61981J0257

1 . OFFICIALS - COMPENSATION FOR ACCIDENTS AND OCCUPATIONAL DISEASES - INVALIDITY PENSION - DIFFERENT BENEFITS - SEPARATE PROCEDURES

( STAFF REGULATIONS OF OFFICIALS , ARTICLES 73 AND 78 )

2 . OFFICIALS - INVALIDITY PENSION - DETERMINATION OF THE AMOUNT OF THE PENSION UNDER THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS - LAWFULNESS - CONDITIONS

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 78 PARAGRAPHS 2 AND 3 )

1 . A COMPARISON OF ARTICLES 73 AND 78 OF THE STAFF REGULATIONS OF OFFICIALS INDICATES THAT THE BENEFITS AVAILABLE UNDER THE TWO PROVISIONS ARE DIFFERENT AND INDEPENDENT OF ONE ANOTHER . THAT VIEW IS CONFIRMED BY ARTICLE 25 OF THE RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE , WHICH STATES THAT RECOGNITION OF PARTIAL OR EVEN TOTAL PERMANENT INVALIDITY PURSUANT TO THOSE RULES ' ' SHALL IN NO WAY PREJUDICE APPLICATION OF ARTICLE 78 OF THE STAFF REGULATIONS AND VICE VERSA ' ' .

IT THEREFORE FOLLOWS THAT FINDINGS AS TO THE EXISTENCE OF TOTAL PERMANENT INVALIDITY PREVENTING THE OFFICIAL FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET , WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS , AND AS TO THE CAUSE OF SUCH INVALIDITY SHOULD BE MADE IN ACCORDANCE NOT WITH THE INSURANCE RULES BUT WITH THE PROCEDURE LAID DOWN IN THE RULES RELATING TO THE PENSION SCHEME , IN THIS CASE ANNEX VIII TO THE STAFF REGULATIONS .

2 . IT IS FOR THE OFFICIAL TO REQUEST THE BENEFIT OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS , AND IN THE ABSENCE OF SUCH A REQUEST THE ADMINISTRATION NEED NOT , IN THE COURSE OF THE PROCEDURE FOR RETIREMENT ON THE GROUND OF INVALIDITY , CAUSE TO BE EXAMINED AND DETERMINE , AS A MATTER OF COURSE , THE CAUSE OF THE INVALIDITY .

CONSEQUENTLY , THE ADMINISTRATION CANNOT BE CRITICIZED FOR DETERMINING THE RETIREMENT PENSION OF AN OFFICIAL IN ACCORDANCE WITH THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS , WHERE THE OFFICIAL IN QUESTION DID NOT REQUEST A DECLARATION THAT HIS INVALIDITY HAD BEEN CAUSED BY AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF THE SECOND PARAGRAPH OF THAT ARTICLE .

IN CASE 257/81

K ., A FORMER PRINCIPAL ADMINISTRATOR AT THE COUNCIL OF THE EUROPEAN COMMUNITIES , RESIDENT IN RIXENSART , BELGIUM , REPRESENTED BY GEORGES VANDERSANDEN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JANINE BIVER ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY R . O . DALCQ OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DOUGLAS FONTEIN , DIRECTOR OF LEGAL AFFAIRS AT THE EUROPEAN INVESTMENT BANK ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE SECRETARY GENERAL OF THE COUNCIL , DATED 13 JULY 1981 , REFUSING THE APPLICANT THE BENEFIT OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 21 SEPTEMBER 1981 , K ., A FORMER PRINCIPAL ADMINISTRATOR OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , BROUGHT AN ACTION FOR THE ANNULMENT OF THE DECISION OF THE SECRETARY GENERAL OF THE COUNCIL DATED 13 JULY 1981 REFUSING HIM THE BENEFIT OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS OF OFFICIALS OF THE EUROPEAN COMMUNITIES . ACCORDING TO THAT PROVISION , THE RATE OF THE INVALIDITY PENSION FOR AN OFFICIAL SUFFERING FROM TOTAL PERMANENT INVALIDITY PREVENTING HIM FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET IS TO BE 70% OF THE BASIC SALARY OF THE OFFICIAL WHERE THE INVALIDITY ARISES , INTER ALIA , FROM AN OCCUPATIONAL DISEASE .

