISION WAS BASED SIMPLY ON THE LETTER ADDRESSED BY DR ELOI WELTER, A DULY APPOINTED MEMBER OF THE INVALIDITY COMMITTEE, TO THE APPOINTING AUTHORITY STATING THAT THE APPLICANT'S MEDICAL FILE MADE IT POSSIBLE BY ITSELF TO ESTABLISH THE TOTAL INVALIDITY OF THE APPLICANT . P.451 THE POSITION MIGHT BE DIFFERENT IF IT HAD TO BE PRESUMED THAT THIS IRREGULARITY DISTORTED THE OUTCOME OF THE INVALIDITY PROCEDURE . IN THIS CONNEXION THE FOLLOWING FACTS AND CIRCUMSTANCES MUST BE TAKEN INTO ACCOUNT : FIRST, THE APPLICANT HAS NOT STATED, EVEN AS AN ALTERNATIVE CONCLUSION, THAT THE FACTUAL CONDITIONS FOR HIS RETIREMENT WERE LACKING . HE HAS NOT PERFORMED HIS DUTIES SINCE AUGUST 1964 OWING TO HIS STATE OF HEALTH . SECONDLY, IN HIS LETTER OF 13 OCTOBER 1964, ADDRESSED TO THE SECRETARY-GENERAL OF THE DEFENDANT INSTITUTION, HE REFUSED TO APPOINT A DOCTOR AS A MEMBER OF THE INVALIDITY COMMITTEE, IN PARTICULAR ON THE GROUND THAT ' THIS WOULD EXPOSE ME TO A PROFESSIONAL OPINION WHICH MIGHT RESULT IN MY BEING RETIRED '. THIRDLY, HE WAS RETIRED ON GROUNDS OF HEALTH BY THE ITALIAN PARLIAMENT, AFTER APPEARING BEFORE THE COMMITTEE SET UP BY IT FOR THIS PURPOSE AND APPARENTLY WITHOUT PROTESTING AGAINST THE SAID RETIREMENT . FINALLY, CERTAIN UNDISPUTED FACTS RELATING TO THE APPLICANT'S STATE OF HEALTH MUST BE TAKEN INTO ACCOUNT, PARTICULARLY THE DURATION OF HIS ABSENCES . IN ALL THESE CIRCUMSTANCES, NOTHING GIVES GROUNDS FOR PRESUMING THAT THE IRREGULARITY WHICH THE APPLICANT HIMSELF BROUGHT ABOUT MATERIALLY DISTORTED THE OUTCOME OF THE INVALIDITY PROCEDURE . IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS AS A WHOLE THAT THE PRESENT COMPLAINT MUST BE REJECTED . ( B ) UNDER THE SAME COMPLAINT, THE APPLICANT FURTHER CLAIMS THAT THE INVALIDITY COMMITTEE FAILED TO EXAMINE HIM . THIS COMPLAINT MUST EMPHATICALLY BE REJECTED OWING TO THE FACT THAT THE APPLICANT REFUSED TO APPEAR BEFORE THE COMMITTEE, ALTHOUGH THE DOCTOR IN CHARGE OF THE SANITORIUM IN VIANDEN FOUND THAT THE APPLICANT'S PHYSICAL CONDITION MADE IT POSSIBLE FOR HIM TO TRAVEL FROM VIANDEN TO LUXEMBOURG . MOREOVER, NO PROVISION LAYS DOWN THAT THE INVALIDITY COMMITTEE MUST CARRY OUT SUCH AN EXAMINATION AND THERE MAY BE CASES WHERE IT IS POSSIBLE TO DEDUCE THE INVALIDITY OF THE PERSON CONCERNED BY SIMPLY READING THE MEDICAL FILE .
5 . THE APPLICANT'S FOURTH COMPLAINT ACCORDING TO THE APPLICANT, THE INVALIDITY COMMITTEE FAILED TO COMPLY WITH THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 13 OF ANNEX VIII TO THE STAFF REGULATIONS, UNDER THE TERMS OF WHICH IT WAS REQUIRED TO CONSIDER WHETHER THE INVALIDITY FROM WHICH THE OFFICIAL SUFFERED WAS CAPABLE OF ' PREVENTING HIM FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET '; IT FOLLOWS FROM THIS THAT THE COMMITTEE SHOULD HAVE CONSIDERED WHETHER OTHER POSTS IN THE APPLICANT'S CAREER BRACKET SHOULD BE TAKEN INTO ACCOUNT . FIRST, THE ABOVEMENTIONED PROVISION IS INTENDED TO GOVERN THE AMOUNT OF THE INVALIDITY PENSION AND THEREFORE CANNOT HAVE BEEN INFRINGED BY THE INVALIDITY COMMITTEE . MOREOVER, IT FOLLOWS FROM THE CONSIDERATIONS IN CONNEXION WITH THE THIRD COMPLAINT, AT ( A ), THAT THIS COMPLAINT IS POINTLESS . IT MUST THEREFORE BE REJECTED . IT FOLLOWS FROM THE FOREGOING AS A WHOLE THAT THE PRESENT APPLICATION MUST BE DISMISSED .