JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)

28 September 2011 (*)

(Civil service – Social security – Serious illness – Article 72 of the Staff Regulations – Extension of sickness cover under the JSIS – Criterion of absence of insurance under another scheme)

In Case F-23/10,

ACTION brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

Finola Allen, residing in Armacão de Pera (Portugal), represented by L. Levi and A. Blot, lawyers,

applicant,

v

European Commission, represented by J. Currall and D. Martin, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL
(Third Chamber),

composed of P. Mahoney (Rapporteur), President, H. Kreppel and S. Van Raepenbusch, Judges,

Registrar: J. Tomac, Administrator,

having regard to the written procedure and further to the hearing on 29 March 2011,

gives the following

Judgment

1        By application received at the Registry of the Tribunal on 16 April 2010 by fax (the original being lodged on 21 April 2010), Ms Allen brought the present action, seeking in essence annulment of the decisions of the European Commission refusing to recognise the existence of a serious illness and refusing to extend sickness cover under the Joint Sickness Insurance Scheme of the institutions of the European Union (‘JSIS’).

 Legal context

2        Article 72 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘1.      An official, his spouse, where such spouse is not eligible for benefits of the same nature and of the same level by virtue of any other legal provision or regulations, his children and other dependants within the meaning of Article 2 of Annex VII are insured against sickness up to 80% of the expenditure incurred subject to rules drawn up by agreement between the institutions of the Union after consulting the Staff Regulations Committee. This rate shall be increased to 85% for the following services: consultations and visits, surgical operations, hospitalisation, pharmaceutical products, radiology, analyses, laboratory tests and prostheses on medical prescription with the exception of dental prostheses. It shall be increased to 100% in cases of tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognised by the appointing authority as of comparable seriousness, and for early detection screening and in cases of confinement. …

The institutions may, under the rules referred to in the first subparagraph, confer on one of their number the power to lay down the rules governing the reimbursement of expenses in accordance with the procedure laid down in Article 110.

…

1b. Where the ex-spouse of an official, a child who ceases to be an official’s dependant or a person who ceases to be treated as a dependent child within the meaning of Article 2 of Annex VII to the Staff Regulations can provide evidence that he or she is not in gainful employment, he or she may continue for a maximum of one year to be insured against sickness as provided for in paragraph 1, in his or her capacity as insured persons covered under that official’s insurance; this cover shall not give rise to the levy of a contribution. This one-year period shall commence on the date of the decree absolute of divorce or of the loss of status of dependent child or of person treated as a dependent child.

…’

3        Under Article 15(1) of the Joint Rules on Sickness Insurance for Officials of the European Union (‘the Joint Rules’) provided for in Article 72 of the Staff Regulations:

‘Divorced spouses of members or their recognised partners whose non-marital partnership status is dissolved may be covered under [the JSIS] for a maximum of twelve months from the date of decree absolute of the divorce or dissolution of the partnership provided they are not in gainful employment.’

4        Article 20(6) of the Joint Rules provides:

‘In accordance with Article 72(1) of the Staff Regulations, costs shall be reimbursed in full in the case of tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognised by the appointing authority as of comparable seriousness after consulting the [m]edical [o]fficer of the [s]ettlements [o]ffice.

The [m]edical [o]fficer’s opinion shall be delivered on the basis of general criteria laid down in the general implementing provisions after consultation of the [m]edical [c]ouncil.

…’

5        Under Article 35 of the Joint Rules:

‘1. All persons referred to in these Rules shall be entitled to remedy as provided for in Title VII of the Staff Regulations.

2. Before taking a decision on a complaint introduced on the basis of Article 90(2) of the Staff Regulations the appointing authority or, as the case may be, the [a]dministrative [b]oard shall request the opinion of the [m]anagement [c]ommittee.

The [m]anagement [c]ommittee may instruct its Chairman to make further investigations. Where the point at issue is of a medical nature, the [m]anagement [c]ommittee may seek expert medical advice before giving its opinion. The cost of the expert opinion shall be borne by the [JSIS].

…’

6        Article 41 of the Joint Rules provides:

‘The [m]anagement [c]ommittee shall be assisted by a [m]edical [c]ouncil composed of a medical officer from each institution and the medical officers from each [s]ettlements [o]ffice.

The [m]edical [c]ouncil may be consulted by the [m]anagement [c]ommittee or the [c]entral [o]ffice concerning any matter of a medical nature which arises in connection with [the JSIS]. It shall meet at the request of the [m]anagement [c]ommittee, of the [c]entral [o]ffice or of the medical officers of the [s]ettlements [o]ffices and shall deliver its opinion within such time as may be specified.’

7        On 2 July 2007, the Commission adopted a decision laying down general implementing provisions for the reimbursement of medical expenses (‘the GIP’), which entered into force on 1 July 2007.

8        Under point 4 of Chapter 2 of Title I of the GIP:

‘The maximum period of cover provided for in Article 15(1) of the [J]oint [R]ules will start on the date on which the divorce or dissolution of the partnership is officially registered.

An extension beyond that [twelve]-month period can be granted only in the case of a serious illness contracted and declared before the entitlement to cover expired …’

9        Under point 2 of Chapter 3 of Title I of the GIP:

‘In the event of serious illness or pregnancy, an extension of cover will also be granted to the spouse, ex-spouse, recognised partner or ex-recognised partner whose entitlement has expired, but solely for the medical expenses associated with serious illness or the costs associated with pregnancy and confinement, provided that all the following conditions are met:

(a)       the serious illness was contracted and notified before the entitlement to cover expired, or the pregnancy began and was notified to the institution before the end of the period of cover;

(b)      the person is not gainfully employed and cannot be covered by another legal or statutory sickness insurance for the corresponding expenses, even by paying a contribution;

(c)      the period of validity of the decision recognising the serious illness has not expired;

(d)      the person undergoes a medical examination.

