61979J0731

OFFICIALS - COMPENSATION FOR OCCUPATIONAL DISEASE - INVALIDITY PENSION - DIFFERENT BENEFITS - FINDING OF THE EXISTENCE OF AN OCCUPATIONAL DISEASE AND FINDING OF INVALIDITY - DISTINCT PROCEDURES - DISCRETION OF ADMINISTRATION

( STAFF REGULATIONS OF OFFICIALS , ARTS 73 AND 78 )

A COMPARISON BETWEEN ARTICLE 73 ( COMPENSATION FOR OCCUPATIONAL DISEASE ) AND ARTICLE 78 ( INVALIDITY PENSION ) OF THE STAFF REGULATIONS OF OFFICIALS INDICATES THAT THE BENEFITS PROVIDED BY THESE TWO PROVISIONS ARE DIFFERENT AND MUTUALLY INDEPENDENT , ALTHOUGH A PERSON MAY RECEIVE BOTH OF THEM . FURTHERMORE , ARTICLE 25 OF THE RULES PROVIDES THAT RECOGNITION THEREUNDER OF EVEN TOTAL PERMANENT INVALIDITY ' ' SHALL IN NO WAY PREJUDICE APPLICATION OF ARTICLE 78 OF THE STAFF REGULATIONS AND VICE VERSA ' ' . IT FOLLOWS THAT THERE ARE TWO DIFFERENT PROCEDURES WHICH MAY GIVE RISE TO SEPARATE DECISIONS INDEPENDENT OF EACH OTHER .

ALTHOUGH IT IS DESIRABLE THAT , WHERE APPROPRIATE , THE TWO PROCEDURES SHOULD BE CONDUCTED IN CONCERT AND THAT THE SAME MEDICAL AUTHORITIES SHOULD BE INVITED TO GIVE AN OPINION ON THE DIFFERENT ASPECTS OF THE OFFICIAL ' S DISABILITY , THE LEGALITY OF EITHER PROCEDURE IS NOT CONDITIONAL ON SUCH A REQUIREMENT AND IN THIS RESPECT THE APPOINTING AUTHORITY HAS , ACCORDING TO THE CIRCUMSTANCES , A DISCRETION .

IN CASE 731/79

B ., RESIDING AT KEHLEN , REPRESENTED BY W . H . VERMEER OF THE AMSTERDAM BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE PREMISES OF DR P . STEIN , 2 AVENUE PESCATORE ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY FRANCESCO PASETTI-BOMBARDELLA , DIRECTOR-GENERAL OF ADMINISTRATION , PERSONNEL AND FINANCE , ACTING AS AGENT , ASSISTED BY FRANCIS HERBERT OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EUROPEAN CENTRE , PLATEAU DU KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE EUROPEAN PARLIAMENT OF 21 JUNE 1979 BRINGING THE APPLICANT ' S CASE BEFORE THE INVALIDITY COMMITTEE AND ISSUING VARIOUS INSTRUCTIONS TO THE SAID COMMITTEE ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 12 OCTOBER 1979 , B ., AN OFFICIAL OF THE EUROPEAN PARLIAMENT IN GRADE A 3 , BROUGHT AN ACTION IN WHICH ESSENTIALLY HE SEEKS , FIRST , THE ANNULMENT OF THE DECISION OF THE EUROPEAN PARLIAMENT TO INITIATE THE PROCEDURE FOR RETIRING HIM ON THE GROUND OF TOTAL PERMANENT INVALIDITY MAKING IT IMPOSSIBLE FOR HIM TO PERFORM HIS DUTIES , PROVIDED FOR IN ARTICLES 53 , 59 AND 78 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES , AND , SECONDLY , A DECLARATION THAT THE PROCEDURE PROVIDED FOR IN ARTICLE 73 OF THE STAFF REGULATIONS AND IN THE RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE ( HEREINAFTER REFERRED TO AS ' ' THE RULES ' ' ), WHICH WAS INITIATED AT HIS REQUEST FOR THE PURPOSE OF ESTABLISHING THROUGH A MEDICAL COMMITTEE WHETHER HIS DISABLEMENT IS DUE TO AN OCCUPATIONAL DISEASE , MUST BE EXPEDITED .

