C-124/75

Incapacity for work — Disputes — Invalidity Committee — Reference for an opinion — Limited to cases of sick leave (Staff Regulations of Officials, Article 59)

2. Officials — Application to the Court — Administrative measure — Application for annulment — Advantage to the applicant — None — Submission —

Unreasonable nature — Inadmissibility (Staff Regulations of Officials, Article 91)

3. Officials —

Invalidity — Committee — Member — Disagreement — Majority decision

(Staff Regulations of Officials, Article 59)

circumstances, such a submission is of a hearing by the appointing auth­

inadmissible. ority.

In Case 124/75

L­ ETIZIA PERINCIOLO­ , a former official of the General Secretariat of the Council

of the EEC, residing at 11, Rue Major Petillon, Etterbeek-Brussels, represented

I — Language of the Case: French.

defendant,

Application primarily for the annulment of the decision of the defendant of

16 October 1972 whereby disciplinary proceedings were commenced against

the applicant, and of the decision of 24 February 1975 revoking it,

THE COURT (First Chamber)

composed of: A. M. Donner, President of Chamber, A. O'Keeffe and

conclusions and the submissions and

arguments of the parties may be The applicant, an Italian national, was

summarized as follows: appointed a probationer on 16 January

PERINCIOLO v COUNCIL

1964, and established in Grade C4 with Administration confirmed the substance

effect from the following 16 July. She of his decision. As the applicant did not

with the Court on 16 August and 20 Further to the after-effects of that October 1972, applying respectively for accident, several doctors allegedly the annulment of the decision ordered her off heavy work, and in appointing her to the post and for the

particular off typing. annulment of the measure applying Article 60 of the Staff Regulations. In its From 1 January 1966 to 12 July 1967, judgment of 17 May 1973, the Court the applicant worked in the typing pool (First Chamber) dismissed the first of the linguistic section. On 13 July application as unfounded and the second

1967, she was assigned as a typist and as inadmissible (Joined Cases 58 and

clerical officer to the records department 75/72, [1973] ECR 511). of DG V. On 16 October 1972 the appointing On 23 March 1969 she was promoted to authority commenced disciplinary Grade C 3 with effect from 1 October proceedings against the applicant for 1968 and assigned to a post as a infringement of the duty of obedience

shorthand-typist. On 29 August 1970,. (last sentence of the third paragraph of

she lodged a request to be transferred to Article 21 of the Staff Regulations) and of another department on the ground that the duty to be at all times at the diposal "records"

fit to carry out work as a typist. to a reprimand if the applicant signified

her intention to comply with her

By note of 24 May 1972, the Director of posting, or if she resigned; removal from Administration placed the applicant at post if the applicant persisted in her the disposition of the typing pool as a refusal). That examination took place on

shorthand-typist. By note of the same 25 July 1973 and the result was that she

date the applicant protested against that was declared fit. But since the applicant

decision. On 2 June 1972 the Director of had submitted an opinion of a specialist

appointed agreed upon the name of Dr on 29 January 1975 by the

Godenne as a third doctor. By letter of 2 Secretary-General to be of no effect

January 1975, Dr Castiaux produced the owing to a violation of the rights of

report on the examination to the the defence; institution, which concluded that the 5. As a result declare the decision of 24 applicant was fit, but which was only February 1975 (No 146/75) removing signed by Dr Godenne and himself, Dr the applicant from her post to be void DAvanzo having refused to sign. That and of no effect and rule that the

report was submitted to the applicant applicant shall be re-established as

who was heard by the Secretary General from 1 March 1975 with all her rights

decision of removal of 24 February The administration did not reply within 1975 (No 146/75) and that the Court a period of four months, and accordingly should 'rule that the applicant must

the applicant lodged the present be reinstated in all her rights as an

application pursuant to Article 91 of the official in Grade C 3 at the General Staff Regulations. It was entered in the Secretariat of the Council with effect

Court Registry on 17 December 1975. from 1 March 1975'; 2. Dismiss the applicant's other claims

Upon hearing the report of the as inadmissible, or alternatively, as

Judge-Rapporteur, and the views of the unfounded; Advocate-General, the Court decided to 3. Order the applicant to bear the costs

17 October 1972 by which the (a) On admissibility authority decided to initiate disciplinary proceedings against the The Council is of the opinion that it is

applicant; only the concerning the claim

2. Declare the whole of the disciplinary annulment of the decision to remove the

proceedings void for defects of form applicant from her post that is and declare the opinion of the admissible. The claim against the

PERINCIOLO v COUNCIL

decision of 16 October 1972 is out of — an official who, for reasons of health, time. As for the other measures does not consider it possible to carry

