JUDGMENT OF 15. 1. 1981 — CASE 731/79 B. v PARLIAMENT
In Case 731/79
THE COURT (Third Chamber) composed of: J. Mertens de Wilmars, President, Lord Mackenzie Stuart and O. Due, Judges, Advocate General: H. Mayras Registrar: H. A. Rühl, Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case and the arguments put forward by the parties during the written procedure may be summarized as follows :
I — Facts and procedure
On 1 February 1977 the applicant was appointed medical officer of the defendant institution in Grade A 3 after having been employed by it since 1 May 1975 as a doctor with the status of “special adviser” within the meaning of Article 5 of the Conditions of Employment of Other Servants of the European Communities.
In a letter of 22 February 1978 to the Secretary-General of the European Parliament he complained that his health had deteriorated, in his view because of bad working conditions owing to the defective state of the premises in which he had to practise his profession. Those working conditions were then examined by Dr Brandt, medical officer of the Council of Europe, who considered that they were in fact unsuitable. On 16 April 1978 the applicant asked for the initiation of the procedure for establishing whether he was suffering from an occupational disease caused by the defective state of the premises placed at his disposal.
That procedure is governed by the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and Occupational Disease (hereinafter referred to as “the Rules”), adopted under Article 73 (1) of the Staff Regulations. It involves the following stages :
1) The statement submitted by the official (Article 17 (1));
2) The inquiry carried out by the administration (Article 17 (2));
3) The draft decision of the appointing authority based on the findings of the doctor or doctors appointed by the institution (the first paragraph of Article 21);
4) Where the official so requests, reference of the matter to the Medical Committee (Article 19 and the second paragraph of Article 21);
5) After the Medical Committee, if consulted, has delivered its opinion the final decision is taken.
By a letter of 16 June 1978 the Director-General for Administration, Personnel and Finance at the European Parliament informed the applicant that he intended to set up a “Medical Board” which would be required to give an opinion on his state of health, on the possible connexion between his state of health and his working conditions at the Parliament and on the advisability of initiating the procedure for retiring him on the ground of invalidity under Article 53 of the Staff Regulations. In the same letter the European Parliament suggested to the applicant that he and the Parliament should each appoint a member of that Medical Board. The work of the Board has only been carried out under all kinds of difficulties and had not been finished when this action was brought. The parties blame each other for the delay.
On 21 June 1979, that is to say one year later, finding that the applicant's sick leave totalled more than twelve months in a period of three years, the defendant institution notified him of its decision to initiate the procedure for retiring him on a pension on the ground of total permanent invalidity making it impossible for him to perform his duties, as provided for in Articles 53, 59 and 78 of the Staff Regulations.
The present application is directed against that decision. On 10 August 1979 and 16 September 1979 the applicant submitted a complaint pursuant to Article 90 of the Staff Regulations. On 12 October 1979, without waiting for the institution's reply to that complaint, the applicant brought this action before the Court of Justice together with an application under Article 91 (4) of the Staff Regulations for the adoption of interim measures. That application was dismissed by an Order of the President of the Court dated 5 December 1979. As provided by Article 91 (4) of the Staff Regulations the proceedings in the principal action were then suspended until, by a decision of 15 January 1980, the President of the European Parliament rejected the aforesaid complaint. The written procedure then resumed its normal course.
On hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Third Chamber) decided to open the oral procedure without any preparatory inquiry.
II — Conclusions of the parties
The applicant claims that the Court should:
1) Declare that the application is admissible;
2)
a) Rule that the setting up or the working of an Invalidity Committee within the meaning of Article 59 (1) of the Staff Regulations is unlawful or at least is unjustified in the present circumstances and should therefore be terminated; In the alternative, direct the European Parliament or its responsible bodies or officials to terminate or suspend the setting up or working of such a committee until a final decision has been taken in the examination of the applicant's occupational disease;
b) Order the European Parliament or its responsible bodies or officials to put an end to all measures which may hinder, delay and/or thwart the work of the Medical Board to ascertain whether the applicant suffers from an occupational disease;
c) Rule that the Medical Board's work be actively continued and completed as laid down in the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease, in particular Article 21 thereof;
3) Order the European Parliament to bear the costs.
