C-268/86
ECLI:EU:C:1988:65
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OPINION OF MR CRUZ VILAÇA — CASE 268/86
OPINION OF MR ADVOCATE GENERAL C R U Z VILAÇA delivered o n 9 F e b r u a r y 1988 *
Mr President, 4. By letter of 6 December 1985, Dr Members of the Court, Fettmann informed Dr Christophersen that Dr Palgen was to be the third doctor on the committee and invited her to a meeting on 12 December 1985. However, on 9 1. Having found that an official in its December, Dr Christophersen told Dr employment, Lise Ciasen, had been absent Fettmann that she did not have sufficient from work on grounds of ill health for 542 up-to-date information regarding the days between 13 January 1982 and 1 August applicant's health and would be examining 1985, the European Parliament, in a letter her on 19 December; thereafter, on 6 from the Director of Personnel and Social January, she sent a medical report to the Affairs dated 4 October 1985, notified to Parliament concluding that an invalidity her its decision to initiate the procedure pension should be granted to the applicant. provided for in Article 78 of the Staff Regu- A further meeting was then convened by Dr lations of Officials of the European Fettmann for 17 February 1986. The Communities and asked her to appoint a meeting in fact took place in the absence of doctor to represent her on the Invalidity Dr Christophersen, who wrote to say that Committee in accordance with Article 7 of she would be unable to travel to Annex II to the Staff Regulations. Luxembourg on the proposed date. The two doctors present then prepared a report, signed by both of them, concluding that the applicant was not suffering from either 2. The applicant designated Dr J. Christo- permanent or temporary invalidity. phersen, a doctor in Denmark, to represent her on that committee; the Parliament had appointed Dr L. Fettmann as its represen- tative, and by letter of 28 November 1985 it asked him to contact Dr Christophersen 5. Having regard to the committee's regarding the choice of the third doctor and conclusions, the Parliament's administration, to make arrangements for the functioning of by letter of 3 March 1986, called upon the the committee. applicant immediately to resume work.
3. Pursuant to Article 78 of the Staff Regu- 6. It was against that decision, which gave lations, the task of the committee was — as rise to the consequences provided for in is apparent from the letters to which I have Article 60 of the Staff Regulations, that the just referred — to determine whether the applicant submitted a complaint, which was applicant was suffering from total rejected by the administration and followed permanent invalidity preventing her from by the bringing of the present action. The performing the duties corresponding to a applicant seeks the annulment of the order post in her career bracket. to resume work, since in her view it was
* Translated from the Portuguese.
CLASEN v PARLIAMENT
based on the report of an Invalidity decision as to the invalidity or otherwise of Committee whose composition and the applicant for the purposes of Article 78 proceedings were vitiated by serious irregu- of the Staff Regulations but not the validity larities; she also asks that, in consequence, of the only decision which was in fact her case should be referred to a new Inva- taken, namely to instruct the applicant to lidity Committee and that she should be resume work on the ground that her state of paid the salary which she considers to be health was not considered such as to justify due to her, together with default interest, her prolonged absence. and that she should be awarded costs.
11. In those circumstances, the applicant, in 7. In response to the application, the the Parliament's view, has no interest in Parliament raised an objection of inadmissi- bringing proceedings since a declaration bility on the ground that the applicant had that the procedure followed was void could no interest in bringing an action. not have any effect on the decision adopted.
8. Let us consider that aspect immediately. 12. It does not seem to me that the Parliament is correct to approach the problem from the point of view of admissi- bility of the application. A — The admissibility of the action
13. The decision attacked by the applicant 9. According to the European Parliament, is the instruction to resume work contained the underlying cause of the present action is in the administrative measure adopted by not an application for the grant of an inva- the European Parliament on 3 March 1986. lidity pension which was rejected by the Since that measure is capable of adversely appointing authority but simply a procedure affecting the applicant, she has an interest in initiated by that authority to establish contesting its legality (Article 91 (1) of the whether or not the applicant's absences Staff Regulations) if the intervention of the were justified on medical grounds, with a Court might result in the decision's being view to the possible application of the changed. Whether or not the submissions measures provided for in Article 60 of the relied upon by the applicant are well Staff Regulations. founded is another question.
10. Although a medical report would have 14. It seems to me to be beyond dispute been sufficient for that purpose, the that the decision contained in the letter of 3 appointing authority resorted to the March displays the features of a measure procedure under Article 59 of the Staff likely to have an adverse effect and, as such, Regulations because it also wished to check, one against which an action may be as a matter of proper administrative brought. In fact, the letter in question practice, whether or not it was appropriate (notwithstanding the courteous terms in to grant an invalidity allowance. In those which it is couched) contains a clear and circumstances, even if the procedure were precise instruction to the applicant requiring subject to any irregularity under Article 7 et her immediately to resume her duties. The seq. of Annex II to the Staff Regulations, Parliament's order immediately affected the that could only affect the validity of a applicant's legal situation since failure to
OPINION OF MR CRUZ VILAÇA — CASE 268/86
comply with it would involve the transition relied upon remain to be examined; let us from justified absence on grounds of ill therefore consider the merits of the case. health to unjustified absence, and the ensuing consequences (essentially, financial and disciplinary measures). It does not seem that the applicant should be obliged to wait 20. However, in that regard it does not for those consequences (some of which are seem to me that the applicant's position is automatic, under Article 60) in order to tenable. The submissions and arguments bring her action. relied upon by her do not relate to the contested decision in such a manner as to enable them to produce the desired result. 15. As is apparent from the actual letter sent to the applicant, the administration's decision was based on the conclusions of the 'Invalidity Committee'. By alleging that the 21. Those submissions and arguments could constitution and functioning of that only have repercussions upon a decision committee was irregular, the applicant which was not in fact taken: the grant or sought to challenge the legality of the refusal of an invalidity pension under Article measure to which its proceedings gave rise. 78 of the Staff Regulations. As regards the decision which was actually taken and is now challenged (which is capable only of giving rise to the consequences envisaged in 16. If the Court were to consider that her Article 60 of the Staff Regulations), arguments were well founded, the applicant although it was adopted by the appointing would be in a legal situation different from authority pursuant to the procedure laid that which would have existed if she had down in Article 78, it would have been not brought an action. sufficient to follow a procedure which offered considerably fewer safeguards. Accordingly, only if it should prove to be 17. In other words, the applicant has an the case that irregularities in the procedure interest in bringing an action by virtue of followed resulted in less adequate safe- the effects which the judgment to be guards being available to the applicant than delivered by the Court might have on her those inherent in the procedure normally legal situation, if that judgment were to used for the adoption of the contested uphold her application. 1 decision could those irregularities have any effect on the validity of that decision; take, for example, the hypothetical case of an 18. I therefore propose that the Court objection regarding the standing as doctors should dismiss the objection of inadmissi- of the persons who considered whether the bility. applicant's absence was justified.
B — The merits of the application 22. However, that is not the case here.
19. The test of admissibility having been passed, the submissions and arguments 23. The propriety of the decision would have been sufficiently guaranteed by any 1 — See judgment of 2 July 1969 in Case 20/68 Pasetti v medical examination arranged for by the Commission [1969] ECR 235, at p. 243. institution (Article 59 (1) of the Staff Regu-
CLASEN v PARLIAMENT
lations), for example an examination carried (1) Infringement of the third indent of the out by a single doctor appointed by the first paragraph of Article 7 of Annex II to the defendant. In the present case, in addition Staff Regulations to the doctor appointed by the defendant, the examination involved another doctor and took account of the report sent by the 28. According to the applicant, the third doctor attending the applicant. doctor on the Invalidity Committee was not appointed by agreement with the doctor appointed by her, contrary to the 24. Thus, the contested decision was based requirements of Article 7. on a procedure designed to establish whether the applicant's absence was justified on health grounds, which provided much 29. On this point, the parties give contra- greater safeguards than those required by dictory accounts. The Parliament states the rules. (Annex C to the defence) that the secretary in its medical department contacted the applicant's doctor, giving her details of the procedure for the appointment of the third 25. Thus, in my opinion, the alleged irregu- doctor, for which her agreement was larities concerning the composition and required. By contrast, the applicant denies functioning of the Invalidity Committee are that her doctor was ever given any infor- unfounded, being incapable of affecting the mation about the procedure for the validity of the contested decision. As the appointment of the third doctor, and Court has held in the past 'in principle a therefore never gave her agreement to the procedural irregularity will entail the choice of Dr Palgen (Annex 17 to the annulment of a decision in whole or in part reply). According to the applicant, the only if it is shown that in the absence of content of the letter of 6 December 1985 such irregularity the contested decision led Dr Christophersen to think that the might have been substantively different'. 2 appointment of the third doctor was a fait accompli which she could not influence in any way. 26. If, however, it were to be considered, contrary to the approach just described, that, even though it was not obliged to have 30. The applicant's argument does not seem recourse to the procedure under Article 78, to me to be well founded. the appointing authority, by virtue of having initiated it, was bound to comply with the rules governing it, it would be necessary to 31. On the one hand, the applicant's doctor express a view on the merits of the various herself (Annex 17) acknowledges that she submissions relied upon by the applicant. was informed by the applicant of the procedure for the constitution of the Invalidity Committee, in particular the requirement of an agreement between the 27. That is what I shall do, merely by way doctors for the two parties as to the of alternative. appointment of the third doctor. None the less, the applicant's doctor did not raise any 2 — Sec judgment of 23 April 1986 in Case 150/84 Bernardi v Parliament [1986] ECR 1375, paragraph 28; see also objections in the correspondence following judgment of 29 October 1980 in Joined Cases 209 to 215 the letter of 6 December 1985 between her ana 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 47. and the doctor appointed by the defendant.
OPINION OF MR CRUZ VILAÇA — CASE 268/86
32. The applicant herself was well doctor, in accordance with the third acquainted with the procedure to be paragraph of Article 7 of Annex II to the followed, not only because she had the Staff Regulations. opportunity thoroughly to familiarize herself with the Staff Regulations but also because the requisite clarification had been given to her in the letter of 4 October 1985 36. This submission is closely linked to the from the European Parliament. After Dr previous one and the same considerations Christophersen received the letter of 6 which prompted me to regard the latter as December, she had personal contact with unfounded are also conducive, in my the applicant when the latter attended for opinion, to rejection of this submission. an examination during the Christmas holidays; she thus had an opportunity to clarify the situation on that occasion 37. It should be added that the applicant's regarding the procedure to be followed in statement that she only became aware of Dr the event of her not agreeing with the Palgen's appointment at the time of the appointment of the third doctor. meeting of the Invalidity Committee on 17 February 1986 is unacceptable, particularly if it is borne in mind that the applicant was examined in December 1985 by Dr Christo- 33. In those circumstances, regardless of phersen who at that time already knew the credibility to be attributed to the perfectly well who the third doctor Parliament's statements concerning the appointed by Dr Fettmann was. information communicated to the ap- plicant's doctor, no other conclusion can be reached than that the applicant's doctor, not having objected to the appointment of the (3) Dr Christophersens absence from the doctor proposed by Dr Fettmann, accepted meeting of the Invalidity Committee that appointment.
38. According to the applicant, Dr Christo- phersen thought that her presence at the 34. The applicant has thus not provided the meeting of 17 February was unnecessary, least proof required to support her alle- since no decision would be taken at that gations, and therefore this submission must time. be rejected.
39. However, the letter of 30 January 1986 from Dr Fettmann to Dr Christophersen (2) Infringement of the third paragraph of (Annex 9 to the application) shows conclu- Article 7 of Annex II to the Staff Regulations sively that at the meeting set for 17 February it was envisaged that a medical report would be prepared, and the addressee was even told that in the event of her not 35. According to the applicant, the conduct agreeing with the conclusions of the other of Dr Fettmann, in depriving her and her doctors she should decline to sign the doctor of the opportunity to challenge the report. It is therefore at least surprising that appointment of the third doctor, made it the applicant should state that her doctor impossible for her to apply to the President was unaware of the fact that any decision of the Court of Justice to appoint the third would be taken at that meeting.
CLASEN v PARLIAMENT
40. It is true that, in the same letter, it was would have been to suggest alternative stated that the applicant's doctor did not dates, so that she could choose the one most need to be personally present at the convenient to her. meeting.
44. It is doubtful whether that happened in 41. That statement raises the rather more this case. Dr Christophersen was offered a delicate question whether the Invalidity first d a t e — 1 2 December 1985 — which Committee can adopt valid decisions was, quite reasonably, refused by her without holding a meeting attended by all because she needed to examine the its members and therefore whether its applicant. proceedings can be conducted in writing.
45. Thereafter, and without any alternative 42. I do not see any reason why the Inva- being offered, Dr Christophersen was lidity Committee should not discharge the convened to a meeting on 17 February duties entrusted to it merely because one of 1986. In other words, not only was she not its members, who was given the opportunity given an opportunity, as would have been of attending, did not wish to do so. The normal in view of the fact that she resided very principle of continuity in the public abroad, of suggesting a date convenient to service militates against such a solution, her for the meeting but in addition she was, otherwise it would be easy indefinitely to ultimately, encouraged not to attend by protract the proceedings of the committee, being told that she would not need to be preventing it from fulfilling the tasks personally present at the meeting. entrusted to it under the Staff Regulations. It should be added that if, as this Court has held, a member of an Invalidity Committee 46. The information thus given to her was, may not, by his failure or refusal to sign the in my opinion, incorrect and misleading, report, render impossible the application of since the proceedings of a collegiate body, the provisions of the Staff Regulations, the such as an Invalidity Committee, in committee being obliged in the event of principle require all the members to be disagreement to decide by a majority, 3 for present. In fact, although medical data are the same reason that member cannot objective data, the fact remains that a prevent the application of those provisions diagnosis and, furthermore, the conclusions by refusing to attend the meeting at which drawn therefrom may differ if put to that report is drawn up. discussion amongst the members of the committee. In the present case, the diagnosis of the three doctors was the same, the only 43. That implies, however, that the difference being in the conclusions drawn applicant's doctor should have been given a by them. However, there is no guarantee genuine opportunity to attend. Since she that that would have been the case if the resided abroad, the natural course of action conclusions had been arrived at by joint consideration of the opinions of the three 3 — See judgment of 12 March 1975 in Case 31/71 Gigante v doctors. Commission [1975] ECR 337; judgment of 9 July 1975 in Joined Cases 42 and 62/74 Vellozzi v Commission [1975] ECR 871; judgment of 16 December 1976 in Case 124/75 Perinciolo v Council [1976] ECR 1953; judgment of 21 May 1981 in Case 156/80 Morbilli v Commission [1981] ECR 1357; and judgment of 23 April 1986, Bernardi v 47. Since not everything was done which Parliament, supra. would normally be required to enable a
OPINION OF MR CRUZ VILAÇA — CASE 268/86
meeting of the committee to take place, and 51. Since in principle meetings of the since the conduct of the defendant and its committee must include all its members, the representatives was such that the applicant's absence of one of them, if at least in part doctor was liable to be misled as to the need attributable to the conduct of the adminis- for her to be present, it does not seem to me tration, prevents its proceedings from being that the conclusions of a medical report valid. adopted in those circumstances can be considered valid. (5) Infringement of the second paragraph of Article 7 of Annex II to the Staff Regulations 48. That view is not, as far as I am concerned, undermined by the defendant's argument that Article 8 of Annex II to the 52. According to the applicant, she was Staff Regulations requires the applicant to given, by the letter from the Director of bear the extra charges resulting from the Personnel of 4 October 1985, a period of choice of a doctor not residing at his place one month in which to appoint a doctor; of employment, with the exception of travel that period is not laid down in Article 7 of expenses. Indeed, if it has a dissuasive Annex II to the Staff Regulations and purpose, that provision does not relate to therefore the constitution of the Invalidity the presence of the doctor at the committee Committee was in her view defective ab meeting but rather to the choice of a doctor initio. residing elsewhere than at the place of employment of the official, who would necessarily have to travel some distance to 53. However, there is no foundation for meetings, with the concomitant extra costs. that view. The period allowed was a It does not seem to me that any particular reasonable period in which the applicant significance should be attached to the was able, without difficulty, to appoint her textual arguments which the Parliament doctor. Moreover, the applicant did not draws from the wording of the various complain about the setting of that time- articles of Annex II to the Staff Regulations. limit, in particular in her letter of 21 April 1986 (Annex 13 to the application), and she must therefore be regarded as having tacitly agreed to it. Thus, if there was a formal (4) Irregularity of the proceedings through defect, it was subsequently rectified. lack of a quorum
54. Moreover, the time-limit was merely 49. The applicant argues that, according to laid down for guidance by the Parliament in the principles of Danish administrative law, the interests of sound administration and to for a three-member committee to be quorate prevent the proceedings of the committee all the members must be present. from being protracted, in the absence of provisions in that regard in the Staff Regu- lations.
50. The problem ultimately comes down to the same issue as that raised in the previous 55. In my opinion, therefore, there was no submission, and the answer must be the irregularity as a result, and therefore this same. submission must be dismissed.
CLASEN v PARLIAMENT
(6) Infringement of Article 78 of the Staff performed by the official is only necessary Regulations where there is partial invalidity. Only in such a case is it necessary to consider 56. In the applicant's view, Article 78 whether or not the official is thereby requires the Invalidity Committee to prevented from performing certain specific determine whether the official is suffering duties. from total permanent invalidity preventing him from performing the duties corre- 58. In the present case the conclusion sponding to a post in his career bracket. reached was that the applicant was not However, the conclusion reached by the suffering from any invalidity, total or two doctors on the committee (Dr Fettmann partial. It would therefore be otiose to and Dr Palgen) that the applicant was not require a precise statement, in those circum- suffering from any invalidity, either stances, that the applicant was able to temporary or permanent, was not arrived at, perform the duties corresponding to a post in the applicant's view, by reference to the in her career bracket, namely career bracket duties performed by her. C3/C2.
57. However, it is clear that the assessment 59. Therefore, this submission must also be of invalidity in the light of the duties rejected.
C — Conclusion
60. From the foregoing analysis of the various submissions relied upon by the applicant, only the one concerning the absence of the applicant's doctor from the meeting of the Invalidity Committee could, in my opinion, lead to the annulment of the contested decision, if, in fact, it were found to be necessary in this case to observe the rules applicable to that committee for the contested decision to be adopted validly.
61. However, I am of the opinion that there were no defects relating to the constitution and functioning of the committee of such a kind as to affect the decision that was actually adopted and is challenged in these proceedings.
62. In view of all the foregoing considerations, I propose that the Court should dismiss the application and order the parties to bear their own costs in accordance with the combined provisions of Articles 69 and 70 of the Rules of Procedure.