JUDGMENT OF 14.7.1981 — CASE 186/80 SUSS v COMMISSION

In Case 186/80

THE COURT (Second Chamber) composed of: P. Pescatore, President of Chamber, O. Due and F. Grévisse, Judges, Advocate General: Sir Gordon Slynn, Registrar: J. A. Pompe, Deputy Registrar,

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure, the conclusions, submissions and arguments of the parties may be summarized as follows:

I — Facts

1. On 3 May 1977 Benoît Suss, an official of the European Communities, was the victim of an assault occasioning injuries leading to his admission to hospital. He resumed work on 15 July 1977 but was placed on invalidity pension as from 1 December 1979 because of the consequences of the assault, namely an eye injury causing disfigurement and injuries to the head and knee.

2. On 13 June 1978 the applicant was examined by Dr M., the doctor appointed by the administration, pursuant to Article 19. of the Rules on the Insurance of Officials against the Risk of Accident and Occupational Disease (hereinafter referred to as “the Rules”). He took the view that the injuries had not yet consolidated and that the applicant should be re-examined a year later. At the same time he asked Dr Fromes, who had examined the applicant whilst he was in hospital, to let him have his report and prognosis and to arrange for the applicant to be seen by a neurologist of his choice. Dr Fromes examined the applicant on 8 September 1978 and again in January 1979 but he did not forward his certificate until 26 April 1979. In the meantime the applicant had been examined by a neurologist and an eye specialist. On 30 November 1978 the certificates of those doctors and the applicant's conviction that the permanent partial invalidity was more than the minimum of 20% provided for by Article 20 of the aforesaid rules led him to ask for payment of a provisional allowance. Following that request Dr M. wrote to the applicant on 13 February 1979 suggesting an examination which did not take place until 18 May 1979, that is after the applicant had reiterated his request in reliance then on the certificates of the following doctors : Dr Placet, of 2 March 1979, Dr Loutsch, of 30 March 1979, Dr Goedert, of 10 July 1979, in relation to the eye injuries and assessing the permanent partial invalidity at 25%; of Dr Hastert, of 3 July 1978 and 6 April 1979 in relation to the head injury and assessing the permanent partial invalidity at 10%; and finally or Dr Fromes, of 26 April 1979, in relation to the knee injury and assessing the permanent partial invalidity at 15%. After a further examination on the basis of the above-mentioned certificates Dr M. in his report of 25 May 1979 assessed a comprehensive figure of 34% permanent partial invalidity, discounting disfigurement which he considered negligible. On 24 July 1979 the Commission offered the applicant pursuant to Article 21 of the Rules an allowance at the aforesaid rate and drew his attention to the fact that it was a draft decision by the appointing authority which, subject to any request he might make for consultation with the Medical Committee, would after a period of 60 days be regarded as a formal decision. After requesting within the aforesaid period an opinion from the Medical Committee provided for in Article 23, the applicant in several letters written between September 1979 and January 1980 challenged both the appointment of Dr M. as the doctor representing the Commission on the Medical Committee and the method of assessing the multiple invalidity as used by Dr M. The applicant further stated that even according to that method the rate ought to be 37%. Subsequently that rate was accepted by the Commission. Finally, on 30 January 1980, the Commission stated that it was adhering to the appointment of Dr M. and to its decision to pay the applicant a provisional allowance of 25%. The payment took place on 29 November 1979.

3. On 14 February 1980 the applicant lodged a complaint through official channels against those decisions requesting apart from the revocation of the appointment of Dr M. payment of a additional provisional allowance (which was subsequently made) and default interest and also the payment of the fees of the doctor appointed by him. He further requested that he be sent the full opinion or the Invalidity Committee in relation to his retirement on invalidity pension. The Commission failed to answer within the period of four months and the applicant brought the present proceedings on 10 September 1980.

4. During the course of the written proceedings the applicant lodged an application for the adoption of interim measures for the replacement of Dr M. By order dated 3 November 1980 the President of the Second Chamber dismissed that application on two grounds : (a) the applicant had not succeeded in proving that there was any impending damage seeing that the protection of his interests was in fact properly ensured by the presence ort the Medical Committee of a doctor in whom he had confidence and by the appointment of a third expert by mutual agreement, and (b) there was no urgent need for action at that stage because the applicant would have the opportunity of bringing an action against any decision taken by the institution on the basis of the Medical Committee's report. In his application for interim measures the applicant claimed that the opinion of the Invalidity Committee should be forwarded to him. In the order that claim was rejected as being irrelevant to the present case.

II — Conclusions of the parties

In his application and reply the applicant claims that the Court should:

Declare that the doctor appointed by the institution pursuant to Articles 18 and 19 of the Rules cannot, as the medical officer and, indeed, the doctor approved by the Commission's insurers, be a member of the Medical Committee provided for in Articles 21 and 23 and that the institution is bound to appoint another doctor; Declare that the delay in awarding the applicant's pecuniary entitlements is attributable to the Commission alone and consequently order the Commission to pay default interest at 13% for certain periods.

