C-107/79

J U D G M E N T OF T H E C O U R T (FIRST CHAMBER) OF 12 JUNE 1980 1

Lily Schuerer ν Commission of the European Communities

"Invalidity pension"

Case 107/79

Officials — Invalidity — Determination — Criteria (Staff Regulations of Officials, Arts 73 and 78; Annex Villi, Article 13)

The existence of an occupational disease case may be must appear clearly and causing total or partial permanent precisely from the relevant conclusions invalidity of the official and giving him of the Invalidity Committee referred to the right to benefit under Article 73 or in Article 13 of Annex Villi to the Staff Article 78 of the Staff Regulations as the Regulations.

T H E COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koop- mans, Judges,

Advocate General : J.-P. Warner Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

the official would have been entitled at 1976 . . . The electrocardiogram (carried the age of 65 years if he had remained in out by the medical service of the the service until that age". Commission) showed arythmia, an auricular fibrillation with ventricular tachycardia . . . . As regards the causes of the illness it should be noted that, according to the patient, since October 2. The applicant entered the service of 1975 she has had continually to inhale the Commission on 7 July 1958. She had dust as a result of the faulty air a post in Grade Β 3 in Directorate conditioning in her office . . . . In my General XII when, on 1 September 1978, opinion there exists a relationship of she was retired prematurely on grounds cause and effect between the prolonged of total invalidity. inhalation of dust, the key factor in the unaccustomed physical effort exerted in order to ascend the stairway and in the stumble, and the patient's illness which On 26 October 1976 the applicant has led to her invalidity". sustained a fall on the stairway in the Commission building. The application states: ". . . that on the occasion of the fall she struck her chest on the edge of It appears from a study carried out on the top step; she immediately felt severe the applicant's behalf by the Association chest pains; she thereafter experienced des Ingénieurs Belges [Association of palpitations and suffered from a severe Belgian Engineers] on 22 August 1977 cardiac malaise, she immediately that a microscopic examination of a attended at the medical service of the sample of the dust in question revealed Commission . ..". The medical service "the absence of asbestos fibres and the detected an auricular fibrillation and presence of inert dust composed prin- ordered her to cease work. The applicant cipally of sodium salts and calcium . . . " . did not report this accident to the administration. In January 1978 the Commission, on its The applicant worked part-time from own initiative, commenced the invalidity 3 December 1976. On 30 December procedure. The Invalidity Committee, 1976 she was again ordered to cease which thereafter met and which was work and the order was renewed composed of Dr Callebaut, appointed by regularly for three-monthly periods the Commission, Professor S'Jongers, throughout 1977. appointed by the applicant and Professor Verniory, appointed by the agreement between the first two doctors, decided on 3 August 1978 that: On 25 November 1977 Dr Schußler, the applicant's general medical practitioner since 1959, submitted to the Commission a medical certificate which stated ¡uter "Mrs Schuerer's permanent invalidity, alia: which is regarded as total . . ., may arise from an accident in the course of the performance of her duties but does not arise from an occupational disease, from " . . . I never found any cardiac irregu- a public-spirited act or from having larity or other heart disease such as has risked her life to save another human existed since the accident on 26 October being".