The European Parliament contends that the Court should:
1) Dismiss the application as inadmissible or at least as unfounded;
2) Order the applicant to pay the whole of the costs in accordance with Article 69 (3) of the Rules of Procedure.
III — Submissions and arguments of the parties
A — Application
a) In the first place, the applicant considers it unlawful to set in motion the procedure for retiring him on a pension on the ground or total permanent invalidity preventing him from performing his duties (Articles 53, 59 and 78 of the Staff Regulations), so long as the Medical Board set up pursuant to the Rules has not completed its work. He submits that the second procedure initiated will impede the smooth running of the first. In his view the fourth subparagraph of Article 59 (1) of the Staff Regulations has been infringed, because two inconsistent decisions may be taken, whereas the provision in question is intended to put an end to the uncertainty of the situation in the interests of both the institution and the sick official.
b) Secondly, he criticizes the steps taken by the defendant institution or its officials which have hindered and made impossible the work of the Medical Board. He also takes exception to what he regards as the biased way in which the European Parliament wishes to set up the Invalidity Committee.
c) Finally, he maintains that the European Parliament is wrongfully refusing to apply the Rules and that in particular it is contravening Article 21 of the Rules.
B — Defence
1. Admissibility
The European Parliament disputes the admissibility of the application. The application for a declaration that the setting up of the Invalidity Committee is unlawful (the first sentence of claim 2 (a) of the application) is inadmissible, in so far as the applicant submits that the composition of the Invalidity Committee is unlawful. There is no act adversely affecting him within the meaning of Article 91 (1) of the Staff Regulations, since the third doctor sitting on that Committee was appointed at the request of the European Parliament by the President of the Court of Justice in accordance with the last paragraph of Article 7 of Annex II to the Staff Regulations of Officials of the European Communities.
The claims that the Court should order the European Parliament to suspend the working of the Invalidity Committee (the second sentence of claim 2 (a)) and to discontinue all measures which may prevent the Medical Board from establishing that the applicant suffers from an occupational disease (claim 2 , (b)) and to expedite the work of that Board (claim 2 (c)) are inadmissible, first because the Court does not have jurisdiction to issue instructions to the defendant institution, secondly because there is no legal act that can be annulled, and finally because, even if it is possible to show that there are legal acts, they are simply preparatory and not therefore of such a kind as to affect an official adversely.
2. Substance
The defendant institution points out that the applicant does not rely on any facturai or legal submission relating to the lack of competence of the authority which took the contested decision, to the infringement of an essential procedural requirement, to the infringement of a rule of Community law or, finally, to misuse of powers. He has not established that any provision of the Treaties or the Staff Regulations, in particular Article 59 of the latter, has been infringed. Furthermore, the conditions for establishing misuse of powers are in no way satisfied since the applicant has not proved that the institution sought to attain any objective other than the lawful objective referred to in the last subparagraph of Article 59 (1). The European Parliament has displayed all the requisite diligence and the procedure for establishing whether the applicant's illness was caused by his occupation is entirely separate from that relating to his invalidity.
In the alternative, the European Parliament submits that the claims which it considers to be inadmissible are also entirely lacking in foundation and for this reason must in any case be dismissed.
C — Reply
1. Admissibility
The applicant after expatiating on the facts which in his view have given rise to the action, replies as follows to the objections of inadmissibility pleaded by the defendant.
He points out in the first place that the claim for the annulment of the decision setting up the Invalidity Committee (the first sentence of claim 2 (a)) is in any event admissible and that the annulment of that decision will entail the annulment of the decisions implementing it. As for the alternative claim that the Committee be forbidden to continue its proceedings, he leaves that to the discretion of the Court. In fact that claim related only to the application for the adoption of interim measures which he lodged at the same time as his principal application.
