C-186/80
ECLI:EU:C:1980:258
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ORDER OF T H E PRESIDENT O F T H E C O U R T O F 3 NOVEMBER 1980 »
Benoît Suss v Commission of the European Communities
Case 186/80 R
In Case 186/80 R
BENOÎT SUSS, a retired official of the Commission of the European Communities, residing in Luxembourg, represented by Ernest Arendt of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 34 Rue Philippe-II,
applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by J. Delmoly, a member of its Legal Department acting as Agent, assisted by R. Anderson 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 the purpose of securing, by means of an interim order, a modification of the composition of the Medical Committee set up in pursuance of Article 23 of the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease, as well as the notification to the applicant of the conclusions of the Invalidity Committee referred to in Article 9 of the Staff Regulations of Officials of the European Communities and of a detailed statement of the calculation of his invalidity pension,
T H E PRESIDENT OF THE SECOND CHAMBER, taking the' place of the President of the Court pursuant to Article 96 (1) of the Rules of Procedure,
makes the following
1 — Language of the Case: French.
ORDER OF 3. 11. 1980 — CASE 186/80 R
ORDER
Facts and previous history of the dispute
1 The applicant, a retired official of the European Communities, was assaulted on 3 ¡May 1977. The assault produced serious after-effects making him unfit to perform his duties. Consequently the appointing authority (hereinafter referred to as "the Institution") initiated two procedures provided for by the Staff Regulations of Officials of the European Communities: on the one hand, the procedure of Article 78 with a view to the award of an invalidity pension; on the other hand, the procedure of Article 73 with a view to the applicant's benefiting under the insurance against the risk of occupational disease and of accident which, as provided for in the latter article, is dealt with by rules drawn up by common agreement of the institutions of the Communities after consulting the Staff Regulations Committee (hereinafter referred to as "the Rules").
2 The Institution, by a decision of 4 May 1979, referred the applicant's case to the Invalidity Committee, the composition of which was in accordance with the provisions of Article 7 of Annex II to the Staff Regulations. On 12 November 1979 the committee found that the applicant suffered from total invalidity making it impossible for him to perform the duties corresponding to a post in his grade. On 28 November 1979 the Institution decided to retire the applicant and to award him an invalidity pension as from 1 December 1979. At the same time the conclusions of the Invalidity Committee in the latter's report were communicated to the applicant as provided for in the second paragraph of Article 9 of Annex II to the Staff Regulations.
3 At the same time as that procedure was put into effect, the Institution initiated under the Rules adopted pursuant to Article 73 of the Staff Regu- lations the procedure for determining the compensation provided for in the event of accident. On 13 June 1978 the applicant was examined for this purpose by Dr De Meersman, he doctor appointed by the Institution pursuant to Articles 18 and 19 of the Rules. The medical expert found that at that time the injuries were not yet stabilized and decided to re-examine the applicant again in a year's time. On 18 May 1979 the applicant was re- examined by the same doctor who, being of the opinion that the injuries were now stabilized, drew up on 25 May 1979 a report in which he found that the applicant suffered from partial permanent invalidity within the
SUSS v COMMISSION
meaning of Article 73 (2) (c) of the Staff Regulations and recommended that the total degree of invalidity in his case be fixed at 34%.
4 On 24 July 1979 the Institution notified the applicant, as provided for in Article 21 of the Rules, of the draft decision defining the degree of partial permanent invalidity as 34%, and drew his attention to the fact that, if he disagreed, he was entitled to ask for the opinion of the Medical Committee provided for in the second paragraph of Article 21 and in Article 23 of the Rules.
5 The applicant had reservations concerning the draft and accordingly asked for a Medical Committee to be set up in accordance with the provisions quoted. He appointed forthwith a doctor in whom he had confidence to be a member of the committee. At the same time the Institution by a letter dated 23 October 1979 informed the applicant that it would pay him at once, by way of an advance, a lump sum of BF 2 343 478 corresponding to a degree of partial permanent invalidity of 2 5 % , pending a decision as to the definitive percentage.
6 The Institution itself appointed Dr De Meersman to be a member of the Medical Committee but the applicant objected to the appointment. In addition he called for the communication to the doctor whom he had appointed of the medical report relating to the award to him of an invalidity pension.
7 The Institution by a letter dated 30 January 1980 confirmed the appointment of Dr De Meersman and gave the reasons for its choice. It stated that the report of the Invalidity Committee would be available for members of the Medical Committee but pointed out that, as provided for in Article 25 of the Rules, a decision taken pursuant to Article 78 of the Staff Regulations is in no way to prejudge the application of Anicie 73 thereof.
8 As a result of that letter the applicant lodged a complaint through official channels under Article 90 (2) of the Staff Regulations, in which he claims that the Institution should:
— Annul the appointment of Dr De Meersman as a member of the Medical Committee to be set up and appoint an independent doctor in his place;
ORDER OF 3. 11. 1980 — CASE 186/80 R
— Pay him a supplementary advance corresponding to a degree of partial permanent invalidity of 20% over and above the lump-sum payment already received;
— Pay him default interest at 13% for certain periods on the amounts received and to be received; and finally;
— Forward to him the complete conclusions of the Medical Committee as well as a detailed statement of the calculation of his pension.
9 Since the Institution failed to deal with this complaint the applicant lodged an application on 10 September 1980 for annulment of the implied decision rejecting the complaint through official channels resulting from the failure of the Commission to reply for more than four months to it. In his application the applicant claims that the Court should :
— Declare that the medical expert appointed by the Institution pursuant to Articles 18 and 19 of the Rules cannot be a member of the Medical Committee provided for by Articles 21 and 23 of those Rules and that the Institution is bound to appoint another doctor;
— Order the Commission to pay a supplementary advance corresponding to a degree of partial permanent invalidity of 12%;
— Declare that the delay in calculating the applicant's pecuniary entitlements is attributable to the Commission alone and consequently order the Commission to pay default interest at 13%, for certain periods.
io By an application dated 8 October 1980, made pursuant to Article 83 of the Rules of Procedure, the applicant made an application to the Court for the adoption of interim measures with the aim of obtaining a declaration from the Court:
— That the medical expert appointed pursuant to Articles 18 and 19 of the Rules may not be a member of the Medical Committee provided for by Articles 21 and 23 thereof and that consequently the Institution must appoint another doctor within one week;
SUSS v COMMISSION
— That the Invalidity Committee must communicate to the applicant the full text of its report in accordance with Article 9 of Annex II to the Staff Regulations and also a detailed statement of the calculation of his invalidity pension provided for by Article 40 of Annex VIII.
1 1 By a document lodged on 17 October 1980 the Commission submitted its written observations on the application for the adoption of interim measures. In its observations the Commission puts forward an objection of inadmissibility as regards both the application for the adoption of interim measures and also one of the heads of claim. Furthermore it denies that the applicant has in fact stated the circumstances giving rise to urgency and the grounds establishing a prima facie case for the interim measures applied for, as required by Article 83 (2) of the Rules of Procedure.
i2 Since the parties have fully argued their cases in their written pleadings and have produced all the documents of which a knowledge is necessary to decide on the application for the adoption of interim measures it has not appeared necessary to order a preparatory inquiry or for the parties to present oral argument.
Decision
I — The admissibility of the application for the adoption of interim measures
i3 The Commission first of all submits that the application for the adoption of interim measures is inadmissible because it is connected with a main application which also appears to be prima facie inadmissible. That inadmissibility is due to the fact that the latter application is directed against the implied decision rejecting the applicant's complaint resulting from the Commission's failure to reply to the complaint through official channels lodged by the applicant on 14 February 1980 and not against the letter of 30 January 1980 which is in fact the act adversely affecting him within the meaning of Article 90 of the Staff Regulations.
ORDER OF 3. 11. 1980 — CASE 186/80 R
H This objection cannot be upheld at this stage of the proceedings. The letter of 30 January 1980 is in fact part of a dispute between the applicant and the Institution which has not yet been settled, so that it appears to be uncertain whether the document can be classified as an act adversely affecting the official within the meaning of Article 90 of the Staff Regulations of Officials of the European Communities. This question, which goes to the substance of the case, can only be answered by the Court which adjudicates upon the main application.
is In the alternative the Commission puts forward an objection of inadmissibility with regard to the applicant's second claim, to the effect that the full report of the Invalidity Committee, which decided his case, and the statement of the calculation of his pension entitlements should be communicated to him. The Institution takes the view that that report forms part of a procedure separate from that envisaged by Article 73 of the Staff Regulations and that it therefore has no connexion with the present dispute. Furthermore it points out, and the attention of the applicant was drawn to this in the letter of 30 January 1980, that the members of the Medical Committee, once it has been set up, will have the opportunity to ask for the complete file of the Invalidity Committee to be forwarded to them. In this respect the claim is therefore premature.
i6 On this point the Commission's objection must be upheld. It should first of all be stressed that, although the communication of the file of the Invalidity Committee is mentioned in the complaint through official channels of 14 February 1980, it is not one of the claims set out in the main application. There is moreover no doubt that at this stage the communication of the said file is not material since the Institution does not object to its being communicated to the Medical Committee once that committee has been set up. This head of claim must therefore be struck out as irrelevant and in any event premature.
i7 Consequently the consideration of the application for the adoption of interim measures must be limited to the measures sought by the applicant relating to the appointment of the first member of the Medical Committee provided for by Article 23 of the Rules.
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II — T h e a p p o i n t m e n t of the first member of the Medical Committee
is The applicant submits that Dr De Meersman, appointed by the Institution to be a member of the Medical Committee, the composition of which is determined by Article 23 of the Rules, has already prejudged the issue because he has acted as adviser to the Institution, pursuant to Articles 18 and 19 of the Rules, during the earlier stage of the matter. Since the Medical Committee performs the function of an "appeal court" as far as Dr De Meersman's expert report is concerned, he cannot himself be a member of the committee; it is a matter of principle that " N o one may be judge in his own cause". Furthermore Dr De Meersman is at the same time medical officer of the insurance company with which the Commission has insured its staff. There is therefore a double incompatibility in the case of this doctor and the applicant asks the Court to acknowledge this so as to cause the institution to appoint another doctor who may give a completely independent opinion.
i9 The Commission considers that this request is unfounded. In its view the appointment of Dr De Meersman was essential for the very good reason that he had already, by means of the expert report previously drawn up, acquired a thorough knowledge of the applicant's state of health. The fact that the Commission's choice has been approved by the insurers is explained by the legitimate concern to make the decision to be taken applicable to them. Furthermore the applicant fails to understand the principles governing the composition of the Medical Committee in question. Pursuant to Article 23 of the Rules both the Institution and the official concerned are each entitled to appoint a doctor in whom each has confidence. Each party must be free to choose the doctor whom it appoints to represent it; the impartiality of the Medical Committee, viewed as a whole, is guaranteed inasmuch as each of the parties is accorded an equal right of choice and the two doctors thus appointed together choose by agreement a third doctor whose independence vis-à-vis the parties is thus ensured.
20 Article 83 (2) of the Rules of Procedure provides that applications for the adoption of interim measures must inter alia "state .. . the circumstances giving rise to urgency and the factual and legal grounds establishing a prima facie case for the interim measures applied for".
ORDER OF 3. 11. 1980 — CASE 186/80 R
2i T h e application does not meet either of these two requirements.
22 O n the one hand, the applicant has not succeeded in proving that there is any impending damage following t h e appointment of the Institution's expert, seeing that the protection of his interests is in fact properly ensured by the presence on the Medical Committee of a doctor in whom he has confidence and by the fact that the third expert must be appointed by agreement between the doctor in whom the applicant has confidence and the member appointed by the Institution.
23 O n the other hand, there is no urgent requirement for action to be taken at this stage whereas the applicant, if he were ultimately to take the view that his rights and interests have, for whatever reason, been prejudiced, will be able to bring an action against any decision taken by the Institution on the basis of the Medical Committee's report.
24 Consequently this head of claim must also be rejected.
O n those grounds,
T H E PRESIDENT OF THE SECOND CHAMBER, taking the place of the President of the Court pursuant to Article 96 (1) of the Rules of Procedure,
hereby orders as follows :
1. T h e application for the adoption of interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 3 November 1980.
A. Van Houtte P. Pescatore Registrar President of the Second Chamber