C-214/85

OPINION OF MR DARMON —CASE214/85

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 4 February 1987*

Mr President, composed of three doctors (Annex II, Members of the Court, Article 7) appointed, respectively, by the official concerned, by the institution to which he belongs and by agreement of the first two doctors. 1. The dispute between Sandro Ghérardi Dandolo and the Commission concerns the type of invalidity pension which he is paid. 1 The applicant seeks to obtain the benefit of In its recent judgment in the Rienzi case the second paragraph of Article 78 of the the Court held that the committee Staff Regulations of Officials, and not the third paragraph, which has been applied to him by the Commission. 'has exclusive powers regarding medical assessment'

2. A Community official normally works and that its powers do not extend until he retires, at the latest when he reaches the age-limit of 65. Early retirement may occur for a number of reasons, one of them 'to any cases in which a legal classification being that provided for by Article 78. is called for' (paragraph 9)

That article provides that in the event of since the determination of such conse­ total permanent invalidity preventing the quences official from performing the duties corre­ sponding to a post in his career bracket he is entitled to an invalidity pension (first 'is for the administration alone ... subject to paragraph) equal to the pension to which he review by the Court' (paragraph 11) would have been entitled if he had remained in the service until the age of 65 (third paragraph). and the Court rejected Mr Rienzi's first two submissions

In other words, the committee has the sole That was the case of Mr Gherardi. By letter power to determine the existence, level and of 6 May 1982 Dr Thomas asked the consequences of an invalidity and to decide administration for information on 'the whether there is a connection between such accidents suffered in 1978 and 1968'; the invalidity and an accident or illness, but not administration replied that these were not to decide whether the accident or illness are accidents at work and that therefore 'there work-related. is nothing to stop the invalidity procedure from taking its normal course'. 3. Since it is for the administration to determine whether or not the accident or illness is work-related, how can the Inva­ In the circumstances set out in the Report lidity Committee properly make a finding for the Hearing, by a decision of 21 June with a view to the possible application by 1982 the Commission retired Mr Gherardi the administration of the second paragraph and granted him an invalidity pension fixed of Article 78? in accordance with the provisions of the third paragraph of Article 78. In that regard the letter of 23 March 1982 sent by the appointing authority to Dr That decision led the official concerned to Thomas, the doctor appointed by the write two letters. applicant to the Invalidity Committee, with copy to Dr Nijs, the doctor appointed by the administration, embodying the terms of In the first, dated 28 June 1982, he reference of the committee is helpful. It requested the reconsideration of the states that decision 'in accordance with the document of the medical committee' which had found that his invalidity resulted 'in part from an 'if the members of the Invalidity Committee accident in the course of his duties'; that or the official himself consider it appro­ letter must be regarded as a complaint for priate to find that an occupational illness or the purposes of Article 90 (2) of the Staff the sequelae of an accident at work have Regulations, seeking to obtain the benefit of given rise to the invalidity procedure, the the second paragraph of Article 78; matter must first be referred to the department responsible for determining whether illnesses are occupational in In the second, dated 10 August 1982, he nature .... asked the appointing authority 'to initiate the procedure for determining the existence The Invalidity Committee may make a of an occupational illness'; the official thus finding on this aspect only after the requested the initiation of the procedure procedure in question has been completed provided for in Article 16 et seq. of the and in accordance with the results of such Rules on the Insurance of Officials of the procedure'. European Communities against the risk of

No reply was received to that letter within the prescribed period. Mr Gherardi's complaint must therefore prima facie be Secondly, in a letter of 21 May 1984 it regarded as having been the object of an pointed out that the 1968 accident was not implied rejection. No appeal was brought an accident at work, and asked 'whether the against that rejection within the applicable accident of 17 November 1964 alone was a time-limit, and it can therefore no longer be determining or constitutive factor in the challenged. That, indeed, is what the invalidity', that is to say whether it was its Commission argues. In order to circumvent 'substantial and primary cause'. that objection of inadmissibility, however, the applicant asserts that the decision adversely affecting him is not that of 21 June 1982, which is not contested, but that Taking due note of the fact that the of 20 July 1984, the nature and effect of accident of 3 January 1968 had not been which will be described; it is the latter held to be an accident at work, the Inva­ decision that he seeks to have reviewed by lidity Committee found, by a majority the Court. decision,

'that the accident of 17 November 1964 What happened between those two dates? alone [did] not, in [its] view, constitute a determining or constitutive factor, that is to say the substantial and primary cause of the After the decision of 21 June 1982 had invalidity'. become final, the Commission nevertheless considered that the opinion of the Invalidity Committee called for more detailed exam­ By a letter of 20 July 1984 the appointing ination; it therefore asked the committee for authority therefore informed counsel for Mr further information on Mr Gherardi's case Gherardi that in those circumstances it on two occasions. would not alter its decision of 21 June 1982.

A — An administrative decision may be Its report of 19 June 1984 simply rectifies an withdrawn by an act issued by the same error (the issue whether or not the accident authority or its superior which either of 3 January 1968 was an accident at work) expressly withdraws the previous decision or and draws the appropriate conclusion with contains a new decision which implicitly but regard to the question whether the accident necessarily takes the place of the previous of 17 November 1964 alone was the deter­ one. mining or constitutive factor in the applicant's invalidity. By stating that that accident was not 'the substantial and primary cause of the invalidity", the committee provided the appointing Contrary to the applicant's assertions, the authority with the information considered letter sent to his counsel on 20 June 1983 by necessary for the letter of 20 June 1983 in the appointing authority cannot be regarded order to put an end to the 'uncertainty' as a decision withdrawing the previous one. After recalling that which might have resulted from its earlier report. According to the committee, although the accident of 17 November 1964 was a partial cause of the invalidity (report of 28 May 1982) it was not its substantial 'it appears that no reply was made to Mr and primary cause (report of 19 June 1984). Gherardi's letter so that it must be concluded that there was an implied rejection of his complaint for the purposes of Article 90 (2) of the Staff Regulations', 6. Inasmuch as the decision of 21 June 1982 was not withdrawn, and in the absence of any new element of fact which would make it possible, notwithstanding the expiry of the the signatory simply refers to 'the strict time-limits, to call that decision in continuing uncertainty with regard to the question, it must be regarded as the act cause of Mr Gherardi's invalidity' and states adversely affecting the applicant for the that he has asked Dr Nijs for further infor­ purposes of these proceedings. mation regarding the cause of the invalidity in the light of which he will consider whether or not it is appropriate to revise the amount of the pension received by the It should be pointed out in that regard that applicant. the Commission has stated that it will refer