As regards the other heads of claim, the applicant takes the view that the obligations of the European Parliament include not only those arising out of the provisions of the Staff Regulations but also those derived from general principles of law and in particular from the general principles of good administration. Those general principles have the same importance as statutory provisions.
He also maintains that the contested measures adversely affect him because as a result of the failure to take the requisite steps and of the effect of the contested decision he is running such a considerable financial risk that he will no longer be able to prosecute his action for payment of the benefits provided for in respect of occupational disease.
2. Substance
The applicant considers that in its endeavour to set up the Invalidity Committee precipitately, omitting moreover to take the necessary steps to bring the proceedings of the Medical Board to a successful conclusion, the European Parliament used its powers under Article 59 of the Staff Regulations illegally. Thus it has given the impression that its aim was to adjourn the proceedings of the Medical Board sine die and to favour the proceedings of the Invalidity Committee with a view to reducing the applicant's income. The contested decision contravenes the Staff Regulations, in particular Article 25 thereof, and is also in breach of the general principles of good administration which the defendant institution is required to observe. According to the applicant, the European Parliament undertook in its letter of 16 June 1978 not to set up the Invalidity Committee before the Medical Board had completed its work and it is bound by that undertaking. In any event, it could be released from that undertaking only if the proceedings of the Board had been seriously delayed owing to the applicant's fault. However that is not the case because the European Parliament is solely to blame for the delays in these proceedings. Moreover, those delays were compounded by the Parliament's refusal to take the appropriate steps at the proper time to avoid exposing the applicant to the risk of occupational disease by improving the premises where he had to work.
D — Rejoinder
1. Admissibility
The European Parliament adheres to the objections of inadmissibility which it pleaded in its defence and raises a further objection.
In its view the applicant no longer has any ground for his main submission to the effect that the Parliament had undertaken not to initiate the procedure for retirement on the ground of invalidity until after the Medical Board had expressed an opinion on the advisability of so doing. In fact the doctor appointed by the applicant to sit on the Medical Board delivered his report on 18 February 1980. The doctor appointed by the Parliament submitted his observations on 14 April 1980. As from that date, in view of the third doctor's resignation from the Board, its proceedings must be regarded as terminated.
Since the Invalidity Committee was not set up until 8 January 1980, when the President of the Court of Justice appointed a doctor to be the third member thereof, the applicant can merely argue that the procedure which in his opinion ought to be followed was brought forward by no more than two months, and he no longer has any ground for relying on that submission. According to the Parliament, although this objection of inadmissibility constitutes a fresh issue it may be raised in the rejpinder under Article 42 (2) of the Rules of Procedure, because the facts on which it is based occurred after the defence was lodged.
2. Substance
After analysing the applicant's reply the European Parliament concludes that he bases his application for annulment on three submissions:
1) The setting up of the Invalidity Committee is illegal because the Parliament is seeking to attain an objective other than that which the Staff Regulations permit it to pursue.
2) The setting up of that Invalidity Committee is illegal because the Parliament undertook to apply a specific procedure by making the implementation of Article 59 subject to the assessment of the Medical Board. By not waiting for that opinion the defendant institution acted in breach of the applicant's established rights.
3) The decision to refer the matter to the Invalidity Committee did not contain an adequate statement of the reasons on which it was based (Article 25 of the Staff Regulations).
The European Parliament observes that these are in fact fresh issues raised in the course of the proceedings, which is prohibited under Article 42 (2) of the Rules of Procedure. However, for the sake of completeness it deals with the merits of these submissions.
(a) Misuse of powers
The European Parliament maintains that objective evidence that the administration acted in disregard of the purpose of the provision in question has not been adduced, for it is not sufficient that the applicant personally feared that the decision to initiate the procedure under Article 59 sought to achieve an objective other than that envisaged in the Staff Regulations. There can be no question of a misuse of powers when it is clear that the legal objective of the provision has been pursued and attained.
