61974J0042

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1 . OFFICIALS - INVALIDITY - COMMITTEE - MEMBERS - DISAGREEMENT - DECISION TAKEN BY A MAJORITY

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 59 )

2 . OFFICIALS - INVALIDITY - COMMITTEE - OPINION - REFERENCE TO THE COMMITTEE - DISPUTES - NO NEW FACTOR

( STAFF REGULATIONS OF OFFICIALS, ARTICLE 59 ( 3 ))

1 . A MEMBER OF AN INVALIDITY COMMITTEE, APPOINTED BY ONE OF THE PARTIES, CANNOT, BY HIS REFUSAL TO SIGN, BLOCK THE PROCEDURE PROVIDED FOR IN ARTICLE 59 AND MAKE THE APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS IMPOSSIBLE .

THE STAFF REGULATIONS, BY PROVIDING FOR A COMMITTEE CONSISTING OF THREE MEMBERS, IMPLY THAT IN THE EVENT OF DISAGREEMENT THE COMMITTEE MAY DECIDE BY A MAJORITY .

THE CONCLUSIONS, REPRESENTING THE OPINION OF THE MAJORITY OF THE INVALIDITY COMMITTEE, MUST THEREFORE BE CONSIDERED VALID .

2 . THERE IS NO LONGER ANY DISPUTE WHICH CAN BE REFERRED TO AN INVALIDITY COMMITTEE FOR AN OPINION .

WHEN THE POINT BEING CONTESTED HAS ALREADY BEEN VALIDLY DECIDED BY THE INVALIDITY COMMITTEE AND THE MEDICAL CERTIFICATES PRODUCED BY THE APPLICANT REVEAL NO NEW FACTOR CONCERNING THE NATURE OF HIS ILLNESS OR HIS FITNESS FOR WORK .

IN JOINED CASES 42 AND 62/74

LUIGI VELLOZZI, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY EMILE DRAPPIER, ADVOCATE AT THE COURT D'APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 34B, RUE PHILIPPE II, APPLICANT,

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COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, GIORGIO PINCHERLE AND THOMAS F . CUSACK, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, P . LAMOUREUX, 4, BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE REFUSAL OF THE COMMISSION TO SET UP AN INVALIDITY COMMITTEE FOR THE APPLICATION OF ARTICLE 73 OF THE STAFF REGULATIONS OF OFFICIALS AND FOR THE ANNULMENT OF THE DECISION OF THE COMMISSION TO APPLY ARTICLE 60 OF THE STAFF REGULATIONS TO THE APPLICANT,

1 BY AN APPLICATION BROUGHT ON 15 JUNE 1974 IN CASE 42/74, THE APPLICANT REQUESTED THE COURT TO ANNUL A DECISION OF THE COMMISSION OF 23 APRIL 1974 WHEREBY IT REJECTED HIS REQUEST THAT IT SHOULD APPOINT AN INVALIDITY COMMITTEE WITH THE DUTY OF ESTABLISHING CAUSES OF HIS ILLNESS AND, IF NECESSARY, DETERMINING THE DEGREE OF INVALIDITY .

2 THIS REQUEST HAD BEEN MADE AFTER AN INVALIDITY COMMITTEE SET UP BY THE COMMISSION IN 1971 TO EXAMINE THE APPLICANT HAD SUBMITTED ITS CONCLUSIONS, THE VALIDITY OF WHICH THE APPLICANT, HOWEVER, CONTESTS .

3 BY APPLICATION BROUGHT ON 23 AUGUST 1974 IN CASE 62/74, THE APPLICANT REQUESTED THE COURT TO ANNUL THE DECISION OF THE COMMISSION OF 3 APRIL 1974 WHEREBY, IN ACCORDANCE WITH ARTICLE 60 OF THE STAFF REGULATIONS, ANY ABSENCE ON HIS PART WAS TO BE DEDUCTED FROM HIS ANNUAL LEAVE AND THEREAFTER SET AGAINST HIS SALARY .

4 THE REQUEST FOR ANNULMENT IS BASED IN PARTICULAR ON THE ALLEGED INAPPLICABILITY OF ARTICLE 60 OF THE STAFF REGULATIONS TO THE APPLICANT SINCE HE CLAIMS THAT HIS ABSENCE WAS NOT UNAUTHORIZED BUT WAS DUE TO SICKNESS .