By decision of 14 August 1978 the appointment of a board of "medical Commission officially declared the super-experts" whose task would be to applicant to be retired and awarded her a reach a decision on the problem of the pension on the basis of the third causal relationship between the paragraph of Article 89 of the Staff applicant's invalidity and the accident on Regulations. 26 October 1976 and the insanitary working conditions in which she had On 5 October 1978 the applicant worked for 14 months. submitted a complaint under Article 90 (2) of the Staff Regulations against the Commission's decision in which she On 3 April 1979 the Commission sought the annulment of the decision in adopted a decision rejecting the question and payment of her pension on applicant's complaint through official the basis of the second paragraph of channels, confirmed its previous decision Article 78 of the Staff Regulations. awarding the applicant entitlement to pension on the basis of the third On 8 January 1979 the Invalidity paragraph of Article 78 of the Staff Committee sent to the Commission a Regulations and rejected the proposal supplementary memorandum from which for the setting-up of a board of "medical it appears that: super-experts". "The principal feature of the patho- logical picture presented by Mrs The present action was brought on 2 Schuerer is an illness of long standing July 1979. and without any relationship of cause and effect to the patient's way of life and The written procedure followed a official duties. Against that background normal course. of chronic illness there occurred a paroxysmal attack on 26 October 1976. That paroxysmal attack, which has On 12 October 1979 Professor Lequime, contributed to the patient's present state a cardiologist at the Université Libre de of invalidity, occurred (according to the Bruxelles [Free University of Brussels] patient), following the ascent of a signed a medical report in which he stairway at her place of work and declared himself following a stumble on the top step. Although an uncertain hypothesis, both "surprised by the fact that a decision of those facts together could at best be could be taken on the basis of (the) regarded as the event possibly triggering reports (of the Invalidity Committee). In off the paroxysmal attack . . . which fact, they lack precision and themselves could have occurred fortuitously or express doubts . . . it would be appro- coincidentally at the time of ascending priate for the complete medical records the stairway . . . In medicine it is often of the patient and the patient herself to difficult to reject theoretically the be the subject of a medical award made hypothesis of some link between an by a board of professors of cardiology of accident claimed by the patient and the international and undisputed repute. I, pathology of which he complains. These personally, am prepared to be a member last-mentioned considerations were the of that board . . ." reason for the use of the word 'may' in the earlier report of the Invalidity Committee". On 17 October 1979 the applicant's general medical practitioner, Dr On 22 February 1979 the applicant's Schußler, signed a fresh medical certi- lawyer suggested to the Commission the ficate according to which there was

The applicant claims that the Court III — Submissions and argu­ should: m e n t s of t h e p a r t i e s — Declare this application admissible; 1. Submission based upon the absence of a — Declare it justified as to its substance; statement of reasons in the decisions in Consequently: question and wrong reasons for the decision rejecting the complaint Primarily: The applicant contends that the decision — Reverse the decisions in dispute, of 14 August 1978 gives no reasons for dated 14 August 1978 and 3 April applying the third paragraph of Article 1979; 78 or for refusing to apply the second —• Declare that the applicant's pension paragraph. The reference to that part of rights are to be awarded on the basis the opinion of the Invalidity Committee of the second paragraph of Article 78 in which the applicant is stated to be of the Staff Regulations; suffering from permanent invalidity which may be regarded as total cannot Alternatively: take the place of a statement of reasons. Indeed, that part of the opinion says — Appoint a board of medical experts, nothing as to the origin of the invalidity. entirely independent of the parties, As for that part of the opinion to which for the purpose of deciding whether no reference is made, it does not rule out there is a causal relationship between the invalidity's being the result of "an the applicant's present state of accident in the course of the perform­ invalidity and ance of her duties". (a) the accident at work on 26 October 1976; The applicant submits that the decision of 3 April 1979 is based on mistaken (b) inflammation of the bronchi reasons. The Commission's search for caused by the inhalation over a possible causes was neither methodical period of 14 months of dust nor in earnest, no reference having been injurious to the health in an made to the applicant's working insanitary office; conditions, for a period of 14 months, in

