C-90/95

D E C O M P T E v PARLIAMENT

OPINION OF ADVOCATE GENERAL TESAURO delivered on 18 June 1996 *

I - 2001

OPINION OF MR TESAURO — CASE C-90/95 P

3. In the meantime, on 14 June 1988, the 2. The subject contracted this illness through appellant lodged a complaint with the Euro- having encountered in the performance of pean Parliament in which he stated that he his duties exceptional circumstances of such had contracted an occupational disease dur- a nature as to induce illness. ing the course of the disciplinary procedure and claimed payment of benefits under Article 73 of the Staff Regulations in accord- ance with Article 17(1) of the Rules on the Insurance of Officials of the European Com- munities against the Risk of Accident and of 3. (...) Occupational Disease (hereinafter 'the Rules'). 6

4. The causal factors responsible for the ill- ness are the subjective and the objective experiences ensuing from the accusations In an initial report, drawn up pursuant to made against the subject. Those two forms of Article 19 of the Rules, the doctor appointed experience have in equal measure had a deci- by the European Parliament refused to rec- sive effect on a person predisposed towards ognize the occupational nature of the appel- paranoia. lant's disease. The appointing authority therefore served upon the appellant a draft decision rejecting his claim. When the appel- lant challenged that draft, the Invalidity Committee was duly convened in accordance (...) with Article 23 of the Rules. On 22 January 1991, the Invalidity Committee found as fol- lows:

6. The rate of invalidity is 40% (forty per cent).

' 1 . Henri de Compte is suffering from severe anxio-depressive decompensation, in the form of melancholia and paranoia, the cause of which is occupational, the condition hav- (•••)'• ing been generated by stress which was occa- sioned by accusations perceived as malicious, and which has led to the downgrading of his career and to mental problems.

4. By decision of 18 April 1991, the appoint- ing authority revoked the decision of 24 January 1991 with retroactive effect, on the ground that it was based on an erroneous interpretation of the concept of occupational O n 20 January 1992, that is to say after the disease. The appointing authority justified its Court of First Instance had confirmed by revocation of the decision by applying the judgment of 17 October 1991 that the disci- principle, expressly laid down by the Court plinary measure imposed upon the appellant of Justice in Rienzi, 7 according to which an was lawful, the appointing authority adopted illness of an official may only be classed as the decision provided for in the operative occupational if it arises in connection with part of the decision of 18 April 1991 which lawful performance of the duties of the per- was intended to replace the decision of 24 son concerned. In this case, as stated in the January 1991. The decision of 20 January very report of the Invalidity Committee, it 1992, confirming the application of the judg- was undisputed that the disease had its origin ment in Rienzi to the instant case, held that in the appellant's state of depression follow- the appellant's disease was not occupational ing the accusations made against him and the in origin within the meaning of the Rules. disciplinary measure imposed on him, rather than in the performance (still less the lawful performance) of his duties.

On 10 April 1992 the appellant brought an appeal against the decision of 20 January In the operative part of the decision of 18 1992, which the appointing authority April 1991, the appointing authority also rejected on 4 June 1992. The appellant also stated that a new decision would be adopted challenged that decision, together with the following delivery of the judgment of the rejection of his complaint, before the Court Court of First Instance in Case T-26/89, of First Instance (Case T-62/92). which, as I have mentioned, was concerned with the legality of the disciplinary measure of downgrading.

8. In his first plea, the appellant claims that Article 33 of the Statute of the Court of Jus- tice, which requires that judgments are to — declare the claims brought by the appel- state the reasons on which they are based, lant before the Court of First Instance has been infringed. In point of fact, far from well founded, and uphold them. relying, on a defective statement of reasons, the appellant is challenging the substance of the judgment of the Court of First Instance, in particular where it confirmed that the The appeal is based on an alleged infringe- decision of 24 January 1991 was invalid and, ment of Community law, more especially: (a) at the same time, upheld the validity of the infringement of Article 33 of the Statute of subsequent decision revoking it. the Court of Justice of the EEC concerning the obligation to give grounds for decisions; (b) infringement of Article 73 of the Staff Regulations and Article 3 of the Rules with regard to the benefits payable to officials in the event of occupational disease and the In paragraphs 42 and 47 of the judgment, the concept of occupational disease; (c) infringe- Court of First Instance, citing the relevant ment of a number of general principles of case-law, stressed the limits to the powers law, including the principles of legal cer- conferred on the Medical Committee tainty; good faith; protection of legitimate referred to in Article 23 of the Rules, its expectations; the duty to have due regard for assessments having to be confined to medical the welfare of officials; the principle that matters. Legal assessments of the conse- administrative measures should be annulled quences to be drawn from the medical

