Repon of the Judge-Rapporteur in Case C-185/90 P
I — Facts and procedure before the Court of First Instance
It emerges from the judgment of the Court of First Instance of 6 April 1990 in Case T-43/89 Gill v Commission [1990] ECR II-173 that:
‘... 2. In 1948, after eight years' service in the Royal Air Force as a pilot, the applicant, who was born in 1924, began working in the coalmines in England. He was successively a miner, shot-firer, mine director, mines inspector, regional mines inspector and finally a principal mines inspector attached to the ministry in London. Between 1948 and 1971 he went down the mines five to seven times a week. At the same time, from 1949 to 1952, he studied mining engineering and in 1952 obtained a BSc Honours degree in Engineering and Mining from the University of London. Between 1971 and 1972 he went down the mines several times a month. Until about 1961 he smoked. 3. In view of his wide professional experience, the applicant was recruited by the Commission in 1974 as a Principal Administrator and assigned to the Division “Safety Matters in the Coal and Steel Industries” of the Directorate “Industrial Safety and Medicine” in the Directorate-General for Social Affairs in Luxembourg. More precisely, he was recruited in order to perform advisory and inspection duties in relation to: (i) the promotion of research in the field of occupational health in mines, the coordination of such research and the dissemination of the results; (ii) the preparation of a new programme in the field of mining safety by contacts with interested parties in the ECSC. 4. The applicant gave complete satisfaction in the performance of those tasks and his duties were extended to other managerial work. Between 1974 and 1979 he was called upon to inspect various mines in the countries of the Community and to go down mines some 20 to 30 times. As a result of an accident which occurred at the beginning of 1979 he went down the mines only once or twice between 1979 and 1981. 5. The X-ray examination of his chest, carried out during the medical examination which he underwent before he took up his duties, revealed chronic bronchial pneumonopathy (disease of the lungs). The Commission did not inform the applicant of it nor did it invoke the provisions of Article 1 of Annex VIII to the Staff Regulations of the European Communities (hereinafter referred to as “the Staff Regulations”). 6. On 11 June 1981, the applicant, claiming to be suffering from an occupational disease within the meaning of the second paragraph of Article 78 of the Staff Regulations, submitted an application to be declared to be suffering from invalidity. The medical certificate which he enclosed certified that his incapacity for work was “due to obstructive bronchial pneumonopathy probably connected with the inhalation of dust (minework)”. Very soon it was established that he was suffering from permanent and total invalidity and he claimed that he was entitled to a pension calculated pursuant to the second paragraph of Article 78. 7. After many delays and misunderstandings, none of which was due to the applicant, the Invalidity Committee finally met on 27 March 1987. In the mean time, on 21 October 1983, the Commission's appointing authority had adopted a provisional decision granting the applicant an invalidity pension calculated on the basis of the third paragraph of Article 78 of the Staff Regulations. The Invalidity Committee drew up its report on 31 March 1987. Its main conclusions were as follows: “Mr Walter Gill continues to suffer from permanent invalidity which is regarded as total and as preventing him from performing the duties corresponding to a post in his career bracket. The invalidity does not arise from an accident in the course of or in connection with the performance of his duties, from an occupational disease, from a public-spirited act or from risking his life to save another human being. The invalidity has not been deliberately brought about by the official. Mr Gill is not suffering from one of the diseases referred to in the European Communities' list of industrial diseases. However, the Invalidity Committee is of the opinion that there is a probable relationship of cause and effect and a sufficiently direct relationship with a specific and normal risk inherent in the duties performed between 1948 and 1971. On the other hand, there is little likelihood of any relationship of cause and effect as regards the period from 1974 to 1981 when Mr Gill was an official of the Commission of the European Communities in Luxembourg.” 8. On 4 November 1987, the Director-General of the Directorate-General for Personnel and Administration sent the applicant the following letter: “In the absence of a sufficient probability of a causal relationship between your duties as a Community official and your invalidity, this cannot be regarded as an occupational disease within the meaning of the second paragraph of Article 78 of the Staff Regulations. I therefore regret to inform you that your invalidity pension will continue to be determined in accordance with the third paragraph of Article 78.” 9. The applicant immediately lodged a complaint, which was rejected by decision of the Commission of 20 May 1988.’
