C-51/72

JUDGMENT OF THE COURT (FIRST CHAMBER) 5 APRIL 1973 1

Marie Noé-Dannwerth

v the European Parliament

Case 51/72

1. Officials — Social Security — Insurance — Affiliation — Conditions — Con­ tributions — Payment by the insured — Obligations of the Administration (Staff Regulations of Officials of the EC, Art. 72) 2. Officials — Social Security — Insurance — Illness — Unjustified absences from work — Medical expenses — Right to benefits (Staff Regulations of Officials of the EC, Art. 72) 3. Officials — Social Security — Particularly difficult position — Gifts, loans or advances — Grant — Optional nature (Staff Regulations of Officials of the EC, Art. 76)

applicant, v

EUROPEAN PARLIAMENT, represented by its Secretary General, Hans Robert Nord, acting as agent, with the assistance of Alex Bonn, of the Luxembourg Bar, having chosen its address for service in his chambers at 22 Côte d'Eich, Luxembourg,

defendant,

Application for

— annulment of the refusal of the European Parliament to pay the applicant the amount of her salary from 15 June 1970 to 12 December 1970,

— reimbursement for the same period of the expenses for sickness incurred by the applicant.

I — Facts and procedure ary 1963 and established in that post on 1 June 1963 in grade C3. On 17 The underlying facts and procedure may November 1966, she was promoted to be summarized as follows: grade C 2. 1. Mrs Marie Noé-Dannwerth was In August 1969, in view of the frequency engaged at the European Parliament as a of the applicant's absences on account of secretary/shorthand-typist on 12 Febru- sickness, the Eurpean Parliament decided

NOÉ-DANNWERTH v EUROPEAN PARLIAMENT

The preventing her from exercising her duties certificate of this latter doctor, dated 12 as a secretary/shorthand-typist. December 1970, certified a complete On the basis of this report, the incapacity for work, provisionally for an Parliament requested the applicant by indeterminate period. letter dated 26 January 1970, to resume Having regard to these factors, the her work. But the applicant, disputing administration decided to reconvene the the opinion of the Invalidity Committee, Invalidity Committee, in order to clarify asked to be subjected to a new definitively the position of the party examination to be performed at a concerned. This new Committee

that Mrs Noé-Dannwerth is suffering By a letter of 2 February 1970, Mrs from a complete and total invalidity.' Noé-Dannwerth sent the administration On the basis of this report, the a certificate from Dr Marx-Molitor, Secretary-General of the Parliament which stated 'she cannot yet take up decided, on 17 September 1971, to work again.' The Parliament replied on terminate Mrs Noé-Dannwerth's duties, 16 February 1970, specifying, inter alia, and to grant her the benefit of the that it was not accepting and would not invalidity pension, taking effect from 1 accept any further medical certificate referring to the same sickness and that

on 15 June 1970. By a letter dated 18 by the administration had declared her June 1970, the Director-General of the incapable of working. administration, having pointed out the 2. By a letter dated 7 December 1971, applicant's absence, informed her that: the applicant replied to the Director-Gen from Monday 15 June 1970, and for the eral of the administration that she was duration of your absence, you will lose unable to accept the conditions the benefit of your remuneration.' accompanying her retirement and Following a new medical examination requested, inter alia, carried out by the medical officer of the — the payment of her salary from 15 institution, the applicant was recognized June 1970 until 11 December 1970,

