C-731/79

JUDGMENT OF THE COURT (THIRD CHAMBER) OF 15 JANUARY 1981 1

B. v European Parliament

"Invalidity Committee"

Case 731/79

Officials — Compensation for occupational disease — Invalidity pension — Different benefits — Finding of the existence of an occupational disease and finding of invalidity — Distinct procedures — Discretion of administration (Staff Regulations of Officials, Arts 73 and 78)

A comparison between Article 73 cedures which may give rise to separate (compensation for occupational disease) decisions independent of each other. and Article 78 (invalidity pension) of the Staff Regulations of Officials indicates Although it is desirable that, where that the benefits provided by these two appropriate, the two procedures should provisions are different and mutually be conducted in concert and that the independent, although a person may same medical authorities should be receive both of them. Furthermore, invited to give an opinion on the Article 25 of the Rules provides that different aspects of the official's recognition thereunder of even total disability, the legality of either procedure permanent invalidity "shall in no way is not conditional on such a requirement prejudice application of Article 78 of the and in this respect the appointing Staff Regulations and vice versa". It authority has, according to the circum- follows that there are two different pro- stances, a discretion.

APPLICATION for the annulment of the decision of the European Parliament of 21 June 1979 bringing the applicant's case before the Invalidity Committee and issuing various instructions to the said Committee,

THE COURT (Third Chamber)

composed of: J. Mertens de Wilmars, President, Lord Mackenzie Stuart and O. Due, Judges,

Advocate General: H. Mayras Registrar: H. A. Rühl, Principal Administrator

gives the following

JUDGMENT

In a letter of 22 February 1978 to the and Finance at the European Parliament Secretary-General of the European Par- informed the applicant that he intended liament he complained that his health to set up a "Medical Board" which had deteriorated, in his view because of would be required to give an opinion on bad working conditions owing to the his state of health, on the possible defective state of the premises in which connexion between his state of health he had to practise his profession. Those and his working conditions at the Par- working conditions were then examined liament and on the advisability of by Dr Brandt, medical officer of the initiating the procedure for retiring him Council of Europe, who considered that on the ground of invalidity under Article they were in fact unsuitable. On 16 April 53 of the Staff Regulations.

It involves the following in a period of three years, the defendant stages : institution notified him of its decision to initiate the procedure for retiring him on 1. The statement submitted by the a pension on the ground of total official (Article 17 (1)); permanent invalidity making it imposs- ible for him to perform his duties, as provided for in Articles 53, 59 and 78 of 2. The inquiry carried out by the the Staff Regulations. administration (Article 17 (2)); The present application is directed

5. After the Medical Committee, if dismissed by an Order of the President consulted, has delivered its opinion of the Court dated 5 December 1979. As the final decision is taken. provided by Article 91 (4) of the Staff Regulations the proceedings in the principal action were then suspended By a letter of 16 June 1978 the Director- until, by a decision of 15 January 1980, General for Administration, Personnel the President of the European Par-

liament rejected the aforesaid complaint. Rules on the Insurance of Of- The written procedure then resumed its ficials of the European Com- normal course. munities against the Risk of Accident and of Occupational On hearing the report of the Judge- Disease, in particular Article 21 Rapporteur and the views of the thereof; Advocate General the Court (Third Chamber) decided to open the oral 3. Order the European Parliament to procedure without any preparatory bear the costs. inquiry. The European Parliament contends that the Court should: II — Conclusions of the parties 1. Dismiss the application as inadmissible or at least as unfounded; The applicant claims that the Court should: 2. Order the applicant to pay the whole of the costs in accordance with Article 1. Declare that the application is 69 (3) of the Rules of Procedure. admissible; 2. (a) Rule that the setting up or the working of an Invalidity Com- I l l — Submissions and argu- mittee within the meaning of ments of the parties Article 59 (1) of the Staff Regu- lations is unlawful or at least is unjustified in the present circum- A — Application stances and should therefore be terminated; (a) In the first place, the applicant considers it unlawful to set in motion the In the alternative, direct the procedure for retiring him on a pension European Parliament or its on the ground or total permanent responsible bodies or officials to invalidity preventing him from per- terminate or suspend the setting forming his duties (Articles 53, 59 and 78 up or working of such a of the Staff Regulations), so long as the committee until a final decision Medical Board set up pursuant to the has been taken in the examination Rules has not completed its work. He of the applicant's occupational submits that the second procedure disease; initiated will impede the smooth running of the first. In his view the fourth (b) Order the European Parliament subparagraph of Article 59 (1) of the or its responsible bodies or Staff Regulations has been infringed, officials to put an end to all because two inconsistent decisions may measures which may hinder, delay be taken, whereas the provision in and/or thwart the work of the question is intended to put an end to the Medical Board to ascertain uncertainty of the situation in the whether the applicant suffers from interests of both the institution and the an occupational disease; sick official. (c) Rule that the Medical Board's work be actively continued and (b) Secondly, he criticizes the steps completed as laid down in the taken by the defendant institution or its

(c) Finally, he maintains that the 2. Substance European Parliament is wrongfully refusing to apply the Rules and that in The defendant institution points out that particular it is contravening Article 21 of the applicant does not rely on any the Rules. facturai or legal submission relating to the lack of competence of the authority which took the contested decision, to the B — Defence infringement of an essential procedural requirement, to the infringement of a rule of Community law or, finally, to 1. Admissibility misuse of powers. He has not established that any provision of the Treaties or the The European Parliament disputes the Staff Regulations, in particular Article 59 admissibility of the application. The of the latter, has been infringed. Fur- application for a declaration that the thermore, the conditions for establishing setting up of the Invalidity Committee is misuse of powers are in no way satisfied unlawful (the first sentence of claim 2 (a) since the applicant has not proved that of the application) is inadmissible, in so the institution sought to attain any far as the applicant submits that the objective other than the lawful objective composition of the Invalidity Committee referred to in the last subparagraph of is unlawful. There is no act adversely Article 59 (1). The European Parliament affecting him within the meaning of has displayed all the requisite diligence Article 91 (1) of the Staff Regulations, and the procedure for establishing since the third doctor sitting on that whether the applicant's illness was Committee was appointed at the request caused by his occupation is entirely of the European Parliament by the separate from that relating to his President of the Court of Justice in invalidity. accordance with the last paragraph of Article 7 of Annex II to the Staff Regu- In the alternative, the European Par- lations of Officials of the European liament submits that the claims which it Communities. considers to be inadmissible are also entirely lacking in foundation and for The claims that the Court should order this reason must in any case be the European Parliament to suspend the dismissed. working of the Invalidity Committee (the second sentence of claim 2 (a)) and to discontinue all measures which may C — Reply prevent the Medical Board from establishing that the applicant suffers 1. Admissibility from an occupational disease (claim 2 , (b)) and to expedite the work of that The applicant after expatiating on the Board (claim 2 (c)) are inadmissible, first facts which in his view have given rise to because the Court does not have the action, replies as follows to the jurisdiction to issue instructions to the objections of inadmissibility pleaded by defendant institution, secondly because the defendant.

He points out in the first place that the 59 of the Staff Regulations illegally. claim for the annulment of the decision Thus it has given the impression that its setting up the Invalidity Committee (the aim was to adjourn the proceedings of first sentence of claim 2 (a)) is in any the Medical Board sine die and to favour event admissible and that the annulment the proceedings of the Invalidity of that decision will entail the annulment Committee with a view to reducing the of the decisions implementing it. As for applicant's income. The contested the alternative claim that the Committee decision contravenes the Staff Regu- be forbidden to continue its proceedings, lations, in particular Article 25 thereof, he leaves that to the discretion of the and is also in breach of the general Court. In fact that claim related only to principles of good administration which the application for the adoption of the defendant institution is required to interim measures which he lodged at the observe. According to the applicant, the same time as his principal application. European Parliament undertook in its letter of 16 June 1978 not to set up the Invalidity Committee before the Medical Board had completed its work and it is As regards the other heads of claim, the bound by that undertaking. In any event, applicant takes the view that the it could be released from that under- obligations of the European Parliament taking only if the proceedings of the include not only those arising out of the Board had been seriously delayed owing provisions of the Staff Regulations but to the applicant's fault. However that is also those derived from general not the case because the European Parl- principles of law and in particular from iament is solely to blame for the delays the general principles of good in these proceedings. Moreover, those administration. Those general principles delays were compounded by the Parl- have the same importance as statutory iament's refusal to take the appropriate provisions. steps at the proper time to avoid exposing the applicant to the risk of occupational disease by improving the He also maintains that the contested premises where he had to work. measures adversely affect him because as a result of the failure to take the requisite steps and of the effect of the contested decision he is running such a D — Rejoinder considerable financial risk that he will no longer be able to prosecute his action for payment of the benefits provided for in respect of occupational disease. 1. Admissibility

invalidity until after the Medical Board the assessment of the Medical Board. had expressed an opinion on the By not waiting for that opinion the advisability of so doing. In fact the defendant institution acted in breach doctor appointed by the applicant to sit of the applicant's established rights. on the Medical Board delivered his report on 18 February 1980. The doctor 3. The decision to refer the matter to the appointed by the Parliament submitted Invalidity Committee did not contain his observations on 14 April 1980. As an adequate statement of the reasons from that date, in view of the third on which it was based (Article 25 of doctor's resignation from the Board, its the Staff Regulations). proceedings must be regarded as terminated. The European Parliament observes that Since the Invalidity Committee was not these are in fact fresh issues raised in the set up until 8 January 1980, when the course of the proceedings, which is President of the Court of Justice prohibited under Article 42 (2) of the appointed a doctor to be the third Rules of Procedure. However, for the member thereof, the applicant can sake of completeness it deals with the merely argue that the procedure which in merits of these submissions. his opinion ought to be followed was brought forward by no more than two months, and he no longer has any (a) Misuse of powers ground for relying on that submission. According to the Parliament, although The European Parliament maintains that this objection of inadmissibility consti- objective evidence that the admin- tutes a fresh issue it may be raised in the istration acted in disregard of the rejpinder under Article 42 (2) of the purpose of the provision in question has Rules of Procedure, because the facts on not been adduced, for it is not sufficient which it is based occurred after the that the applicant personally feared that defence was lodged. the decision to initiate the procedure under Article 59 sought to achieve an objective other than that envisaged in the 2. Substance Staff Regulations. There can be no question of a misuse of powers when it is After analysing the applicant's reply the clear that the legal objective of the European Parliament concludes that he provision has been pursued and attained. bases his application for annulment on three submissions: (b) The protection of legitimate expectation 1. The setting up of the Invalidity Committee is illegal because the Par- The applicant submits that his interest in liament is seeking to attain an objective other than that which the having the procedure for determining Staff Regulations permit it to pursue. whether he suffers from an occupational disease brought to a conclusion as notified to him constitutes an established 2. The setting up of that Invalidity right. Thus he is relying on the principle Committee is illegal because the Par- patere legem quam ipse fecisti which the liament undertook to apply a specific Court of Justice applied in its judgment procedure by making the im- of 5 June 1973 in Case 81/72 plementation of Article 59 subject to Commission v Council [1973] ECR 583.

Decision

1 By application lodged at the Court Registry on 12 October 1979, B., an official of the European Parliament in Grade A 3, brought an action in which essentially he seeks, first, the annulment of the decision of the European Parliament to initiate the procedure for retiring him on the ground of total permanent invalidity making it impossible for him to perform his duties, provided for in Articles 53, 59 and 78 of the Staff Regulations of Officials of the European Communities, and, secondly, a declaration that the

B. v PARLIAMENT

procedure provided for in Article 73 of the Staff Regulations and in the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease (hereinafter referred to as "the Rules"), which was initiated at his request for the purpose of establishing through a Medical Committee whether his disablement is due to an occupational disease, must be expedited.

Admissibility

2 The defendant institution submitted during the oral procedure that the application no longer had any purpose owing to the fact that the Invalidity Committee referred to in Articles 53 and 78 of the Staff Regulations had found that the applicant was not incapable of performing his duties on account of permanent invalidity and that he had in fact resumed work, at least on a part-time basis. However, counsel for the applicant informed the Court before the sitting that although he would not be appearing, he adhered to the submissions which he had put forward during the written procedure. Furthermore, it is apparent that if the application for annulment were granted there would be no foundation for the findings of the Invalidity Committee. Consequently, it is necessary to give judgment on the application.

5 The applicant, a doctor by profession, was engaged by the Parliament on 1 May 1975 as a special adviser within the meaning of Article 5 of the Conditions of Employment of Other Servants of the European Communities. On 1 February 1977 he was appointed medical officer of the institution and was later established as an official in Grade A 3. Thirteen months after that appointment he reported sick, stating that he was suffering from "fatigue and lethargy" (wegens moeheid en lethargie) and that his poor health was due to the unsuitability of the premises where he had to perform his duties. On 16 April 1978 he asked that the procedure for establishing whether he was suffering from an occupational disease within the meaning of Article 73 of the Staff Regulations be applied in his case. On 16 June 1978 the Director- General of the European Parliament granted that request and proposed the creation of a board — wrongly called a Medical Board — consisting of three doctors to be appointed by agreement, whose task would be to determine whether the circumstances giving rise to the application of Article 73 were present and to deliver an opinion on the advisability of initiating the procedure for retirement on the ground of permanent invalidity (Articles 53 and 78 of the Staff Regulations and Annex VIII thereto).

6 However, at the time when this action was brought that Board had not been able to carry out the task assigned to it, partly because of the differing opinions of the doctors who were members of it, and partly because of delays, for which the applicant was largely responsible, both in the appointment of its members and in the conduct of its proceedings.

11 Therefore the application must be dismissed.

JUDGMENT OF 15. 1. 1981 — CASE 731/79

Costs

12 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading. However, Article 70 of the Rules of Procedure provides that, without prejudice to the second subparagraph of Article 69 (3) of those Rules, in proceedings brought by officials or other servants of the Communities, the institutions shall bear their own costs. Having regard to the facts of the case, the Court considers that the European Parliament has been forced to incur the costs of the present action unreasonably and that they must be borne by the applicant. Consequently the applicant must be ordered to pay the whole of the costs, including the costs of the first application for the adoption of interim measures.

On those grounds,

THE COURT (Third Chamber)