1. 

In the first place, in support of his claims, the applicant submits that the Medical Committee's report on which the decision of 3 February 1983 is based was accepted and signed by four doctors, that is to say, even by the doctor whom the committee consulted and to whom it entrusted the examination of the applicant's locomotor system. The fact that a fourth doctor participated in drawing up the report and thus became a member of the Medical Committee constitutes an infringement of Article 23 of the Rules, according to which the Medical Committee is to consist of three doctors and only those doctors are to submit a report. The report was therefore not produced in accordance with the correct procedure and consequently a new expert opinion must be ordered.

I agree with the Commission that that view is incorrect. There was in fact no irregularity in the constitution and functioning of the committee (within the definition given in the judgment in Case 156/80, page 1374, paragraph 20 of the decision ( 4 )).

An important consideration in that respect is that the Medical Committee cannot be compared to a court of law and that consequently the strict rules which operate in respect of the composition of judicial bodies are not applicable to it. That is clear from the decisions of this Court, in which it has been held that an official who is to be examined is not entitled to reject one of the doctors appointed by the appointing authority and that a doctor who has already acted for the appointing authority in an earlier stage of the procedure may be appointed to the committee (see the judgments in Cases 156/80 ( 4 ) and 186/80 ( 5 ))

Another important consideration is that the Medical Committee is clearly entitled, in the interest of making an accurate assessment, to consult a specialist on a particular problem and to rely on his opinion. If it does so and then — as in this case — unanimously reaches a specific conclusion, there is no reason why the specialist's stated agreement with that conclusion should be regarded as an infringement of an essential procedural requirement which could be relied upon by the official examined. It is clear that even without the specialist's signature the Medical Committee's decision would not have been any different. The circumstance to which the applicant objects, namely the fact that the main conclusions in the report were endorsed jointly by four doctors, cannot therefore adversely affect the applicant's interests; on the contrary — as the Commission suggests — it is to be regarded as an additional guarantee of the justness of the Committee's findings.

2. 

The applicant relies in the second place on the fact that he was granted a provisional allowance, paid in two amounts corresponding to invalidity rates of 25% and 12% respectively. Inasmuch as the third paragraph of Article 20 provides for such payments only in respect of the undisputed proportion of the invalidity rate, the payment of that allowance fixed the undisputed proportion at 37%, that is to say the sum of the partial rates determined in May 1979 by the doctor appointed by the Commission. That rate was binding on the appointing authority and on the Medical Committee. Therefore the only issue which could be considered at any subsequent stage in the procedure was that of the proportion of the invalidity rate which was still a matter for dispute (in other words the questions whether the knee injury should be estimated at more than 2% and whether it was also necessary to take into account the disfigurement, which was not referred to in the report of 25 May 1979). It was therefore not permissible to decide that after the Medical Committee's intervention the applicant's permanent partial invalidity rate was only 34%. On the contrary, if account is taken of those elements of the Medical Committee's report in relation to which the Committee was still entitled to reach a conclusion, (in other words the assessment of the knee injury at 8% invalidity and the disfigurement at 1%), the applicant qualifies for compensation on the basis of an invalidity rate of at least 44% (25% for the eye injury, 10% for the head injuries, 8% for the knee injury and 1% for the disfigurement).

The Commission has emphatically rejected that view. It stresses that in principle under Article 20 of the Rules the payment of a provisional allowance is considered only if the degree of invalidity cannot be definitively determined, and therefore before the sequelae have consolidated. That was not the case in this instance, since the applicant's injuries had already consolidated in May 1979 — as is clear from the Commission's draft decision —, and it was only because that draft decision was rejected and because the matter was referred to a Medical Committee that the procedure had not yet reached a conclusion. Moreover, it takes the view that in any case the undisputed invalidity rate was only 25%. That is clear from its letters dated 22 October 1979 and 30 January 1980, in which it was expressly stated that any further degree of invalidity would have to be confirmed by the Medical Committee. Therefore the allowance awarded during the proceedings in Case 186/80 ( 6 ) must not be taken into account. It was in fact paid not on the basis of Article 20 of the Rules; it was intended as a gesture of conciliation, and moreover was made expressly “sans aucune reconnaissance préjudiciable” and “sous toutes réserves généralement quelconques, et singulièrement sous réserve de l'avis qui sera émis par la Commission médicale et de la décision qui sera prise par l'AIPN au vu de cet avis”. On that basis, and because the Medical Committee was not bound by the findings of the medical examination in 1979 but was free to make its own assessment, there are therefore no grounds for challenging its conclusion that the definitive invalidity rate was only 34%.

