C-277/84
ECLI:EU:C:1987:456
- Súd
- Súdny dvor Európskej únie
- IČS
- 61984CC0277
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR LENZ — CASE 277/84
O P I N I O N OF MR ADVOCATE GENERAL LENZ delivered o n 27 O c t o b e r 1 9 8 7 *
Mr President, (v) in his application to the Court the Members of the Court, applicant includes for the first time a request that the minority medical A — Facts of the case report by Doctor Kater be recognized as the only valid report and that 1. The present case is concerned with the compensation be awarded to him for alleged sequelae of an accident in a nuclear damage to his career and all other power-station which the applicant was material damage suffered. visiting on instructions from the defendant. 3. From a purely economic point of view 2. The applicant puts forward numerous the applicant seeks a lump-sum settlement claims, from which the subject of the under Article 73 (2) of the Staff Regulations dispute and the substantive claims may be (namely the payment of a lump sum equal described as follows: to eight times his annual basic salary) and the defrayment in full of all the medical (i) the applicant first challenges the expenditure occurred as a result of the defendant's decision of 17 January Occupational disease' in accordance with 1984 whereby recognition of an occu- Article 73 (3) thereof. In addition, he seeks pational disease, following proceedings a ruling that in principle he must be under Article 73 of the Staff Regu- compensated for all consequential damage, lations, was implicitly withheld; as well as damages on account of the defendant's failure to provide for his welfare. (ii) he requests a declaration that the (majority) report underlying that B — Opinion decision is invalid both on procedural and on substantive grounds; Admissibility of the application (iii) he requests the appointment of a new 4. The defendant raises extensive objections Medical Committee; to the admissibility of the applicant's claims. It considers admissible only the request for in the alternative the commissioning of a judicial review of the decision of 17 a further medical report, January 1984, and of the medical report on which it is based. in the further alternative a declaration by the Court that he has an occupa- 5. The defendant's notification of 17 tional disease and is entitled to the January 1984 represents a decision which in benefits relating thereto; principle is open to challenge under Articles 90 and 91 of the Staff Regulations. Article (iv) finally, the applicant applies for 28 of the Rules on the insurance of Officials damages for having been employed, of the European Communities against the despite an established skin disorder, in risk of accident and of occupational disease areas subject to the risk of radiation (hereinafter referred to as 'the Insurance from 1973 until December 1975; Rules') expressly provides that decisions
* Translated from the German.
JÄNSCH v COMMISSION
taken pursuant to the Insurance Rules may only lead to the annulment of the contested be contested under Articles 90 and 91 of the decision. Staff Regulations. A review of that decision by the Court of Justice is therefore permissible. In connection with that judicial review it is also permissible for the Court to 9. The question whether the claim that a examine the medical report on which the further report be obtained would be decision is based, within the limits laid admissible as a simple offer of evidence may down by the Court in its case-law. be left aside. The only facts open to judicial
6. An application for the appointment of a review in accordance with the abovemen- new Medical Committee is not admissible. tioned case-law do not in any case The independent constitution of a Medical necessitate a further expert opinion. Committee does not lie within the powers of the Court of Justice but represents a procedure to be undertaken by the adminis- tration in accordance with its own rules. 10. For the same reasons which militate Even the manner in which the members of against both the appointment of a new the Committee, and in particular the parties' Medical Committee and the commissioning medical nominees, are appointed cannot of a further report, an ex officio finding of necessarily be altered by the Court. the existence of an occupational disease is beyond the jurisdiction of the Court.
It is 7. In any event, the purpose of such a claim true that, in disputes of a financial is also achieved by an annulment of the character, the Court of Justice has unlimited decision on the grounds that the medical jurisdiction under Article 91 (1) of the Staff report is invalid, with the result that the Regulations; however, where a decision is applicant's interests do not require judicial based on medical reports which themselves protection in this instance. are open only to limited review, jurisdiction over the contents of the decision cannot
8. The claim that the Court should order a exceed the powers of the authorities. Entit- further medical for the purposes of varying lements under Article 73 of the Staff Regu- the disputed decision is also inadmissible. It lations, like the entitlements under Article is thus irrelevant that this claim was put 10 et seq. of the Insurance Rules, are a legal forward in the alternative. In this regard, consequence of any effective finding that an too, it must be conceded that so radical an occupational disease has been contracted or intervention in an administrative procedure that an accident has occurred.
