C-342/82

JUDGMENT OF THE COURT (SECOND CHAMBER) 24 NOVEMBER 1983 *

Hartog Cohen v Commission of the European Communities

(Officials — Invalidity — Public-spirited act)

Case 342/82

Officials — Invalidity pension — Rate at which pension is to he paid — Public-spirited act — Concept — Act performed by the person concerned prior to his entry into the service of the Communities — Exclusion

The second paragraph of Article 78 of permanent invalidity arises from a the Staff Regulations must be interpreted public-spirited act performed prior to his as not conferring on an official an entry into the service of the entitlement to an invalidity pension at Communities. the maximum rate where his total

APPLICATION for: The annulment of the decision of 27 November 1981, inasmuch as the Invalidity Committee held that the applicant's invalidity did not arise from a public-spirited act; The annulment of the Commission's decision of 11 December 1981 whereby the applicant was awarded an invalidity pension under the third paragraph oi Article 78 of the Staff Regulations and not under the second paragraph thereof; The annulment of the decision rejecting the complaint thereon lodged on 10 March 1982; An order that the Commission should pay the applicant the invalidity pension with retroactive effect to 1 January 1982, at the rate laid down by the second paragraph of Article 78 of the Staff Regulations,

T H E C O U R T (Second Chamber), composed of: K. Bahlmann, President of Chamber, P. Pescatore and O. Due, Judges, Advocate General: Sir Gordon Slynn Registrar: H . A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the whom the Invalidity Committee finds procedure and the submissions and that the provisions of Article 78 of those arguments of the parties may be regulations apply is to cease to perform summarized as follows: his duties and to be retired.

"Where the invalidity arises from an 17 December 1917. He was an official of accident in the course of or in the Commission from 1 June 1970 and connection with the performance of his his last post was in Grade L/A 4 at the duties, from an occupational disease, Directorate General for Personnel and from a public-spirited act or from risking Administration. his life to save another human being, the invalidity pension shall be 7 0 % of the basic salary of the official. .2. In 1981, in view of the applicant's Where the invalidity is due to some other health, the Commission applied Articles cause, the invalidity pension shall be 53 and 78 of the Staff Regulations, equal to the retirement pension to which which have been quoted above. An the official would have been entitled at Invalidity Committee was constituted the age of 65 years if he had remained in consisting of three doctors appointed the service until that age." under the above-mentioned Article 7 of Annex II to the Staff Regulations. In accordance with that provision, one of 3. According to Article 9 of the Staff the doctors was chosen by the applicant, Regulations, the composition and the who appointed Dr Gohdes, his own procedure of the Invalidity Committee is doctor since May 1980. to be determined in accordance with the provisions of Annex II to the Staff Regu- lations. 3. By letter of 30 September 1981 3.1. Under Article 7 of Annex II to addressed to Dr Gohdes, the the Staff Regulations, the Invalidity Commission explained the task of the Committee is to consist of three doctors, Invalidity Committee and expressly one appointed by the institution to which referred to the wording of the second the official belongs, one appointed by the paragraph of Article 78 of the Staff official concerned and one appointed by Regulations. Moreover, the Commission agreement between the first two doctors. emphasized that the applicant's medical file would be passed to Dr Gohdes and 3.2. In addition, Article 9 of Annex II that the staff of the Commission would provides : be at his disposal "to provide any additional information considered "The official may submit to the necessary for the completion of the task Invalidity Committee any reports or defined above". certificates from his regular doctor or from any medical practitioners whom he may have consulted. 4. On 27 November 1981, the The Invalidity Committee's conclusions Invalidity Committee concluded that shall be communicated to the appointing authority and to the official concerned. The proceedings of the Committee shall "After examination of Hartog Cohen, be secret." . . ., an official of the Commission of the European Communities, his case is one of total permanent invalidity preventing him from performing the duties II — F a c t s and w r i t t e n p r o c e d u r e corresponding to a post in his career bracket and that, on that ground, he is 1. The applicant, Hartog Cohen, who required to cease to perform his duties at is a Netherlands national, was born on the Commission.