5 THE COURT RULED THAT THE TWO CASES SHOULD BE JOINED FOR THE PROCEDURE AND JUDGMENT AND DID NOT GRANT THE REQUEST SUBMITTED BY THE COMMISSION IN CASE 42/74 FOR THE COURT TO GIVE A RULING ON THE OBJECTION OF INADMISSIBILITY WHICH THE COMMISSION RAISED WITHOUT THE COURT'S GOING INTO THE SUBSTANCE OF THE CASE .

6 THE TWO APPLICATIONS RAISE THE COMMON PROBLEM WHETHER THE COMMISSION, EITHER BY REJECTING THE APPLICANT'S REQUEST TO SET UP A NEW INVALIDITY COMMITTEE OR BY REFUSING TO CONSIDER THE APPLICANT'S ABSENCE AS JUSTIFIED BY SICKNESS, VALIDLY BASED ITS DECISION ON THE CONCLUSIONS SET OUT BY THE INVALIDITY COMMITTEE SET UP IN 1971 .

7 IN THIS CONNEXION, THE APPLICANT CLAIMS THAT THE CONCLUSION OF THE INVALIDITY COMMITTEE CANNOT BE CONSIDERED VALID SINCE THEY ARE NOT THE JOINT WORK OF THE THREE DOCTORS MEETING AS A COMMITTEE, AS THE MEMBER APPOINTED BY THE APPLICANT REFUSED TO SIGN THEM .

8 A MEMBER OF AN INVALIDITY COMMITTEE, APPOINTED BY ONE OF THE PARTIES, CANNOT, BY HIS REFUSAL TO SIGN, BLOCK THE PROCEDURE PROVIDED FOR IN ARTICLE 59 AND MAKE THE APPLICATION OF THE PROVISIONS OF THE STAFF REGULATIONS IMPOSSIBLE .

9 THE STAFF REGULATIONS, BY PROVIDING FOR A COMPOSITION OF THREE MEMBERS, IMPLY THAT IN THE EVENT OF DISAGREEMENT THE INVALIDITY COMMITTEE MAY DECIDE BY A MAJORITY .

10 THE CONCLUSIONS REPRESENTING THE OPINION OF THE MAJORITY OF THE INVALIDITY COMMITTEE, MUST THEREFORE BE CONSIDERED VALID WITHIN THE MEANING OF THE STAFF REGULATIONS .

11 THE APPLICANT CLAIMS MOREOVER IN CASE 62/74 THAT THE CONCLUSIONS REACHED IN 1973 CANNOT CONTAIN AN OPINION ON A DISPUTE WHICH AROSE IN 1974 .

12 IN THIS CONNEXION, THE TERMS OF THE DUTIES WITH WHICH THE INVALIDITY COMMITTEE WAS ENTRUSTED AND THE IMPLICATION OF ITS FINDINGS, TOGETHER WITH THE SUBJECT-MATTER OF THE DISPUTE MUST BE KEPT IN VIEW .

13 THE INVALIDITY COMMITTEE'S TERMS OF REFERENCE WERE INTER ALIA TO DECIDE 'WHETHER THE PERSON CONCERNED IS SUFFERING FROM PARTIAL PERMANENT INVALIDITY WHICH RENDERS HIM CAPABLE OR INCAPABLE OF PERFORMING THE DUTIES WHICH CORRESPOND TO A POST IN HIS CAREER BRACKET '.

14 THE COMMITTEE WAS FULLY ACQUAINTED WITH THE DUTIES WHICH THE APPLICANT WAS CALLED UPON TO PERFORM .

15 THE INVALIDITY COMMITTEE, IN ITS CONCLUSIONS OF 31 MARCH 1973, ASSESSED THE PARTIAL PERMANENT INVALIDITY OF THE APPLICANT AT 10 PER CENT .

16 THE TWO DOCTORS WHO SIGNED THE CONCLUSIONS DECLARED IN LETTERS OF 14 AND 16 JUNE 1973 THAT IN VIEW OF THE EXAMINATIONS WHICH HAD BEEN CARRIED OUT, THE APPLICANT 'IS FIT TO PERFORM THE DUTIES CORRESPONDING TO HIS GRADE '.

17 BY LETTER OF 14 AUGUST 1973 SIGNED BY THE DIRECTOR-GENERAL FOR PERSONNEL OF THE COMMISSION, THE CONCLUSIONS OF THE INVALIDITY COMMITTEE AND THE LETTER OF 16 JUNE 1973 MENTIONED ABOVE, WERE SENT TO THE APPLICANT .