(b) The protection of legitimate expectation
The applicant submits that his interest in having the procedure for determining whether he suffers from an occupational disease brought to a conclusion as notified to him constitutes an established right. Thus he is relying on the principle patere legem quam ipse fecisti which the Court of Justice applied in its judgment of 5 June 1973 in Case 81/72 Commission v Council [1973] ECR 583. However, the requirements for the application of that rule are not satisfied in this case. In fact the defendant institution could not on 16 June 1978 determine the rules for the exercise of a power which it did not yet have and which was not even certain to arise in the future. It did not intend to undertake — nor could it legally — not to use in the future the powers conferred upon it by Article 59 or the Staff Regulations. In any case, if the Parliament did give any such undertaking, it could only have done so on the assumption that the proceedings of the Medical Board would not be continually interrupted and delayed by the applicant's actions. If the applicant had any established right he lost it through his own fault. Furthermore, he had himself through Dr Stein's letter of 20 December 1978, in which the latter advised the commencement of procedure for retirement on the ground of invalidity, waived any established right to have that procedure postponed.
(c) Inadequate statement of reasons
In the absence of any specific complaint by the applicant the European Parliament maintains that the fourth subparagraph of Article 59 (1) of the Staff Regulations was not infringed and refers to Article 73 (2) in fine of the Staff Regulations and also to Article 25 of the Rules.
IV — Oral procedure
At the sitting on 18 September 1980 the European Parliament, represented by F. Herbert of the Brussels Bar, presented oral argument. He submitted that the application no longer had any purpose since the Invalidity Committee had delivered its opinion and the applicant had resumed work. He left it to the Court to decide in its discretion whether to order the applicant to pay the costs.
The applicant's representative, W. H. Vermeer of the Amsterdam Bar, whilst stating that he would not be appearing at the sitting informed the Court by letter of 8 September 1980 that he adhered to his submissions.
The Advocate General delivered his opinion at the sitting on 20 November 1980.
Decision
1. By application lodged at the Court Registry on 12 October 1979, B., an official of the European Parliament in Grade A 3, brought an action in which essentially he seeks, first, the annulment of the decision of the European Parliament to initiate the procedure for retiring him on the ground of total permanent invalidity making it impossible for him to perform his duties, provided for in Articles 53, 59 and 78 of the Staff Regulations of Officials of the European Communities, and, secondly, a declaration that the procedure provided for in Article 73 of the Staff Regulations and in the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease (hereinafter referred to as “the Rules”), which was initiated at his request for the purpose of establishing through a Medical Committee whether his disablement is due to an occupational disease, must be expedited.
Admissibility
2. The defendant institution submitted during the oral procedure that the application no longer had any purpose owing to the fact that the Invalidity Committee referred to in Articles 53 and 78 of the Staff Regulations had found that the applicant was not incapable of performing his duties on account of permanent invalidity and that he had in fact resumed work, at least on a part-time basis. However, counsel for the applicant informed the Court before the sitting that although he would not be appearing, he adhered to the submissions which he had put forward during the written procedure. Furthermore, it is apparent that if the application for annulment were granted there would be no foundation for the findings of the Invalidity Committee. Consequently, it is necessary to give judgment on the application.
3. However, the second head of claim must be dismissed forthwith as inadmissible: in the first place, because the Court does not have jurisdiction to issue such instructions to a Medical Committee, and secondly because the delay in the performance of the task entrusted to that Committee is due primarily to the applicant's failure to cooperate to such an extent that it was necessary for the purpose of forming that Committee to have recourse to arbitration by the President of the Court. In these circumstances the applicant cannot be permitted to protest against a situation which he has to a great extent brought about himself.