Those were the circumstances in which Mr GUĻ on 18 August 1988, brought an action in which he claimed that the Court of First Instance should:
i) annul the decision of 20 May 1988;
ii) declare that the applicant is suffering total permanent invalidity arising from an occupational disease within the meaning of the second paragraph of Article 78 of the Staff Regulations;
iii) declare that the applicant is entitled to an invalidity pension equal to 70% of his basic salary, commencing on the day on which he was invalided out of the service, namely 1 November 1983;
iv) order the defendant to pay the costs.
The Commission contended that the Court of First Instance should:
i) declare the application inadmissible or at least unfounded;
ii) make an order for costs in accordance with the law.
In support of his claims, the applicant submitted that:
i) the second paragraph of Article 78 of the Staff Regulations does not require a causal relationship between the occupational disease and the duties performed at the Communities;
ii) in any event, his disease was aggravated by the conditions under which he performed his duties at the Communities, in particular by the various times he went underground;
iii) he was not made aware of the signs of disease apparent from the X-rays taken when he took up his duties and so he was not able to undergo medical treatment and thus avoid total invalidity;
iv) the Invalidity Committee's terms of reference were imprecise and incorrect;
iv) in so far as it finds no causal link between the disease and the duties performed subsequent to 1974, the Invalidity Committee's report is insufficiently reasoned.
The Court of First Instance stated in the contested judgment that:
‘19. If the premise is accepted that the sets of rules established by Articles 73 and 78 of the Staff Regulations are different and independent of one another, as the Court has already held (judgments of 12 January 1983 in Case 257/81 K. v Council [1983] ECR 1 and of 20 May 1987 in Case 242/85 Geist v Commission [1987] ECR 2181), it is necessary to consider whether the definition of “occupational disease” in Article 3 of the Insurance Rules may be adopted for the purposes of interpreting the second paragraph of Article 78 of the Staff Regulations. First of all, it should noted that (in the French version) the articles in question both start in the same way (“Dans les conditions fixées ... ”, “Dans les conditions prévues ... ”). Whereas, however, Article 73(1) of the Staff Regulations entrusts the institutions with the task of drawing up, by common agreement, rules governing the award of the benefits provided for in Article 73(2) and (3), the first paragraph of Article 78 of the Staff Regulations refers to Articles 13 to 16 of Annex VIII for the conditions under which an official shall be entitled to an invalidity pension under Article 78. Thus, it is by virtue of the express power contained in Article 73 of the Staff Regulations that “occupational disease” is defined in Article 3 of the Insurance Rules. However, since Article 78 of the Staff Regulations does not give the institutions a similar power, the application of its provisions is subject only to the conditions provided for in Articles 13 to 16 of Annex VIII to the Staff Regulations, which contain neither a definition of “occupational disease” nor a reference to the provisions of Article 73 of the Staff Regulations or to the rules implementing that article. It would therefore be contrary to the scheme of the provisions concerned to refer, for the purposes of applying the second paragraph of Article 78 of the Staff Regulations, to a definition laid down in the Insurance Rules under an express power conferred by the Staff Regulations, especially if such a reference were to limit the rights of those concerned. 20. Similarly, the argument based on Regulation No 1408/71 of the Council cannot be accepted. Since that regulation is confined to coordinating the national laws on social security, it cannot be referred to for the purpose of interpreting the Staff Regulations, which, being an independent instrument of the Communities, must be interpreted in their own context and according to their own aims. 21. After relating the history of the provisions on the invalidity pension, the Court of Justice held that the object of the amendment made in 1972 to Article 78 of the Staff Regulations was to avoid unjustified benefits and that the present rules must be interpreted as excluding from the scope of the second paragraph facts which occurred exclusively prior to the official's entry into the service (judgment of 24 November 1983 in Case 342/82 Cohen v Commission [1983] ECR 3829, at paragraphs 13 to 17). The official's pathological condition must have a sufficiently direct relationship with a specific and normal risk inherent in the duties which he performed for the Communities (judgment of 12 January 1983 in Case 257/81 K. v Council [1983] ECR 1, paragraph 20). 22. The special circumstances of the present case must be considered in the light of those considerations. The applicant was recruited by the Commission because of his very wide professional experience. His recruitment to the service of the Communities was the extension, even the peak, of a homogenous professional career which began with manual work down the mines, progressing to managerial responsibilities, then to supervision and inspection at local, regional and national levels and finally at the Community level. His experience down the mines was an integral part and an essential feature of that career. The risks of lung disease resulting from the inhalation of dust in mines were well known and also an integral part of that career. 23. The Commission thus engaged the applicant in the full knowledge that he could suffer from a disease connected with his work. That possibility was confirmed when the X-ray examination of his chest carried out when he took up his duties revealed the existence of chronic lung disease. That examination was carried out in the interests of the institution pursuant to Article 33 of the Staff Regulations and the result of the examination could not therefore be covered by medical secrecy, as the Commission's Agent maintained at the hearing. Article 28(e) of the Staff Regulations provides that an official may be appointed only on condition that he is physically fit to perform his duties. The precise purpose of the medical examination is to enable the institution not to proceed with the appointment of an applicant who is unfit for the intended duties or to appoint him and assign him to duties compatible with his state of health. At the very least, the institution may rely on the provisions of Article 1 of Annex VIII to the Staff Regulations and, in so far as risks arising from sickness from which he is suffering are concerned, decide to admit him to guaranteed benefits in respect of invalidity only after a period of five years. 24. The Commission chose none of the three possibilities opened to it. On the contrary, it appointed the applicant to duties requiring him to continue to go down mines, with all the risks which ensued for his future state of health. It is self-evident that the Commission could thus profit to the maximum from the applicant's experience and knowledge and thereby from his professional activity undertaken at the risk of contracting a lung disease. It would be manifestly unjust for the Commission to be able to benefit in that way from the applicant's professional experience acquired before and after he entered the Commission's employment without bearing the disadvantages. The Commission must be presumed to have accepted the financial responsibility arising from the risk that the applicant's lung disease, which was already established, would result in invalidity making it impossible for him to perform his duties. 25. It follows that the applicant's claim satisfies the conditions of the second paragraph of Article 78 of the Staff Regulations, as that article must, in the view of the Court of First Instance, be interpreted. 26. Even if the Commission's argument that Article 78 of the Staff Regulations must be interpreted in the light of Article 3 of the Insurance Rules is accepted as well founded, the causal link, connection and continuity required by Article 3(2) have clearly been established. The Commission does not deny that when the applicant took up his duties he was suffering from a “preexisting disease” nor that there was an “aggravation” of that disease during the period of his employment. The fact that the existence of the disease was known to the Commission from the beginning and the fact that its aggravation was entirely foreseeable constitute a set of concordant presumptions which are sufficient to enable the Court to conclude that the aggravation which occurred arose “in the course of or in connection with the performance of duties in the service of the Communities”. 27. Since the factors necessary for justifying the applicant's claim are met, there is no need to deal with the other submissions and arguments. The contested decision must be annulled. The Commission must take the necessary measures to comply with this judgment.’
II — Subject matter and forms of order sought in the appeal
By a document lodged at the Court Registry on 7 June 1990 the Commission of the European Communities, which was notified of the abovementioned judgment of the Court of First Instance on 9 April 1990, brought an appeal against that judgment, on the ground that it infringed Community law.
The Commission claims that the Court should:
i) set aside the decision of the Court of First Instance of the European Communities in Case T-43/89 and draw all the legal consequences from doing so, in particular dismiss the action brought on 18 August 1988 by Mr Gill, since the state of proceedings so permits.
ii) rule on costs in accordance with the law.
Mr Gill contends that the Court should :
i) dismiss in its entirety the appeal lodged by the Commission of the European Communities;
ii) grant the form of order sought by him at first instance;
iii) uphold entirely the judgment delivered by the Court of First Instance of the European Communities on 6 April 1990;
iv) order the Commission of the European Communities to pay the costs of both sets of proceedings.
By order of 21 November 1990, the Court allowed the Union Syndicale-Luxembourg to intervene in support of Mr Gill.
III — Summary of the pleas in law and arguments of the parties
In support of the appeal, the Commission relies on four submissions alleging respectively infringement of the second paragraph of Article 78 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as ‘the Staff Regulations’), infringement of Article 13 of Annex VIII to the Staff Regulations, infringement of the general principle that judgments must state the reasoning on which they are based and infringement of Article 73 of the Staff Regulations and Articles 3 and 19 of the Rules on the Occupational Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease (hereinafter referred to as ‘the Insurance Rules’).