…’

10      Point 1, ‘Definition’, of Chapter 5, ‘Recognition of the status of serious illness’, of Title III of the GIP provides:

‘Serious illnesses include tuberculosis, poliomyelitis, cancer, mental illness and other illnesses recognised by the appointing authority as of comparable seriousness.

Such illnesses typically involve, to varying degrees, the following four elements:

–        a shortened life expectancy

–        an illness which is likely to be drawn-out

–        the need for aggressive diagnostic and/or therapeutic procedures

–        the presence or risk of a serious handicap.’

11      Point 2, ‘What is covered’, of Chapter 5 of Title III of the GIP, provides:

‘The 100% reimbursement rate applies to:

–        medical costs which appear, in the light of current scientific knowledge, to be directly linked to the diagnosis, treatment or monitoring of the development of the serious illness, or any complications or consequences it causes;

–        costs eligible for reimbursement associated with dependence caused by the serious illness.’

12      Point 3, ‘Procedures’, of Chapter 5 of Title III of the GIP provides:

‘Applications for recognition of serious illness must be submitted in a sealed envelope addressed to the Medical Officer and be accompanied by a detailed medical report. For an initial application, the report must include:

–        the date of the diagnosis;

–        the exact diagnosis;

–        what stage the illness is at, and any complications;

–        the treatment required.

...’

13      Article 7 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77) reads:

‘1.      All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a)      are workers or self-employed persons in the host Member State;

or

(b)      have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State …’

 Background to the dispute

14      The applicant, an Irish citizen born in 1942, was covered under the JSIS from 1973 in her capacity as the spouse of an official.

15      Separated from her husband in 1998 but not divorced, she remained covered under the JSIS for several years.

16      Following her separation, the applicant, who had formerly been living with her husband in Brussels (Belgium), went to live first in the United Kingdom with her daughter and then in Portugal, where she has now settled.

17      The applicant and her husband divorced and their divorce was registered in the Registre de l’état civil de la ville de Bruxelles (the City of Brussels Register of Births, Marriages and Deaths) on 10 July 2008.

18      So far as the applicant’s state of health is concerned, she suffers mainly from conditions affecting her back and her left ankle.

19      Thus, according to the documents in the case-file, the applicant underwent surgery in 1997 during which a titanium plate was inserted in her spine. In 2009 she was diagnosed as having lumbo-sacral polyradiculopathy, that is to say, inflammation of the nerve roots at the lowest lumbar vertebra and sacral levels, and suffering severe pain in her left leg as a result of this.

20      The applicant was also operated on in 2008 for a fracture of her left ankle. The metal plate inserted during the operation had to be removed soon afterwards since she proved allergic to metals. Since then the applicant has suffered from inflammation of that ankle. A medical report dated 9 September 2009 states that the applicant’s symptoms can probably be classified as ‘complex regional pain syndrome’, a condition which is refractory to pain treatments.

21      The applicant’s mobility is reduced as a result of the various problems described above.

22      Thus, a medical report dated 9 March 2009 states that the applicant walks extremely slowly with a crutch.

23      It is also apparent from the documents in the case-file that a doctor stated in a medical report dated 11 May 2009 that the applicant also suffers from osteoarthritis in her wrists and knee joints, which causes pain and limits her ability in everyday household tasks.

24      The medical report dated 9 September 2009, referred to in paragraph 20 above, states that the applicant has a serious handicap and needs assistance from other people in routine daily activities. It even appears from the medical report dated 11 May 2009 that without therapy she will be confined to bed and will not be mobile without a wheelchair. That report also states that, without intensive therapy, damage that would worsen and possibly shorten her life was not to be excluded but was probable, and that she could be helped only by intensive, modern diagnostics and therapy.

25      The risk of deterioration in the applicant’s state of health was confirmed subsequently in a medical report dated 19 February 2010, which stated that the applicant has significant back pathology and lower limb pathology bilaterally, that her level of mobility and pain warrant the description of moderate to severe disability and, lastly, that the prognosis if these pathologies are untreated is not good and the problem is likely to continue and deteriorate with time. The same report also states that the applicant needs extensive diagnostic investigations and almost certainly extensive treatment if it is available.

26      By letter of 19 May 2009, the applicant requested recognition by the administration that she is suffering from a serious illness within the meaning of Article 72(1) of the Staff Regulations, so that under the provisions of Title I, Chapter 3, point 2 of the GIP she would be entitled to extension of sickness insurance cover (‘the request of 19 May 2009’). That request was refused by decision of 30 June 2009 (‘the decision of 30 June 2009).

27      The applicant made a further request, dated 2 July 2009, seeking the same ends as the request of 19 May 2009 (‘the request of 2 July 2009’). That request was refused by decision of 17 July 2009 (‘the decision of 17 July 2009’).

28      The decisions of 30 June and of 17 July 2009 were the subject of a complaint dated 10 September 2009, lodged by the applicant on the basis of Article 90(2) of the Staff Regulations.

29      After consulting, under Article 41 of the Joint Rules, the medical council, which on 30 October 2009 issued an opinion refusing to recognise serious illness, the management committee, to which the matter had been referred by the administration under Article 35 of the Joint Rules, also decided, by opinion of 13 December 2009, that there were no grounds for recognising that the applicant was suffering from a serious illness.

