C-265/83

v

COMMISSION O F T H E EUROPEAN COMMUNITIES, represented by Dimimos Gouloussis, a n adviser in t h e Legal D e p a r t m e n t , acting as Agent, assisted by R o b e r t Andersen, of t h e Brussels Bar, with an address for service in L u x e m b o u r g at t h e office of M a n f r e d Beschel, a m e m b e r of t h e Commission's Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, defendant,

A P P L I C A T I O N concerning t h e benefits payable u n d e r Article 73 of t h e Staff Regulations of Officials in t h e event of p e r m a n e n t partial invalidity resulting from a n accident,

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T H E C O U R T (Third C h a m b e r )

composed of: C. Kakouris, President of Chamber, U. Everling and Y. Galmot, Judges,

It proposed that the applicant be appointed by the appointing authority, awarded compensation for 34% in- Dr Jules Weber, a general practitioner in validity, which corresponded to a lump Luxembourg, who was appointed by the sum of BFR 3 187 129. applicant, and Dr Norbert Ketter, an eye specialist practising in Luxembourg, who was appointed by agreement between the On 7 September 1979, in accordance other two doctors. The three doctors with Article 21 of the Rules, the ap- unanimously agreed to consult Dr plicant requested the opinion of the François Daro, a surgeon practising in Medical Committee provided for in Luxembourg. Article 23 of the Rules, because the doctors whom he had consulted had established higher degrees of invalidity. On 13 July 1982 those four doctors met At the same time the applicant requested to examine the applicant. On the same payment of the lump sum of BFR day they drew up a report which they 3 187 129 as a provisional allowance sent to the Commission. pursuant to Article 20 of the Rules.

Subsequently the applicant brought an for the loss of vision in the left eye, action in connection with, inter alia, the composition of the Medical Committee, 25%; the payment of an additional provisional for the sequelae in relation to the left allowance corresponding to 12% and knee, 8%; the delay in the payment of the allowance. After that action had been for the disfigurement, 1%. brought, the Commission paid him an additional provisional allowance of 12%. In its judgment of 14 July 1981 (Case On the other hand they found that there 186/80, [1981] ECR 2041), the Court were no neurological sequelae. There noted that that payment had been made, was no need for special treatment, and dismissed the other claims. prolonged massage, electrotherapeutic treatment and thermal cures. No sub- sequent therapy was liable to bring about 2. The Medical Committee was com- a clear and appreciable improvement. posed of Dr Jacques de Meersman, a Consequently the applicant's aggregate surgeon practising in Arlon, who was invalidity rate was fixed "with the

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unanimous agreement of the four By a letter dated 3 October 1983, that doctors present" at 34%. complaint was rejected on the grounds that the medical report could not be the subject of a complaint and that the On 3 February 1983, the Commission applicant's criticisms concerning the informed the applicant that it accepted constitution and the procedure of the the conclusions of that report. As a Medical Committee and the contents of result: its report were unfounded.

The applicant was requested to repay a sum of BFR 281 218, corresponding to Ill — Written procedure and the difference between the lump sum of conclusions BFR 3 468 347, the total amount paid as a provisional allowance for a degree of invalidity of 37%, and the allowance payable for the degree of invalidity of 1. The applicant brought this action by 34% which was finally settled upon. an application registered at the Court on 28 November 1983.

JUDGMENT OF 29. 11. 1984 — CASE 265/83

in respect of the sequelae still under Ill — Submissions and argu- discussion; m e n t s of t h e p a r t i e s

Declare that thermal cures are necessary in order to stop, or at least to slow A — Admissibility down, the development of arthritis and meniscitis, The Commission contends that the Order the Commission to pay all the application is admissible only in so far as it seeks the annulment of the Medical costs. Committee's opinion and the appointing authority's decision which endorses it, In his reply, the applicant claimed in and in so far as it seeks a declaration addition that the Court should: that the permanent partial invalidity rate cannot be lower than 34%. For the rest, the application is inadmissible because Order the Commission to pay him BFR the Court cannot arrogate to itself the 50 000 under Article 73 of the Rules of powers of the Medical Committee and the Procedure; the appointing authority by issuing opinions of a medical character on the nature and the seriousness' of the Award him interest on the amount of the applicant's injuries, the degree of allowance owed to him because of the invalidity which results therefrom and Commission's improper delay in paying the date of the consolidation of such it to him. injuries, or by prescribing treatment and determining the administrative consequences of such an opinion. The Commission refers in particular to the 2. The Commission contends that the judgment of the Court of 21 May 1981 Court should: (Case 156/80, Morbelli, [1981] ECR 1357) and emphasizes that the Court's review of the findings of the Medical Dismiss the application as inadmissible in Committee must be confined to part and unfounded for the rest; questions relating to its constitution and its proper functioning.

