61983J0012

OFFICIALS - SOCIAL SECURITY - INSURANCE AGAINST ACCIDENTS AND OCCUPATIONAL DISEASES - INVALIDITY - INITIATION OF THE PROCEDURE TO ESTABLISH INVALIDITY - CONDITIONS

( STAFF REGULATIONS , ART . 78 ; ANNEX VIII , ART . 13 )

UNDER ARTICLE 13 OF ANNEX VIII WHICH LAYS DOWN , IN ACCORDANCE WITH ARTICLE 78 OF THE STAFF REGULATIONS , THE CONDITIONS ON WHICH AN OFFICIAL IS ENTITLED TO AN INVALIDITY PENSION , THE PROCEDURE TO ESTABLISH INVALIDITY MAY BE INITIATED ONLY IN RELATION TO AN OFFICIAL WHO IS OBLIGED TO END HIS SERVICE WITH THE COMMUNITIES BECAUSE HE IS SUFFERING FROM AN INVALIDITY PREVENTING HIM FROM PERFORMING HIS DUTIES .

IT FOLLOWS THAT AN OFFICIAL WHO HAS LEFT THE SERVICE SEVERAL YEARS AGO AND WHO SUFFERS FROM AN ILLNESS WHICH WOULD RENDER HIM INCAPABLE OF PERFORMING HIS DUTIES IF HE WERE STILL IN ACTIVE EMPLOYMENT IS NOT ENTITLED TO REQUEST , ON THAT GROUND ALONE , THE INITIATION OF THE PROCEDURE TO ESTABLISH INVALIDITY .

IN CASE 12/83

PAUL BAHR , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING IN BRUSSELS AND REPRESENTED BY DIETER ROGALLA , RECHTSANWALT REGISTERED WITH THE AMTSGERICHT STEINFURT AND THE LANDGERICHT MUNSTER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER , 83 , BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JORN PIPKORN , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION DECISION OF 19 OCTOBER 1982 REFUSING TO INITIATE , IN RELATION TOK THE APPLICANT , THE PROCEDURE TO ESTABLISH INVALIDITY WITH A VIEW TO AWARDING HIM AN INVALIDITY PENSION WITHIN THE MEANING OF ARTICLE 78 OF THE STAFF REGULATIONS ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 21 JANUARY 1983 , PAUL BAHR , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE COMMISSION DECISION OF 19 OCTOBER 1982 REFUSING TO AWARD THE APPLICANT AN INVALIDITY PENSION AND FOR AN ORDER TO THE COMMISSION TO AWARD HIM AN INVALIDITY PENSION WITH EFFECT FROM 1 JULY 1973 OR , IN THE ALTERNATIVE , FROM 10 FEBRUARY 1980 .

2 THE APPLICANT , WHO ENTERED THE SERVICE OF THE COMMISSION ON 1 JANUARY 1959 AS AN OFFICIAL , PERFORMED HIS DUTIES UNTIL 30 JUNE 1973 , HIS LAST POST BEING THAT OF PRINCIPAL ADMINISTRATOR IN GRADE A 4 . AT HIS REQUEST , THE COMMISSION APPLIED IN RELATION TO HIM A MEASURE TERMINATING HIS SERVICE WITH EFFECT FROM 1 JULY 1973 , PURSUANT TO REGULATION ( EURATOM , ECSC , EEC ) NO 2530/72 OF THE COUNCIL OF 4 DECEMBER 1972 INTRODUCTING SPECIAL AND TEMPORARY MEASURES APPLICABLE TO THE RECRUITMENT OF OFFICIALS OF THE EUROPEAN COMMUNITIES IN CONSEQUENCE OF THE ACCESSION OF NEW MEMBER STATES , AND FOR THE TERMINATION OF SERVICE OF OFFICIALS OF THOSE COMMUNITIES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 1-8 DECEMBER ), P . 11 ).

3 ON LEAVING THE SERVICE , THE APPLICANT RECEIVED UNTIL 31 OCTOBER 1982 THE ALLOWANCE PROVIDED FOR BY REGULATION NO 2530/72 . WITH EFFECT FROM 1 NOVEMBER 1982 HE RECEIVED A RETIREMENT PENSION . HOWEVER , HE CONSIDERS THAT HE IS ENTITLED TO AN INVALIDITY PENSION AS FROM THE DATE OF TERMINATION OF SERVICE OR IN ANY EVENT AS FROM 10 . FEBRUARY 1980 , THE DATE ON WHICH HE SUFFERED A CARDIAC INFARCTION WHICH RENDERED HIM UNFIT FOR WORK .