30      By decision of 7 January 2010, the administration rejected the applicant’s complaint.

 Forms of order sought

31      The applicant claims that the Tribunal should:

–        annul the decision of 30 June 2009 and, if necessary, the decision of 17 July 2009, and, if appropriate, the decision of 7 January 2010 rejecting her complaint;

–        order recognition as a serious illness for the conditions she is suffering from, and recognition of her entitlement to cover under the JSIS from 1 July 2009;

–        in the alternative, order recognition of her entitlement to sickness cover under the JSIS until 10 July 2009;

–        order the Commission to pay damages assessed ex aequo et bono and, on a provisional basis, at one Euro;

–        order the Commission to pay the costs.

32      The Commission contends that the Tribunal should::

–        dismiss the application;

–        order the applicant to pay the costs.

 Law

A –  The claim for recognition as a serious illness of the conditions the applicant is suffering from and recognition of her entitlement to sickness cover under the JSIS from 1 July 2009 and, in the alternative, to recognition of that entitlement until 10 July 2009

33      In accordance with settled case-law, the European Union courts may not issue injunctions to the administration or make statements of law in the context of a review of legality based on Article 91 of the Staff Regulations (judgment of 12 June 2002 in Case T-187/01 Mellone v Commission, paragraph 16).

34      In so far as she claims that the Tribunal should order recognition as a serious illness for the conditions she is suffering from, and recognition of her entitlement to sickness cover under the JSIS from 1 July 2009, the applicant is making claims seeking a statement of law or the issuing of an injunction against the administration.

35      The same applies as regards the alternative claim seeking recognition of the entitlement to cover under the JSIS until 10 July 2009.

36      In any event, even if the claim referred to in the preceding paragraph were to be interpreted as a claim for annulment of the decisions of 30 June 2009, 17 July 2009 and 7 January 2010 in so far as they provided that sickness insurance for the applicant under the JSIS was to end on 30 June 2009 and not on 10 July 2009, it is apparent from the decision of 7 January 2010 rejecting the complaint that the period of cover under the JSIS was extended until 31 July 2009 and that therefore the action was devoid of purpose on that point even before it was brought.

37      It follows from all the foregoing that the abovementioned claims must be rejected.

B –  The claim for annulment

38      As a preliminary point, it should be noted that recognition of the existence of a serious illness enables the person concerned to receive, under point 2 of Chapter 5 of Title III of the GIP, 100% reimbursement of medical costs linked to the illness concerned. Such recognition is granted following a request to that effect, as provided for in point 3 of Chapter 5 of Title III of the GIP, if the illness in question is regarded as satisfying the definition of ‘serious illnesses’ given in point 1 of Chapter 5 of Title III of the GIP (‘point 1’).

39      In addition, in the event of recognition of the existence of a serious illness, the divorced spouse of an official is entitled to receive, in respect of medical costs linked to that illness, extension of cover under the JSIS beyond the period of one year from the official date of the divorce, provided that the spouse meets a number of cumulative conditions set out in point 2 of Chapter 3 of Title I of the GIP.

40      Consequently, as it is adopted following a special procedure and entails a number of effects on the situation of the person concerned, a decision refusing to recognise the existence of a serious illness constitutes, as such, an act adversely affecting the person who has made a request to that effect. At the same time, where the person who has made a request to that effect is the ex-spouse of an official, such a decision may form the basis for a separate decision refusing to extend her sickness cover under the JSIS.

41      In the present case, by her requests of 19 May 2009 and 2 July 2009, the applicant sought both recognition of the existence of a serious illness and extension of her sickness cover under the JSIS. That is apparent particularly from the request of 19 May 2009, in which she asserted, amongst other things, that she met the conditions set out in point 2 of Chapter 3 of Title I of the GIP concerning extension of sickness cover under the JSIS.

42      By its decisions of 30 June 2009, 17 July 2009 and 7 January 2010, the administration refused to recognise that the applicant was suffering from a serious illness. The administration moreover used that refusal of recognition as the basis for refusing to extend the sickness cover which the applicant had been receiving. It also based its refusal to extend that cover on the asserted possibility open to the applicant to be covered by another legal or statutory sickness insurance scheme.

43      The Commission therefore refused the applicant on two counts: first, declining to recognise the existence of a serious illness and, second, declining to extend her sickness cover. In her action, the applicant seeks annulment of both those refusals because, in essence, she wishes to obtain not only recognition of the existence of a serious illness but also extension of her sickness cover under the JSIS. It is therefore appropriate to examine in turn the lawfulness of each of the contested refusals.

1.     Refusal to recognise the existence of a serious illness

a)     Arguments of the parties

44      The applicant claims that the provisions of point 1 – which set out the criteria for recognition of the existence of a serious illness – are inconsistent with Article 72 of the Staff Regulations and the principle of proportionality.

45      In the alternative, the applicant alleges, in the first place, non-compliance with the obligation to state reasons; in the second place, infringement of the principles of good administration and of due care; in the third place, violation of the right of access to social security benefits; and, in the fourth place, a manifest error of assessment.

46      The Commission submits that those claims should be dismissed in their entirety.

b)     Findings of the Tribunal

 The plea of unlawfulness

47      As a preliminary point, it should be noted that the Tribunal has held that the criteria listed in point 1 are cumulative (judgment of 18 September 2007 in Case F-10/07 Botos v Commission, paragraph 42 et seq.). Thus, the fact that just one of those criteria is not met justifies the adoption of a decision refusing to recognise the existence of a serious illness.

