C-76/95

* Original language: Italian. 1 — Free translation of the original French.

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OPINION OF MR LA PERGOLA — CASE C-76/95

the person concerned is consistent with the Point II of the letter adds that if, on the opinion drawn up by the insurers' experts or expiry of the one-month period, the insurers with the opinion given by the Medical Com­ have still not expressed a view on the draft, mittee provided for in Article 23 of the they are to notify the reason for their con­ aforementioned implementing rules and that duct to the appointing authority. In such the expert nominated by the insurers was a case, the period is to be extended by one member of the Medical Committee. If those month. If the insurers are still not in a pos­ conditions are satisfied, the insurers are to ition to communicate their view within that reimburse to the Communities the whole extended deadline, they are to propose to the amount of the sums paid out to the victim or appointing authority and the intermediary his successors as a result of the aforemen­ that a consultation procedure be initiated in tioned decision of the appointing authority. order to determine how to proceed and to fix a new deadline, which is to expire by no later than the end of the fourth month.

Article 10.2 of the Agreement designates as the intermediary between the Communities and the insurers J. Van Breda & Co. Interna­ 4. Mr L., a Commission official, requested tional (hereinafter 'Van Breda'). on 26 November 1990 that two illnesses con­ tracted by him whilst working for the Com­ munity be recognized as being occupational diseases within the meaning of the Staff Regulations. The two diseases, the official 3. By letter from Van Breda dated 27 Janu­ maintained, resulted from the fact that he ary 1989 and addressed to the European had been exposed to asbestos at the Com­ Communities, the agreement concluded mission's premises known as the Berlaymont between the insurers and the Communities Building in Brussels. on the rules for the application of the Agree­ ment was confirmed with effect from 1 Feb­ ruary 1989.

then drew up his own report in line with 7. On 23 March 1994 Van Breda informed that opinion on 14 February 1992. the appointing authority that the documents forwarded were being studied by the insur­ ers. By a subsequent letter dated 29 March, Van Breda notified the appointing authority that the insurers intended to put further questions to the members of the Medical Committee. In the same letter, Van Breda stated that it had pressed the insurers to make the content of their questions known On that basis, the appointing authority noti­ as soon as possible. The letter put the insur­ fied to Mr L. on 17 February 1992 the draft ers on notice that from that point the further decision rejecting his application that the dis­ one-month period provided for by the ease should be recognized as having an occu­ Agreement started to run. pational origin. Thereupon, on 23 February 1992, Mr L. sought the opinion of the Medi­ cal Committee and, on 16 September 1992, appointed Dr Cognigni as a member of the Committee. On 8 December 1992 the appointing authority appointed, at the pro­ posal of the insurers, Professor Brochard as a A further letter sent by Van Breda to the member of the Committee. On 29 January applicant on 8 April 1994 indicated the 1993 those two members appointed Profes­ points on which the insurers wished to put sor Maltoni as the third member of the further questions to the Medical Committee. Medical Committee. The letter also stated that the insurers intended to appoint a doctor, who was a col­ league of Dr Dalem, to draw up those ques­ tions. Van Breda ended the letter by stating that it had asked the insurers to forward their questionnaire, within the time-limits laid down by the Agreement, by 29 April 1994 in order that the applicant institution 6. The Medical Committee's report, which might formulate questions accordingly. was adopted by a majority of its members on 25 February 1994 and forwarded to the appointing authority on 1 March 1994, rec­ ognized that Mr L.'s disease was occupa­ tional in origin. The report further found that he was suffering from total permanent invalidity (100%) and held that he should On 15 April 1994 the appointing authority have an allowance of 30% on account of the informed Mr L. that the Medical Committee permanent scars and serious psychological had found that the disease had an occupa­ disturbances connected with the disease. tional cause and definitively established a However, Professor Brochard drew up a dis­ rate of total permanent invalidity of 130%. senting opinion which he sent in the form of The Committee thereupon paid Mr L. the a report on 3 March 1994. The appointing sum of BFR 25 794 194 due to him under the authority forwarded the two reports to Van decision recognizing that he was suffering Breda on 10 and 18 March 1994 respectively. from occupational invalidity.

2. ...

11. The defendants, represented for the pur­ (b) In the event of total permanent invalidity: poses of these proceedings by Royale Belge SA, entered an appearance on 22 May 1995, when they claimed that the Court should dismiss the Commission's application as inadmissible or, failing that, unfounded, and order the applicant to pay the costs. The Payment to the official of a lump sum defendants also asked the Court in the equal to eight times hisannual basic salary

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COMMISSION v ROYALE BELGE

calculated on the basis of the monthly referred to in Article 23 the official shall be amounts of salary received during the granted an allowance in respect of any injury twelve months before the accident.' or permanent disfigurement which, although not affecting his capacity for work, consti­ tutes a physical defect and has an adverse effect on his social relations.