4 IN THAT CONNECTION , THE APPLICANT MAINTAINS FIRST OF ALL THAT IN 1967 HE SUFFERED HIS FIRST INFARCTION WHICH , ACCORDING TO A CERTIFICATE ISSUED BY HIS DOCTOR ON 24 MARCH 1967 , WAS ATTRIBUTABLE TO OVERWORK AND HENCEFORTH PREVENTED HIM FROM UNDERTAKING A HEAVY WORKLOAD . IN THOSE CIRCUMSTANCES THE COMMISSION WAS UNDER AN OBLIGATION TO CONSIDER , IN THE COURSE OF DISCUSSIONS RELATING TO THE APPLICATION OF REGULATION NO 2530/72 , THE INITIATION OF A PROCEDURE TO ESTABLISH INVALIDITY UNDER ARTICLE 78 OF THE STAFF REGULATIONS . BY TAKING NO ACTION AT THE TIME , THE COMMISSION FAILED TO DISCHARGE DUTY OF ASSISTANCE IN RELATION TO ITS OFFICIALS .

5 NEXT , THE APPLICANT MAINTAINS THAT A SECOND INFARCTION IN 1980 RENDERED HIM UNFIT FOR WORK IN VIEW OF THE HIGHLY PRECARIOUS STATE OF HIS HEALTH SINCE THAT TIME . IT IS THEREFORE INDISPUTABLE , IN HIS VIEW , THAT AT THE TIME HIS STATUS WAS THAT OF AN OFFICIAL AGED LESS THAN 65 YEARS SUFFERING FROM PERMANENT INVALIDITY PREVENTING HIM FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET AND THAT STATUS , ACCORDING TO ARTICLE 13 OF ANNEX VIII TO THE STAFF REGULATIONS , ENTITLED HIM TO THE AWARD OF AN INVALIDITY PENSION IF SUCH INVALIDITY AROSE DURING THE PERIOD IN WHICH HE WAS ACQUIRING PENSION RIGHTS . THE APPLICANT CLAIMS TO HAVE FULFILLED THE LATTER CONDITION INASMUCH AS HE CONTINUED , IN ACCORDANCE WITH ARTICLE 3 ( 7 ) OF REGULATION NO 2530/72 , TO PAY CONTRIBUTIONS IN ORDER TO ACQUIRE PENSION RIGHTS .

6 SINCE THE COMMISSION REFUSED TO REFER THE MATTER TO THE INVALIDITY COMMITTEE AT THE REQUEST OF THE APPLICANT , THE LATTER LODGED A COMPLAINT AGAINST SUCH REFUSAL . FOLLOWING THE REJECTION OF THAT COMPLAINT , THE APPLICANT BROUGHT THIS ACTION BEFORE THE COURT .

7 THE COMMISSION CONTENDS THAT THE APPLICATION IS INADMISSIBLE INASMUCH AS THE APPLICANT SEEKS THE AWARD OF AN INVALIDITY PENSION , SINCE ENTITLEMENT TO SUCH A PENSION MAY BE RECOGNIZED ONLY BY THE INVALIDITY COMMITTEE , AS IS CLEAR FROM ARTICLE 13 OF ANNEX VIII TO THE STAFF REGULATIONS . SINCE THE OBJECTION OF INADMISSIBILITY IS DEVOID OF PURPOSE IF THE APPLICATION FOR ANNULMENT IS DISMISSED , THE SUBSTANCE MUST FIRST BE CONSIDERED .

8 THE COMMISSION DOES NOT CONTEST THE FACTS AS OUTLINED BY THE APPLICANT BUT IT CONSIDERS THAT THE PROVISIONS OF THE STAFF REGULATIONS THEMSELVES PRECLUDE THE AWARD TO HIM OF AN INVALIDITY PENSION .

9 THE COMMISSION EMPHASIZES IN THE FIRST PLACE THAT THE APPLICANT DID NOT REQUEST THAT THE MATTER BE REFERRED TO THE INVALIDITY COMMITTEE EITHER IN 1967 WHEN HE SUFFERED HIS FIRST INFARCTION OR IN 1973 WHEN HE LEFT THE SERVICE . ON THE OTHER HAND THE APPLICANT RETURNED TO WORK AFTER HIS ILLNESS IN 1967 AND CONTINUED TO PERFORM HIS DUTIES UNTIL 1973 WHEN , AT HIS OWN REQUEST , REGULATION NO 2530/72 WAS APPLIED TO HIM . ACCORDINGLY , THERE WAS NO REASON FOR THE COMMISSION TO REFER THE MATTER TO THE INVALIDITY COMMITTEE .

10 NEXT , THE COMMISSION CONTENDS THAT THE PROVISIONS OF THE STAFF REGULATIONS ARE BASED ON THE IDEA EXPRESSED IN ARTICLE 53 THAT AN OFFICIAL WHO IS RECOGNIZED BY THE INVALIDITY COMMITTEE TO BE SUFFERING FROM TOTAL INVALIDITY IS TO CEASE TO PERFORM HIS DUTIES AND IS TO BE RETIRED . THE PROCEDURE TO ESTABLISH INVALIDITY CANNOT THEREFORE BE APPLIED TO AN OFFICIAL WHO HAS ALREADY CEASED TO PERFORM HIS DUTIES . THE SAME IDEA IS EXPRESSED IN ARTICLE 13 OF ANNEX VIII - A PROVISION ON WHICH THE APPLICANT ' S ARGUMENTS ARE BASED - INASMUCH AS THE INVALIDITY PENSION PROVIDED FOR THEREIN IS AWARDED BY THE INVALIDITY COMMITTEE ONLY TO AN OFFICIAL WHO IS SUFFERING FROM TOTAL PERMANENT INVALIDITY PREVENTING HIM FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET , AND WHO ' ' IS OBLIGED ON THESE GROUNDS TO END HIS SERVICE ' ' WITH THE COMMUNITIES .

