C-291/97

H v COMMISSION

OPINION OF ADVOCATE GENERAL ALBER delivered on 5 March 1998 *

A — Introduction B — Facts and parties' submissions

1 1. By judgment of 3 June 1997 the Court of First Instance gave judgment in an action 2 which Mrs H , a former official of the Com­ 4. The facts giving rise to the judgment of mission, had brought against that institution. the Court of First Instance are as follows. In She sought the annulment of the Commis­ this regard, it should be observed that at one sion's decisions of 27 September 1994 (retir­ point two distinct procedures (one for the ing her) and 27 June 1995 (rejecting her com­ purpose of retiring the appellant and the plaint against that decision) and also the other with a view to placing her on sick annulment of the Invalidity Committee's leave) were in progress at the same time. opinion of 13 September 1994 finding that the appellant was unfit for work.

2. The Court of First Instance dismissed the 5. The appellant was first of all required on application as inadmissible in so far as it 17 March 1993 to take sick leave pursuant to sought the annulment of the Invalidity Com­ Article 59(2) of the Staff Regulations of Offi­ mittee's opinion and the decision of 27 June cials of the European Communities (herein­ 1995. As to the remainder, the application after 'the Staff Regulations'). was dismissed as unfounded.

3. By notice of appeal dated 5 August 1997 Mrs H brought an appeal against that judg­ 6. The appellant lodged a complaint against ment. that decision by letter of 3 June 1993. According to the appellant, however, this let­ ter was mislaid by the Commission. She therefore lodged a fresh complaint against language:: German * Original language German.. 1 — Case T-196/95 H v Commis on [1997 T-196/ 1997]] ECR-SC II-403 II-403.. the Commission's decision by letter of 13 2 — anonymity.. Name changed in the interests of anonymity June 1993.

13. By letter of 20 June 1994 the Commis­ sion was informed of the decision of the President of the Court of Justice concerning the appointment of a doctor for the appel­ 10. On 14 January 1994 Mrs H brought an lant. According to the Commission, the doc­ 3 action before the Court of First Instance tor appointed by it wrote to Mrs H on the same day informing her of the establishment and composition of the Invalidity Commit­ tee. However, the appellant denies having 3 — Case T-8/94 H v Commission, removed from the register by Order of 10 May 1995 (OJ 1995 C 159, p. 29). received that letter.

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H v COMMISSION

14. On 13 September 1994 the Invalidity 17. On 10 January 1995 the appellant Committee, without hearing the appellant acknowledged receipt of the appointing (since she refused to attend the meeting on authority's decision; furthermore, in the pro­ the date appointed), reached the conclusion ceedings before the Court of First Instance that she was suffering from total permanent she stated that she had only received the let­ invalidity preventing her from performing ter on that date. the duties corresponding to a post in her career bracket and that it was therefore obliged to suspend her employment with the Commission.

18. On 6 April 1995 the appellant lodged a complaint against the decision of 27 Septem­ ber 1994.

15. The appellant has alleged both in the proceedings before the Court of First Instance and in the proceedings on appeal that the medical conclusions on the basis of which she was placed on sick leave and declared unfit for work were arrived at with­ 19. By decision of 27 June 1995, which the out her having been examined and without appellant claims only to have received on 18 the findings of other examinations which she July 1995, the Commission rejected the had at her disposal being taken into account. appellant's complaint. In that regard she gave to understand that she could have provided favourable assess­ ments from other doctors, had she been duly notified.

2. set aside the judgment of the Court of First Instance; and

3. declare that her previous action was admissible and well founded. 25. The Court of Justice has consistently held that if an appeal is to be admissible under Article 168a of the EC Treaty and meet the requirements of Article 51 of the EC Statute of the Court of Justice and Article 112(l)(c) of the Rules of Procedure it C — Analysis must clearly state which aspects of the judg­ ment which the Court is requested to set aside are criticised and the legal arguments which specifically support the request, and cannot be limited to repeating or reproduc­ ing verbatim the pleas in law and arguments already submitted to the Court of First 1. Admissibility of the appeal Instance, including those based on factual allegations expressly dismissed by that 4 Court. Such an appeal merely seeks, in real­ ity, reconsideration of the application sub­ mitted to the Court of First Instance, which

23. Since only the Commission deals with 4 — Judgments in Case C-153/96 P de Rijk v Commission [1997] the issue of the admissibility of the appeal, I ECR I-2901 and Case C-18/91 P V v Parliament [1992] shall begin by examining the arguments ECR I-3997; Orders in Case C-338/93 P De Hoe v Commis- sion [1994] ECR I-819 and Case C-26/94 P X v Commission which it puts forward. [1994] ECR I-4379.