In the reply the applicant claims further that the Court should:

Order the Commission to forward to the applicant the opinion of the Invalidity Committee; Order the Commission to inform the doctors on the Medical Committee other than the one appointed by the Commission to which department they should apply for payment of their fees; Order the Commission to pay the costs including those of the application for the adoption of interim measures.

The Commission contends that the Court should:

Dismiss the action as inadmissible and in any event as unfounded; Order the applicant to pay the costs.

III — Submissions and arguments of the parties

1. Composition of the Medical Committee

The applicant objects to the appointment of Dr M. to the Medical Committee for the following two reasons:

a) He drafted the medical report placed before the Medical Committee as an appeal tribunal;

b) He is the medical officer of, or at least the doctor approved by, the Commission's insurance company.

The appointment of Dr M. is therefore incompatible with the principle of trust which the official ought legitimately to have in his administration and contrary to the impartiality of the work of the Medical Committee.

The Commission stresses that the parties are free to choose for the Medical Committee a doctor in whom they have confidence. For its part it was natural to appoint Dr M. who knew the applicant's file from the beginning. The Rules do not give any right to object to an appointment but the joint choice of the third doctor ensures the impartiality of the Medical Committee. The Medical Committee is not an arbitration tribunal or a tribunal at all but a consultative body giving an opinion of a technical nature on the basis of which the appointing authority will take its decision.

Dr M. is not an employee of the insurance company and although he is appointed by the administration with the approval of the insurers, that is to make the subsequent decision of the appointing authority binding upon the insurers.

2. The award of default interest

The applicant alleges that the consideration given to his case by Dr M. was negligent. When the applicant started work again on 15 July 1977 Dr M. ought to have examined him as soon as possible and not postponed the first examination until 13 January 1978; nor ought he then to have decided to see the applicant a year later whilst asking one of his colleagues to forward his report and prognosis. He thus delegated specialist examinations to a doctor who in turn made his report after considerable delay. Further, it was the duty of the defendant's doctor, responsible as he was for pursuing the case since the report of the accident, to note consolidation as and when it took place and to ensure that the provisional payments were made in due time. To that end it would have been advantageous for him to advise the applicant to choose his own qualified doctors so as to determine the seriousness of each injury. In forcing the applicant on the other hand to go to doctors nominated by him, the Commission's doctor deprived the applicant of any opportunity to influence the course of the procedure.

Finally, the shortcomings in the examinations conducted by the defendant's doctor led the applicant subsequently to arrange of his own accord to be reexamined. These belated examinations, the fault of the administration's doctor, and necessary if the applicant was not to have to rely solely on the opinions of the doctors delegated or even sub-delegated by the defendant, showed that from 15 July 1977 the defendant ought to have paid a provisional allowance in the region of 45% having regard to the consolidation of the injuries which had occurred and the damage to the eye as it was at that date.

For those reasons the applicant claims interest at 13% (13.73% in the reply) as from the consolidation of each injury.

The Commission stresses first of all that there is no question of a delegation of powers to Dr Fromes or to other doctors and that it is for the applicant according to the Rules to supply the necessary medical reports. The Commission does not deny a certain delay on the part of Dr Fromes but states that he gave his certificates within the period laid down by Dr M. for the further examination and that period was justified by the difficulty of forecasting the date when the injuries would consolidate as revealed by the medical certificates with the exception of the two certificates which had been given later on the applicant's own initiative. According to the Rules, the degree of invalidity is established after the consolidation of all the injuries and not that of each one of them in turn.

3. Production of the opinion of the Invalidity Committee

The applicant states in the reply that although that claim does not figure in his application because of an omission it was an integral part of the previous complaint through official channels and of the application for the adoption of interim measures. Without the opinion it would not be possible to challenge, if necessary by legal proceedings, the placing of the applicant on invalidity pension.

The Commission stresses that there is no claim in the application for production of that file, that the order on the application for the adoption of interim measures rejected that issue as irrelevant to the present proceedings, that the file is available to the Medical Committee, that the opinion itself was forwarded to the applicant and that according to the Rules the applicant has no right to that part of the report relating to the medical discussion.

4. Fees of the members of the Medical Committee

In his reply the applicant says that it was intolerably ambiguous for the Commission to write in a letter sent to the doctor appointed by the applicant that “Dr M. will also inform you of the procedure to be followed for settlement of your fees”. Assuming that Dr M. is the medical officer of the insurers the ambiguity lies in the further hypothesis that is for the insurers to settle the fees. It is for the Commission to specify the relevant department since under the Rules the Commission is responsible for the fees.