2 THE APPLICANT , WHO WAS A PRINCIPAL ADMINISTRATOR ( GRADE A 5 ) AT THE COUNCIL FROM NOVEMBER 1973 , UNDERWENT MEDICAL TREATMENT OF VARIOUS TYPES FROM 1977 , INCLUDING NEUROLOGICAL TREATMENT , AS WELL AS A NUMBER OF OPERATIONS . IN VIEW OF THE FACT THAT HE HAD HAD 393 DAYS OF SICK LEAVE BETWEEN 10 JANUARY 1977 AND 11 JANUARY 1980 , THE COUNCIL DECIDED , ON 17 JANUARY 1980 , TO REFER THE MATTER TO THE INVALIDITY COMMITTEE UNDER THE FOURTH SUBPARAGRAPH OF ARTICLE 59 ( 1 ) OF THE STAFF REGULATIONS .

3 ON 24 OCTOBER 1980 THE INVALIDITY COMMITTEE STATED , AFTER EXAMINING THE MEDICAL FILE AND AFTER A SPECIALIZED NEUROLOGICAL EXAMINATION , THAT THE APPLICANT WAS SUFFERING FROM ' ' TOTAL PERMANENT INVALIDITY PREVENTING HIM FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET ' ' .

4 BY A DECISION DATED 28 NOVEMBER 1980 THE SECRETARY GENERAL OF THE COUNCIL RETIRED THE APPLICANT WITH EFFECT FROM 1 DECEMBER 1980 IN ACCORDANCE WITH ARTICLE 53 OF THE STAFF REGULATIONS .

5 ON 10 FEBRUARY 1981 THE APPLICANT SUBMITTED A COMPLAINT UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , CLAIMING THAT HIS PENSION SHOULD BE FIXED AT 70% OF HIS BASIC SALARY IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS BECAUSE THE PROBLEMS WHICH HAD LED TO THE RECOGNITION OF HIS INVALIDITY HAD ARISEN IN CONNECTION WITH THE PERFORMANCE OF HIS DUTIES .

6 THAT COMPLAINT WAS REJECTED BY THE COUNCIL IN ITS DECISION OF 13 JULY 1981 - WHICH IS THE SUBJECT OF THE PRESENT APPLICATION - ON THE GROUND THAT THE INVALIDITY COMMITTEE HAD NOT DECLARED THAT THE TOTAL PERMANENT INVALIDITY OF THE APPLICANT HAD ARISEN FROM AN OCCUPATIONAL DISEASE AND THEREFORE THE AMOUNT OF HIS INVALIDITY PENSION HAD BEEN FIXED IN ACCORDANCE WITH THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS . THAT PROVISION STATES THAT WHERE THE INVALIDITY IS DUE TO SOME CAUSE OTHER THAN THOSE SPECIFIED IN THE SECOND PARAGRAPH OF ARTICLE 78 THE INVALIDITY PENSION IS TO BE EQUAL TO THE RETIREMENT PENSION TO WHICH THE OFFICIAL WOULD HAVE BEEN ENTITLED AT THE AGE OF 65 YEARS IF HE HAD REMAINED IN THE SERVICE UNTIL THAT AGE .

7 IN VIEW OF THE APPLICATION TO THE COURT AND IN THE HOPE OF DISCOVERING A SOLUTION QUICKLY , THE COUNCIL TWICE REFERRED THE MATTER BACK TO THE INVALIDITY COMMITTEE . IN A SECOND REPORT DATED 21 DECEMBER 1981 THE COMMITTEE STATED THAT THERE WAS IN FACT A CAUSAL RELATIONSHIP BETWEEN THE WORK OR WORKING CONDITIONS AND THE DETERIORATION IN THE APPLICANT ' S STATE OF HEALTH BUT THAT HIS INVALIDITY HAD NOT ARISEN FROM AN OCCUPATIONAL DISEASE .

