C-76/84

Mr President, In the case of invalidity deliberately brought Members of the Court, about by the official, the appointing authority may decide that he should receive only a retirement pension.' A — 1. The proceedings in which I am to give my Opinion today are concerned with the question whether the applicant, who has been in the service of the European 3. I may be very brief in my comments Communities since 1966 and has already regarding the background to the brought proceedings before the Court in proceedings in view of the findings made in Cases 255 and 256/83, is entitled to an the judgment, and in my Opinion, in Cases invalidity pension under the second 215 and 256/83. paragraph of Article 78 of the Staff Regu- lations or only under the third paragraph of that article. 4. It will be recalled that disciplinary proceedings were instituted against the 2. Article 78 is worded as follows: applicant lasting from September 1981 until January 1983. In December 1982 the Disci- plinary Board found that the applicant had 'An official shall be entitled, in [the] manner committed a breach of his obligations as an provided for in Articles 13 to 16 of Annex official by actively participating in the trans- VIII, to an invalidity pension in the case of mission of documents of a non-confidential total permanent invalidity preventing him nature to third parties in return for from performing the duties corresponding payment, by providing incorrect information to a post in his career bracket. in his application for authorization to engage in an outside activity as regards the Where the invalidity arises from an accident scope of that activity and the remuneration in the course of or in connection with the therefor, and by failing to obtain authori- performance of his duties, from an occupa- zation to engage in an outside activity for tional disease, from a public-spirited act or the period from 1977 to 1982. On the basis from risking his life to save another human of those findings and in accordance with the being, the invalidity pension shall be 7 0 % of Disciplinary Board's proposal, on 3 January the basic salary of the official. 1983 the appointing authority downgraded the applicant from Grade A5 to Grade A6 as a disciplinary measure. 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 5. It will also be recalled that the applicant of 65 years if he had remained in the service failed in his action in Joined Cases 255 and until that age. 256/83. By judgment of 11 July 1985, the Court dismissed his action against the disci- plinary measure and his action for compen- sation on account of wrongful acts or

omissions on the p a n of the Commission stating that the wording used by the Inva- during the disciplinary proceedings, which lidity Committee referred to the disciplinary were allegedly the cause of his illness and proceedings instituted against him. It thus invalidity. followed — and this finding was definitive in his view — that his invalidity arose from an occupational disease with the result that the second paragraph of Article 78 was applicable. 6. As a result of his illness — and here I come to the subject-matter of these proceedings — the applicant seems to have been repeatedly absent from work from 9. In order to gain support for that view, on December 1981, and in March 1983 his case 19 July 1983 the applicant wrote to the was referred to the Invalidity Committee. doctor whom he had designated to sit on The committee was expressly instructed to the Invalidity Committee.

In September 1983 the applicant received the reply that the 7. After examining the applicant, the Inva- committee had unanimously taken the view lidity Committee stated on 7 May 1983 that that the disciplinary proceedings were the he was suffering from total permanent inva- cause of the serious depression from which lidity and, as regards the cause thereof, it he was suffering, which had led to his inva- also found that 'the invalidity arose in lidity, with the result that there was a direct connection with specific events which connection between those events and the occurred in the performance of his duties'. deterioration in the applicant's health.

10. The applicant's complaint was unsuc- used by the Invalidity Committee — to cessful. It was expressly stated in a decision which I have just referred — 'does not of 20 December 1983 (that is to say after correspond to any of the possibilities set out the expiry of the four-month period in the second paragraph of that article'. prescribed by Article 90 of the Staff Regu- lations) that Article 3 of the Rules on Insurance for Officials of the European Communities against the risk of accident

RIENZI v COMMISSION

This that does not justify the conclusion that the means that there is no reason whatever to applicant is suffering from an occupational determine which of those two paragraphs disease. must be applied to the applicant. 11. The applicant has therefore brought this action in which he claims that the Court 14. However, following the explanation should: furnished by the Commission, the further question arose whether the applicant has (1) Annul the decision of 27 June 1983 and any interest at all in pursuing these the accompanying letter of the same proceedings.