The Commission replies by citing the The Commission concedes that it was judgment in Case 61/76 Geist 1977 ECR mistaken in stating that, after the 1419 which states that "for the purpose accident, the applicant resumed work of deciding whether the requirements of from 16 November 1976 until March Article 25 have or have not been 1977. But the only matter which is fulfilled, it is necessary to consider not material is the opinion of the Invalidity only the . . . decision in itself but the staff Committee and there is nothing to memoranda on which it is based which suggest that the opinion was influenced were duly brought to the knowledge of by the applicant's assumed return to the applicant and which clearly informed work during the period in question. him of the reasons upon which that decision was based". In the present case the decision of 14 August 1978, being based upon the report of the Invalidity The Commission stresses, finally, that Committee, itself given greater the disputed decision, together with the specification by a supplementary report, reports upon which it is based, state both of which were communicated to the clearly that the invalidity does not result applicant, satisfies the requirement to from an accident in the course of the give a statement of reasons. performance of her duties, or from an occupational disease, or from a public- spirited act. The invalidity accordingly necessarily results from "another cause" The Commission considers that, in so far and therefore leads to an award of the as it is directed against the decision of invalidity pension provided for by the 3 April 1979, the application ought to be third paragraph of Article 78 of the Staff declared inadmissible. That decision Regulations. The disputed decision and simply confirms that of 14 August 1978, the above-mentioned reports thus give is not capable of directly affecting the sufficient reasons and there is no applicant's position and accordingly does requirement at all that they should not constitute an act adversely affecting indicate the origin of the invalidity. the applicant and capable of judicial review (cf. the judgment in Case 58/69 Elz [1970] ECR 507). The applicant replies that in the Geist case the staff memoranda in question had all been brought to the knowledge In regard to the fact that the reply to the of the person concerned before the complaint does not mention that the disputed decision to transfer him had

The question whether the original The decision of 3 April 1979, although it decision was the subject of a complaint confirms that of 14 August, was however and then an appeal within the time-limits taken after the file had been reopened laid down by the Staff Regulations and supplementary information obtained. concerns the admissibility of the It would be unfair to permit the application in so far as it is directed defendant to rely upon new facts without against that decision and not in so far as the applicant's being able to present a it is directed against the confirmatory act proper defence. of 3 April 1979. Likewise, the question whether that act was or was not preceded by the reopening of the file or The applicant recalls that in her letter of the obtaining of further information is of 22 February 1979, that is, six weeks no consequence as from the time when it before the decision in dispute, she confirmed the original decision. informed the Commission of the relationship of cause and effect between her insanitary working conditions and In giving a reply to a complaint the her invalidity. Commission is not bound to take into consideration facts other than the complaint itself and which were, in the The defendant's mistake as to the date main, communicated after the relevant on which the applicant resumed work periods had expired. did go to influence the tenor of the reply to the complaint, which is thus based on mistaken reasons. At all events, the fact that the Commission's reply does not mention In regard to the absence of a statement the issue of any possible insanitary of reasons for the decision in dispute the conditions in the office occupied by the applicant repeats what is said in the applicant does not mean that the matter application and adds that indicating the was not considered by the Invalidity cause of the invalidity does not Committee which had before it the constitute a breach of medical medical reports produced by the confidentiality which can be relied upon applicant and bearing on that question. as against the patient herself.

The applicant submits that the accident It appears from the reports of the on 26 October 1976 took place on the Invalidity Committee that the invalidity defendant's premises and therefore arose in no way results from an occupational "in the course of or in connexion with disease, which necessarily excludes any the performance of [her] duties" as effect deriving from the applicant's required by the second paragraph of working conditions. Article 78.

The applicant claims that the Vellozzi assumes that the preceding arguments case cited above is distinguishable from have been rejected. It follows however . the present case since the applicant there from that rejection that the disputed was asking the Court to declare that he decisions give an adequate statement of was suffering from invalidity, a reasons, are not based on mistaken conclusion to which the Invalidity reasons and have been taken in Committee had not come. accordance with what is prescribed by Article 78 of the Staff Regulations. On that assumption, the appointment of a new medical committee is inconceivable. The defendant replies that it appears clear Furthermore, no legal authority has been that there was no accident on 26 cited in support of an argument which in October 1976 but an indisposition and fact amounts to a request for a review that, a fortiori, the invalidity cannot have of the substance of the Invalidity its origin in the said "accident". The Committee's work. From the case-law of points made in the Vellozzi judgment are the Court it appears that, where there is clearly applicable to the present case no longer any dispute concerning an since it may be taken from that judgment official's state of health because that has that the existence of an occupational been settled by the Invalidity Committee, disease or an acccident at work and, a the official has no right to ask for fortiori, the link of cause and effect judicial review of the committee's between the disease or the accident and findings (cf. Joined Cases 42 and 62/74 the invalidity must be established in the Vellozzi [1975] ECR 871; a fortiori he opinion of the Invalidity Committee. may not ask the Court to appoint a board of medical practitioners.

medical documents. That committee's ambiguous, nothing prevents additional report was drawn up after the applicant's information being requested from it. medical records had been consulted and after she had been an in-patient for four At the sitting on 20 March 1980 the days in a teaching hospital. Professor applicant, represented by Ernest Arendt, Lequime's report is not persuasive in so of the Luxembourg Bar, and the far as he himself considered that he was Commission of the European Com­ unable to form an opinion on the case munities, represented by Daniel Jacob, of without making a thorough examination the Brussels Bar, presented oral of the patient and without having seen argument. the complete records. By way of an alter­ native submission, the defendant The Advocate General delivered his observes that, were the opinion of the opinion immediately after the oral Invalidity Committee to be considered argument.

Decision

ι This application, dated 2 July 1979, has been brought by a former official of the Commission who was retired on 1 September 1978 on grounds of total invalidity.

2 The applicant claims that the Court should reverse the Commission's decision of 14 August 1978 awarding her invalidity pension under the third paragraph of Article 78 of the Staff Regulations and the Commission's decision of 3 April 1979 rejecting the complaint through official channels brought by the applicant on 5 October 1978 under Article 90 (2) of the Staff Regulations seeking annulment of the decision of 14 August 1978 and the award of her pension on the basis of the second paragraph of Article 78 of the Staff Regulations. The application also seeks the appointment of a board of medical experts.

The medical service detected an auricular fibrillation and ordered her to cease work. The applicant concedes that she did not report this accident to the administration.

5 On 3 August 1978 the Invalidity Committee which was convened on the initiative of the defendant and was composed of Dr Callebaut, appointed by the Commission, Dr S'Jongers, appointed by the applicant, and Dr Veniory, appointed by the first two doctors, concluded :

"Mrs Schuerer's permanent invalidity, which is regarded as total, may arise from an accident in the course of the performance of her duties but does not arise from an occupational disease, from a public-spirited act or from having risked her life to save another human being".

6 In a supplementary memorandum sent to the defendant on 8 January 1979 the Invalidity Committee stated that:

"The principal feature of the pathological picture presented by Mrs Schuerer is an illness of long standing and without any relationship of cause and effect to the patient's way of life and official duties. Against that background of chronic illness there occurred a paroxysmal attack on 26 October 1976. That paroxysmal attack, which has contributed to the patient's present state of

JUDGMENT OF 12. 6. 1980 — CASE 107/79

9 Accordingly, the defendant may not be criticized for having inferred from the first invalidity report that a relationship of cause and effect between the alleged accident and the invalidity had not been established and for having understood the phrase “the invalidity … may arise from an accident in the course of the performance of her duties” as explained in the supplementary

SCHUERER ν COMMISSION

memorandum, namely, that “in medicine it is often difficult to reject theo­ retically the hypothesis of some link between an accident claimed by the patient and the pathology of which he complains.” Thus, the Commission was justified in taking its decision to award the applicant's pension on the basis of the third paragraph of Article 78 of the Staff Regulations relying on the opinion of the Invalidity Committee, since that committee had not found that the applicant's invalidity satisfied any one of the conditions for the application of the second paragraph of Article 78 of the Staff Regulations.

10 It does not appear from the file in the case that the composition of the Invalidity Committee or its working methods have been called in question by the applicant. The said committee validly reached a decision in the light of the various medical reports submitted by the applicant and after her having been an in-patient for four days in a teaching hospital. In these circumstances its conclusions must be regarded as final and may not be disputed in the absence of any new matter of fact arising.

1 1 That new matter of fact may not consist in the production by the applicant of medical certificates calling in question the conclusions of the Invalidity Committee but putting forward no ground which would suggest that that committee did not have knowledge of the principal facts contained in the applicant's medical records.

On those grounds,

T H E COURT (First Chamber)

hereby:

1. Dismisses the application.

2. Orders the parties to bear their own costs.

O'Keeffe Bosco Koopmans