8 THE THIRD REPORT DATED 25 JANUARY 1982 , HOWEVER , REVEALED A DIFFERENCE OF OPINION AMONGST THE DOCTORS . WHILE TWO MEMBERS OF THE COMMITTEE CONSIDERED THAT THE APPLICANT ' S INVALIDITY HAD NOT RESULTED FROM AN OCCUPATIONAL DISEASE , THE THIRD MEMBER STATED THAT THE APPLICANT WAS NOT SUFFERING FROM AN OCCUPATIONAL DISEASE CONTAINED IN THE LIST OF OCCUPATIONAL DISEASES GIVING RISE TO COMPENSATION ( STANDARD LIST 503 ). FURTHERMORE , IT IS CLEAR FROM THE EVIDENCE BEFORE THE COURT THAT TWO VERSIONS OF THIS REPORT WERE WRITTEN AND THAT THE FIRST , ALSO SIGNED ON 25 JANUARY 1982 , BUT SUBSEQUENTLY WITHDRAWN , STATED THAT , IN THE UNANIMOUS OPINION OF ALL THREE DOCTORS , ALTHOUGH THERE WAS A RELATIONSHIP BETWEEN THE APPLICANT ' S WORKING CONDITIONS AND THE DETERIORATION IN HIS STATE OF HEALTH , THE INVALIDITY DID NOT ARISE FROM AN OCCUPATIONAL DISEASE CONTAINED IN THE ABOVE-MENTIONED LIST OF SUCH DISEASES .

9 THE COUNCIL SUBMITS FIRST THAT THE APPLICANT HAS NO RIGHT TO BRING AN ACTION SINCE HE DID NOT FOLLOW THE PROPER PROCEDURE FOR ESTABLISHING THE EXISTENCE OF AN OCCUPATIONAL DISEASE IN ACCORDANCE WITH 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 INSURANCE RULES ' ' ). ACCORDING TO THOSE RULES , THE OFFICIAL MUST SUBMIT A STATEMENT CONCERNING THE DISEASE TO THE INSTITUTION WITHIN A REASONABLE PERIOD FOLLOWING THE ONSET OF THEREOF OR THE DATE ON WHICH IT WAS DIAGNOSED FOR THE FIRST TIME . THE INSTITUTION WILL THEN CONDUCT A MEDICAL INQUIRY AND NOTIFY ITS DRAFT DECISION TO THE OFFICIAL WHO MAY THEN REQUEST THE OPINION OF AN AD HOC MEDICAL COMMITTEE .

10 THAT SUBMISSION MUST BE REJECTED SINCE THE INSURANCE RULES DO NOT APPLY TO THIS CASE . IN FACT THEY WERE ADOPTED TO GIVE EFFECT TO ARTICLE 73 OF THE STAFF REGULATIONS , WHICH RELATES TO INSURANCE AGAINST THE RISK OF OCCUPATIONAL DISEASE AND OF ACCIDENT , WHEREAS THE PRESENT PROCEEDINGS CONCERN ARTICLE 78 OF THE STAFF REGULATIONS , RELATING TO INVALIDITY PENSIONS , WHICH ARE GOVERNED BY THE PENSION PROVISIONS CONTAINED IN CHAPTER 3 ( ' ' PENSIONS ' ' ) OF TITLE V OF THE STAFF REGULATIONS . AS THE COURT STATED IN ITS JUDGMENT OF 15 JANUARY 1981 ( CASE 731/79 B . V EUROPEAN PARLIAMENT ( 1981 ) ECR 107 ), A COMPARISON OF ARTICLES 73 AND 78 OF THE STAFF REGULATIONS INDICATES THAT THE BENEFITS AVAILABLE UNDER THE TWO PROVISIONS ARE DIFFERENT AND INDEPENDENT OF ONE ANOTHER . THAT VIEW IS CONFIRMED BY ARTICLE 25 OF THE INSURANCE RULES , WHICH STATES THAT RECOGNITION OF PARTIAL OR EVEN TOTAL PERMANENT INVALIDITY PURSUANT TO THOSE RULES ' ' SHALL IN NO WAY PREJUDICE APPLICATION OF ARTICLE 78 OF THE STAFF REGULATIONS AND VICE VERSA ' ' .

11 IT THEREFORE FOLLOWS THAT FINDINGS AS TO THE EXISTENCE OF TOTAL PERMANENT INVALIDITY PREVENTING THE OFFICIAL FROM PERFORMING THE DUTIES CORRESPONDING TO A POST IN HIS CAREER BRACKET AND AS TO THE CAUSE OF SUCH INVALIDITY SHOULD BE MADE IN ACCORDANCE NOT WITH THE INSURANCE RULES BUT WITH THE PROCEDURE LAID DOWN IN THE RULES RELATING TO THE PENSION SCHEME , IN THIS CASE ANNEX VIII TO THE STAFF REGULATIONS ( ' ' PENSION SCHEME ' ' ). ARTICLE 13 THEREOF MAKES IT QUITE CLEAR THAT IT IS FOR THE INVALIDITY COMMITTEE TO MAKE THE FINDINGS IN QUESTION .

12 HOWEVER , THE COUNCIL ' S ARGUMENT MUST BE UPHELD INASMUCH AS IT IS FOR THE OFFICIAL TO REQUEST THE BENEFIT OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS AND IN THE ABSENCE OF SUCH A REQUEST THE ADMINISTRATION NEED NOT , IN THE COURSE OF THE PROCEDURE FOR RETIREMENT ON THE GROUND OF INVALIDITY CAUSE TO BE EXAMINED AND DETERMINE AS A MATTER OF COURSE THE CAUSE OF THE INVALIDITY .

13 CONSEQUENTLY , THE COUNCIL CANNOT BE CRITICIZED FOR HAVING INITIALLY FIXED THE APPLICANT ' S RETIREMENT PENSION , ON THE BASIS OF ITS DECISION OF 28 NOVEMBER 1980 , IN ACCORDANCE WITH THE THIRD PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS , SINCE THE APPLICANT HAD NOT REQUESTED A DECLARATION THAT HIS INVALIDITY HAD BEEN CAUSED BY AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF THE SECOND PARAGRAPH OF THAT ARTICLE .

14 NEVERTHELESS , THE COUNCIL WAS NOT ENTITLED TO REJECT HIS COMPLAINT , AS IT DID IN ITS DECISION OF 13 JULY 1981 , WITHOUT CONSIDERING THIS QUESTION , BECAUSE THE APPLICANT HAD , BY THAT VERY COMPLAINT , REQUESTED THAT HIS PENSION SHOULD BE FIXED IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 78 , CLAIMING THAT THE PROBLEMS WHICH HAD LED TO THE RECOGNITION OF HIS INVALIDITY HAD ARISEN IN THE COURSE OF THE PERFORMANCE OF HIS DUTIES .

15 IN SUCH CIRCUMSTANCES THE ADMINISTRATION SHOULD HAVE CONSIDERED AND DETERMINED IN THE PROPER MANNER WHETHER OR NOT THE APPLICANT ' S INVALIDITY HAD ARISEN FROM AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF THAT PROVISION AND , IF APPROPRIATE , SHOULD HAVE ACCORDED HIM THE PENSION RATE WHICH HE WAS SEEKING . SUCH A PROCEDURE WAS ALL THE MORE NECESSARY IN THE PRESENT CASE SINCE IT IS CLEAR FROM THE OBSERVATIONS OF THE COUNCIL ITSELF THAT , AT THIS STAGE , THE INVALIDITY COMMITTEE HAD NOT YET CONSIDERED THE CAUSE OF THE INVALIDITY .

