C-156/80

JUDGMENT OF 21. 5. 1981 — CASE 156/80

question may not rely on the fact that may not extend to medical appraisals it failed to reply to a complaint within properly so called which must be the period laid down by the Staff considered definitive, provided that Regulations. they are adopted in accordance with 2. In relation to a decision by a medical the correct procedure. committee assessing the degree of 3. Under the insurance provided for, by partial permanent invalidity pursuant the Staff Regulations the compen- to the rules on insurance against the sation payable in the event of risk of accident and of occupational invalidity is in the nature of a flat-rate disease, the remedies provided by the award assessed on the basis of the Staff Regulations of Officials may in lasting effects of an accident. Interest principle be employed only in order may thus be claimed only where the to obtain a review by the Court person entitled to that award is able confined to questions concerning the to establish that payment thereof was constitution and proper functioning of improperly delayed by the admin- that committee. The Court's review istration.

In Case 156/80

GIORGIO MORBELLI, an official of the Commission of the European Communities, residing in Luxembourg, represented by Edmond Wirion of the Luxembourg Bar, with an address for service in Luxembourg at his Chambers, 1 Place du Théâtre,

applicant,

v

gives the following

JUDGMENT

Facts and Issues

The facts, of the case, the course of the violent headache accompanied by procedure, and the conclusions and dizziness and a feeling of sickness and arguments of the parties may be vomiting followed by a state of profound summarized as follows: torpor.

It was stated in a medical certificate issued on 24 February 1976 that Mr I — Summary of the facts Morbelli had a temporary total inca- pacity for work which would probably last 10 days. On 21 February 1976 Giorgio Morbelli, an official of the Office for Official Publications of the European Communi- On 27 February 1976, in accordance ties, residing in Luxembourg, sustained with Article 16 (1) of the Rules on the an injury to the head as a result of Insurance of Officials of the European a defective automatic sliding door Communities against the Risk of whilst entering the post office near Accident and of Occupational Disease Luxembourg railway station. He suffered (hereinafter referred to as "the Rules"), contusions in the region of his temples Mr Morbelli submitted a report for the and a slight cut behind his left ear and purpose of the Community group felt somewhat faint. insurance scheme with an insurance undertaking established in Belgium.

Mr Morbelli was taken to hospital where his wound was stitched and he Mr Morbelli again went into hospital underwent a radiographic examination of where an electro-encephalographic exam- his cranium which did not show any ination revealed an irregularity in the fracture. Some hours after the accident, electrical impulses of the brain attri- at his home, Mr Morbelli suffered a butable to minor concussion.

Since his health deteriorated Mr On 12 July 1978 Mr Morbelli informed Morbelli underwent various medical the Commission that he did not accept examinations in the succeeding weeks in the offer of the insurers. Consequently Luxembourg and in Italy, in particular in his file was sent by the Personnel Branch Camglio (Genoa) and in Milan. to Dr H. A. Semiller, the head of the Commission's Medical Department in Brussels. Dr Franco Luckenbach of Milan drew up a report on 1 October 1976 in which he assessed Mr Morbelli's permanent By a memorandum of 10 November incapacity for work at 10%. 1978 Dr Semiller informed the Personnel Branch that "having regard to the medical reports in our possession, A medical report drawn up on 28 April according to the scale of degrees of 1977 in Luxembourg by Dr Roger invalidity in force and as a result of the Glaesener in conjunction with Dr Jean examinations carried out by specialists, I Hein and Dr Aloyse Stumper concluded am of the opinion that the permanent that the post-traumatic after-effects of partial invalidity indicated after review of Mr Morbelli's accident of 21 February the accident of 21 February 1976 should 1976 consisted in a subjective post- be estimated at 3 %. The patient's concussion syndrome of medium seventy condition stabilized in September 1978". accompanied by damage to the central These conclusions were notified to Mr vestibulary structures in the brain Morbelli on 16 November 1978. stem and that the appropriate level of compensation to be fixed as from 1 October 1976 should be based on a permanent partial invalidity of 10%. By a letter of 26 November 1978 Mr Morbelli again refused to agree to the Commission's proposal and on 16 January 1979, in response to a note of Mr Morbelli, who had been authorized 12 January 1979 from the Personnel to work part-time between 1 February Branch, he requested that the Medical and 30 April 1978, underwent at the Committee provided for in Article 23 of request of the Commission a medical the Rules should be consulted and examination on 12 May 1978 conducted appointed by Dr Roger Glaesener as a by its medical officer, Dr D. Meersman. member of that Committee. As a result of that examination the competent insurance undertaking in- formed the Commission in a letter of 4 July 1978 that "its consultant physician has concluded that the victim of the The Medical Committee consisted of Dr accident now suffers a permanent Jean-François Elens, appointed by the invalidity amounting to 3 % " and that appointing authority, Dr Roger the corresponding lump sum amounted Glaesener, and, as the third member, Dr to BFR 95 064. Van Bever. After studying the medical file and examining Mr Morbelli, it issued a joint report on 27 June 1979 in which it expressed the view that his condition On 6 July Mr Morbelli was informed of might be regarded as having stabilized this by the Commission's sickness fund and that his degree of partial permanent which asked him to notify it in writing invalidity should be assessed at 3 % whether he intended to accept that offer. dating from 25 February 1978.

By a note of 21 September 1979 Mr On 2 July 1980 Mr Morbelli instituted Morbelli confirmed to the Director- these proceedings. General for Personnel and Adminis- tration that he refused to agree to his The written procedure followed the accident of 21 February 1976 being dealt normal course. with on the basis of the proposed degree of invalidity. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court (Second By a memorandum dated 11 December Chamber), decided to open the oral 1979 and registered at the Secretariat- procedure without any preparatory General of the Commission, Mr inquiry. Nevertheless it requested the Morbelli, who in the meantime had two parties to reply in writing to certain entered hospital in Germany and was still questions; the parties complied with that being treated by various doctors, request within the period prescribed. submitted a complaint against the decision of 11 September 1979 under Article 90 of the Staff Regulations. In it he reguested that the implementation of I I I — C o n c l u s i o n s of t h e p a r t i e s the measures provided for in that decision should be suspended, that a new committee should be appointed, that The applicant claims that the Court interest at the legal rate should be paid should: from the date of the accident, that a percentage to compensate for the effects of inflation should be paid and that the (a) Principally, lump sum should be calculated by reference to the remuneration prevailing — Declare the application admiss- at the date of payment. ible and well founded;

— Adjust that lump sum so as to in this connexion an act adversely allow for the fall in the value of affecting the person concerned, and since money; and according to decisions of the Court a confirmatory measure is not capable of — Declare that the sum payable to producing a direct effect upon a given him is to be recalculated on the situtation, it cannot adversely affect the basis of his grade and duties person concerned. Applications directed during the 12 months preceding against such measures must accordingly the accident by reference to the be declared inadmissible. salary now carried by the said duties; The most typical example of a confir- matory measure is a measure whereby (b) In the alternative, the appointing authority, having received a complaint under Article 90 (2) of the Staff Regulations, confirms the decision Order a new report to be made by against which the complaint is directed. experts in order to establish the That applies with even greater force degree of his invalidity; when, as in this case, the contested measure is a decision expressly rejecting (c) Order the Commission to pay the a complaint which had already been costs. rejected by implication on the expiry of the period of four months laid down in The Commission contends that the Court the last subparagraph of Article 90 (2) of should: the Staff Regulations; that implied decision already constituted the initial — Dismiss the application as inadmis- confirmatory. sible and in any case as unfounded; and In this case the act adversely affecting the applicant is the Commission's de- — Order the applicant to pay the costs. cision of 11 September 1979 communi- cating to the applicant the opinion of the Medical Committee; the applicant's complaint of 11 December 1979 was IV — Submissions and arguments rejected by implication on 12 April 1980 of t h e p a r t i e s in t h e c o u r s e and then expressly on 30 May 1980; of t h e w r i t t e n p r o c e d u r e those two rejections constitute purely confirmatory measures. A — Admissibility (b) It is impossible to challenge this finding by claiming that the application The Commission considers the appli- is directed by implication against the cation inadmissible. real measure adversely affecting the applicant. The applicant should have (a) The measure which is contested in expressly indicated in his application the the application is the Commission's measure adversely affecting him which decision of 30 May 1980 rejecting the he wished to have set aside. applicant's complaint of 11 December 1979. (c) Likewise it is impossible to concur in the argument that the contested A decision rejecting a complaint cannot decision was separate and distinct constitute the basis for an action: Article because it included a statement of the 91 (1) of the Staff Regulations requires reasons on which it was based which did

The applicant challenges the relevance of Although the applicant does not contest the objection of inadmissibility raised by the formal regularity of the procedure the Commission. followed in this case, he criticizes the manner in which the Medical Committee operated and so calls in question the (a) The reference to the decision of opinion which it delivered in its report of 30 May 1980 was made primarily to 27 June 1979 and which the Commission establish that the application was made subsequently confirmed. within the period prescribed by the Staff Regulations. However, in substance the application is not limited to the con- firmatory decision but refers by (a) The Medical Committee may not implication to all the prior decisions be the final arbiter of the matter and the having the same subject-matter, namely Court is not obliged to confirm its the rejection of the applicant's complaint. findings.

(b) A distinction should be drawn There exist many grounds on which the between purely confirmatory decisions Court may find that the expert opinion which do not themselves contain a of the Medical Committee fails to statement of the reasons on which they comply with the requirement of are based and confirmatory decisions objectivity, that it is contradicted by which do contain such a statement. A prior and subsequent events and that a confirmatory decision which resumes new expert opinion should therefore be discussion of the dispute, analysing the obtained.

JUDGMENT OF 21. 5. 1981 — CASE 156/80

The method of examination adopted Furthermore, the Committee failed to by the Medical Committee was too perfunctory. take into consideration the serious deterioration in the mental state of the applicant or the subjective effects as a whole of his accident. (c) It seems most improbable that any of the three members of the Medical The application is directed in principle Committee knew sufficient Italian to against the arbitrary and prejudicial understand or grasp in detail a medical manner in which the assessment was report drawn up in Pavia on 15 June made by the Medical Committee. 1979 by Professor P. Pinelli. Certain tests carried out on the applicant by the professor had never been repeated; one such test was the computerized axial (g) Although the applicant has drawn tomography. the attention of the Commission to the aggravation which has occurred in his injuries and which is documented in the medical reports the procedure provided (d) The outcome of the examination of for in Article 22 of the Rules has never the Medical Committee is manifestly at been initiated.

MORBELLI v COMMISSION

The Commission, having regard to the fact that, in its view, the application is inadmissible, contests the case as to its substance only in the alternative. The Court may be asked to annul the decision based on the opinion of a medical committee only if it appears that the adoption of the opinion in question entailed an infringement of an essential procedural requirement, for example that (a) The applicant fails to put forward the authority which adopted the opinion any submission, that is to say advance exceeded its powers or that the opinion any argument, based on the breach of a of the committee was adopted in breach provision of the Staff Regulations or of a of the rights of the defence, for example general principle of law. The application in the absence of the doctor representing really constitutes a claim for review, as the official, or, further, if the opinion

JUDGMENT OF 21. 5. 1981 — CASE 156/80

contains a manifest error, such as the normal for the technical tests to be adoption of a manifestly inadequate carried out by ancillary medical staff. degree of invalidity having regard to the scale applicable or the failure to take into consideration the result of examinations (e) Doctor Elens in fact knows Italian, by specialists. which enabled him to study the medical reports written in that language and to inform his colleagues of their contents. In the absence of any submission of a breach of the provisions of the Staff Regulations or of a general principle of The Medical Committee had no reason law the Medical Committee alone is to repeat the examinations carried out in entitled to settle the medical aspects of Pavia less than 15 days before it met. the case.

MORBELLI v COMMISSION

administration thereof in accordance should at least take into consideration with Article 22 of the Rules. In any the remuneration now received by an event, such an aggravation, even if it official in the same post as that held by were proved to exist, does not constitute the applicant at the time of his accident. the subject-matter of this action.

The Commission should therefore be ordered to pay interest of at least 10% (a) With regard to the question of per annum. interest on the lump sum awarded under Article 73 of the Staff Regulations, the applicant is evidently confusing the principles applicable to reparation in an (b) The rate of compensation itself action for damages and those applicable should be increased; the Commission in the context of a scheme of accident

JUDGMENT OF 21. 5. 1981 — CASE 156/80

insurance, which excludes the concept of the courts of the various countries of the liability and whose scope is limited by Community. law or by contract.

The procedure followed by the Com- V — Oral procedure mission took place without unreasonable delay, having regard to the fact that the opinion of the Medical Committee shows that the applicant's condition did not stabilize until 25 February 1978; it is The applicant, represented by Mr sufficient to recall the facts to verify that Wirion, and the Commission, repre- the Commission was in no way guilty of sented by Mr Jacob, presented oral wrongful delay in investigating the argument and gave their replies to the matter. In the absence of any fault on the questions put by the Court at the hearing part of the administration the complaint on 19 March 1981. must be rejected.

The applicant's argument certainly does The Advocate General delivered his not constitute a principle recognized by opinion at the sitting on 7 May 1981.

MORBELLI v COMMISSION

Decision

1 By application lodged at the Court Registry on 2 July 1980, Mr Morbelli, an official of the Commission of the European Communities assigned to the Office for Official Publications of the European Communities, Luxembourg, brought an action for the review of the degree of his permanent partial invalidity fixed pursuant to the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease enacted under Article 73 of the Staff Regulations of Officials (herein- after referred to as "the Rules").

2 On 21 February 1976 the applicant suffered an accident in the post office near Luxembourg railway station caused by a faulty sliding door as a result of which he sustained head injuries. On 27 February 1976 he reported the accident, pursuant to Article 16 (1) of the Rules, for the purposes of the insurance provided under a contract entered into by the Community pursuant to Article 73 of the Staff Regulations.

3 On 12 May 1978, when the injuries appeared to have stabilized, the applicant was examined by the medical adviser appointed by agreement between the Commission and the insurer. That doctor came to the conclusion that the degree of permanent invalidity suffered by the applicant was 3 %. Accordingly the insurer assessed the compensation in accordance with the conditions in the policy at BFR 95 064. That offer was notified to the applicant on 6 July 1978 by the Commission.

Mr Morbelli must be considered to suffer from a degree of permanent partial invalidity of 3 % (three per cent) as at 25 February 1978. We have had regard to Mr Morbelli's general state of health.

We swear that we have performed our task properly, correctly and honestly.

Brussels, 27 June 1979.

(The names and signatures of the doctors)."

8 On 11 September 1979 the administration informed the applicant of the decision of the Medical Committee and repeated its offer of payment of the lump sum previously calculated. On 11 December 1979 the applicant submitted a complaint pursuant to Article 90 of the Staff Regulations of Officials in which he challenged the opinion of the Medical Committee, requested the setting up of a new committee and claimed from the institution, in addition to the lump sum to be fixed, payment of interest from the day of the accident and compensation for the loss which had in the meantime occurred through the fall in the value of money. A number of documents and medical reports were appended to the complaint; the file was later supplemented by the lodging of a medical report drawn up at the request of the applicant by Professor Zanalda, a physician in Turin.

MORBELLI v COMMISSION

11 The Commission contests the admissibility of the application on the ground that it is directed against a decision which merely confirmed a prior decision which was not challenged. It relies upon the fact that the application is directed against a decision of the Commission rejecting a complaint, a decision which was adopted after the expiry of the period of four months laid down by the last subparagraph of Article 90 (2) of the Staff Regulations, and not against the implied decision rejecting it, which was deemed to be taken on the expiry of that period.

12 In this case the act adversely affecting the applicant is the communication of 11 September 1979 whereby the Commission confirmed the report of the Medical Committee and notified the applicant of its decision. The applicant submitted a complaint which was received by the Secretariat-General of the Commission on 12 December 1979, thus setting in motion a period of four months within which the Commission had to reply. That period expired in principle on 12 May 1980. It is accordingly on that date that an implied decision to reject the complaint is deemed to have been taken, which caused a further period of three months to start to run, within which the applicant

JUDGMENT OF 21. 5. 1981 — CASE 156/80

was able to lodge an application in accordance with Article 91 (3) of the Staff Regulations.

1 3 Itis apparent from the foregoing that the applicant submitted his application within the limitation period set in motion by the implied decision to reject his complaint. The Commission's objection of inadmissibility is accordingly based solely on the fact that the application is directed against the subsequent express decision instead of the implied decision of rejection.

Article 19 "Decisions recognizing the accidental cause of an occurrence including a decision as to whether the occurrence is to be attributed to occupational or non-occupational risks, or decisions recognizing the occupational nature of a disease and assessing the degree of permanent invalidity shall be taken by the appointing authority in accordance with the procedure laid down in Article 21, — On the basis of the findings of the doctor(s) appointed by the institutions; and — Where the official so requests, after consulting the Medical Committee referred to in Article 24."

Article 23 "(1) The Medical Committee shall consist of three doctors: — One appointed by the appointing authority; — One appointed by the official concerned or those entitled under him; — One appointed by agreement between the first two doctors. Where agreement cannot be reached on the appointment of the third doctor within a period of two months following appointment of the second doctor, the President of the Court of Justice of the European Communities shall appoint the third doctor at the request of either party. On completing its proceedings, the Medical Committee shall set out its opinion in a report to be communicated to the appointing authority and to the official or those entitled under him."

18 Those provisions are intended to confer upon medical experts the task of appraising in their entirety medical questions which are relevant to the operation of the insurance scheme set up by the Rules. Under them each official is entitled to two examinations, the first by the doctor or doctors of

MORBELLI v COMMISSION

23 Those allegations must be dismissed as unfounded in fact and in law.

24 It is not in dispute that the applicant duly appointed the doctor whom he was entitled to appoint under Article 23 of the Rules. He was not required to take any part in the choice of the doctor appointed by the Commission and the criticisms made by him as to the qualifications of that doctor must thus be dismissed as entirely unfounded. With regard to the appointment of the third doctor it is sufficient to refer to Article 23 of the Rules which provides that the third doctor is to be appointed "by agreement between the first two doctors". It follows from this that the doctor chosen by the applicant was not required to take instructions from the applicant or seek his approval. The fact that the name of the third doctor was suggested by the Commission's doctor is a normal practice in this connexion since either of the first two doctors is free to make suggestions as to the choice of the third, the sole requirement of the Rules being that the appointment of that third doctor should be by "agreement" between the first two doctors, as undoubtedly happened in this case.

25 The allegation that the doctor appointed by the applicant signed the report only against his real persuasions appears to be based on the consideration that in a previous report drawn up for the purpose of an action for damages against the Luxembourg State he had expressed the opinion that the applicant's degree of invalidity was higher. That view, which was reached at another time and in a different context, cannot in any way bind that doctor who, according to the declarations made in the course of the inquiry into the case, ultimately concurred in the opinion of the other two members of the Medical Committee. Whatever doubts he may have entertained, the adoption of the opinion of the Committee, whether unanimously or by a majority, constitutes a final decision which cannot be called in question.

29 On this question it is sufficient to remark that, in assessing the degree of invalidity at 3 % , the Medical Committee expressly stated that it "had regard to the general state of health" of the applicant. It is thus clear that the Committee considered all aspects of the case of invalidity in question and that it did not consider that the physical and mental after-effects of the accident justified finding a degree of invalidity in excess of 3 % . Having regard to the foregoing considerations that appraisal must be considered final and conclusive.

MORBELLI v COMMISSION

30 With regard to the request that the Court should order a new expert opinion to be obtained, that claim must be dismissed as exceeding the bounds of the judicial review which the Court is able to perform in this case.

31 It is clear from the foregoing that the conclusions and arguments relating to the work of the Medical Committee must be dismissed in their entirety.

T h e claim for a d j u s t m e n t of t h e c o m p e n s a t i o n a w a r d e d

32 Finally, the applicant claims that the lump sum paid by the Commission should attract interest as from the date of the accident and that it should be adjusted by some means or other in order to take account of the fall in the value of money.

37 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure the institutions are to bear their own costs in proceedings brought by servants of the Communities.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to bear their own costs.