C-31/71

In Case 31/71

Antonio Gigante , an official of the Commission of the European Communi­ ties, living at Brussels, 11 rue de la Pépinière, represented by Maître Emile Drappier, advocate at the Brussels Bar, with an address for service in Luxem­ bourg at the chambers of Maître Ernest Arendt, 34 B IV rue Philippe II,

applicant, v

Commission of the European Communities , represented by its legal adviser, Louis de la Fontaine, as agent, with an address for service in Luxem­ bourg at the chambers of Emile Reuter, legal adviser to the Commission, 4 boulevard Royal, defendant,

Application

— for the convening of an Invalidity Committee pursuant to Article 59 (1), paragraph 4, of the Staff Regulations,

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure applicant to be a member of the Invalidity Committee, Dr D'Avanzo, The facts and procedure may be refused to sign the report, and on 12 summarized as follows: February 1970 expressed reservations to the effect that it was his opinion that the The applicant took up employment with accident, even if the invalidity caused the Commission of the European thereby was slight, rendered him totally Communities in 1960. He performed the incapable of returning to his former duties of clerical assistant in charge of work. photocopying work using a Xerox 914 photocopying machine. After the report had been filed differences of opinion arose between the On 13 November 1962, while returning Administration and the applicant as to home from work, he suffered a motor car accident. Thereafter he had to the latter's capability of returning to work, as to the assessment of the extent undergo several forms of medical of his invalidity and as to the total treatment and was very frequently reimbursement of medical and pharma­ absent from work. In 1967 an Invalidity ceutical expenses. Committee was convened which, after having encountered some difficulties, On 17 February 1971 the applicant delivered its report on 7 January 1970. lodged a complaint within the meaning According to this report Mr Gigante 'is of Article 90 of the Staff Regulations in not suffering from any permanent which he requested: invalidity which might be considered 1. Pursuant to Article 59 of the Staff total and which makes it impossible for Regulations: the appointment of an him to perform the duties corresponding Invalidity Committee; to a post in his career bracket'. However, the doctor chosen by the 2. Pursuant to Article 73 (2), (c) and (3):

(a) the reconition of his permanent time, to constitute the Committee and the partial invalidity, proceedings before the Court have been reopened. (b) total reimbursement of his medical and pharmaceutical The parties presented their observations expenses, that is to say a sum of as to the deadlock reached, at the FB 90 391. hearing on 24 October 1973. The Advocate-General delivered his By a letter of 29 April 1971 the Director for Administration and Personnel informed opinion at the hearing on 15 November 1973. the applicant that he was considering appointing a new Invalidity Committee, composed differently from the first, this II — Observations submitted implying that the applicant must under­ by the parties take not to reappoint Dr D'Avanzo as a member of the Committee. In his application the applicant claims The applicant, being of the opinion that that the Court should: this letter did not constitute a reply to — declare null and void the implicit his complaint of 17 February 1971, filed rejection by the appointing authority the present application with the Registry of the administrative complaint of of the Court on 16 June 1971. 17 February 1971, lodged on After the application instituting the 18 February 1971; proceedings had been filed, the defendant decided to refer Mr Gigante's case once — declare null and void the decision more to an Invalidity Committee, pursuant contained in the letter of the Director to Article 59 of the Staff Regulations, to for Administration and Personnel of which the applicant appointed Dr 29 April 1971, in so far as it sought D'Avanco and the Commission appointed to require the applicant not to Dr R. de Marneffe. appoint Dr D'Avanzo as a member Since the applicant considered that the of the Invalidity Committee, thus convening of the new Invalidity Com­ restricting the rights conferred on mittee containing Dr D'Avanzo did not officials by Article 7 of Annex II to meet all his requirements the proceedings the Staff Regulations; before the Court were continued. — order the defendant to institute the The written procedure followed the procedure for the convening of the normal course. Invalidity Committee laid down by Having heard the report of the Judge- Article 59 (3) of the Staff Regulations, Rapporteur and the opinion of the the task of this Committee being: Advocate-General, the Court (First Chamber) decided to open the oral 1. to assess whether the applicant is procedure without any preparatory suffering a total permanent inquiry. invalidity, or a partial permanent invalidity such as to render him The parties made oral observations at the hearing on 14 June 1972. At the nevertheless incapable of perform­ conclusion of the hearing the Court ing the duties corresponding to a decided to stay proceedings while post in his career bracket, awaiting the Invalidity Committee's 2. to assess the extent of his report. invalidity, for the purposes of Since the parties have not been able to applying Article 73 (2) (4) of the reach agreement as to the mutual Staff Regulations, appointment, under Article 7 of Annex II to the Staff Regulations, of a third doctor, 3. to assess what treatment the it has not been possible, up to the present applicant should undergo;

— order the defendant to repay to the Gigante's case once more to an Invalidity applicant, pursuant to Article 73 of Committee as provided by Article 59 of the Staff Regulations, his medical the Staff Regulations. Pursuant to Article and pharmaceutical expenses, and in 7 of Annex II to the Staff Regulations, particular to pay to the applicant the the President of the Court, in August sum of FB 90 391 being the 1971, appointed Dr Belenger. The difference between the expenses applicant appointed Dr D'Avanzo as a incurred by him and those member of this Committee. reimbursed, subject to adjustment It was the Invalidity Committee's task to during the proceedings; ascertain the following points: — order the defendant to pay the costs. (a) whether the applicant is suffering a In his rejoinder the applicant withdrew total permanent invalidity; the third and fourth submissions of his application. (b) if it should transpire that he is not suffering from a total permanent The defendant contends that the Court should: invalidity, whether the applicant is suffering from a partial permanent — rule that the Invalidity Committee, invalidity such as would render him constituted by the appointment of Dr incapable of performing the duties Belenger by the President of the corresponding to a post in his career Court in August 1971, has bracket; jurisdiction to settle all the points at issue in the application; (c) or further, whether he is suffering a partial permanent invalidity as the — accordingly, rule that this Committee direct consequence of the accident must deliver its report without delay; which he suffered on 13 November — take formal notice that the 1962; the purpose of this is to make Commission contests the validity of it possible to assess the compensa­ the claim for reimbursement of tion which he is entitled to claim medical expenses made in the under Article 73 (2) (c) of the Staff application; Regulations (it might be necessary to assess the extent of the partial — accordingly, reserve judgment on this permanent invalidity resulting from claim until the parties have been able the accident); to formulate their attitude towards the conclusions reached by the (d) the date, if any, when the medical Invalidity Committee. position resulting from the injuries caused by the accident of 13 At the hearing on 24 October 1973 the November 1962 had become parties submitted that the Court should: stabilized and whether further — order that an Invalidity Committee medical treatment is necessary be convened, and reserve to itself the thereafter; requisite powers to ensure the effective functioning of this (e) whether the medical and pharma­ Committee. ceutical expenses, the reimbursement of which is claimed, were incurred as a result of the accident and whether they are covered by the III — Submissions and argu­ provisions of Article 73 (3). If it is ments of the parties found that they are not, the Committee is to make a separate The defendant observed that the relevant evaluation of the expenses according authority had decided to submit Mr to their origin.

Grounds of judgment

1 By an application lodged on 16 June 1971 the applicant requested the annulment of several implicit and express decisions of the Commission relating to the appointment of an Invalidity Committee within the meaning of Article 59 (3) of the Staff Regulations and the institution of the procedure for the convening of such a Committee.

2 By letters dated 29 September and 15 October 1971, and by two letters dated 11 January 1972, sent by the Director-General for Administration and Per­ sonnel to Doctor Belenger and Doctor D'Avanzo, the Commission instituted the procedure for convening an Invalidity Committee.

INTERLOCUTORY JUDGMENT OF 29. 11. 1973 — CASE 31/71

3 It was the task of this committee to assess:

(a) Whether the applicant is suffering a total permanent invalidity;

6 During the course of the hearing at which proceedings were reopened the agent for the Commission stated that in consequence of the attitude of the applicant and of his doctor the procedure under Article 59 of the Staff Regulations was deadlocked and that, this being the case, the Commission was bound to keep the applicant in employment and pay him, in spite of repeated absences attested by certificates made out by a variety of doctors.

7 Under these circumstances the defendant, while maintaining that the initial application had become devoid of purpose, submitted that the Court should

GIGANTE v COMMISSION

take such measures as might be necessary in order to convene an Invalidity Committee as provided for by Article 59 of the Staff Regulations, its task being that set out above.

8 At the same hearing, the applicant, admitting that in fact the two doctors could not reach agreement as to the choice of a third, agreed that the Court should take such measures as might be necessary in order to bring to a close the procedure for the assessment of invalidity.

9 The Staff Regulations do not provide a solution to the difficulties indicated by the parties.

INTERLOCUTORY JUDGMENT OF 29. 11. 1973 — CASE 31/71

members shall be at liberty to notify this fact to the Court, which reserves to itself the power to order the necessary measures.

Costs

16 Costs are reserved.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations, especially Article 7 of Annex II; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

4. A copy of this judgment shall be sent to each of the doctors already appointed to the Invalidity Committee.

Donner Monaco Mertens de Wilmars

Delivered in open court in Luxembourg on 29 November 1973.

A. Van Houtte R. Monaco

Registrar President of the First Chamber

OPINION OF MR ADVOCATE-GENERAL REISCHL

1 — Translated from the German.