The Invalidity Committee declares that In his complaint the applicant maintained Hartog Cohen's invalidity does not arise that his present invalidity was the direct from an accident in the course of the result of his activities in the Netherlands performance of his duties, from an resistance during the Second World War occupational disease, from a public- and, accordingly, in his view resulted spirited act or from risking his life to from "a public-spirited act or from save another human being." risking life to save another human being", thus entitling him to an invalidity pension under the second paragraph of 5. On the same day, Dr Gohdes Article 78 of the Staff Regulations. In supplied a medical certificate empha- support of his view, the applicant drew sizing that none of the applicant's attention to the two medical certificates disabilities "is due to his age. Neither the mentioned above and stated that he had . patient's occupation nor his family back- submitted an application to the ground reveals any factors which explain Netherlands authorities for a special their origin. There is a strong probability pension "in view of the fact that there is that there is a connection between all his a causal connection between the disabilities and the years which he spent invalidity in question and his activities in . in the ranks of the Netherlands the Netherlands resistance". Sub- resistance during the last war". sequently, in December 1982, the Netherlands authorities gave a "favourable decision" in respect of the, application for that special pension. 6. On 11 December 1981, the Com- mission decided, having regard to the conclusions of the. Invalidity Committee, to retire the applicant with effect from' 9. The complaint was expressly rejected 1 January 1982 and to grant him an by a letter from the Commission dated invalidity pension in accordance with the 5 October 1982. In that letter, the third paragraph of Article 78 of the Staff Commission emphasized that the main Regulations. question raised in the complaint was whether, in order to give rise to entitlement to a pension under the 7. By a medical certificate dated 2 second paragraph of Article 78 of the February 1982, Dr S. Langie, a neuro- Staff Regulations, the public-spirited act surgeon, certified, at the applicant's request, that he had "regularly followed his neurological case-history" since November 1970. Dr Langie concluded ". . . must have been performed when the that it was "likely" that the seriousness person concerned was in the service of of the applicant's lesions "is connected the Community or whether that act may with the life which he led during the last have taken place before his entry into war as a member of the resistance in the service with the Communities. Netherlands".

said that the increase in the rate of as it states that the invalidity does not pension as a result of such an act arise from a public-spirited act or from represents a type of 'bonus' or 'reward' the applicant's risking his life to save whereby the Communities as employer another human being; acknowledge a moral obligation in respect of officials or servants provided that, however, they were its officials or Annul the defendant's decision of 11 servants at the material time. November 1981 inasmuch as it states Recognition of or reward for acts that the applicant is entitled to receive an completed before entry into the service invalidity pension pursuant to the third must therefore, where appropriate, be paragraph of Article 78 of the Staff sought elsewhere. Regulations and not pursuant to the second paragraph thereof; In those circumstances it is not necessary to refer the case back to the Invalidity Annul the decision, notified by letter Committee for re-examination." dated 5 October 1982, rejecting the complaint on the matter, lodged on 10 March 1982; 10. This action was brought on 24 December 1982. Order the defendant to pay the applicant the invalidity pension with retroactive effect to 1 January 1982, at the rate laid 11. Upon hearing the repon of the down by the second paragraph of Article Judge-Rapporteur and the views of the 78 pf the Staff Regulations, the Advocate General, the Court (Second additional instalments of pension payable Chamber) decided to open the oral on the day when the judgment takes procedure without any preparatory effect bearing default interest at 12.5% inquiry. However, it decided to request calculated from the date of their falling the parties to concentrate their argu- due until payment; ments on the interpretation of the second paragraph of Article 78 of the Staff Regulations and, in particular, on the Order the defendant to pay the costs. question whether the public-spirited act envisaged in that provision must have In the alternative: been performed after the person concerned had entered the service of the Declare the action admissible; Communities. Declare that the second paragraph of Article 78 of the Staff Regulations is I l l — C o n c l u s i o n s of t h e p a r t i e s applicable also where an official's public- spirited act or the risking of his life to save another human being has occurred The applicant claims that the Court prior to entry into the service of the should: Communities;

public-spirited act or from his risking his (b) The arguments of the parties life to save another human being; The applicant's first question Reserve the costs. In the further alternative : 1. The applicant claims that according to the second paragraph of Article 25 of Declare the action admissible; the Staff Regulations, any decision adversely affecting an official must state Before deciding on the substance: the reasons on which it is based. The Order all measures of inquiry necessary first two measures in dispute, namely the to establish whether the Invalidity decisions of the Invalidity Committee Committee considered the question to and of the Commission of 27 November the causal connection between the and 11 December 1981, which incon- applicant's total permanent invalidity and testably affect the applicant adversely, his activities in the Netherlands contain no statement of grounds on the resistance during the war of 1940 to essential point, namely whether or not 1945; the second paragraph of Article 78 of the Staff Regulations was to be applied. Reserve the costs. The applicant contests the Commission's The Commission contends that the Court view that the Invalidity Committee could should: not have stated its reasons in different Dismiss the action as unfounded; terms without exposing itself to the complaint that it had infringed the third Order the applicant to pay the costs. paragraph of Article 9 of Annex II to the Staff Regulations concerning the secret nature of its proceedings. That provision IV — Submissions and arguments must be reconciled with that of the of t h e p a r t i e s second paragraph of Article 25 of the Staff Regulations which is more general. (a) Introduction 1.1. In the second place, the applicant The applicant relies on two submissions alleges that the Invalidity Committee which may essentially be summarized as failed to consider the causes of his follows : invalidity. In any event, he was not questioned on that subject although the 1. Infringement of the second paragraph Committee's ignorance of the facts as of Article 25 of the Staff Regulations regards his activities in the Netherlands and of procedural rules; resistance means that his disability cannot have been assessed from the 2. In the alternative, infringement of the documents. Consequently, there was a second and third paragraphs of clear procedural defect. Article 78 of the Staff Regulations and breach of general rules and principles of law, in particular the 1.2. In the alternative, the applicant principle according to which any claims that there remains, at the very administrative measure must be least, a serious question as to whether accompanied by a statement of legally the issue was considered at all. permissible grounds, that is to say, relevant and consistent grounds not The applicant emphasizes that it is not vitiated by mistakes of law or of fact necessarily clear from the conclusions of or both. the Invalidity Committee, to the effect

2.1. Thus, the Commission contends 2.2.1. In the second place, the that there was no infringement of the Commission notes that the Invalidity second paragraph of Article 25 of the Committee expressly concluded, in its Staff Regulations. decision of 27 November 1981 that there was no causal connection between the applicant's participation in the Netherlands resistance and his invalidity. It emphasizes that in this instance the The Commission considers that there is Invalidity Committee concluded that the no provision requiring the Invalidity "invalidity . . . does not arise from . . . a Committee to question the applicant public-spirited act". In the Commission's since the origin, the existence and the view, the Invalidity Committee could not consequences of most aspects of his have stated its reasons in different terms disability could be assessed in the light of without exposing itself to the complaint the documents. The Commission refers that it had infringed the provisions of the to the Court's judgment of 14 December second and third paragraphs of Article 9 1966 (Case 3/66, Alfieri v. Parliament, of Annex II to the Staff Regulations, [1966] ECR 437).

JUDGMENT OF 24. 11. 1983 — CASE 342/82

In the first place and in particular, the wording The applicant's second submission. of the provision is clear and it should not therefore be subjected to interpretation. In the second place, the same provision 1. The applicant claims that the specifies, as regards accidents, that they Invalidity Committee's conclusions of 27 must have occurred in the course of ór in November 1981 and the Commission's connection with the performance of an decision of 11 December 1981 are official's duties.

munities. Moreover, the Commission's clearly do not vary according to the date decision of 5 October 1982, rejecting the at which it occurred. Moreover, the applicant's complaint, is vitiated by the Commission disregarded the fact that the same mistake of law. harmful consequences of the act in question came to light whilst the applicant was in the service of the 1.1. As far as the mistake of fact is Communities. concerned, the applicant declares that the Netherlands authorities have now recognized that he was a member of the Finally the applicant denies that the resistance and that his present invalidity background of the provision implies a is the direct consequence of his activities restrictive interpretation according to in the Netherlands resistance. In which in the event of a case which is addition, Doctors Gohdes and Langie expressly referred to — in this instance have certified as much. The applicant the public-spirited act — it is permissible

One of the fundamental principles 2.1. As regards the alleged mistake of governing the pension scheme operated fact, the Commission states that there is by the Commission is that, except where no evidence that the Invalidity there are express provisions to the Committee made any such mistake. contrary, it covers officials only for When the Committee has arrived at a events which occur after their entry into valid decision on a question which has the service. The Commission refers inter been referred to it, the decision is alia to Article 3 (a) of Annex VIII to the definitive unless a new factor emerges. Staff Regulations (concerning the The opinions expressed by other doctors, retirement pension). Application of that however eminent, declaring that the general principle demonstrates that the Invalidity Committee has made a mistake public-spirited act referred to in the or may have made a mistake, do not second paragraph of Article 78 of the constitute such a factor. The Com- Staff Regulations must necessarily have mission refers to the Court's judgments been performed after the applicant's of 9 July 1975 (Joined Cases 42 and entry into the service of the Com- 62/74 Veliozzi v Commission, [1975] munities. ECR 871) and of 12 June 1980 (Case 107/79, Schuererv Commission, [19801 ECR 1845). The applicant's interpretation, based on a conclusion a contrario extracted from the second paragraph of Article 78, 2.2. As regards the alleged mistake of concerning accidents, is mistaken. In that law, the Commission points out in the article the legislature merely excluded first place that the applicant is wrong accidents occurring in private life from in considering that the Invalidity the benefit of the invalidity pension at Committee made such a mistake in the rate of 7 0 % ; the restriction in no interpreting the second paragraph of way relates to the period during which Article 78 of the Staff Regulations. the accident must have occurred. Authority to make such an interpretation lies exclusively with the Commission and the Invalidity Committee's conclusions in Finally it follows from the history of the no way support the allegation that that second and third paragraphs of Article Committee assumed such authority. 78 that they must be restrictively interpreted. Prior to their adoption there was a single rate for the invalidity In addition, the Commission considers pension amounting to the maximum rate that the complaint directed against its of the retirement pension. In order to decision of 5 October 1982 is avoid abuses, the Commission proposed inadmissible. The Invalidity Committee in 1969 (Official Journal, C 83, p. 4) to duly found that the invalidity did not separate the two pensions and to retain arise from a public-spirited act and the the maximum rate of the retirement Commission's decision of 11 December pension as the rate for the invalidity 1981 was taken in accordance with those pension only in clearly specified cases.

