C-2/87

OPINION OF MR DA CRUZ VILAÇA —CASE 2/87

O P I N I O N OF M R ADVOCATE GENERAL DA C R U Z VILAÇA delivered on 27 O c t o b e r 1987 *

Mr President, of accident and of occupational disease Members of the Court, (hereinafter referred to as 'the Rules'), who (in a report dated 15 November 1983) assessed his degree of invalidity at 6%. Accordingly, the defendant paid him, on 1 I — The subject-matter of the action and the August 1984, an amount corresponding to background to the dispute that degree of invalidity, that is to say BFR 930 030.

1. The applicant, an official of the Court of Auditors, seeks the annulment of a report 5. As he was not satisfied with that report, drawn up by a Medical Committee on 5 the applicant requested that a Medical December 1985, assessing at 9% the degree Committee be constituted in accordance of invalidity suffered by him as a result of a with Article 21 of the Rules; under Article road accident which he sustained on 8 23 the Committee is to consist of one December 1980 and, consequently, the doctor appointed by the applicant, one appointment of a special medical committee appointed by the defendant and a third one to re-examine his degree of invalidity. appointed by agreement between the first two.

9. The Court has already clearly stated 1 (a) The constitution of the Medical that in principle its review of decisions Committee fixing the degree of invalidity of an official must be confined to questions concerning the constitution and functioning of medical committees and may not extend to medical 13. The applicant alleges that the doctor appraisals made by the members thereof. appointed to the Medical Committee by the defendant does not have the independence necessary to perform his duties, since he not 10. The Court has stated — in proceedings only drew up the first medical report, concerning the concept of 'occupational contested by the applicant, but also acted as disease' within the meaning of Article 73 of the medical expert of the insurance the Staff Regulations 2— that it has juris­ company concerned. In spite of that, it was diction solely to 'annul any decision taken he who coordinated the work of the by the appointing authority in application of Committee. that provision if it is vitiated by illegality inasmuch as it is based on an irrelevant conclusion reached by a medical committee. That would be the case if the Medical 14. However, there is no rule or principle Committee adopted an erroneous view of of law to prevent the doctor who carried the concept of "occupational disease" or if out the examination provided for in Article its report did not establish a comprehensible 18 of the Rules from being a member of the link between the medical findings which it Medical Committee. Moreover, in the contains and the conclusions which it absence of any specific evidence calling in draws'. question the impartiality of that member of the Committee in the exercise of his clinical functions, the fact that he is also the insurance company's doctor is not sufficient 11. In the same way, the Court 3considered to cast doubt on the way in which he that it had jurisdiction to 'examine whether carried out his duties. an expert who has been consulted kept within the limits of the relevant rules when referring in his opinion to an occupational disease'. 15. Furthermore, the Court has already expressly held 4 that those very circum­ stances are entirely legitimate and not capable of adversely affecting the interests 12. Neither of those situations arises, of officials, and therefore they do not however, in the present case, in which the constitute adequate grounds for officials to applicant merely alleges that there were challenge the composition of the Committee, especially as the Rules do not 1 — Judgment of 21 May 1981 in Case 156/80 Morbilli ν Commission [1981] ECR 1357, paragraph 20; judgment of provide for any right of objection to an 29 November 1984 in Case 265/83 Suss ν Commission [1984] ECR 4029, paragraph 11. appointment. 5 2 — Judgment of 26 January 1984 in Case 189/82 Seiler ν Council [1984] ECR 229, at p. 241. 4 — Judgment of 14 July 1981 in Case 186/80 Suss ν 3 — Judgment of 20 June 1985 in Case 118/84 Commission v Commission [1981] ECR 2041, paragraphs 10 and 11. Royale Belge [1985] ECR 1889, paragraph 17. 5 — Judgment of 14 July 1981 in Suss, paragraph 9.

17. In addition, the applicant duly chose the doctor whom he was entitled to appoint (b) The functioning of the Medical under Article 23, and the third doctor was Committee appointed, in accordance with that provision, by agreement between the other two members of the Committee. 21. First of all, the applicant complains that he was not given an opportunity of putting his own views to the Medical Committee, in 18. Thus the necessary balance and objec- order to 'contradict opinions which had tivity forming the foundation of the been given without due consideration and complaints procedure set out in Articles 19 were difficult to justify from an ethical point to 23 of the Rules, which 'are intended to of view, by presenting the opinion of a confer upon medical experts the task of doctor whom he had consulted'. appraising in their entirety medical questions which are relevant to the operation of the insurance scheme set up by the Rules',6 were preserved. 22. Secondly, the applicant alleges that the Committee's report refers to a 'scan' which was never carried out: the only examin- 19. Of course, by agreeing to be a member ations carried out were X-rays and prepa- of the Committee, the doctor appointed by ration of a tomogram. the defendant agreed to weigh his views against those of two colleagues, and it is not surprising that the Committee altered, in a manner favourable to the applicant, the 23. Thirdly, the applicant states that the degree of invalidity attributed to him in the Committee did not take account of the first report (from 6% to 9%). Furthermore, opinions of various doctors previously the doctor appointed by the applicant had consulted by him and relied essentially on also examined him before and had on that the report of a neurologist which had occasion (on 20 September 1983) already been accepted by the doctor considered that the degree of invalidity was appointed by the Court of Auditors and to higher than that finally fixed by the Medical which the latter had referred when Committee with his agreement. preparing the contested report of 15 November 1983. The applicant also refers to 6 — Judgment of 29 November 1984 in Suss ν Commission [1984] ECR 4029, paragraph 11. the discrepancy in dates between that report

and the neurologist's report, and states that membership of the Committee guar­ it is strange that the latter, bearing a later antees the impartiality of its proceedings date (22-23 December 1983), was used as and the balance of the interests at issue. the basis for the former. All this demon­ strates the lack of order in the conduct of the procedure. (3) The Court has held 7 that 'the Committee's task, which consists in considering entirely objectively and independently medical questions, requires that it be allowed complete 24. Those allegations call for the following freedom of appraisal'. In particular, it is brief observations: for the Committee to assess 'the appro­ priateness of taking into consideration the medical reports which the applicant himself placed on his file'; 8 it is clear from the Committee's report that it not (1) Under the procedure for fixing the only took into account but also crit­ degree of permanent invalidity laid ically assessed the result of the reports down in Article 21 of the Rules, the obtained previously. Moreover, it was official or his representatives are for the Committee alone to decide notified of the appointing authority's whether or not a fresh neurological draft decision and of the findings of the examination should be carried out, doctor appointed under Article 18 and, being entitled, by virtue of its unre­ if he so requests, the full medical report stricted power of appraisal on medical is communicated to a doctor chosen by matters, to accept the findings of the him. The official or his representatives, neurologist consulted previously as together with his doctor, may examine correct. Also, in the exercise of its func­ those documents and, where appro­ tional and professional independence, priate, may request that a Medical the Committee was the sole judge of Committee be established. The Rules do whether or not it was appropriate to not provide for the Committee to hear carry out further tests; on that point, the official and there would be no the Committee's report refers to the purpose in imposing such a requirement, results of a 'scan', which the defendant's in the light of the composition of the medical officer confirmed had been Committee and the nature of its work, carried out (see reply to the complaint), which the Court has held must be and it is not for the Court to dispute the organized in such a way as 'to settle medical terminology used to describe definitively at that stage, in case of that examination. dispute, all questions of a medical nature' (judgment of 29 November 1984 in Suss, at paragraph 11). (4) The discrepancy in dates referred to by the applicant between the report of 15 November 1983 and the neurologist's report cannot have any effect on the (2) Within the Committee, the official's validity of the contested report of the interests are safeguarded by the doctor Medical Committee; it is therefore enjoying his confidence, who is unnecessary to consider whether that appointed by him and who in this case endorsed all the Committee's findings. 7 — Judgment of 29 November 1984 in Suss, op. cit., paragraph

discrepancy might be attributable to a occupational disease (Article 12 of the logical cause (or merely to an accident). Rules), compensation 'in respect of any injury or permanent disfigurement which, although not affecting his capacity for work, constitutes a physical defect and has 25. For the foregoing reasons, it must be an adverse affect on his social relations' concluded that the complaint relating to the (Article 14 of the Rules) and additional functioning of the Medical Committee is compensation, not provided for in the unfounded. Rules, payable 'where the institution is responsible for the accident according to general law and the benefits payable under (c) The findings of the Medical Committee the staff insurance scheme are insufficient to provide full compensation for the injury suffered' (Leussink, paragraph 13 of the judgment). 26. Referring to the judgments of the Court (of 18 March 1982 in Chaumont-Barthel ν Parliament 9 and of 8 October 1986 in Leussink ν Commission 10), the applicant 29. The sole issue in the present case is the maintains that no account was taken of the assessment of the degree of permanent inva­ distinction between 'compensation for lidity sustained as a result of the accident, in permanent invalidity and compensation (for accordance with the procedure laid down in damage) of a non-material nature' or Articles 18 to 23 of the Rules. between 'the economic consequences and consequences as far as family and social relationships are concerned'; in particular, 30. In that regard, it is clear from its report he alleges that the compensation awarded that the Medical Committee considered 'the (corresponding to the degree of incapacity real post-traumatic consequences of the determined) 'at best, compensates for the accident', took into account the applicant's anatomical and functional invalidity, albeit subjective complaints and concluded that inadequately, but wholly neglects the inva­ they were not 'post-traumatic sequelae but lidity of a psychological nature', caused in infirmities of constitutional origin'; as particular by a sinistrosis connected with the regards the alleged diminution in the ability accident. to concentrate, the Committee did not consider that that could reduce the applicant's capacity to work, and it deferred to the report drawn up by the neurologist 27. Those allegations seem to me to be the who had undertaken a general investigation result of a misunderstanding which should of the matters falling within his terms of be clarified. reference.