A — Infringement of the second paragraph of Article 78 of the Staff Regulations
1. This plea of the Commission is expressed in two branches, the first of which refers to the infringement by the Court of First Instance of the legal concept of occupational disease within the meaning of Article 3 of the Insurance Rules, the second being concerned with that court's failure to take proper account of the causal link which must exist between the occupational disease or its aggravation and the duties carried out in the service of the Communities. (a) With regard to the first branch of the plea, the Commission objects that, in paragraph 19 of the judgment appealed against, the Court of First Instance refused to take into account, for the purposes of the application of the second paragraph of Article 78 of the Staff Regulations, the definition of the concept of occupational disease contained in Article 3 of the Insurance Rules adopted in implementation of Article 73 of the Staff Regulations. In that respect, the Commission argues that, in the absence of indications to the contrary in the Staff Regulations, the concept of occupational disease cannot vary according to whether it is Article 73 or Article 78 of the Staff Regulations that is to be applied. Even though those two provisions pursue different objectives, in so far as Article 73 ensures that officials are insured against the risks of occupational disease and accident, whilst Article 78 provides for the allocation of a pension to an official who is afflicted with invalidity, they are none the less complementary, so that it is wrong to contend that the definition of occupational disease for the purposes of the application of Article 73 is distinct from that required for the purposes of the application of the second paragraph of Article 78 of the Staff Regulations. On the contrary, it follows from the judgment of the Court of Justice in Case 731/79 (5. v Parliament [1981] ECR 107, paragraph 10) that reference may lawfully be made, even in the context of the second paragraph of Article 78, to the definition of occupational disease laid down in Article 3 of the Insurance Rules. In addition, both the wording of the provisions at issue and the coherence of the Staff Regulations argue in favour of a single definition of the concept of occupational disease as set out in Article 3 of the Insurance Rules. In support of that argument, the Commission also relies on the Opinion of Advocate General Sir Gordon Slynn in Case 257/81 (K. v Council [1983] ECR 1) and the Opinion of Mr Advocate General Lenr in Case 76/84 (Rienzi v Commission [1987] ECR 315). (b) With regard to the second branch of its plea, the Commission complains that the Court of First Instance infringed the second paragraph of Article 78 of the Staff Regulations by ruling, in paragraphs 23 to 25 of the judgment appealed against, that Mr Gill's application satisfied the conditions laid down by that provision on the ground that, on the one hand, the Commission had engaged Mr Gill in the full knowledge that he could be suffering from a disease connected with his former work, without that institution relying on Article 1 of Annex VIII to the Staff Regulations, and that, on the other hand, the Commission cannot seek to benefit from Mr Gill's professional experience without bearing the disadvantages thereof. On that point, the Commission explains that the concept of occupational disease within the meaning of the second paragraph of Article 78 of the Staff Regulations refers only to a disease which arose, or the aggravation of which arose, in the course of or in connection with the performance of duties with the Communities. According to the Commission, that interpretation is confirmed in the first place by the Court's case-law. Thus, it follows from the judgments in K. v Council and in Rienzi, above, that the disease must show a sufficiently direct relationship with a specific and normal risk inherent in the duties which the person concerned performed. Similarly, according to the Opinion of Mr Advocate General Roemer in Case 29/71 Vellozzi v Commission [1972] ECR 513 and that of Advocate General Sir Gordon Slynn in K. v Council, above, a disease can only be considered to be occupational if it arose in the course of or in connection with the performance of duties in the service of the Communities and if it can be established that the performance of those duties was the main or predominant cause of the disease or its aggravation. The Commission adds that, in accordance with the judgment in Case 342/82 Cohen v Commission [1983] ECR 3829 and the Opinion of Advocate General Sir Gordon Slynn in that case, the causes of invalidity which occurred exclusively prior to the official's entry into the service must be excluded from the scope of the second paragraph of Article 78 of the Staff Regulations. According to the Commission, that argument is equally in accordance with the principle governing all insurance against social risks, according to which a social security scheme applies only when the causative effect occurred under the scheme in question. Moreover, Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to workers and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 46) adopted the same approach, and there is nothing in the Staff Regulations to allow the conclusion to be drawn that they meant to disregard such a fundamental principle. In the present case, Mr Gill was exposed to the risks of the disease at the time of his work in the mines in the United Kingdom and the doctors categorically concluded that his work in the service of the Communities were not capable of causing or aggravating his chronic bronchial pneumonopathy, so that the award of occupational disease benefits was governed by United Kingdom legislation alone. The fact that the applicant could not obtain compensation in that Member State cannot be a sufficient reason for granting him a pension under the second paragraph of Article 78 of the Staff Regulations.
