C-12/83
ECLI:EU:C:1984:182
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JUDGMENT OF THE COURT ( FIRST CHAMBER ) 17 MAY 1984 1
Paul Bahr v Commission of the European Communities
(Official — Invalidity pension )
Case 12/83
Officials — Social Security — Inswance against accidents and occupational diseases — Invalidity — Initiation of the procedure to establish invalidity — Conditions (Staff Regulations, Art. 78; Annex VIII, Art. 13)
Under Article 13 of Annex VIII which It follows that an official who has left lays down, in accordance with Article 78 the service several years ago and who of the Staff Regulations, the conditions suffers from an illness which would on which an official is entitled to an render him incapable of performing his invalidity pension, the procedure to duties if he were still in active establish invalidity may be initiated only employment is not entitled to request, on in relation to an official who is obliged that ground alone, the initiation of the to end his service with the Communities procedure to establish invalidity. because he is suffering from an invalidity preventing him from performing his duties.
In Case 12 / 83
PAUL BAHR , a former official of the Commission of the European Communities , residing in Brussels and represented by Dieter Rogalla , Rechtsanwalt registered with the Amtsgericht Steinfurt and the Landgericht Münster , with an address for service in Luxembourg at the Chambers of Tony Biever, 83 , Boulevard Grande-Duchesse-Charlotte ,
applicant,
1 — Language of the Case: German.
JUDGMENT OF 17. 5. 1984 — CASE 12/83
V
COMMISSION OF THE EUROPEAN COMMUNITIES , represented by Jörn Pipkom , a member of its Legal Department , acting as Agent , with an address for service in Luxembourg at the office of Oreste Montako , Jean Monnet Building, Kirchberg ,
defendant ,
APPLICATION for the annulment of the Commission decision of 19 Oc tober 1982 refusing to initiate, in relation tok the applicant, the procedure to establish invalidity with a view to awarding him an invalidity pension within the meaning of Article 78 of the Staff Regulations ,
THE COURT (First Chamber )
composed of: Lord Mackenzie Stuart , President , T . Koopmans , President of Chamber , and G. Bosco , Judge ,
Advocate General : P . Ver Loren van Themaat Registrar : H . A. Rühl , Principal Administrator
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of Regulations") provides that service is to the procedure and the conclusions, be terminated by: submissions and arguments of the parties (a) resignation; may be summarized as follows : (b) compulsory resignation; (c) retirement in the interests of the I — Facts and written procedure service; (d) dismissal for incompetence; A — The applicable provisions (e) removal from post; Article 47 of the Staff Regulations of (f) retirement; or Officials of the European Communities (hereinafter referred to as "the Staff (g) death.
BÄHR / COMMISSION
On 4 December 1972 the Council recognized by the Invalidity Committee adopted Regulation (Euratom, ECSC, to be suffering from total permanent EEC) No 2530/72 introducing special invalidity preventing him from per and temporary measures applicable to forming the duties corresponding to a the recruitment of officials of the post in his career bracket, and who is European Communities in consequence obliged on these grounds to end his of the accession of new Member States, service with the Communities shall be and for the termination of service of entitled, for so long as such incapacity officials of those Communities (Official persists, to invalidity pension as provided Journal, English Special Edition 1972 for in Article 78 of the Staff Regu
(1-8 December), p. 11). Article 2 of that lations." regulation provided that until 30 June 1973 the institutions of the Communities were authorized to adopt, under certain B — Background conditions, for their officials in Grades A 1 to A 5 inclusive, meassures ter minating their service, as provided for in The applicant, Paul Bähr, who was born Article 47 of the Staff Regulations. in 1926, entered the service of the Commission on 1 January 1959 as an official and performed his duties until
Under Article 3 (1) of that regulation, an 30 June 1973. His last post was that official affected by a measure of that of Principal Administrator in Grade A 4 kind is entitled to a monthly allowance in the Spokesman's Group of the for a specific period which is to cease in Commission. any event when he reaches the age of 65. During the period for which he is On the accession of three new Member entitled to receive the allowance the States in 1973, the applicant requested official is to continue, in accordance with the Commission by letter of 23 February Article 3 (7) of the regulation, ot acquire 1973 to apply in relation to him a further rights to retirement pension measure terminating his service, as based on the salary attaching to his provided for by Article 2 of Regulation grade and step, provided inter alia that
No 2530/72. That measure was applied he pays the contribution provided for in in relation to the applicant as from 1 July the Staff Regulations during that period. 1973. Accordingly, he received the allowance provided for by that regu According to Article 78 of the Staff lation until 31 October 1982. During Regulations, an official is to be entitled, that period he continued to pay contri in the manner provided for in Articles 13 butions, in accordance with Article 3 (7) to 16 of Annex VIII, to an invalidity of that regulation in order to acquire pension in the case of total permanent pension rights.