48      The applicant claims that, in so far as the four criteria set out in point 1 must be satisfied in order for the existence of a serious illness to be recognised, the GIP are inconsistent with the provisions of Article 72 of the Staff Regulations, which provide that the category of ‘serious illnesses’ covers illnesses recognised by the administration as being of comparable seriousness to the illnesses expressly listed in Article 72 (tuberculosis, poliomyelitis, cancer, mental illness). In her submission, the GIP does not respect the equivalence between the seriousness of the illnesses which that Article lists expressly and the seriousness of the illnesses recognised as serious by the administration. The GIP are thus said to offend against the principle of proportionality by laying down conditions which impose an excessive burden on the beneficiaries in relation to the objective pursued.

49      However, the Tribunal has already held, in connection with the same criteria, that they do not appear to be manifestly inappropriate or misconceived in the light of the objective pursued, namely to identify illnesses of a ‘comparable seriousness’ to those expressly listed in Article 72 of the Staff Regulations (see judgment of 23 November 2010 in Case F-65/09 Marcuccio v Commission, paragraphs 51 to 53, which is the subject of an appeal before the General Court in Case T-85/11 P).

50      To begin with, the four illnesses expressly listed in Article 72 of the Staff Regulations are liable in a number of cases to have particularly serious physical or mental consequences, are likely to be drawn out and need aggressive therapeutic procedures; the prior diagnosis must therefore be clear, which in turn requires special analyses or investigations. Such illnesses are also liable to expose the person concerned to the risk of a serious handicap.

51      Moreover, it is apparent from the wording itself of Article 72(1) of the Staff Regulations that, even if they concern one of the four illnesses expressly listed in that Article, only cases that are particularly serious may be classified as a serious illness and thus enable the person concerned to benefit from the more favourable arrangements applying in the event of recognition of such an illness (see Marcuccio v Commission, paragraph 70).

52      This being so, the applicant cannot validly claim that the criteria in point 1 are not appropriate for establishing whether a condition should be recognised as a serious illness within the meaning of Article 72 of the Staff Regulations, that is to say, of a seriousness comparable to the illnesses expressly listed in that Article. Furthermore, those criteria do not exceed the limits of what is appropriate and necessary in order to achieve the legitimate objective pursued by the rules in question, which seek to limit the award of the various benefits linked to recognition of the existence of a serious illness solely to those illnesses which are particularly serious. Nor can the applicant therefore claim that point 1 offends against the principle of proportionality.

53      In another connection, the Commission stated in reply to a question raised by the Tribunal, and was not contradicted by the applicant, that in case of disparity between the different language-versions of the GIP, only three versions – French, English and German – are authentic. Significant differences exist between those three versions as regards the wording of the first criterion in point 1.

54      Thus, the German of the first criterion reads ‘ungünstge Lebenserwartung’ (poor life expectancy), the English of that criterion reads ‘shortened life expectancy’ and the French of the same criterion reads ‘pronostic vital défavorable’ (life-threatening illness).

55      The expressions used in the German and English versions therefore refer more to a shortening of lifespan, whereas the French version refers to significant likelihood of dying.

56      Although the disparity between the concepts to which the three language-versions of the first criterion of point 1 each refer is not obvious, the first criterion in point 1 as laid down in the French version of the GIP appears to be more restrictive than the one laid down in the other two authentic language-versions of the same text.

57      It is established case-law that the necessity for uniform application and, accordingly, for uniform interpretation of European Union law makes it impossible to consider one version of a text in isolation but requires that it be interpreted on the basis of both the real intention of its author and the aim sought to be achieved, in the light in particular of the other versions in the languages of the European Union (judgment of 13 September 2011 in Case T-62/10 P, Zangerl-Posselt v Commission, paragraph 42 and the case-law cited).

58      As regards point 1, as was observed in paragraph 52 above, that text seeks to limit the award of the various benefits linked to recognition of the existence of a serious illness solely to those illnesses which are of comparable seriousness to those listed in Article 72 of the Staff Regulations, that is to say, those that are particularly serious. To that end, the authors of the text specified the relevant indicators to be taken into account by medical officers in order to make a comprehensive assessment of the seriousness of the consequences of the illness in question, thereby granting them considerable freedom in the medical appraisal of the particular situations they are called upon to assess, which is shown by the use of words ‘elements’ and ‘involve’, and the expression ‘to varying degrees’.

59      As was stated above (see paragraph 56), the criterion of ‘pronostic vital défavorable’, in the French version of the GIP, although it allows recognition of the existence of a serious illness to be limited solely to conditions which are particularly serious, is narrower than the criterion of ‘shortened life expectancy’ in the other two authentic language versions of the GIP, and thus reduces significantly the discretion of the institution’s doctors. That restriction runs counter not only to the other words used in point 1, mentioned at the end of paragraph 58 above, but also to the wording of Article 72 of the Staff Regulations, which merely lays down the requirement of seriousness comparable to the seriousness of the four illnesses it lists expressly, and by no means describes serious illness in terms of the special requirement that it should be life-threatening.

60      It is therefore necessary to ensure that the French version of point 1 does not give the expression ‘pronostic vital défavorable’ used in the first criterion in that provision a different meaning from that conveyed by the expressions used in the other two authentic language-versions, since such an expression must be interpreted and applied in the light of the other versions which exist (order of the President of the Court of First Instance of 18 March 2008 in Case T-411/07 R Aer Lingus Group v Commission, paragraph 90).