The applicant submits that both the Medical Committee's report and the decision of 3 February 1983 are vitiated by a procedural defect inasmuch as the The Commission paid him a provisional Medical Committee's report is signed by allowance based on an invalidity of 37%. four doctors and in particular by Dr It thus acknowledged that lie qualified Daro, who was called in as a consultant. for that rate. A subsequent reduction of Article 23 of the Rules not only restricts the degree of invalidity represents an the number of doctors entitled to make infringement of the third paragraph of up the medical committee but also Article 20 of the Rules, according to establishes the exclusive authority of which a provisional allowance is granted those doctors to draw up the report. A by the appointing authority in respect fourth doctor called in as a consultant of the "undisputed proportion of the cannot sign the report without over- permanent invalidity rate". It follows stepping his role as a consultant. The from that provision that the Medical actual and active participation in the Committee must confine its examination final decision and in the report of a to the disputed proportion alone and that doctor called in as a consultant is not the institution cannot reduce the rate permissible. which it has accepted by paying the pro- visional allowance. In failing to respect those limits, the Medical Committee acted irregularly. The Court therefore The Commission contends that the has grounds for carrying out a complete Medical Committee was properly con- review of the findings established in that stituted in accordance with Article 23 (1) way. of the Rules. The fact that the doctor called in as a consultant entered his agreement on the Medical Committee's report and signed that report cannot be regarded as a procedural defect. Far from adversely affecting the applicant, the signed agreement of the consultant It follows that the Medical Committee represents an additional guarantee for should have accepted as definitive at him. The Commission points out in least the degrees fixed in the report of addition that the Medical Committee 25 May 1979, namely 2 5 % for the loss is not a court of law and that rules of vision in the left eye and 10% for concerning the composition and the the neurological symptoms. If the 8% functioning of courts are not applicable recognized by the Medical Committee in to it. respect of the sequelae in relation to the left knee and the 1% in respect of the

In connection with the additional In. this instance the doctor designated payment of 12%, the applicant points out assessed the rate of permanent partial that it was made following the pro- invalidity at 34%. The draft decision ceedings instituted by him before the pursuant to Article 21 of the Rules, Court in that matter. In its judgment of which was sent by the appointing 14 July 1981, the Court expressly noted authority to the applicant on that basis, that the applicant had obtained satis- expressly stated that it was subject to the faction on that point. In so doing, the acceptance of that offer by the official Court must be taken to have recognized concerned. Since the applicant did not the definitive character of the provisional accept it, it became null and void. From allowance paid and of the undisputed that moment it was possible to regard as degree of invalidity on the basis of which, the undisputed proportion only a rate of that payment had been made. 25%.

brief; the doctors merely made the any event, be used as the basis for the applicant sit down, took two mea- decision. surements of the circumference of the knees and asked him to roll up the lower part of his trousers. That "examination" shows that the doctors had not acted The Commission stresses the limits of the with the minimum of thoroughness Court's power of review as regards required. The applicant seeks to refute medical appraisals properly so-called, the Medical Committee's report by citing which must be regarded as definitive two expert opinions drawn up at his when they are adopted in accordance request by Professor Chaumont, the with the correct procedure. In this case Director of the Institute of Legal the Medical Committee was properly Medicine at the University of Stras- constituted. Its report is signed by four bourg, and by Professor Schmitt of the eminent doctors who issued their opinion Medical Faculty of the University of after having heard the patient's views, Nancy. Professor Chaumont certified after having examined his eyes and his that the applicant's degree of invalidity locomotor system and after having was 12% for the sequelae in relation to considered and discussed all the medical the left knee and 8% in respect of the evidence produced, including the reports sequelae to the right knee. Professor of Dr Schmitt and Dr Chaumont whom Schmitt first fixed the degree of the applicant had consulted on his own invalidity at 15% in respect of the left initiative. The doctor appointed by the knee and then concluded in a second applicant participated in all the Medical report that the sequelae in respect of Committee's deliberations and noted his both knees should be assessed at 20%, in agreement with the conclusions of that accordance with the scale of invalidity Committee. There are no grounds for under the insurance scheme for calling in question the conscientiousness European officials against the risk of of those deliberations and for attaching accident and of occupational disease. In more weight to the reports of the doctors view of the serious omissions and inad- consulted by the applicant on his own equacies of the Medical Committee's initiative. report, the Court might consider it appropriate to rely on the conclusions of those two doctors whose moral integrity and high level of skill cannot be contested. IV — O r a l p r o c e d u r e

3 In a report of 25 May 1979 the doctor appointed by the Commission for the purpose of determining the benefits payable to the applicant under Article 73 of the Staff Regulations of Officials estimated the degree of invalidity at 2 5 % for the eye injury, 10% for the neurological symptoms and 2.25% for the sequelae in relation to the knee. According to a proportionate calculation known as the "Balthazar rule", which was applied in that report, those rates resulted in an aggregate invalidity rate of 34 %. On that basis, on 24 July 1979, the Commission addressed to the applicant a draft decision in accordance with Article 21 of 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 Rules").

4 The applicant did not accept that draft and contested the medical findings of the doctor and the application of the "Balthazar Rule". He requested that the Medical Committee provided for in Article 23 of the Rules deliver an opinion. At the same time, he asked to be granted a provisional allowance, pursuant to Article 20 of the Rules, in respect of the undisputed proportion of the invalidity rate. The Commission granted the allowance but only in

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respect of an invalidity rate of 2 5 % . Subsequently, the Commission accepted in a letter dated 30 January 1980 that the provisions of the Rules excluded any reduction under the "Balthazar Rule" and that the aggregate rate of permanent partial invalidity should be obtained by adding up the various partial rates.

6 The Medical Committee, composed of three doctors, met on 13 July 1982 in the presence of a fourth doctor, Dr Daro, a surgeon practising in Luxem- bourg, who was called in for consultation by the unanimous agreement of the three members of the Medical Committee. According to the report drawn up by the Committee, after having examined the applicant and having studied the various reports and certificates contained in the file, the Committee estimated the aggregate invalidity rate at 34%, that is, 2 5 % for the loss of vision in the left eye, 8% for the sequelae in relation to the left knee and 1% for disfigurement. In addition it took 1 April 1979 as the date of the consolidation of the injuries and considered that there was no need for further treatment or therapy. According to the report that conclusion was reached "with the unanimous agreement of the four doctors present, duly constituting the Medical Committee". The report bears the signatures of the three members of the Medical Committee and that of Dr Daro.

7 On 3 February 1983 the Commission informed the applicant that it accepted the conclusions of that report, and that consequently the applicant should repay a sum of BFR 281 219 corresponding to the difference between the

JUDGMENT OF 29. U. 1984 — CASE 265/83

provisional allowance received by him on the basis of a degree of invalidity of 37% and the lump sum to which he was entitled in respect of a degree of invalidity fixed at 34 %. In addition it stated that the reimbursement at 100% of the costs of treatment, under Article 73 (3) of the Staff Regu- lations, was not justified after 1 April 1979, and that a sum of BFR 24 922 had been paid unduly. That amount was therefore carried forward to be deducted from future claims for reimbursement of medical expenses.

The Medical Committee's report

9 In support of his application, the applicant claims that the Medical Committee's report is vitiated by a procedural defect inasmuch as a doctor who was not a member of the Committee participated in its deliberations and

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signed its report. The Medical Committee ought to have accepted at least the degree of invalidity previously established by the doctor appointed by the Commission, and by the Commission when it paid the provisional allowance. Moreover, the Medical Committee failed to assess correctly the sequelae in relation to the applicant's knees, because its examination was too cursory. Those sequelae should have been assessed at 20%, as they had been by two eminent doctors consulted by him.