Regulations. The applicant replies that the Council ought not to have taken the view that the (b) On the first submission as to third paragraph of Article 21 and the first substance paragraph of Article 55 of the Staff Regulations had been infringed. In fact: The applicant claims that the — the report of the medical expert administration should have made a outside the institution was not reference to the Invalidity Committee forwarded to Dr D'Avanzo, the (first paragraph of Article 59 of the Staff applicant's own doctor, and this was Regulations) before concluding that there an infringement of the rights of the was an 'unauthorized absence'. In defence and of the general principles establishing that Committee the authors of the Regulations provided a procedure of law; — the Staff Regulations do not permit whereby all disputes concerning the right to sick leave may be resolved upon recourse to an outside doctor; according to the judgment of the —

hearing both parties. So the case wrongly Court (Second Chamber) in Joined went to the Disciplinary Board before Cases 42 and 62/74 [1975] ECR 871), goint to the Invalidity Committee, and the application of the third paragraph the Board's opinion is null an void. of Article 59 of the Staff Regulations The defendant replies that the failings 'necessarily presupposes the existence noted by the Disciplinary Board, namely of a dispute which has not been the failure in the duty of obedience and finally resolved'. However, in the

the failure to be at all times at the present case the existence of the

a refusal, based on reasons of health, Court in Joined Cases 58 and 75/72 to obey an order of a hierarchical the defendant has itself adopted the

superior; proposition that an established

JUDGMENT OF 16. 12. 1976 — CASE 124/75

official of the Communities has an of a right for the applicant to have an

inherent right posting to 'a Invalidity Committee constituted. Thus compatible with his state of health'. the authority has not failed to conform

with the ruling of the Court in Joined The powers conferred on the Invalidity Cases 58 and 75/72. Committee make it clear beyond doubt that the applicant has the right to have (c) On the second submission as to her case referred to it in order that it may substance

this as a matter of necessity; The abovementioned judgment in Joined — the way in which a member is Cases 58 and 75/75 says that the appointed does not mean that the constitution of an Invalidity Committee Disciplinary Board is a body in cannot be invoked in the presence of a which different interests are situation characterized by the objections represented with a certain balance raised by the applicant on grounds of between them; health concerning her assignment to the — to have replaced the member unable typing pool. The Order in Case 75/72 R to attend would have been ([1972] ECR 1203) says that in such unfortunate from the point of view of circumstances the alleged invalidity of an the efficient conduct of the official 'does not constitute sufficient proceedings, because it would have grounds for absence from work, except in been necessary to have started it all cases where it is actually impossible to over again. attend, without the agreement of the

appointing authority'. The applicant replies with numerous

The decision to proceed to an additional observations on the two following medical investigation going beyond the questions:

suggestion of the Disciplinary Board was — Did the Disciplinary Board have the taken as a precautionary measure. Since right to decide, in the absence of any it did not arise under any obligation specific provision, whether it was or

under the Staff Regulations, it did not in was not desirable to replace the

any way constitute an acknowledgement member unable to attend?

an essential procedural requirement far as the doctor in question was

by reason of the absence, as from a appointed by agreement between the certain date, of one of the members two other doctors. of the Disciplinary Board from the — The reports mentioned by the

deliberations thereof; according to applicant were transmitted to Dr the legal doctrine and to the case-law Godenne and to Dr Castiaux. of the Member States having a — In its before-mentioned judgment in

disciplinary procedure system similar Joined Cases 42 and 62/74, the Court to the procedure in the Communities, rejected the proposition that a

it is only in cases where the rules as member of an Invalidity Committee, to a quorum are not observed that the appointed by one of the interested composition of the Disciplinary parties, may render the application of

Board is considered irregular. the provisions of the Staff — In any event the applicant cannot be Regulations impossible, and

report drawn up upon examination of the the applicant. It ought either to have applicant by doctors acting for both concluded that the medical report was

parties is of no scientific value: void and to have taken no account of it — Dr Godenne is usually appointed by in respect of the dispute, or to have the insurance company with which decided to call for a further report. The the insurance policy of the refusal of Dr D'Avanzo to sign the report

Communities has been taken out. was based on medical considerations. For There is thus a conflict of interests. he stated: 'My opinion on the Perinciolo — The report is incomplete: it does not case is as follows: According to the

mention an opinion of Dr Michez of opinion of Professor Michez, Dr 26 November 1973, communicated Tainmont and Dr Fosset, she suffers by Dr. D'Avanzo to the other two from a Barré-Liéou syndrome. This is doctors. Nor does the report note the also the opinion of certain specialists

opinions of two other doctors who whom she has consulted in Italy. I am in The opinion.'

treated the applicant. applicant's agreement with their

has not been described as being the [1975] ECR 344, ground 14). proceedings of an Invalidity Committee as such. When Dr D'Avanzo refused to (e) On the fourth submission as to sign the report, the importance of the substance legal consequences attaching to his refusal were not foreseeable because the The applicant stresses that when she was Court stated the rules of law to which heard on 29 January 1975, the General reference is made on 12 March and 9

July 1975. Secretary refused to allow her advocate to speak: there was an infringement of the

rights of the defence (cf. Annex IX on The Council answers that it can scarcely disciplinary proceedings). be argued that the report of a committee

of specialists called upon to reach a The Council replies that the provisions of finding as to whether the applicant 'is fit the Staff Regulations on disciplinary to perform the duties attaching to her post as a shorthand-typist assigned to the proceedings expressly say that the official

shall have the right to be assisted in his may be 'of pool'

typing considered as no defence, and that this assistance shall be scientific value'

one time but not at another.

The parties presented oral argument at

It was upon the setting up of such a the hearing on 27 October 1976. committee that the applicant had the

right to arm herself with all the necessary The Advocate-General delivered his guarantees. Since she did not challenge opinion at the hearing on 25 November the composition of the committee, a 1976.

PERINCIOLO v COUNCIL

Law

applicant was granted an invalidity benefit of 15 % under the insurance

scheme established pursuant to the Staff Regulations against accidents arising in private life.

3 She requested that she be no longer required to do typing 'incompatible with her state of health', and was assigned to the accounts branch from January 1971 to January 1972.

4 A medical examination carried out by the institution's medical officer and by a specialist consulted by the institution found that the applicant was fit to

carry out work as a typist and she was placed at the disposal of the typing pool by note of 24 May 1972.

5 The applicant refused to appear at her post and the appointing authority commenced disciplinary proceedings against her on 16 October 1972 for

8 For that examination, the administration appointed Dr Castiaux, the applicant Dr d'Avanzo, and the two doctors so appointed agreed upon the name of Dr Godenne as a third doctor.

9 The report on the examination, which Dr d'Avanzo refused to sign,

concluded that the applicant was fit for work as a typist.

Admissibility

10 In her application, the applicant claims that the Court should:

'1. Declare null and void the decision of 16 October 1972 by which the

defence;

5. As a result declare the decision of 24 February 1975 (No 146/75) removing the applicant from her post to be void and of no effect and rule that the applicant shall be re-established as from 1 March 1975 with all

her rights as an official in Grade C 3 of the General Secretariat of the Council.'

11 The Council objects that the claims other than the claim for the annulment

of the decision removing her from her post are inadmissible.

12 However, in her reply, the applicant limits her claims to this one only, stating that the others should be considered as mere grounds.

16 On the other hand, the difference between the opinions of the adminis­

tration's medical adviser and of the specialist whom it consulted and those

delivered in the certificates produced by the applicant should have caused the administration to refer to the Invalidity Committee under Article 59 (3) of the Staff Regulations.

17 Article 59 of the Staff Regulations deals, on the one hand, with sick leave for an official prevented from performing his duties because of sickness or

accident and, on the other hand, with automatic leave on the decision of the institution.

18 Therefore, as the third paragraph of that article provides that cases of dispute shall be referred to the Invalidity Committee, it can only refer to cases of sick leave, without prejudice to the question of whether it refers only to the case laid down in paragraph (2) of the article or also to that referred to in

because one of the members thereof was absent as from 5 December 1972,

and his signature did not appear at the foot of the opinion of the said board.

22 In so far as the facts stated by the applicant suggest that the opinion of the Disciplinary prepared and delivered in irregular circumstances, that Board was

irregularity cannot, nevertheless, have adversely affected her.

23 In fact the opinion substantially accepts her complaints, and after proposing two alternative solutions, the Board recommends 'that a medical examination

of the applicant be carried out in order to determine her present state of

repeat it is unreasonable because it is clear that such a measure could be of no advantage to the applicant.

27 Therefore the submission cannot be upheld.

28 The applicant also argues that the report of the medical committee, set up at the request of the Secretary-General to judge the applicant's fitness for work as a typist, should be considered as void for the following reasons:

(1) one of the members of that committee is usually appointed by the

insurance company with which the insurance policy in favour of officials

of the Communities against accidents in private life has been taken out, and therefore there is a conflict of interests as regards that person;

which does not affect the liability of an insurance company.

30 Moreover, the doctor in question was chosen by common consent between

the doctors appointed by the Council and by the applicant.

31 As regards the second complaint, it was not essential for the report of the

medical committee to refer to a document submitted to it, the purpose of

such a report being to furnish the appointing authority with an opinion on

34 For these reasons, the submission relating to the validity of the report of the

medical committee cannot be upheld.

35 Finally the applicant states that when she was heard on 29 January 1975, the Secretary-General refused to hear her application in infringement of the

rights of the defence and of Annex IX to the Staff Regulations on disciplinary proceedings.

JUDGMENT OF 16. 12. 1976 — CASE 124/75

36 Article 4 of Annex IX entitles the official charged to be assisted in his defence by a person of his own choice before the Disciplinary Board, but no similar right is given to him in respect of a hearing by the appointing authority.

THE COURT (First Chamber)

hereby:

1. Dismisses the application;

2. Orders each party to bear its own costs.

Donner O'Keeffe Bosco

Delivered in open court in Luxembourg on 16 December 1976.