61      Lastly, although the requirement of a ‘pronostic vital défavorable’ – as it appears in the French version of point 1 – does not have the effect of removing the equivalence posited in Article 72 of the Staff Regulations between the illnesses explicitly named in that provision (tuberculosis, poliomyelitis, cancer, mental illness) and the category of ‘illnesses recognised by the appointing authority as of comparable seriousness’, the fact of interpreting and applying the concept of ‘pronostic vital défavorable’ in the meaning it has in the German and English versions of a ‘shortened life expectancy’, serves to strengthen that equivalence, such that the applicant has even less grounds for contending that it, the equivalence, was not respected by the authors of the GIP.

62      It follows from all the foregoing that the plea of unlawfulness raised by the applicant must be rejected.

 The pleas raised in the alternative

63      The Tribunal will first examine the plea alleging manifest error of assessment.

64      The applicant claims that in refusing to recognise that the applicant suffers from a serious illness the administration committed a manifest error of assessment. She challenges in particular the opinion of the medical council of 30 October 2009 (see paragraph 29 above).

65      As a preliminary point, it is appropriate to differentiate between judicial review carried out, on the one hand, with regard to the conclusions that the administrative authority has drawn from a medical opinion and, on the other hand, with regard to the medical opinion itself.

–       The assessment by the administrative authority

66      It falls to the Tribunal to determine whether, when refusing to classify the conditions suffered by the person concerned as a serious illness, the competent administrative authority committed a manifest error by inferring from the medical findings brought to its knowledge that those criteria were not cumulatively met (see, to that effect, Botos v Commission, paragraphs 40 and 41).

67      In the present case, the administration, in order to reject the complaint, based its decision on the fact that both the criterion of ‘a shortened life expectancy’ and that of ‘the need for aggressive diagnostic and/or therapeutic procedures’ were not satisfied. It is on the basis of those two criteria that the medical council issued a negative opinion on 30 October 2009. The administration did not therefore commit a manifest error by inferring from the medical findings brought to its knowledge that the conditions laid down in point 1 were not cumulatively met.

–       The medical opinion

68      It is appropriate first of all to recall the case-law relating to the medical committee provided for by the rules drawn up under Article 73 of the Staff Regulations, according to which the authors of those rules sought, by creating that medical committee, to set up a body which would provide safeguards of balance between the parties and of objectivity, and which would therefore make it possible to settle definitively, in case of dispute, all questions of a medical nature dealt with by the medical committee (judgments of 21 May 1981 in Case 156/80 Morbelli v Commission, paragraphs 17 to 20, and of 29 November 1984 in Case 265/83 Suss v Commission, paragraph 19). Thus, medical assessments properly so-called prepared by the medical committee must be considered definitive, provided that the conditions in which they are made are not unlawful (judgment of 14 September 2010 in Case F-79/09 AE v Commission, paragraph 64 and the case-law cited). That case-law applies also to the invalidity committee provided for in Article 78 of the Staff Regulations (judgment of 27 February 1992 in Case T-165/89 Plug v Commission, paragraph 75).

69      However, opinions expressed unilaterally by medical officers from the institutions – as in the present case the opinion of 30 October 2009 issued by the medical council whose composition is determined by Article 41 of the Joint Rules – do not provide the same level of safeguard with regard to the balance between the parties as those produced by the medical committee or the invalidity committee.

70      Consequently, when it adjudicates on a refusal to recognise the existence of a serious illness, the Tribunal must carry out a more intensive review than the one effected in relation to decisions adopted on the basis of Article 73 or Article 78 of the Staff Regulations.

71      None the less, it is clear that the Tribunal does not have the necessary competence in medical matters to enable it to endorse or invalidate a medical assessment, or to arbitrate among several conflicting medical assessments.

72      The Tribunal has held that it is not for it to examine whether the manner in which a medical assessment was carried out complies with the best medical practice or represents the best method for ascertaining the state of health of the official concerned (judgment of 28 June 2006 in Case F-39/05 Beau v Commission, paragraph 74), nor whether a doctor’s diagnosis with regard to the mental health of an official is justified (see to that effect, judgment of 13 December 2006 in Case F-17/05 de Brito Sequeira Carvalho v Commission, paragraphs 82 to 85, set aside on appeal, but not on that point, by the judgment of 5 October 2009 in Joined Cases T-40/07 P and T-62/07 P de Brito Sequeira Carvalho v Commission).

73      From that point of view, the fact that the medical council, when adjudicating on matters of recognition of the existence of a serious illness, does not offer the same level of safeguard in terms of the balance between the parties as the medical committee or the invalidity committee is without incidence. In a judgment of 9 December 2009, the General Court reiterated moreover the settled case-law holding that, as far as medical assessments made by the medical officer and the medical council are concerned, judicial review may not extend to medical assessments properly so-called, which must be considered definitive, provided that the conditions in which they are made are not unlawful (judgment of 9 December 2009 in Case T-377/08 P Commission v Birkhoff, paragraphs 67 and 68).

74      It is therefore necessary to define the scope of the term ‘medical assessment’ with regard to recognition of a serious illness.

75      In that regard, it is clear that the criteria for serious illness (shortened life expectancy, illness which is likely to be drawn-out, the need for aggressive diagnostic and/or therapeutic procedures, and the presence or risk of a serious handicap) fall within the category of medical assessments, because, in order to give an opinion on whether one or other of those criteria is met, the medical officer and the medical council do not merely establish facts, they undertake a genuine assessment of those facts, an assessment which requires competence in the field of medicine.

