C-3/66

3. Officials — Retirement by institution — Obligation of the person concerned to cooper­ ate — Powers of the administration if the person concerned fails to act (Staff Regulations of Officials of the ECSC, Article 91; Staff Regulations of Officials of the EEC and EAEC, Article 53, Annex II, Article 7)

1. Since the various steps comprising the cerned to object to the formation of an procedure for retiring an official form a Invalidity Committee, particularly by single entity, it must be accepted that in refusing to appoint a doctor of his own an action contesting the retirement deci­ choise. It follows from the fundamental sion, the applicant may contest the legal­ duty of loyalty and cooperation which all ity of earlier steps which are closely officials owe to the authority to which linked to it. A submission of inadmissi­ they belong that the power to appoint a bility on the ground than an appeal doctor at the same time constitutes a against these steps was out of time is duty. therefore inadmissible. The administration has the power, if nec­ Cf. para 1, summary, Joined Cases 12 essary, to remedy the failure of the per­ and 29/64, Rec. 1965, p. 144. son concerned to appoint a doctor in 2. A decision to retire an official must be order to ensure the setting up and made in writing. functioning of an Invalidity Committee, 3. The guarantees conferred by the Staff provided that any element of an arbitrary Regulations with regard to retiring an nature is avoided and that the official's official must not be interpreted as mean­ interests are not unnecessarily harmed. ing that it is possible for the person con­

EUROPEAN PARLIAMENT, 19, rue Beaumont, Luxembourg, represented by its Secre­ tary-General, Hans Robert Nord, acting as Agent, assisted by Alex Bonn of the Luxembourg Bar, with an address for service in Luxembourg at the Chambers of the said Alex Bonn, 22 Cote-d'Eich, defendant,

Application for the annulment in particular of the decision of the President of the European Parliament of 13 November 1965, retiring the applicant,

THE COURT (Second Chamber)

composed of: R. Monaco, President of Chamber, A. M. Donner and W. Strauß (Rapporteur), Judges,

Advocate-General: J. Gand

Registrar: A. Van Houtte

Article 7 of Annex II to the Staff Regu­ As the applicant gave a negative reply, the lations, he had requested the President of Parliament requested the President of the the Court of Justice of the European Luxembourg Medical Council by letter of Communities to appoint a doctor to sit 25 February 1965 to appoint a doctor to on this Committee; look after the applicant's interests on the — invited him to appoint a doctor to rep­ Invalidity Committee. To assist the Presi­ resent him on the Committee. dent in his choice, the Parliament notified In his reply of 13 October, the applicant him of the names of doctors who had refused to make the appointment, declaring treated the applicant at one time or another inter alia that 'this would expose me to a during his illness; this list included inter alia professional opinion which might result in Dr Éloi Welter and Dr Pierre Stein. my being retired'. He subsequently con­ On 13 March 1965, the President of the firmed his refusal by numerous letters, and Medical Council complied with this request has maintained this position up to the pre­ and proposed Dr Stein 'who has indicated sent time. his willingness to accept the task'. 2. On 16 October 1964, the Secretary-Gen­ 5. In the meantime, by letter of 9 March eral repeated his request, pointing out to the 1965, the applicant's lawyer, Mr Elvinger, applicant that his refusal inevitably made had in particular: the formation and functioning of the Inval­ — disputed the Parliament's right to oblige idity Committee impossible. the applicant to appoint a doctor and to In return, the applicant set out his point of appoint one on its own initiative; view in a letter of 22 October 1964 addressed — disputed the competence of the President to the President of the Parliament, drawn up of the Medical Council to participate in 'purely in the spirit' of Article 90 of the such an appointment; Staff Regulations. — declared that the applicant considered as In his reply of 6 November 1964, the Presi­ null and void the adjournment of 5 Feb­ dent requested the applicant 'most forcibly' ruary 1965, the composition of the Inval­ to comply with the Secretary-General's idity Committee and all the steps taken invitation, 'failing which it would be neces­ by it, together with, in general, all the sary to consider making a compulsory ap­ steps taken with a view to a declaration pointment on your behalf'. of invalidity. 3. By letter of 21 January 1965, the Parlia­ 6. By letter of 19 March 1965, the Parlia­ ment requested the President of the Court of ment

— expressed his belief 'that Dr Pierre Stein pointed Dr Roger Welter as third doctor, will certainly refuse this task when he and Dr Éloi Welter by letter of 17 Septem knows that it has been entrusted to him ber 1965 in his capacity as Chairman of the against the will of the person he must said Committee invited the applicant, who allegedly represent', all the more so since was then in the sanitorium in Vianden he could scarcely 'avoid taking into ac (Grand Duchy of Luxembourg), to appear count, at least in the opinion which he before the Committee in Luxembourg on 24 must personally form, information ac

8. By letter of 14 April 1965, addressed to ties: according to the applicant, the letter the applicant, the Secretary-General: authorized his private doctors to supply the — disputed the opinion expressed in the Parliament's medical adviser, who was not letter of 6 April 1965; a member of the Invalidity Committee, — prescribed a final period of grace of two with such information as they might con weeks in order that the applicant might sider appropriate 'on the basis of profes himself appoint a doctor of his choice; sional ethics'; according to the defendant, this point of view was reasoned thus: the letter authorized them to give 'all in 'Since your letter .

cedure. posed; 9. On 10 June 1965, Dr Stein wrote to the — maintained all the objections previously applicant in the following terms: 'I.. . can raised in respect of the said Committee. assure you that, in accordance with your In his reply of 12 October 1965, the Secre wishes, I shall resign from the Committee tary-General: entrusted with examining on behalf of the — referred to his letter of 26 March 1965; administration the "state of your health". — notified the applicant's lawyer that the You need therefore have no worries in this two doctors first appointed had in turn

ALFIERI v PARLIAMENT

12. By letter of 5 November 1965, Dr Éloi the minutes in question'. Welter wrote to the Secretary-General in the 13. By decision of the President of the Par following terms: liament of 13 November 1965, referring in 'The Invalidity Committee appointed to particular to the letter of 5 November 1965 consider the case of Mr Alfieri and com set out above, the applicant was 'granted posed of Dr Stein, appointed by the Presi the invalidity pension provided for in dent of the Medical Council, myself, ap Article 78 of the Staff Regulations' from pointed by the President of the Court of 1 December 1965. Justice of the European Communities, and On 17 November 1965, the Secretary-Gen of Dr Roger Welter, appointed with the eral notified the applicant of this decision agreement of the foregoing, met on 22 and also of Dr Éoi Welter's letter of 5 September 1965 to consider the case sub

by the . . . European Parliament's medical adviser, Mr Alfieri had declared that he In his application, the applicant claims that would refuse to be examined by the Inval the Court should: idity Committee, we decided to give our — declare that the present application is ruling on the basis of documentary evi admissible with regard to form; dence. — rule that it is well founded; These documents were moreover sufficient — declare that the appointments to and the ly convincing to enable us to form an composition of the Invalidity Commit

JUDGMENT OF 14. 12. 1966 — CASE 3/66

The said from the temporary unavailability of refusal was not put forward in the appli funds and the delay in payment of cant's legitimate interests, but with the sole salary due; purpose of obstructing the lawful conduct — order the defendant institution to bear of the defendant and thus of impeding the the costs and expenses of the proceed normal functioning of the Committee. ings'. It was impossible for the defendant to over The defendant, in its statement of defence, come the applicant's attitude by an applica contends that the Court should: tion to the Court, since no jurisdiction has '— take note that the defendant relies on the been conferred upon the Court of Justice in wisdom of the Court with regard to the this respect. admissibility of the application and The applicant replies: declare the application unfounded; — dismiss the application; With regard to point (a): — give a ruling on the costs in accordance with the appropriate rules.' The steps prior to the decision to retire him In their reply and rejoinder, the parties were only of a preliminary nature and maintained their previous conclusions. would not necessarily have given that result. Consequently, that decision alone may be III — Submissions and arguments of considered as 'adversely affecting him'.

