JUDGMENT OF 16. 3. 1978 — CASE 115/76 LEONARDINI v COMMISSION

In Case 115/76

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, J. Menens de Wilmars and A. O'Keeffe, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

The facts and arguments put forward by the parties during the written procedure may be summarized as follows:

I — Facts and written procedure

1. Mr Leonardo Leonardini, a former official of the Commission of the European Communities, terminated his service on 30 June 1973 under Regulation No 2530/72 of the Council of 4 December 1972. On 25 April 1966 he suffered an accident at work resulting in certain injuries. The first certificate which the applicant submitted to the Commission assessed the degree of partial permanent invalidity resulting from the accident at 20 % (Application, Annex 26). The insurers with whom the Commission of the EAEC had at the time effected accident cover for its staff in the absence of the rules provided for in Article 73 of the Staff Regulations decided to have the applicant examined by their medical adviser. That examination took place in May 1967. In view of a repon made by the applicant's dentist the insurers by letter dated 9 May 1968 asked the Commission to send them a certificate that the dental treatment could be taken to have been concluded as soon as this was the case. On 18 September 1968 the Commission sent the insurers such a certificate, dated 15 September 1968 and assessing his partial permanent invalidity with regard to his dental injuries at between 35 and 38 %. On 30 December 1968 the insurers proposed that his partial permanent invalidity should be assessed at 6 % (Application, Annex 23). This proposal, which was forwarded by the Commission to the applicant on 11 January 1969, was rejected by him in a letter dated 18 January 1969 (Application, Annex 22). This being so it was decided that the degree of partial permanent invalidity should be decided definitively by the Commission's Medical Service. After an exchange of several notes on the question whether the medical treatment which the applicant had to undergo as a result of his accident was concluded, the applicant was given a medical examination on 4 November 1971 by a specialist selected by the Commission. In view of the results of that examination the Commission's Medical Service in a report dated 22 December 1971 assessed the degree of partial permanent invalidity at 6 %. In a memorandum dated 7 June 1972 the Director General for Personnel and Administration informed the applicant that the degree of partial permanent invalidity resulting from the accident of 25 April 1966 had been fixed at 6 % (Application, Annex 12).

2. The applicant submitted a complaint dated 14 June 1972 under Article 90 of the Staff Regulations against that memorandum and stressed inter alia the ‘great difference’ between the degree of invalidity determined by the institution and that assessed by the medical practitioners treating him. The Commission replied to the applicant in a letter dated 25 September 1972 that after a thorough examination of the complaint it had been decided to have the partial permanent invalidity determined ‘by a medical practitioner unconnected with the institution appointed by agreement between the institution's medical adviser and your attending practitioner’ (Application, Annex 10). The institution's medical officer and the applicant's attending practitioner agreed on the appointment of an arbitrator who conducted a medical examination of the applicant on 2 July 1974.

3. On 21 October 1975 the applicant submitted a request under Article 90 (1) of the Staff Regulations asking basically: (a) that the new degree of invalidity be determined by decision; (b) that he be completely reimbursed under Article 70 (3) of the Staff Regulations for the medical expenses caused by the accident, and (c) that he be awarded default interen from the date of the accident both on the principal determined according to the new degree of invalidity and on the whole amount of the medical expenses to be reimbursed (Application, Annex 3). Since the administration did not reply the applicant submitted a complaint on 19 May 1976 (Application, Annex 2) under Article 90 (2) of the Staff Regulations in which he repeated his claims, save that he stated that as regards the medical expenses default interen should run from the time when those expenses were incurred. In that complaint the applicant also claimed compensation for the material and non-material damage occasioned by the wrongful delay on the pan of the institution in settling his claim.

4. By letter dated 16 September 1976 (Application, Annex 1) the Director General for Personnel and Administration informed the applicant inter alia that the procedure contemplated by the decision of the Commission of 25 September 1972 was completed and that the degree of partial permanent invalidity had been determined at 16 % (that is, Bfrs 382361). That sum was paid to the applicant on 30 September 1976. Drawing attention to the fact that that decision does not deal with his claims (a) for the payment of default interest on the principal sum from the date of the accident and (b) for the payment of damages and accepting that silence as an implied decision of rejection within the meaning of the Staff Regulations, the applicant without questioning the determination of the degree of invalidity at 16 % and without repeating his claim for reimbursement of the medical expenses made the present application.