76      However, even if the Tribunal’s review does not extend to specifically medical assessments such as those relating to the seriousness of an illness, in circumstances where, as in the present case, applicants challenge an assessment that has been made of their situation by the administration by criticising the medical opinion on which it is based, the Tribunal must verify, especially if, as in the present case, the procedure does not offer the same level of safeguard in terms of the balance between the parties as the procedures provided for in Articles 73 and 78 of the Staff Regulations, that the medical officer or the medical council has conducted a specific and thorough examination of the situation presented to it. It should be noted in this connection that it is for the administration to establish that an assessment of this nature has been made.

77      As regards the application of point 1, it should be noted (see paragraph 58 above) that the intention of the authors of that provision, as shown by the use of the words ‘involve, to varying degrees, the following four elements’, was to provide for interdependent indicators to be taken into account in relation to one another by the medical officer or the medical committee, with the view to enabling a comprehensive assessment of the seriousness of the consequences of the illness in question and thereby investing the practitioners with considerable latitude in the medical evaluation of the particular situations they are called upon to assess.

78      The medical officer or the medical council may not therefore, when examining a request for recognition of the existence of a serious illness, merely consider in isolation some of the criteria listed in point 1, or even limit the assessment solely to the criteria which do not appear to be met.

79      As noted in paragraph 47 above, the four criteria set out in point 1 are, it is true, cumulative. However, in the examination carried out by the medical officer or the medical council, the assessment of one of the criteria is – in view of the interdependence which the text provides for between those four criteria – liable to influence the assessment of the other criteria. Thus, although one of the criteria may appear not to be satisfied when considered in isolation, examination of it in the light of the assessment made of the other criteria may lead to the opposite conclusion, namely that that criterion is in fact satisfied, such that the medical officer or the medical council is precluded from undertaking consideration of merely one criterion taken on its own.

80      It is in the light of the general considerations above that the Tribunal, in the context of the limited review it may exercise over opinions issued by the medical bodies intervening during the course of the procedure for recognising the existence of a serious illness, is called upon to ensure that those opinions were adopted on the basis of a specific and thorough examination of the state of health of the person concerned, an examination that takes into account in a comprehensive manner, as required by point 1, the four interdependent criteria set out in that point.

81      In the present case, according to the opinion of the medical council of 30 October 2009:

‘1. … the shortened life expectancy criterion is by no means present, either in the back condition, which has existed for 20 years, or in the ankle condition. Nor is the ‘need for aggressive diagnostic and/or therapeutic procedures’ criterion met.

2. There are currently no signs of an inflammation problem … but there are signs of diffuse osteoarthritis.

None of the doctors has diagnosed ‘lumbo-sacral plexitis’. Even if that had been the case, there is no link between that condition and the ankle fracture, which was caused by a fall. Again, the council is of the opinion that there is by no means any shortening of life expectancy.

3. The possibility that the condition might adversely affect life expectancy if it is left untreated is mentioned only by Dr …, and not by any of the many specialists consulted by the patient.

The council is of the view that that opinion does not have any scientific basis, a fortiori, if correct treatments are given.

In the present case, no aggressive treatment has been given: painkillers and some thirty sessions of physiotherapy since March 2008.

Conclusions: by no means are the patient’s conditions likely to have an adverse effect on her life expectancy. The council’s opinion is therefore not in favour of recognition of the existence of a serious illness.’

82      It is apparent from the wording of that opinion that the medical council failed to conduct a specific and thorough examination of the applicant’s state of health in the light of the four criteria listed in point 1, which are required to be assessed in a comprehensive manner, given the interdependence which that provision establishes between those criteria.

83      Although it may be acceptable for the medical council not to examine certain criteria where the file on the request submitted by the person concerned to the administration does not contain any information concerning those criteria, that is not the situation in the present case.

84      In view of the documents referred to, first, in the request of 19 May 2009 and, second, in the administrative complaint – and the Commission does not contend that those documents were not sent to it with that correspondence – the medical council had in its possession a full set of details concerning the applicant’s state of health, the conditions from which she was suffering, the diagnoses made by the doctors who had examined her, the treatments she was receiving, and the following information in particular:

–        the applicant had undergone surgery, during which a titanium plate had been inserted in her spine and she suffered severe pain over a long time in her left leg (see paragraph 19 above);

–        the applicant had undergone an operation in 2008 for a fracture of her left ankle; the metal plate inserted during the operation had to be removed soon afterwards since the patient proved allergic to metals; since then the applicant has suffered from inflammation of that ankle (see paragraph 20 above);

–        the applicant also suffered from osteoarthritis in her wrists and knees (see paragraph 23 above).

85      In addition, a medical report dated 9 March 2009, submitted to the administration before the medical council gave its decision, states that the applicant walks extremely slowly with a crutch (see paragraph 22 above).

86      Lastly, in a medical report dated 11 May 2009, also submitted to the administration before the medical council gave its decision, it appears even that without therapy the applicant will be confined to bed and will not be mobile without a wheelchair. That report also states both that, without intensive therapy, damage that would worsen and possibly shorten the applicant’s life was not to be excluded but was probable, and that she could be helped only by intensive, modern diagnostics and therapy (see paragraph 24 above).

87      In the light of those documents, neither the possibility that the illness was likely to be drawn out nor the risk of a serious handicap could be ruled out without prior examination, and such an examination should have been expressly mentioned in the opinion of the medical council.

88      Since that was not the case – the brevity of the medical council’s opinion being all the more striking in view of the detailed information made available to it – the medical council cannot be considered to have conducted a specific and thorough examination of the applicant’s state of health, an examination that should have taken into account in a comprehensive manner, as required by point 1, the four interdependent criteria provided for in that point.

89      It is necessary therefore to decide what conclusions are to be drawn from this infraction of the applicable rules as regards the lawfulness of the refusal to recognise a serious illness.

90      On this point, the rejection of the administrative complaint refers to the opinion of the management committee of 13 December 2009, which in turn is based on the opinion of the medical council of 30 October 2009. As a consequence, the decision rejecting the complaint was adopted on the basis of the opinion of the medical council, as the Commission states moreover in its defence.

91      Furthermore, no other medical opinion relied on by the administration in its decision and showing that the four criteria listed in point 1 had been examined in a comprehensive manner was produced to the Tribunal by the administration; as for the applicant, in view of the conduct of the administration – and it is common ground that the administration did not communicate to her any opinion other than that of the medical council despite requests to do so –, she was not in a position to produce any such opinion.

92      In any event, it does not appear from the wording of the contested decisions that the applicant’s situation, in the light of the criteria of the drawn-out nature of the illness and the presence or risk of a serious handicap, was the subject of a specific and thorough examination by a medical body.

93      In the absence of such an examination, the administration could not validly refuse to recognise the existence of a serious illness.

94      It follows from all the foregoing, without its being necessary to consider the other pleas raised in the alternative, that the decision refusing to recognise that the applicant suffers from a serious illness must be annulled.

2.     The refusal to extend the applicant’s sickness cover

95      It is to be noted that the refusal to extend the applicant’s sickness cover is based on two grounds – each of which corresponds to one of the cumulative criteria, set out in point 2 of Chapter 3 of Title I of the GIP, to be met in order for extension of cover to be granted: first, absence of serious illness and, second, the possibility open to the applicant to be covered by another legal or statutory sickness insurance.

96      Since the first ground has been found to be vitiated by illegality, it is necessary to examine the lawfulness of the second ground.

97      That ground, as it appears in the contested decisions, including the rejection of the complaint, does not allege that the applicant had available to her sickness insurance in Portugal, but only that she would be able to receive cover free of charge by living in the United Kingdom or cover in return for payment if she were to settle in Ireland.

98      Although in the scheme of legal remedies provided for in Articles 90 and 91 of the Staff Regulations the administration may decide, when it expressly rejects a complaint, to vary the grounds on which it had adopted the contested measure, such variation may not take place after the proceedings against the contested measure have been brought before the Tribunal. In a judgment of 12 May 2010, the General Court held that the administration was not entitled to substitute an entirely new statement of reasons for the initial, erroneous, statement in the course of the proceedings (Case T-560/08 P Commission v Meierhofer, paragraph 59).

99      Consequently, whether sickness insurance in Portugal is available to the applicant, which was not one of the grounds for the decisions which the applicant seeks to have annulled, is not in issue in the present case. The Tribunal must adjudicate solely on the question whether the administration could validly raise against the applicant the argument that she would be able to receive cover free of charge by living in the United Kingdom or cover in return for payment if she were to settle in Ireland.

100    As regards the United Kingdom, the administration relied, first, on the fact that the applicant stated in several letters that she had established her domicile in that country; secondly, on the applicant’s address appearing in the decree absolute of divorce, which was an address in that country; and, thirdly, on the facts that some of the medical certificates she produced were issued by doctors practising in the United Kingdom and also that she received medical treatment in that country.

101    The administration concluded, on the basis of the evidence referred to in the preceding paragraph, that the applicant was actually residing in the United Kingdom or that at least, in view of her links with that country, there was nothing compelling her to reside in Portugal rather than in the United Kingdom.

102    Admittedly, the applicant, who lived in Brussels with her husband, states in the application that following the separation she lived in the United Kingdom with her daughter. However, she explained in the request of 2 July 2009 that she had to designate that country as her place of residence at the time of the sale of the house which she owned with her ex-husband, in August 2000, so that her daughter and son-in-law could stand surety in order for a bank account to be opened in her name.

103    The applicant also affirms, and is not challenged on this point by the Commission, that once she had completed the formalities referred to in the preceding paragraph she left the United Kingdom to settle in Portugal.

104    Moreover, although some of the medical certificates produced by the applicant show that she consulted doctors in the United Kingdom in March and April 2009, and in February 2010, and therefore that she stayed in that country at those times, she also produced several certificates from doctors practising in Portugal.

105    Thus, it is to be concluded from the foregoing that, although the applicant stayed in the United Kingdom for short periods on several occasions, she had settled her residence in Portugal at the time the request of 19 May 2009 was submitted. The stable nature of her situation with regard to Portuguese law was moreover established at that date, since she had a residence permit which was valid from 24 March 2009 until 23 March 2014.

106    On that last point, the Commission contends in its defence that, in order to enjoy the status of citizen of the Union residing lawfully in Portugal for a period of more than three months, the applicant must, under Article 7 of Directive 2004/38, have comprehensive sickness insurance cover in that State. Suffice it to say in that regard that Article 7 of Directive 2004/38 lays down the conditions under which all Union citizens have, under European Union law, the right of residence in the territory of another Member State for a period longer than three months, without however preventing a Member State from issuing a residence permit to a Union citizen under less stringent conditions. Moreover, in the present case, whilst residing in Portugal, the applicant is claiming precisely such an entitlement to sickness insurance under the JSIS (in accordance with point 2 of Chapter 3 of Title I of the GIP), this being the subject-matter of the present proceedings.

107    This being so, the administration has no grounds for pleading against the applicant the argument that she would be able to receive sickness cover in the United Kingdom.

108    The same applies, a fortiori, as regards the possibility raised by the administration that the applicant could receive sickness cover in Ireland. It is apparent from the case-file that the applicant lived in Brussels from 1973, then in Portugal, apart from short periods spent in the United Kingdom, and that she therefore left Ireland for good in 1973 at the latest.

109    In any event, the administration has no grounds for pleading against the applicant the argument that she would be able to receive sickness cover in Ireland if she were to pay contributions. The applicant is 68 years of age, her physical capacity is significantly reduced and it is thus inconceivable that she could start contributing to a sickness insurance scheme at this stage.

110    The second ground on which the administration refused to extend the applicant’s sickness cover must therefore be found to be unlawful.

111    It follows from all the foregoing that the refusal to extend the applicant’s sickness cover, both grounds for which are unlawful, must be annulled.

C –  The financial consequences of annulment of the refusal to recognise the existence of a serious illness and the refusal to extend the applicant’s sickness cover

112    In the context of a dispute of a financial character the Tribunal may not refuse in principle to order an institution to pay the sums to which the applicant is entitled under the Staff Regulations or another legal measure (judgment of 18 December 2007 in Case C-135/06 P Weißenfels v Parliament, paragraphs 20, 68 and 69).

113    The unlimited jurisdiction conferred on the European Union judicature by Article 91(1) of the Staff Regulations entrusts it with the task of resolving in a complete manner the disputes brought before it, that is to say by ruling on all the rights and obligations of the person concerned, subject to leaving to the respondent institution, under the control of the court and under such specific conditions as the court shall determine, the implementation of a given part of the judgment (Weißenfels v Parliament, paragraph 67).

114    In the present case, however, the applicant has not submitted a claim for the payment of sums corresponding to reimbursement of medical expenses.

115    What is more important, following the annulment of the refusal to recognise that the applicant suffers from a serious illness, it will be for the administration, in the light of the grounds of the present judgment, to re-examine the applicant’s situation in order to determine whether the existence of such an illness should be recognised and then, on the basis, in particular, of the conclusion thus arrived at, to decide on the extension or not of the applicant’s sickness cover.

116    As the case-file now stands, the Commission cannot therefore in any event be ordered to pay sums corresponding to the reimbursement of medical expenses.

117    Moreover, although the unlimited jurisdiction conferred on the Tribunal enables it also to guarantee the effectiveness of its judgments annulling a measure, so that if the annulment of a decision of the administration vitiated by error of law is not sufficient to re-establish the rights of the official concerned or to protect his or her interests effectively, it may award compensation of its own motion (judgment of 20 May 2010 in Case C-583/08 P Gogos v Commission, paragraph 50), it cannot be held as of now, given that the administration is required to re-examine the applicant’s situation, that the annulments she has obtained will not enable her to enforce her rights or protect her interests effectively.

D –  The claim for compensation

118    An application seeking compensation for damage caused by a European Union institution must state the evidence from which the misconduct alleged against the institution can be identified, the reasons for which there is said to be a causal link between that conduct and the damage claimed to have been suffered, and the nature and extent of that damage. That is not the case where an application fails to set out sufficiently precisely the facts on the basis of which the nature and extent of the damage could be assessed, without establishing the existence of special circumstances exempting the applicant from the need to provide such details (see, to that effect, judgment of 26 February 2003 in Case T-164/01 Lucaccioni v Commission, paragraph 65).

119    In the present case, as regards the claim for compensation, the applicant merely seeks ‘damages assessed ex aequo et bono and, on a provisional basis, at one Euro’ and at no point furnishes the slightest detail as to the nature of the damage in question – which is distinct from the damage deriving from the absence of reimbursement of medical expenses linked to her illness – for which she seeks compensation.

120    Consequently, as the damage claimed has not been established, the abovementioned claim for compensation must be rejected.

121    In any event, even supposing that the applicant could be regarded as seeking compensation for additional costs incurred by reason of the conduct of the administration, in so far as the latter is alleged not to have communicated to her the information needed in order to enable the submission of a request for recognition of the existence of a serious illness until after she had engaged a lawyer to assist her, the impugned conduct of the administration has no direct link with the claim for annulment in issue in the present case.

122    As regards the admissibility of a claim for compensation, it is only where there is a direct link between an action for annulment and such a claim that the latter is admissible as ancillary to the action for annulment, without necessarily having to be preceded both by a request from the person concerned to the administration for compensation for the damage allegedly suffered and by an administrative complaint challenging the validity of the implied or express rejection of that request.

123    In the present case, it is not apparent from the documents in the case-file that prior to lodging her application the applicant had submitted a request for compensation followed by an administrative complaint challenging the validity of an implied or express rejection of that request.

124    Accordingly, the applicant’s claim for compensation must in any event be rejected as inadmissible.

 Costs

125    Under Article 87(1) of the Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that he is not to be ordered to pay any.

126    It follows from the grounds set out above that the Commission is essentially the unsuccessful party. Moreover, in the form of order sought, the applicant expressly applied for the Commission to pay the costs. As the circumstances of the present case do not warrant the application of Article 87(2) of the Rules of Procedure, the Commission must therefore be ordered to pay the costs incurred by the applicant.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Third Chamber)

hereby:

1.      Annuls the decisions of 30 June 2009, 17 July 2009 and 7 January 2010 by which the European Commission refused to recognise that Ms Allen was suffering from a serious illness and refused to extend her sickness cover;

2.      Dismisses the action as to the remainder of the heads of claim;

3.      Orders the European Commission to bear all the costs.

Mahoney

Kreppel

Van Raepenbusch

Delivered in open court in Luxembourg on 28 September 2011.

W. Hakenberg

P. Mahoney

Registrar

President

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* Language of the case: English.