ADMISSIBILITY

2 THE DEFENDANT INSTITUTION SUBMITTED DURING THE ORAL PROCEDURE THAT THE APPLICATION NO LONGER HAD ANY PURPOSE OWING TO THE FACT THAT THE INVALIDITY COMMITTEE REFERRED TO IN ARTICLES 53 AND 78 OF THE STAFF REGULATIONS HAD FOUND THAT THE APPLICANT WAS NOT INCAPABLE OF PERFORMING HIS DUTIES ON ACCOUNT OF PERMANENT INVALIDITY AND THAT HE HAD IN FACT RESUMED WORK , AT LEAST ON A PART-TIME BASIS . HOWEVER , COUNSEL FOR THE APPLICANT INFORMED THE COURT BEFORE THE SITTING THAT ALTHOUGH HE WOULD NOT BE APPEARING , HE ADHERED TO THE SUBMISSIONS WHICH HE HAD PUT FORWARD DURING THE WRITTEN PROCEDURE . FURTHERMORE , IT IS APPARENT THAT IF THE APPLICATION FOR ANNULMENT WERE GRANTED THERE WOULD BE NO FOUNDATION FOR THE FINDINGS OF THE INVALIDITY COMMITTEE . CONSEQUENTLY , IT IS NECESSARY TO GIVE JUDGMENT ON THE APPLICATION .

3 HOWEVER , THE SECOND HEAD OF CLAIM MUST BE DISMISSED FORTHWITH AS INADMISSIBLE : IN THE FIRST PLACE , BECAUSE THE COURT DOES NOT HAVE JURISDICTION TO ISSUE SUCH INSTRUCTIONS TO A MEDICAL COMMITTEE , AND SECONDLY BECAUSE THE DELAY IN THE PERFORMANCE OF THE TASK ENTRUSTED TO THAT COMMITTEE IS DUE PRIMARILY TO THE APPLICANT ' S FAILURE TO COOPERATE TO SUCH AN EXTENT THAT IT WAS NECESSARY FOR THE PURPOSE OF FORMING THAT COMMITTEE TO HAVE RECOURSE TO ARBITRATION BY THE PRESIDENT OF THE COURT . IN THESE CIRCUMSTANCES THE APPLICANT CANNOT BE PERMITTED TO PROTEST AGAINST A SITUATION WHICH HE HAS TO A GREAT EXTENT BROUGHT ABOUT HIMSELF .

SUBSTANCE

4 THE SITUATION OF WHICH THE APPLICANT COMPLAINS IS DUE TO THE EXISTENCE OF TWO STATUTORY PROCEDURES WHICH , WITHOUT PREJUDICE TO VOLUNTARY RESIGNATION , GOVERN INTER ALIA THE SITUATION OF AN OFFICIAL WHO IS INCAPABLE OF PERFORMING HIS DUTIES OWING TO HIS STATE OF HEALTH . THE PURPOSE OF THE FIRST PROCEDURE , WHICH IS DEALT WITH IN ARTICLES 53 , 59 AND 78 OF THE STAFF REGULATIONS , IS TO OBTAIN A FINDING THAT BY REASON OF HIS STATE OF HEALTH - WHATEVER THE NATURE OR CAUSE THEREOF - THE OFFICIAL IN QUESTION CANNOT PERFORM HIS DUTIES . IT LEADS TO THE TERMINATION OF THE OFFICIAL ' S SERVICE AND TO THE AWARD OF AN INVALIDITY PENSION . THE SECOND PROCEDURE , WHICH IS GOVERNED BY ARTICLE 73 OF THE STAFF REGULATIONS , SUPPLEMENTED BY THE RULES , LEADS , IF THERE IS A FINDING THAT THE OFFICIAL ' S INCAPACITY TO PERFORM HIS DUTIES WAS BROUGHT ABOUT BY AN OCCUPATIONAL DISEASE , TO THE PAYMENT OF A LUMP SUM BY WAY OF COMPENSATION , WHICH MAY BE REPLACED BY AN ANNUITY . THE BENEFITS OF THE SECOND CATEGORY MAY BE PAID IN ADDITION TO THOSE ARISING FROM PREMATURE RETIREMENT AS A RESULT OF THE APPLICATION OF ARTICLES 53 , 59 , AND 78 .

