JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

3 June 1997

Case T-196/95

H

v

Commission of the European Communities

‛Officials — Compulsory retirement — Establishment and work of the Invalidity Committee — Articles 53 and 59(2) of the Staff Regulations — Notification of the decision’

Full text in French   II - 403

Application for:

annulment of the Invalidity Committee's opinion of 13 September 1994, the Commission's decision of 27 September 1994 retiring the applicant and the Commission's decision of 27 June 1995 rejecting the complaint lodged by the applicant against that decision.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant, a former Grade B 3 official of the Commission was required to take sick-leave by decision of 17 March 1993 of the Commission's Medical Officer pursuant to Article 59(2) of the Staff Regulations of officials of the European Communities.

On 15 June 1993 she lodged a complaint against that decision.

By letter dated 17 June 1993, sent by ordinary mail to the applicant's address in Brussels, the Commission informed her of its decision to refer the case to the Invalidity Committee in accordance with Article 59(3) of the Staff Regulations and asked her to appoint a doctor of her choice to represent her on that Invalidity Committee. That request was repeated in a letter dated 15 July 1993, also sent by ordinary mail.

Since the applicant had not appointed a doctor of her choice, by letter dated 17 December 1993 the Commission asked the President of the Court of Justice to appoint a doctor in accordance with the second paragraph of Article 7 of Annex II to the Staff Regulations.

By application lodged on 14 January 1994 at the Registry of the Court of First Instance, the applicant sought the annulment of the decision of 17 March 1993 (Case T-8/94). On 29 March 1994 the Commission requested that proceedings in Case T-8/94 be stayed on the ground that the Invalidity Committee had not yet delivered the opinion provided for by Article 59(3) of the Staff Regulations. By order of 2 June 1994 the Court of First Instance stayed proceedings in Case T-8/94 until the Invalidity Committee had delivered its opinion.

By letter of 20 June 1994 the President of the Court of Justice appointed a doctor to represent the applicant within the Invalidity Committee. By letter of the same date, sent by ordinary mail, the doctor appointed by the Commission informed the applicant of the establishment and composition of the Invalidity Committee.

On 13 September 1994 the Invalidity Committee concluded that the applicant ‘[was] suffering from total permanent invalidity preventing her from performing the duties corresponding to a post in her career bracket and that, for that reason, it [was] obliged to suspend her employment with the Commission’. By decision of 27 September 1994 the appointing authority, referring to the opinion of the Invalidity Committee, decided to retire the applicant with effect from 1 October 1994 in accordance with Article 53 of the Staff Regulations (the appointing authority's decision or the contested decision). According to the Commission, a letter, accompanied by the contested decision and containing an acknowledgement of receipt, was delivered that day to the applicant's private address by officials of the security office. Since they did not meet the applicant, the acknowledgement of receipt was not signed by her.

Admissibility of the action

The time-limits laid down by Articles 90 and 91 of the Staff Regulations for submitting complaints and commencing actions are a matter of public policy and cannot be left to the discretion of the parties (paragraph 28).

See: T-113/95 Mancini v Commission [1996] ECRSC II-543, para. 20

The application was lodged within three months from the date of notification of the decision rejecting her complaint, in accordance with Article 91(3) of the Staff Regulations (paragraph 29).

It is the responsibility of the party alleging that an action is out of time, having regard to the time-limits laid down by the Staff Regulations, to prove the date on which the contested decision was notified (paragraph 30).

See: T-94/92 X v Commission [1994] ECRSC II-481, para. 22

The purpose of notification is to enable the person concerned to have effective knowledge of the existence of the decision and the grounds by which the administration justifies it. In order for a decision to be duly notified for the purposes of the Staff Regulations it must have been communicated to its addressee and the latter must be in a position to take cognizance of it (paragraph 31).