5. The application was lodged at the Registry of the Court on 8 December 1976. After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided that the Commission should be asked to produce before the oral hearing all the documents relating to the applicant's accident and to the dealings of the Commission with the insurers and to state at the same time the reasons why the documents relating to the applicant's accident were not in his personal file.

II — Conclusions of the parties

The applicant claims that the Court should:

‘1. Annul the implied decision of rejection of his complaint of 19 May 1976 inasmuch as that complaint also had as its object the award of default interest and compensation for the injury suffered; 2. Rule that default interest at the rate of 8 % is due on the capiul of Brs 382361 from the day of the accident or, alternatively, from the end of September 1969, until the day of payment of the capiul; 3. Order the defendant to pay to the applicant by way of default interest the sum of Bfrs 318634 or alternatively the sum of Bfrs 214122; 4. Rule that default interest on the sum of Bfrs 318634 or alternatively on the sum of Bfrs 214122 is due by the defendant at the rate of 8 % per annum from 1 October 1976, or alternatively from the date of lodging of this application, until the date of actual payment; 5. Order the defendant to pay the costs’.

The defendant claims that the Court should:

‘— Dismiss the present application in its entirety as unfounded; — Order the applicant to pay the costs’.

III — Submissions and arguments of the parties

In support of the application the applicant makes the following submissions:

Infringement of Article 24 of the Staff Regulations, in that there was a considerable and abnormal delay in determining the degree of invalidity (25 April 1966— 16 September 1976) due to the wrongful act or omission of the Commission;

Infringement of the principle that the wrongful act or omission on the part of the administration renders it liable and gives a right to compensation for resulting damage.

In the present case the delay in dealing with the file was such as necessarily to give rise to the presumption of a wrongful act or omission on the part of the Commission.

a) The applicant makes the following observations on these irregularities: Apart from the fact that the invalidity was stabilized at the end of 1968 (since the office responsible for payment informed the applicant on 11 January 1969 of the proposal by the insurers to assess the degree of invalidity at 6 %), the Commission was guilty of several acts of negligence, in particular:

Since the applicant did not accept the aforementioned proposal the Commission informed him on 6 March 1969 that his file was being studied; however, it was not until November 1971, after several reminders, that a medical examination was conducted by the Commission;

It was not unul 7 June 1972 that the Commission informed the applicant of the result of that examination, involving the degree of invalidity being fixed at 6 %;

After the Commission decided on 25 September 1972 to have the degree of invalidity determined by a medical arbitrator to be appointed by mutual agreement between the applicant's private doctor and the medical officer of the institution, the head of the Commission's Medical Service did not contact the applicant's medical adviser for this purpose until December 1973;

Although the medical officer was invited he was neither present nor represented at nor did he excuse his absence from the medical examination carried out by the medical arbitrator in Milan on 2 July 1974;

The medical officer did not contact the medical arbitrator again on the subject of that examination unul September 1975, at a time when the decision of the medical arbitrator was no longer open to discussion;

After this resumption of contact it was not until September 1976 that the Commission informed the applicant of its decision to fix the degree of invalidity at 16 o/o.

b) With regard to the damage alleged the applicant further observes: The applicant sutes finally, as regards his alternative claim for default interest from the end of September 1969, that even assuming that his invalidity did not formally arise until 11 January 1969 the dispute regarding the degree of that invalidity could have been settled, if necessary by arbitration, before the end of September 1969. The defendant denies that it was guilty of a wrongful act or omission in settling the present case. To this effect it rehearses the course of events since 25 April 1966 until 16 September 1976, which in its view is divided by the following facts into four periods:

That the capital sum due in the event of invalidity (which under Article 73 (2) (b) and (c) of the Staff Regulations should be calculated on the basis of the amounts of salary received during the 12 months before the accident) was calculated in the present case according to the degree of invalidity determined in September 1976 on the salary paid in April 1966. The value of money has considerably depreciated since then, while the salaries of officials have considerably increased;

If the determination of the degree of invalidity and consequendy the corresponding payment of capiul had been undertaken within a reasonable period the applicant could have invested his capital and received the interest from that date.

a) First period (25 April 1966 — 11 January 1969):

Submission of the first medical report by the applicant assessing the degree of invalidity at 20 %.

