C-186/80
ECLI:EU:C:1981:179
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JUDGMENT OF 14. 7. 1981 — CASE 186/80
who in that capacity had already been reason the rules give a right to a pro- concerned with his health even visional allowance. though such doctor is also approved by the insurance company. 3. Under the insurance provided for by the Staff Regulations of Officials the compensation payable in the event of 2. It follows from the Rules on invalidity is in the nature of a flat-rate Insurance Against the Risk of award assessed on the basis of the Accident and of Occupational Disease lasting effects of an accident. Interest that entitlement to payment of the may thus be claimed only where the invalidity allowance does not arise as person entitled to that award is able and when each of the injuries has to establish that payment thereof was consolidatd but only when the injuries improperly delayed by the ad- have consolidated and for that very ministration.
In Case 186/80
BENOÎT SUSS, a retired official of the Commission of the European Communities, residing in Luxembourg, represented by G. Vandersanden of the Brussels Bar, with an address for service in Luxembourg at the Chambers of N. Edon, 2 Rue Goethe, applicant, ν
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by J. Delmoly, a member of its Legal Department, acting as Agent, assisted by R. Andersen of the Brussels Bar, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, defendant,
APPLICATION for a declaration that D r M. cannot be the doctor appointed by the appointing authority to be a member of the Medical Committee established by Article 23 of the Rules on the Insurance of Officials against the Risk of Accident and of Occupational Disease, charging the Commission in addition with delay in the award of the incapacity allowance and therefore claiming default interest; and further claiming, in the reply, a declaration in respect of the method of payment of the fees of the members of the Medical Committee and that the opinion of the Invalidity Committee should be forwarded to the applicant,
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T H E C O U R T (Second Chamber)
composed of: P. Pescatore, President of Chamber, O. Due and F. Grévisse, Judges,
Advocate General: Sir Gordon Slynn, Registrar: J. A. Pompe, Deputy Registrar,
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the appointed by the administration, procedure, the conclusions, submissions pursuant to Article 19. of the Rules on and arguments of the parties may be the Insurance of Officials against the summarized as follows: Risk of Accident and Occupational Disease (hereinafter referred to as "the Rules"). He took the view that the injuries had not yet consolidated and that the applicant should be re-examined I — Facts a year later. At the same time he asked Dr Fromes, who had examined the applicant whilst he was in hospital, to let him have his report and prognosis and to 1. On 3 May 1977 Benoît Suss, an arrange for the applicant to be seen by a official of the European Communities, neurologist of his choice. Dr Fromes was the victim of an assault occasioning examined the applicant on 8 September injuries leading to his admission to 1978 and again in January 1979 but he hospital. He resumed work on 15 July did not forward his certificate until 1977 but was placed on invalidity 26 April 1979. pension as from 1 December 1979 because of the consequences of the assault, namely an eye injury causing disfigurement and injuries to the head In the meantime the applicant had been and knee. examined by a neurologist and an eye specialist. On 30 November 1978 the certificates of those doctors and the applicant's conviction that the permanent 2. On 13 June 1978 the applicant was partial invalidity was more than the examined by Dr M., the doctor minimum of 20% provided for by Article
JUDGMENT OF 14. 7. 1981 — CASE 186/80
20 of the aforesaid rules led him to ask the Rules an allowance at the aforesaid for payment of a provisional allowance. rate and drew his attention to the fact that it was a draft decision by the appointing authority which, subject to Following that request Dr M. wrote to any request he might make for consul- the applicant on 13 February 1979 tation with the Medical Committee, suggesting an examination which did not would after a period of 60 days be take place until 18 May 1979, that is regarded as a formal decision. after the applicant had reiterated his request in reliance then on the certi- ficates of the following doctors : After requesting within the aforesaid period an opinion from the Medical Committee provided for in Article 23, — Dr Placet, of 2 March 1979, the applicant in several letters written between September 1979 and January 1980 challenged both the appointment of Dr M. as the doctor representing the — Dr Loutsch, of 30 March 1979, Commission on the Medical Committee and the method of assessing the multiple invalidity as used by Dr M. The — Dr Goedert, of 10 July 1979, applicant further stated that even in relation to the eye injuries and according to that method the rate ought assessing the permanent partial to be 37%. Subsequently that rate was invalidity at 25%; of accepted by the Commission.
— Dr Hastert, of 3 July 1978 and Finally, on 30 January 1980, the 6 April 1979 Commission stated that it was adhering in relation to the head injury and to the appointment of Dr M. and to its assessing the permanent partial decision to pay the applicant a pro- invalidity at 10%; and finally or visional allowance of 25%. The payment took place on 29 November 1979.
— Dr Fromes, of 26 April 1979, in relation to the knee injury and 3. On 14 February 1980 the applicant assessing the permanent partial lodged a complaint through official invalidity at 15%. channels against those decisions requesting apart from the revocation of the appointment of Dr M. payment of a additional provisional allowance (which After a further examination on the basis was subsequently made) and default of the above-mentioned certificates Dr interest and also the payment of the fees M. in his report of 25 May 1979 assessed of the doctor appointed by him. He a comprehensive figure of 34% further requested that he be sent the full permanent partial invalidity, discounting opinion or the Invalidity Committee in disfigurement which he considered relation to his retirement on invalidity negligible. pension.
On 24 July 1979 the Commission offered The Commission failed to answer within the applicant pursuant to Article 21 of the period of four months and the
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applicant brought the present pro Committee provided for in Articles ceedings on 10 September 1980. 21 and 23 and that the institution is bound to appoint another doctor; 4. During the course of the written — Declare that the delay in awarding proceedings the applicant lodged an the applicant's pecuniary entitlements application for the adoption of interim is attributable to the Commission measures for the replacement of Dr M. alone and consequently order the Commission to pay default interest at By order dated 3 November 1980 the 1 3 % for certain periods. President of the Second Chamber dismissed that application on two grounds : In the reply the applicant claims further that the Court should: (a) the applicant had not succeeded in proving that there was any im — Order the Commission to forward to pending damage seeing that the the applicant the opinion of the protection of his interests was in fact Invalidity Committee; properly ensured by the presence ort the Medical Committee of a doctor — Order the Commission to inform the in whom he had confidence and by doctors on the Medical Committee the appointment of a third expert by other than the one appointed by the mutual agreement, and Commission to which department they should apply for payment of (b) there was no urgent need for action their fees; at that stage because the applicant — Order the Commission to pay the would have the opportunity of costs including those of the bringing an action against any application for the adoption of decision taken by the institution on interim measures. the basis of the Medical Committee's report. The Commission contends that the Court should: In his application for interim measures the applicant claimed that the opinion of — Dismiss the action as inadmissible the Invalidity Committee should be and in any event as unfounded; forwarded to him. In the order that claim was rejected as being irrelevant to — Order the applicant to pay the costs. the present case.
III — Submissions and argu II — C o n c l u s i o n s of t h e parties m e n t s of t h e p a r t i e s
In his application and reply the applicant 1. Composition of the Medical Committee claims that the Court should: The applicant objects to the appointment — Declare that the doctor appointed by of Dr M. to the Medical Committee for the institution pursuant to Articles 18 the following two reasons: and 19 of the Rules cannot, as the medical officer and, indeed, the (a) He drafted the medical report placed doctor approved by the Commission's before the Medical Committee as an insurers, be a member of the Medical appeal tribunal;
JUDGMENT OF 14. 7. 1981 — CASE 186/80
(b) He is the medical officer of, or at negligent. When the applicant started least the doctor approved by, the work again on 15 July 1977 Dr M. ought Commission's insurance company. to have examined him as soon as possible and not postponed the first examination until 13 January 1978; nor ought he then to have decided to see the applicant a year later whilst asking one of his The appointment of Dr M. is therefore colleagues to forward his report and incompatible with the principle of trust prognosis. H e thus delegated specialist which the official ought legitimately to examinations to a doctor who in turn have in his administration and contrary made his report after considerable delay. to the impartiality of the work of the Further, it was the duty of the Medical Committee. defendant's doctor, responsible as he was for pursuing the case since the report of the accident, to note consolidation as and when it took place and to ensure The Commission stresses that the parties that the provisional payments were made are free to choose for the Medical in due time. To that end it would have Committee a doctor in whom they have been advantageous for him to advise the confidence. For its part it was natural to applicant to choose his own qualified appoint Dr M. who knew the applicant's doctors so as to determine the serious- file from the beginning. The Rules do ness of each injury. In forcing the not give any right to object to an applicant on the other hand to go to appointment but the joint choice of the doctors nominated by him, the third doctor ensures the impartiality of Commission's doctor deprived the the Medical Committee. The Medical applicant of any opportunity to influence Committee is not an arbitration tribunal the course of the procedure. or a tribunal at all but a consultative body giving an opinion of a technical nature on the basis of which the appointing authority will take its Finally, the shortcomings in the exam- decision. inations conducted by the defendant's doctor led the applicant subsequently to arrange of his own accord to be re- examined. These belated examinations, Dr M. is not an employee of the the fault of the administration's doctor, insurance company and although he is and necessary if the applicant was not to appointed by the administration with the have to rely solely on the opinions of the approval of the insurers, that is to make doctors delegated or even sub-delegated the subsequent decision of the appointing by the defendant, showed that from authority binding upon the insurers. 15 July 1977 the defendant ought to have paid a provisional allowance in the region of 4 5 % having regard to the consolidation of the injuries which had occurred and the damage to the eye as it was at that date. 2. The award of default interest
For those reasons the applicant claims The applicant alleges that the con- interest at 13% (13.73% in the reply) as sideration given to his case by Dr M. was from the consolidation of each injury.
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The Commission stresses first of all that the applicant has no right to that part of there is no question of a delegation of the report relating to the medical powers to Dr Fromes or to other doctors discussion. and that it is for the applicant according to the Rules to supply the necessary medical reports. The Commission does not deny a certain delay on the part of Dr Fromes but states that he gave his 4. Fees of the members of the Medical certificates within the period laid down Committee by Dr M. for the further examination and that period was justified by the difficulty of forecasting the date when the injuries would consolidate as In his reply the applicant says that it revealed by the medical certificates with was intolerably ambiguous for the the exception of the two certificates Commission to write in a letter sent to which had been given later on the the doctor appointed by the applicant applicant's own initiative. According to that " D r M. will also inform you of the the Rules, the degree of invalidity is " procedure to be followed for settlement established after the consolidation of all of your fees". Assuming that Dr M. is the injuries and not that of each one of the medical officer of the insurers the ambiguity lies in the further hypothesis them in turn. that is for the insurers to settle the fees. It is for the Commission to specify the relevant department since under the Rules the Commission is responsible for 3. Production of the opinion of the the fees. Invalidity Committee
The applicant states in the reply that The Commission points out that the although that claim does not figure in his claim raises a fresh issue and that the application because of an omission it was fees are paid directly by the institution. an integral part of the previous complaint through official channels and of the application for the adoption of interim measures. Without the opinion it would not be possible to challenge, if IV — Oral procedure necessary by legal proceedings, the placing of the applicant on invalidity pension.
At the hearing on 18 June 1981 Benoît Suss, represented by G. Vandersanden, The Commission stresses that there is no and the Commission, represented by its claim in the application for production Legal Adviser, J. Delmoly, acting as of that file, that the order on the Agent, assisted by R. Andersen, application for the adoption of interim presented oral argument. measures rejected that issue as irrelevant to the present proceedings, that the file is available to the Medical Committee, that the opinion itself was forwarded to the The Advocate General delivered his applicant and that according to the Rules opinion on 9 July 1981.
JUDGMENT OF 14. 7. 1981 — CASE 186/80
Decision
1 By application lodged at the Court Registry on 10 September 1980 Benoît Suss, a retired official of the European Communities, brought an action claiming on the one hand a declaration that the doctor appointed by the Commission cannot be a member of the Medical Committee established under Article 23 of the Rules, adopted under Article 73 of the Staff Regu- lations, on the Insurance of Officials against the Risk of Accident, (here- inafter referred to as "the Rules"), for the purpose of determining the degree of the applicant's permanent invalidity, and on the other hand charging the Commission with delay in awarding the invalidity allowance and thus claiming default interest. In the reply the applicant's further claims covered the method of payment of the fees of the members of the Medical Committee and the production to him of the opinion of the Invalidity Committee in relation to his retirement.
2 The applicant, who was the subject of an assault in May 1977 and was placed on invalidity pension as from 1 December 1979, was examined in June 1978 by the doctor appointed by the Commission pursuant to Article 19 of the Rules in order to determine the consequences of the assault. That doctor was also approved by the insurance company with which the Commission collectively insured its staff. Because the injuries had not consolidated the said doctor decided to re-examine the applicant a year later and asked the practitioner who had examined him while in hospital to make an additional examination. The report of that examination was not forwarded until 26 April 1979. In November 1978 the applicant asked for a provisional allowance pursuant to the last paragraph of Article 20 of the Rules.
3 After receiving the medical certificates in relation to the various injuries the doctor appointed by the Commission re-examined the applicant on 18 May 1979 and assessed the total permanent partial invalidity at 34% which was subsequently increased to 37%. On that basis the Commission made a draft decision which was forwarded to the applicant in July 1979 pursuant to Article 21 of the Rules. The applicant objected to that draft and requested an opinion from the Medical Committee as provided by Article 23 and the
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Commission then appointed the doctor whom it had already appointed under Article 19, to be a member of that committee. The Commission wrote to the doctor appointed by the applicant saying that the Commission's doctor would inform him of the procedure to be followed for the payment of his fees.
4 In November 1979 the Commission paid the applicant a provisional allowance calculated on the basis of a rate of 25%. After the present action was brought the Commission paid him an additional allowance of 12%, which brought the provisional allowance to the same amount as that proposed to the applicant in the draft decision.
5 During the course of the written procedure the applicant made an application for the adoption of interim measures with a view to the replacement of the doctor appointed by the Commission. By order of 3 November 1980 the President of the Second Chamber of the Court dismissed that application on the twofold ground that the applicant had not succeeded in proving that there was any impending damage and that there was no urgent requirement for action to be taken at that stage because the applicant would be able to bring an action against any decision taken by the institution on the basis of the Medical Committee's report. The application for the adoption of interim measures also asked for the opinion of the Invalidity Committee to be forwarded to the applicant. The order dismissed that claim as being irrelevant to the present case.
The composition of the Medical Committee
6 The applicant claims that the doctor appointed by the Commission should be excluded as a member of the Medical Committee on the ground that his appointment is incompatible with the principle of the protection of legitimate expectation and contrary to the impartiality of the Medical Committee on the double ground that it was he who drafted the report challenged by the applicant and that he is the medical officer of, or, at least, the doctor approved by, the insurance company. On the latter issue the Commission explained that it had reached an agreement with the insurance company as to the list of doctors to whom the examinations provided for by the Rules might be entrusted.
JUDGMENT OF 14. 7. 1981 — CASE 186/80
7 The Rules made pursuant to Article 73 of the Staff Regulations determine the conditions governing cases which may arise in applying the scheme of insurance against the risk of accident and of occupational disease as follows :
"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 findings of the doctor(s) appointed by the institutions; and
— Where the official so requests, after consulting the Medical Committee referred to in Article 23.
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 proceeding, 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."
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8 As the Court has already stressed in its judgment of 21 May 1981 (Case 156/80, Morbelli [1981] ECR 1357) the Rules are intended to allow officials to be examined twice, first by doctors enjoying the confidence of the institution and, in the event of disagreement, by a medical committee to which both parties appoint a doctor enjoying their confidence.
9 The Rules provide no right of objection to an appointment because as far as officials are concerned their interests are safeguarded by the presence on the Medical Committee of a member enjoying their confidence and by the appointment of the third member of the committee by agreement between the doctor enjoying the confidence of the official and the member appointed by the institution.
10 For the same reason the institution cannot be denied the freedom to appoint the doctor whom it designated pursuant to Article 19 of the Rules and who, as such, has already been concerned with the state of health of the official. In the same way moreover there is nothing to prevent the official from appointing a doctor who has already at the official's request issued certifi cates in relation to the disability in question.
11 Further, it is necessary to stress that the appointment by the Commission of a medical officer who is also approved by the insurance company, whilst being in the interests of relations between the insurance company and the Commission, can in no way adversely affect the interests of the official.
12 It follows from all those considerations that the applicant's claim in respect of the composition of the Medical Committee must be rejected.
T h e c l a i m for d e f a u l t i n t e r e s t
13 The applicant claims that interest calculated as from the consolidation of each of the injuries should be paid on the allowance. In that respect he alleges that the course of the procedure determining the rate of permanent partial invalidity has been unduly long and that the Commission is responsible for this state of affairs because of the conduct of the doctor whom it appointed. H e ought to have pursued the case so as to be able to
JUDGMENT OF 14. 7. 1981 — CASE 186/80
determine the consolidation of the various injuries as and when it occurred. On the contrary the doctor decided to postpone his final examination to the following year and delegated specialist examinations to another doctor who, it is alleged, made his report after considerable delay. It is also claimed that the way in which the case was pursued was also open to criticism inasmuch as the applicant had to go to doctors nominated by the doctor appointed by the Commission and those examinations were incomplete, thus forcing the applicant to arrange at a later date for further examinations on his own account.
1 4 It should be stressed first of all that according to Article 20 of the Rules in question "the decision defining the degree of invalidity shall be taken after the official's injuries have consolidated", and the second paragraph thereof provides that "where it is impossible to define the degree of invalidity after medical treatment is terminated, the findings of the doctor(s) referred to in Article 19 or, where appropriate, the report of the Medical Committee referred to in Article 23 must specify a deadline for reviewing the official's case."
15 It follows from those provisions that entitlement to payment of the invalidity allowance does not arise as and when each of the injuries has consolidated but only when all the injuries have consolidated. It is for that very reason that the last paragraph of the aforesaid article gives a right to a provisional allowance.
16 It is further appropriate to recall that under the insurance provided for by the Staff Regulations the compensation payable in the event of invalidity is in the nature of a flat-^ate award assessed on the basis of the lasting effects of an accident. Interest may thus be claimed only where the person entitled to that award is able to establish that payment thereof was improperly delayed by the administration.
17 That is not so in the present case. The medical certificates produced reveal the considerable difficulty in determining the date when the applicant's injuries consolidated and therefore justify the decision of the Commission's medical officer to re-examine the applicant a year after the first examination.
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Moreover, the applicant does not seem to have challenged that decision at the time. The report sought from the doctor who had examined the applicant when he was in hospital was received by the Commission's medical officer before the expiry of that period of one year. After re-examining the applicant the doctor gave his final report to the Commission which, also without delay, adopted a draft decision pursuant to Article 21 of the Rules.
18 The Court must, therefore, find that the claim for interest must also be dismissed.
Additional claims made in the reply
19 The claim for production of the opinion of the Invalidity Committee relates, according to the explanations given, not to the opinion properly so called, which has already been forwarded to the applicant, but to the report of the committee as a whole. It is also apparent from the file that the report is available to the Medical Committee and that the reason for the claim is the applicant's wish to be in a position to challenge, if necessary by legal action, his retirement on invalidity pension. Having regard to the delay in making that claim and the fact that it has no connexion with the other claims in the present action it must be dismissed as inadmissible.
20 As regards the claim in relation to the fees of the members of the Medical Committee, the applicant describes the letter in which the Commission invited the applicant's doctor to apply for settlement of his fees to the doctor appointed by the Commission who was at the same time the insurers' medical officer, as "intolerably ambiguous". In writing this letter, it is said, the Commission gave the impression that it was for the insurers to settle the fees. The Commission ought therefore to have named its own department responsible for payment.
21 Even if that claim had not been late it would in any event have lost its purpose after the Commission's rejoinder in which it clearly showed that the institution pays the fees directly.
JUDGMENT OF 14. 7. 1981 — CASE 186/80
Costs
22 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.
23 Save on one issue, settled by the Commission in the course of the proceedings by an additional provisional payment of 12%, the applicant has failed in all his submissions.
24 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.
Pescatore Due Grévisse
Delivered in open court in Luxembourg on 14 July 1981.
A. Van Houtte P. Pescatore Registrar President of the Second Chamber