13. The relevant Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupa­ tional Disease, adopted pursuant to Ar­ This allowance shall be determined by anal­ ticle 73(1) of the Staff Regulations, are as fol­ ogy with the rates laid down in the invalidity lows: scale referred to in Article 12. Where disfig­ urement results from an anatomical func­ tional lesion the abovementioned rates shall be increased accordingly.'

occupational or non-occupational risks, or Article 23 decisions recognizing the occupational nature of a disease and assessing the degree of permanent invalidity shall be taken by the appointing authority in accordance with the procedure laid down in Article 21, 1. The Medical Committee shall consist of three doctors:

— one appointed by the appointing auth­ — on the basis of the findings of the doc­ tor(s) appointed by the institutions; and ority;

— one appointed by the official concerned or those entitled under him;

— where the official so requests, after con­ sulting the Medical Committee referred to in Article 23.'

— one appointed by agreement between the first two doctors.

'Article 21

15. As regards the substance, the defendants Recognition of total or partial invalidity pur­ claim, in respect of the first aspect of the suant to Article 73 of the Staff Regulations case, that the Commission failed to comply and to these Rules shall in no way prejudice with the rules laid down by the Agreement application of Article 78 of the Staff Regula­ and set forth in the letter of 27 January 1989. tions and vice versa.' They say that the Commission notified the person concerned of the decision recognizing that his invalidity had an occupational origin on 15 April 1994, that is to say, before it had received the insurers' observations, which had to be submitted by 29 April 1994. The defendants aver that they informed the appli­ IV — Consideration of the dispute cant through Van Breda of their intention to put further questions to the Medical Com­ mittee. In so far as the Commission notified the aforementioned decision on 15 April 1994 and paid the allowance due to the per­ son concerned in accordance therewith, it therefore prevented, through its own con­ 14. There are two issues before the Court. duct, the continuance of the procedure laid First, it has to be established whether the down in the Agreement by making it impos­ applicant conducted itself unlawfully, as the sible for the defendants to put supplemen­ insurers maintain, through its breach of the tary questions to the Medical Committee. contractual clauses requiring it to consult the The insurers are therefore raising against the insurers before adopting the contested meas­ applicant the exceptio inadimpleti contractus ure. The second aspect of the dispute is the (defence of non-performance). defendants' claim that that measure is unlaw­ ful because its reasoning is defective.

18. In order to clarify this point and to take The applicant further claims that it duly for­ the correct approach to it, I shall examine warded all the requisite information to the how the applicable rules fit within the frame­ insurers, making it clear, in point of the law, work of the Community legal order and that the rules governing relations between what conduct the applicant and the defen­ the appointing authority and the insurers dants were bound to adopt on the basis of differ from those governing relations those rules. between the appointing authority and offi­ cials. In this case, the Commission was bound to pay the person concerned the occupational invalidity allowance due to him as an official. Performance of that obligation The relevant provisions for the purposes of by the applicant did not, however, prejudice these proceedings are contained in Article 73 further fulfilment of the procedure laid et seq. of the Staff Regulations. Those provi­ down in the separate sphere of the contrac­ sions are set out in Chapter 2, Social Security tual rules governing its relations with the Benefits, of Title V and link up with insurers. In any event, even if the applicant Article 15 of the Protocol on the Privileges had been bound to comply with the rules and Immunities of the European Communi­ contained in the Agreement — specifically, ties (hereinafter 'the PPI'). That article pro­ in so far as it is relevant, Article 3 —, the vides as follows: 'The Council shall, acting possible sanction which it would stand to unanimously on a proposal from the Com­ incur for non-compliance with those provi­ mission, lay down the scheme of social secu­ sions under Belgian law, which is the proper rity benefits for officials and other servants law in this case, was that of having to make of the Communities'. Consequently, this sat­ good the damage suffered by the insurer. The isfies the specific need to protect officials in defendants have not shown, however, that the social security field and thus has a differ­ they have suffered any damage on account of ent importance and application as compared the applicant's conduct and were therefore with the rules laid down by the Staff Regula­ not entitled to refuse to perform their own tions with regard to the employment rela­ contractual obligations. tionship between the Communities and offi­ cials on the basis of Article 24(1) of the Treaty establishing a Single Council and a Single Commission of the European Com­ munities ('the Merger Treaty'). The second These are the opposing arguments put for­ subparagraph of Article 24(1) provides that ward by the parties. 'the Council shall, acting by a qualified majority on a proposal from the Commis­ sion and after consulting the other institu­ tions concerned, lay down the Staff Regula­ tions of officials of the European 17. The first plea relied on by the defendants Communities and the Conditions of as against the Commission's claim for pay­ Employment of other servants of those ment relates, specifically, to the alleged error

