C-185/90

My Lords, was employed in Great Britain, but in 1974 he was recruited by the Commission as a Principal Administrator, and assigned to duties relating to health and safety in mines. Between 1974 and 1979, in the service of the Communities, he was called upon to 1. In this case the Commission appeals from descend coal mines a total of 20 to 30 times. a judgment of the Court of First Instance of As a result of an accident which occurred in 6 April 1990. That judgment annulled a 1979, however, he descended only once or decision of the Commission of 20 May 1988 twice between 1979 and 1981. On 11 June relating to the determination of the 1981 he requested retirement on grounds of respondent's invalidity pension and ordered total and permanent invalidity. It is not the Commission to pay the costs. The case disputed that Mr Gill was by then suffering also raises a question of general importance from an illness, namely chronic bronchial on the disposal of appeals before the the pneumonopathy, which rendered him totally Court of Justice. unfit to perform his duties. It also appears that in 1974, at the time of Mr Gill's compulsory medical examination on entry into service with the Commission, he was already suffering from a degree of bronchial pneumonopathy, although he was certified 2. The Commission's decision which is at then as fit to take up his duties. After a the origin of these proceedings refused Mr Gill the benefit of the second paragraph period of procedural confusion and delays, of Article 78 of the Staff Regulations an Invalidity Committee met in March 1987 (hereafter 'the Regulations'), fixing his in order to determine the nature and extent pension instead on the basis of the third of Mr Gill's incapacity, although Mr Gill paragraph of that article. Mr Gill claims he had in the meantime provisionally been is entitled to the more favourable terms laid granted an invalidity pension under the down by the second paragraph, on the third paragraph of Article 78. In its report grounds that his invalidity arose from an of 31 March 1987, the Committee Occupational disease' within the meaning of concluded that Mr Gill's incapacity was that paragraph. indeed total, and was the result of an aggra- vation of the bronchial pneumonopathy diagnosed in 1974, but it also found that the aggravation was not attributable to Mr Gill's service with the Communities. It was on the basis of that report that the 3. Mr Gill has spent a great deal of his Commission concluded that Mr Gill's inva- working life going down coal mines. lidity did not arise from an Occupational Between 1948 and 1971 he did so five to disease' within the meaning of Article 78 of seven times a week, and between 1971 and the Regulations. Whether the Commission 1974, several times a month. Until 1974 he

Where the invalidity arises from an accident in the course of or in connection with the performance of his duties, from an occu- pational disease, from a public-spirited act Article 1(1) of Annex VIII allows the or from risking his life to save another appointing authority, where the medical human being, the invalidity pension shall be examination made before the official takes 70% of the basic salary of the official. up his duties shows that he is suffering from sickness or invalidity, to decide, so far as risks relating to such sickness or invalidity are concerned, to admit the official to benefits in respect of invalidity or death Where the invalidity is due to some other only after five years from the date of his cause, the invalidity pension shall be equal entering into service. to the retirement pension to which the official would have been entitled at the age of 65 years if he had remained in the service until that age.

5. The composition and proceedings of the Invalidity Committee referred to in Annex » VIII to the Regulations are dealt with in Articles 7 to 9 of Annex II. The Committee consists of three doctors, appointed respectively by the official, the employing institution, and by agreement between the Annex VIII to the Regulations is headed first two. By the first paragraph of Article 9, 'Pension Scheme', and Chapter 3 (Articles the official may submit to the Committee

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OPINION OF MR JACOBS —CASE C-185/90 P

The benefits payable under that insurance scheme include, in particular, a lump sum or 9. It may be noted, finally, that Article 25 annuity payable in the event of total of the Insurance Rules provides that: permanent invalidity. Such a benefit may be paid in addition to the benefits provided for in Chapter 3 of Title V of the Regulations, and hence in addition to any invalidity 'Recognition of total or partial permanent benefit payable under Article 78. invalidity pursuant to Article 73 of the Staff

I - 4796

COMMISSION v GILL

The first ground of appeal

14. It does not seem to me however that there is any reason for interpreting Occupational disease' more widely in Article 12. The first of the Commission's grounds 78 than in Article 73. O n the contrary, is that the Court of First Instance misinter- where the same term is used in the same preted the concept of Occupational disease' regulations, one would expect its meaning occurring in Article 78, second paragraph, to be the same. Furthermore, the view of the of the Regulations. The Commission divides Court of First Instance is not supported by this ground into two branches: (1) Contrary the jurisprudence of the Court of Justice, to the view of the Court of First Instance, which suggests, in particular, that in order the concept of Occupational disease' cannot to establish the existence of an Occupational vary as between Article 73 and Article 78 of disease' for the purposes of Article 78, it is the Regulations. (2) The concept of occupa- necessary to demonstrate a causal link

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OPINION OF MR JACOBS — CASE C-185/90 P

It seems to me that in the above passage, the Court was assuming that an Occupational 16. In my opinion, therefore, Case 257/81 disease' was marked by a causal relationship K. v Council does not support the prop- between the applicant's w o r k or working osition that 'occupational disease' differs in conditions and the deterioration in the its meaning as between Articles 73 and 78; it applicant's state of health. Furthermore, leads rather to the opposite conclusion. It from the Opinion of Advocate General Sir does not seem to me, on the other hand, Gordon Slynn, at page 17, it appears that it that the test to be derived from the Court's

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COMMISSION v GILL

17. The interpretation of Case 257/81 K. v Council suggested above is supported by Thus, the invalidity committee has the task Rienzi v Commission, cited at paragraph 6, of investigating which events gave rise to where the Court stated, at paragraphs 9 to the official's illness, whereas it is for the 12 of its judgment: appointing authority to decide whether those events took place in the course of the performance of the official's duties. The existence of an occupational disease has only been established where both conditions are satisfied, namely where there has been 'It is clear from the actual composition of found to be a causal connection with the the Invalidity Committee, and from the lawful performance · of the official's duties nature of its tasks, that it has exclusive with the Communities: see also paragraph powers regarding medical assessment. Its 33 of the Opinion of Advocate General powers do not extend to any cases in which Lenz. a legal classification is called for.

18. In paragraph 19 of its judgment, the Court of First Instance refers to Case The Court has held (judgment of 12 242/85 Geist v Commission [1987] ECR January 1983 in Case 257/81 K. v Council 2181. In that case, the applicant attempted [1983] ECR 1) that the powers of the Inva- to bring an action for annulment against a lidity Committee are limited to determining decision granting him an invalidity pension the cause of the applicant's incapacity for on the basis of the third, rather than the work and to verifying whether his patho- second, paragraph of Article 78, notwith- logical condition has "a sufficiently direct standing that his rate of pension would have relationship with a specific and normal risk been the same in either case. The Court

held that the applicant had an insufficient 78. Thus, in the case where invalidity arises interest in bringing the action. A finding from an accident, for that paragraph to that his illness was not an occupational apply the accident must have occurred 'in disease for the purposes of a decision under the course of or in connection with the Article 78 would not prejudice any decision performance of' the official's duties. In the which might be taken under Article 73, absence of express provision to the contrary, since it seems to me that the same principle should obtain where the invalidity arises from a disease. As the Court pointed out in Case 342/82 Cohen v Commission [1983] ECR 3829, at paragraph 13, after referring 'the procedure under Article 73 of the Staff to the history of the legislation: Regulations and the [Insurance] Rules and that under Article 78 of the Staff Regu- lations are two different procedures which may give rise to separate decisions inde- pendent of each other' (paragraph 13 of the 'It is . . . necessary to regard the second judgment). paragraph of Article 78 of the Staff Regu- lations as an exceptional provision, which suggests that any extensive interpretation must be undertaken only with caution.' T o say that the procedures under the two articles give rise to two independent decisions is not however to say that the concepts involved in the two decisions must differ. It is clear that the same criterion of Indeed, there does not seem to be any Occupational disease' can be applied to reason of principle why a Community yield different results by two differently institution should be liable to pay an constituted committees. In my view, in Case increased pension in respect of an occu- 242/85 Geist the Court was merely pointing pational disease, in the absence of any out that an adverse finding by an invalidity causal connection with the performance of committee appointed for the purposes of the official's duties with the Communities. Article 78 should not affect the findings of a medical committee appointed for the purposes of Article 73, and that Mr Geist accordingly had no interest in annulling the decision taken under Article 78. 20. The question arises, furthermore, of what other test could be applied if the causal criterion were to be abandoned. In the case of diseases contained in the European List mentioned in Article 3(1) of 19. The Court's case-law does not therefore the Insurance Rules, it is sufficient, for the support the proposition that an occupational purposes of applying Article 73, that the disease can be established, for the purposes applicant be exposed to the risk of of Article 78 of the Regulations, without contracting the disease; it is only in the case there being a causal relationship between of diseases not included in the List that the the official's condition and his service with more stringent requirement of Article 3(2) the Communities; it supports, rather, the must be satisfied. I can see no objection to contrary conclusion. This result is in my using the more liberal criterion, of exposure opinion confirmed by an examination of the to the risk, in the case of diseases contained wording of the second paragraph of Article in the European List, for the purposes of

Article 78 as well as of Article 73. In para- aggravation, and the performance of his graphs 22 to 24 of the judgment of the duties with the Commission. Court of First Instance, however, there is some suggestion that it was applying that criterion in the present case (where, it will be recalled, the disease is not included in the European List). In my view it cannot be The second ground of appeal appropriate to apply such a criterion for the purposes of a decision under Article 78, in circumstances where a causal connection would be required for a decision under Article 73. 23. As I have already mentioned, the Court of First Instance also held that, even if it were necessary to establish a causal connection between Mr Gill's disease, or its aggravation, and his service with the Commission, such a connection could be found to exist in the circumstances of the 21. T h e conclusion I have reached is in no present case. It is therefore necessary to way affected by the fact that Mr Gill's consider the Commission's second ground illness is attributable to a career in the mines of appeal, according to which the Court of prior to his service with the Commission, First Instance was mistaken in deciding, during which period he accumulated contrary to the opinion of the Invalidity professional experience from which the Committee, that a causal link of the Commission subsequently benefited (see required kind had been sufficiently estab- paragraph 24 of the judgment of the Court lished. of First Instance). It goes without saying that the Commission employed M r Gill because he had knowledge and skills which made him useful to the Communities. It would however be contrary both to 24. As the Commission points out, the principle and to the case-law of the Court, question whether such a link has been estab- to classify as an 'occupational disease' an lished is a matter of fact which can only be illness attributable to the performance of decided by the Invalidity Committee. A professional duties prior to the official's distinction must be drawn here between entry into service with the Communities. questions of medical fact and issues of legal Such professional experience does not appraisal. Thus, as we have already seen, amount to the performance of duties with the question whether the activities giving the Communities, even if it is experience rise to a disease fell within the scope of the from which the Communities can official's duties, as opposed to being subsequently be said to have benefited. conduct inconsistent with them, would be a question of law to be decided by the appointing authority: see Case 76/84 Rienzi, cited above in paragraph 6. Such an issue of legal classification does not however arise in the present case, since it is not 22. I conclude therefore that the first disputed that Mr Gill's underground ground of appeal should be upheld; the descents during his period of service were Court of First Instance erred in concluding made in the course of the performance of that a causal connection did not have to be his duties with the Commission. Contrary to established between Mr Gill's illness, or its the submission made by Mr Gill in his

response, it is only where such an issue of As the Commission points out, those legal appraisal is at stake that the question remarks are equally relevant to invalidity whether an illness is an occupational disease committees. It follows that neither the becomes a question to be decided by the Commission, as appointing authority, nor appointing authority, rather than a question the Court of First Instance itself, can be of medical fact to be decided by the In- permitted to substitute its own view of the validity Committee. facts for the conclusions of a duly constituted invalidity committee. It seems to me, therefore, that the Court of First Instance exceeded its jurisdiction in finding, contrary to the conclusions of the Invalidity Committee, that a connection existed 25. The principle that questions of causality between the aggravation of Mr Gill's are issues of medical fact to be decided by bronchial pneumonopathy during the years the Invalidity Committee is clear from the 1974 to 1981, and the performance of his Court's judgments in Case 257/81 K. v duties with the Commission during the same Council, cited above at paragraph 13, and period. It should be noted furthermore that Case 76/84 Rienzi. It should be noted, in reaching such a conclusion, the Court of furthermore, that the organization and First Instance made an error of law which appointment of invalidity committees for the can be reviewed by this Court, rather than purposes of Article 78 of the Regulations any finding of fact which it was entitled to are similar to those of medical committees make. for the purposes of Article 73. Thus, in both cases care is taken to ensure the balance and objectivity of the committees in question (compare Articles 7 to 9 of Annex II to the Regulations with Article 23 of the Insurance 26. Nor does it seem to me that, as the Rules). As the Court observed, in relation to Court of First Instance appears to argue in decisions under Article 73, in Case 265/83 paragraph 24 of its judgment, the Suss v Commission [1984] ECR 4029, at Commission must, in the peculiar circum- paragraph 11 of the judgment: stances of the present case, be presumed to have accepted responsibility for the risk that Mr Gill's illness would lead to his eventual incapacity to work.

28. It seems to me, however, that the only- liability which the Commission can be said to have accepted was a liability to pay whatever benefits were properly due under It seems to me that, in principle, before the the Regulations. Contrary to the view of the Court can give final judgment in favour of Court of First Instance, neither the presence an appellant, it may first need to be satisfied of a pre-existing condition diagnosed at the that the respondent was not entitled to time of Mr Gill's entry into service, nor (as succeed on some other ground that he had I have already argued) the fact that the raised before the Court of First Instance. Commission benefited from a period of Otherwise there would be a serious risk of prior professional experience which had injustice to the respondent: a party who contributed to that condition, would be might be entitled to succeed might fail in his sufficient in themselves to make the aggra- action merely because the ground on which vation of Mr Gill's illness an Occupational he was entitled to succeed had not been disease' for the purposes of Article 78. considered; that might occur wherever the Court of First Instance had found in his favour on another ground and that decision was reversed on appeal.

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OPINION OF MR JACOBS —CASE C-185/90 P

other than those upon which the Court of respondent might have sought to rely in the First Instance based its judgment is alternative, in the proceedings on the supported by the fact that the Court of appeal, is that the decision of the Invalidity Justice will have the entire case file at its Committee was itself vitiated by defects disposal; see Article 111(2) of the Rules. rendering it invalid. Even though the respondent has not raised that issue in his response, I take the view that the Court can properly consider it, since no further findings of fact are necessary and since it can be regarded as a point which it is necessary for the Court to consider with a 32. Such a possibility must also, in my view, view to deciding, in accordance with Article be allowed to the respondent in the interest 54 of the Statute, whether to give final of procedural economy. Otherwise, if the judgment or to refer the case back to the risk of injustice is to be avoided, it would be Court of First Instance. Moreover the report necessary for the case to be referred back to of the Invalidity Committee is annexed to the Court of First Instance, for further the response and has therefore been put proceedings to take place there and further before the Court. costs to be incurred — not to mention the risk of a further appeal and, if other grounds had to be considered, for the entire process to be repeated yet again.

I - 4804

COMMISSION v GILL

While it is where, as a result of the mandate given to true that those terms are somewhat lacking it, the Committee addressed itself to the in clarity and precision (in particular, the wrong issues; or where the Committee Committee could not decide whether an 'adopted an erroneous view of the concept illness was an occupational disease without of "occupational disease", or if its report first enquiring into its relationship with the did not establish a comprehensible link duties performed), they do not in the event between the medical findings which it appear to have prevented the Committee contains and the conclusions which it draws' from addressing the relevant issues. Thus, it (Case 277/84 Jänsch v Commission [1987] is clear from its report that the Committee ECR 4923, paragraph 15 of the judgment); addressed itself exclusively to questions of or if the report contained 'no reasons medical fact (see page 1 of the report), and enabling the reader to assess the consider- in particular to the issue of whether a ations on which [its] conclusion was based' relationship of cause and effect existed (Case 257/81 K. v Council, cited above in between Mr Gill's incapacity to work and paragraph 13, paragraph 17 of the the performance of his duties between 1974 judgment). and 1981 (see its conclusions at page 3).

Moreover, if the conclusions of the report of 31 March 1987 cannot be accepted, the result must be 39. It seems to me that the Committee, that the matter is to be referred again to an having examined Mr Gill and considered invalidity committee, so that the the history of his symptoms before, during Commission can take a fresh decision based and after his period of service with the upon the conclusions of the latter: see Case Commission, was entitled to conclude, as a 257/81 K. v Council, cited above in matter of medical fact, that Mr Gill's in- paragraph 13, at paragraph 20 of the capacity for work was attributable to his ac- judgment. tivities prior to 1974. Thus the Committee,