Examination of the applicant in May 1967 by the medical officer of the insurers with whom the Commission had effected accident cover in respect of its staff in the absence of the implementing rules under Article 73 of the Staff Regulations.

Second medical report dated 22 November 1967 submitted by the applicant to the Commission, assessing the degree of invalidity at 25 % in respect of the dental injuries (Application, Annex 25).

Note of 9 May 1968 sent to the Commission by the insurers who, as advised by their medical officer, took the view that the dental treatment could not be regarded as terminated and asked the Commission to send them, as soon as the dental treatment was ended, a certifícate to that effect.

Submission by the Commission to the insurers on 18 September 1968 of a medical certifícate dated 15 September 1968 drawn up by a medical practitioner acting for the applicant and assessing the degree of invalidity at 35-38 % in respect of the dental injuries.

Proposal by the insurers of a degree of invalidity of 6 %, brought to the knowledge of the applicant by a note from the Commission dated 11 January 1969.

b) Second period (umil 7 June 1972):

Rejection of that proposal by the applicant and submission of a new medical certificate dated 15 February 1969 assessing the degree of invalidity at 55 % for the consequences of the accident as a whole. Since recourse to arbitration provided for in Article 13 of the insurance policy was not possible because the applicant did not agree, it was decided that the degree of invalidity would be definitely fixed by the Medical Service of the Commission, and this moreover accorded with the wishes of the applicant as expressed during a meeting on 3 July 1969 (Defence, Annex VII).

Several successive notes from the Commission asking the applicant to give the name of the medical practitioner treating him and to confirm that the medical treatment which he had had to have as a result of his accident as terminated.

Note from the applicant dated 28 January 1971 stating mat additional treatment was necessary and forwarding fresh medical reports assessing the degree of invalidity as a whole at 38 %. The applicant was again asked by notes dated 22 July and 21 October 1971 to produce a certificate to the effect that his dental treatment was terminated or alternatively stating the stage reached in that treatment.

On 4 November 1971 the applicant was examined by a specialist appointed by the Commission. As a result of that examination and in view of the applicant's file as a whole the Medical Service of the Commission drew up a report dated 22 December 1971 assessing the degree of invalidity at 6 %. The administrative authority confirmed that assessment by decision of 7 June 1972 and in so doing took account of the observations of the applicant concerning the relevant scales. The capiul sum so calculated was paid to the applicant on 9 June 1972.

c) Third period (until 2 July 1974)

The applicant returned that sum and on 14 June 1972 lodged a complaint under the Staff Regulations against the aforementioned decision of 7 June 1972. That decision was rescinded by the Commission, who informed the applicant that the degree of partial permanent invalidity would be determined ‘by a medical practitioner not responsible to the Commission and appointed by common agreement between the medical officer of the Commission and your private medical practitioner’.

The name of the last-mentioned practitioner was supplied by the applicant at the end of October 1973.

On 12 December 1973 the Commission contacted the said practitioner for the purpose of appointing the arbitrator. By letter dated 5 March 1974 the Commission agreed to the appointment of one of the medical practitioners proposed and on 27 May 1974 wrote to him informing him that he had been appointed to act as umpire, asking him to examine the applicant and at the same time enclosing the relevant scales for calculating degrees of invalidity for servants of the Commission.

The Commission's Medical Service was not asked to send a representative to be present at that examination. It was only on receipt of a letter dated 23 July 1974 from the arbitrator that the Medical Service became aware that the medical examination had been carried out by the arbitrator on 2 July 1974 in Milan in the presence of the applicant's private practitioner (Defence, Annex IX) and that the Service received a copy of the report made following that examination. That report, which was not available to the Medical Service, after translation, until September 1974, determined a degree of invalidity of 17 %.

d) Fourth period (until decision of 16 September 1976)

There was a meeting on 22 September 1975 between the head of the Medical Service and the arbitrator on the subject of the result of the said examination and the conditions under which it had taken place, in particular in view of the fact that the report relating to it was based on scales other than those supplied by the Commission, taken from the Italian legislation. That meeting was followed by an exchange of letters, the last of which from the arbitrator being dated 28 April 1976 and available, so it appears, in translation during June 1976.

On 16 September 1976 there was a letter from the Commission informing the applicant that the degree of invalidity had been fixed at 16 %.

Having set out these facts the defendant addresses itself to the two submissions made by the applicant and makes the following observations:

(a) Infringement of Article 24 of the Staff Regulations

Article 24 of the Staff Regulations, which is of general scope, does not apply in cases governed by specific provisions of the Staff Regulations. Accident risk is specifically covered by Article 73 of the Staff Regulations. In addition, Article 24 (and in particular its first paragraph) relates mainly to damage intentionally caused to an official, his family or property by reason of his position or duties. Moreover, it is not disputed that in the present case the Community must assist the applicant. The present action relates only to the delay in the payment of the allowances for the invalidity found and therefore raises a question which is not covered by Article 24 of the Staff Regulations.

(b) Wrongful act or omission on the part of the Commission in dealing with the file

First, it is necessary to observe that the applicant's argument regarding the alleged damage arising from the increase in the salaries of officials between 1966 and 1976 comes up against Article 2 (c) of the Staff Regulations, so that the only relevant question can be that of the damage arising from the alleged wrongful delay on the part of the Commission in the present case.

Further, the length of time between the date of the accident and the decision of 16 September 1976 cannot in itself lead to a presumption of a wrongful act or omission on the pan of the Commission. According to the principles of law applicable to the case it is for the applicant to prove the existence of any wrongful an or omission.

There is no such proof in the present case, for the Commission cannot be said to have been guilty of a wrongful act or omission throughout the procedure for the setdement of the file in question.

The applicant himself does not complain of ‘negligence’ on the part of the Commission until the second period. The relative length of that period is due in part to the difficulty of establishing an ad hoc procedure in the absence of the implementing provisions provided for in Article 73 (1) of the Staff Regulations and further to the refusal or failure by the applicant to provide the particulars repeatedly requested by the Commission.

As for the third period, it was the persistent silence of the applicant from September 1972 to October 1973 which prevented the procedure from taking the normal course. likewise as regards the fourth period, the period of a year between receipt of the repon from the arbitrator and the meeting between him and the head of the Commission's Medical Service is due to the rather delicate situation in which the Commission found itself by reason of the irregular nature of the procedure adopted for the medical examination on 2 July 1974 and the problems involved in the conversion of the degree of invalidity determined by the arbitrator on the basis of the Italian scales.

In view of these circumstances it is not possible to find the Commission guilty of a wrongful act or omission. This is all the more so since the absence of rules for the implementation of Article 73 of the Staff Regulations caused the administration to adopt an ad hoc procedure and the applicant was himself guilty on many occasions of unreasonable, or in any event unjustifiable, neglect.

(c) The default interest claimed

Since the Commission has not been guilty of any wrongful act or omission in the present case, the question of the payment of default interen does not arise; it could arise only if the Commission were found liable for a wrongful act or omission.

As for the question of the time from which such interen should be calculated the following observations may be made:

Firn of all, the consequences of the accident determining the degree of invalidity cannot be regarded as having been clear before 4 November 1971, when the Medical Service examined the applicant.

Secondly, according to the case-law of the Court formal notice from the applicant is necessary to establish delay on the part of the administration and to determine the moment from which it begins. In the present case the complaint made on 14 June 1972 was unreservedly abandoned by the applicant as a result of the proposal by the Commission to pursue a new procedure to determine the degree of invalidity. In the circumstances it is only the request dated 21 October 1975 submitted by the applicant under Article 90 (1) of the Staff Regulations which may be regarded as formal notice within the abovementioned meaning so that the said interen cannot in any event be regarded as running from a time earlier than that date, it being understood moreover that the applicant's share in the responsibility for the delay in payment should reduce correspondingly the period for which the Commission was liable.

This said, it is fitting to observe further that the Commission paid the applicant on 19 June Bfrs 143386, representing a first determination of the degree of invalidity at 6o/o and that the applicant of his own accord returned that sum to the Commission. In these circumstances the damages claimed by the applicant cannot in any event embrace the payment of that sum, for which there was no delay, but should relate solely to the payment of the balance, that is to say Bfrs 382361 — Bfrs 143386 — Bfrs 238975.

Finally, there is no foundation in the claim for payment of default interest on the capiul created by the default interest on the capiul payable in respect of the partial permanent invalidity. Since the Commission considers that the applicant is not entitled to the latter interest, the failure to pay it cannot in itself be wrongful.

In his reply the applicant challenges the defendant's version of the course of events, which far from showing negligence on his part reveals the wrongful delays on the pan of the Commission. In this respect he observes, inter alia:

The defendant's claim that the recourse to arbitration provided for in Article 13 of the insurance policy was not possible in the absence of the applicant's consent is not correct. In fact the applicant never objected to independent arbitration, as is shown by his acceptance of the decision of 25 September 1972. Moreover, the applicant's alleged refusal to consent to arbitration is irrelevant. The matter in any case ought to have gone to arbitration and the applicant would have had to bear the consequences if he had failed to attend before the arbitrator.

The defendant's version of the meeting on 3 July 1969 is also not correct. It is not true that at that meeting the applicant expressed the wish to have the degree of invalidity determined directly by the Commission's Medical Service. On the contrary, what was then agreed was that there should be arbitration by an independent medical practitioner selected by agreement between the head of the Medical Service and the practitioner treating the applicant. This is confirmed by the way the applicant acted, for since he did not accept the determination of the degree of invalidity by the Commission's Medical Service he had no alternative but to agree that the degree of invalidity should be determined by an independent practitioner.

There is no valid reason to explain why, after a decision was taken on 3 July 1969 to obtain a specialist's opinion, this was not obtained until 4 November 1971. It was not necessary to know the sute of the medical treatment of the consequences of the accident and the name of the practitioner treating the applicant in order to obtain the specialist's opinion which was decided upon on 3 July 1969. In any event, medical certificates were lodged in support of the requests for reimbursement of the medical expenses and those certificates showed both the sute of the treatment and the name of the practitioner treating the applicant. Further, it was not until 7 June 1972 (more than six years after the accident) that the applicant was finally informed of the Commission's decision to fix the degree of his invalidity at 6 %, so that at that date there was a return to the position on 11 January 1969.

The defendant's complaint that the applicant by his persistent silence from September 1972 to October 1973 obstructed the normal course of the procedure is quite unjustified. Following the decision of 25 September 1972 it was for the administration and not the official to take action, since it was the administration's duty to sun the procedure required by that decision. The fan that 15 months were necessary between the said decision and the first contact by the Medical Service with the practitioner treating the applicant (12 December 1973) in order to set that procedure in motion is in any event an unreasonable delay for which the defendant is responsible.

Not only was the Commission's Medical Service invited to attend the medical examination by the arbitrator, but the arbitrator was informed that the service in question would be represented at the examination. The medical arbitrator further testified that since he had not received the scales from the Commission's Medical Service he had used a centesimal system allowing his assessment of the degree of invalidity to be converted to the scale used by the Commission (Reply, Annex 3).

This being so, it follows that the dies a quo of the default interest should be at the very least the end of September 1969, more than eight months after the date (11 January 1969) on which it is proper to regard the permanent consequences of the accident as having been apparent, that period being quite sufficient to allow an arbitrator to determine the degree of invalidity. As for the defendant's argument that there was no formal notice prior to the complaint of 21 October 1975, the applicant refers to his notes of 16 January 1968, 18 January 1969 and 12 March 1969 (Application, Annexes 24, 22 and 20).

