C-42/74

1. A member of an Invalidity majority of the Invalidity Committee, Committee, appointed by one of the must therefore be considered valid. parties, cannot, by his refusal to sign, block the procedure provided for in 2. There is no longer any dispute which Article 59 and make the application can be referred to an Invalidity of the provisions of the Staff Committee for an opinion. When the Regulations impossible. point being contested has already The Staff Regulations, by providing been validly decided by the Invalidity for a Committee consisting of three .Committee and the medical members, imply that in the event of certificates produced by the applicant disagreement the Committee may reveal no new factor concerning the decide by a majority. The conclusions, nature of his illness or his fitness for representing the opinion of the work.

In Joined Cases 42 and 62/74

LUIGI VELLOZZI, an official of the Commission of the European Communities, represented by Emile Drappier, Advocate at the Court d'appel, Brussels, with an address for service in Luxembourg at the Chambers of E. Arendt, 34b, rue Philippe II, applicant,

1 — Language of the Case: French.

JUDGMENT OF 9. 7. 1975 - JOINED CASES 42 AND 62/74

v

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The facts and the arguments of the an operator at the offset shop until 1968. parties which were developed during the In July 1968 he was transferred to the written procedure may be summarized as Directorate-General for Competition follows: where he was entrusted with administrative duties.

I — Facts and procedure Following many periods of sick leave, the Commission had the applicant examined 1. The applicant is an official of the in 1968 by an Invalidity Committee in Commission in the basic post of Clerical accordance with the fourth paragraph of Officer, Grade C3. After taking up his Article 59(1) of the Staff Regulations of post in 1960 he performed the duties of Officials.

This Committee, in its report made on 5 mutual agreement between the other two December 1968 and 13 January 1969, doctors. He concluded that Mr Vellozzi found that the applicant was suffering was suffering from partial permanent from asthmatic or asthmatiform invalidity assessed at 10 % and that a bronchitis caused largely by the study of the symptoms did not prove that conditions under which' he had been this was caused by his occupation. The working in the offset shop of the report was approved by Dr Therasse by Publications Department. At the same his adding ‘Agreed’ at the foot of the time it found that the asthmatiform report. Dr d'Avanzo, the member of the condition, which previously had been Committee appointed by the applicant, noted by several doctors, had improved, refused to sign the conclusions of the in all probability because the applicant report. had been assigned to another department

By a memorandum dated 23 April 1974, Relying on this report, the applicant the competent authority of the sought the benefit of Article 73(2Xc) and Commission refused to comply with this (3) of the Staff Regulations of Officials request. (partial permanent invalidity). The application brought by the applicant in On 3 April 1974, the Head of the June 1971 for the annulment of the Individual Rights and Privileges Division Commission's refusal to grant this of the Commission sent the following request was dismissed as unfounded by letter to the applicant: the Court of Justice in its judgment of 13 July 1972 (Case 29/71, Rec. 1972, p. ‘You were examined by Dr Romain, the 513). medical officer of the Commission, on 15 March 1973.

If he March 1973. The report was drawn up by has used up his annual leave, he shall forfeit his Dr de Coster, a doctor appointed by remuneration for an equivalent period . . .’.

The application in Case 62/74 for the The Commission contends that the Court annulment of the decision to apply should: Article 60 of the Staff Regulations was — declare that the application is entered on the Court Register on 23 inadmissible; August 1974. — order the applicant to pay the costs.

By a separate document annexed to the In Case 62/74, the applicant claims that application in Case 62/74, the applicant the Court should: submitted an application for an interim — declare that the application of the measure ordering the suspension of the provisions of Article 60 of the Staff operation of the decision to withold Regulations of Officials to the payment of his remuneration. applicant is void; — annul the decision notified by letter By order of 17 September 1974, the of 3 April 1974 to apply Article 60 of President of the Second Chamber the Staff Regulations of Officials to dismissed this application. the applicant; — annul the decisions notified by letters By order of 21 November 1974 the Court of 10 and 14 May and 11 July (Second Chamber) joined the two confirming the application of Article

VELLOZZI ν COMMISSION

to a request submitted in accordance consequences which would follow a with Article 90(1) of the Staff refusal. Since then, the administration Regulations. Under the provisions of watched the applicant's absences Article 91 of the Staff Regulations, an especially carefully and asked the application is admissible only if the medical service of the Commission to applicant has previously submitted a carry out further examinations. In this complaint pursuant to Article 90 (2). As connexion, the Commission refers to the the applicant has not submitted such a findings of six further examinations complaint to the Commission, his carried out on 15 October and 23 application is inadmissible. November 1973 and on 29 January, 18 March, 30 April and 21 May 1974 by In Case 62/74, the applicant recalls that various doctors in the medical service. Article 59 of the Staff Regulations The findings from these examinations provides that an official who provides were that the applicant was fit to perform evidence of incapacity to perform his his duties. The Commission also refers to duties because of sickness shall the letters of 14 June and 16 July 1973

JUDGMENT OF 9. 7. 1975 — JOINED CASES 42 AND 62/74

applicant could return to work in those conditions, but that his work in the Finally, the Commission claims that even archives would have to be discontinued. if it accepted the applicant's argument, On 25 July 1974 the applicant was which it does not, it would not be informed of the duties to be performed, necessary to refer the case to the the work in the archives having to be Invalidity Committee anew because the discontinued, so leaving only the work of Committee had already come to a a messenger. decision on two occasions about the same illness which was the subject of all The Commission stresses the discretion the applicant's medical certificates. To and understanding it claims to have refer the matter to the Invalidity shown with regard to the applicant Committee once more in these before reaching the point of applying the circumstances would not only have been measures the annulment of which he futile but a repudiation of all the seeks. previous work of the Invalidity Committee, and it would also disregard It claims that owing to its composition the fact that this dispute has been going and nature, an Invalidity Committee can, on on the same basis since 1968. by a majority of its members, take decisions or reach conclusions and In his reply, the applicant recalls the approve its final report. The Staff findings of the Invalidity Committee of 5 Regulations do not provide that an December 1968 and considers that it was Invalidity Committee is under an illogical that Dr Therasse, a member of obligation to reach its conclusions that first Committee, could approve Dr unanimously; such a rule, because of its de Coster's report which found that the exceptional nature, would have had to be applicant's illness could not be proved to laid down expressly. Moreover, the have been caused by his occupation. This Commission relies on the findings in the contradiction on the part of Dr Therasse judgment of the Court of 14 December is sufficient to deprive the ostensible 1966 in Case 3/66 (Alfieri v European conclusions of the second Invalidity Parliament) in support of this argument. Committee of all conviction.

that it may reach its conclusions by a In its rejoinder, the Commission majority of its members, the rule of emphatically denies that a contradiction unanimity applies of necessity. exists between the reports of the two Invalidity Committees. It claims that the According to the applicant, it is obvious applicant is deliberately confusing on the that Article 59 (3) applies to the one hand bronchitis, one of the causes of situations laid down in paragraph (2) as which is working conditions but which well as to those laid down in paragraph does not prevent him from working, and (1); paragraph (3) contemplates cases of on the other invalidity which it must be dispute which cannot be ruled out in the proved is caused by his occupation (if context of paragraph (1). The positioning only because it is a necessary condition of paragraph (3) within Article 59 also to establish a causal connexion). argues in favour of this interpretation. As regards the correct application of Finally he maintains that the Article 60 the Commission considers Commission's arguments that Article 59 that it has adduced sufficient proof that (3) does not apply in view of the report of the administration has been sending the second Invalidity Committee cannot warning letters to the applicant since be accepted, first because the conclusions 1973, drawing his attention to the of that Invalidity Committee are not consequences arising from his absences. valid, and secondly because the report These letters are the result of findings submitted in 1973 cannot contain an made by both the Invalidity Committee opinion on a dispute which took place in and by the Commission's doctors, that

There are therefore no restriction on returning to work and the contradictions between the opinions of the Commission's doctors. Before the opinion of another Commission doctor, Dr Romain, who considered that the move, there was no problem. After this conclusions of the report of 5 December transfer, healthy premises and suitable 1968 were still applicable, prove that work were provided for him. there was disagreement even between the Commission's doctors since the other After the closure of the written doctors had found that the applicant was procedure, the Court asked the fit for work with no restriction or Commission to submit the report of the

JUDGMENT OF 9. 7. 1975 — JOINED CASES 42 AND 62/74

By letter of 13 February 1975 the During this hearing, the applicant in Commission replied to this question, but particular stressed that he has never although it had hoped to comply with claimed to be unfit to perform any the Court's request concerning the duties, but that he has always maintained submission of the report of the Invalidity that the work he had to do at the Committee it found it impossible to Commission was incompatible with his carry out the request because two state of health. members of the Invalidity Committee had refused to pass on the report. After this hearing, the Court gave the parties the opportunity of trying to reach a settlement out of court. The applicant, represented by E. Drappier and the Commission, This attempt was unsuccessful. represented by G. Pincherle, presented oral argument at the hearing on 20 The Advocate-General delivered his February 1975. opinion at the hearing on 26 June 1975.

Law

1 By an application brought on 15 June 1974 in Case 42/74, the applicant requested the Court to annul a decision of the Commission of 23 April 1974 whereby it rejected his request that it should appoint an Invalidity Committee with the duty of establishing causes of his illness and, if necessary, determining the degree of invalidity.

2 This request had been made after an Invalidity Committee set up by the Commission in 1971 to examine the applicant had submitted its conclusions, the validity of which the applicant, however, contests.

3 By application brought on 23 August 1974 in Case 62/74, the applicant requested the Court to annul the decision of the Commission of 3 April 1974 whereby, in accordance with Article 60 of the Staff Regulations, any absence on his part was to be deducted from his annual leave and thereafter set against his salary.

8 A member of an Invalidity Committee, appointed by one of the parties, cannot, by his refusal to sign, block the procedure provided for in Article 59 and make the application of the provisions of the Staff Regulations impossible.

9 The Staff Regulations, by providing for a composition of three members, imply that in the event of disagreement the Invalidity Committee may decide by a majority.

10 The conclusions representing the opinion of the majority of the Invalidity Committee, must therefore be considered valid within the meaning of the Staff Regulations.

11 The applicant claims moreover in Case 62/74 that the conclusions reached in 1973 cannot contain an opinion on a dispute which arose in 1974.

12 In this connexion, the terms of the duties with which the Invalidity Committee was entrusted and the implication of its findings, together with the subject-matter of the dispute must be kept in view.

13 The Invalidity Committee's terms of reference were inter alia to decide 'whether the person concerned is suffering from partial permanent invalidity

18 On the other hand, none of the medical certificates produced by the applicant to justify his absence for long periods showed a diagnosis other than that which led to his case being referred to the Invalidity Committee and which, in the opinion of two members of the Committee, was not such as to prevent him from performing the duties assigned to him.

19 Moreover, the members of the medical service of the Commission, after examining the applicant, reached the very same conclusions as the Invalidity Committee.

20 It follows from this that the applicant's absences cannot be considered justified by sickness, so that the Commission was right to consider them unauthorized for the purpose of Article 60 of the Staff Regulations.

21 However, the applicant claims in addition that in any case the decision of the Commission to act in accordance with Article 60 is invalid because the matter was not referred to the Invalidity Committee for its opinion as provided by Article 59 (3) of the Staff Regulations for cases 'in dispute'.

VELLOZZI ν COMMISSION

22 He says that there is a dispute within the meaning of this provision whenever the Commission does not accept a medical certificate certifying the official's illness which has been produced in accordance with the second subparagraph of Article 59 (1).

28 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

29 The applicant has failed in his applications.

30 However, under Article 70 of the Rules of Procedure, costs incurred by institutions in proceedings by servants of the European Communities shall be borne by the former.

OPINION OF MR MAYRAS — JOINED CASES 42 AND 62/74

On those grounds,

THE COURT (Second Chamber)

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 26 JUNE 1975 <apnote>1</apnote>

Mr President, basement and was exposed to the effects Members of the Court, of irritants.

I — Facts He repeatedly applied for and obtained periods of sick leave from that time The applicant entered the service of the onwards. Commission in 1960 and is an official in Grade C 3 (Clerical Officer). Until 1968, In particular, from September 1965 to he worked in the printing works of that September 1968, that is in three years, institution in the offset shop. the total length of these periods of sick leave was more than twelve months. Since 1964, he has been suffering from a complaint of the respiratory system, the The last subparagraph of Article 59 (1) of origin of which he ascribes to the the Staff Regulations enables the conditions under which he performed appointing authority to refer the matter his official duties. In fact he was to an Invalidity Committee in such a employed in unhealthy premises in a case.

1 — Translated from the French.