C-731/79
ECLI:EU:C:1979:277
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ORDER OF THE PRESIDENT OF THE COURT OF 5 DECEMBER 1979 <appnote>1</appnote>
B. v European Parliament
Case 731/79 R
In Case 731/79 R
B., medical practitioner, an official of the European Parliament, residing at Kelhen and represented by W. H. Vermeer, Advocate at the Amsterdam Bar, having an address for service in Luxembourg care of Dr P. Stein, 2 Avenue Pescatore,
applicant,
v
Europuan Parliament, represented by F. Pasetti-Bombardella, Director- General of Administration, Personnel and Finance, Kirchberg, Luxembourg,
defendant,
APPLICATION for (a) an interim order on the European Parliament to put an end to all measures which might hinder the ascertainment of whether the applicant suffers from an occupational disease; (b) an interim order on the Medical Committee to proceed with all due diligence to a completion of the duties imposed upon it consequent upon its appointment under the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease and to communicate its opinion to the European Parliament, and (c) an order on that institution, whenever the Medical Committee shall have communicated its opinion to it, to notify the same to the applicant, in accordance with Article 21 of the Rules abovementioned.
The Judge acting as President in accordance with the second paragraph of Article 11 and Articles 90 (2) and 96 (1) of the Rules of Procedure of the Court
makes the following
1 — Language of the Case: Dutch
ORDER OF 5. 12. 1979 — CASE 731/79 R
ORDER
Facts and Issues
By letter of 22 February 1978 addressed nation of service and the awarding of to the Secretary-General of the invalidity pension to officials suffering European Parliament, the applicant from permanent invalidity preventing requested that there be put into them from performing the duties operation the procedure relative to the corresponding to posts in their career making of a finding that he was suffering brackets.
from an occupational disease within the A Medical Committee made up of meaning of Article 73 of the Staff Regu- Doctors Maddens, Stein and Lahaye was lations of Officials of the European duly appointed, but solely with a view to Communities. investigating whether the applicant was suffering from an occupational disease By letter of 16 June 1978 the Director- giving rise to the application of the General of Administration, Personnel provisions of the Staff Regulations and Finance of the European Parliament relating to such a case. As at the date of informed the applicant of his intention to the present order, that committee has not proceed with the appointment of a yet announced its opinion. "medical committee" having the task of By a letter of 21 June 1979, the Sec- reviewing the applicant's state of health; retary-General of the European Par- the relationship, if any, between his state liament informed the applicant of his of health and his working conditions at intention to apply to his case the the Parliament and, finally, the "possible procedure for retirement on grounds of advisability of putting into operation the invalidity, in accordance with Articles 53 procedure for retirement on grounds of and 59 of the Staff Regulations. By the invalidity provided for in the Staff Regu- same letter, he requested the applicant to lations of Officials". This wording appoint, in accordance with Article 7 of appears to have in view simultaneously Annex II to the Staff Regulations, one the appointment, on the one hand, of the "Medical Committee" referred to in of the doctors who was to make up Articles 21 and 23 of the Rules on the the Invalidity Committee, which the applicant did on 2 July 1979. The Insurance of Officials of the European Parliament appointed Dr Maddens on Communities against the Risk of 9 August 1979. Accident and of Occupational Disease adopted, in regard to its own servants, That Invalidity Committee has not yet by the Parliament on 27 January 1977 in been able to begin its work since the two the context of the implementation of the doctors appointed by the parties have provisions of the Staff Regulations been unable to agree upon the name of relating to occupational accidents and the third doctor, with the result that the diseases suffered by officials, and, on the Parliament, in accordance with the other hand, of the "Invalidity second paragraph of Article 7 of Annex Committee" referred to in Article 7 of II to the Staff Regulations, has presented Annex II and Article 13 of Annex VIII to to the President of the Court of Justice a the Staff Regulations in the context of request for the appointment of a third the implementation of the provisions of doctor to make up the Invalidity the Staff Regulations relating to termi- Committee.
. PARLIAMENT
By letter of 16 September 1979 the In the alternative, direct the applicant submitted to the appointing European Parliament or its authority a complaint, within the responsible bodies or officials to meaning of Article 90 (2) of the Staff terminate or suspend the setting Regulations, in which he complained up or working of such a that the Medical Committee set up under committee until a final decision
Article 73 of the Staff Regulations has been taken in the exami-
(occupational disease) had not yet nation of the applicant's occup- presented its opinion and objected to the ational disease; setting in motion of the procedure concerned with possible retirement on (b) Order the European Parliament the grounds of invalidity before the or its responsible bodies or Medical Committee concerned with officials to put an end to all occupational disease had completed its measures which may hinder, work. delay and/or thwart the work of the Medical Committee to
A study of the file shows that the ascertain whether the applicant applicant's complaint stems from the fear suffers from an occupational disease; that a decision to place him in retirement under Articles 53 and 59 of the Staff (c) Rule that the Medical Com- Regulations would be such as would mittee's work be actively provide him with only an invalidity continued and completed as laid pension and deprive him, in particular, of down in the Rules referred to the considerable cash benefits provided in Paragraph 2 (a) of the by Article 73 in the event that his application, in particular as laid inability to continue his duties was due down in Article 21 of those to an occupational disease. Rules;
Availing himself of the power granted by 3. Order the European Parliament to Article 91 (4) of the Staff Regulations, bear the costs." the applicant, without waiting for the expiry of the period allowed to the appointing authority to reply to his At the same time, since Article 91 (4) of complaint, immediately brought an the Staff Regulations required him to do action before the Court of Justice, so, the applicant included with the action seeking, in effect, the same objectives as an application seeking the adoption of interim measures which was worded as his complaint. follows:
In the application the Court is asked to: "(a) To suspend the appointment of an invalidity committee under Article "1. Declare that the application is 59 of the Staff Regulations, or, in admissible; the event of that committee having already been appointed, to suspend 2. (a) Rule that the setting up or its workings until a final decision the working of an invalidity has been taken concerning the committee within the meaning of applicant's occupational disease; Article 59 (1) of the Staff Regu- lations is unlawful or at least is (b) To order the European Parliament unjustified in the present or its responsible bodies or officials circumstances and should by way of an interim measure to therefore be terminated; put an end to all measures which
ORDER OF 5. 12. 1979 — CASE 731/79 R
may hinder, delay and/or thwart Medical Committee shall have the ascertainment of whether the communicated its opinion to it, to applicant suffers from an occu- notify the same to the applicant, in pational disease; accordance with Article 21 of the Rules above-mentioned." (c) To order the Medical Committee and/or its members by way of an interim measure to proceed with all By written statement of defence lodged due diligence to a completion of the on 5 November 1979, the European Par- duties imposed upon it consequent liament sought the dismissal of the upon its appointment under the application for the adoption of interim Rules on the Insurance of Officials measures and an order for costs against of the European Communities the applicant. against the Risk of Accident and of Occupational Disease and to The parties were heard on the communicate its opinion to the application for the adoption of interim European Parliament and to order measures at a hearing on 28 November that institution, whenever the 1979.
Decision
1 Under Article 83 (2) of the rules of procedure an application to suspend the operation of any measure adopted by an institution or for the adoption of any interim measure is not admissible unless there exist circumstances giving rise to urgency and the factual and legal grounds relied upon by the applicant establish a prima facie case for the application.
2 Those conditions are not fulfilled in the present case.
3 The request for an order that the Invalidity Committee may not be set up and that it be prohibited from undertaking investigations before a final decision regarding the possible existence of an occupational disease has been taken must be refused. It is indeed the same request as that which is made in the principal action and accordingly cannot be regarded as an interim measure which would not prejudice the substance of the case.
4 Moreover, under the fourth subparagraph of Article 59 (1) of the Staff Regu- lations the appointing authority may refer to the Invalidity Committee the case of any official whose sick leave totals more, than twelve months in any . PARLIAMENT
period of three years. It is established that that was the case as regards the applicant at the date when the Parliament decided to have recourse to that procedure. No matter of fact or of law has been advanced which would induce the belief that in putting that procedure into operation the defendant was pursuing objectives foreign to those for which that procedure was designed.
5 The applicant's fear that the putting into operation or even the conclusion of the procedure concerned with premature retirement under Articles 53 and 59 of the Staff Regulations could have an adverse effect upon the outcome of the procedure concerned with establishing, in the context of Article 73 of the same Staff Regulations, the existence of the conditions necessary for the awarding of the benefits provided in the case of occupational disease appears to be groundless when regard is had to the clear wording of the said Article 73, the last sentence of paragraph (2) of which provides expressly that the benefits payable in the case of occupational disease may be paid in addition to those provided for in the case of invalidity within the meaning of Article 59 of the Staff Regulations. At all events, such a fear does not warrant the adoption of interim measures delaying the operation of the procedure laid down in the Staff Regulations for a case where prolonged periods of sick leave raise doubts as to the ability of the official in question to continue to perform his duties. On the contrary, there is reason to believe that it is as much in the proper interests of the official as in those of the institution that, if they are not to be co-ordinated, the two procedures should at least proceed in parallel and that they should be brought to a conclusion at the same time or, in any event, without any excessive time-lag.
6 The interests of the applicant are adequately protected by the fact that his principal application, being also directed against the setting up of the Invalidity Committee, leaves open the possibility of considering whether it is necessary to annul that decision, if it should appear, on the basis of grounds advanced by the applicant, that it is tainted with illegality.
7 The request for an order that the Medical Committee entrusted with the task of investigating whether the applicant is suffering from an occupational disease should pursue its work with diligence ("met voortvarenheid") and that the defendant should be prohibited from delaying the progress of its work is without substance. At the present stage of the proceedings no point
ORDER OF 5. 12. 1979 — CASE 731/79 R
of fact or law has been advanced which demonstrates the likelihood of
neglect or hostility on the part of the defendant in this regard. It appears on the contrary that the delay is due, on the one hand, to circumstances independent of the parties' wishes, the repetition of which may be avoided by the diligence of the Medical Committee, and on the other hand, to the attitude of the applicant himself who has, on several occasions, omitted or refused to keep appointments made with the Medical Committee.
8 The applicant has accordingly not put forward, under any head of his application for the adoption of interim measures, factual or legal submissions which justify the application, with the result that it must be dismissed.
Costs
9 It is appropriate at this stage to reserve costs.
On those grounds,
The Judge acting as President
by way of interlocutory decision,
makes the following
ORDER
1. The application for the adoption of interim measures is dismissed;
2. Costs are reserved.
Luxembourg, 5. December 1979
For due Registrar
J. A. Pompe J. Mertens de Wilmars
Deputy Registrar Judge acting as President