2 The first paragraph of Article 78 of the Staff Regulations provides that officials are entitled to an invalidity pension in the case of tota permanent invalidity; the second and third paragraphs thereof stipulate as follows:

"Where the invalidity arises from an accident in the course of or in connection with the performance of his duties, from an occupational disease, from a public-spirited act or from risking his life to save another human being, the invalidity pension shall be 70% of the basic salary of the official.

COHEN v COMMISSION

Where the invalidity is due to some other cause, the invalidity pension shall 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".

3 It appears from the papers before the Court that the applicant, who is a Netherlands national born on 17 December 1917, was an official at the Commission from 1 June 1970 and that his last post was in Grade L/A 4 at the Directorate General for Personnel and Administration.

4 On 27 November 1981, an Invalidity Committee, constituted at the Commission's instigation, concluded that the applicant's invalidity amounted to "total permanent invalidity preventing. him from performing the duties corresponding to a post in his career bracket and that, on that ground, he is required to cease to perform his duties at the Commission". In addition, the Invalidity Committee declared that the applicant's invalidity "does not arise from an accident in the course of the performance of his duties, from an occupational disease, from a public-spirited act or from his risking his life to save another human being".

s The applicant then brought this action, primarily for the annulment of the decisions of the Invalidity Committee and the Commission of 27 November and 11 December 1981 respectively and for an order requiring the Commission to pay, with retroactive effect to 1 January 1982, the invalidity pension at the rate fixed in the second paragraph of Article 78 of the Staff Regulations. In the alternative, the applicant requests the Court to declare that that paragraph also applies where a public-spirited act has been performed prior to entry into the service of the Communities. He also asks the Court to order that a fresh Invalidity Committee be convened. Finally, in the further alternative, the applicant requests the Court, before deciding on the substance of the case, to order all measures of inquiry necessary to establish whether the Invalidity Committee considered the question of the causal connection between the applicant's invalidity and his activities in the Netherlands resistance during the war of 1940 to 1945.

9 In support of his conclusions, the applicant maintains that the disputed decisions do not contain an adequate statement of the reasons on which they are based and that they are vitiated either by a mistake of fact or by a mistake of law. The applicant emphasizes in particular that it is not clear from the Invalidity Committee's decision that it considered the question of the causal connection between the public-spirited act and the applicant's invalidity.

io For the purposes of a decision in these proceedings, it is first necessary to settle the initial question raised by the Commission in its reply to the applicant's complaint, concerning the interpretation of the second paragraph of Article 78 of the Staff Regulations. If it must be concluded that, in order to confer entitlement to a pension under that paragraph, the public-spirited act must have been performed after the official has entered the service of the Communities, the applicant's action will, in any event, be unfounded.

is It is therefore necessary to regard the second paragraph of Article 78 of the Staff Regulations as an exceptional provision, which suggests that any extensive interpretation must be undertaken only with caution. In those circumstances, it is impossible to accept the applicant's view that the absence in that paragraph of an indication as to the date at which the public-spirited act must be performed is a sufficient answer to the question of interpretation raised.

H Moreover the applicant's argument based on a conclusion a contrario drawn from the provision concerning accidents at work cannot be accepted. Although the provision stipulates that the accident must have occurred in the

JUDGMENT OF 24. 11. 1983 — CASE 342/82

course of or in connection with the perfomance of an official's duties, that stipulation is solely intended to exclude accidents occurring in private life.

is It is therefore necessary to examine the background to the disputed decision and, in particular, the objectives pursued by the amendment adopted in 1972.

i6 In that respect, it is a matter of regret that the recitals in the preamble to the above-mentioned Regulation No 1473/72 do not provide any information on the specific reasons for the various amendments adopted, but merely refer in general terms to experience gained. In the course of the proceedings, the Commission stated that the amendment of the provisions relating to the invalidity pension was intended to prevent the award of unjustified benefits and that statement was not contradicted by the applicant.

20 It follows that the application must be dismissed and that it is therefore not necessary to arrive at a decision on the applicant's other submissions.

Costs

2i 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 those rules costs incurred by the institutions in proceeedings by servants of the Communities are to be borne by the institutions.

On those grounds,

T H E C O U R T (Second Chamber)

hereby