The Commission points out that the claim raises a fresh issue and that the fees are paid directly by the institution.

IV — Oral procedure

At the hearing on 18 June 1981 Benoît Suss, represented by G. Vandersanden, and the Commission, represented by its Legal Adviser, J. Delmoly, acting as Agent, assisted by R. Andersen, presented oral argument.

The Advocate General delivered his opinion on 9 July 1981.

Decision

1. By application lodged at the Court Registry on 10 September 1980 Benoît Suss, a retired official of the European Communities, brought an action claiming on the one hand a declaration that the doctor appointed by the Commission cannot be a member of the Medical Committee established under Article 23 of the Rules, adopted under Article 73 of the Staff Regulations, on the Insurance of Officials against the Risk of Accident, (hereinafter referred to as “the Rules”), for the purpose of determining the degree of the applicant's permanent invalidity, and on the other hand charging the Commission with delay in awarding the invalidity allowance and thus claiming default interest. In the reply the applicant's further claims covered the method of payment of the fees of the members of the Medical Committee and the production to him of the opinion of the Invalidity Committee in relation to his retirement.

2. The applicant, who was the subject of an assault in May 1977 and was placed on invalidity pension as from 1 December 1979, was examined in June 1978 by the doctor appointed by the Commission pursuant to Article 19 of the Rules in order to determine the consequences of the assault. That doctor was also approved by the insurance company with which the Commission collectively insured its staff. Because the injuries had not consolidated the said doctor decided to re-examine the applicant a year later and asked the practitioner who had examined him while in hospital to make an additional examination. The report of that examination was not forwarded until 26 April 1979. In November 1978 the applicant asked for a provisional allowance pursuant to the last paragraph of Article 20 of the Rules.

3. After receiving the medical certificates in relation to the various injuries the doctor appointed by the Commission re-examined the applicant on 18 May 1979 and assessed the total permanent partial invalidity at 34% which was subsequently increased to 37%. On that basis the Commission made a draft decision which was forwarded to the applicant in July 1979 pursuant to Article 21 of the Rules. The applicant objected to that draft and requested an opinion from the Medical Committee as provided by Article 23 and the Commission then appointed the doctor whom it had already appointed under Article 19, to be a member of that committee. The Commission wrote to the doctor appointed by the applicant saying that the Commission's doctor would inform him of the procedure to be followed for the payment of his fees.

4. In November 1979 the Commission paid the applicant a provisional allowance calculated on the basis of a rate of 25%. After the present action was brought the Commission paid him an additional allowance of 12%, which brought the provisional allowance to the same amount as that proposed to the applicant in the draft decision.

5. During the course of the written procedure the applicant made an application for the adoption of interim measures with a view to the replacement of the doctor appointed by the Commission. By order of 3 November 1980 the President of the Second Chamber of the Court dismissed that application on the twofold ground that the applicant had not succeeded in proving that there was any impending damage and that there was no urgent requirement for action to be taken at that stage because the applicant would be able to bring an action against any decision taken by the institution on the basis of the Medical Committee's report. The application for the adoption of interim measures also asked for the opinion of the Invalidity Committee to be forwarded to the applicant. The order dismissed that claim as being irrelevant to the present case.

The composition of the Medical Committee

6. The applicant claims that the doctor appointed by the Commission should be excluded as a member of the Medical Committee on the ground that his appointment is incompatible with the principle of the protection of legitimate expectation and contrary to the impartiality of the Medical Committee on the double ground that it was he who drafted the report challenged by the applicant and that he is the medical officer of, or, at least, the doctor approved by, the insurance company. On the latter issue the Commission explained that it had reached an agreement with the insurance company as to the list of doctors to whom the examinations provided for by the Rules might be entrusted.

7. The Rules made pursuant to Article 73 of the Staff Regulations determine the conditions governing cases which may arise in applying the scheme of insurance against the risk of accident and of occupational disease as follows :

“Article 19

Decisions recognizing the accidental cause of an occurrence including a decision as to whether the occurrence is to be attributed to occupational or non-occupational risks, or decisions recognizing the occupational nature of a disease and assessing the degree of permanent invalidity shall be taken by the appointing authority in accordance with the procedure laid down in Article 21:

On the basis of findings of the doctor(s) appointed by the institutions; and

Where the official so requests, after consulting the Medical Committee referred to in Article 23.

Article 23

(1). The Medical Committee shall consist of three doctors :

One appointed by the appointing authority;

One appointed by the official concerned or those entitled under him;

One appointed by agreement between the first two doctors.

Where agreement cannot be reached on the appointment of the third doctor within a period of two months following appointment of the second doctor, the President of the Court of Justice of the European Communities shall appoint the third doctor at the request of either party.

On completing its proceeding, the Medical Committee shall set out its opinion in a report to be communicated to the appointing authority and to the official or those entitled under him.”

