C-58/72

JUDGMENT OF THE COURT (FIRST CHAMBER) 17 MAY 1973 1

Letizia Perinciolo

v Council of the European Communities

Joined Cases 58 and 75/72

1. Proceedings — Admissibility — Objection of 'lis pendens' — Examination by the Court of its own motion (Rules of Procedure, Art. 92) 2. Officials — Incapacity for work — Dispute — Invalidity Committee — Reference for opinion — Restriction to cases of sick leave (Staff Regulations, Art. 59) 3. Officials — Employment — State of health — Incompatibility — Obligations (Staff Regulations, Art. 36)

1. The Court must raise the objection of employment to which he has been 'lis pendens' of its own motion. assigned is not suitable in view of his state of health, he may request 2. Only disputes relating to sick leave another assignment, but while may be referred to the Invalidity awaiting such a transfer he is obliged Committee. to present himself at his employment and carry out the duties pertaining 3. When an official considers that the thereto.

with an address for service in Luxembourg at the chambers of Maître Emile Reuter, Legal Adviser of the Commission of the European Communities, 4 boulevard Royal, defendant, Application

— for annulment of the decision of assignment of the applicant dated 24 May 1972, and

— for annulment of the decision of 20 June 1972 applying Article 60 of the Staff Regulations to the applicant and of the decision of 20 July 1972 confirming the application of the said Article, as well as of the letter of 28 August 1972 confirming the application of the aforementioned decisions,

THE COURT (First Chamber),

composed of: R. Monaco (President of Chamber), A. M. Donner (Rapporteur) and C. Ó Dálaigh, Judges,

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

to the reports of the doctors whom she decided to open the oral procedure had consulted, she was not allowed to without any preparatory inquiry. do any typing work. The Director of The oral observations of the parties were Administration informed her by letter of made at the hearing on 13 March 1973. 2 June 1972 that examination of the The Advocate-General presented his certificates produced by her confirmed opinion at the hearing on 5 April 1973. unreservedly her ability to do typing work. At an interview on 5 June 1972 with two officials of the Administration, it was pointed out to the applicant that II — Submissions of the the fact that she did not agree with the parties note of 2 June 1972 did not justify her absence from the post to which she had In Case 58/72 the applicant submitted been assigned and that her continued that the Court should absence from the typing pool would thenceforth be regarded as unauthorized 1. Declare null and void the decision absence. contained in the note from the The Director of Administration informed Director of Administration of the her by note dated 20 June 1972 that, by Secretariat General of the Council application of Article 60 of the Staff dated 24 May 1972 placing the Regulations, her unauthorized absence applicant at the disposal of the Italian as from 2 June 1972 would be deducted section of the typing pool, Directorate from her annual leave and that, in the General A, as a secretary/shorthand event of the applicant continuing to typist. absent herself, she would lose her right 2. Declare null and void the decision to remuneration as from 3 July 1972. contained in the note from the The Secretary-General of the Council Director of Administration dated 20 confirmed by letter of 20 July 1972 that June 1972 whereby Article 60 of the Article 60 of the Staff Regulations Staff Regulations was applied to the should apply in the case of the applicant. applicant. On 28 August 1972 the Principal 3. Declare null and void the decision Administrator informed the applicant contained in the letter from the that the suspension of payment of her salary would continue to have effect in Secretary-General of the Council accordance with the letter of 20 July dated 20 July 1972 confirming the 1972. application of Article 60 of the Staff Regulations to the applicant. On 9 October 1972 Signorina Perinciolo submitted to the appointing authority a 4. Order the opposing party to pay the complaint against the application of costs of the action. Article 60 of the Staff Regulations. In Case 75/72, the applicant in essence The present applications were lodged at reiterated her last three submissions in the Registry on 16 August 1972 (Case Case 58/72 and in addition submitted 58/72) and 20 October 1972 (Case that the Court should. 75/72) respectively. — Declare null and void the notification On 12 December 1972 the First of 28 August 1972 by the Principal Chamber of the Court ordered that the Administrator confirming that the two cases be joined for the purposes of suspension of the payment of the procedure and judgment. applicant's remuneration would After hearing the report of the Judge continue to have effect in accordance Rapporteur and the opinion of the with the letter of 20 July 1972 from Advocate-General, the First Chamber the Secretary-General.

The pleas and arguments of the parties the applicant to the typing pool was taken, the defendant was able to base may be summarized as follows: that action on a detailed and objective In Case 58/72, the applicant contends examination by the medical adviser of that, by acting solely on the opinion of the Institution. doctors of its choice as to her state of In order to be as certain as possible of health, the Council acted unlawfully in the correctness of his diagnosis, the assigning her to the typing pool. medical adviser referred Signorina As there was a conflict of opinion Perinciolo's case to Dr Castiaux, the between the doctors consulted by the head of the Institut d'Orthopédie et de applicant and those consulted by the Traumatologie, who fully confirmed the Institution, it would have been in keeping opinion that the applicant was capable with the spirit of Article 59 of the Staff of doing typing work. Regulations to refer to the Invalidity In regard to the argument of the Committee for an Opinion. It was not applicant that the Invalidity Committee open to the defendant to make a should have been consulted, as provided unilateral decision when confronted with for in Article 59 of the Staff Regulations, conflicting medical opinions, as it did the defendant points out that that not have the necessary medical Committee is not competent to decide qualifications. whether an employee is ill or not but The applicant could not be blamed, merely whether or not any invalidity therefore, for not having presented exists. A careful interpretation of Article herself to carry out the duties of 59 (3) leads to the conclusion that that secretary/shorthand typist assigned to provision refers only to cases where the her 'while she was present at the office provisions relating to additional sick for other duties for which she was leave due to incapacity or automatic suited'. Consequently, it was wrong of leave in a situation analogous to invalidity the defendant to apply Article 60 of the apply. Staff Regulations, as that Article Further, the intervention of the presupposes an unauthorized absence. Invalidity Committee does not come The defendant states that the fact that within the framework of the sickness the applicant was transferred to the scheme of the Staff Regulations, as the typing pool did not necessarily imply procedure for appointing an Invalidity

Committee to decide in each case Court in Joined Cases 45 and 49/70 whether an official is ill or not would be Bode v Commission (Rec. 1971, p. 465) far too unwieldy and onerous a task. following which the objection of 'lis Finally the defendant maintains that the pendens' would apply Moreover the relevant provisions of the Staff Regula Court cannot give judgment at the same tions in this case are based on the as time in these two actions by virtue of the sumption that the employee is fit for principle 'non bis in idem' which the service in his employment and that such Court called to mind in its judgment of 5 employee must be assigned to a post May 1966 in Joined Cases 18 and 35/65 corresponding to his employment.

invalidity. comparison between the submissions of It follows that the objection that the the applicant in Cases 58/72 and 75/72 Council acted unlawfully by failing to and arrives at the conclusion that the consult the Invalidity Committee at the only fresh factor in Case 75/72 is the time the applicant was assigned to the application for annulment of the typing pool cannot be justified either in notification of 28 August which, fact or in law. however, cannot be considered as a fresh In regard to the application of Article 60 act itself capable of being the subject of of the Staff Regulations, the defendant an action as it is merely confirmatory of submits that, after a decision to assign an the letters of 20 June and 20 July 1972. official has been adopted, the person Finally the defendant points out that, by concerned has no choice other than to virtue of Article 91 (2) of the Staff comply with that decision or to dispute Regulations, any application to the Court its lawfulness by the legal methods of must be preceded by the submission to recourse open to officials.

58/72. It quotes the judgment of the be justified as that letter is purely

As to the admissibility of the actions

3 The defendant admits that the action in Case 58/72 is admissible but contests the admissibility of the action in Case 75/72 on several grounds.

4 In regard to the application for annulment of the notification of 28 August 1972, that act is merely a consequence and a confirmation of the decision of 20 June 1972 and the letter of 20 July 1972 from the Secretary General, which acts are already the subject of the action in Case 58/72.

5 Moreover, insofar as the action in Case 75/72 is directed against those latter acts by reiterating the submissions in the action in Case 58/72, its admissibility runs counter to the objection of 'lis pendens' which the Court must raise of its own motion.

PERINCIOLO v COUNCIL

6 It follows therefore that the action in Case 75/72 is inadmissible.

12 It is sufficient for the purposes of the present case to state that it does not concern sick leave of the applicant but the situation created by the objections she raised, because of her state of health, to her assignment to the typing pool.

13 In any case Article 59, and especially paragraph 3 thereof, does not refer to such a situation and cannot therefore be invoked in the present case.

JUDGMENT OF 17. 5. 1973 — JOINED CASES 58 AND 75/72

14 Subject to the application of Sections 2 to 5 of Chapter 2 of Title III of the Staff Regulations, the normal status of an official is active status, defined in Article 36 as the status of an official who is performing the duties pertaining to the post to which he has been appointed as provided in Title IV.

15 When an official considers that the post to which he has been appointed is not suitable for him due to his state of health, he is obviously entitled to request another assignment but while awaiting such a transfer he is still obliged to present himself at his post and perform the duties pertaining thereto.

16 In any event, it cannot be admitted that in such circumstances the official may take the law into his own hands by considering that the submission of medical certificates dispenses him from appearing at his employment and allows him to absent himself while awaiting the offer of a post which he considers suitable.

Upon reading the pleadings; Upon hearing the report of the Judge Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 36, 59, 60, 90 and 91; 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;

PERINCIOLO v COUNCIL

THE COURT (First Chamber)

hereby:

1. Dismisses the action in Case 75/72 as inadmissible;

2. Dismisses the action in Case 58/72 as unfounded;

DELIVERED ON 5 APRIL 1973

Mr President, accident following which she received extensive sick leave. Members of the Court, At her next annual medical check-up on Signorina Letizia Perinciolo, the 13 June 1966, she was found fit to applicant in both these actions, first perform her duties subject to these became an established official of the reservations: 'Fit for half-time work in

Communities on 16 July 1964, by a June 1966. Further, is to avoid lengthy decision of the Secretariat General of the periods of typing for three months.' (My then Councils dated 7 July 1964. She Lords, the originals of all the documents was appointed by that decision to Grade in these proceedings are either in French C 4 and was assigned, as a typist, to the or in Italian. For the sake of simplicity Italian section of the Secretariat my quotations from them will be General's typing pool, where she had throughout English translations). served her probationary period pursuant My Lords, at the applicant's annual to Article 34 of the Staff Regualtions. medical check-up on 11 July 1967 she was found fit subject to a reservation On 3 May 1965 she underwent a routine expressed as follows: 'Fit for full-time medical check-up, pursuant to Article 59 work but avoiding lengthy periods of (4) of the same Regulations, as a result typing and overtime for one month.' of which she was found fit to perform On 13 July 1967 she was tranferred to her duties, as she had been, needless to the records department, Directorate say, at the initial medical examination General A, as a typist, but with an oral required by Article 33. promise that in that department she On 6 November 1965, she had a riding would be given typing only occasionally.