JUDGMENT OF 9. 7. 1975 — JOINED CASES 42 AND 62/74 VELLOZZI v COMMISSION

In Joined Cases 42 and 62/74

THE COURT (Second Chamber) composed of: A. J. Mackenzie Stuart, President of Chamber, H. Kutscher and M. Sørensen, (Rapporteur), Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments of the parties which were developed during the written procedure may be summarized as follows:

I — Facts and procedure

1. The applicant is an official of the Commission in the basic post of Clerical Officer, Grade C3. After taking up his post in 1960 he performed the duties of an operator at the offset shop until 1968. In July 1968 he was transferred to the Directorate-General for Competition where he was entrusted with administrative duties. Following many periods of sick leave, the Commission had the applicant examined in 1968 by an Invalidity Committee in accordance with the fourth paragraph of Article 59(1) of the Staff Regulations of Officials. This Committee, in its report made on 5 December 1968 and 13 January 1969, found that the applicant was suffering from asthmatic or asthmatiform bronchitis caused largely by the conditions under which he had been working in the offset shop of the Publications Department. At the same time it found that the asthmatiform condition, which previously had been noted by several doctors, had improved, in all probability because the applicant had been assigned to another department since February 1968. The Committee concluded that 'Mr Vellozzi's state of health does not prevent him from working but makes it imperative that the work be carried out where there is protection from the elements and in premises and an atmosphere free of all substances which could irritate the respiratory system. Relying on this report, the applicant sought the benefit of Article 73(2Xc) and (3) of the Staff Regulations of Officials (partial permanent invalidity). The application brought by the applicant in June 1971 for the annulment of the Commission's refusal to grant this request was dismissed as unfounded by the Court of Justice in its judgment of 13 July 1972 (Case 29/71, Rec. 1972, p. 513). After this application had been brought, the Commission set up a fresh Invalidity Committee to which it assigned the duty not only of deciding whether Mr Vellozzi was suffering from total permanent invalidity but also of investigating whether he might also be suffering from partial permanent invalidity owing to his .working conditions, and if so, of determining the degree of invalidity. Following the judgment of the Court, the Invalidity Committee continued its work. Dr Therasse, the member of the Committee appointed by the Court of Justice, conveyed the report drawn up by the Committee of the Commission on 31 March 1973. The report was drawn up by Dr de Coster, a doctor appointed by mutual agreement between the other two doctors. He concluded that Mr Vellozzi was suffering from partial permanent invalidity assessed at 10 % and that a study of the symptoms did not prove that this was caused by his occupation. The report was approved by Dr Therasse by his adding ‘Agreed’ at the foot of the report. Dr d'Avanzo, the member of the Committee appointed by the applicant, refused to sign the conclusions of the report. By letter of 10 December 1973 the Commission sent the applicant a photocopy of the ‘conclusions of the Invalidity Committee’. The applicant considered these ‘conclusions’ were invalid and lodged a request on 2 January 1974 that a fresh Invalidity Committee be set up. By a memorandum dated 23 April 1974, the competent authority of the Commission refused to comply with this request. On 3 April 1974, the Head of the Individual Rights and Privileges Division of the Commission sent the following letter to the applicant: You were examined by Dr Romain, the medical officer of the Commission, on 15 March 1973. He found you fit to work under the conditions described by the Invalidity Committee. In these circumstances, in my capacity as the appointing authority I have decided that, in accordance with Article 60 of the Staff Regulations any absence on your part from the time when you receive this letter will be deducted from your annual leave and thereafter set against your salary. After fresh examinations by the medical service of the Commission this decision was confirmed by letters of 10 and 14 May 1974. By letter of 11 July 1974, the applicant was warned ‘Once more, that [his] absence, which is considered unauthorized, brings Article 60 of the Staff Regulations into operation’ and that, since he had used up his annual leave entitlement for 1974, his salary for July has been stopped ‘as a precaution’. The applicant lodged complaints on 16 May and 5 August 1974 against the decision to apply Article 60 of the Staff Regulations to him.

2. The application in Case 42/74 for the annulment of the Commission's refusal of 23 April 1974 to appoint an Invalidity Committee was entered on the Court Register on 15 June 1974. In a statement of 10 July 1974, the Commission raised a preliminary objection as to the admissibility of the application and asked the Court to give a decision in accordance with Article 91 of the Rules of Procedure, without going into the substance of the case. The applicant did not submit any observations on this objection. The application in Case 62/74 for the annulment of the decision to apply Article 60 of the Staff Regulations was entered on the Court Register on 23 August 1974. By a separate document annexed to the application in Case 62/74, the applicant submitted an application for an interim measure ordering the suspension of the operation of the decision to withold payment of his remuneration. By order of 17 September 1974, the President of the Second Chamber dismissed this application. By order of 21 November 1974 the Court (Second Chamber) joined the two applications for the purposes of procedure and judgment. By letter of 22 November 1974, the Commission was invited to give its opinion on the two applications in the rejoinder in Case 62/74. After hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (Second Chamber) decided to open the oral procedure without a preparatory inquiry.