8. As the Court has already stressed in its judgment of 21 May 1981 (Case 156/80, Morbelli [1981] ECR 1357) the Rules are intended to allow officials to be examined twice, first by doctors enjoying the confidence of the institution and, in the event of disagreement, by a medical committee to which both parties appoint a doctor enjoying their confidence.

9. The Rules provide no right of objection to an appointment because as far as officials are concerned their interests are safeguarded by the presence on the Medical Committee of a member enjoying their confidence and by the appointment of the third member of the committee by agreement between the doctor enjoying the confidence of the official and the member appointed by the institution.

10. For the same reason the institution cannot be denied the freedom to appoint the doctor whom it designated pursuant to Article 19 of the Rules and who, as such, has already been concerned with the state of health of the official. In the same way moreover there is nothing to prevent the official from appointing a doctor who has already at the official's request issued certificates in relation to the disability in question.

11. Further, it is necessary to stress that the appointment by the Commission of a medical officer who is also approved by the insurance company, whilst being in the interests of relations between the insurance company and the Commission, can in no way adversely affect the interests of the official.

12. It follows from all those considerations that the applicant's claim in respect of the composition of the Medical Committee must be rejected.

The claim for default interest

13. The applicant claims that interest calculated as from the consolidation of each of the injuries should be paid on the allowance. In that respect he alleges that the course of the procedure determining the rate of permanent partial invalidity has been unduly long and that the Commission is responsible for this state of affairs because of the conduct of the doctor whom it appointed. He ought to have pursued the case so as to be able to determine the consolidation of the various injuries as and when it occurred. On the contrary the doctor decided to postpone his final examination to the following year and delegated specialist examinations to another doctor who, it is alleged, made his report after considerable delay. It is also claimed that the way in which the case was pursued was also open to criticism inasmuch as the applicant had to go to doctors nominated by the doctor appointed by the Commission and those examinations were incomplete, thus forcing the applicant to arrange at a later date for further examinations on his own account.

14. It should be stressed first of all that according to Article 20 of the Rules in question “the decision defining the degree of invalidity shall be taken after the official's injuries have consolidated”, and the second paragraph thereof provides that “where it is impossible to define the degree of invalidity after medical treatment is terminated, the findings of the doctor(s) referred to in Article 19 or, where appropriate, the report of the Medical Committee referred to in Article 23 must specify a deadline for reviewing the official's case.”

15. It follows from those provisions that entitlement to payment of the invalidity allowance does not arise as and when each of the injuries has consolidated but only when all the injuries have consolidated. It is for that very reason that the last paragraph of the aforesaid article gives a right to a provisional allowance.

16. It is further appropriate to recall that under the insurance provided for by the Staff Regulations the compensation payable in the event of invalidity is in the nature of a flat-^ate award assessed on the basis of the lasting effects of an accident. Interest may thus be claimed only where the person entitled to that award is able to establish that payment thereof was improperly delayed by the administration.

17. That is not so in the present case. The medical certificates produced reveal the considerable difficulty in determining the date when the applicant's injuries consolidated and therefore justify the decision of the Commission's medical officer to re-examine the applicant a year after the first examination. Moreover, the applicant does not seem to have challenged that decision at the time. The report sought from the doctor who had examined the applicant when he was in hospital was received by the Commission's medical officer before the expiry of that period of one year. After re-examining the applicant the doctor gave his final report to the Commission which, also without delay, adopted a draft decision pursuant to Article 21 of the Rules.

18. The Court must, therefore, find that the claim for interest must also be dismissed.

Additional claims made in the reply

19. The claim for production of the opinion of the Invalidity Committee relates, according to the explanations given, not to the opinion properly so called, which has already been forwarded to the applicant, but to the report of the committee as a whole. It is also apparent from the file that the report is available to the Medical Committee and that the reason for the claim is the applicant's wish to be in a position to challenge, if necessary by legal action, his retirement on invalidity pension. Having regard to the delay in making that claim and the fact that it has no connexion with the other claims in the present action it must be dismissed as inadmissible.

20. As regards the claim in relation to the fees of the members of the Medical Committee, the applicant describes the letter in which the Commission invited the applicant's doctor to apply for settlement of his fees to the doctor appointed by the Commission who was at the same time the insurers' medical officer, as “intolerably ambiguous”. In writing this letter, it is said, the Commission gave the impression that it was for the insurers to settle the fees. The Commission ought therefore to have named its own department responsible for payment.

21. Even if that claim had not been late it would in any event have lost its purpose after the Commission's rejoinder in which it clearly showed that the institution pays the fees directly.

Costs

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

23. Save on one issue, settled by the Commission in the course of the proceedings by an additional provisional payment of 12%, the applicant has failed in all his submissions.

24. However, under Article 70 of the Rules of Procedure the institutions are to bear their own costs in proceedings brought by servants of the Communities.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.