2. (a) With regard to the first branch of the plea, Mr Gill contends that it not permissible to refer, for the requirements of the application of Article 78 of the Staff Regulations, to the definition of the concept of occupational disease contained in Article 3 of the Insurance Rules. It follows from the case-law that the Insurance Rules were adopted to give effect to Article 73 of the Staff Regulations, but do not concern Article 78 of those Staff Regulations (judgment in K. v Council, above, paragraph 10) and that the benefits provided under those two provisions are different and mutually independent (judgment in B. v Parliament, above). Moreover, in his Opinion in K. v Council, above, Advocate General Sir Gordon Slynn stated, that, ‘unlike Article 73, which refers expressly to “rules drawn up by common agreement of the Institutions”, Article 78 refers only to Articles 13 to 16 of Annex VIII’. Similarly, that argument is confirmed by Article 25 of the Insurance Rules, which provides that recognition of invalidity pursuant to Article 73 of the Staff Regulations ‘shall in no way prejudice application of Article 78’. Mr Gill adds that, while Article 73 of the Staff Regulations is intended to ensure that cover is provided in respect of risks created by the performance of duties and to grant entitlement to compensation in the event of harm suffered while performing them, Article 78 is concerned only with determining a state of incapacity for work and entitlement to a pension. The existence of an occupational disease is relevant only in so far as it provides a higher rate of pension where it is established that a pension is in any event payable. Occupational disease, which is merely one factor governing the application of Article 78, is an essential basis of Article 73 (see the Opinion of Mr Advocate General Darmon in Case 242/85 Geist v Commission [1987] ECR 2181). (b) As regards the second branch of the plea, Mr Gill disputes the Commission's point of view that the application of the second paragraph of Article 78 depends on proof of the existence of a causal link between the disease and the duties performed. Mr Gill argues that, even if the Commission's argument is to be accepted, the purpose of Anicie 78 of the Staff Regulations is to avoid benefits which are unjustified and, accordingly, to exclude from the scope of the second paragraph of that provision only events which occurred prior to the official's entry into the service (judgment in Vellozziv Commission, above). Moreover, as Mrs Advocate General Rozès stated with regard to Case 189/82 (Seiler v Council [1984] ECR 229), it must be ascertained whether it is sufficiently established that the disease or aggravation arose as a result of the performance by the person in question of his duties. It follows, in addition, from the Opinion delivered in Seiler, above, that the concept of aggravation of a preexisting disease presupposes only that the complaint in question was contracted and medically determined during the career of the person concerned. Furthermore, the medical examination which precedes recruitment only makes sense if the detection of a serious disease has the result that the person concerned is not recruited or, at least, that he is assigned to duties compatible with that disease. Finally, according to the case-law, the Invalidity Committee is not competent to determine the legal consequences of invalidity which it has found to exist, this being for the administration alone to determine, subject to review by the Court (judgment in Rienzi v Commission, above). In Mr Gill's view, the Court of First Instance correctly assessed the facts by concluding that he satisfied the conditions for the application of the second paragraph of Article 78 of the Staff Regulations. The factor giving rise to the aggravation of Mr Gill's state of health unquestionably lay in his going down mines in the course of the performance of his duties with the Communities, so that the occupational origin of the condition and the existence of a sufficient causal link are both established.
3. (a) The Union Syndicale-Luxembourg (hereinafter referred to as the ‘Union’) refers to the arguments developed by Mr Gill concerning the first branch of the plea. (b) The Union takes the view that the second branch of the plea must be dismissed as inadmissible, in that paragraph 22 et seq. of the judgment appealed against are devoted to an appraisal of the facts, which is not susceptible of review by the Court of Justice in an appeal to it.