II — Conclusions of the parties

In Case 42/74, the applicant claims that the Court should:

annul the memorandum dated 23 April 1974 from the Commission and thereby the refusal contained therein to grant the request lodged by the plaintiff on 2 January 1974;

declare that the Commission must proceed to appoint an Invalidity Committee with a view to the application of Article 73 of the Staff Regulations of Officials and in application of Article 59 (3) of the Staff Regulations;

order the Commission to pay the costs of the action.

The Commission contends that the Court should:

declare that the application is inadmissible;

order the applicant to pay the costs.

In Case 62/74, the applicant claims that the Court should:

declare that the application of the provisions of Article 60 of the Staff Regulations of Officials to the applicant is void;

annul the decision notified by letter of 3 April 1974 to apply Article 60 of the Staff Regulations of Officials to the applicant;

annul the decisions notified by letters of 10 and 14 May and 11 July confirming the application of Article 60 of the Staff Regulations of Officials to the applicant;

annul the decision notified by letter of 11 July 1974 to ‘stop, as a precaution’, the applicant's salary for July 1974;

order the Commission to pay the costs of the action.

The Commission contends that the Court should:

dismiss the application as unfounded;

order the applicant to pay the costs.

III — Submissions and arguments of the parties

In Case 42/74, the applicant claims that the report drawn up by Dr de Coster and countersigned ‘Agreed’ by Dr Therasse cannot be considered a report of the Invalidity Committee since it is not the joint work of the three doctors meeting as a Committee. Moreover, he recalls that Dr d'Avanzo does not agree with the report which was drawn up by the other two doctors and is of the opinion that the applicant is incapable of performing his duties because of sickness. In this case, the matter should be referred to the Invalidity Committee for an opinion, in accordance with Article 59 (3) of the Staff Regulations of Officials.

The Commission recalls that the measure contested in this application is the reply to a request submitted in accordance with Article 90(1) of the Staff Regulations. Under the provisions of Article 91 of the Staff Regulations, an application is admissible only if the applicant has previously submitted a complaint pursuant to Article 90 (2). As the applicant has not submitted such a complaint to the Commission, his application is inadmissible.

In Case 62/74, the applicant recalls that Article 59 of the Staff Regulations provides that an official who provides evidence of incapacity to perform his duties because of sickness shall automatically be entitled to sick leave. He stresses that he provided proper evidence, by means of medical certificates, that he was unable to perform his duties and he claims that the Commission therefore wrongly applied Article 60 of the Staff Regulations to him. That article presupposes that there has been an unauthorized absence, which is not so in this case, and according to its very wording, it does not apply to cases of absence through sickness.

The applicant refers moreover to Article 59 (3) of the Staff Regulations which provides that ‘Cases in dispute shall be referred to the Invalidity Committee for an opinion’. He claims that the Commission wrongly decided to apply Article 60 without having referred the case to the Invalidity Committee for an opinion: there is very clearly a dispute as to the applicant's state of health and as to his fitness to perform his duties.

In its defence, the Commission stresses that the second Invalidity Committee decided that the applicant was fit to perform his duties.

It states that the applicant has not worked since 1971 but has nevertheless taken his annual leave each year.

Already on 14 August 1973 the Commission requested the applicant to return to work. He was warned of the consequences which would follow a refusal. Since then, the administration watched the applicant's absences especially carefully and asked the medical service of the Commission to carry out further examinations. In this connexion, the Commission refers to the findings of six further examinations carried out on 15 October and 23 November 1973 and on 29 January, 18 March, 30 April and 21 May 1974 by various doctors in the medical service. The findings from these examinations were that the applicant was fit to perform his duties. The Commission also refers to the letters of 14 June and 16 July 1973 in which Drs de Coster and Therasse stated that the applicant was fit to perform his duties.

It recalls that all the medical certificates produced by the applicant bore the same diagnosis, the one on account of which his case had been referred to two Invalidity Committees.

The Commission claims that the tasks assigned to the applicant are compatible with his state of health. The premises where he had to perform his duties were visited by the medical officer to the Commission who expressed the opinion in a letter of 10 April 1974 that the applicant could return to work in those conditions, but that his work in the archives would have to be discontinued. On 25 July 1974 the applicant was informed of the duties to be performed, the work in the archives having to be discontinued, so leaving only the work of a messenger.

The Commission stresses the discretion and understanding it claims to have shown with regard to the applicant before reaching the point of applying the measures the annulment of which he seeks.

It claims that owing to its composition and nature, an Invalidity Committee can, by a majority of its members, take decisions or reach conclusions and approve its final report. The Staff Regulations do not provide that an Invalidity Committee is under an obligation to reach its conclusions unanimously; such a rule, because of its exceptional nature, would have had to be laid down expressly. Moreover, the Commission relies on the findings in the judgment of the Court of 14 December 1966 in Case 3/66 (Alfieri v European Parliament) in support of this argument.

It claims that Article 60 cannot be interpreted as meaning that any official who claims to be sick is ipso facto put beyond the reach of its application. It recalls that under Article 59 (1), an official ‘shall automatically be entitled to sick leave’ only if he provides evidence of incapacity to perform his duties, that is, only on certain conditions and in any case with an opportunity for his employer to carry out an examination.