Since 1 November 1982 invalidity preventing him from per the applicant has been in receipt of a forming the duties corresponding to a retirement pension. post in his career bracket. By letter of 27 July 1981 the applicant The first paragraph of Article 13 of requested the Commission to initiate the Annex VIII is as follows: procedure to establish invalidity, in accordance with Article 78 of the Staff Regulations, in view of the state of his "Subject to the provisions of Article 1 health. He based his request on the fact (1), an official aged less than 65 years that in 1967 he had suffered a cardiac who at any time during the period in infarction owing to the excessive which he is acquiring pension rights is workload and that the attack was
JUDGMENT OF 17. 5. 1984 — CASE 12/83
certified by a doctor. In 1980 he suffered 2. Award the applicant, by reason of an a further infarction and has since then invalidity which arose in the course been unfit for work and in need of of the performance of his duties, a constant medical attention. In his view, pension amounting to 70 % of his therefore, the Commission should have basic salary, with effect from 1 July referred the matter to the Invalidity 1973, or, in the alternative, from Committee for a decision recognizing his 10 February 1980; invalidity. 3. In the alternative, order the Com By decision of 7 September 1981 the mission to initiate the appropriate Commission notified the applicant that procedures under the Staff Regu the procedure in question could no lations with a view to awarding the longer be set in motion since he had left applicant, by reason of an invalidity the service of the Communities on 1 July arising in the course of the per 1973. In those circumstances he no formance of his duties, a pension longer fulfilled the conditions set out in amounting to 70 % of his basic Article 13 of Annex VIII to the Staff salary, with effect from 1 July 1973, Regulations. or, in the alternative, from 10 February 1980; In reply to the complaint lodged by the applicant on 21 May 1982, the 4. Order the defendant to pay the costs. Commission informed him on 19 Oc tober 1982 that it could not accede to his The Commission, the defendant, contends request essentially for the same reasons that the Court should: as those already given in its decision of 7 September 1981. 1. Dismiss the application under 2. above as inadmissible; 2. Dismiss the application under 3. C — Written procedure above as inadmissible inasmuch as the applicant seeks the initiation of the By application lodged at the Court procedure to establish invalidity with Registry on 21 January 1983 the effect from a date prior to 10 applicant sought the annulment of the February 1980; Commission decision refusing to initiate, in relation to him, the procedure to 3. Dismiss the remainder of the ap establish invalidity provided for by plication as unfounded; Article 59 of the Staff Regulations. 4. In the alternative, dismiss the appli On hearing the report of the Judge- cation in its entirety as unfounded; Rapporteur and the views of the Advocate General, the Court (First 5. Order the applicant to pay the costs. Chamber) decided to open the oral procedure without any preparatory inquiry. III — Submissions and argu ments of the parties
II — Conclusions of the parties In support of his claims, the applicant contends in the first place that his invalidity should have been recognized The applicant claims that the Court even before the application of Regulation should: No 2530/72. He had already been 1. Annul the Commission decision of seriously ill for a number of years 19 October 1982; following a cardiac infarction in 1967.
BÄHR / COMMISSION
A certificate establishing the precarious therefore considers that the defendant's state of his health was issued by his decision of 19 October 1982 is based doctor and forwarded at the time to on an incorrect interpretation of the the administration of the Commission. provisions of Regulation No 2530/72 According to the applicant, it follows and of Article 13 of Annex VIII to the that in the course of discussions Staff Regulations. concerning the application of Regulation No 2530/72 the Commission should, in accordance with its duty of assistance, The Commission of the European automatically have considered initiating Communities, the defendant, points out the procedure to establish invalidity first of all that in his complaint through under Article 78 of the Staff Regulations. official channels the applicant asked The medical branch of the Commission, merely that a procedure should be whose duties under the Staff Regulations initiated to establish his invalidity. In his include the carrying out of an annual application to the Court, the applicant is medical check-up on officials, should pursuing a different aim inasmuch as he have established on that occasion that seeks primiarily recognition of his right the applicant was unfit for work. to an invalidity pension with effect from However, the state of his health passed 1 July 1973. That claim, submitted for unnoticed at the time as a result of the the first time in the application initiating defendant's failure to provide him with these proceedings, is manifestly inad the necessary assistance. missible on the ground that it is contrary to Article 91 of the Staff Regulations.
Next, the applicant contends that the The Commission takes the same view of defendant should have initiated the the applicant's alternative claim, in so procedure to establish invalidity during far as he seeks the initiation of the the period in which he received the procedure to establish invalidity with allowances provided for by Regulation retroactive effect from 1 July 1973. That No 2530/72. During that period he claim for retroactivity was not put suffered a second infarction on 9 Feb forward in the complaint through official ruary 1980. Since then he has been channels and must therefore be regarded totally unfit for work. The applicant as inadmissible, particularly as the contends that in view of his condition, applicant himself stated in his complaint the defendant should have applied the of 21 May 1982 that he had been "unfit relevant provisions of the Staff Regu for work" since 9 February 1980. In that lations. Article 13 of Annex VIII to the connection, the Commission adds that in Staff Regulations provides that officials his complaint through official channels aged less than 65 years who are no the applicant did not argue that the longer in active employment may also Commission had failed to discharge its be recognized to be suffering from duty by refraining from initiating the permanent invalidity as long as they procedure to establish invalidity before 1 continue to acquire pension rights. That July 1973. It follows that the arguments is the position in this case. The applicant put forward by the applicant which relate adds that the reference to pension rights to the circumstances prevailing prior to in Regulation No 2530/72 indicates that that date should not be taken into those to whom the regulation applies account. enjoy all the rights and are subject to all the obligations arising in a comparable situation in relation to officials who are In the light of those observations, the still in active employment. The applicant Commission considers that only the
JUDGMENT OF 17. 5. 1984 — CASE 12/83
claim for the initiation of the procedure Article 13 of Annex VIII to the Staff to establish invalidity on the basis of the Regulations applies to an official during applicant's unfitness for work since the period in which he is acquiring 9 February 1980 is admissible. pension rights operates in his favour. That criterion does not permit the As regards the question whether the category of officials who may be application is well-founded, the Com awarded an invalidity pension to be mission maintains that only officials extended to persons who, according to possessing a status provided for by Article 47 of the Staff Regulation, are no Article 35 of the Staff Regulations may longer officials. apply for the award of an invalidity pension. In support of that argument, it Finally, the Commission contends that refers to Article 13 of Annex VIII which the duty of assistance relied upon by the is based on the idea that an official applicant is of no relevance in this case.. suffering from total permanent invalidity That duty undoubtedly requires an is obliged on that ground to end his institution to ensure that an official may service with the Communities. Article 13 assert the rights vested in him by the thus establishes a causal connection Staff Regulations but its effect cannot be between establishment of invalidity and to enable the official to acquire a pension termination of service. The applicant not provided for by the Staff Regu however had already left the service lations. following the application of Regulation No 2530/72. Accordingly since 1973 he has no longer been able to fulfil the IV — Oral procedure conditions laid down by Article 13 or, therefore, acquire a right to an invalidity Oral argument was presented by the pension. parties at the sitting on 9 February 1984. In the Commission's view the applicant is The Advocate General delivered his wrong to consider that the fact that opinion at the sitting on 22 March 1984.
Decision
1 By application lodged at the Court Registry on 21 January 1983 , Paul Bähr , a former official of the Commission of the European Communities , brought an action for the annulment of the Commission decision of 19 October 1982 refusing to award the applicant an invalidity pension and for an order to the Commission to award him an invalidity pension with effect from 1 July 1973 or , in the alternative , from 10 February 1980.
2 The applicant, who entered the service of the Commission on 1 January 1959 as an official, performed his duties until 30 June 1973, his last post being that of Principal Administrator in Grade A 4. At his request , the Commission
BAHR / COMMISSION
applied in relation to him a measure terminating his service with effect from 1 July 1973, pursuant to Regulation (Euratom, ECSC, EEC) No 2530/72 of the Council of 4 December 1972 introducting special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States, and for the termination of service of officials of those Communities (Official Journal, English Special Edition 1972 (1-8 December), p. 11).
3 On leaving the service, the applicant received until 31 October 1982 the allowance provided for by Regulation No 2530/72. "With effect from 1 November 1982 he received a retirement pension. However, he considers that he is entitled to an invalidity pension as from the date of termination of service or in any event as from 10. February 1980, the date on which he suffered a cardiac infarction which rendered him unfit for work.
4 In that connection, the applicant maintains first of all that in 1967 he suffered his first infarction which, according to a certificate issued by his doctor on 24 March 1967, was attributable to overwork and henceforth prevented him from undertaking a heavy workload. In those circumstances the Commission was under an obligation to consider, in the course of discussions relating to the application of Regulation No 2530/72, the initiation of a procedure to establish invalidity under Article 78 of the Staff Regulations. By taking no action at the time, the Commission failed to discharge duty of assistance in relation to its officials.
5 Next, the applicant maintains that a second infarction in 1980 rendered him unfit for work in view of the highly precarious state of his health since that time. It is therefore indisputable, in his view, that at the time his status was that of an official aged less than 65 years suffering from permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket and that status, according to Article 13 of Annex VIII to the Staff Regulations, entitled him to the award of an invalidity pension if such invalidity arose during the period in which he was acquiring pension rights. The applicant claims to have fulfilled the latter condition inasmuch as he continued, in accordance with Article 3 (7) of Regulation No 2530/72, to pay contributions in order to acquire pension rights.
JUDGMENT OF 17. 5. 1984 — CASE 12/83
6 Since the Commission refused to refer the matter to the Invalidity Committee at the request of the applicant, the latter lodged a complaint against such refusal. Following the rejection of that complaint, the applicant brought this action before the Court.
7 The Commission contends that the application is inadmissible inasmuch as the .applicant seeks the award of an invalidity pension, since entitlement to such a pension may be recognized only by the Invalidity Committee, as is clear from Article 13 of Annex VIII to the Staff Regulations. Since the objection of inadmissibility is devoid of purpose if the application for annulment is dismissed, the substance must first be considered.
8 The Commission does not contest the facts as outlined by the applicant but it considers that the provisions of the Staff Regulations themselves preclude the award to him of an invalidity pension.
9 The Commission emphasizes in the first place that the applicant did not request that the matter be referred to the Invalidity Committee either in 1967 when he suffered his first infarction or in 1973 when he left the service. On the other hand the applicant returned to work after his illness in 1967 and continued to .perform his duties until 1973 when, at his own request, Regu lation No 2530/72 was applied to him. Accordingly, there was no reason for the Commission to refer the matter to the Invalidity Committee.
10 Next, the Commission contends that the provisions of the Staff Regulations are based on the idea expressed in Article 53 that an official who is recognized by the Invalidity Committee to be suffering from total invalidity is to cease to perform his duties and is to be retired. The procedure to establish invalidity cannot therefore be applied to an official who has already ceased to perform his duties. The same idea is expressed in Article 13 of Annex VIII — a provision on which the applicant's arguments are based — inasmuch as the invalidity pension provided for therein is awarded by the Invalidity Committee only to an official who is suffering from total permanent invalidity, preventing him from performing the duties corresponding to a post in his career bracket, and who "is obliged on these grounds to end his service" with the Communities.
BAHR / COMMISSION
11 For the purposes of the application to the present case of Article 13 of Annex VIII, a distinction must be drawn between the two arguments adduced by the applicant which are that the matter should have been referred to the Invalidity Committee when he left the service in 1973 and that the matter should have been referred to the Invalidity Committee after his second heart attack in 1980.
12 As regards the latter case, the Commission's reasoning must be accepted. It follows from the unequivocal provisions of Article 13 of Annex VIII which lays down, in accordance with Article 78 of the Staff Regulations, the conditions on which an official is entitled to an invalidity pension, that the procedure to establish invalidity may be initiated only in relation to an official who is obliged to end his service with the Communities because he is suffering from an invalidity preventing him from performing his duties.
13 It follows that an official who has left the service several years ago and who suffers from an illness which would render him incapable of performing his duties if he were still in active employment is not entitled to request, on that ground alone, the initiation of the procedure to establish invalidity.
1 4 That finding cannot, however, resolve the other problem raised in this dispute, namely whether the Commission failed to discharge an obligation towards a former official suffering from total permanent invalidity, inasmuch as it did not refer the matter to the Invalidity Committee at the time at which the applicant evinced the intention of leaving the service. It is common ground that, at the time, the applicant had already suffered a first cardiac infarction. Experience shows that the risk of suffering a second heart attack is considerably greater after such an event.
15 In that situation, it was for the Commission to determine whether the state of the applicant's health at the time at which he expressed the intention of leaving the service was such that he could have continued to perform his duties if he had chosen not to end his service with the Communities.
16 However, circumstances of that kind may be taken into account in connection with the review of the legality of the contested decision only if it
JUDGMENT OF 17. 5. 1984 — CASE 12/83
is established that there is a direct and immediate connection between the officials ultimate invalidity and the state of his health when he left the service. That connection cannot be deduced simply from the fact that the official suffered two consecutive heart attacks particularly where, as in this case, they are separated by more than 10 years.
17 It was for the applicant to justify such a connection which has not, however, been established.
18 In those circumstances, the application must be dismissed.
Costs
19 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure, the costs incurred by the institutions in actions by employees of the Communities are to be borne by those institutions.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Dismisses the application;
2. Orders the parties to bear their own costs.
Mackenzie Stuart Koopmans Bosco
Delivered in open court in Luxembourg on 17 May 1984.
For the Registrar
H . A. Rühl T. Koopmans
Principal Administrator President of the First Chamber