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H v COMMISSION

is precluded under Articles 49 and 51 of the administrative status and all reports relating EC Statute of the Court of Justice. to his ability, efficiency and conduct.

OPINION OF MR ALBER — CASE C-291/97 P

31. Mrs H alleges a number of formal and her in accordance with the applicable provi­ procedural irregularities on the occasion of sions. The Court of First Instance committed the establishment and composition of the an error of law by accepting the facts Invalidity Committee. According to the Staff put forward by the Commission as having Regulations, the Invalidity Committee is to evidential value without considering the give both parties the opportunity to express requirements relating to communication. their views. Even if the decision of the Presi­ dent of the Court of Justice appointing a doctor to represent the appellant on the Invalidity Committee is an administrative measure, the procedure prior to and subse­ quent to that decision must be inter partes. Accordingly, the Commission was under an obligation to communicate both its request 34. It is for the Court of First Instance alone to the President and the President's decision to assess the value which should be attached to the appellant in the manner provided for 6 to the evidence adduced before it. How­ in the third paragraph of Article 26 of the ever, an appeal is admissible in so far as the Staff Regulations. Similarly, the communi­ decision of the Court of First Instance is cation of the letter of 20 June 1994 informing claimed to be incompatible with rules of law her of the establishment and composition of 7 the observance of which it had to ensure. the Invalidity Committee should have been Similarly, it is possible to raise in support of evidenced by the appellant's signing it or, an appeal pleas relating to the legal assess­ failing that, have been effected by registered ment of facts and seeking to establish that letter. The Court of First Instance committed the Court of First Instance committed an an error of law by failing to find that the 8 error in law. Commission acted in breach of what the appellant considers to be the procedural requirements.

36. In paragraphs 39 and 40 of its judgment the Court of First Instance rightly held that the application was inadmissible in so far as the Commission's decision of 27 June 1995 (a) First plea in support of the appeal was concerned. Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only where this decision upholds all or part of the com­ 38. By her first plea, Mrs H complains of a plaint of the person concerned that it will, in number of formal irregularities in respect of appropriate circumstances, constitute by the communication of letters concerning the itself a decision against which an action can establishment and composition of the Inval­ 9 be brought. An action which is brought idity Committee. She claims that since nei­ against a mere rejection is therefore to be ther the Commission's decision to request regarded as an action against the contested the President of the Court of Justice to measure, in the present case the appointing appoint a doctor to represent her nor the authority's decision. final decision of the President of the Court of Justice concerning the doctor in question should have been sent by ordinary post she was not properly notified of those decisions. Nor was she properly informed of the final 37. Furthermore, the Invalidity Committee's composition and the meeting of the Invalid­ opinion is merely a preparatory act in the ity Committee. It follows from the principle context of the procedure for compulsory that the procedure before the Invalidity retirement under Article 53 of the Staff Committee is inter partes and the importance Regulations and cannot be the subject of an of its conclusions that the communication of action. An action can only be brought those documents should have been evidenced against the decision taken at the conclusion by the appellant's signature or effected by of this procedure and, on that occasion, con­ registered letter.

40. As regards the establishment of the 42. The proper establishment of the Invalid­ Invalidity Committee, the Court of First ity Committee also requires that the essential Instance held that the appointment by the provisions as to form and procedure be President of the Court of Justice of a doctor observed. Having regard to the (adverse) to represent an official on an Invalidity consequences which the conclusions of the Committee pursuant to the second para­ Invalidity Committee may have for the offi­ graph of Article 7 of Annex II to the Staff cials concerned, and since the appointing Regulations, where the official concerned has authority is not authorised to amend or failed to appoint such a doctor, is not a judi­ replace those conclusions according to its cial procedure but more in the nature of an own opinion, both the establishment and the administrative measure. Accordingly, the composition of the Invalidity Committee 1 procedure does not need to be inter partes. 1 should have been communicated to the appellant in accordance with the third para­ graph of Article 26 of the Staff Regulations, since those measures may have consequences which adversely affect officials.

