C-242/85
ECLI:EU:C:1987:151
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OPINION OF MR DARMON — CASE 242/85
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 19 March 1987 *
Mr President, 3. Mr Geist also claims that the Invalidity Members of the Court, Committee was not properly constituted. I shall consider that issue first of all.
I — The composition of the Invalidity Committee 1. Mr J. J. Geist, an engineer specializing in the nuclear field, entered the employment of the Commission on 1 April 1962. In 1976 he stopped work on his own initiative and at his request he was retired with effect from 1 August 1984. 4. I do not think that this claim is admissible. The Commission has rightly pointed out that it is based on a legal ground which bears no relation to those on which the complaint was based. The case-law on the connection which must exist 2. In his application he seeks the annulment between the substance of a complaint within of two decisions of the Commission, acting the meaning of Article 91 of the Staff Regu as appointing authority: lations and that of an action before the Court has recently been confirmed and clarified in the judgment in Rihoux and 1 Others v Commission, According to that judgment, an applicant may not submit to the decision of 27 July 1984 granting him the Court conclusions 'with a subject-matter an invalidity pension on the basis of the other than those raised in the complaint or third paragraph of Article 78 of the Staff put forward heads of claim based on matters Regulations, whereas in his view the other than those relied on in the complaint. decision ought to have been taken pursuant The submissions and arguments made to the to the second paragraph of Article 78; Court in support of those heads of claim need not necessarily appear in the complaint, but must be closely linked to it'.
the decision of 10 August 1984 fixing 1 June 1983 as the date on which the applicant's right to remuneration was restored in 5. Mr Geist's conclusions in his application accordance with the opinion of the Inva have not altered the object of his complaint, lidity Committee, whereas in his view the but the claim based on the alleged unlawful medical documents relating to the period composition of the Invalidity Committee from 1 February to 31 May 1983 had not constitutes a new head of claim which was been submitted to the committee for not contained in the complaint. consideration. 1 — Judgment of 7 May 1986 in Case 52/85 ECR 1555. See, in * Translated from the French. particular, the cases cited in paragraphs 12 and 13.
GEIST v COMMISSION
II — The decision of 27 July 1984 9. That argument, based on a notion of procedural economy, reflects a mistaken view of the relationship between Articles 73 and 78. Although both articles are concerned with 'occupational disease', the 6. Pursuant to Article 78, an official first is intended to cover a risk arising from suffering from total permanent invalidity the performance of an official's duties and preventing him from performing the duties to provide benefits and allowances in the corresponding to a post in his career bracket event of injury suffered in the course of is entitled to an invalidity pension (first those duties. The second concerns only a paragraph) equal to the retirement pension finding of incapacity for work and a right to to which he would have been entitled at the a pension. The existence of an occupational age of 65 years if he had remained in the disease is relevant only for the purposes of service until that age (third paragraph). entitlement to a higher rate of pension where a pension is in any event payable. Whereas occupational disease is merely one factor governing the application of Article 78, it is the essential basis of Article 73. 7. Mr Geist was retired with an invalidity pension calculated under the third paragraph of Article 78. Because of his seniority the pension is 70% of his last basic salary. That is the maximum rate under the 10. That is what the Court held in the case Staff Regulations whether it be for a simple of B. v Parliament: 2 retirement pension or an invalidity pension granted on grounds of occupational disease.
'A comparison between Article 73 8. Can the applicant, therefore, (the (compensation for occupational disease) and question was raised at the hearing) be Article 78 (invalidity pension) indicates that regarded as having an interest in bringing the benefits provided by these two proceedings under that head? He argues provisions are different and mutually inde that he has, because a finding by the Inva pendent, although a person may receive lidity Committee that his invalidity was both of them.' caused by occupational disease would entitle him, on completion of the procedure for that purpose (which has not yet been initiated at the time of the hearing), to payment of the capital sum provided for in Article 73 (2) (b) of the Staff Regulations. Referring to Article 25 of the Rules, That procedure, laid down in Article 16 et pursuant to which 'recognition of total or seq. of the Rules on the Insurance of partial permanent invalidity pursuant to Officials of the European Communities Article 73 of the Staff Regulations and to against the risk of accident and of occupa those Rules shall in no way prejudice tional disease, adopted in application of application of Article 78 of the Staff Regu Article 73 of the Staff Regulations (here lations and vice versa', the Court concluded inafter referred to as 'the Rules'), is, he 2 — Judgment of 15 January 1981 in Case 731/79 [1981] ECR says, essentially a formality. 107, in particular paragraph 9.
OPINION OF MR DARMON — CASE 242/85
'that there are two different procedures refer to the judgment in the Rienzi case 4 for which may give rise to separate decisions the proposition that although the Invalidity independent of each other'. Committee has the sole power to determine the existence, level and consequences of invalidity in order to decide whether there is 11. Although it cannot be ruled out that the a connection between it and an accident or opinion of an Invalidity Committee (Article illness, it cannot determine whether such an 78) may have a certain influence on that of accident or illness is occupational in origin a Medical Committee (Article 73) or vice since that is a matter exclusively for the versa, such an influence cannot be assumed appointing authority. or have any legal effect whatever, in view of the independence in law of the two procedures. It is thus for the applicant, relying on his alleged material and
15. According to the judgment in K. v non-material interest, to initiate the Article Council 'the administration need not, in the 73 procedure. To seek, on the basis of course of the procedure for retirement on Article 78, satisfaction of a right which can the ground of invalidity cause to be be pursued only under another article would examined and determine as a matter of lead to confusion and not economy of course the cause of the invalidity' and 'it is procedure. for the official to request the benefit of the second paragraph of Article 78 of the Staff
5 12. I therefore think that Mr Geist has no Regulations'. legal interest in bringing proceedings with regard to the decision relating to his retirement. That question was the subject of argument at the hearing. In my view the 16. Mr Geist admits that he did not in the lack of interest in bringing proceedings beginning make any express application of constitutes an absolute bar to proceeding that kind, and in view of the aforemen with a case which may be considered by the tioned case-law he cannot rely on the Court at any time of its own motion administration's duty to afford assistance in pursuant to Article 92 (2) of the Rules of order to oblige it systematically to seek Procedure. additional explanations to cover any lacunae in requests made to it.
13. Alternatively, should the Court hold that Mr Geist has an interest in bringing proceedings I shall consider the question whether the Invalidity Committee ought or 17. Mr Geist attempts to draw support from could have determined whether or not the the aforementioned judgment with regard to illness or illnesses which it considered to the effect of his complaint submitted on 20 give rise to invalidity were occupational in November 1984. Like him, Mr K. had origin. In that respect the respective powers submitted a complaint seeking to have his of the Invalidity Committee and the pension fixed pursuant to the second appointing authority should be borne in paragraph of Article 78 of the Staff Regu mind. lations. The Court criticized the rejection of the complaint by the Council, holding that it should have determined the cause of the
14. As in my Opinion delivered in Case 3 214/85 Gherardi Dandolo v Commission, I 4 — Judgment of 21 January 1987 in Case 76/84 Rienzi v Commission ECR 315. 3 — Judgment of 20 May 1987; in Case 214/85 [1987] ECR 5 — Judgment of 12 January 1983 in Case 257/81 [1983] ECR 2163. 1, at paragraph 12.
GEIST v COMMISSION
invalidity 'and, if appropriate, should have agent of the appointing authority, the accorded him the pension rate which he was applicant should at the very least have been seeking'. 6 invited to attend the hearing, if necessary represented by his counsel. However, that objection can have no practical effect since the applicant's rights under Article 78 were not adversely affected. 18. It is true that the applicant requested in his complaint that the Invalidity Committee should meet again in order to determine whether the invalidity from which he was suffering was 'due to an occupational III — The decision of 10 August 1984 disease or other cause the nature of which should be specified' and made express reference to the application of the second paragraph of Article 78. Nevertheless, contrary to the situation cited, the object of 20. This decision was taken in accordance that request could not be to obtain a with the opinion of the Invalidity maximum rate of pension since that had Committee which found that the certificates already been granted by the appointing submitted after the previous Invalidity authority. We thus come back to the Committee had met on 31 January 1983 question of a lack of any legal interest in were valid 7and that they established 'Mr bringing an action. I therefore conclude, in Geist's incapacity for work from 1 June the alternative, that Mr Geist's claim for the 1983 until the present', that is to say until annulment of the decision of 27 July 1984 is 19 July 1984. unfounded.
21. It must be remembered that as
19. That conclusion is not affected by the circumstances in which an employee of the defendant, Mr Pincherle, was allowed to (i) the second and third paragraphs of make representations to the Invalidity Article 59 (1) of the Staff Regulations Committee. That was a regrettable course of required, and action, incompatible with observance of the balance of rights between the parties reflected in the composition of the Invalidity Committee. The Court had of course held (ii) and Article 9 of Annex II to the Staff that a committee composed of doctors may Regulations permitted, consult 'by common agreement other doctors if it considers it is necessary to do so, since the nature of the injuries to be assessed may require the opinion of a it was for the applicant to submit medical specialist'. That case-law does not apply, certificates to the appointing authority and however, where it is a question of obtaining the Invalidity Committee concerning his non-medical opinions. Since in this case the absence for the relevant period. Mr Geist information sought was of a legal nature does not claim that he did so. Nor has he and was, moreover, requested from an produced copies of medical certificates sent
6 — Judgment cited above in Case 257/81 K. v Council at 7 — Judgment of 29 November 1984 in Case 265/83 Suss v paragraph 15; my emphasis. Commission [1984] ECR 4029, at paragraph 12.
OPINION OF MR DARMON —CASE 242/85
by him to the appointing authority in certificate issued on 7 June 1983 by Dr respect of his absence during the relevant Olmechette certifies that Mr Geist was period. unable to work 'from 1 June 1983 to 31 August 1983'. 22. Finally, he claims that the date, 1 June 1983, from which his salary was reinstated 23. Accordingly, the decision of 10 August did not correspond to any medical 1984 does not appear to be improper in any certificate. That is not true, for the way.
24. I therefore propose that the action should be dismissed; with regard to costs, the combined provisions of Articles 69 (2) and 70 of the Rules of Procedure should be applied.