plication: With regard to point (b): (a) With regard to the complaints relating to the steps prior to the decision to retire the applicant, he could have brought the matter Here too the defendant confuses the retire before the Court earlier. In fact: ment decision and the preliminary steps.

vision conferring on the President of the — First, the interests of the service, the Medical Council the power to appoint a supreme guide for the conduct of the doctor, in this instance Dr Stein, to sit on institution, obliged it to fill a post de the Invalidity Committee. Moreover, such facto vacant as soon as possible. an appointment cannot compensate for the — Moreover, an official who refuses to ap­ lack of an appointment by the official con­ point a doctor to represent him 'is in the cerned. Consequently, the appointment of position of someone who considers this Dr Roger Welter is also irregular. additional guarantee of his rights to be Moreover, the steps in question are defect­ useless'. Thus the defendant 'could ive because these two persons were ap­ have ... adopted the first doctor ap­ pointed against the applicant's wishes. pointed not by the institution, but by the They were his former private doctors and President of the Court of Justice'—an consequently their entire cooperation in the additional guarantee of impartiality— proceedings of the Committee can only and refrained from appointing the other constitute a breach of professional secrecy, two. The defendant, however, preferred a wrongful act governed by Article 458 of to follow another procedure and ad­ the Luxembourg Penal Code, since the dressed itself to the sole appropriate derogations provided for by that provision authorities. do not cover cases such as the present. If on the other hand it is admitted, as the It cannot be complained that the applicant applicant says, that the Invalidity Com­ has 'obstructed' anything, since Article 7 of mittee must at all events be composed of Annex II to the Staff Regulations does not three members, it follows that the appli­ make it encumbent upon an official to co­ cant, contrary to what he avers, was- operate, by appointing a doctor, in pro­ bound to appoint a doctor. ceedings of which he disapproves. If the — After the names of the applicant s pri-

vate doctors had been notified to the 1965 with regard to the appointment of Dr President of the Medical Council, it was Stein. for the latter 'to decide whether it was The applicant replies, with regard to the appropriate, in the interests of the person implications of his letter of 30 September concerned, to have recourse to one of the 1965, addressed to the Head of the Person doctors or on the other hand to dispense nel Department of the Parliament, that he with them'. The President adopted the had merely authorized 'his private doctors, first solution, after obtaining Dr Stein's in order to save the Parliament's medical agreement to sit as a member of the adviser the journey to Vianden where the Committee. applicant was in hospital at the time, to supply the said medical adviser, who was — 'Neither Dr Stein nor Dr Roger Welter not a member of the Invalidity Committee, at any time informed Dr Éloi Welter or with such information as they thought fit the President of the Medical Council or "on the basis of their professional ethics"'. the defendant of their intention either to This mandate, although subject to many refuse the task entrusted to them, or not reservations, was thus given to a specified to take part in the proceedings of Com person, for a distinct purpose, outside the

crecy. breached. 'In fact, Mr Alfieri's private doctors could not produce to the Inval idity Committee any information not Second complaint: Infringement of the first already on the file of the person con paragraph of Article 9 of Annex II to the cerned. His extended sick leave had been Staff Regulations supported by medical certificates. The Parliament's medical adviser had been The applicant states that under this pro able to acquaint himself with the appli vision an official may submit to the Invalid cant's state of health. The applicant had ity Committee any reports or certificates declared that he had authorized his pri from his regular doctor or from any other vate doctors to give the medical adviser medical practitioners whom he may have such information as they thought fit consulted. (letter of 30 September 1965)'.

tution . . . on its official's state of health'. free will, of certificates issued by his regular Article 458 of the Luxembourg Penal doctor, guided purely by his personal inter Code provides an express derogation est. where a law obliges a professional man An official who employs the prerogative to divulge confidential information. conferred on him by the first paragraph of The reasons for the letter of 14 April 1965 Article 9 of Annex II does not incur the have been partially set forth. It was in addi obligation to give evidence against himself tion to give the applicant a last chance as involved in the duty to supply the Invalidity well as to take account of the objections Committee with the fullest possible inform raised by his lawyer in his letter of 6 April ation on the state of his health, but has in

view the most legitimate interest of all, that fact participated in the proceedings of this of his defence.' Committee and that they simply refused to The defendant replies that precisely because sign the report. two of his regular doctors took part in the Thirdly in this case it cannot be averred that work of the Committee the applicant has no even in the absence of a report by the Inva grounds for complaint. lidity Committee the retirement is null and void. In fact, 'the refusal of the person con

to. In this instance, Dr Pierre Stein and Dr to communicate its conclusions verbally. Roger Welter refused from a specific point Finally, the Staff Regulations do not lay in time to cooperate in these proceedings. down that the decision to retire a person There were therefore no deliberations nor must proceed on the basis of an opinion by any decision by the said Committee. the Committee. The report drawn up by the Committee Article 13 of Annex VIII to the Staff Regu must be signed by all its members in order lations, governing the right to an invalidity for it to be valid; otherwise there is no pension, is irrelevant to the present case. guarantee that the conclusions arrived at by this report conform to the opinion of the Fourth complaint: Infringement of the first doctors who have not signed. paragraph of Article 13 of Annex VIII to These formalities must be observed all the the Staff Regulations more strictly as the institution is not bound to have recourse, with regard to an official According to the applicant, the Invalidity in the situation referred to by Article 59 of Committee did not comply with this pro the Staff Regulations, to the last resort of vision, under the terms of which it must constituting an Invalidity Committee. Other consider whether the invalidity from which solutions may be entertained until his cure, the official suffers is capable of 'preventing such as 'protracted sick leave' (the second him from performing the duties correspond subparagraph of Article 7 (2) of the Staff ing to a post in his career bracket'.

JUDGMENT OF 14. 12. 1966 — CASE 3/66

cided, by an order of 16 June 1966, of its at the hearing on 6 October 1966 and Dr own motion to hear the evidence of Dr Pierre Stein at the hearing on 9 November Éloi Welter, Dr Pierre Stein and Dr Roger 1966. Welter on the following questions: Dr Éloi Welter was duly summoned to the 'Is it correct that the Invalidity Committee, abovementioned hearings, but excused him­ composed of Dr Éloi Welter, Dr Pierre self on valid grounds. He submitted a Stein and Dr Roger Welter, met on 22 written declaration to the Chamber which September 1965 to consider the case of Mr was read at the hearing on 9 November C. Alfieri and that after deliberation the 1966, with the consent of the parties. Committee decided that he was suffering The parties presented oral argument at the from total permanent invalidity preventing hearing on 9 November 1966. him from performing his duties with the The Adovate-General delivered his opinion European Parliament?' at the hearing on 23 November 1966. The said Chamber heard Dr Roger Welter

Grounds of judgment

I — Admissibility

1. Although the defendant declares that it relies on the wisdom of the Court with regard to the admissibility of the application or of certain of its heads, it considers that it is inadmissible on two grounds.

(a) With regard to the complaints against the steps prior to the retirement decision, the application was filed after the expiry of the period laid down in Article 91 of both the Staff Regulations of Officials of the ECSC and the Staff Regulations of Officials of the EEC and EAEC (hereinafter referred to as 'the Staff Regulations').

of Annex II to the Staff Regulations, the defendant alleges that it is 'inadmissible to object to the procedure adopted by the authority to arrive, notwithstanding his obstruction, at the finding of his invalidity by the Invalidity Committee'.

