C-74/72

Officials — Personal file — Documents not previously communicated — Insertion —

Admissibility — Conditions

(Staff Regulation, Art. 26, second paragraph)

Documents may be placed in an official's cited against him, and it has not been personal file notwithstanding that they proved that the material contained in have not been previously communicated them is substantially erroneous, to him, so long as they are not used or

In Case 74/72

Anna Di Blasi , official of the EEC resident at 14 Via Antonio Mordini, Rome, her representative ad litem being Luciano Jaconis, Rome (Italy), 62 Via Lucrezio Caro, and having chosen her address for service in Luxembourg c/o Me Ernest Arendt, 34 rue Phillippe-II,

1. the decision notified by a letter dated 15 March 1972, by which the Commission of the European Communities recognized, under Article

1 — Language of the Case: Italian.

JUDGMENT OF 12. 7. 1973 — CASE 74/72

73 of the Staff Regulations, the partial permanent invalidity of the

interested party to an extent of 9 % as the result of an accident she

sustained on 3 January 1968;

Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure General of Regional Policy of the EEC. Before being established she was

The facts and procedure may be employed by the High Authority of the

had a 'serious triple malleolar fracture disturbance, locomotor dystonia, and with extensive bone fragmentation and a in general, insomnia, psycho-neurotic foot' dislocation of the right and she syndrome; also, the appearance of

underwent surgery in order to reduce the 'allux valgus'

on both feet and of

fracture. bursitis on the left foot.

It was apparent from the extent of Miss Di Blasi was examined several times traumatism and of the progress of the by the EEC medical service both during injuries that therapeutic treatment was the time she was in Burssels and, when

going to be long and complicated and requested to attend for this purpose, that the danger of an incomplete during her sick leave in Italy. It is recovery was beginning to emerge. apparant from the file that as from 3 The principal events which marked the January 1968, the applicant never

fibrositis, falling of the plantar arch, three years from the date of the accident, change in body weight distribution, in order that she should not be barred inflammation of the ligaments, by the three years time-limit laid down swelling, hypothrophy of the leg, in Article 10 (c) of the insurance policy. vasomotor distur­ neuro-dystrophy, Still following the same procedure the bance, sharp pains, locomotor applicant submitted, by registered letter dystonia, general dystonia, insomnia, dated 16 December 1970, the clinical and psycho-neurotic syndrome of the medico-legal statement prepared by Dr depressive-reactive type accompanied G. de Masi with regard to her state of by hypochondriac personality health, in which he had concluded there changes; was a 50 % permanent incapacity for — after March 1970, aggravation of the work attributable to physiological

patient's condition; pathological disorders and 20 % to psychological

manifestations in the other leg owing disorders, making a total of 70 %.

JUDGMENT OF 12. 7. 1973 — CASE 74/72

Furthermore, by a letter dated 22 General of Personnel and Administration December 1970, the applicant submitted a letter dated 23 June 1972, which

an additional medico-legal opinion from informed her that, to enable her to be Dr de Masi dated 21 December, which given 'the additional criteria for a proper

the to the to the Directorate-General and that trist, and medical adviser

Insurers. consequently, the Community service

was not faced with any problem of On 20 March 1972, the applicant secrecy. received a letter, signed by the

Director-General of Personnel and Following an exchange ot correspond­ Administration and dated 15 March ence between the applicant and the

1972, which informed her that 'as a Commission, the applicant's legal result of the various medical adviser, and Blasi, her Dr Giovanni Di

examinations which you have undergone brother, were granted permission by Dr for the purposes of the provisions of the de Angelis on 5 September 1972, at the regulations relating to accident insurance seat of the Community at Brussels, to you have been recognized as inspect the personal file of the applicant cover, from a partial permanent but no document of a medical nature suffering was to be found in it. invalidity of 9 %'. By registered letter dated 27 March The two parties concerned were later

official channels with the Commission accident on 3 January 1968 was

by a letter dated 23 June 1972. excellent.

After she had lodged her appeal the The appeal was entered in the Court applicant received from the Directorate­ Register on 11 October 1972.