Communities'. Within the sphere within to the Community institutions properly so which it is intended to operate, Article 15 of called, but also to a circle of bodies, such as the PPI embodies a special limitation as to the European Monetary Institute, the future rule-making with regard to the treatment of European Central Bank, the European officials. We might categorize it as a genuine Investment Bank and the European Invest­ 2 limitation restricting rule-making to the sub­ ment Fund, which form part of the Com­ stantive law and no subordinate source (ris- munity in the full sense, yet are not subject erva di legge) which is, so to speak, rein­ to the employment rules laid down by the forced, because it entails a unanimous vote of Staff Regulations pursuant to Article 24 of the Council and not a qualified majority, as the Merger Treaty. The provisions contained is laid down for the remaining aspects of the in Chapter 2 of Title V of the Staff Regula­ Staff Regulations. This procedural reserve is tions constitute, in the final analysis, rules attributable to the particular importance which, laid down by the Council in its attaching to the interests which are pro­ capacity as the Community's legislator, do tected. At the national level, the subject- not contemplate the individual institutions in matter covered by Article 15 is precluded their capacity as employers or in their capac­ from being at the free disposal of the parties ity as parties to the public employment rela­ in the field of employment relations and, by tionship with the official. In contrast, those its nature, is reserved to the sphere of the law provisions identify in the institutions the and to provisions, let us say, of a public characteristics of a public administration policy nature. The PPI lays down, in the placed, for the purposes of the rules in ques­ respect with which we have to deal in this tion, in a position of impartiality and of a case, inalienable, fundamental social rights third party which is peculiar to the body on the part of officials: rights governed also which has to apply binding rules and look within the Community legal order by bind­ over the interests protected by those provi­ ing provisions, which, however, unfold their sions. effects in several sectors of the system. Suf­ fice it to mention Article 13 of the Protocol, under which the official's salary is subject to a Community tax, but which offsets this by exempting it from taxes of an equivalent nature normally levied on a national basis.

expert capacity. These are provisions which way which is not in conformity with the embody for the interested party social rights procedure laid down by the Staff Regulations on the basis of the aforementioned legal limi­ unduly interfere with the application of tation of the matter to legislation, and are those regulations. In so far as the said con­ brought into existence by Council regulation tractual clauses are incompatible with the or in such ways as it authorizes. The rules so procedural rules laid down by the Staff laid down do not admit of the intercession of Regulations which are designed to protect third parties, who might, without being the official's interests at issue in this case, empowered to do so by the legislation, influ­ they must be regarded as inapplicable in this ence the course of the procedure, which the case. Such stipulations therefore cannot be regulation reserves to the persons mentioned relied on by the parties in order to assert and no others. It cannot be permitted that claims or raise objections in this connection. contractual stipulations should interfere with the observance and application of the regu­ lation and the related implementing provi­ sions, by prolonging the time-scales or changing the procedures for executing the administrative measure or by imposing on The criterion which I consider must be the potential beneficiary additional burdens adopted does not, moreover, sacrifice the and acts not expressly provided for ex lege. position of the insurers, which are third par­ ties here. Indeed, they enjoy adequate pro­ tection, both because the member of the Medical Committee appointed in accordance with the Staff Regulations by the appointing authority is nominated under the Agreement by agreement between the appointing auth­ The procedure established between the par­ 4 ority and the insurers and because the ties by the Agreement and the letter of 27 insurers are empowered in general, and January 1989 would involve a considerable therefore also in this case, to raise objections increase in the time required for the adop­ pursuant to its contractual relationship with tion of the definitive decision by the the appointing authority as to the validity of appointing authority, resulting in the loss by the administrative measure granting the the official of rights conferred on him by the 3 allowance underwritten and to refuse, on Staff Regulations. that basis, to carry out the performance due from them under the contract.

in point of fact. A mere observation will said, the procedure under the Staff Regula­ assist in this regard. The parties were to tions is on a different level from the rules agree on the time within which the insurers concerning relations between the Commu­ should have specified their questions nity and the insurers, which are contractual. designed to elicit new information from the Let us leave aside the fact that by the dead­ Medical Committee on the disputed occupa­ line of 29 April 1994 the questions which the tional origin of the invalidity. The date in insurers wished to put to the Medical Com­ question was 29 April 1994. At that time, the mittee had not yet arrived and were not sent applicant was not aware, however, of the thereafter. The questions could have been questions which the insurers intended to put, put and possibly have had the result of mak­ after consulting with their medical adviser. ing manifest the alleged contradictions or Van Breda's letter of 8 April expressly illogicality in the reasoning of the Medical referred to a questionnaire which the insur­ Committee's report, even after the decision ers themselves should have forwarded by 29 was notified to Mr L. The insurers could in April. In the circumstances, therefore, the fact have benefited by those clarifications in applicant was not in a position to go back any event within the ambit of their contrac­ again to the Medical Committee, and this tual relations with the Community. That this was due to the negligent conduct of the did not happen is therefore still because of defendants. their omission to act. For that reason, too, the defences put forward by the insurers are unfounded.

23. Neither is it necessary to examine what For their part, the defendants consider that effects the breach of contract on the part of the issue raised by them is not a medical one the applicant would have, that is to say, but a question of pure law and relates to the whether the defence relied upon aims at infringement of the rules which the applicant paralysing the claim for payment {exceptio is, in their view, bound to observe (the pro­ inadimpleti contractus — defence of non­ cedures laid down by the Agreement and the performance) or, in contrast, only at seeking letter of 27 January 1989) and the unlawful damages (exceptio non rite adimpleti contrac- nature of the report adopted by the Medical tus — defence that performance has not been Committee. The defendants criticize that duly made). There was no non-performance report for lack of reasoning in that it does on the part of the applicant and the defen­ not adduce sufficient arguments in support dants therefore cannot rely on that defence of its conclusions, contradicts the preceding in any respect. medical reports on the case in question and makes no reference to the evidence which the Medical Committee used to determine a rate of permanent invalidity of 100%.

Alleged defective reasoning

What is involved are two distinct forms of review of the legality of the contested meas­ ure. This explains the limits to the effective­ ness of a decision of the Court of Justice In my view, the Court certainly does have under Article 181 as to the validity of the jurisdiction to take cognizance incidentally administrative measure. Incidental cogni­ of a Community administrative measure in zance of the measure at issue so as to enable the course of proceedings under Article 181 the Court to resolve a civil dispute has the of the Treaty. This view is given support by force of res judicata only as between the par­ the fundamental rule laid down in ties to the proceedings brought under Article 177, which makes provision for refer­ Article 181. Otherwise, there would be a ences to be made to the Court for prelimi­ breach of the principle that such questions nary rulings on 'the validity and interpreta­ arc to be resolved with effects erga omnes by tion of acts of the institutions of the the Court of First Instance and by the Court Community' by the competent national of Justice when it hears an appeal against a court. Article 181 and the arbitration clause judgment given by the Community's first- based thereon derogate from the general rule instance court, 5and this would detract from on jurisdiction laid down by Article 183 by the right to a two-tier system of judicial shifting the natural forum for the dispute to remedies. In addition, if a different solution the Community Court. It would therefore were to be adopted, this would be in breach be illogical if the Court were to be seised of of the rule prescribed by Article 173, which the case yet have less powers of interpreta­ lays down that an action will not lie once the tion than it would have had if the national peremptory two-month time-limit has court had been seised of the matter. elapsed. 6 What I have just said is also reflected on the legislative level by Article 184 of the Treaty, which, as it has been construed by the Court in its case-law, is not, however, applicable in this case. That provision enables the unlawfulness of a measure of general scope to be pleaded in the course of proceedings before the Commu­ nity judicature. Secondly, it must be borne in mind that, for present purposes, the Community legal order allocates powers between the Court of Justice and the Court of First Instance. The 5 — Subject of course, to those cases in which jurisdiction has competence which the Court has incidenter been deferred by the Court of First Instance to the Court of Justice under Article 47 of the Statute of the Court of Jus­ tantum in such cases is different, of course, tice. than that which the Court of First Instance 6 — Or the lime-limit laid down by Articles 90 and 91 of the Statute in the case of measures falling within the scope of would have. Proceedings brought before the Article 179 of the Treaty.