B — Infringement of Article 13 of Annex VIII to the Staff Regulations
1. By this plea, the Commission objects that the Court of First Instance infringed Article 13 of Annex VIII to the Staff Regulations by ruling that Mr Gill satisfied the conditions of the second paragraph of Article 78 of the Staff Regulations, despite the fact that the medical experts had agreed that there was a probable and sufficiently direct relationship of cause and effect between the applicant's illness and the work performed in the United Kingdom, whilst there was little likelihood of a causal link as regards the period when Mr Gill was an official of the Communities. In support of its plea, the Commission argues that pursuant to Article 13 of Annex VIII, supplemented by Articles 7 to 9 of Annex II to the Staff Regulations, the declaration of invalidity referred to by Article 78 is the sole responsibility of the Invalidity Committee, so that, taking into account the medical findings denying the existence of any causal relation between Mr Gill's condition and his duties with the Communities, the application for benefit under the second paragraph of Article 78 of the Staff Regulations could only be dismissed. The Commission goes on to state that, according to the case-law (judgment in Case 156/80 Morbelliv Commission [1981] ECR 1357), Article 13 of Annex VIII and Articles 7 to 9 of Annex II to the Staff Regulations are intended to confer upon the medical experts the task of appraising definitively all medical questions which are relevant to the application of Article 73 of the Staff Regulations. It follows that review by the Court is confined to questions concerning the constitution and proper functioning of the medical committee and may not extend to medical appraisals properly so called which must be considered definitive, provided that they are adopted in accordance with the correct procedure (see, for example, the judgments in Case 265/83 Suss v Commission [1984] ECR 4029, and in Case 2/87 Biedermann v Court of Auditors [1988] ECR 143). According to the Commission, those same considerations hold for the Invalidity Committee acting under Article 78 of the Staff Regulations. In the present case, the Court of First Instance has infringed the law in that, without questioning the constitution or functioning of the Invalidity Committee, it none the less departed from the medical appraisals of that body.
2. Mr Gill submits that there was no infringement of Article 13 of Annex VIII to the Staff Regulations, since, pursuant to that provision, the Invalidity Committee recognized that he was afflicted with a permanent invalidity, considered as total. On the other hand, it was for the Commission and not for the Invalidity Committee to pronounce, subject to review by the Court, on the occupational origin of that invalidity. In that respect, the Court of First Instance correctly made use of its power of review by annulling the Commission's decision refusing to apply to Mr Gill the second paragraph of Article 78 of the Staff Regulations and by also drawing all the legal consequences not only from the medical findings placed on the file but also from the other elements of fact and law in the case.
3. The Union supports the arguments put forward by Mr Gill with regard to the second plea.
C — Infringement of the general principle that judgments must state the reasoning on which they are based
1. The Commission complains that the Court of First Instance did not properly state the reasoning of its judgment and based it on considerations which are contradicted by the facts of the case. Thus, contrary to the statement of the Court of First Instance in paragraph 23 of the contested judgment, the findings made by the medical expert of the institution at the recruitment medical was covered by medical secrecy (see, for example, the judgment in Case 75/77 Mollet v Commission [1978] ECR 897 and that in Case 140/86 Strack v Commission [1987] ECR 3939). It follows that at the time when Mr Gill was recruited, the appointing authority was only in possession of an opinion concerning his physical aptitude, without any reservations, and was not aware of the strictly medical appraisals made at the medical. In those conditions, the Court of First Instance has subverted the facts, vitiating the reasoning of the judgment, by considering that the existence of Mr Gill's disease was known to the Commission from the beginning and was one of a set of concordant presumptions supporting the conclusion that the aggravation of the disease which occurred arose in the course of or in connection with the performance of duties of the person concerned in the service of the Communities. Next, it is wrong to consider, as did the Court of First Instance in paragraph 23 of the judgment appealed against, that the appointing authority could, in this case, rely on Article 1 of Annex VIII to the Staff Regulations and, in so far as risks arising from a disease from which he is suffering are concerned, decide to admit him to guaranteed benefits in respect of invalidity only after a period of five years. It would, according to the Commission, have been extremely questionable for an official, a former underground miner, to be deprived in this way, for five years, of all guarantees under the Staff Regulations in respect of invalidity on the sole ground that the risks of lung disease resulting from the inhalation of dust in mines were ‘well known’ (paragraph 22 of the judgment of the Court of First Instance). The Commission adds that at the time of his entry into service with the Communities, it was by no means established that Mr Gill was suffering from lung disease, which formed only gradually as from 1974. It was therefore inadmissible, from a medical point of view, to declare unfit, or fit with reservations, a candidate who was in good health at the time of recruitment. The X-ray examination which Mr Gill, a man of 49 years and a former smoker, underwent in 1973 did not reveal any current pathology. In those conditions, it is incorrect to state, as does the Court of First Instance in paragraphs 23 and 26 of its judgment, that the Commission docs not deny that when he took up his duties Mr Gill was suffering from a preexisting disease and that the X-ray examination of his chest carried out at that time revealed the existence of chronic lung disease.
2. Mr Gill emphasizes that the medical examination carried out prior to recruitment at the initiative of the institution is done with the aim of ensuring that the candidate meets the conditions of physical fitness required for the performance of his duties. In the event of a negative medical opinion, the institution undeniably has the right to refuse to engage the candidate, by means of a reasoned decision, on the ground of physical unfitness. In the present case, despite the fact that the documents show that before entering into the service of the Community he had suffered from a preexisting chronic and developing disease, he received a positive medical opinion. It must be concluded that the prior medical examination was not carried out responsibly, so much so that the aggravation of the disease could not be avoided. In those conditions, the Commission must bear the consequences of engaging him.
3. The Union contends that the Court of First Instance rightly considered that the Commission was aware of the existence of Mr Gill's disease and must, therefore, bear the consequences of it. In the present case, it was a medical expert of the Commission, acting for and on behalf of that institution, who gave the opinion regarding Mr Gill's fitness. In those conditions, the Commission is presumed to have decided with full knowledge of the relevant circumstances that Mr Gill's disease was so negligible as to be unlikely to render him unfit to perform the duties offered to him. With regard to the positive opinion of Mr Gill's fitness, the Union states that either the doctor who gave that opinion committed a serious professional error, in which case the Commission must take responsibility for it, or the institution is itself at fault for omitting to give the doctor the necessary information concerning the particular working conditions to which the official would be subject, and in particular the necessity to make regular inspections underground in the mines. Accordingly, the Commission is not justified in taking refuge behind medical secrecy.
D — Infringement of Article 73 of the Staff Regulations and of Articles 3 and 19 of the Insurance Rules
1. As part of the plea, the Commission contends that the Court of First Instance failed to take account of Article 73 of the Staff Regulations and Articles 3 and 19 of the Insurance Rules by deciding, in paragraph 26 of the judgment appealed against, that the aggravation of Mr Gill's disease arose in the course of or in connection with the performance of his duties in the service of the Communities. In the Commission's opinion, the recognition of an occupational disease, within the meaning of the abovementioned provisions, supposes that the performance of duties in the service of the Communities constituted the main or predominant cause of the disease or its aggravation. Since it is common ground that chronic bronchial pneumonopathy does not appear in the European List of Occupational Diseases, it was necessary, in order for the disease to be described as occupational, for the applicant for compensation to prove the existence of a causal link between the disease or its aggravation and the work carried out for the Commission. That proof has not been produced in the present case, and mere awareness on the part of the Commission that the official had the disease at the time of his entry into service, if proved, as well as the foreseeability of its aggravation do not suffice, contrary to what the Court of First Instance decided. The Commission adds that that interpretation is in accordance with the Commission's recommendations of 23 July 1962 concerning the adoption of a European List of Occupational Diseases (Journal Officiel 1962, 80, p. 2188) and of 20 July 1966 on the conditions of indemnifying victims of occupational diseases (Journal Officiel 1966, 147, p. 2696).
2. Mr Gill points out that it follows from the wording of Article 3(2) of the Insurance Rules that any aggravation of a preexisting disease not appearing on the European List must be considered an occupational disease if it is sufficiently established that it arose in the course of or in connection with the performance of his duties with the Communities. The arguments put forward in support of the first plea demonstrate to the requisite legal standard that the existence of the causal link required by that provision has been established in this case. Furthermore, during the course of the written procedure at first instance the Commission twice recognized the aggravation of Mr Gill's disease since 1974.
3. The Union begins by pointing out that the Court of First Instance was entitled to consider that Mr Gill's disease or its aggravation arose because of the work carried out with the Commission. Either the disease did not exist at the time he was engaged, in which case its onset can only be due to the performance of his duties with the Communities, or it was not diagnosed during the medical examination on engagement, in which case the Commission accepted responsibility. In the Union's view, the Court of First Instance could only base itself on the presumption that the Commission had observed its obligation to recruit only persons fulfilling the conditions of physical fitness, so that it was bound to consider that Mr Gill's invalidity was the necessary consequence of the performance of his duties with the Communities. The Union adds that, in the instant case, Mr Gill's previous occupational activities contributed to his acquisition of very wide professional experience, which was indispensable to the performance of his duties with the Communities and from which the Commission was able to benefit. The Court of First Instance was therefore right to rule that, taking into account the special circumstances of the case, Mr Gill's previous professional activities were an integral part of that official's career. That is an appraisal of the facts which cannot be challenged within the framework of an appeal.
F. A. Schockweiler
Judge-Rapporteur
1 Language of the case: French.