5 THE APPLICANT , A DOCTOR BY PROFESSION , WAS ENGAGED BY THE PARLIAMENT ON 1 MAY 1975 AS A SPECIAL ADVISER WITHIN THE MEANING OF ARTICLE 5 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE EUROPEAN COMMUNITIES . ON 1 FEBRUARY 1977 HE WAS APPOINTED MEDICAL OFFICER OF THE INSTITUTION AND WAS LATER ESTABLISHED AS AN OFFICIAL IN GRADE A 3 . THIRTEEN MONTHS AFTER THAT APPOINTMENT HE REPORTED SICK , STATING THAT HE WAS SUFFERING FROM ' ' FATIGUE AND LETHARGY ' ' ( WEGENS MOEHEID EN LETHARGIE ) AND THAT HIS POOR HEALTH WAS DUE TO THE UNSUITABILITY OF THE PREMISES WHERE HE HAD TO PERFORM HIS DUTIES . ON 16 APRIL 1978 HE ASKED THAT THE PROCEDURE FOR ESTABLISHING WHETHER HE WAS SUFFERING FROM AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF ARTICLE 73 OF THE STAFF REGULATIONS BE APPLIED IN HIS CASE . ON 16 JUNE 1978 THE DIRECTOR-GENERAL OF THE EUROPEAN PARLIAMENT GRANTED THAT REQUEST AND PROPOSED THE CREATION OF A BOARD - WRONGLY CALLED A MEDICAL BOARD - CONSISTING OF THREE DOCTORS TO BE APPOINTED BY AGREEMENT , WHOSE TASK WOULD BE TO DETERMINE WHETHER THE CIRCUMSTANCES GIVING RISE TO THE APPLICATION OF ARTICLE 73 WERE PRESENT AND TO DELIVER AN OPINION ON THE ADVISABILITY OF INITIATING THE PROCEDURE FOR RETIREMENT ON THE GROUND OF PERMANENT INVALIDITY ( ARTICLES 53 AND 78 OF THE STAFF REGULATIONS AND ANNEX VIII THERETO ).

6 HOWEVER , AT THE TIME WHEN THIS ACTION WAS BROUGHT THAT BOARD HAD NOT BEEN ABLE TO CARRY OUT THE TASK ASSIGNED TO IT , PARTLY BECAUSE OF THE DIFFERING OPINIONS OF THE DOCTORS WHO WERE MEMBERS OF IT , AND PARTLY BECAUSE OF DELAYS , FOR WHICH THE APPLICANT WAS LARGELY RESPONSIBLE , BOTH IN THE APPOINTMENT OF ITS MEMBERS AND IN THE CONDUCT OF ITS PROCEEDINGS .

7 THOSE CIRCUMSTANCES CAUSED THE ADMINISTRATION OF THE EUROPEAN PARLIAMENT TO DECIDE ON 21 JUNE 1979 , AFTER ESTABLISHING THAT THE APPLICANT ' S SICK LEAVE TOTALLED MORE THAN TWELVE MONTHS IN A PERIOD OF THREE YEARS , TO SET IN MOTION THE PROCEDURE FOR DETERMINING AN OFFICIAL ' S INVALIDITY , WHICH ARTICLE 59 ( 1 ) IN FINE OF THE STAFF REGULATIONS AUTHORIZES IT TO INITIATE ' ' IN THE CASE OF ANY OFFICIAL WHOSE SICK LEAVE TOTALS MORE THAN 12 MONTHS IN ANY PERIOD OF THREE YEARS ' ' .