B — 12. My assessment of those claims and of an occupational disease), in order to the arguments which have been put forward enable him — and also the Commission — in support thereof, none of which are to decide on his rights under Article 73 of accepted by the Commission, is as follows: the Staff Regulations (in respect of which, as is clear from the letter of 27 June 1983, I — Admissibility he has already submitted a claim).

18. 1. I should begin with the applicant's argument, which is the subject-matter of the 16. However, it is clear that in this case the first submission, to the effect that the Inva- medical findings (namely that the applicant's lidity Committee recognized that he was illness is attributable to the disciplinary suffering from an occupational disease. The proceedings) are not contested; instead, the decision of 27 June 1983 was based, as is crux of the matter is whether in such cases clear from the reasons stated therein, exclu- there is any scope for a legal assessment on sively on the findings of the Invalidity the part of the appointing authority and Committee. However, in so far as it whether that assessment was correct, excludes the application of the second inasmuch as there was held to be no suffi- paragraph of Article 78 of the Staff Regu- ciently close connection with the applicant's lations (which concerns invalidity arising professional life on the ground that his from an occupational disease), the decision illness is the result of disciplinary is criticized by the applicant for not stating proceedings quite properly brought against the reasons for its exclusion. him on account of his misconduct. It must also be acknowledged that the answer to that question may — in view of the fact that 19. Let me state at once that I do not share the concept of Occupational disease' in Article 73 of the Staff Regulations is the that view. same as in Article 78 — have an impact on Mr Rienzi's other application, referred to earlier, which was clearly submitted within 20. (a) It is significant that the second the period prescribed by Article 17 of the paragraph of Article 78 contains the Insurance Rules and has not yet been following phrase: *Where the invalidity decided upon. arises from . . . an occupational disease The question which the Invalidity Committee had to answer, on the form which it was required to complete, is 17. Accordingly, it may be considered couched in similar terms. As stated earlier, justified, in order to simplify the procedure, however, the question was not answered to recognize that the applicant has a with a simple affirmative (which was reasonable interest in the clarification of possible) but in the following terms: 'The certain fundamental issues in these invalidity arose in connection with specific proceedings. In any event, I would not events which occurred in the performance suggest that the Court declare the action as of his duties.' That can only mean that the a whole inadmissible on account of the Invalidity Committee in fact did not wish to absence of a legitimate interest, but merely make a finding of the kind envisaged by the put forward for consideration the possibility second paragraph of Article 78 of the Staff

Regulations, but merely wished to point to 23. (b) With regard to the applicant's the existence of a connection between the contention that the statement of reasons is applicant's invalidity and his employment. inadequate, it must be pointed out in the first place that the reference in the grounds of the decision of 27 June 1983 to the findings of the Invalidity Committee must 21. That conclusion cannot be avoided even be understood as applying only to the if, on the basis that the same concept of finding concerning total permanent inva- 'occupational disease' is used in Article 73 lidity. It may therefore be said that the and in Article 78 of the Staff Regulations, decision itself does not contain any grounds reference is made to the definition of occu- justifying the application of the third pational disease in Article 3 of the Insurance paragraph of Article 78 of the Staff Regu-

With regard to the taken into consideration for those purposes. opinion expressed by the applicant's doctor From that point of view it is significant that on 6 September 1983, to which the the letter accompanying the decision of applicant has also referred, the essential 27 June 1983 states that the wording used element is clearly the finding that the by the Invalidity Committee does not applicant's serious depression and his inva- correspond to any of the possibilities lidity were caused by the disciplinary referred to in the second paragraph of proceedings (which implies a connection Article 78, with the result that the latter with certain aspects of the applicant's provision cannot be applied to Mr Rienzi.

22. Accordingly, the applicant's view that of the disciplinary proceedings. It follows the Invalidity Committee established that his from that interpretation that there was no invalidity arose from an occupational disease cannot be upheld. 1 — Judgment of 21 June 1984 in Case 69/83 Lux v Court of Auditori [1984] ECR 2447.

need either in the decision itself or in an lidity can be established and whether there accompanying letter for the appointing is a causal connection between the two), it authority to state the reasons why it had is equally true that questions of a legal 'departed' from the conclusions of the Inva- nature also arise (for instance, on the inter- lidity Committee. pretation of the Staff Regulations) and, in particular, whether there is a sufficiently close connection between an illness that has been held to exist and the duties performed. 25. (c) Accordingly, there is nothing in the This is sufficiently borne out by certain applicant's first submission to bear out his other factors in the second paragraph of

illness. sufficiently direct relationship with a specific and normal risk inherent in the duties which he performed'. It is also significant that reference is made to the fact that the admin- 27. In this respect also I see no reason in istration should have considered and the final analysis to criticize the determined whether or not the applicant's Commission's attitude. invalidity had arisen from an occupational disease; the Court would not have expressed itself in those terms if such an assessment by the administration were not called for. 28. (a) T o begin with, the answer to the fundamental question whether the findings required under the second paragraph of Article 78 of the Staff Regulations are exclusively a matter for the Invalidity Committee, that is to say for doctors, or 29. There is nothing in Article 13 of Annex whether a legal appraisal by the adminis- VIII to the Staff Regulations, to which the tration of the concept of Occupational applicant has referred, which militates disease' is also necessary, must be in my against that view. That provision, which view that such an appraisal is required. Even states that ' . . . an official aged less than 65 though it must be acknowledged that, in that regard, a broad area is reserved for 2 — Judgment of 24 November 1983 in Case 342/82 Cohen v Commiuion [1983] ECR 3829. purely medical findings (for instance, 3 — Judgment of 12 January 1983 in Case 257/81 K. v Comicii whether there is an illness, whether inva- [1983] ECR 1,7.

years who at any time during the period in Court's judgment in Joined Cases 255 and which he is acquiring pension rights is 256/83 (in which it also considered the recognized by the Invalidity Committee to objection that those proceedings had been be suffering from total permanent inva- conducted too slowly). lidity . . . ', shows only that the task of establishing whether an official suffers from invalidity is a matter for the Invalidity Committee but not that it is also for the 32. On that basis, and contrary to the committee to determine whether such inva- applicant's view that the concept of lidity arose from an occupational disease Occupational disease' should be given a where there is merely a link with the service broad interpretation (he would define an but not with the normal risks inherent occupational disease as any illness which therein. manifests itself in the course of or in

It is whose definition of Occupational disease' equally clear — as is already apparent from differs from that of the applicant and lays the observations concerning the first emphasis on whether an illness 'arose in the submission — that in the light of the course of or in connection with the wording selected by the Invalidity performance by the official of his duties Committee and referred to at the outset, the with the Communities'. Even clearer is the Commission's finding concerning the occu- wording used by the Court in its judgment pational nature of the applicant's illness in Case 257/81, to which reference has cannot be regarded as unlawfully chal- already been made and according to which lenging the findings of the Invalidity it is necessary to verify whether the Committee. applicant's pathological condition has a sufficiently direct relationship with a specific

Yet to argue that he contracted Committee reached the — medically his illness in the course of his duties merely unchallengeable — conclusion that the because the administration has drawn decisive factor in the applicant's illness was certain consequences from conduct which is the initiation of disciplinary proceedings essentially unconnected with his duties against him, which are not open to criticism would unquestionably be to subscribe to an as regards either their course or their unacceptable confusion of concepts. outcome, as is clear, moreover, from the Moreover, it is difficult to find any support

for that view in the general scheme of 36. (a) The preliminary remark may be Article 78 (which, as the applicant contends, made that the applicant has misrepresented is to be regarded as an exhaustively the reasons stated in the decision of 27 June regulated system under which, as is clear 1983. As I have already demonstrated, the from the last paragraph, only invalidity reference to the findings of the Invalidity deliberately brought about by the official Committee is relevant only as regards the may justify a reduction in pension rights). finding of invalidity. However, the reasons That does not appear to be an overriding for the application of the third paragraph of consideration; instead it must be recognized Article 78 of the Staff Regulations are to be that other, improper conduct, which has found only in the accompanying letter of given rise to disciplinary proceedings against the same date. It is clear from the reasons the official and has finally resulted in his set out in that letter that the second invalidity, may certainly be taken into paragraph of Article 78 of the Staff Regu- account in connection with an assessment of lations was not applied because on the basis the question, which is essential for the of the words used by the Invalidity purposes of the second paragraph of Article Committee and referred to earlier there was 78, whether or not the cause of the in- no occupational disease. In that regard, validity lies in the duties performed. however, the decision on the complaint does Accordingly, there can be no question of not really contain any fresh reasons of a the system established by Article 78 of the different kind. As the Commission has Staff Regulations having been disrupted. stated, it merely clarifies the reasons set out in the accompanying letter in so far as behind the wording selected by the Inva- lidity Committee lies the finding, of which the applicant is aware, that his illness was 34. (d) I must therefore conclude that none caused by the disciplinary proceedings. The of the arguments adduced by the applicant decision on the complaint simply makes it in support of his second submission serves quite clear that the disciplinary proceedings to substantiate his claims. It also follows were initiated against the applicant on that there is no need to accede to the account of his misconduct and that, in those applicant's request to call the doctors sitting circumstances, there can be no question of on the Invalidity Committee as witnesses. his illness having been caused by the risks inherent in his duties.

Court. In Cases 121/76* and 75/77,5 the 91 (3) provides that the period for lodging Court has held that the statement of reasons an appeal starts to run afresh where a on which an implied decision rejecting a complaint is rejected by an express decision complaint is based is necessarily deemed to after being rejected by an implied decision. be the same as the statement of reasons for As the Commission has rightly pointed out, the contested decision. It has further held, that confirms its point of view, since a fresh in Cases 33 and 75/79, 6 that an express period for reflection (for that is how the decision rejecting an official's complaint period for lodging an appeal must be after the expiry of the four-month period viewed) is justifiable only if the decision on prescribed by Anicie 90 (2) of the Staff the complaint may contain information not Regulations merely confirms the implied already set out in the original decision. decision already in existence at the time. The Commission's point of view is also supported by certain unequivocal indications afforded by the scheme of the complaints procedure which is laid down in the Staff 39. (c) Accordingly, the applicant's third

Furthermore, reference may also be made to the fact that Article 42. Once again it must be borne in mind that the Invalidity Committee did not actually classify the applicant's illness as an 4 — Judgment of 27 October 1977 in Case 121/76 Moli v occupational disease but made it clear, by Commission [1977] ECR 1971. the choice of a specific wording, that the 5 — Judgment of 13 April 1978 in Case 75/77 Moliti v matter was to remain open for consideration Commission [1978] ECR 897. by the administration.

OPINION OF MR LENZ — CASE 76/84

departed from the Invalidity Committee's rules on invalidity and — as I have demon- assessment, inasmuch as it made its strated — rightly came to the conclusion autonomous decision on the matter. that, in those circumstances, the applicant's invalidity arose not in the course of or in 43. Nor can there be any question of the connection with the performance of his applicant being penalized a second time on duties but from some other cause within the account of his previous misconduct, for meaning of the third paragraph of Article 78 which he was rightly censured. The of the Staff Regulations. Commission merely considered the facts of the case (namely invalidity resulting from 44. Accordingly, there can be no question disciplinary proceedings) in the light of the of a misuse of powers by the Commission.

C — 45. Since the applicant has not succeeded in any of his submissions, and the Commission was right to refuse to recognize his illness as an occupational disease, the Court should dismiss the application in its entirety and make an order as to costs in accordance with Article 70 of the Rules of Procedure.