The application is essentially directed against the retirement decision, an act adversely affecting the applicant within the meaning of Article 91 of the Staff Regulations and which he has therefore an interest in contesting. Besides, the question whether the applicant's own conduct is such as to weaken the complaints made against the said decision should be considered with the substance of the case.

2. The applicant requests the Court to order the defendant to pay him 100 000 francs for non-material damage and '20 000 francs, subject to increase, for loss of interest and injury resulting from the temporary unavailability of funds and the delay in payment of salary due'.

Since the originating application contains no indication how these amounts have been assessed, on this point it fails to satisfy the requirements of Article 38 (1) (c) of the Rules of Procedure, under the terms of which the application 'shall contain ... a brief statement of the grounds on which the application is based'. Conse­ quently, these conclusions are inadmissible.

It follows from all the foregoing that the present application is admissible, with the exception of the conclusions referred to above at 2.

II — The substance of the case

JUDGMENT OF 14. 12. 1966 — CASE 3/66

Medical Council the power to appoint a doctor, in this instance Dr Stein, as a member of the Invalidity Committee, and that such an appointment can be no substitute for an appointment by the official concerned. Consequently, both the appointment of Dr Pierre Stein and that of Dr Roger Welter, in which Dr Stein participated, are irregular.

Moreover, the steps in question are also claimed to be irregular because these two persons were appointed against the applicant's wishes. They were his former private doctors and consequently their participation in the proceedings of the Committee could only constitute a breach of professional secrecy.

It follows from the combined provisions of Articles 53 and 78 of the Staff Regula­ tions that retirement can only take place when the Invalidity Committee finds that the person concerned suffers from total permanent invalidity.

Under the terms of Article 7 of Annex II to the Staff Regulations, the Invalidity Committee shall consist of three doctors, the first and second of these being appointed by the President of the Court of Justice and by the person concerned respectively, while the third shall be chosen by agreement between the first two doctors.

By thus empowering the person concerned partially to decide the membership of the Committee while refusing this power to the institution, and rendering the retirement decision dependent on the assent of an independent expert body, and finally by providing in Article 91 for the right of the person concerned to contest such a decision, the Staff Regulations have given the latter very wide guarantees against any possible irregularity on the part of the administration.

Moreover, the fact that the Invalidity Committee included two of the applicant's former private doctors does not render its composition irregular.

On the contrary, it should be pointed out that Article 7 of Annex II to the Staff Regulations empowers the person concerned to appoint a doctor himself, clearly presupposing that the person concerned will choose a person in whom he has confidence, and therefore in the majority of cases that it will actually be one of his private doctors.

It follows from these considerations as a whole that the present complaint must be rejected.

3. The applicant's second complaint

The applicant claims that, owing to the appointment of two of his private doctors, he was deprived of the right granted him by Article 9 of Annex II to the Staff Regulations, that is to say, of submitting to the Invalidity Committee any reports or certificates from his regular doctor.

This complaint is unfounded.

Furthermore, as was stated in connexion with the first complaint, the applicant's retirement can only take place if the 'Invalidity Committee', which must be com­ posed of three members, has found that the person concerned suffers from total permanent invalidity.

It is clear from these considerations as a whole that the retirement is dependent on the assenting opinion of at least the majority of the members of the Committee.

This condition was not complied with in the present case.

First of all, when Dr Roger Welter was giving evidence to the Court, he declared in particular that 'the Committee met and discussed the matter', but 'it is not correct that it arrived at any conclusion on [the degree of the applicant's inval­ idity]'.

Secondly, Dr Pierre Stein, who also gave evidence, stated in particular that 'we did not even sit as a Committee' and that 'the Committee therefore made no finding'.

Finally, in the written statement which he sent to the Court, Dr Éloi Welter admitted that 'the conclusions with regard to total permanent invalidity, which, in my opinion, emerged from our meeting on 22 September 1965, are only binding on their signatory', that is to say, on himself.

In this connexion the following facts and circumstances must be taken into account:

First, the applicant has not stated, even as an alternative conclusion, that the factual conditions for his retirement were lacking.