10 The Commission considers that the application is inadmissible in so far as the applicant asks the Court to substitute its own assessment for the findings of the Medical Committee and the appointing authority. It maintains moreover that the agreement of a fourth doctor does not constitute an irregularity in the Medical Committee's report. The Medical Committee's freedom of medical appraisal cannot be restricted by previous findings. There is nothing to suggest that it is possible to call in question the conscientiousness of the deliberations of the Medical Committee, which took into account in its report the medical certificates submitted by the applicant.

n There is no provision in the Rules which requires the Medical Committee to consider as definitive the contents of medical reports or other opinions pre- viously adopted. The Committee's task, which consists in considering entirely objectively and independently medical questions, requires that it be allowed complete freedom of appraisal. N o complaint may be levelled at the Medical Committee on the ground that, in relation to certain aspects of the applicant's injuries, it reached conclusions different to those of the doctor previously appointed by the Commission and those of the Commission itself in its draft decision, or those of other doctors consulted by the applicant.

u As regards the sequelae in relation to the knees, it is clear from the Medical Committee's report that it considered the relevant medical certificates submitted by the applicant. Moreover, there is nothing to suggest that the conclusions which it reached on that point result from an irregularity capable of vitiating its decisions.

is It follows from the foregoing that the action is unfounded in so far as it seeks the annulment of the medical findings made by the Medical Committee and in so far as it asks the Court to rule on the medical questions examined by the Committee and to order a new expert opinion.

T h e C o m m i s s i o n ' s d e c i s i o n on t h e d e g r e e of i n v a l i d i t y a n d t h e d a t e of c o n s o l i d a t i o n

i6 The applicant also claims that the degree of invalidity previously established by the doctor appointed by the Commission, and by the Commission itself in its draft decision of 24 July 1979 and when it paid the additional provisional allowance of 12 %, is binding on the Commission. It was not entitled to alter

i9 Following that notification, under the second paragraph of Article 21 of the Rules, the official or those entitled under him may lodge a complaint against the conclusions reached by the administration in its draft decision. Under that procedure he may refer the matter to the Medical Committee provided for in Article 23 of the Rules. The procedure is intended to safeguard the interests of the official and those entitled under him and to allow them to put

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forward their views on the medical findings. The administration, for its part, may not refer to the Medical Committee.

20 In follows from the foregoing that, in accordance with a principle widely recognized in the legal orders of the Member States with regard to pro­ cedures of complaint or appeal of a judicial or administrative nature, the appointing authority may not depart, to the detriment of the official, from the conclusions which it reached in its draft decision notified in accordance with the first paragraph of Article 21 of the Rules when it adopts the final decision. However, that principle applies only to the draft decision itself, fixing an aggregate invalidity rate and an allowance calculated on that basis; it does not apply to the various components of the report of the doctor appointed by the institution. That report merely represents an opinion which is not binding on the appointing authority and which is not part of the decision adopted by that authority.

23 It follows that, by fixing a permanent partial invalidity rate of less than 37.25% and by taking as the date of consolidation of the sequelae of the accident a date earlier than 18 May 1979, the Commission exceeded the limits of its discretion under the Rules, having regard to the conclusions which it reached in its draft decision. The decision of 3 February 1983 must be annulled in so far as it oversteps those limits.

T h e claims for t h e a w a r d of an a d d i t i o n a l a l l o w a n c e and i n t e r e s t

24 In support of his claim that the Court should order the Commission to pay him an additional allowance of BFR 50 000 the applicant merely referred to Article 73 of the Rules of Procedure and cited no other circumstance of fact or of law capable of supporting such a claim. It is sufficient to note in that respect that provision relates to recoverable costs and those are the subject of the decision as to costs.

25 As regards the payment of interest, it is sufficient to note that that claim has k ? c o m e devoid of purpose since the allowance definitively awarded scarcely differs from that paid on a provisional basis and that a claim for damages in the form of interest was already dismissed in the judgment of 14 July 1981 cited above.

26 It follows from all the above-mentioned considerations that the application is well-founded in so far as, in its decision of 3 February 1983, the Commission established an aggregate permanent partial invalidity rate of less than 37.25% and fixed a date earlier than 18 May 1979 as that of the consolidation of the sequelae of the accident, and in so far as the Commission claimed the repayment of the benefits relating thereto, but that the remainder of the application must be dismissed as unfounded.

hereby:

1. Annuls the Commission's decision of 3 February 1983 in so far as it establishes an aggregate permanent partial invalidity rate of less than 37.25%, in so far as it fixes a date earlier than 18 May 1979 as that of the consolidation of the sequelae of the accident and in so far as it claims the repayment of the benefits relating thereto;

2. Dismisses the remainder of the application;

3. Orders the Commission to pay the costs.

Kakouris Everling Galmot

Delivered in open court in Luxembourg on 29 November 1984.