The Director-General of the administra­ The Advocate-General presented his opinion at the hearing on 14 March 1972. tion having rejected this claim by a letter dated 7 January 1972, the applicant's lawyer sent him a letter, dated 23 March 1972, in which, after having pointed out II — Submissions of the that: parties 'you do not consider the letter written on 7 December 1971 by Mrs The applicant asks the Court: Noé-Dannwerth to be a request submitted under provisions of Article 90 '— To accept the present action as in of the Regulations ...' proper from and to declare that it is brought within the time limits, he concluded as follows: consequently to declare it admiss­ 'I am not going to ask you forthwith to ible, consider the present request as an — to declare that it is well-founded and administrative complaint. However, and justified as to merits and to the extent that you cannot accede to consequently, the present claim, I beg you to inform me if, for your part, you consider this as — to declare that the communication a request within the meaning of Article sent on 18 June 1970 to the 90 of the Staff Regulations. If that is applicant does not constitute a your attitude, I must obviously bring decision within the meaning of the before the Court the two points Staff Regulations of the European submitted in the present claim: the Communities, payment of the salary wrongly withheld — to declare that this communication and the assumption of responsibility for all medical expenses.' could not therefore deprive the applicant of her salary as an official, The Director-General replied by a letter of 19 May 1972, expressed in the — to declare that the applicant has a following terms: right to the reimbursement of '... I have not found in your medical expenses even if the decision correspondence any new factor which on the suspension of the salary can permits me to alter the terms of my be considered valid and justifiable, letter dated 7 January 1972 which itself — to declare moreover that the referred back to the terms of my letter Administration of the European dated 22 October 1971. I would be Parliament has contravened its duty obliged if you would kindly refer back of assistance and aid towards an to these two letters. In addition, I think I official finding herself within the should call your attention to the fact conditions for application of Article that the decision which you ask to be 76 of the Staff Regulations, altered dates from 18 June 1970.' On 17 July 1972, Mrs Noé-Dannwerth — to order the European Parliament to brought the present action. bear all the costs and expense of the action, 3. The Court (First Chamber), on the report of the Judge-Rapporteur and — as a subsidiary plea, to order an upon hearing the Advocate-General, expert medical report to verify, on decided to open the oral procedure the basis of the medical file, if not without any preparatory inquiries. by any other means, whether or not The oral observations of the parties were on 15 June 1970 Mrs Noé-Dann­

werth was sick, and if it is decision was conveyed to the party established that she was sick concerned by a simple letter, whether she could have interrupted unregistered and without acknowledg immediately the treatment she was ment of receipt. undergoing at that time in Madrid.' The defendant on the other hand asserts the defendant asks the Court: that the decision adversely affecting the applicant, being precisely the one '— to declare the action inadmissible contained in the letter dated 18 June under its different headings; 1970, the action is inadmissible, as it was — as a subsidiary plea, to declare it commenced outside any relevant time

communication. Article 60 of the Regulations on which such 'letter-deci III — Pleas and arguments sion' is based, does not require a of the parties decision by the appointing authority, but a simple finding of the existence of The pleas and arguments of the parties unauthorized absences. In the case in may be summarized as follows: issue, such finding was made and conveyed to the knowledge of the party Admissibility concerned by the letter dated 18 June 1970.

Secondly, the decision medical expenses the adverse decision is emanates from an authority, the contained in the letter dated 7 January Director-General of the administration, 1972, the action is no less inadmissible in whose favour the internal regulations on that account, the letter of 23 March of the Parliament dated 12 December 1972 from the applicant's lawyer being only provide for a delegation of an incapable of suspending the time limit administrative nature of powers for bringing the action. exercised by the appointing authority, Lastly as for the submissions relating to whereas the suspension of salary is a Article 76, the action is admissible also measure which because of its scope and on this point, by reason of the very its seriousness goes beyond a simple nature of this provision which does not

JUDGMENT OF 5. 4. 1973 — CASE 51/72

administrative authority and does not in official's unauthorized absence, and the any respect restrict its powers as to the application of the sanction provided grant of extraordinary aid provided by arises solely from the Regulations this provision. themselves.

The paid 'ex post facto' the salary accruing medical certificate issued in Madrid on from 12 December 1970. Supposing on the other hand that Article 60 of the 15 June 1970 proves that the absence of Mrs Noé-Dannwerth was due solely to Regulations is really, in the way the the precarious state of her health. defendant appears to assert, a 'self-executing' provision, so that the Besides, by suspending the payment of letter from the Director-General of the her salary, the letter dated 18 June 1970 administration amounts to a pure wrongly applied Article 60 of the 'finding' of fact, it cannot be maintained Regulations, for this provision, while at the same time that this letter providing that the absence of the official constituted a decision. must receive prior permission, makes, in sub-section 1, a precise and express Lastly, the fact that the Regulations do exception in the case 'of sickness or not prescribe any formalities for the accident' and does not envisage, in 'finding' envisaged by Article 60 of the sub-section 2, imposing on the sick Regulations can only show up the official the loss of his salary. dangerous and injurious nature, for officials, of this kind of finding which The defendant replies on the other hand should be regulated by the principle that the absences of Mrs Noé-Dann werth were unauthorized.