DI BLASI v COMMISSION

Subsequently, by a letter dated 17 In another letter, also dated 23 October 1972, which the applicant November, 1972, the applicant's adviser received on 20 October, the Commission sent to the Commission's agent informed her that, following her appeal June (a) a copy of his letter of 23 November through official channels of 12 1972, 'it had been decided to have the 1972, addressed to the President of the Court, degree of partial permanent invalidity established by a doctor, not belonging to (b) a declaration by the applicant dated the institution, to be appointed by 22 November 1970, the confirming mutual agreement between the medical above mentioned conditions and adviser of the said institution and..., entrusting Professor D. Tognazzi, 'doctor By treating'

the the applicant. the doctor treating her, with the her letter in reply dated 24 October election of an arbitrator and

adviser should not oppose the request Between 10 and 20 December, 1972, the for an extension of time for lodging the head of the medical service of the statement of defence which the agent Commission, Dr Semiller, unknown to proposed to make to the President of the the applicant, personally contacted Court, and that in order to expedite an Professor Tognazzi in Rome in order to amicable settlement of the dispute, ask him to alter the list of candidates for preliminary proceedings should be the arbitration panel which he had commenced for the appointment of an already proposed. arbitrator. By a letter dated 23 By a telegram dated 21 December 1972, November 1972, the applicant's adviser, Professor Tognazzi cancelled the refering to the suggestions made by the nominations he had submitted which Commission's agent, informed the directly to Dr Semiller and confirmed President of the Court that he consented the cancellation by a letter dated 22 to the extension of the time limit which December 1972, in which he stated: 'that had been sought in the interests of the he been led had to reconsider the other party, but that he did not consider Professors Muller of and nomination

that at the time the conditions for Boeler which he had made following Dr discontinuance of the proceedings were Semiller's recent visit to him in Rome,

fulfilled, eventhough he naturally hoped since he had put forward these names for an amicable settlement of the for the purposes of an opinion of a

dispute, he therefore sought, in turn, an medical specialist and not of a

appropriate period of time within which medico-legal judgment, as had been to lodge a further pleading. expressly laid down in a note dated 17

October 1972, from the Vice-President The written procedure was carried out of the Commission of the European in due form. The Court (First Chamber) Communities. decided, on the basis of the report of the By a letter dated 21 December 1972, Judge-Rapporteur, and having heard the addressed to the Commission's agent, Advocate-General, to open the oral the applicant's adviser again insisted that procedure without any preparatory only the nominations originally inquiry. proposed by Professor Tognazzi were to be considered valid, and he added: 'Apart from this choice of names, it is clear that it will always be possible to II — Submissions of the consider any alternative suggestions with parties an open mind and in a spirit of willingness to cooperate, provided that The applicant asks the Court: they are made through the respective advisers of the two parties for the. (a) to declare the application admissible; reasons stated above, which are fully (b) to accept it on the merits; and conclusively born out by the and therefore difficulties pointed out in this letter. Failing this, there will be no alternative (c) to annul the decision of the but to refer the entire matter to the Administration notified by the letter Court of Justice of the European of 15 March 1972, for infringement Communities.' of the rules of procedure, that is to The President or the First Chamber of say, inaudita altera parte, and for the Court extended the time limit for failure to provide grounds of lodging the statement of defence until 1 decision, December 1972; the Commission's agent (d) to annul the implied decision of lodged the statement of defence on 23 rejection of the appeal through November 1972, i.e. within the official channels dated 12 June 1972, abovementioned time limit and, the President having given the applicant (e) to declare that the degree of partial until 15 January 1973, to lodge her permanent invalidity is 70 % and reply, her reply was entered in the Court not, in any event, less than 45 %, or Registry on that date. is between one third and one half of With regard to Dr Semiller's visit to the total physical capacity of the Rome to see Dr Tognazzi, the defendant applicant, states that on 15 December 1972, Dr Semiller, the Commission's doctor, went (f) to order the defendant to produce to Rome in order to come to an the personal file of the applicant, agreement with Dr Tognazzi, the doctor including all medical documents treating the applicant, on the relating to her connected with the appointment of an arbitrator; that the accident, list of three names previously supplied (g) to order the removal from the by Dr Tognazzi was declared to be applicant's personal file of the unacceptable by Dr Semiller, after Dr confidential report prepared by Dr Tognazzi had told him that in fact it had J. F. Elens for failure to been dictated to him by the applicant's communicate it to her contrary to brother and that the two doctors then Article 26 of the Staff Regulations, decided to propose that the task of arbitrator be entrusted to an Austrian or (h) to order the defendant to pay the a Swiss doctor who spoke Italian and costs and all interest by way of who would be chosen by Dr Tognazzi compensation accrued since the himself. accident.

implication any previous measure procedure; with regard to the degree of

invalidity and that the applicant's (b) for failure to supply any grounds of decision. conduct was indicative of her full compliance with that decision and Furthermore, the applicant maintains with the procedure for determining that the decision is unlawful on the the degree of invalidity; ground of mistake of fact and because

decision the medical service failed to take account (c) to rule that the implied of

of the psychological disorders due to the rejection was also annulled by the accident. reply to the applicant of 17 October 1972; She also claims that the confidential

report prepared by Dr J. F. Elens must (d) to rule that the request relating to be removed from her personal file for the determination of the degree of failure to communicate it to her contrary invalidity by the Court is no longer to Article 26 of the Staff Regulations. of any concern to the applicant and

lost foundation when the The defendant replies that the all

compliance with the decision conveyed

(g) the defendant leaves the question ot to her on 17 October 1972 was

costs to the discretion of the Court. conditional and that she had expressly refused to discontinue the proceedings.

In its rejoinder the defendant states that III — Pleas and arguments the applicant's argument in her reply 'bargaining'

of the parties constitutes an element of

and that the Commission had no area of

1 By an application filed on 11 October 1972, the applicant brought before the Court of Justice an action against the Commission's decision of 15 March

1972, recognizing her as having a permanent invalidity of 9 % partial

following an accident she sustained on 3 January 1968, and against the Commission's implied decision of rejection of her administrative appeal of 12 June 1972;

By this action the applicant further submits that she should be recognized as having a permanent partial invalidity of 70 % or alternatively of no less than 45 % and that the Commission should be ordered to pay her interest to which

she is entitled as from the date of her accident;

The request for annulment of the decision of 15 March 1972

by mutual agreement between the Commission's medical adviser and the

doctor treating the applicant;

Furthermore, the Director-General of Personnel and Administration expressly informed the applicant by letter dated 29 November 1972, that the decision of 15 March 1972 'was to be regarded as revoked';

DI BLASI v COMMISSION

In these circumstances it must be concluded that, since the decision of 15 March 1972 had been revoked by the Commission, the subject matter of the appeal on this issue ceased to exist.

4 For the same reasons the subject matter of the appeal against the implied refusal to withdraw the decision of 15 March 1972 also ceased to exist;

medical matters;

As stated previously, the Commission decided to have the degree of

permanent partial invalidity suffered by the party concerned fixed by a doctor not belonging to the institution, to be appointed by mutual agreement between the Commission's medical adviser and the doctor treating the party

concerned;

The Commission's said decision which established the new procedure

contains which would justify a restrictive interpretation of the nothing

JUDGMENT OF 12. 7. 1973 — CASE 74/72

The amount of interest cannot be determined unless the degree of permanent partial invalidity has first been established;

The establishment of the said degree of invalidity is now the subject of the

above-mentioned arbitration procedure;

9 The said request is therefore inadmissible;

Infringement of paragraph 2 of Article 26 of the

documents referred to in sub-paragraph (a) may not be used or cited by the institution against an official unless they were communicated to him before

they were filed'.

It does not follow from this prohibition that the personale file of an official

may only contain documents which were previously communicated to him;

As long as such documents are not used or cited against her, and provided that it has not been proved that the material contained in them is substantially

erroneous, there can be no objection to their being placed in the personal file of the party concerned;

Moreover, when the action was brought, no rules had been drawn up

governing the application of Article 73, whereby all the conditions concerning its application could be clarified;

In these circumstances and having regard to Article 70 of the Rules of

Procedure, it is appropriate that the costs incurred by the applicant in these

proceedings should be borne by the defendant;

On those grounds,

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs of the proceedings.

Monaco Donner Ó Dalaigh

Delivered in open court in Luxembourg on 12 July 1973.

A. Van Houtte R. Monaco