The report drawn up by the Medical Com- mittee is therefore based, in the view of the Court of First Instance, on a misconception of the notion of occupational disease. There- fore the appointing authority's decision, which in turn is based on the report's find- 11. However, the approach adopted by the ings, is for that reason invalid and conse- Court of First Instance seems to me to be quently apt to be revoked. correct in so far as what is at issue here is not an exclusively medical assessment. In actual fact, for a disease to be classified as occupa- tional, further considerations outside the medical field may need to be taken into account, in addition to medical assessments. 10. For his part, the appellant submits, in the Therefore the Medical Committee normally first place, that in defining the disease as carries out only the technical/medical assess- occupational in nature, the Medical Commit- ments, leaving it to the administration to tee did not make a legal assessment but con- draw the appropriate administrative and legal fined itself to the task assigned to it by the conclusions. But, even if the Medical Com- European Parliament itself, namely to deter- mittee itself were to draw conclusions or mine whether the 'disease was of an occupa- make assessments other than ones of a tional nature', and, secondly, that the report purely medical nature, those assessments would be at most irrelevant and in no way prejudice the ability of, first, the appointing authority and, subsequently, the Court to 8 — Case C-185/90 P Gill [1991] ECR 1-4779, parigraph 24; sec also Riemi, paragraph 9. make assessments.

In other words, the power of the administra- to claim — as is being claimed in these pro- tion to review from the legal point of view ceedings — that a person can 'benefit' by an the findings of the analysis carried out by the occupational disease in regard to the exercise Medical Committee remains completely of duties performed in breach of his obliga- unaffected. Take, for example, the condition tions under the Staff Regulations. concerning the Uwful exercise of his duties by the person concerned — the subject of the judgment in Rienzi; it is clear that it is the administration which has to decide whether that condition has been satisfied, as it possesses the information and is familiar with the factual and legal issues relating to the particular case. It is also clear that, as far as the concept of occupational disease is con- cerned, the Court is also competent to In other words, to conclude what I have to review either the assessment of the Invalidity say on this point, the Medical Committee's Committee or that of the appointing auth- classification of the disease as occupational in ority. origin cannot be definitive, in the sense that it binds the administration. If that were to be the case, there would be no further scope for review by the administration (and, if neces- sary, the Court) of these and other factual and legal matters which could prove decisive for the very purposes of classifying the dis- 12. Seen in that perspective, the contention ease. that the Court of First Instance 'encroached upon' the competence of the Medical Com- mittee by substituting itself for the Commit- tee in assessing the occupational origin of the disease is not even worth commenting upon. The Court of First Instance in fact merely took issue with the fact that the Medical Committee classified the appellant's disease as Occupational'; it did not thereby take issue with its medical findings. 14. Again, in the context of his first plea, the appellant challenges paragraph 45 of the judgment, in which the Court of First Instance found that the disease contracted by the appellant could not be classified as occu- pational in nature even if it were found to 13. On the question of the correctness of the have been caused by 'improper' acts or con- concept of occupational disease adopted in duct by the European Parliament vis-à-vis the judgment, the appellant's contention that the appellant. According to the Court of any disease that does not arise in a private First Instance, in so far as such acts or con- context is by definition an occupational dis- duct are not linked to the normal exercise of ease manifestly flies in the face of common the official's functions, the most that could sense, and is, in any event, incompatible with be envisaged would be non-contractual the Rienzi judgment. It would be paradoxical liability on the part of the institution.