by producing a certificate issued by a doctor in the place where she was The defendant replies that supposing the staying. All the facts preceding the applicant's reasoning to be correct, one adoption of the decision dated 18 June can no longer see against what decision 1970, show that the administration has the action is directed. Moreover, the always scrupulously observed the defendant certainly did not intend to provisions of the Regulations which refer to Article 60 as a 'self-executing' assure the protection of the rights of

NOÉ-DANNWERTH v EUROPEAN PARLIAMENT

The applicant, after having completed how Parliament could have recognized the summary of the facts as contained in this invalidity in the absence of an the statement of defence, which in her appropriate opinion expressed by the opinion is incomplete and sometimes said Committee. Moreover, one must misleading, recalls that the Invalidity not confuse an acute and temporary Committee convened in 1971 gave its sickness, rendering the official tempor­ opinion not only 'following the clinical arily incapable of working, with a chronic examination', but also 'having regard to sickness, involving permanent incapacity. the documents collected in Mrs The latter state can only be admitted Noé-Dannwerth's file'. That is why the when the provisions of the Regulations, Committee should have been asked since especially those of Article 78, are when the invalidity they recognized had complied with. existed, for it is obvious that such Moreover, it must be emphasized that complete invalidity did not just come the alleged delay on the part of the about on 6 September 1971, the date Parliament in declaring the applicant's when the Committee gave its opinion. invalidity was financially advantageous On the contrary, the physical state of the to Mrs Noé-Dannwerth, so that one applicant must not have changed cannot understand at the present time considerably since June 1970, since her interest in raising this point. which date there have been no new developments. Moreover, the defendant (b) Reimbursement of all the medical is guilty of an obvious confusion expenses between two distinct concepts; that of 'invalidity' on the one hand and that of The applicant considers that the 'sickness' on the other. In its letter dated administration's refusal to reimburse all

JUDGMENT OF 5. 4. 1973 — CASE 51/72

contributions. Since, in a scheme which with another insurer, who would thus has a contributory nature, such as that have paid the necessary contributions on of sickness insurance, there cannot be her behalf. benefits without contributions, the loss The defendant maintains its position on of the right to salary necessarily entailed this point. the suspension of affiliation to this (c) The application of Article 76 of the scheme. Whilst the 'Regulations relating Regulations to insurance against sickness of officials of the European Communities' do not The applicant maintains that by not expressly provide for the case in which granting her the benefit of Article 76 of affiliation is suspended on grounds the Regulations the defendant has not arising from the application of Article 60 respected the limits attached to its of the Regulations, such a case is discretionary power and has failed in its analogous with that provided by Article duty of assistance towards its staff. 3 S 1 of these Regulations, according to The modern case-law no longer which the affiliation and insurance recognizes the principle that discretion against sickness are suspended for ary power is absolute and is dependant officials on leave on personal grounds. on the 'goodwill of the prince'.

The latter is The applicant considers that the moreover obliged to respect another suspension of salary is not sufficient to principle, that of the duty of assistance towards its servants. Whilst this justify the termination of the insurance against sickness. The Regulations principle does not appear expressly in prescribe that the 'official' is insured special provisions, it is nonetheless against such risks, without making the unquestionable. Moreover in Article 24 slightest limitation on this point. Nor is of the Regulations there is a definite it possible to justify the forfeiture of the example of the application of the right to such insurance, which is to be principle. interpreted strictly, on the basis of The defendant replies that, if the power provisions provided for the official on of the administration is limited, it is only

NOÉ-DANNWERTH v EUROPEAN PARLIAMENT

misuse of power which the administra­ assistance towards officials, for which tion has committed to her detriment. the Regulations provide a case of definite application in Article 24. The Lastly, one cannot connect the option two texts in view have nothing in open to the administration by Article 76 common and are not based on the same of the Regulations with the duty of principle.

Grounds of judgment

1 By an application received at the Court Registry on 17 July 1972, the applicant brought before the Court an action directed against the refusal of the European Parliament to pay her salary falling due between 15 June 1970 and 12 December 1970 and to reimburse the medical expenses incurred by her for the same period.

2 The action also submits that the applicant should be granted the benefit of Article 76 of the Staff Regulations.

The first head of the submissions

8 This latter decision, instead of confirming a preceding act, thus constituted a new act, implying the limited withdrawal of the decision dated 18 June 1970.

9 The applicant having claimed, by a letter dated 7 December 1971, the total withdrawal from 15 June 1970 of the said decision, the Director-General of the administration in his letter of 7 January maintained his position on the limited withdrawal.

10 He specified however in that communication that he did not consider the applicant's letter dated 7 December 1971 as a complaint instituted by virtue of Article 90 of the Regulations.

11 In these circumstances and taking account of the equivocal nature of the above-mentioned communication, the applicant was able to conclude from it that she was still in a position to lodge a complaint within the prescribed time limits.

12 By a letter dated 23 March 1972, the applicant presented the Director-General with a claim, seeking, inter alia, to obtain the reimbursement of salary falling due between 15 June 1970 and 12 December 1970.

13 By reason of the submissions which it contains, such letter must be considered as a complaint within the meaning of Article 90 of the Regulations.

19 With regard to this finding, the appointing authority considered that the absences of the applicant could no longer be regarded as unauthorized from the date of the certificate of 12 December 1970.

20 On the other hand the applicant contends that her absences must be considered as authorized from 15 June 1970.

21 For this purpose, she invokes especially a medical certificate, issued in Madrid in June 1970, which she conveyed to the Parliament by a letter dated 15 June 1970.

22 This certificate mentions a disease different from the one which led the appointing authority to recognize the applicant's total invalidity.

23 In these circumstances, the appointing authority was right to base itself, when it took its decision, on the date of Dr Renate Collier's certificate.

24 The action must, on this first head, be dismissed unfounded.

29 It follows from the preceding considerations that the action, in as far as it is directed against the refusal expressed in this letter has been instituted within the time limits and is thus admissible on this point.

30 The defendant maintains that since the scheme of sickness insurance established by the Communities is of a contributory nature, affiliation to this scheme terminates from the moment that the official loses the benefit of his salary and for this reason no longer pays the necessary contributions.

31 It appears from the express terms of Article 72 of the Regulations that affiliation to the said scheme of sickness insurance is based on the status of the official, within the meaning of the Regulations.

32 In default of provisions to the contrary in the Regulations, the affiliation of an official to the scheme of social insurance established by the Commission cannot be questioned, as long as he retains his status of official.

33 Whilst it is true that this scheme is of a contributory nature, the payment of contributions does not constitute an indispensable condition of affiliation, the administration being able, in the case where the official loses the benefit of his salary, either to put him in a position to continue his contributions or to pay directly the contributions which the administration will then be able to recover by recourse to legal measures.

34 Besides, the circumstance that the sickness which the official is suffering from does not justify his absences from duty, does not necessarily imply that all the expenses he has incurred by reason of this sickness are, themselves, unjustified and do not give rise to any right to benefits.

38 By Article 76 of the Regulations 'gifts, loans or advances may be made to officials, former officials or where an official has died, to those entitled under him who are in a particularly difficult position as a result inter alia of serious or protracted illness or by reason of family circumstances'.

39 By this provision, the Regulations impose no express obligation on the Community authorities, but aim to give them the option of helping officials or former officials who find themselves in difficulty.

40 Moreover, the exceptional aid provided by Article 76 can only be granted in appropriate cases where the party concerned is in a particularly difficult position.

41 If the circumstances in which the applicant found herself until the time when she was granted the benefit of the invalidity pension were, (had the occasion arisen) liable to create a particularly difficult position within the meaning of Article 76 of the Regulations, nevertheless the fact remains that the measures taken with regard to her following this grant had the effect of modifying these circumstances considerably.

42 Lastly, the argument that the applicant draws from the provisions of Article 24 of the Regulations is not relevant to the case in issue, these provisions applying to cases different from those falling under Article 76.

43 Under its third head, therefore, the action must be dismissed.

On those grounds

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the submissions of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of the European Communities and especially Articles 24, 60, 73, 74, 76, 90 and 91; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of the European Communities;

THE COURT (First Chamber)

hereby:

1. Annuls the decision of the European Parliament refusing to reimburse the medical expenses incurred by the applicant between 15 June 1970 and 12 December 1970.

2. Dismisses the other causes of action.