41. The Court of Justice has consistently held that the provisions relating to the Inval­ idity Committee are designed so as to confer upon medical experts the task of definitively appraising all medical questions. It may be 43. It is, admittedly, not apparent from the inferred from this that judicial review may provisions of the second paragraph of not extend to medical appraisals properly

Article 25 and the third paragraph of Article 44. Irrespective of the form of communi­ 26 of the Staff Regulations precisely which cation, the Court of First Instance concluded documents in fact require special communi­ that all the necessary information was made cation. However, the decision to order a available to the appellant and that she was meeting of an invalidity committee, the opin­ thus in a position to participate in the pro­ ion of that committee and, finally, the cedure in point. However, the Court did not decision of the appointing authority to retire examine the question whether the communi­ the official are of such weighty significance cation of the documents in question was effected in accordance with the formal that it appears necessary — also from the requirements. It cannot be concluded merely aspect of the employer's duty of care from the fact that the Commission sent the towards its employees — to apply the letters by ordinary post or had them deliv­ stricter provisions as to form and procedure. ered by an official of the security office that It is not clear from the wording of Articles by and large they were properly communi­ 25 and 26 of the Staff Regulations which cated. decisions or documents are covered by the requirement laid down in the third para­ graph of Article 26. Nor, in particular, is it apparent from the first paragraph of Article 26 which documents must be in the personal file. It would be desirable if the Staff Regula­ tions contained more precise rules in that regard, in order to ensure that the procedure is contested properly. Even though from a formal point of view the decisions of the appointing authority merely constitute an administrative measure, the serious conse­ 45. In that regard the Court of First Instance quences they may entail cannot be over­ failed to have sufficient regard to the rights looked. Decisions which lead to compulsory which the appellant enjoyed under the third retirement concern an official's administra­ paragraph of Article 26 and drew the wrong tive status and, simply because of their seri­ conclusion from the information made avail­ able to it or ascribed to it an evidential value ous consequences, require to be communi­ which does not correspond to the provisions cated in the form provided for in the third of the third paragraph of Article 26 of the paragraph of Article 26 of the Staff Regula­ Staff Regulations. tions. That applies a fortiori in the present case, where initially there were two separate procedures between the appellant and the Commission at the same time. It cannot be excluded that the appellant considered that letters sent in the context of the procedure relating to the establishment and composi­ tion of the Invalidity Committee concerned the procedure relating to sick leave. That might have been avoided if the letters had been properly communicated as provided for in the third paragraph of Article 26 of the 46. To that extent, the appeal is well Staff Regulations. founded.

49. Under the first paragraph of Article 9 of 52. The first paragraph of Article 9 of Annex Annex II to the Staff Regulations an official II to the Staff Regulations provides that the is entitled to submit to the Invalidity Com­ official may submit to the Invalidity Com­ mittee any reports or certificates from his mittee any reports or certificates from his regular doctor or from any medical practitio­ regular doctor. This means the official con­ ners whom he may have consulted. In order cerned must also be in a position to be able to ensure that the official concerned is able to to exercise his rights. That applies a fortiori exercise that right, however, and having where the Invalidity Committee's opinion, as regard to the serious consequences which the regards its medical content, is binding on the conclusions of the Invalidity Committee appointing authority, which, in turn, adopts may have for him, it is essential in this situ­ its decision on the basis of that opinion. It ation, too, that the relevant documents be should also be pointed out here — as I have either communicated by registered letter or observed in point 43 — that two procedures evidenced by the official's signing them. were in progress at the same time. The Court of First Instance should therefore have examined whether communication was effected in accordance with the applicable provisions relating to form and procedure in 50. In regard to that problem, the Court of force. Since the Court failed to undertake First Instance considered that it was proven such an examination in the present case,

(2) The Commission's decision of 27 September 1994 retiring the appellant is declared void .

(3) The Commission is to pay all the costs in both sets of proceedings .

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