Those claims under the combined provisions of Article 73 cannot therefore be allowed independently of the Staff Regulations and the Insurance of recognition of the existence of those Rules lies beyond the powers of the Court. required facts and the procedure leading In defining its jurisdiction to undertake a thereto. It follows that the benefits in review, the Court has repeatedly indicated question may only be claimed once the that the proceedings of a Medical prescribed procedure has reached a Committee and decisions based thereon may conclusion. That applies not only to the only be reviewed for evidence of procedural lump-sum payment under Article 73 (2) but irregularities, legal misconceptions of also to the full reimbursement of costs certain concepts, or manifest errors in the incurred on medical grounds under Article assessment of the facts or in the conclusions 73 (3). The same necessarily applies to drawn. ' Defects of that kind may, however, payments to third parties (for example under Article 73 (2) (a) of the Staff Regu-
1 — See the judgments of 21 May 1981 in Case 156/80 lations) and to the benefits provided under Morbelli v Commission [1981] ECR 1357; of 26 January the Insurance Rules, in particular in respect 1984 in Case 189/82 Seiler and Others v Council [1984] ECR 229; and of 29 November 1984 in Case 265/83 Sussi of consequential damage. Commission [1984] ECR 4029.
OPINION OF MR LENZ — C A S E 277/84
11. As regards the question whether 13. The applicant's request for compen- damages may be claimed over and above the sation for damage to his career and all other lump-sum payments under Article 73 of the material injury is open to objection simply Staff Regulations and the Insurance Rules because of its uncertainty. That claim was adopted pursuant to them, the following put forward for the first time in the observations may be made: The defendant is application to the Court. Even on a liberal of the opinion that the amounts qualifying interpretation, the official complaint, which for reimbursement under Article 73 of the delimits the permissible scope of the dispute, Staff Regulations and the Insurance Rules cannot be considered to contain such a are 'exhaustive'. Stated in such a categorical claim. It must therefore be dismissed as manner, that contention cannot be accepted. inadmissible. Even the applicant's reference In Joined Cases 169/83 and 136/84 the to the Herpels case 5 cannot affect that Court held that benefits payable under the conclusion. It is true that, in that case, the Insurance Rules 'are not to be regarded as Court of Justice admitted a claim in providing full compensation in all cases'. 2 It damages which had not been expressed as cannot be inferred from the Insurance Rules such in the official complaint. As its reason that any additional compensation is for doing so, however, it stated that the excluded. Accordingly, an award by the claim was simply contingent on the Court presupposes that the defendant could annulment of the unfavourable decision in be held liable for a injury under general law dispute. In the present case, there is no such and that the benefits payable under the Staff dependency between the applicant's claims Regulations are insufficient. 3 because he seeks damages in addition to the compensation he may claim under Article 73 of the Staff Regulations and the Insurance Rules adopted thereunder.
12. The plaintiffs claim for damages for Substance having been employed in areas subject to the risk of radiation between 1973 and December 1975 despite an established skin disorder is, however, confronted by an obstacle unconnected with the general law 14. It therefore remains to examine the on compensation. The claim is not legality of the defendant's contested contingent upon the claims made under the decision of 17 January 1984 and the procedure laid down in Article 73 of the procedure culminating therein. It should Staff Regulations but rests on an alternative first be considered whether the full text of set of allegations. 4 This type of claim runs the Insurance Rules is applicable and counter to the requirement that claims must therefore whether they may serve as a be certain. Since it has been accepted that criterion for assessing the disputed the claims for a review of the procedure procedure both in procedural and in under Article 73 are admissible, the claim substantive terms. At the time of the events based on an alternative conflicting version in Gundremmingen, the Insurance Rules of the facts cannot be allowed. were not yet in force. Even the defendant's administrative practice of applying the 2 — See the judgment of 8 October 1986 in Joined Cases Insurance Rules to an incident which 169/83 and 136/84 Brummelbuis and Leussink v occurred a year before those Insurance Commission [1986] ECR 2801, at paragraph 12. 3 — See paragraph 14 of the abovementioned judgment. 4 — See the third and fourth indents of the sixth head of claim 5 — Judgment of 9 March 1978 in Case 54/77 Herpels v in the application. Commission [1978] ECR 585.