11 FOR THE PURPOSES OF THE APPLICATION TO THE PRESENT CASE OF ARTICLE 13 OF ANNEX VIII , A DISTINCTION MUST BE DRAWN BETWEEN THE TWO ARGUMENTS ADDUCED BY THE APPLICANT WHICH ARE THAT THE MATTER SHOULD HAVE BEEN REFERRED TO THE INVALIDITY COMMITTEE WHEN HE LEFT THE SERVICE IN 1973 AND THAT THE MATTER SHOULD HAVE BEEN REFERRED TO THE INVALIDITY COMMITTEE AFTER HIS SECOND HEART ATTACK IN 1980 .

12 AS REGARDS THE LATTER CASE , THE COMMISSION ' S REASONING MUST BE ACCEPTED . IT FOLLOWS FROM THE UNEQUIVOCAL PROVISIONS OF ARTICLE 13 OF ANNEX VIII WHICH LAYS DOWN , IN ACCORDANCE WITH ARTICLE 78 OF THE STAFF REGULATIONS , THE CONDITIONS ON WHICH AN OFFICIAL IS ENTITLED TO AN INVALIDITY PENSION , THAT THE PROCEDURE TO ESTABLISH INVALIDITY MAY BE INITIATED ONLY IN RELATION TO AN OFFICIAL WHO IS OBLIGED TO END HIS SERVICE WITH THE COMMUNITIES BECAUSE HE IS SUFFERING FROM AN INVALIDITY PREVENTING HIM FROM PERFORMING HIS DUTIES .

13 IT FOLLOWS THAT AN OFFICIAL WHO HAS LEFT THE SERVICE SEVERAL YEARS AGO AND WHO SUFFERS FROM AN ILLNESS WHICH WOULD RENDER HIM INCAPABLE OF PERFORMING HIS DUTIES IF HE WERE STILL IN ACTIVE EMPLOYMENT IS NOT ENTITLED TO REQUEST , ON THAT GROUND ALONE , THE INITIATION OF THE PROCEDURE TO ESTABLISH INVALIDITY .

14 THAT FINDING CANNOT , HOWEVER , RESOLVE THE OTHER PROBLEM RAISED IN THIS DISPUTE , NAMELY WHETHER THE COMMISSION FAILED TO DISCHARGE AN OBLIGATION TOWARDS A FORMER OFFICIAL SUFFERING FROM TOTAL PERMANENT INVALIDITY , INASMUCH AS IT DID NOT REFER THE MATTER TO THE INVALIDITY COMMITTEE AT THE TIME AT WHICH THE APPLICANT EVINCED THE INTENTION OF LEAVING THE SERVICE . IT IS COMMON GROUND THAT , AT THE TIME , THE APPLICANT HAD ALREADY SUFFERED A FIRST CARDIAC INFARCTION . EXPERIENCE SHOWS THAT THE RISK OF SUFFERING A SECOND HEART ATTACK IS CONSIDERABLY GREATER AFTER SUCH AN EVENT .

15 IN THAT SITUATION , IT WAS FOR THE COMMISSION TO DETERMINE WHETHER THE STATE OF THE APPLICANT ' S HEALTH AT THE TIME AT WHICH HE EXPRESSED THE INTENTION OF LEAVING THE SERVICE WAS SUCH THAT HE COULD HAVE CONTINUED TO PERFORM HIS DUTIES IF HE HAD CHOSEN NOT TO END HIS SERVICE WITH THE COMMUNITIES .

16 HOWEVER , CIRCUMSTANCES OF THAT KIND MAY BE TAKEN INTO ACCOUNT IN CONNECTION WITH THE REVIEW OF THE LEGALITY OF THE CONTESTED DECISION ONLY IF IT IS ESTABLISHED THAT THERE IS A DIRECT AND IMMEDIATE CONNECTION BETWEEN THE OFFICIALS ULTIMATE INVALIDITY AND THE STATE OF HIS HEALTH WHEN HE LEFT THE SERVICE . THAT CONNECTION CANNOT BE DEDUCED SIMPLY FROM THE FACT THAT THE OFFICIAL SUFFERED TWO CONSECUTIVE HEART ATTACKS PARTICULARLY WHERE , AS IN THIS CASE , THEY ARE SEPARATED BY MORE THAN 10 YEARS .

17 IT WAS FOR THE APPLICANT TO JUSTIFY SUCH A CONNECTION WHICH HAS NOT , HOWEVER , BEEN ESTABLISHED .

18 IN THOSE CIRCUMSTANCES , THE APPLICATION MUST BE DISMISSED .

COSTS

19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , THE COSTS INCURRED BY THE INSTITUTIONS IN ACTIONS BY EMPLOYEES OF THE COMMUNITIES ARE TO BE BORNE BY THOSE INSTITUTIONS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .