C-257/81
ECLI:EU:C:1983:2
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JUDGMENT OF 12. 1. 1983 — CASE 257/81
matter of course, the cause of the paragraph of Article 78 of the Staff invalidity. Regulations, where the official in question did not request a declaration Consequently, the administration that his invalidity had been caused by cannot be criticized for determining an occupational disease within the the retirement pension of an official meaning of the second paragraph of in accordance with the third that article.
In Case 257/81
K., a former Principal Administrator at the Council of the European Communities, resident in Rixensart, Belgium, represented by Georges Van- dersanden of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Janine Biver, applicant, v
COUNCIL OF THE EUROPEAN COMMUNITIES, represented by R. O. Dalcq of the Brussels Bar, with an address for service in Luxembourg at the office of Douglas Fontein, Director of Legal Affairs at the European Investment Bank, defendant,
APPLICATION for the annulment of the decision of the Secretary General of the Council, dated 13 July 1981, refusing the applicant the benefit of the second paragraph of Article 78 of the = Staff Regulations of Officials of the European Communities,
T H E C O U R T (Third Chamber)
composed of U. Everling, President of Chamber, P. Pescatore and Y. Galmot, Judges,
Advocate General: Sir Gordon Slynn Registrar: H. A. Rühi, Principal Administrator
gives the following
K. v COUNCIL
JUDGMENT
Facts and Issues
The facts of the case, the course of The Invalidity Committee, subsequently the procedure and the conclusions, empanelled, decided on 24 October submissions and arguments of the parties 1980, after examining his medical file may be summarized as follows: and after a specialized neurological examination, that he was suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career I — F a c t s and w r i t t e n p r o c e d u r e bracket.
On 28 November 1980 the Secretary General of the Council therefore decided By a decision dated 8 November 1973, to retire him with effect from 1 K., the applicant, was appointed to December 1980 and recognized his right Grade A 5 as a Principal Administrator to an invalidity pension under Article 53 at the Council of the European of the Staff Regulations and Articles 13 Communities, with effect from 1 and 14 of Annex VIII thereto. This November 1973. decision was communicated to the applicant on the same day.
Because of a deterioration in the state of his health from 1977 onwards he On 10 February 1981 K. submitted a underwent medical treatment of various complaint under Article 90 (2) of the types including neurological treatment, Staff Regulations against the decision as well as a number of operations. dated 28 November 1980, claiming that his pension should be fixed at 70% of his basic salary in accordance with the second paragraph of Article 78 of the On 17 January 1980, when K. had had Staff Regulations because the problems 393 ½ days sick leave between 10 which had led to the recognition of his January 1977 and 11 January 1980, the invalidity had arisen in connection with Council decided to apply the provisions the performance of his duties. That of Article 59 of the Staff Regulations, provision states as follows: the fourth subparagraph of paragraph (1) of which states: "Where the invalidity arises from an accident in the course of or in connection with the performance of his "The appointing authority may refer to duties, from an occupational disease, the Invalidity Committee the case of any from a public-spirited act or from risking official whose sick leave totals more than his life to save another human being, the twelve months in any period of three invalidity pension shall be 70% of the years." basic salary of the official."
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On 13 July 1981 the Secretary General II — C o n c l u s i o n s of t h e p a r t i e s of the Council rejected the applicant's complaint on the ground that the The applicant claims that the Court Invalidity Committee had not declared should: that his total permanent invalidity had arisen from an occupational disease and 1. Declare the application admissible; therefore the amount of his invalidity pension had been fixed in accordance 2. Annul the decision of the Secretary with the third paragraph of Article 78 of General of the Council dated 13 July the Staff Regulations. That provision 1980 refusing the applicant the benefit states that where the invalidity is due to of the second paragraph of Article 78 some cause other than those specified in of the Staff Regulations of Officials the second paragraph of Article 78 "the of the European Communities; invalidity pension shall be equal to the retirement pension to which the official 3. Order the defendant to pay the costs. would have been entitled at the age of 65 years if he had remained in the service The Council contends that the Court until that age". should: 1. Declare the application inadmissible and, in any event, unfounded; By an .application registered at the Court on 21 September 1981, K. instituted 2. Order the applicant to pay the costs. the present proceedings against that rejection, which was notified to him on 13 July 1981. III — Submissions and argu- m e n t s of t h e p a r t i e s
In the light of these proceedings and in 1. Admissibility the hope of discovering a solution quickly without having to wait for the The Council, while recognizing that all outcome thereof, the Council referred procedural time-limits have been adhered the case back to the Invalidity to, contends that the applicant has no Committee to resolve certain matters of right to bring an action since he failed to a Medical nature which were unclear. In follow the proper procedure for two successive reports, dated 21 establishing the existence of an occup- December 1981 and 25 January 1982, ational disease. the Committee stated that in its opinion there was on the one hand a causal Under the Rules on the Insurance of relationship between the work (or the Officials of the European Communities working conditions) of the applicant and against the Risk of Accident and of the .deterioration in his state of health, Occupational Disease the official "must but that on the other hand his invalidity submit a statement to the administration did ¡not arise from an occupational of the institution to which he belongs disease. within a reasonable period following the onset of the disease or the date on which it was diagnosed for the first time", even Upon hearing the report of the Judge- where "the symptoms of the disease Rapporteur and the views of the allegedly caused by his occupation Advocate General, the Court (Third become apparent after the termination of Chamber) decided to open the oral his service". The administration must procedure without any preparatory hold an inquiry in the course of which it inquiry:. may obtain the opinion of one or more
K. v COUNCIL
doctors (Article 17). On the basis thereof The applicant in his reply disagrees with the appointing authority is to prepare a the Council's view that he did not follow draft decision and notify it and the the correct procedure for establishing the findings of the doctor or doctors existence of an occupational disease. consulted to the person concerned. Within a period of 60 days the person concerned may request that an ad hoc medical committee deliver its opinion (Article 21). In the present case, as the applicant has not followed this The procedure for obtaining :he procedure, he cannot claim to have an allowance payable in respect of an "occupational disease". occupational disease under Article 73 of the Staff Regulations and the procedure for obtaining an invalidity pension, in particular in respect of an occupational disease, under Article 78 of the Staff Regulations are distinct and independent, as the Court stated in its judgment of 15 January 1981 (Case The Council states that the rules 731/79, B. v European Parliament [1981] governing occupational diseases and ECR 107). The rules for obtaining an those relating to invalidity pensions invalidity pension for an occupational differ both as regards requirements and disease under the second paragraph of consequences. Under the former rules Article 78 should not be subjected to the the official is entitled to a lump-sum procedural rules for obtaining an allowance if his illness amounts to an allowance for an occupational disease "occupational disease" and leads to under Article 73. permanent incapacity, whether it be partial or total. On the other hand, under the latter rules the official is suspended and receives an invalidity pension if the illness, whether occu- pational or not, leads to total permanent invalidity preventing him from per- 2. Substance forming the duties corresponding to a post in his career bracket. Furthermore, while under the rules governing invalidity pensions the institution auto- matically declares the official unable to perform his duties, under the rules According to the applicant, two questions governing occupational diseases it is for should be examined in turn: first, the official himself to give notice of the whether the mental problems producing occupational nature of his illness. his total permanent invalidity could Consequently, the second paragraph of amount to an occupational disease in a Article 78 of the Staff Regulations legal sense, and secondly, if the answer presumes the prior recognition of an to the first question is in the affirmative, occupational disease at the request of the whether there was a sufficient causal official, which may be achieved only by relationship in law between his mental means of the procedure laid down in the problems and the harassment suffered in rules previously cited, that is to say by the performance of his duties at the recourse to an ad boc medical committee Council. The replies to both questions different from the Invalidity Committee. should be in the affirmative.
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As regards the first question, Article 3 of can be established only by the ad hoc the Rules on the Insurance of Officials medical committee, as the Court of the European Communities against recognized in its judgment of 13 July the Risk of Accident and of Occup- 1972 (Case 29/71 Luigi Vellozzi v ational Disease is based on a mixed Commission of the European Communities system of recognition of occupational [1972] ECR 513). Furthermore, in such diseases, that is to say that it considers to cases the Court may only examine be occupational diseases not only whether the proper procedure has been diseases contained in the European List followed and may not consider matters of Occupational Diseases but also any of a purely medical nature.
Finally, even disease or aggravation of a pre-existing on the assumption. that the facts stated disease "if it is sufficiently established by the applicant could be established — that such disease or aggravation arose in and the Council would question this — it the course of or in connection with the would not follow that his pre-existing performance by the official of his duties illness was aggravated while he was per- with the Communities". The latter forming his duties in the Communities' category includes illness of a mental service and that such aggravation arose nature. in the course of or in connection with the performance of those duties.
It is not sufficient that the performance of his work was simply one factor which, together with others, aggravated his As regards the second question, there are condition, as this is an occupational risk good reasons for recognizing that the which all officials must accept. applicant's nervous troubles arose in the course· of his employment at the Council and that therefore they should be regarded as an occupational disease In his reply the applicant states that a within the meaning of the second distinction must be drawn between the paragraph of Article 78 of the Staff medical aspect and the legal aspect of an
Regulations. In that connection the occupational disease. The Invalidity applicant alleges that he was the victim Committee, when it considered the case over a number of years of various acts of for the second time with a view to vexatious interference on the part of the deciding whether the invalidity was administration, including a threat to caused by an occupational disease, transfer him to the Official Publications accepted that the conditions for the Office in Luxembourg and to write an existence of such a disease were met by unfavourable staff report about him. recognizing that there was a causal Those events gradually affected his relationship between the applicant's work
mental equilibrium. It is apparent, inter (or working conditions) and the dete- alia, from the report of the Invalidity rioration in his state of health. If the Committee that the working atmosphere Committee, when considering the matter and the "hierarchical context" were the for the third time, found, in its report direct and essential cause of the dated 25 January 1982, that the appearance of the nervous troubles invalidity did not arise from an occu- which gradually resulted in his invalidity. pational disease, then that finding is based not on medical considerations but on considerations of legal interpretation, since the Committee took the erroneous view that it could not go outside the The Council, in its defence, states that diseases enumerated in the standard list. the existence of an occupational disease In any case, the applicant states that the
K. v COUNCIL
atmosphere and working conditions in As. a. matter of law, the Council is of the the service of the Communities were the opinion that in order to be able to speak sole factors which led to the deterio- of an occupational disease it is necessary ration in his state of health. not only that the illness should arise in the course of or by reason of the per- The Council observes in its rejoinder that formance of duties in the service of the it is not for the parties to substitute European Communities but also that the themselves for the Medical Committee performance of those duties should be provided for in the Rules on the the principal or predominant cause, that Insurance of Officials of the European is to say, the essential circumstances Communities against the Risk of which gave rise to the disease or aggra- Accident and of Occupational Disease. vation thereof. In this case, the adverse development of the applicant's patho- In that regard, the Council maintains logical predisposition was due not to the that the Invalidity Committee was not working environment but to the entitled to decide on the existence of an difficulties which he experienced in his occupational disease. When the Council relations with others. referred the matter back to the Committee after the present action had been brought the Committee's function was to inform it unofficially whether it IV — O r a l p r o c e d u r e was likely that the applicant's allegations as to the causal relationship between his work (or working conditions) and the At the sitting on 21 October 1982 the deterioration in his condition were true. parties presented oral argument. In any event, the Council contests the suggestion that the Invalidity Committee acknowledged that the conditions for the The Advocate General delivered his existence of an occupational disease were opinion at the sitting on 18 November met. 1982.
Decision
1 By application lodged at the C o u r t Registry on 21 September 1981, K., a former Principal Administrator of the Council of the European Communities, b r o u g h t an action for the annulment of the decision of the Secretary General of the Council dated 13 July 1981 refusing him the benefit of the second p a r a g r a p h of Article 78 of the Staff Regulations of Officials of the E u r o p e a n Communities. According to that provision, the rate of the invalidity pension for an official suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket is to be 7 0 % of the basic salary of the official where the invalidity arises, inter alia, from an occupational disease.
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2 The applicant, who was a Principal Administrator (Grade A 5) at the Council from November 1973, underwent medical treatment of various types from 1977, including neurological treatment, as well as a number of operations. In view of the fact that he had had 393Vi days of sick leave between 10 January 1977 and 11 January 1980, the Council decided, on 17 January 1980, to refer the matter to the Invalidity Committee under the fourth subparagraph of Article 59 (1) of the Staff Regulations.
3 On 24 October 1980 the Invalidity Committee stated, after examining the medical file and after a specialized neurological examination, that the applicant was suffering from "total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket".
4 By a decision dated 28 November 1980 the Secretary General of the Council retired the applicant with effect from 1 December 1980 in accordance with Article 53 of the Staff Regulations.
5 On 10 February 1981 the applicant submitted a complaint under Article 90 (2) of the Staff Regulations, claiming that his pension should be fixed at 70% of his basic salary in accordance with the second paragraph of Article 78 of the Staff Regulations because the problems which had led to the recognition of his invalidity had arisen in connection with the performance of his duties.
6 That complaint was rejected by the Council in its decision of 13 July 1981 — which is the subject of the present application — on the ground that the Invalidity Committee had not declared that the total permanent invalidity of the applicant had arisen from an occupational disease and therefore the amount of his invalidity pension had been fixed in accordance with the third paragraph of Article 78 of the Staff Regulations. That provision states that where the invalidity is due to some cause other than those specified in the second paragraph of Article 78 the invalidity pension is to be equal to the retirement pension to which the official would have been entitled at the age of 65 years if he had remained in the service until that age.
? In view of the application to the Court and in the hope of discovering a solution quickly, the Council twice referred the matter back to the Invalidity Committee. In a second report dated 21 December 1981 the Committee
K. v COUNCIL
stated that there was in fact a causal relationship between the work or working conditions and the deterioration in the applicant's state of health but that his invalidity had not arisen from an occupational disease.
8 The third report dated 25 January 1982, however, revealed a difference of opinion amongst the doctors. While two members of the Committee considered that the applicant's invalidity had not resulted from an occu- pational disease, the third member stated that the applicant was not suffering from an occupational disease contained in the list of occupational diseases giving rise to compensation (standard list 503). Furthermore, it is clear from the evidence before the Court that two versions of this report were written and that the first, also signed on 25 January 1982, but subsequently withdrawn, stated that, in the unanimous opinion of all three doctors, although there was a relationship between the applicant's working conditions and the deterioration in his state of health, the invalidity did not arise from an occupational disease contained in the above-mentioned list of such diseases.
9 The Council submits first that the applicant has no right to bring an action since he did not follow the proper procedure for establishing the existence of an occupational disease in accordance with 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 Insurance Rules"). According to those rules, the official must submit a statement concerning the disease to the institution within a reasonable period following the onset of thereof or the date on which it was diagnosed for the first time. The institution will then conduct a medical inquiry and notify its draft decision to the official who may then request the opinion of an ad hoc medical committee.
10 That submission must be rejected since the Insurance Rules do not apply to this case. In fact they were adopted to give effect to Article 73 of the Staff Regulations, which relates to insurance against the risk of occupational disease and of accident, whereas the present proceedings concern Article 78 of the Staff Regulations, relating to invalidity pensions, which are governed by the pension provisions contained in Chapter 3 ("Pensions") of Title V of the Staff Regulations. As the Court stated in its judgment of 15 January 1981 (Case 731/79 B. v European Parliament [1981] ECR 107), a comparison of
JUDGMENT OF 12. 1. 1983 — CASE 257/81
Articles 73 and 78 of the Staff Regulations indicates that the benefits available under the two provisions are different and independent of one another. That view is confirmed by Article 25 of the Insurance Rules, which states that recognition of partial or even total permanent invalidity pursuant to those rules "shall in no way prejudice application of Article 78 of the Staff Regulations and vice versa".
1 1 It therefore follows that findings as to the existence of total permanent invalidity preventing the official from performing the duties corresponding to a post in his career bracket and as to the cause of such invalidity should be made in accordance not with the Insurance Rules but with the procedure laid down in the rules relating to the pension scheme, in this case Annex VIII to the Staff Regulations ("Pension scheme"). Article 13 thereof makes it quite clear that it is for the Invalidity Committee to make the findings in question.
12 However, the Council's argument must be upheld inasmuch as it is for the official to request the benefit of the second paragraph of Article 78 of the Staff · Regulations and in the absence of such a request the administration need not, in the course of the procedure for retirement on the ground of invalidity cause to be examined and determine as a matter of course the cause of the invalidity.
1 3 Consequently, the Council cannot be criticized for having initially fixed the applicant's retirement pension, on the basis of its decision of 28 November 1980, in accordance with the third paragraph of Article 78 of the Staff Regu- lations, since the applicant had not requested a declaration that his invalidity had been caused by an occupational disease within the meaning of the second paragraph of that article.
1 4 Nevertheless, the Council was not entitled to reject his complaint, as it did in its decision of 13 July 1981, without considering this question, because the applicant had, by that very complaint, requested that his pension should be fixed in accordance with the second paragraph of. Article .78, claiming that the problems which had led to the recognition of his invalidity had arisen in the course of the performance of his duties.
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15 In such circumstances the administration should have considered and determined in the proper manner whether or not the applicant's invalidity had arisen from an occupational disease within the meaning of that provision and, if appropriate, should have accorded him the pension rate which he was seeking. Such a procedure was all the more necessary in the present case since it is clear from the observations of the Council itself that, at this stage, the Invalidity Committee had not yet considered the cause of the invalidity.
16 Both parties have relied in support of their conclusions on the subsequent reports of the Invalidity Committee dated 21 December 1981 and 25 January 1982. In such circumstances it is appropriate to examine whether those reports validate the contested Council decision by providing sufficient legal evidence that the applicant's invalidity did not in fact arise from an occup- ational disease within the meaning of the second paragraph of Article 78 of the Staff Regulations.
17 That question must be answered in the negative. Whilst the report dated 21 December 1981 does not use the term "occupational disease", it does recognize the existence of a causal relationship between the work or working conditions and the deterioration in the applicant's state of health, as does, moreover, the first version of the report of 25 January 1982. Although, on the other hand, the definitive version of the latter report indicates that two doctors, that is to say a majority, concluded that the applicant's invalidity did not result from an occupational disease, it remains to be said that that version contains no reasons enabling the reader to assess the considerations on which that conclusion was based nor any explanation as to the inconsistency between that conclusion and the conclusion set out in the second report and in the first version of the third report.
18 Furthermore, the fact that in the second version of the latter report one of the doctors refers, in a dissenting opinion, to the list of recognized occu- pational diseases, which is not pertinent to this case, gives rise to doubt whether the Invalidity Committee had a sufficiently clear idea of its function, all the more so since the Council itself has stated in its submissions that the Committee merely received an unofficial request for clarification and that it was not empowered to decide upon the existence of an occupational disease.
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19 It follows from the foregoing that the decision of the Secretary General of the Council, dated 13 July 1981, rejecting the applicant's complaint, is tainted by procedural illegality and should therefore be annulled.
20 In these circumstances the Council must, before coming to a decision, refer the matter once more to the Invalidity Committee, which must verify whether the applicant's pathological condition has a sufficiently direct relationship with a specific and normal risk inherent in the duties which he performed.
Costs
Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Council has failed in its submissions, it must be ordered to pay the costs.
On those grounds,
T H E C O U R T (Third Chamber)
hereby:
1. Annuls the decision of the Secretary General of the Council dated 13 July 1981 rejecting the applicant's complaint;
2. Orders the Council to pay the whole of the costs.
Everling Pescatore Galmot
Delivered in open court in Luxembourg on 12 January 1983.
P. Heim U. Everling Registrar President of the Third Chamber