As regards the basis for the calculation of that interest, the applicant challenges the defendant's argument that the capital amount awarded should be reduced by the sum paid to the applicant on 9 June 1972. First of all, the applicant should not be penalized for the fact that upon objecting to a decision he at the same time returned what was paid to him under such decision. Secondly, that repayment did not increase the damage which had to be compensated and was thus in that respect of neutral effect. Finally, even assuming that the Court accepts the defendant's case, the default interest should be payable not only on the capital so reduced from 10 June 1972 to 30 September 1976, but also on the whole capital sum from the date of the accident or the end of September 1969 until 9 June 1972.

As regards the question of ‘interest due on default interest on the capiul’, it is accepted that interest on a sum legally recognized as being due (in the present case, the default interest on the capiul) is in any case due from the date on which the legal proceedings to obtain payment of the sum are instituted without its being necessary to show any wrongful act or omission.

The defendant also takes up again in its rejoinder the arguments previously put forward and stresses the following aspects:

It is at the very least doubtful whether the date on which the permanent consequences of the accident were apparent can be regarded as being 11 January 1969, especially as the practitioner treating the applicant had in his report of 25 January 1971 made a reduction (38 %) in the degree of invalidity which he had determined altogether at 55 % in his report of 15 February 1969.

The applicant, as shown by a note dated 18 January 1969 (Rejoinder, Annex XXIII), refused the arbitration procedure provided for by the insurance policy and this caused difficulties in reaching a proper settlement.

The applicant's claim that he had never accepted that the degree of invalidity should be established by the Commission's Medical Service conflicts with the applicant's note dated 5 November 1971 (Application, Annex 17).

The head of the Medical Service was never aware of an invitation to attend the examination carried out by the medical arbitrator, or of the date on which it was to take place (Rejoinder, Annexes XXV and XXVI, and offer to call the head of the Medical Service as a witness).

IV — Oral procedure

The parties presented oral argument at the hearing on 13 October 1977.

The Advocate General delivered his opinion at the hearing on 22 February 1978.

Decision

1. The application, lodged on 8 December 1976, seeks an order that the Commission of the European Communities should pay default interest on Bfrs 382361, the capital sum payable to the applicant in respect of the degree of partial permanent invalidity which he is recognized to have suffered as the result of an accident at work on 25 April 1966 at a time when he was still employed by the Commission.

2. The applicant claims that the amount of that interest should be calculated, on the basis of a rate of 8 % per annum, from the date of the accident or alternatively from the end of September 1969 until the date of payment of the capital sum corresponding to the degree of partial permanent invalidity, namely 30 September 1976.

3. Further, the application claims that the Commission should be ordered to pay the applicant interest at the rate of 8 % per annum on the aforementioned amount by way of default interest from 1 October 1976 or alternatively from the date on which the present application was lodged to the date of payment of the said sum.

4. In support of these conclusions the applicant maintains that since the claims arising from his accident were not settled until 16 September 1976, whereas the accident occurred on 25 April 1966, there was excessive and abnormal delay due to the negligence of the Commission.

5. The latter thereby not only infringed Article 24 of the Staff Regulations but was guilty of a wrongful act or omission for which it is liable to the applicant.

6. Article 24 of the Staff Regulations provides that the Communities shall assist any official and shall jointly and severally compensate him for damage suffered as a result of threats, insulting or defamatory acts or utterances, or any attack to person or property to which he or a member of his family is subjected by reason of his position or duties and refers to situations other than that in question.

7. Therefore the claim based on infringement of that provision is not relevant in the present case.

8. Accident risk cover in respect of an accident such as that suffered by the applicant is on the other hand provided for by Article 73 of the Staff Regulations, the first paragraph of which refers in respect of its implementation to ‘rules drawn up by agreement between the Institutions of the Communities after consulting the Staff Regulations Committee’.