16 BOTH PARTIES HAVE RELIED IN SUPPORT OF THEIR CONCLUSIONS ON THE SUBSEQUENT REPORTS OF THE INVALIDITY COMMITTEE DATED 21 DECEMBER 1981 AND 25 JANUARY 1982 . IN SUCH CIRCUMSTANCES IT IS APPROPRIATE TO EXAMINE WHETHER THOSE REPORTS VALIDATE THE CONTESTED COUNCIL DECISION BY PROVIDING SUFFICIENT LEGAL EVIDENCE THAT THE APPLICANT ' S INVALIDITY DID NOT IN FACT ARISE FROM AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 78 OF THE STAFF REGULATIONS .

17 THAT QUESTION MUST BE ANSWERED IN THE NEGATIVE . WHILST THE REPORT DATED 21 DECEMBER 1981 DOES NOT USE THE TERM ' ' OCCUPATIONAL DISEASE ' ' , IT DOES RECOGNIZE THE EXISTENCE OF A CAUSAL RELATIONSHIP BETWEEN THE WORK OR WORKING CONDITIONS AND THE DETERIORATION IN THE APPLICANT ' S STATE OF HEALTH , AS DOES , MOREOVER , THE FIRST VERSION OF THE REPORT OF 25 JANUARY 1982 . ALTHOUGH , ON THE OTHER HAND , THE DEFINITIVE VERSION OF THE LATTER REPORT INDICATES THAT TWO DOCTORS , THAT IS TO SAY A MAJORITY , CONCLUDED THAT THE APPLICANT ' S INVALIDITY DID NOT RESULT FROM AN OCCUPATIONAL DISEASE , IT REMAINS TO BE SAID THAT THAT VERSION CONTAINS NO REASONS ENABLING THE READER TO ASSESS THE CONSIDERATIONS ON WHICH THAT CONCLUSION WAS BASED NOR ANY EXPLANATION AS TO THE INCONSISTENCY BETWEEN THAT CONCLUSION AND THE CONCLUSION SET OUT IN THE SECOND REPORT AND IN THE FIRST VERSION OF THE THIRD REPORT .

18 FURTHERMORE , THE FACT THAT IN THE SECOND VERSION OF THE LATTER REPORT ONE OF THE DOCTORS REFERS , IN A DISSENTING OPINION , TO THE LIST OF RECOGNIZED OCCUPATIONAL DISEASES , WHICH IS NOT PERTINENT TO THIS CASE , GIVES RISE TO DOUBT WHETHER THE INVALIDITY COMMITTEE HAD A SUFFICIENTLY CLEAR IDEA OF ITS FUNCTION , ALL THE MORE SO SINCE THE COUNCIL ITSELF HAS STATED IN ITS SUBMISSIONS THAT THE COMMITTEE MERELY RECEIVED AN UNOFFICIAL REQUEST FOR CLARIFICATION AND THAT IT WAS NOT EMPOWERED TO DECIDE UPON THE EXISTENCE OF AN OCCUPATIONAL DISEASE .

19 IT FOLLOWS FROM THE FOREGOING THAT THE DECISION OF THE SECRETARY GENERAL OF THE COUNCIL , DATED 13 JULY 1981 , REJECTING THE APPLICANT ' S COMPLAINT , IS TAINTED BY PROCEDURAL ILLEGALITY AND SHOULD THEREFORE BE ANNULLED .

20 IN THESE CIRCUMSTANCES THE COUNCIL MUST , BEFORE COMING TO A DECISION , REFER THE MATTER ONCE MORE TO THE INVALIDITY COMMITTEE , WHICH MUST VERIFY WHETHER THE APPLICANT ' S PATHOLOGICAL CONDITION HAS A SUFFICIENTLY DIRECT RELATIONSHIP WITH A SPECIFIC AND NORMAL RISK INHERENT IN THE DUTIES WHICH HE PERFORMED .

COSTS

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COUNCIL HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . ANNULS THE DECISION OF THE SECRETARY GENERAL OF THE COUNCIL DATED 13 JULY 1981 REJECTING THE APPLICANT ' S COMPLAINT ;

2.ORDERS THE COUNCIL TO PAY THE WHOLE OF THE COSTS .