As regards the interpretation of Article 59 (3) of the Staff Regulations, the Commission, without prejudging its correct interpretation which must, it seems, link it to the case in paragraph (2) (compulsory leave), wishes to draw attention to the fact that the Invalidity Committee is only explicitly brought in in serious cases.

Finally, the Commission claims that even if it accepted the applicant's argument, which it does not, it would not be necessary to refer the case to the Invalidity Committee anew because the Committee had already come to a decision on two occasions about the same illness which was the subject of all the applicant's medical certificates. To refer the matter to the Invalidity Committee once more in these circumstances would not only have been futile but a repudiation of all the previous work of the Invalidity Committee, and it would also disregard the fact that this dispute has been going on on the same basis since 1968.

In his reply, the applicant recalls the findings of the Invalidity Committee of 5 December 1968 and considers that it was illogical that Dr Therasse, a member of that first Committee, could approve Dr de Coster's report which found that the applicant's illness could not be proved to have been caused by his occupation. This contradiction on the part of Dr Therasse is sufficient to deprive the ostensible conclusions of the second Invalidity Committee of all conviction.

The applicant also claims that the Invalidity Committee is composed of a body of three doctors and that therefore if the Staff Regulations have not provided that it may reach its conclusions by a majority of its members, the rule of unanimity applies of necessity.

According to the applicant, it is obvious that Article 59 (3) applies to the situations laid down in paragraph (2) as well as to those laid down in paragraph (1); paragraph (3) contemplates cases of dispute which cannot be ruled out in the context of paragraph (1). The positioning of paragraph (3) within Article 59 also argues in favour of this interpretation.

Finally he maintains that the Commission's arguments that Article 59 (3) does not apply in view of the report of the second Invalidity Committee cannot be accepted, first because the conclusions of that Invalidity Committee are not valid, and secondly because the report submitted in 1973 cannot contain an opinion on a dispute which took place in 1974. In fact it was the doctors appointed by the Commission to carry out an examination who found that the applicant was fit for work. In so doing, the Commission was arrogating to itself powers which lie in the province of the Invalidity Committee. The Commission's doctors did not take the trouble to carry out an examination of the state of hygiene at the place of work and the Commission never followed the recommendations of the Invalidity Committee of 5 December 1968 as to the working conditions. When a Commission doctor, Dr Turner, finally carried out this examination in April 1974, he found that the applicant ought no longer to work in the archives. This restriction on returning to work and the opinion of another Commission doctor, Dr Romain, who considered that the conclusions of the report of 5 December 1968 were still applicable, prove that there was disagreement even between the Commission's doctors since the other doctors had found that the applicant was fit for work with no restriction or condition. However, the Commission did not follow the advice of Drs Romain and Turner.

In its rejoinder, the Commission emphatically denies that a contradiction exists between the reports of the two Invalidity Committees. It claims that the applicant is deliberately confusing on the one hand bronchitis, one of the causes of which is working conditions but which does not prevent him from working, and on the other invalidity which it must be proved is caused by his occupation (if only because it is a necessary condition to establish a causal connexion).

As regards the correct application of Article 60 the Commission considers that it has adduced sufficient proof that the administration has been sending warning letters to the applicant since 1973, drawing his attention to the consequences arising from his absences. These letters are the result of findings made by both the Invalidity Committee and by the Commission's doctors, that Mr Vellozzi was fit for work. No fresh factor with regard to the previous situation has since appeared so that the administration's position remains unchanged.

Finally the Commission explains that the reason why Dr Romain on 18 March 1974 raised the question concerning the applicant's working conditions was that at that time Directorate-General IV moved from the Berlaymont to another building which led to Dr Turner's visit to the premises the following month and the new specification of the applicant's duties (the exclusion of the work in the archives). There are therefore no contradictions between the opinions of the Commission's doctors. Before the move, there was no problem. After this transfer, healthy premises and suitable work were provided for him.

After the closure of the written procedure, the Court asked the Commission to submit the report of the second Invalidity Committee and to answer a question concerning the applicant's fitness for work.

By letter of 13 February 1975 the Commission replied to this question, but although it had hoped to comply with the Court's request concerning the submission of the report of the Invalidity Committee it found it impossible to carry out the request because two members of the Invalidity Committee had refused to pass on the report.

The applicant, represented by E. Drappier and the Commission, represented by G. Pincherle, presented oral argument at the hearing on 20 February 1975.

During this hearing, the applicant in particular stressed that he has never claimed to be unfit to perform any duties, but that he has always maintained that the work he had to do at the Commission was incompatible with his state of health.

After this hearing, the Court gave the parties the opportunity of trying to reach a settlement out of court.

This attempt was unsuccessful.

The Advocate-General delivered his opinion at the hearing on 26 June 1975.

Law

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 %.

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.

Costs

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.

1 Article 60: ‘Except in case of sickness or accident, an official may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorized absence which is duly established shall be deducted from the annual leave of the official concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period …’.