JÄNSCH v COMMISSION
Rules entered into force does not mean that regarded as a specific application of Article they must be applicable. However, since the 23 of the Insurance Rules. applicant formally requested that they be applied and the defendant responded by following a practice in conformity with 18. The applicant complains of certain those rules, it seems permissible to apply procedural irregularities in the setting-up of them. the Medical Committee, which, he claims, invalidate its report. The procedure culmi nating in the definitive appointment of the
15. At that stage of the proceedings the Medical Committee composed of Dr defendant pointed out that, in order for the Fliedner, Dr Rosier and Dr Kater was in Insurance Rules to be applied, damage had fact slow and time-consuming. None the to be found. That statement can be less, the Committee must in the event be understood to mean that, before the benefits regarded as properly constituted since the provided under the Insurance Rules can be delays were, in the final analysis, attrib awarded, damage must be established, and utable partly to the defendant, partly to the this is indeed the object of those Rules. applicant and partly to neither party.
Thus, Since the Insurance Rules were in fact neither the death of Professor Mahnstein, adhered to in the appointment of the nor Dr Semiller's decision to decline Medical Committee and in the determi appointment on account of excessive work, nation of its modus operandi and the nor the rejection of the proposed inclusion defendant expressly based its decision of 17 of Dr Rubileo on the grounds of his January 1984 on Article 23 thereof, it seems inadequate knowledge of German may be appropriate to apply those rules. The ascribed to either party or invalidate the contested procedure should therefore be proceedings. Even the defendant's hesitation assessed with regard to the Insurance Rules in designating Dr Horn, whose appointment as well. as the third member of the Committee was agreed by Dr Kater and Dr Fliedner, may be justified by the argument that the very purpose of the Committee requires that the
16. According to Article 21 of the third member should take a neutral position. Insurance Rules, the appointing authority Since Dr Horn was an official of the must, before taking a decision pursuant to defendant institution, his neutrality was Article 19, notify the official of the draft open to doubt, so that even with the consent decision. The defendanť's letter of 25 of Dr Fliedner and Dr Kater his October 1976 may be treated as such a draft appointment was not absolutely obligatory. decision, since it clearly states that the noti Finally, the appointment of D r Rosier by fication does not preclude further the Court of Justice as the third doctor on consideration and a fresh decision on the the Committee is a quite proper procedure applicant's case. Since the Insurance Rules which is laid down in the second paragraph had not yet entered into force at that time, of Article 23 of the Insurance Rules. it is immaterial that the letter was not expressed to be a draft decision.
19. Since the Medical Committee must be considered properly constituted, the next question is whether the modus operandi 17. The defendant's letter of 20 July 1977 adopted by that Committee was regular. informing the applicant that it intended to Two factors give rise to doubt here. First, refer the case to a 'Medical Commmittee' of no minutes of the meeting of 18 September three doctors for an expert opinion may be 1981 approved by a majority are available
OPINION OF MR LENZ —CASE 277/84
and secondly the members of the 22. Even though the above case-law relates Committee could not agree on the closure primarily to the division of the experts' of the proceedings or on a report approved votes in the preparation of a report, it may, by all the members. by extension, be inferred that, where there is disagreement in the course of the proceedings, the majority principle must enable the Committee to pursue its work. If, 20. It may well be regrettable that it was therefore, the members of the Committee not possible to reach agreement on the have not established by common consent content of the minutes. Nevertheless, the that their work is terminated — Dr Kater, existence of such a record is not an essential for example, called for further prerequisite for valid committee deliber- inquiries — the proceedings are ended de ations, so that the procedure cannot be facto when a majority report is drawn up. considered illegal on that ground.
21. In this connection it is worthwhile recalling the Court's case-law on the func- 23. Neither the proceedings nor the report tioning of committees. The Court has held 6 which emerged from the Committee's work that, where the Staff Regulations make is invalid on the grounds that the provision for a three-member committee, Committee members had no opportunity of they assume that it can take a majority examining certain essential facts. The decision in the absence of general applicant stated that he submitted to the agreement. Accordingly, if a report reflects Medical Committee the private reports a majority opinion, it should be regarded as which he himself had commissioned. Dr valid for the purpose of the Staff Regu- Kater's minority report also indicates that at lations, with all the legal consequences the sitting of the Committee he set out all which that entails. Furthermore, it is not the circumstances which he considered acceptable that the member of a Medical important, but that his colleagues had not Committee designated by one of the parties taken sufficient account of those circum- concerned should be able, by withholding stances in their report. The proceedings as his signature, to obstruct the procedure and such may therefore be regarded as having thereby defeat the application of the Staff been properly conducted. Regulations. 7 The Court has made the same pronouncements in disputes over the proceedings of the Invalidity Committee provided for in Article 59 of the Staff Regu- lations. However, the principle that a majority report should be regarded as valid 24. There remains the question whether the has also been confirmed in respect of the majority report is vitiated by irregularities proceedings of a Medical Committee under which invalidate it. Before discussing the Article 73 and the Insurance Rules adopted individual statements contained in the thereunder. 8 conclusions of the majority report, it must be clearly stated once more that the Court of Justice has consistently stated that its 6 — See ihe judgment of 12 March 1975 in Case 31/71 Gigante v Commission [1975] ECR 343 and also the judgment of 9 jurisdiction to review the contents of a July 1975 in Joined Cases 42 and 62/74 Vellozzi v report is limited. Thus the remedies Commission [1975] ECR 871. 7 — See the judgment of 16 December 1976 in Case 124/75 provided for by the Staff Regulations may Perinciolov Council [Í97 6] ECR 1965. in principle be employed only in order to 8 — See the judgment of 23 April 1986 in Case 150/84 Bernardi v European Parliament [1986] ECR 1375. obtain a review confined to questions
JÄNSCH v COMMISSION
concerning the constitution and proper pre-existing disease not included in the List functioning of the Committee. The medical referred to in paragraph 1 . . . if it is suffi- appraisal as such must be considered ciently established11 that such disease or definitive if it is adopted in accordance with aggravation arose in 'the course of in the correct procedure. 9 The Court itself connection with the performance by the cannot determine whether or not an official of his duties with the Communities' 'occupational disease' exists. On the other is also treated as an occupational disease. hand, it does have jurisdiction to annul any Thus a priori any disease may be recognized decision which is illegal inasmuch as it is as an occupational disease, although those based on irrelevant conclusions reached by contained in the European List of Occupa- the Medical Committee. Such a short- tional Diseases are considerably easier to coming might for instance arise if the substantiate. An accident, evidence of which Medical Committee adopted an erroneous also gives to rise to claims for benefit under view of the concept of Occupational Article 73 of the Staff Regulations and the disease', or if its report did not show a Insurance Rules, means 'any occurrence or reasonable link between its medical findings external factor of a sudden, violent or and its conclusions. 10 abnormal nature adversely affecting an official's bodily or mental health'. H
25. Consequently, the Court of Justice has 27. In the conclusions of the majority jurisdiction to examine whether an expert report all those requirements are examined kept within the limits of the relevant and dismissed as not having been satisfied. provisions when referring to an 'occupa- The experts express their views on the tional disease'. 11 The same applies to the question of an 'accident' and on that of an concept of 'accident' as defined by Article 2 'occupational disease'. One of the of the Insurance Rules. According to Article applicant's objections is that the experts 3 (1) of those Rules, Occupational diseases' failed to consider the effect on his mental are all the diseases contained in the health of the incident in Gundremmingen. European List of Occupational Diseases However, the report expressly states that annexed to the Commission Recommen- the 'considerable mental stress' which the dation of 23 July 1962, 12 to the extent to applicant claimed he suffered was taken into which the official has been exposed to the consideration, but that the incident at risk of contracting such diseases in the Gundremmingen was not a relevant cause of performance of his duties. impairment to his mental health.
28. The reasons given deny the existence of 26. Under Article 3 (2) of the Insurance any causal connection between event and Rules any 'disease or aggravation of a damage as required by the law on damages. Since the concept of causation in the law on 9 — See the judgments in Case 156/80 [1981] ECR 1359, at damages implies a sufficient cause, the paragraph 20, and in Case 265/83 [1984] ECR 4029, at assessment made by the majority report paragraph 11. 10 — See the judgment in Case 189/82 [1984] ECR 229, at discloses no error of law. Any further paragraph 15. enquiry into the question whether that 11 — See the judgment of 2 May 1985 in Case 118/84 Commission v Royak Brige [1985] ECR 1889, at paragraph 13 — My emphasis. 12 — Journal Officiel, 31.8.1962, L 80, p. 2188. 14 — Article 2 (1) of the Insurance Rules.
OPINION OF MR LENZ —CASE 277/84
assessment is well founded is, as explained positive evidence of damage attributable to above, beyond the powers of the Court. the events in question, because a decision under Article 73 of the Staff Regulations cannot take the form of a decision basically accepting that the events are potentially 29. The views expressed on the question of liable to cause damage. the existence of an occupational disease are not vitiated by any error of law either. In particular, the only relevant diseases contained in the European List of Occupa- 32. Having regard to the foregoing tional Diseases, namely category F 1 considerations, it must be assumed that the (diseases due to ionizing radiation) and authors of the majority report neither category B 2 (dermatitis contracted at work proceeded on the basis of incorrect defi- from substances not mentioned elsewhere), nitions nor drew manifestly wrong were expressly discounted. As the conclusions. defendant's representative correctly observed at the hearing, exposure to radiation due to an accident occurs where 33.
There remains only the question there is unforeseen and unintentional whether the defendant's decision of 17 exposure to radiation and one of the stated January 1984 was properly adopted under dosage-limits for employees exposed to Article 19 of the Insurance Rules. That is radiation is exceeded.15 That, however, was doubtful, because the actual decision merely not the case. confirms another decision adopted in proceedings under Article 78 of the Staff Regulations (invalidity). As is clear from
Article 25 of the Insurance Rules, the 30. Since the applicant does not positively proceedings under Articles 73 and 78 of the assert that his exposure to radiation Staff Regulations are completely inde- exceeded the dosage limits, or at any rate pendent of one another. It is therefore not provides no evidence to that effect, it permissible to combine the two proceedings cannot be concluded that the Committee and thereby prevent a clear distinction was mistaken about the facts. Lastly, the between the decisions to be taken in each experts deny that Article 3 (2) of the case. The decision in the Article 78 Insurance Rules is applicable, mainly on the proceedings had been adopted considerably ground that the incident of 19 November earlier and was no longer in dispute.
On the 1975 neither caused nor aggravated the skin closure of the Medical Committee's rashes found earlier. proceedings to establish whether an accident or occupational disease had occurred, only a decision in the proceedings under Article 73 of the Staff Regulations remained to be 31. Finally, it should be mentioned that adopted. Since the defendant expressly even Dr Kater"s report, the content of based its decision on Article 23 of the which is accepted by the applicant, does not Insurance Rules, the notification had to be categorically state that damage exists. The construed as implying that the conditions statement that somatic sequelae cannot be for an award of benefits under Article 73 of ruled out is insufficient to constitute a the Staff Regulations were not fulfilled. finding that an accident or an occupational Although a clearer formulation would have disease, within the meaning of the Staff been desirable and appropriate, the notifi- Regulations, has occurred. There must be cation of 17 January 1984 may be regarded as a decision for the purposes of Article 19 15 — See Directive 80/836/Euratom, Officia! Journal 1980, L of the Insurance Rules. 246, p. 1.
JÄNSCH v COMMISSION
34. As far as the claims regarding any 36. Costs are to be apportioned in delayed injuries are concerned, it must be accordance with Article 70 of the Rules of observed that the defendant had already Procedure. In staff cases, institutions must pointed out in correspondence preceding bear their own costs. In the present case, the action before the Court that a further however, I propose that Article 69 (3) of the examination of the case and a fresh decision Rules of Procedure should be applied, were possible should subsequent injuries under which even a successful party may be come to light. At the oral hearing, too, the ordered to pay all the costs. This award is defendant's representative again drew warranted by the behaviour of the attention to that possibility. defendant institution, which is partly to blame for the dispute. Although the defendant based its decision of 17 January 1984 on the provisions of the Insurance 35. According to Article 17 of the Rules, it expressed it as a confirmation of a Insurance Rules, it seems possible to decision adopted in unrelated proceedings recommence proceedings to establish an under Article 78 of the Staff Regulations. occupational disease. However, a decision When the applicant asked for clarification, as to whether the incident amounts to an he received no answer. When he finally 'accident' within the meaning of the Staff lodged an official complaint, the defendant Regulations acquires the force of res failed to respond. In order not to forfeit his judicata. As regards an occupational disease, legal rights, the applicant was therefore fresh facts would also have to be adduced. obliged to apply to the Court. For the purpose of investigating fresh facts it is, of course, possible to reopen the I therefore propose that the Court should proceedings. hold as follows:
C — Opinion
T h e application is dismissed. T h e d e f e n d a n t is o r d e r e d t o bear the costs.