I find it difficult to accept the Commission's position on that point.

In the first place, I do not find convincing the view that the third paragraph of Article 20 applies only where the injuries have not yet definitively consolidated. It seems to me entirely reasonable to grant a provisional allowance in respect of the undisputed proportion of the invalidity rate even where there is a dispute as to the total invalidity rate, and where the final figure is to be determined by a Medical Committee, which may take considerable time. In any case it is impossible to escape the fact that the Commission actually applied the third paragraph of Article 20 of the Rules in this instance. It must therefore abide by its decision and must accept that the consequences of the application of that provision may be used against it.

The payment of an additional provisional allowance representing a 12% invalidity rate in the course of the proceedings in Case 186/80 ( 7 ) was made in connection with a claim asking the Court to order the Commission to pay such a provisional allowance and the Commission itself stated in its defence that “le chef de la demande du requérant relative à cette indemnité complémentaire devient ainsi sans objet”. On the other hand the Commission did indeed make that payment subject to the abovementioned reservations. There is clearly a contradiction here. However, in my view the Court resolved the problem when it stated in paragraph 23 of the decision in Case 186/80 ( 7 ) that the issue had been settled by the payment of an additional provisional allowance. That can only mean that the reservations expressed by the Commission were regarded as irrelevant or that they were in any case not construed as meaning that it would be possible to reconsider the matter and arrive at a decision less favourable to the applicant. The settlement of the issue does not mean that the question was solved on a purely temporary basis, as the Commission believes. On the contrary it implies that the applicant obtained satisfaction. However, since there is no other legal basis for the Commission's payment, the fact that he obtained satisfaction must mean that the payment was made in respect of the undisputed proportion of the invalidity rate within the meaning of Article 20 of the Rules and therefore the proportion which the administration may not subsequently revise.

At the same time, therefore, the invalidity rate of 37% acquired binding effect. (Moreover, the principle prohibiting reformatio in peius is also relevant, since Article 22 of the Rules and the wording of the provision on expenses in Article 23, which clearly do not envisage that the findings of the Medical Committee may be less favourable than those of the doctor appointed by the appointing authority, both suggest that that principle applies in respect of the Medical Committee). Because when the payment was made the appointing authority could rely only on the medical report of 25 May 1979, and because its letter of 15 October 1980 expressly referred to the fact that the doctor in question had been consulted, that means also that there could no longer be any dispute as regards the invalidity rates established by him, namely 25% in respect of the eye injury, 10% for the head injuries and 2% for the knee injury. Indeed the only questions which were still a matter for dispute were that of how the disfigurement resulting from the accident was to be assessed and whether the knee injury could be assessed at more than 2 % invalidity. The Medical Committee should have been given a correspondingly limited brief.

It follows that the Medical Committee's findings in relation to the neurological sequelae must be disregarded because they lack any legal basis. If it is assumed that in other respects the Medical Committee's report cannot be challenged and that therefore there is no need to repeat that procedure (I will return to that matter below), then its findings concerning the degree of invalidity arising from the knee injury (8%) and that to be attributed in respect of the disfigurement (1%) must be retained. However, that would mean that the applicant is entitled to compensation in respect of permanent partial invalidity of at least 44%. In the special circumstances of this case I have no doubt whatsoever that even though the Court cannot normally make findings of a medical character, that percentage should be specified in the judgment (whether that is sufficient will not become clear until all the submissions have been considered).

3. 

The plaintiff also claims that the Medical Committee's report is erroneous, and is therefore not applicable, in so far as it states in relation to the knee injuries and their consolidation that further treatment in the form of thermal cures does not seem indicated.

He maintains that the Medical Committee undertook only a superficial examination lasting half an hour (the details appear on page 11 of the application). He refers to reports of other doctors whom he consulted and who — in contrast to the Medical Committee, which only acknowledged sequelae of the accident in relation to the applicant's left knee, — assessed the degree of invalidity for both knees together at 20% (as is clear from Dr Schmitt's report of 22. 12. 1981 and Dr Chaumont's report of 4. 5. 1982). Finally, the applicant draws attention to the fact that on an invalidity card issued by the Luxembourg Ministry of the Interior his invalidity is stated to be at least 50%. On that basis he considers that he is justified in claiming compensation corresponding to 56% invalidity or, at least, in asking the Court to order a fresh examination by a Medical Committee.

4. 

Let us now consider the additional claims submitted in the reply. The Court is asked to order the Commission to pay BFR 50000 in accordance with Article 73 of the Rules of Procedure and to award interest on the additional lump sum owed to the applicant.

5. 

My views may be summarized as follows.

The Court should: