C-152/77

pension provided for in Article 78, the degree of invalidity. In these which is only awarded in the case of circumstances Article 73 cannot be incapacity for work. The benefit interpreted by reference to com­ provided for in Article 73, on the parable provisions in the laws of the other hand, is paid whatever the Member States, special features and capacity of the person concerned to conditions of application whereof are, continue to perform his duties. Partial moreover, different from those of the permanent invalidity gives rise to a provision in dispute. The result is that right to the benefit even if it does not invalidity within the meaning of in any way affect the ability of the Article 73 must be interpreted as person concerned to perform his referring to the impairment of the duties. Moreover, the degree of bodily or mental health of the official invalidity, which is one of the factors irrespective of any degree of which determine the amount of the incapacity for work which may result benefit, is fixed at flat rates in from the accident. accordance with a general scale which does not take account of the nature of 3. Since there is no provision in the Staff Regulations of Officials or in the the official's employment. A given insurance policy which expressly category of injuries, which in one provides for the payment of interest, official amounts to total incapacity for delay in payment of the invalidity work but does not affect the capacity benefit only imposes an obligation on for work of another official, gives a the institution to pay interest if the right to the same benefit in each case. official establishes that such delay Although it is true that in a general constitutes on the part of the way the degree of incapacity for work institution a wrongful act or omission forms the basis for the degrees of which has in fact caused him damage. invalidity fixed by the scale it cannot be said that that has been the only 4. The benefit provided for in Article 73 decisive criterion and it is in any event of the Staff Regulations of Officials is established that the degree of only payable as from the date on incapacity is of no importance in which the degree of permanent determining, in each particular case, invalidity has been finally fixed.

APPLICATION, principally for an order for the Commission to pay to the applicant under Article 73 of the Staff Regulations of Officials an invalidity benefit corresponding to 100% invalidity,

THE COURT (Second Chamber)

composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges,

Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

give the following

JUDGMENT

2. On 3 January 1968 the applie fell necessary by the presence of cancer, in the offices of the Commission because with curettage of the armpit, as well too much wax polish had been applied to as from a slight reactionary syn­ the floor. She was admitted to hospital as drome of depression and anxiety. the result of a diagnosis which established that she had a "serious triple 2. The accident which occurred on 3 malleolar fracture with extensive bone fragmentation and a dislocation of the January 1968 caused a triple malleolar fracture with dislocation of right foot" and she underwent surgery in order to reduce the fracture. She has the right foot and a continuing anatomical and functional limitation never completely recovered. After the accident she was transferred to Brussels affecting in particular the tibio-tarsal but was unable to resume work, except region, with muscular hypotrophy of for short periods. She is at present on the corresponding limb and radio­ sick leave. logical evidence of incipient arthritis, the cause of which must be attributed to the afore-mention letter of 15 March 1972 the accident sustained by Miss B. on Commission informed the applicant that January 1968. in accordance with the terms of Article 73 of the Staff Regulations of Officials Accordingly, she had been recognized as suffering from partial permanent invalidity of 9%. The applicant contested that decision by 3. The undersigned assesses the injury an application to the Court in which she giving rise to compensation at 15% asked, principally, that she be recognized of the maximum sum assured." as suffering from a higher degree of invalidity. By a letter of 17 October 1972 the Commission informed the applicant By letter of 25 February 1975 the that it had been "decided to have the applicant informed the Commission that degree of partial permanent invalidity Dr Vita's report "is not impartial, since it established by a doctor ... not belonging does not take account of all the to the institution, to be appointed by disabilities resulting from the accident, mutual agreement between the medical and that it must therefore be adviser to the said institution and . .. the supplemented and a further degree of doctor attending" the applicant. The permanent invalidity added to the 15% Court accordingly declared in its already awarded in respect of only some judgment in that case that it "cannot of the consequences of the accident". intervene before the arbitration procedure ... has been exhausted". In a report dated 21 February 1975 Dr After much correspondence the parties Nicola Vita, appointed as arbitrator, agreed on the appointment of a new expressed the following opinion: arbitrator, Dr Angelo Bellini. By letter of 19 December 1975 the Commission asked Dr Bellini the following question, "1. Miss B. is suffering from the effects which had also been drawn up by and consequences of, first, a triple agreement between the parties: "Is it malleolar fracture with subsequent necessary to fix a degree of partial dislocation of the right foot permanent invalidity in addition to that accompanied by evidence of secon­ of 15% already determined, in respect of dary arthritis and, secondly, the possible injuries of a mental nature removal of the left breast made resulting directly and exclusively from

By letter of 3 February 1977 the In fact, on 7 December 1977 the Commission asked Dr Bellini: administrative authority sent Dr Bellini a letter in the following terms: "... Within the context of Article 73 ... and in the insurance policy taken out for the "Whether it is true that the gravity of purpose of the implementation of that Miss B.'s illness (tumour in the breast) provision it is understood that the risks affects or may affect directly or which are covered in the manner exclusively the injurious psychological provided for therein do not include consequences of the trauma connected invalidity in so far as it results in with the accident which she sustained on incapacity for work but cover solely the 3 January 1968". physical and/or mental injuries suffered. The question to be settled is therefore to what extent (expressed as a degree or By a letter of 26 March 1977 Dr Bellini percentage) the bodily and/or mental replied to that question in the following health of the victim has been impaired as a result of the accident. The insurance terms: policy contains a list of cases of im­ pairment of bodily and mental health, by analogy with which the percentage of "The injurious psychological effects to loss of health may be established in the which I referred in my opinion and cases not provided for, although it is true which have resulted in the total and that the task is not without difficulty. permanent incapacity of the patient That policy provides for a loss of mental appeared at an earlier date and are health of 100% in the case of 'incurable certainly not connected with Miss B.'s insanity'. Without wishing in any way to illness. The injurious psychological trespass on the domain of the psychiatrist effects in fact appeared during the years I consider that there may be other cases immediately following the trauma of 100% impairment of mental health. connected with the accident sustained on However, for the purposes of Article 73 3 January 1968, whereas the tumour in and of the insurance policy, that im-

By order of 22 February 1979 the Court 'I consider that it emerges clearly from also decided to ask Dr Bellini to give the explanations giver, in my report that evidence at the hearing on 14 June 1979 the mental injury suriered by Miss B. concerning the meaning and scope of his does not take the form of psychological arbitrator's opinion of 26 October 1976 disorder or disorder of consciousness but as regards the psychological disorders only affects her emotional faculties. suffered by Miss B., as well as on the relationships of cause and effect existing between the accident sustained on 3 The injury consists in a state of profound January 1968 and the psychological depression and, in particular, in an disorders recorded. incapacity for work which is emotional in origin and derives from the fact that any form of work arouses in the patient an unbearable feeling 'that her life has been a total failure'.

II — Conclusions of the parties However painful it may be, the 'illness' protects the patient against that feeling of failure. After amending her conclusions in her reply the applicant claims that the Court should: It is thus clear that although Miss B. is unfit for work, her mental health is not 100% impaired. 1. declare that the action is admissible;

MISS B. v COMMISSION

2. grant the application on the merits; 8. order the Commission to pay to the therefore: applicant the amount corresponding to a loss of health of 60% to be 3. annul the tacit refusal and the calculated in accordance with the

6. should the Court declare that in 11. subject to all reservations and subject implementation of Article 73 of the to the right to indicate subsequent Staff Regulations the monetary measures of inquiry and to the right, rights must be related to the loss of if necessary, to ask that the bodily and/or mental health rather proceedings be stayed for a separate than to the permanent invalidity, decision on matters relating to the declare that the applicant's right to subject-matter of the proceedings. obtain implementation of the arbi­ tration award referred to under 3. as supplemented by the opinions of Dr Bellini given on 26 March 1977 and After amending its conclusions in the 10 January 1978, which recognized rejoinder the Commission contends that the Court should: her as suffering from a loss of mental health of 60% in addition to the 15% permanent invalidity 1. dismiss the applicant's request for the recognized by Dr Vita in his opinion implementation of Dr Bellini's award of 22 February 1975 in respect of the of 26 October 1976 as inadmissible bodily injury, and consequently: and unfounded;

7. Order the Commission to implement the aforesaid arbitration award 2. dismiss the applicant's alternative supplemented as above, and conse­ request for the implementation of Dr quently; Bellini's award as modified by his

JUDGMENT OF 2. 10. 1979 — CASE 152/77

2. The applicant disputes that she 5. dismiss the claim for interest as accepted the reopening of the arbitration unfounded or, in the alternative, fix procedure. As evidence of that she refers the period for which interest is to be to the fact that the question put to Dr paid on the basis of the principles of Bellini was totally different from that to natural justice, taking into account which she had agreed.. She maintains, the amount corresponding to 9% furthermore, that the request for invalidity paid by the Commission in implementation of the arbitration award March 1972; cannot be regarded as devoid of purpose on the ground that she agreed to seek clarification of certain of the technical 6. order each party to bear its own costs. conclusions contained in the opinion.

B — Substance III — Submissions and argu­ ments of the parties 1. Observations of the applicant

A — Admissibility (a) In support of her request for the arbitration award of 26 October 1976 to 1. The Commission observes that by be implemented the applicant recalls that endorsing in her letter of 25 October the Commission put forward no

MISS B. v COMMISSION

In that connexion the applicant then emphasizes that as regards the (d) The applicant then maintains that preparation of the opinion she was not the factor to be taken into consideration given any opportunity of expressing a within the context of Article 73 of the preference as regards the choice of the Staff Regulations is that of permanent institution, the town or the person who invalidity. The aim of that article is in was to draw it up. fact protection against the loss of the specific capacity, that is to say, the She recalls that Dr Vita entrusted a capacity to be a Community official etc., neurologist with the task of examining rather than against the loss of general

JUDGMENT OF 2. 10. 1979 — CASE 152/77

capacity, that is, general fitness for the infirmity involved in the present case. everyday life. That explains the She regards it as incorrect to equate difference between the two factors fixed insanity with total invalidity, since the by Dr Bellini: that of 100%, which policy does not cover insanity as such relates to the total loss of the capacity but only to the extent to which it has for work, and that of 60%, which relates resulted in permanent invalidity. to the loss of general capacity.

■ The applicant considers that Article 73 of the Staff Regulations covers every (a) The Commission considers that in infirmity and that if the table annexed to the light of the revised opinion given by the insurance policy provides no precise Dr Bellini, which reduced to 60% the information in relation to certain specific degree of impairment of the applicant's infirmities resort must be had to the mental health, the applicant can no accepted rules of interpretation, in longer sustain her request for the particular, interpretation by analogy. She payment of a capital sum corresponding considers that any limitation which may to total invalidity. be contained in that table cannot modify or restrict the scope of Article 73 since that article remains the source of the rules carried into effect by the policy. Moreover, the Court has accepted that In the Commission's view the incorrect the body of rules formed by the nature of Dr Bellini's first opinion is insurance policy supplements the rules shown by the fact that Article 73 of the contained in Article 73. She adds that the Staff Regulations in conjunction with the policy contains no restrictions as regards insurance policy taken out by the

MISS B. v COMMISSION

Commission only covers risks of On that point the Commission refers accidents affecting bodily or mental finally to Article 2 of the rules which health of officials and therefore deals entered into force on 1 January 1977, with bodily or mental infirmities as such, the first paragraph of which is worded as irrespective of the effect which they may follows: "An accident means any have on the capacity for work of the occurrence or external factor of a officials concerned. sudden, violent or abnormal nature affecting an official's bodily or mental health".

Furthermore the fourth subparagraph of Article 9 (b) of the insurance policy states that as regards the cases of partial 2. Secondly, it emphasizes that Dr permanent invalidity not specifically Bellini also points out that the injury of a provided for in the table set out in the mental nature suffered by the applicant policy the degree of invalidity shall be affects the emotions rather than the determined by analogy with that table intellect. It doubts whether it is possible without regard to the duties performed for disorders of an emotional origin to by the insured person. fall within the terms of Article 73, first, because the table set out in the insurance policy only refers to one type of invalidity caused by injury of a mental In any event the Commission considers nature, namely "insanity", which is a that Article 25 of the rules which entered disorder affecting the intellect and not into force on 1 January 1977 eliminates the emotions, and, secondly, because the any possibility of doubt, since it expressly degree of invalidity may only be provides that "Recognition of total or determined either by reference to the partial permanent invalidity pursuant to maximum percentages fixed by that table Article 73 of the Staff Regulations and to (in the case of infirmities which are these rules shall in no way prejudice the expressly provided for) or by analogy application of Article 78 of the Staff with the information provided therein (in Regulations and vice versa". The latter the case of infirmities which are not article in fact provides for a pension to provided for). As the table makes no be paid to an official in the case of total express provision for mental disorders of permanent invalidity "preventing him an emotional origin the Commission is from performing the duties corres­ unable to fix any degree of invalidity, ponding to a post in his career bracket". even by analogy.

6. Furthermore the Commission points out that the accident occurred at a time 3. Even it if is accepted that disorders of an emotional origin fall within the when the applicant was to make a fresh start in her career. It believes that the scope of Article 73 the Commission doubts whether it is possible for that depression was probably already present, article to give rise to a right to possibly in a latent form, and that the compensation in respect of an incapacity accident only brought it to the surface. for work which is emotional in origin, since such a disorder only affects the capacity for work which as such has no On the basis of the foregoing con­ siderations the Commission therefore relevance for the application of the concludes that if Dr Vita ruled out the article in question. The Commission also observes that since the emotional state in existence of any relationship of cause question is reactive in nature it is an and effect between the "syndrome of indirect rather than a direct result of the depression and anxiety" affecting the accident. In the view of the Commission applicant and her accident that is because the emotional state in question is post­ he probably found that the origin of that traumatic in nature and does not result syndrome did not lie in the accident. from the accident as such but rather from the injuries caused by the accident The Commission concludes that since the and from the effects of those injuries on the working life of the person concerned. only injury connected with the accident is the physical injury which has resulted in 15% permanent invalidity, it alone gives rise to a right to compensation. 4. However that may be, the Commission doubts whether disorders of a reactive type are as such to be taken into consideration for the purposes of the application of Article 73, first, C — Interest because they are more a consequence of the injuries suffered than of the accident itself and, secondly, because the Community rules provide no yardstick 1. In this connexion the applicant by which an independent assessment may maintains that the delay in payment of be made of the degree of impairment of the capital sum must be attributed to the mental health caused by those disorders. administrative authority, which she regards as bound to pay compensation in full from the date of the accident since it is with effect from that date that the 5. The Commission therefore considers official in question is incapable of that the only valid yardstick by which to working.

The applicant recalls that by letter of the Staff Regulations relates to the 28 April 1975 the administrative auth­ deterioration which occurs in the bodily or mental health of an official and does ority informed her that with effect from 15 March 1972 it was prepared to pay not concern his capacity for work. interest on the capital sum corresponding to 9% invalidity at the current legal rate The Commission adds that even if it is in Belgium of 5%. assumed that the aim of the sum provided for in Article 73 of the Staff Regulations is to compensate for the 2. The Commission maintains that even losses caused by a reduction in the if it is accepted that the Court capacity for work the fact remains that acknowledged "in the abstract" a right the applicant has suffered no loss on that to the payment of interest it is impossible account: with the exception of one to find in the aforementioned judgment period of unpaid leave the applicant has any information as to the date from received her full salary from the date of which such interest began to run. It the accident up to the present time. considers that in normal circumstances interest is only payable on debts the The Commission refers, finally, to the amount whereof is ascertained and due, rules laid down by the Court in its that is to say, in the present case, only with effect from the date of the decision judgment of 16 March 1978 in Case 115/76 Leonardini v Commission [1978] of the Court fixing definitively the ECR 735), which state that the point of degree of invalidity and until final reference for the fixing of the period in settlement of the corresponding capital sum. respect of which interest is payable cannot be purely and simply the date of the accident and that the interest on. an

1 The application lodged on 16 December 1977 seeks to obtain payment to the applicant of an invalidity benefit under Article 73 of the Staff Regulations of Officials in respect of permanent invalidity resulting from the accident which she sustained on 3 January 1968 in the course of her employment with the Commission.

2 The question of the degree of invalidity resulting from that accident first formed the subject of arbitration proceedings. Dr Vita of Milan, who was appointed to act as arbitrator with the agreement of both parties, found in an opinion given on 21 February 1975 that the injury giving rise to compensation was to be assessed at 15% of the maximum sum assured. The applicant claimed that that opinion was not appropriate on the ground that it only took account of the bodily injury suffered to the exclusion of the injury of a mental nature. The parties subsequently agreed to ask another doctor, Dr Bellini of Latina, to act as arbitrator and to give a medico-legal opinion on the question whether it was "necessary to fix a degree of partial permanent invalidity, in addition to that of 15% already determined, in respect of possible injuries of a mental nature resulting directly and exclusively from the accident". If so, Dr Bellini was to fix that degree of invalidity.

3 In his report of 26 October 1976 Dr Bellini concluded that Dr Vita's medical report had not taken account of the mental injuries which, as they derived

MISS B. v COMMISSION

directly and exclusively from the applicant's accident, had resulted in "total permanent invalidity".

6 The Court cannot accept that assessment of the applicant's conduct or the conclusions drawn by the defendant as regards her interest in bringing the action. Although it is true that the applicant agreed that an additional question be put to Dr Bellini she did not approve the terms of the question actually put by the Commission. In those circumstances it cannot be claimed that there was agreement between the parties to reopen the arbitration procedure. That procedure was terminated by the report of 26 October 1976, which is therefore the final basis for determining the reciprocal rights and obligations of the parties. The subsequent correspondance and negotiations which took place between them have not served to alter that situation. The applicant's complaint through official channels and her application in fact concern the subject-matter of the original request and the application, which was lodged within the prescribed time-limits, is admissible.

JUDGMENT OF 2. 10. 1979 — CASE 152/77

Substance

7 The applicant seeks, principally, the implementation of the arbitration award by Dr Bellini in the report of 26 October 1976 and, accordingly, the payment of an amount corresponding to 100% invalidity minus the amount already paid which corresponds to the 15% invalidity recognized by the first arbitration award. In the alternative the applicant seeks payment of an amount corresponding to 60% invalidity in addition to the 15% already recognized. The Commission contends that the Court should dismiss both the applicant's principal and alternative claims and, in the alternative, should fix a degree of invalidity which is higher than the 15% already recognized.

MISS B. v COMMISSION

injury which only affects the emotions satisfies that condition there is nothing to prevent its being considered as falling within the concept of invalidity within the meaning of Article 73 of the Staff Regulations. The fact that injuries of that nature do not appear in the table of degrees of partial permanent invalidity annexed to the insurance policy is of no relevance in this connexion. Like any other case for which no provision is made in the table the question of such an injury must be resolved by fixing the degree of invalidity by analogy with those cases for which express provision is made.

11 It must therefore be concluded in this instance that Dr Bellini's report, as supplemented by his evidence before the Court, did not exceed the limits of Article 73 of the Staff Regulations when if found that, in addition to the physical injury ascertained by the first doctor to act as arbitrator, the applicant was affected by permanent invalidity in the emotional sphere.