See: 5/76 Jänsch v Commission [1976] ECR 1027, para. 10; T-50/92 Fioroni v Parliament [1993] ECR II-555, para. 16; Xv Commission, cited above, para. 24

The expression ‘the date on which the [person concerned] received such notification’ must be interpreted as meaning that the time-limit laid down by Article 90(2) of the Staff Regulations runs only from the date on which the official received notification of the terms of the decision and the reasoning on which it was based (paragraph 35).

The application for annulment of the decision of 27 June 1995 rejecting the applicant's complaint

Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only when this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought. An action relating to such a rejection must therefore be treated as having been brought in respect of the decision adversely affecting the official namely, in the present case, the appointing authority's decision (paragraph 40).

See 33/79 and 75/79 Kühner v Commission [1980] ECR 1677, para 9; 371/87 Progoulis v Commission [1988] ECR 3081, para. 17

The application for annulment of the Invalidity Committee's opinion

Preparatory acts, such as the opinion of the Invalidity Committee delivered in the context of the procedure for compulsory retirement pursuant to Article 53 of the Staff Regulations, cannot be the subject of an action for annulment. It is only in connection with an action brought against the decision taken at the conclusion of this procedure that the applicant can contest the legality of earlier steps which are closely linked to it (paragraphs 48 and 49).

See: 78/87 and 220/87 Sanlarelli\Commission [1988] ECR 2699, para. 13; T-586/93 Kolzonis v ESC [1995] ECR II-665, para. 28

The application for annulment of the appointing authority's decision

The plea alleging infringement of Article 59(2) of the Staff Regulations

The examination provided for in Article 59(2) of the Staff Regulations, concerning the requirement that an official take leave, need not necessarily involve a physical medical examination but may, depending on the circumstances, involve only a psychological examination consisting only of interviews (paragraph 62).

The plea alleging irregularities in the establishment and work of the Invalidity Committee

Although judicial review may not extend to medical appraisals properly so-called of the Invalidity Committee, which must be considered definitive when there is no irregularity in the conditions in which they are made, it may nevertheless extend to questions concerning the constitution and proper functioning of the Committee (paragraph 75).

See: T-165/89 Plug v Commission [1992] ECR II-367, para. 75

As regards its constitution, the appointment of a doctor to represent an official on an Invalidity Committee, which the President of the Court is required to do pursuant to the second paragraph of Article 7 of Annex II to the Staff Regulations if the official concerned fails so to do, constitutes an administrative act and cannot therefore have a contentious nature in respect of which legal proceedings may be brought (paragraph 80).

Furthermore, it is for the Committee to decide to what extent account should be taken of previous medical reports. The fact that the Invalidity Committee reached a different conclusion from that expressed by one or other of the doctors who had previously examined the applicant is not in itself sufficient to cast doubt on the legality of the Invalidity Committee's conclusions (paragraph 86).

See T-43/89 RV Gill v Commission [1993] ECR II-303, para. 39

Finally, the question whether the Invalidity Committee was able to take a decision on the applicant's state of health in the light only of the documents placed on her file^even though she refused to appear before it, falls within the power of assessment enjoyed by the members of the Committee in medical matters (paragraph 87).

The plea alleging infringement of Article 25 of the Staff Regulations

The obligation to give reasons for an opinion of the Invalidity Committee must be reconciled with the requirements of medical confidentiality which - save in exceptional circumstances - leave the individual doctor to decide whether to communicate to those whom he is treating or examining the nature of the condition from which they may be suffering. That is done by enabling the person concerned to request and ensure that the reasons for his being declared unfit are notified to a doctor of his own choice (paragraph 95).

See: 121/76 Moli v Commission [1977] ECR 1971, paras 14 and 15; T-10/93 A v Commission [1994] ECR II-179, para. 35

Operative part:

The application is dismissed as inadmissible in so far as it seeks the annulment, first, of the decision of 27 June 1995 rejecting the complaint of 6 April 1995 and, second, the Invalidity Committee's opinion of 13 September 1994.

The remainder of the application is dismissed as unfounded.

The parties are each to bear their own costs.