61986O0025

OFFICIALS - ACTIONS - ACT ADVERSELY AFFECTING THE APPLICANT - DECLARATORY MEASURE - INADMISSIBLE

( STAFF REGULATIONS OF OFFICIALS , ART . 90 ( 2 ) AND ART . 91 )

IN CASE 25/86

BENOIT SUSS , A FORMER OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 32 RUE NEYEN , LUXEMBOURG , REPRESENTED BY JACQUES GUINARD , OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF LOUIS SCHILTZ , 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY MARIE WOLFCARIUS , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , ASSISTED BY ROBERT ANDERSEN , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , GEORGES KREMLIS , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 28 MARCH 1985 FIXING THE AGGREGATE RATE OF PERMANENT PARTIAL INVALIDITY OF THE APPLICANT ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 31 JANUARY 1986 , BENOIT SUSS , A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF A DECISION TAKEN BY THE COMMISSION ON 28 MARCH 1985 ASSESSING THE APPLICANT ' S RATE OF PERMANENT PARTIAL INVALIDITY AS A RESULT OF AN ASSAULT OF WHICH HE WAS A VICTIM IN 1977 .

2 THAT DECISION OF THE COMMISSION WAS ADOPTED FOLLOWING THE JUDGMENT OF THE COURT OF 29 NOVEMBER 1984 IN CASE 265/83 , BETWEEN THE SAME PARTIES , IN ORDER TO IMPLEMENT THAT JUDGMENT . IN THAT JUDGMENT THE COURT ANNULLED A COMMISSION DECISION OF 3 FEBRUARY 1983 IN SO FAR AS IT ESTABLISHED AN AGGREGATE PERMANENT PARTIAL INVALIDITY RATE OF LESS THAN 37.25% , FIXED A DATE EARLIER THAN 18 MAY 1979 AS THAT OF THE CONSOLIDATION OF THE SEQUELAE OF THE ACCIDENT AND CLAIMED THE REPAYMENT OF BENEFITS RELATING THERETO .

3 IN THE CONTESTED DECISION OF 28 MARCH 1985 THE AGGREGATE PERMANENT PARTIAL INVALIDITY RATE WAS SET AT 37.25% AND THE DATE OF THE CONSOLIDATION OF THE SEQUELAE OF THE ACCIDENT WAS SET AT 18 MAY 1979 ; THE APPLICANT WAS DECLARED TO BE ENTITLED TO THE LUMP SUM CORRESPONDING TO THAT RATE OF INVALIDITY . THE COMMISSION ALSO STATED THAT THE REPORT OF THE MEDICAL COMMITTEE SUBMITTED ON 13 JULY 1982 WAS UPHELD , WITH THE EXCEPTION OF THE CONCLUSIONS REGARDING THE ASSESSMENT OF THE AGGREGATE RATE OF PERMANENT PARTIAL INVALIDITY AND THE DATE OF CONSOLIDATION . IN THE LAST PARAGRAPH OF ITS DECISION THE COMMISSION WENT ON TO STATE THAT SHOULD THERE BE ANY AGGRAVATION OF THE RATE OF PERMANENT PARTIAL INVALIDITY ASSESSED BY THE MEDICAL COMMITTEE FOR EACH OF THE SEQUELAE , A SUPPLEMENT WOULD BECOME DUE ONLY IN THE EVENT THAT THE AGGREGATE RATE OF 37.25% WAS EXCEEDED .

4 IN THIS ACTION THE APPLICANT CONTESTS THAT DECISION IN SO FAR AS IT UPHOLDS THE CONCLUSIONS OF THE MEDICAL COMMITTEE ; IN PARTICULAR HE DISPUTES THE EXCLUSION OF ANY NEUROLOGICAL SEQUELAE RESULTING FROM HIS SKULL INJURY AND THE ASSESSMENT OF PERMANENT PARTIAL INVALIDITY RATES DIFFERENT FROM THOSE ARRIVED AT BY THE DOCTOR APPOINTED BY THE COMMISSION IN HIS REPORT OF 25 MAY 1979 . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE DISAGREEMENT BETWEEN THE PARTIES IN FACT CONCERNS THE MANNER IN WHICH ANY AGGRAVATION OF THE APPLICANT ' S SEQUELAE SHOULD BE ASSESSED .

5 PURSUANT TO ARTICLE 92 ( 2 ) OF THE RULES OF PROCEDURE , THE COURT MAY AT ANY TIME OF ITS OWN MOTION CONSIDER WHETHER THERE EXISTS ANY ABSOLUTE BAR TO PROCEEDING WITH A CASE ; IN SUCH CIRCUMSTANCES IT MAY , UNDER ARTICLE 91 ( 3 ) OF THE RULES OF PROCEDURE , GIVE A DECISION WITHOUT HOLDING ANY ORAL PROCEDURE . THE PARTIES WERE INFORMED THAT THE COURT INTENDED , OF ITS OWN MOTION , TO CONSIDER WHETHER THERE WAS AN ABSOLUTE BAR TO PROCEEDING WITH THE CASE ON THE GROUND THAT THERE WAS NO ACT ADVERSELY AFFECTING THE APPLICANT FOR THE PURPOSES OF ARTICLE 90 ( 2 ) AND ARTICLE 91 OF THE STAFF REGULATIONS OF OFFICIALS ; THEY HAD THE OPPORTUNITY OF PRESENTING WRITTEN OBSERVATIONS IN THAT REGARD . IN THE LIGHT OF THOSE OBSERVATIONS , THE COURT CONSIDERS IT APPROPRIATE TO RULE ON THE ADMISSIBILITY OF THE ACTION BY WAY OF AN ORDER WITHOUT OPENING THE ORAL PROCEDURE .