Substance
4. The situation of which the applicant complains is due to the existence of two statutory procedures which, without prejudice to voluntary resignation, govern inter alia the situation of an official who is incapable of performing his duties owing to his state of health. The purpose of the first procedure, which is dealt with in Articles 53, 59 and 78 of the Staff Regulations, is to obtain a finding that by reason of his state of health — whatever the nature or cause thereof — the official in question cannot perform his duties. It leads to the termination of the official's service and to the award of an invalidity pension. The second procedure, which is governed by Article 73 of the Staff Regulations, supplemented by the Rules, leads, if there is a finding that the official's incapacity to perform his duties was brought about by an occupational disease, to the payment of a lump sum by way of compensation, which may be replaced by an annuity. The benefits of the second category may be paid in addition to those arising from premature retirement as a result of the application of Articles 53, 59, and 78.
5. The applicant, a doctor by profession, was engaged by the Parliament on 1 May 1975 as a special adviser within the meaning of Article 5 of the Conditions of Employment of Other Servants of the European Communities. On 1 February 1977 he was appointed medical officer of the institution and was later established as an official in Grade A 3. Thirteen months after that appointment he reported sick, stating that he was suffering from “fatigue and lethargy” (wegens moeheid en lethargie) and that his poor health was due to the unsuitability of the premises where he had to perform his duties. On 16 April 1978 he asked that the procedure for establishing whether he was suffering from an occupational disease within the meaning of Article 73 of the Staff Regulations be applied in his case. On 16 June 1978 the Director-General of the European Parliament granted that request and proposed the creation of a board — wrongly called a Medical Board — consisting of three doctors to be appointed by agreement, whose task would be to determine whether the circumstances giving rise to the application of Article 73 were present and to deliver an opinion on the advisability of initiating the procedure for retirement on the ground of permanent invalidity (Articles 53 and 78 of the Staff Regulations and Annex VIII thereto).
6. However, at the time when this action was brought that Board had not been able to carry out the task assigned to it, partly because of the differing opinions of the doctors who were members of it, and partly because of delays, for which the applicant was largely responsible, both in the appointment of its members and in the conduct of its proceedings.
7. Those circumstances caused the administration of the European Parliament to decide on 21 June 1979, after establishing that the applicant's sick leave totalled more than twelve months in a period of three years, to set in motion the procedure for determining an official's invalidity, which Article 59 (1) in fine of the Staff Regulations authorizes it to initiate “in the case of any official whose sick leave totals more than 12 months in any period of three years”.
8. It is that decision which is contested. In the applicant's view the procedure for establishing that he was unable to perform his duties because of permanent invalidity cannot be severed from that for establishing the occupational nature of his invalidity without exposing him to the risk of irreparable damage.
9. That submission must be rejected. In fact a comparison between Article 73 (compensation for occupational disease) and Article 78 (invalidity pension) indicates that the benefits provided by these two provisions are different and mutually independent, although a person may receive both of them. Furthermore, Article 25 of the Rules provides that recognition thereunder of even total permanent invalidity “shall in no way prejudice application of Article 78 of the Staff Regulations and vice versa”. It follows that there are two different procedures which may give rise to separate decisions independent of each other.
10. Although it is no doubt desirable that, where appropriate, the two procedures should be conducted in concert and that the same medical authorities should be invited to give an opinion on the different aspects of the official's disability, the legality of either procedure is not conditional on such a requirement and in this respect the appointing authority has, according to the circumstances, a discretion which the defendant exercised in a manner which cannot be called in question in view of the situation in which it found itself, largely as a result of the applicant's attitude.
11. Therefore the application must be dismissed.
Costs
12. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading. However, Article 70 of the Rules of Procedure provides that, without prejudice to the second subparagraph of Article 69 (3) of those Rules, in proceedings brought by officials or other servants of the Communities, the institutions shall bear their own costs. Having regard to the facts of the case, the Court considers that the European Parliament has been forced to incur the costs of the present action unreasonably and that they must be borne by the applicant. Consequently the applicant must be ordered to pay the whole of the costs, including the costs of the first application for the adoption of interim measures.
On those grounds, THE COURT (Third Chamber) hereby:
1 Dismisses the application;
2 Orders the applicant to pay the whole of the costs, including the costs of the first application for the adoption of interim measures.