9. In the absence of any such rules the Commission took out an insurance policy with private insurers to cover its staff against the risk of accident and by a note dated 11 January 1969 informed the applicant of the insurer's proposal to determine the degree of partial permanent invalidity at 6 %.

10. Article 73 of the Staff Regulations is concerned with the social security of officials and determines the mutual rights and obligations of the institutions and their servants in social security matters.

11. Although in order to ensure as far as possible the fulfilment of its obligations and in the absence of other alternatives the Commission was entitled to have recourse to provisional measures and to take out an insurance policy specifying the conditions under which there would be cover for risk, this does not mean that the duty of an insurer may be substituted for the direct obligation on the pan of the institution under that article and in particular that in the event of an accident the institution may leave to the insurer the task of settling the problems of risk cover which arise therefrom, restricting its own role to that of intermediary between the insurer and the victim.

12. The procedure for fixing the degree of invalidity followed until 11 January 1969, the date on which the Commission informed the applicant of the proposal made by the insurers on 30 December 1968 that the degree of invalidity should be fixed at 6 %, shows that the Commission's conduct does not satisfy the said requirements of Article 73 and that it delayed settlement of the case in question.

13. That failure is all the less justified since the Legal Service of the Commission had given its opinion on 7 May 1969 that the Commission was ‘empowered and bound to assess and to determine, where appropriate, the degree of invalidity with the assistance of the competent medical practitioners, such as its medical examiners or officers’.

14. It was only after the refusal by the applicant to accept the degree of invalidity proposed by the insurers that the Commission decided to avail itself of such a power and to have that degree determined by its own medical officer.

15. Although the Commission's Medical Service was instructed in July 1969 to undertake the procedure with regard to such determination, the medical examination of the applicant did not take place until November 1971.

16. In addition, it was only by a note dated 7 June 1972 that the Commission informed the applicant that the Medical Service proposed to fix the degree of partial permanent invalidity at 6 %.

17. The Commission states that the reason for the protracted nature of that procedure was the refusal or omission by the applicant to supply information requested in November and December 1970 and in January 1971 by the Medical Service with regard to the name of his private practitioner and the stage reached in the medical treatment which he was undergoing.

18. It is not, however, contested that the medical certificates produced to the Medical Service of the Commission in support of the claim for reimbursement of the expenses showed both the stage of the treatment and the name of the applicant's practitioner.

19. Moreover, since the Commission had decided to have the degree of invalidity determined directly by its Medical Service, neither the name of the private practitioner nor the stage of the medical treatment was necessary for the purpose of the medical opinion contemplated by the institution.

20. After the Commission, by decision of the authorizing officer of 9 June 1972, had transferred to the applicant's bank account the sum of Bfrs 143386, representing a degree of partial permanent invalidity of 6 % the applicant returned that sum and on 14 June 1972 submitted a complaint under Article 90 of the Staff Regulations against the aforementioned decision of 7 June 1972.

21. As a result of that complaint the aforementioned decision was revoked and by a note dated 25 September 1972 the Commission informed the applicant that it had decided to have the degree of invalidity determined by a medical practitioner independent of the institution to be selected by agreement between the Commission's medical officer and the applicant's private practitioner.

22. Although the applicant did not make known the name of his private practitioner until the end of October 1973, nevertheless it was only by letter dated 27 May 1974 that the Commission's medical officer, having chosen the arbitrator in March 1974 from the persons proposed by the applicant's private practitioner, informed the arbitrator selected of his appointment and gave him the instructions necessary to perform his task.

23. The arbitrator conducted the medical examination of the applicant on 2 July 1974 and by letter dated 23 July 1974 forwarded his repon to the institution's medical officer; the latter took no official action on it until his letter of 3 December 1974, sent to the head of the Staff Regulations Division of the Commission, in which he questioned the regularity of the arbitration procedure on the grounds that the medical examination had taken place in the absence of a representative of the Medical Service and that the arbitrator had not used the scales in force at the Commission to determine the degree of invalidity.