6 IN ORDER TO DETERMINE THE EFFECTS FOR THE APPLICANT OF THE CONTESTED DECISION , IT SHOULD BE RECALLED THAT THE JUDGMENT OF 29 NOVEMBER 1984 , WHICH DISMISSED THE APPLICATION IN SO FAR AS IT SOUGHT TO CHALLENGE THE FINDINGS OF THE MEDICAL COMMITTEE , WAS BASED ON THE COURT ' S RULING THAT THOSE FINDINGS CONSTITUTED A FINAL SETTLEMENT , AT THAT STAGE , OF ALL QUESTIONS OF A MEDICAL NATURE . ALTHOUGH THE COURT NEVERTHELESS HELD THAT THE APPOINTING AUTHORITY COULD NOT DEPART , TO THE DETRIMENT OF THE OFFICIAL , FROM THE CONCLUSIONS WHICH IT HAD REACHED IN ITS DRAFT DECISION , IT EXPRESSLY LIMITED THE APPLICATION OF THAT PRINCIPLE TO THE AGGREGATE INVALIDITY RATE AND THE ALLOWANCE CALCULATED ON THAT BASIS , TO THE EXCLUSION OF THE VARIOUS COMPONENTS OF THE REPORT OF THE DOCTOR APPOINTED BY THE INSTITUTION . WHEN , THEREFORE , THE COMMISSION STATED THAT THE CONCLUSIONS OF THE MEDICAL COMMITTEE WERE TO BE UPHELD , IT WAS SIMPLY REITERATING SOMETHING WHICH ALREADY FOLLOWED FROM THE JUDGMENT OF 29 NOVEMBER 1984 , A FINAL DECISION OF THE COURT . IN THAT RESPECT THE CONTESTED DECISION CAN HAVE NO ADVERSE AFFECT ON THE APPLICANT ' S LEGAL POSITION .

7 IN SO FAR AS THE PARTIES CANNOT AGREE ON THE MANNER IN WHICH ANY AGGRAVATION OF THE SEQUELAE SHOULD BE ASSESSED , AND IN PARTICULAR ON THE CONTENT OF THE FINAL PARAGRAPH OF THE CONTESTED DECISION , IT WILL BE FOR THE COMMISSION , AT AN APPROPRIATE JUNCTURE , TO TAKE A DECISION ON ANY AGGRAVATION WHICH MAY OCCUR , INCLUDING THE ISSUE RAISED BY THE PARAGRAPH IN QUESTION . SO LONG AS NO SUCH CONCRETE SITUATION HAS ARISEN , THAT PARAGRAPH MERELY STATES THE COMMISSION ' S OPINION AND INDICATES THE ATTITUDE WHICH IT INTENDS TO ADOPT IN A FUTURE DECISION ; THAT INDICATION HAS NO PRESENT OR FUTURE LEGAL EFFECT WITH REGARD TO THE APPLICANT .

8 IT FOLLOWS FROM THE FOREGOING THAT THE ELEMENTS OF THE CONTESTED DECISION WHICH THE APPLICANT DISPUTES IN THESE PROCEEDINGS DO NOT CONSTITUTE AN ACT ADVERSELY AFFECTING HIM FOR THE PURPOSES OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS AND CANNOT THEREFORE CONSTITUTE THE SUBJECT-MATTER OF AN APPLICATION UNDER ARTICLE 91 .

9 IT CANNOT BE CONCLUDED THAT THE ACTION IS IN FACT IN THE NATURE OF AN APPLICATION FOR INTERPRETATION OF THE JUDGMENT OF 29 NOVEMBER 1984 PURSUANT TO ARTICLE 102 OF THE RULES OF PROCEDURE , AS THE APPLICANT ARGUED FOR THE FIRST TIME IN HIS REPLY TO THE QUESTION PUT BY THE COURT AFTER THE END OF THE WRITTEN PROCEDURE ; ON THAT POINT HE ADOPTED AN ARGUMENT PUT FORWARD BY THE COMMISSION IN ITS DEFENCE , AN ARGUMENT WHICH HE HAD EXPRESSLY DISPUTED IN HIS REPLY . THE SUBJECT-MATTER OF THE APPLICATION CAN NO LONGER BE AMENDED AT THIS STAGE OF THE PROCEEDINGS . FURTHERMORE , IT FOLLOWS FROM WHAT HAS BEEN SAID THAT IN THIS CASE THERE IS NO UNCERTAINTY WITH REGARD TO THE MEANING AND EFFECT OF THE JUDGMENT IN RELATION TO THE ISSUES WHICH WERE IN FACT DEALT WITH BY THE COURT ; AT MOST , THERE MAY BE SOME UNCERTAINTY WITH REGARD TO THE POSSIBLE APPLICATION OF CERTAIN PORTIONS OF THE JUDGMENT IN THE EVENT OF ANY AGGRAVATION OF THE SEQUELAE , A QUESTION ON WHICH THE COURT DID NOT RULE .

10 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS

11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 , IN PROCEEDINGS BROUGHT BY OFFICIALS THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS , WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ) REGARDING COSTS CONSIDERED BY THE COURT TO BE UNREASONABLE OR VEXATIOUS .

12 HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE , AND IN PARTICULAR THE FACT THAT IN THIS ACTION THE APPLICANT PUT FORWARD AN ARGUMENT DIRECTLY CONTRARY TO THE JUDGMENT OF 29 NOVEMBER 1984 , THE COURT CONSIDERS THAT THE ACTION IS UNREASONABLE AND THAT THE APPLICANT SHOULD THEREFORE BE ORDERED TO PAY ALL THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION IS DISMISSED AS INADMISSIBLE ;

( 2 ) THE APPLICANT IS ORDERED TO PAY ALL THE COSTS .