26. Given that this is so, the first argument adduced by the insurers in this plea fails. The distinction between medical and legal dis­ putes, as provided by Article 5 of the Agree­ ment, which takes account of the case-law of the Court of Justice and the Court of First 7 Instance on this point, does not have any practical application in regard to the conduct with which the Commission is charged in 28. Next, the defendants make an observa­ this case for failing to comply with the pro­ tion in order to allege that the Medical Com­ visions laid down by the Agreement and the mittee did not take account of the opinion letter of 27 January 1989. We have already given earlier by Dr Dalem and Professor seen, in fact, that the failure to observe those Bartsch or of Professor Brochard's conclu­ stipulations is not attributable, de facto or de sions dissenting from the opinion subse­ jure, to the Commission. quently given by the Medical Committee. That criticism consists in the final analysis of raising the issue of defective reasoning in other terms. According to the case-law of the Court of Justice and the Court of First Instance, 8it is for the Medical Committee to 27. The defendants' other claim by which decide, if it thinks fit, whether it should refer they essentially ask the Court to review the to preceding medical opinions. As far as this opinion given by the Medical Committee, case is concerned, the report adopted by the which they allege is insufficiently reasoned, Medical Committee appears to be sufficiently must also be held to be unfounded, since it reasoned and Professor Brochard's very ignores the distinction between the two membership of the expert committee sup­ types of dispute laid down by Article 5 of ports the view that the opinion — which, as the Agreement in line with the case-law. As I have mentioned, was adopted by a majority the aforementioned case-law of the Court vote — undoubtedly took account of the dif­ ferent views put forward on this case by

Professor Brochard and, earlier, by Dr It would add the following. Neither Dalem and Professor Bartsch. Article 73(2)(b) of the Staff Regulations nor Article 12(1) of the implementing rules refers, in dealing with total invalidity, to the rates laid down in the scale annexed to those rules. According to the provisions of the Staff Regulations, the rates of invalidity 29. Lastly, the defendants raise the question should instead be used to determine the rate of the determination of the rate of invalidity, of partial invalidity. In the case of Mr L., which the Medical Committee put at 100%. total invalidity was involved and the indica­ The defendants argue that the Medical Com­ tions given in the scale did not have to be mittee failed to justify their determination of taken into account. that rate legally. For its part, the applicant notes that the person concerned had already been found to be suffering from total inval­ idity: recourse to the procedure laid down by Article 73 of the Staff Regulations was intended solely to determine whether the ill­ ness was occupational in origin. 30. In the alternative, the defendants contest the applicant's claim on the ground that the allowance was fixed at over 100%, which is the maximum permitted rate according to the abovementioned scale. The applicant maintains for its part that the invalidity allowance under Article 12 is independent of The applicant's observations are well the allowance determined under Article 14 of founded. Where recourse is made to the pro­ the implementing rules. Accordingly, the cedure provided for in Article 73 of the Staff rules in force allow the total allowance to be Regulations, the appointing authority may, if determined as 130%. it thinks fit, use aspects of the appraisal already determined in the context of the pro­ cedure for establishing invalidity under Article 78. The alleged independence of the two procedures alleged by the defendants has, in my view, completely different impli­ cations than they claim. The Medical Com­ mittee is not obliged, but simply authorized, This issue should, in my view, be resolved by to take into account and consider as defini­ determining the exact meaning of the last tive the conclusions reached in the other paragraph of the scale. It refers expressly to a procedure and to use, in its discretion, any possible overlapping of invalidity, but has data and determinations resulting from that nothing to say about the allowances payable 10 procedure. It is in this way, it seems to me, under Article 14. It follows that, according that Article 25 of the implementing rules to the intention of the legislature, the two 9 should be construed.

32. It is now necessary to rule on the ancil­ lary claim for interest. According to It is for this very reason that the last para­ Article 1153 of the Belgian Civil Code, inter­ graph of the aforementioned scale mentions est is to be calculated on the sum due at the only the case of the overlapping of more legal rate to be determined in accordance than one rate of partial invalidity. Then with that law as from the date on which Van again, the paragraph in question has to be Breda received the letter dated 6 May 1994 referred to only the case covered by from the Commission. According to the Article 73(2)(c) of the Staff Regulations and 1 Court's case-law, 1 that letter constitutes the corresponding provision of Article 12(2) notice of default within the meaning of of the implementing rules. But this case falls Article 1153 of the Belgian Civil Code. within the scope of Article 73(2)(b) of the Staff Regulations and Article 12(1) of the implementing rules.

V — Costs

Furthermore, the Commission's claims that there would be a manifest infringement of the principle of equal treatment if an official 33. Under Article 69(2) of the Rules of Pro­ suffering from total invalidity and from cedure, costs follow the event. I therefore lesions for which an additional allowance to propose that the defendants should be be calculated in accordance with Article 14 ordered to pay the costs. of the implementing rules could be paid were in fact to be treated in the same way as an official suffering solely from total invalidity, 11 — See, in this connection, Case C-42/94 Heidemij v Parlia- should be considered to be well founded. ment [1995] ECR I-1417.

— order the defendants to pay the costs.

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