8 IT IS THAT DECISION WHICH IS CONTESTED . IN THE APPLICANT ' S VIEW THE PROCEDURE FOR ESTABLISHING THAT HE WAS UNABLE TO PERFORM HIS DUTIES BECAUSE OF PERMANENT INVALIDITY CANNOT BE SEVERED FROM THAT FOR ESTABLISHING THE OCCUPATIONAL NATURE OF HIS INVALIDITY WITHOUT EXPOSING HIM TO THE RISK OF IRREPARABLE DAMAGE .

9 THAT SUBMISSION MUST BE REJECTED . IN FACT A COMPARISON BETWEEN ARTICLE 73 ( COMPENSATION FOR OCCUPATIONAL DISEASE ) AND ARTICLE 78 ( INVALIDITY PENSION ) INDICATES THAT THE BENEFITS PROVIDED BY THESE TWO PROVISIONS ARE DIFFERENT AND MUTUALLY INDEPENDENT , ALTHOUGH A PERSON MAY RECEIVE BOTH OF THEM . FURTHERMORE , ARTICLE 25 OF THE RULES PROVIDES THAT RECOGNITION THEREUNDER OF EVEN TOTAL PERMANENT INVALIDITY ' ' SHALL IN NO WAY PREJUDICE APPLICATION OF ARTICLE 78 OF THE STAFF REGULATIONS AND VICE VERSA ' ' . IT FOLLOWS THAT THERE ARE TWO DIFFERENT PROCEDURES WHICH MAY GIVE RISE TO SEPARATE DECISIONS INDEPENDENT OF EACH OTHER .

10 ALTHOUGH IT IS NO DOUBT DESIRABLE THAT , WHERE APPROPRIATE , THE TWO PROCEDURES SHOULD BE CONDUCTED IN CONCERT AND THAT THE SAME MEDICAL AUTHORITIES SHOULD BE INVITED TO GIVE AN OPINION ON THE DIFFERENT ASPECTS OF THE OFFICIAL ' S DISABILITY , THE LEGALITY OF EITHER PROCEDURE IS NOT CONDITIONAL ON SUCH A REQUIREMENT AND IN THIS RESPECT THE APPOINTING AUTHORITY HAS , ACCORDING TO THE CIRCUMSTANCES , A DISCRETION WHICH THE DEFENDANT EXERCISED IN A MANNER WHICH CANNOT BE CALLED IN QUESTION IN VIEW OF THE SITUATION IN WHICH IT FOUND ITSELF , LARGELY AS A RESULT OF THE APPLICANT ' S ATTITUDE .

11 THEREFORE THE APPLICATION MUST BE DISMISSED .

12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . HOWEVER , ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT , WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THOSE RULES , IN PROCEEDINGS BROUGHT BY OFFICIALS OR OTHER SERVANTS OF THE COMMUNITIES , THE INSTITUTIONS SHALL BEAR THEIR OWN COSTS . HAVING REGARD TO THE FACTS OF THE CASE , THE COURT CONSIDERS THAT THE EUROPEAN PARLIAMENT HAS BEEN FORCED TO INCUR THE COSTS OF THE PRESENT ACTION UNREASONABLY AND THAT THEY MUST BE BORNE BY THE APPLICANT . CONSEQUENTLY THE APPLICANT MUST BE ORDERED TO PAY THE WHOLE OF THE COSTS , INCLUDING THE COSTS OF THE FIRST APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE WHOLE OF THE COSTS , INCLUDING THE COSTS OF THE FIRST APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .