T-41/93

Union Syndicale-Bruxelles, whose registered office is in Brussels, represented by Gérard Collin and Thierry Demaseure, of the Brussels Bar, with an address for ser- vice in Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue Glesener,

intervener,

v

Commission of the European Communities, represented by Ana Maria Alves Viera, of its Legal Service, acting as Agent, with an address for service in Luxem- bourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of the Commission's decision refusing the appli- cant 100% reimbursement of the expenses caused by a serious illness,

makes the following

Order

Facts, procedure and forms of order sought

1 The applicant, an official of the Commission, is an insulin dependent diabetic. Since his illness was treated as a serious illness by the appointing authority, he received 100% reimbursement of his medical expenses pursuant to Article 72(1) of the Staff Regulations of Officials of the European Communities.

2 On 13 January 1993, the applicant submitted to the Claims Office of the Sickness Insurance Scheme common to the institutions of the European Community an esti- mate of dental expenses for the fitting of four implant dentures and 14 teeth or removable prostheses. On 14 January 1993, the Claims Office approved the esti- mate submitted by the applicant, but only in respect of the fitting of 14 teeth or removable prostheses. N o reimbursement was authorized for the four implant den- tures. Moreover, in respect of the reimbursement of expenses for the fitting of 14 teeth or removable prostheses, the Claims Office applied the 80% reimbursement rate for dental treatment and prostheses laid down in Section VI of Annex I to the Sickness Insurance Rules for Officials of the European Communities (hereinafter 'the Sickness Insurance Rules').

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5 Following a request lodged at the Registry on 22 June 1993, by order of 14 July 1993 Union Syndicale-Bruxelles (European Public Service Union, Brussels) was granted leave to intervene in support of the form of order sought by the applicant.

6 At the applicant's request, the President of the Fourth Chamber decided to grant him anonymity in all published documents.

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B v COMMISSION

7 On 16 July 1993 the Director General of Personnel and Administration sent the applicant the following memorandum informing him that his complaint had received a favourable response:

'As regards reimbursement of the implant dentures, I am pleased to inform you that, having taken note of Opinion N o 9/93 of 5 May 1993 of the Management Committee of the Sickness Insurance Scheme and having regard to Section XV(2) of Annex I to the Sickness Insurance Rules for Officials of the European Commu- nities, you will exceptionally be reimbursed. This decision is based, in particular, on the finding that implant dentures are absolutely necessary as a result of serious illness.

10 In the proceedings concerning the plea of inadmissibility, the Commission claims that the Court should:

— dismiss this application as inadmissible in so far as it serves no purpose;

— make an appropriate order as to costs.

1 1 In its observations concerning the plea of inadmissibility, the applicant contends that the Court should:

— either stay the proceedings or set a time limit for the Commission to state whether it agrees to pay interest and the costs of the proceedings.

12 The intervener claims that the Court should:

1 4 Since the decision of 16 July 1993 granted the applicant what he seeks, the Com- mission considers that he no longer has any legal interest in bringing proceedings and that, therefore, the action has become devoid of purpose. The Commission considers that the concept of legal interest in bringing proceedings concerns the interest of applicants in challenging before the Court acts of the administration which adversely affect them.

15 The applicant submits that on the day that the action was brought he had a vested, present and personal interest in bringing proceedings and that the admissibility of an action can only be assessed in relation to the day on which it is brought. He adds that the decision of 16 July 1993 gives him only partial satisfaction since it provides that 'the appropriate reimbursement will be made after you have submit- ted your request'. The applicant claims that the appointing authority thereby seems to preclude reimbursement of dental expenses from the day on which they were incurred. Moreover, the applicant points out that the Commission did not state, either in the abovementioned decision or in its plea of inadmissibility, that it agreed to bear the legal costs which the applicant had to incur. The applicant concludes that he would only agree to discontinue the action on condition that the Commis- sion undertook to pay him interest calculated at 8% per annum, from the date of payment of the dental expenses in dispute, and to bear the costs of the proceed- ings.

1 6 The intervener supports the applicant's claims and, in particular, his request that the action should not be disposed of by way of an order of inadmissibility.

19 It follows from the case-law that where a decision which is the basis of a cause of action has been replaced by a new decision meeting the applicant's claims in full, the action must be regarded as no longer serving any purpose. In such circum- stances there is no longer any need to give a decision (see, for example, the order of the Court of First Instance of 9 June 1992 in Case T-81/91 Feltz v Parliament [1992] ECR 11-1827; the judgment of the Court of First Instance in Case T-28/90 Asm Motor France and Others v Commission [1992] ECR 11-2285).

20 The applicant cannot claim that the decision of 16 July 1993 gives him only partial satisfaction on the ground that reimbursement will not be made until after an appropriate application has been submitted. Article ll(l)(c) of the Sickness Insur- ance Rules provides that in order to receive reimbursement of expenditure on treat- ment for which prior authorization is required, an official must submit an appli- cation for reimbursement once he has obtained prior authorization. The estimate which was submitted by the applicant on 13 January 1993 was an application for prior authorization. The effect of the decision of 16 July 1993 was to grant the prior authorization requested, and it should therefore meet the applicant's claims in full.

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B v COMMISSION

21 The fact that the decision of 16 July 1993 does not provide for any interest pay- ment to the applicant does not mean that the action retains a purpose since the action seeks only annulment of the contested decision and does not in any way seek compensation for damage allegedly caused by the Commission to the applicant by virtue of the contested decision.

ORDER OF 25. 10. 1993 — CASE T-41/93

On those grounds,

T H E C O U R T O F FIRST INSTANCE (Fourth Chamber)

hereby orders:

1. There is no need to give a decision.

2. The defendant shall pay the whole of the costs, including those of the inter- vener, apart from the costs incurred by the applicant and the intervener from 16 July 1993, which shall be borne by them.