He has not performed his duties since August 1964 owing to his state of health.

Secondly, in his letter of 13 October 1964, addressed to the Secretary-General of the defendant institution, he refused to appoint a doctor as a member of the Invalidity Committee, in particular on the ground that 'this would expose me to a professional opinion which might result in my being retired'.

Thirdly, he was retired on grounds of health by the Italian Parliament, after appearing before the committee set up by it for this purpose and apparently without protesting against the said retirement.

Finally, certain undisputed facts relating to the applicant's state of health must be taken into account, particularly the duration of his absences.

According to the applicant, the Invalidity Committee failed to comply with the

JUDGMENT OF 14. 12. 1966 — CASE 3/66

provisions of the first paragraph of Article 13 of Annex VIII to the Staff Regula­ tions, under the terms of which it was required to consider whether the invalidity from which the official suffered was capable of 'preventing him from performing the duties corresponding to a post in his career bracket'; it follows from this that the Committee should have considered whether other posts in the applicant's career bracket should be taken into account.

First, the abovementioned provision is intended to govern the amount of the invalidity pension and therefore cannot have been infringed by the Invalidity Committee.

Moreover, it follows from the considerations in connexion with the third com­ plaint, at (a), that this complaint is pointless. It must therefore be rejected.

It follows from the foregoing as a whole that the present application must be dismissed.

hereby:

1. Dismisses Application 3/66 as unfounded, with the exception of the conclu­ sions for the award of compensation which are dismissed as inadmissible.

ALFIERI v PARLIAMENT

2. The applicant is ordered to pay the costs of the proceedings, with the exception of those incurred by the defendant.

Monaco Donner Strauß

Delivered in open court in Luxembourg on 14 December 1966.

Mr President, since this letter was of a private and personal Members of the Court, nature, it seems impossible to consider it as a complaint within the meaning of Article By a decision of 13 November 1965 of the 90 of the Staff Regulations. Furthermore, President of the European Parliament, your case-law is firmly established to the Cesare Alfieri, an official of that institution, effect that the applicant may always rely on was granted the invalidity pension referred defects vitiating the preliminary procedure to in Article 78 of the Staff Regulations, in respect of a decision which ultimately with effect from 1 December 1965. He affects him adversely (that is, the retirement requests you to annul the said decision and decision). also contests, in so far as is necessary, the Secondly the European Parliament main­ decisions concerning the setting up and tains that Mr Alfieri wished to take advan­ composition of the Committee which de­ tage of apparent lacunae in the Staff Reg­ cided his case together with the report of ulations to obstruct his retirement which that Committee. was made necessary by his state of health. The facts in which the contested step occur­ For example, he refused to appoint a doctor red are sufficiently well-known to you to represent him on the Invalidity Com­ through the report of the hearing and the mittee, which was not only his right but his statements of the witnesses for me to be duty. It is alleged that this obstruction pre­ able to refrain from repeating them at this vents him from relying on Article 91 of the point. Staff Regulations and that his application is Instead I wish in the first place to dismiss improper. To which one might reply that if, two objections of inadmissibility which the as in the present case, there is a dispute defendant has raised against the applica­ between an institution and one of its serv­ tion, while ultimately relying on the wisdom ants concerning the legality of an act ad­ of the Court in the matter. versely affecting the latter, under Article 91 First Mr Alfieri does not base his applica­ it is your duty to give a ruling on the dispute. tion on a defect in the retirement decision The legality of the position adopted by the itself, but rather on the alleged illegality of applicant—which I shall come to examine the steps which preceded it. This point had in connexion with the complaints which he already emerged at the outset of the pro­ raises—comes within the substance of the ceedings, by which time the applicant had case and does not concern its admissibility. already made a complaint through official What are the provisions of the Staff Regula­ channels to the President of the European tions and of the Annexes thereto which Parliament on 22 October 1964. However, govern the matter? According to Article 59,