24. It was not until September 1975 that a meeting was arranged between the head of the Medical Service and the arbitrator to clarify the issues in dispute regarding the repon and the conditions under which the medical examination was conducted.

25. That meeting was followed by an exchange of correspondence of a strictly medical nature which, according to the particulars supplied by the defendant, continued until April 1976.

26. However, it was not until 16 September 1976 that the Commission informed the applicant by letter that the degree of his partial permanent invalidity had been fixed at 16 %.

27. It is apparent from the foregoing that although the applicant has not always shown all the diligence necessary to avoid the difficulties inherent in settling the case in question, the institution's conduct in the present instance nevertheless reveals negligence which is all the more reprehensible since, under the powers given to it by the Staff Regulations and in the interests both of the service and of the applicant, the institution was in a position to arrange for a settlement of the case within a much more reasonable period.

28. As regards more particularly the regularity of the medical examination carried out by the arbitrator, it is common ground that the letter of 27 May 1974 from the head of the Medical Service informing the arbitrator of his appointment and of what was required of him did not make it a necessary condition for the regularity of that examination that a representative of the Medical Service of the institution should be present.

29. Moreover, it appears from a letter dated 2 May 1977 sent by the arbitratorto the applicant's counsel that the Medical Service was twice informed by telephone of the date on which the medical examination was to take place and that it replied that a representative would attend.

30. In confining itself to countering that the head of the Medical Service himself did not receive such information the defendant does not necessarily exclude the possibility that it was nevertheless given to other members of the Medical Service.

31. Further, the fact that the arbitrator, in the absence of the scales forwarded by the medical service, used centesimal scales cannot be regarded as justifying the delay on the part of the Commission in reaching its conclusions with regard to the specialist's report, since the defendant itself has not denied that the centesimal system allowed of a simple conversion of the proposed assessment of the degree of partial permanent invalidity to the scale used by the Medical Service.

32. In those circumstances the Commission must be ordered to pay default interest to the extent hereinafter specified.

33. It appears from the facts of the case that the medical officer of the private insurers undertook a medical examination of the applicant in May 1967 and that on the advice of that practitioner the insurers reserved their position until such time as they should receive through the Commission a medical certificate stating that the dental treatment could be regarded as terminated.

34. Not until 30 December 1968, on the basis of a medical certificate dated 15 September 1968 relating to that treatment, did the said insurers formulate a proposal that the degree of partial permanent invalidity be fixed at 6 %; the Commission conveyed that proposal to the applicant by note dated 11 January 1969.

35. Having regard to the fact that the Commission ought, from the beginning and for the above-mentioned reasons, to have entrusted to its Medical Service the task of determining the degree of partial permanent invalidity, as it did after July 1969, instead of leaving that task mainly to the medical officer of the insurers and thus subjecting the procedure for the settlement of the case to an unjustified delay, it appears reasonable to fix the date from which default interest should be calculated at 1 September 1968.

36. Further, since the repayment by the applicant of the sum of Bfrs 143386, which the Commission had transferred to him by decision of the authorizing officer of 9 June 1972, was unnecessary in the circumstances of the case to protect the applicant's rights with regard to the fixing of the degree of partial permanent invalidity, it is right to deduct that sum from the amount finally paid on 30 September 1976 and thus to calculate the default interest from 10 June 1972 on the balance of Bfrs 238975.

37. Finally, default interest at the rate of 8 % per annum in respect of the above years by way of damages appears justified in the circumstances of the case, having regard inter alia to the fact that it is a fixed rate and to the lengthy delay preceding settlement of the claims arising from the accident.

38. For these reasons it is right to order the Commission to pay to the applicant default interest at 8 % per annum on Bfrs 382361 from 1 September 1968 to 9 June 1972 inclusive and on Bfrs 238975 from 10 June 1972 to 30 September 1976 inclusive.

39. It is right to increase the amount thus obtained by interest awarded by the Court at 8 % per annum from 1 October 1976 until the date of payment.

Costs

40. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

41. The defendant has failed in its submissions.

On those grounds, THE COURT (First Chamber) hereby: