C-29/71
ECLI:EU:C:1972:64
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JUDGMENT OF THE COURT (FIRST CHAMBER) 13 JULY 1972 1
Luigi Vellozzi v Commission of the European Communities
Case 29/71
Summary
Officials — Invalidity — Determination — Criteria (Staff Regulations of the European Communities, Annex VIII, Article 13)
The existence of an occupational disease be, must appear clearly and precisely causing total or partial permanent in from the relevant conclusions of the validity of the official and giving him the Invalidity Committee referred to in Article right to benefit under Article 73 or Article 13 of Annex VIII to the Staff Regulations. 78 of the Staff Regulations as the case may
In Case 29/71
Luigi Vellozzi, an official of the Commission of the European Communities, residing in Brussels, represented by Émile Drappier, Advocate at the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 B/4 rue Philippe-II,
applicant,
v
Commission of the European COMMUNITIES, represented by its Legal Adviser, Pierre Lamoureux, acting as Agent with an address for service in Luxembourg at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal,
defendant,
Application for the benefit of Article 73 of the Staff Regulations of Officials to be granted to the applicant,
1 — Language of the Case: French.
JUDGMENT OF 13.7.1972 — CASE 29/71
THE COURT (First Chamber),
composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Summary of facts and pro already incurred or which may be cedure incurred in the future;
The facts of the case and the procedure — an admission of a degree of invalidity. may be summarized as follows: The appointing authority did not reply 1. The applicant is an official of the Com within two months and the applicant mission in the post of Principal Clerical brought the present application which was Officer in Grade C3. After entering the lodged at the Coust Registry on 9 June service in 1960 he worked until 1968 as an 1971.
operator in the offset workroom. In July In his application the applicant, relying on 1968 he was transferred to the Directorate- a fresh medical report, states that the General for Competition where he was degree of invalidity from which he suffers given administrative work. is 30 % and seeks inter alia the convening of Following numerous absences on sick an Invalidity Committee which 'would leave from 1964, in particular between determine the degree of invalidity' on the 1965 and 1968, the Commission had the basis of information supplied by both applicant examined by an Invalidity Com parties. mittee in accordance with the third sub paragraph of Article 59(1) of the Staff 2. Convinced 'that the best way of deter Regulations. Relying on the report of this mining the rights of the party concerned ... Committee made on 5 December 1968 and to put an end to the proceedings was and 13 January 1969, the applicant claimed to have the applicant re-examined by an the benefit of Article 73 of the Staff Regula Invalidity Committee' the Commission, tions. On 12 February 1971 he submitted pursuant to Article 7 of Annex II to the to the Commission a complaint under Staff Regulations, asked the Court of Article 90 of the Staff Regulations seeking: Justice on 30 July 1971 to appoint the first doctor to serve on the Invalidity — an admission that he suffers from an Committee and in a letter of 3 August 1971, occupational disease; invited the applicant to appoint the doctor to represent him. As first doctor, the Court — reimbursement of all medical expenses appointed Dr Therasse of Brussels; the
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applicant stated on 27 August 1971 that existence of an occupational disease on the he had appointed Dr D'Avanzo as his basis of the report of the Invalidity Com doctor. In January 1972 these two doctors mittee of 5 December 1968'. appointed the third doctor, Dr Vapel, a By a note of 25 February 1972, the Medical lung specialist. In a letter of 29 September Service of the Commission asked the 1971 giving Dr Therasse confirmation of applicant to give his permission for his his duty the Commission stated in the medical file to be sent to the Invalidity case of Mr Vellozzi the duty of the Committee. The applicant's Counsel asked Invalidity Committee goes beyond the for details as to the purpose of this request normal task of deciding on the permanent and the Medical Service explained in a and total invalidity of the person con letter of 10 March 1972 that 'the Com-
cerned. In view of the present administra mitte must be in the possession of all the tive status of Mr Vellozzi and of the medical details in order to give a proper possibility that he is not suffering from opinion' and that in the absence of the total and permanent invalidity, it should be medical file 'it could be seriously hindered determined whether he is suffering from in its work (annex to the rejoinder). In a partial permanent invalidity making him letter of 21 March 1972 the applicant's capable or incapable of carrying out the Counsel replied that the applicant was on duties corresponding to a post in his principle opposed to letting his medical career bracket in order to determine the file go to the Invalidity Committee because sum to which he is entitled under Article of the confidential nature of this file as 73 (2) (c) of the Staff Regulations. (In the set out in Article 26 of the Staff Regula case of partial permanent invalidity the tions and Article 9 of Annex II to the degree thereof should be determined)'. Staff Regulations. By a subsequent letter of 10 January 1972 the Commission further informed Dr Therasse that he 'should decide whether
3. On hearing the report of the Judge- Rapporteur and the views of the Advocate- the medical and pharmaceutical expenses General, the Court (First Chamber) for which reimbursement is sought, should invited the applicant to produce the be considered to be the consequence of report of the Invalidity Committee of the occupational disease from which the 5 October 1968 and 13 January 1969 and applicant is suffering . . . and if this is not invited the defendant to produce the text the case, make a break-down of these of the instructions given to the members costs according to their cause'.
The same instructions with the same details were of the 1968 Invalidity Committee defining their duties. After these documents had given by the Commission to Dr D'Avanzo. been produced the Court (First Chamber) By a letter of 18 February 1972 Dr Therasse decided to open the oral procedure. asked the applicant to appear on 23 The parties presented oral argument on February 1974 before the Invalidity Com 14 June 1972. mittee which was 'to give an opinion as to The Advocate-General delivered his (his) invalidity and as to the break-down opinion on 28 June 1972. of the pharmaceutical expenses'. By a letter of 21 February 1971 the appli cant replied to Dr Therasse that he could II — Conclusions of the parties not appear before this Committee because certain conditions which he regarded as indispensable had not been fulfilled.
After The applicant claims that the Court should: stating that 'the wording of your letter is ambiguous with regard to the duty of the Invalidity Committee' he added 'I 1. Declare null and void the implied should therefore like the duty to be clearly rejection by the Commission of the defined in accordance with my previous complaint through official channels of request' and again set out his point of view 12 February 1971 registered on 17 seeking first 'actual admission of the February 1971;
JUDGMENT OF 13.7.1972 — CASE 29/71
2. Accordingly declare and rule that the Nevertheless in its report it confirmed the applicant suffers from 30% invalidity; existence of 'spasmodic bronchitis' and stated that 'without saying that they are the 3. Order the defendant to reimburse the sole cause, it may in all fairness be ac applicant on the basis of Article 73 cepted that the conditions in which of the Staff Regulations the medical Mr Vellozzi worked for eight years are and pharmaceutical expenses amounting largely the cause of his bronchitis'. to Bfrs 100 000, subject to amendment It follows from this report that whilst the in the course of the proceedings; applicant does not suffer from total permanent invalidity which he has never 4. Order the defendant to pay to the indeed claimed, he does nevertheless suffer applicant the sum provided for in from occupational disease and that only Article 73 (2) (c) of the Staff Regulations the consequent degree of invalidity has not which is assessed at Bfrs 100 000, been determined because this was not subject to amendment in the course of within the terms of reference given to the the proceedings; Invalidity Committee. The applicant was therefore justified in asking, first in his 5. Order the defendant to pay the costs of complaint of 12 February 1971 and sub the proceedings. sequently in these proceedings that the appointing authority should determine the The defendant contends that the Court degree of invalidity and allow him to should: benefit under Article 73 (2) (c) of the Staff Regulations. — rule that the action is now unjustified The defendant states that according to the and has no purpose; report of the Invalidity Committee, from which the applicant merely cited a few — reject the action in its entirety as now selected extracts in support of his con inadmissible and unfounded; clusion whilst failing to produce it before the Court, although he did produce it in — order the applicant to bear the costs. the annex to his complaint of 12 February 1971, Mr Vellozzi at the time of the ex amination only showed slight symptoms III — Submissions and arguments of bronchitis' contrary to previous find of the parties ings by other doctors. The Commission further states that the
The submissions and arguments of the appointing authority initiated the necessary parties may be summarized as follows: procedure to determine the rights claimed The applicant recalls that when he was by the applicant in his action thus making engaged by the Commission he underwent the action superfluous. The applicant's a medical examination confirming that he refusal to go before the Invalidity Com was in perfect health and that he became mittee makes it impossible for the appoint ill after working in a basement room with ing authority to meet any claims he may poor ventilation where he had to use have. The applicant had thus adopted an solvents to clean the machines. The attitude which denies his case both as to Invalidity Committee which was set up in the subject-matter and cause of action and 1968 because of the numerous occasions which, considered together with the on which he had had sick leave since 1964, measures taken by the Commission, has was given the duty of determing whether the effect of destroying the subject-matter the applicant suffered from total permanent of the action and depriving the applicant invalidity preventing him from carrying of any legal interest in taking proceedings. out his duties altogether in view of the The applicant alleges that these conclusions possible application of Article 78 of the are ill-founded, stating that the main Staff Regulations. The Committee an purpose of the action is to obtain an swered this question in the negative. admission of the existence of occupational
VELLOZI v COMMISSION
disease on the basis of the report of the mittee did not think it possible to state Invalidity Committee of 1968 and accord that the working conditions were the sole ingly the application of Article 73 (2) (c) or main cause of the disease and, more of the Staff Regulations in his favour over, it had not been given this duty at after the degree of invalidity caused by the the time. The attitude of the Invalidity disease has been determined. On the other Committee therefore seems to justify the hand the fact that the most recent Invalidity prudence of the administration and would Committee has been given the duty of therefore justify fresh examination by an determining whether he is suffering total Invalidity Committee entrusted with the permanent invalidity shows that the duty of deciding inter alia whether the defendant has not yet admitted the existence origin of the disease is occupational or not. of such a disease.
Thus the duty assigned Moreover the report of the Invalidity to the Committee is outside the scope of Committee of 1968 shows that examina the complaint of 12 February 1971 and tion revealed only slight symptoms of of the present action so that the action is bronchitis contrary to earlier findings by not without cause and subject-matter. various doctors. The question may there The defendant insists that the applicant fore be legitimately raised whether the willfully fails to submit to the appropriate declared improvement has continued to procedure to assess his possible rights. the point where there is now no longer In this respect it emphasizes that apart any disease. from the applicant's rejection of the Thus a new medical examination of the invitation to attend the meeting of the applicant as well as the examination of Invalidity Committee, he also refused to his medical file appears necessary.
These authorize his medical file to be sent to examinations, in particular that of his this Committee. medical file, would also enable it to be In addition, in support of his case, the decided which medical and pharmaceutical applicant merely took one sentence from expenses might be attributable to any the report of the Invalidity Committee of disease admitted as being occupational. 1968 removing it from context and not In addition the applicant 's refusal to indicating in any way what he considers authorize his medical file to be sent to the the term 'occupational disease' to mean. Invalidity Committee is in no way justified The 'rules' provided for in Article 73 of by Article 26 of the Staff Regulations and the Staff Regulations have not yet been Article 9 of Annex II to the Staff Regula
adopted. Nevertheless in accordance with tions. The former provision only applies national laws relating to the public service to the 'personal' file of the official; the and the position adopted by the Com latter provides solely that the proceedings mission in its recommendations of 23 July of the Committee shall be secret which 1962 and 20 July 1966 it would be reason precisely ensures respect of the principle able to accept that: 'the term "occupa of medical secrecy by the Invalidity Com tional disease" refers to any disease or mittee when it has to consult the medical injury which arose in the course of and by file of the party concerned in order to reason of the performance of duties in form a proper opinion on the case. the service of the European Communities Finally the applicant had no right to where it is established that the performance challenge the appointment of the Invalidity of those duties was the principal or the Committee and to refuse to submit to predominant cause of the disease or of the examination by it since the conditions aggravation of a pre-existing disease'. for the application of Article 59(1) of the The definition used in the report of the Staff Regulations were complied with in Invalidity Committee of 1968 is subtly this case. worded and seems to show that the Com-
JUDGMENT OF 13.7.1972 — CASE 29/71
Grounds of judgment
1 By an application lodged at the Court Registry on 9 June 1971 the applicant has brought an action seeking the annulment of the implied rejection by the Commis sion of his complaint of 12 February 1971 whereby he sought to be granted the benefit of Article 73 (2) (c) and (3) of the Staff Regulations of Officials.
2 The applicant alleges that the Invalidity Committee convened in 1968 pursuant to the third subparagraph of Article 59(1) of the Staff Regulations admitted that he was suffering partial permanent invalidity, the degree of which remained to be determined.
3 Therefore he asked the appointing authority to determine that degree in order that he might benefit under Article 73 (2) (c) of the Staff Regulations and in accordance with paragraph (3) of that article to reimburse to him all the medical and phar maceutical expenses incurred because of this invalidity.
4 In 1971 the appointing authority set up a new Invalidity Committee to which it assigned the duty not only of ruling as to the existence of total permanent invalidity but also examining whether the applicant might be suffering from partial perma nent invalidity caused by the working conditions and, if this was so, to determine the degree of invalidity.
5 This Committee was further given the task of examining whether the medical and pharmaceutical expenses for which reimbursement was sought should be regarded as attributable to the occupational disease.
6 The applicant refused to appear before this Committee or to allow his medical file to be sent to it by the departments of his institution.
7 In support of this refusal he raised the allegedly ambiguous nature of the duty assigned to the Commission and sought 'actual admission of the existence of an occupational disease on the basis of the report of the Invalidity Committee of 5 December 1968'.
8 The existence of an occupational disease causing total or partial permanent in validity of the official and giving him the right to benefit under Article 73 or Article 78 of the Staff Regulations as the case may be must appear clearly and precisely from the relevant conclusions of the Invalidity Committee referred to in Article 13 of Annex VIII to the Staff Regulations.
9 In this case the Invalidity Committee convened in 1968 stated in its report that the applicant suffered from asthmatic or related bronchitis caused largely by the
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conditions in which he had worked in the offset workroom of the Publications Office.
10 At the same time it found that there was an improvement in the asthmatic condi tion which had been found by several doctors previously, caused in all probability by the fact that since February 1968 the applicant had been transferred to a different department.
11 It concluded that 'the state of health of Mr Vellozzi does not prevent him from working but urgently requires that the work should be carried out in a place sheltered from the elements and in an atmosphere free from any substance which might irritate the respiratory organs'.
12 Thus whilst the Invalidity Committee set up in 1968 admitted that the applicant was suffering from a form of bronchitis it nevertheless did not conclude that he was suffering from an occupational disease entailing partial permanent invalidity.
13 The force of the conclusions which it reached as to the existence of the applicant's partial permanent invalidity are weakened by the fact that according to the report of 5 December 1968 Mr Vellozzi's lack of cooperation prevented the Commission from undertaking all the medical examinations which it contemplated.
14 In these circumstances the applicant cannot rely on such a report to argue that the Invalidity Committee set up in 1968 admitted that he was suffering partial permanent invalidity or that the new Invalidity Committee should merely deter mine the degree of this invalidity and the medical and pharmaceutical expenses to be reimbursed under Article 73 (3)of the Staff Regulations.
15 On the contrary the report of 5 December 1968 justifies the setting up of a new Invalidity Committee with the duty inter alia of deciding the causes of the appli cant's alleged invalidity.
16 For these reasons the application is rejected.
Costs
17 Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
18 The applicant has failed in his submissions.
19 However, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.
OPINION OF MR ROEMER — CASE 29/71
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 73 and 78 and Annex II; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;
THE COURT (First Chamber)
hereby:
1. Dismisses the application;
2. Orders the parties to bear their own costs.
Mertens de Wilmars Donner Monaco
Delivered in open court in Luxembourg on 13 July 1972.
A. Van Houtte J. Mertens de Wilmars
Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 29 JUNE 1972 1
Mr President, official in Grade C3 (Principal Clerical Members of the Court, Officer) and for some years was a technician in offset printing in the printing department The applicant in the proceedings in which I of the Commission. However since 1964 am today giving my opinion entered the the applicant has apparently repeatedly service of the Commission of the European suffered from diseases of the respiratory Economic Community in 1960. He is an organs which have kept him away from
1 — Translated from the German.