15. In his second plea, the appellant chal- lenges paragraph 48 of the judgment, in which the Court of First Instance held that the institution's power to rely on the illegal- 16. In this regard, I shall merely note the ity of an earlier decision in order to with- clear, solidly-established case-law of the draw that decision is inherent in its very ille- Court of Justice, which was properly applied gality, in the sense that that illegality by the Court of First Instance, according to constitutes the condition for revoking a which the revocation of an invalid decision measure which has created personal rights in which has created rights in the addressee is its addressee. In that vein, the Court of First subject to the requirements of a reasonable Instance went on to state that the appellant's time and respect for legitimate expectations. 9 claim that 'the invalidity of the decision has These then, and no others, are the only con- to be able legitimately to be relied upon' had ditions to which the possibility of retroac- no independent relevance, since that con- tively revoking a measure is subject. I there- dition was satisfied once the measure was fore fully agree with the Court of First revoked within a reasonable time and Instance's finding that the appellant's criti- account was taken of the legitimate expecta- cism in this regard is essentially covered by tions of addressee of the decision. the alleged breach of the obligation to com- ply with a reasonable period of time and the principle of protection of legitimate expecta- tions, the subject-matter of the subsequent (third and fourth) pleas. It therefore follows that the second plea also is without founda- tion. The appellant, however, argues that the aforementioned two conditions are not suffi- cient and therefore accuses the Court of First Instance of having merged the possibility of 9 — See, for instance, Case 14/81 Alpha Steel [1982] ECR 749, paragraph 10, and Case 15/85 Consorzio Cooperative legitimately relying upon the invalidity of an d'Abruzzo [1987] ECR 1005, paragraph 12.

The appellant is in fact claiming, on the one hand, that that period ought to have started 19. The appellant then disputes, more gener- running, not on the date on which the ally, those paragraphs of the judgment (para- decision at issue was adopted, but on the graphs 59 to 62) rejecting the argument alleg- date on which the Medical Committee's ing infringement by the institution of the report was drawn up (according to the obligation to take account of the addressee's appellant, 24 August 1990) and, on the other, legitimate expectations with regard to the that a three month period is in any case too validity of the revoked decision. According long and unreasonable. to the appellant, the fact that the European Parliament did not cite the Rienzi judgment from the start of the procedure inspired in him, not just a legitimate expectation, but 'absolute certainty' that he would be able to obtain recognition of the occupational nature of his disease. 18. The first contention is manifestly unfounded. It is plain that, if for no other reason than reasons of legal certainty, the period at issue here must begin to run at the time when the defective decision began to have legal effects in regard to the addressee, that is to say, on the date when the decision itself was adopted. That argument too should simply be disre- garded. In the first place, I must reiterate that the point in time from which protection of the addressee's legitimate expectations as

But the second contention too is completely 10 — Joined Cases 7/56 and 3/56 to 7/56 Algera v Common unfounded. In a similar case, the Court of Assembly [1957 and 1958] ECR 39.

21. The fifth plea concerns that part of the judgment of the Court of First Instance 20. Moreover, there is in addition an impor- relating to Case T-62/92 only. The appellant tant factual circumstance, which was found disputes that the period that elapsed between by the Court of First Instance and is undis- the (revoked) decision of 24 January 1991 puted by the parties: it appears from the and the decision of 20 January 1992 by case-file that, as early as between 1 and 13 which the appointing authority refused once March 1991, the appellant had been warned and for all to recognize the occupational by the competent departments of the Parlia- nature of the appellant's disease, was reason- ment that there were difficulties in paying able. To that end, he reiterates 'the same over the sum which had been awarded to arguments' already put forward in the third him because of doubts that had arisen spe- plea. cifically in regard to the validity of the decision at issue. n It is therefore clear that the applicant's alleged trust in the validity of the decision itself could in fact have lasted only for little over a month.

The judgment's reasoning on this point is, in my view, again perfectly sound. As the Court of First Instance in fact expressly pointed out, the appointing authority cor- rectly awaited the outcome of Case T-26/89 Lastly, it should be pointed out that, specifi- (concerning the legality of the disciplinary cally in consideration of the damage suffered measure) before adopting a final decision on by the appellant as a result of the insufficient the case, because the judgment in that case diligence shown by the competent depart- could have proved decisive in terms of the ments of the European Parliament in carry- content of the definitive decision. ing out the procedure, the European Parlia- ment was ordered to pay the appellant compensation (of BFR 200 000) in respect of

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