12 The Commission maintains, however, that in assessing that invalidity as total Dr Bellini applied a criterion which is foreign to Article 73, that is, the applicant's capacity for work. According to the Commission that article must be interpreted as relating to those risks of accident which affect the bodily or mental health of officials, irrespective of repercussions on their capacity for work. The applicant, on the other hand, maintains that Article 73 must be interpreted as relating to incapacity for work.

13 The choice between those two different interpretations of Article 73, neither of which is positively supported by the wording of that provision, must be determined by the position of that provision within the social security system of officials.

Moreover, the degree of invalidity, which is one of the factors which determines the amount of the benefit, is fixed at flat rates in accordance with a general scale which does not take account of the nature of the official's employment. A given category of injuries, which in one official amounts to total incapacity for work but does not affect the capacity for work of another official, gives a right to the same benefit in each case. Although it is true that in a general way the degree of incapacity for work forms the basis for" the degrees of invalidity fixed by the scale it cannot be said that that has been the only decisive criterion and it is in any event established that the degree of incapacity is of no importance in determining, in each particular case, the degree of invalidity. In these circumstances Article 73 cannot be interpreted by reference to comparable provisions in the laws of the Member States, special features and conditions of application whereof are, moreover, different from those of the provision in dispute. The result is that invalidity within the meaning of Article 73 must be interpreted as referring to the im­ pairment of the bodily or mental health of the official irrespective of any degree of incapacity for work which may result from the accident.

15 In the present case it follows from Dr Bellini's report of 26 October 1976 as supplemented by his evidence before the Court that the total permanent invalidity ascertained by him refers to the incapacity for work. Before the Court Dr Bellini has explained, as he had previously done in correspondence with the Commission, that the loss of mental health suffered by the applicant as a result of her accident may be evaluated at 60%.

20 The Court has already held in its judgment of 26 February 1976 in Case 101/74 Kurrer v Council [1976] ECR 259, at p. 269, that since there is no provision of the Staff Regulations or of the insurance policy which expressly provides for the payment of interest it is for the applicant to establish that the delay in payment of the allowance constitutes a wrongful act or omission on the pan of the defendant institution which has in fact caused him damage.

21 The benefit provided for in Article 73 is only payable as from the date on which the degree of permanent invalidity has been finally fixed. In this instance there was no delay on the part of the Commission in paying the benefit corresponding to the physical injury once the relevant degree of invalidity was fixed by Dr Vita in his arbitration award. As regards the injury of a mental nature, the delays which have occurred in the determination of the degree of invalidity are not solely due to negligence on the part of the Commission. In particular it must be remembered that Dr Bellini's report of 26 October 1976 fixing the degree of invalidity at 100% was based upon an interpretation of Article 73 of the Staff Regulations which the Court has not accepted.

22 It was not until 10 January 1978 that the degree of invalidity was fixed in such a way as to establish the liability of the Commission on which date Dr Bellini sent a letter to the Commission in which he assessed the applicant's loss of mental health at 60%. If it has not been possible to resolve the difference between the parties on the basis of that assessment that is primarily due to the applicant's refusal to accept the assessment. The Commission is therefore not obliged to pay interest on the amount due.

1. Orders the Commission of the European Communities to pay the applicant, Miss B., by way of invalidity benefit the amount corresponding to a degree of invalidity of 60%, to be calculated in accordance with the provisions of Article 73 of the Staff Regulations, in addition to the amount which has already been paid to her on the basis of a degree of invalidity of 15%.

2. Orders the Commission to bear the costs.

Mackenzie Stuart Sørensen Touffait

Delivered in open court in Luxembourg on 2 October 1979.

A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second C mber

OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 12 JULY 1979 1 Mr President, sustained in the course of employment, Members of the Court, which has already formed the subject of a judgment of this Court of 12 July 1973 The proceedings in which I am giving (Anna Di Blasi v Commission of the my opinion today concern settlement of European Communities Case 74/72 the consequences of an accident [1973] ECR 847). In giving an account