18 ON THE OTHER HAND, NONE OF THE MEDICAL CERTIFICATES PRODUCED BY THE APPLICANT TO JUSTIFY HIS ABSENCE FOR LONG PERIODS SHOWED A DIAGNOSIS OTHER THAN THAT WHICH LED TO HIS CASE BEING REFERRED TO THE INVALIDITY COMMITTEE AND WHICH, IN THE OPINION OF TWO MEMBERS OF THE COMMITTEE, WAS NOT SUCH AS TO PREVENT HIM FROM PERFORMING THE DUTIES ASSIGNED TO HIM .

19 MOREOVER, THE MEMBERS OF THE MEDICAL SERVICE OF THE COMMISSION, AFTER EXAMINING THE APPLICANT, REACHED THE VERY SAME CONCLUSIONS AS THE INVALIDITY COMMITTEE .

20 IT FOLLOWS FROM THIS THAT THE APPLICANT'S ABSENCES CANNOT BE CONSIDERED JUSTIFIED BY SICKNESS, SO THAT THE COMMISSION WAS RIGHT TO CONSIDER THEM UNAUTHORIZED FOR THE PURPOSE OF ARTICLE 60 OF THE STAFF REGULATIONS .

21 HOWEVER, THE APPLICANT CLAIMS IN ADDITION THAT IN ANY CASE THE DECISION OF THE COMMISSION TO ACT IN ACCORDANCE WITH ARTICLE 60 IS INVALID BECAUSE THE MATTER WAS NOT REFERRED TO THE INVALIDITY COMMITTEE FOR ITS OPINION AS PROVIDED BY ARTICLE 59 ( 3 ) OF THE STAFF REGULATIONS FOR CASES 'IN DISPUTE '.

22 HE SAYS THAT THERE IS A DISPUTE WITHIN THE MEANING OF THIS PROVISION WHENEVER THE COMMISSION DOES NOT ACCEPT A MEDICAL CERTIFICATE CERTIFYING THE OFFICIAL'S ILLNESS WHICH HAS BEEN PRODUCED IN ACCORDANCE WITH THE SECOND SUBPARAGRAPH OF ARTICLE 59 ( 1 ).

23 THE COMMISSION FOR ITS PART EXPRESSED RESERVATIONS AS TO WHETHER SUCH AN INTERPRETATION OF ARTICLE 59 ( 3 ) IS WELL-FOUNDED AND CLAIMED IN PARTICULAR THAT THIS PROVISION ONLY APPEARS TO APPLY TO DISPUTES ABOUT COMPULSORY LEAVE .

24 WHATEVER THE CORRECT INTERPRETATION OF THE PROVISION IN QUESTION, ITS APPLICATION NECESSARILY PRESUPPOSES THE EXISTENCE OF A DISPUTE WHICH HAS NOT BEEN FINALLY RESOLVED .

25 IN THE PRESENT CASE, THE POINT BEING CONTESTED WAS ALREADY VALIDLY DECIDED BY THE INVALIDITY COMMITTEE, SINCE THE MEDICAL CERTIFICATES PRODUCED BY THE APPLICANT DID NOT REVEAL ANY NEW FACTOR CONCERNING THE NATURE OF HIS ILLNESS OR HIS FITNESS FOR WORK .

26 IT FOLLOWS FROM THIS THAT THERE WAS NO LONGER ANY DISPUTE WHICH COULD HAVE BEEN REFERRED TO THE INVALIDITY COMMITTEE FOR AN OPINION .

27 IT FOLLOWS FROM ALL THE FOREGOING THAT NEITHER THE REFUSAL OF THE COMMISSION TO SET UP A NEW INVALIDITY COMMITTEE NOR ITS DECISION ON THE APPLICATION OF ARTICLE 60 OF THE STAFF REGULATIONS TO THE APPLICANT CONTAIN SUCH DEFECTS AS TO ENTAIL THEIR ANNULMENT AND THAT THE TWO APPLICATIONS MUST THEREFORE BE DISMISSED .

28 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

29 THE APPLICANT HAS FAILED IN HIS APPLICATIONS .

30 HOWEVER, UNDER ARTICLE 70 OF THE RULES OF PROCEDURE, COSTS INCURRED BY INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE EUROPEAN COMMUNITIES SHALL BE BORNE BY THE FORMER .

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATIONS IN CASES 42 AND 62/74 .

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .