C-257/98

2. The appellant worked for many years for 3. The relevant portion of Article 73 of the the Commission in Brussels in the Berlay- Staff Regulations (Chapter 2 — Social mont Building, which was contaminated by asbestos, in particular during the period Security) provides: when the building was being extended. When he became ill with pulmonary carci­ noma, this was recognised as an occupa­ tional disease and a condition of total permanent invalidity was confirmed. On '1 An official is insured, from the date of this basis, he received, in addition to his his entering the service, against the risk of pension, benefits totalling occupational disease and of accident sub­ BEF 25 794 194, in accordance with Arti­ ject to rules drawn up by common agree­ cle 73 of the Staff Regulations of Officials ment of the institutions of the Communities of the European Communities ('the Staff after consulting the Staff Regulations Com­ Regulations') and Article 14 of the Rules mittee. He shall contribute to the cost of on the insurance of officials of the Eur­ insuring against non-occupational risks up opean Communities against the risk of to 0.1% of his basic salary. accident and of occupational disease ('the

* Original language: German. 1 — Judgment of 14 May 1998 in Case T-165/95 Lucaccioni ν Commission [1998] ECR-SC I-A-203 and II-627.

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2. The benefits payable shall be as follows: 2. Where an official sustains partial perma- nent invalidity as a result of an accident or of an occupational disease, he shall be paid a lump sum calculated on the basis of the rates laid down in the invalidity scale contained in the Annex hereto.'

C — The Facts of 680 asbestic bodies per gramme of dry tissue was determined. 4

5. The appellant, born on 31 January 1941, entered the Commission's service in 1962, and over the period between 1967 8. On 26 November 1990 the appellant and 1987 worked for about 16 years, sent the administration and the appointing except for a four-year period of service in authority (the Commission) a note in which Japan, in the Berlaymont Building in Brus­ he stated, in accordance with Article 17 of sels, most recently at Grade Bl. the Insurance Rules and with a view to obtaining benefit under Article 73 of the Staff Regulations, that he had contracted lung cancer in the form of an epidermoid carcinoma which had entailed his having a left upper lobectomy and resulted in chronic asthmatiform bronchitis. He requested a decision to recognise this as 6. On 15 January 1990 the appellant suf­ an occupational disease and to determine a fered a haemoptysis. The doctors whom he rate of permanent invalidity under Arti- consulted concluded, after examining him, cle 19 of the Insurance Rules. In his view that he had bronchial cancer. the diseases were attributable to the fact that he had been exposed to asbestos in the Berlaymont Building, especially during the reconstruction phase from 1967 to 1969.

7. On 12 March 1990 the appellant under­ went a lobectomy (removal) of the left upper lobe of the lung. The surgeon expressed the view that the appellant 9. By letter of 18 January the director of presented sequelae of tuberculosis of the Directorate DO 'Personnel — Rights and left upper lobe. 3Despite the initial diag­ Obligations' of the Directorate-General for nosis of cancer no tumour could be Personnel and Administration (DX IX) (the detected on the tissue removed. At the personnel director) informed the appellant surgeon's request a sample of the tissue that in view of his state of health his case removed from the lung was tested by the would be referred to the Invalidity Com- mineralogical laboratory at the Hôpital Erasme. In a report dated 30 August mittee provided for in Article 78 of the 1990, signed by Professor De Vuyst, a rate Staff Regulations. The appellant could

apply for his condition to be recognised as the same time, this would not necessarily an occupational disease under Article 73 of lead to a simultaneous result. the Staff Regulations. However, as the two procedures could lead to quite different results, the personnel director stated that it would be best to conduct them in parallel. 13. The Invalidity Committee 5 met on 10 June 1991. It concluded that the appel- lant should be regarded as suffering from total permanent disability and could no 10. In a letter of 27 February 1991 to the longer perform the duties corresponding to personnel director, the appellant nominated a post in his career bracket; he was there- the doctor he had chosen for the purposes fore required to terminate his service with of the Invalidity Committee, referring to his the Commission. note of 26 November 1990. He also asked that the decisions resulting from the two procedures should be formulated not only in parallel but uniformly, and that they should take effect simultaneously. 14. On 16 July 1991 the personnel direc- tor, in his capacity as appointing authority, took a decision retiring the appellant, in accordance with Article 53 of the Staff Regulations, and granted him an invalidity pension determined in accordance with the 11. The personnel director informed the third paragraph of Article 78 of the Staff appellant, in a letter of 15 March 1991, Regulations, with effect from 1 August that the procedures under Article 73 and 1991. This pension is equal to 70% of the Article 78 of the Staff Regulations would appellant's basic salary, and thus corre- be conducted separately. He pointed out sponds to the normal pension which an that the procedure to determine the exis- official receives after 35 years of pension- tence of an occupational disease would last able service according to the second para- much longer than the procedure under graph of Article 77 of the Staff Regula- Article 78 to establish incapacity for work. tions. However, the recognition of an occupa- tional disease, if that were the outcome, would take effect retroactively and would apply from the time when permanent invalidity was established. 15. By letter of 15 October 1991 the appellant submitted a complaint, in accor- dance with Article 90(2) of the Staff Reg- ulations, against the decision of 16 July 1991 retiring him. By letter of 3 March 12. According to a letter of 21 May 1991 1992 the Commission rejected the appel- from the personnel director, the two pro- cedures were being separated so that the appellant would obtain financial support as 5 — The Invalidity Committee consisted of the following three quickly as possible. Although it would be doctors: Dr Cognigni (appointed by the appellant), Dr Mancini (appointed by the Commission) and Professor desirable to conduct the two procedures at Maltoni (appointed by the first two doctors).

lant's complaint. The appellant did not an occupational disease, pursuant to Arti- appeal to the Court of First Instance against cle 21 of the Insurance Rules. However, the the decision rejecting his complaint. appellant continued to follow the proce- dure laid down in Article 73 of the Staff Regulations and requested that the Medical Committee provided for in Article 23 of the Insurance Rules be convened. 16. In the context of the procedure then being conducted to recognise the occupa­ tional nature of the disease, pursuant to Article 73 of the Staff Regulations, the Commission appointed Dr Dalem, of the 19. At its first meeting on 13 April 1993, in University of Liège, to draw up the medical particular because of the different results report provided for in Article 19 of the obtained by the various laboratories, the Insurance Rules. Dr Dalem sought the Medical Committee 6was not unanimous assistance of Professor Bartsch, a specialist on the connection between the appellant's in pneumology at the Institut Provincial exposure to asbestos and his carcinoma. It Ernest Malvoz in Liège. therefore decided to request three further examinations. The results of these were as follows: Professor De Vuyst found 235 000 fibres of crocidolite (blue asbestos), amo- site, anthophyllite and chrysolite per 17. On the basis of an examination of the gramme of dry tissue; Professor Donelli appellant, an analysis of the documents in confirmed the presence of chrysolite; Pro- the file and further correspondence with fessor Woitowitz found 350 000 fibres of various doctors, Professor Bartsch drew up crocidolite and amosite per gramme of dry a report in which he concluded that no tissue and 300 000 fibres of chrysolite per occupational disease was present. On the gramme of dry tissue. basis of that report Dr Dalem drafted his medical report for the Commission, in which he also concluded that there was no occupational disease. The appellant, he stated, was not suffering from bronchial 20. Following a second meeting on 25 Feb- cancer and although his longs actually ruary 1994 the Medical Committee filed a contained asbestos fibres there was no majority report on 1 March 1994 (Dr Cog- evidence of fibrosis caused by asbestos, so nigni and Professor Maltoni voted against that the appellant was not suffering from Professor Brochard). In the Committee's asbestosis either. view, the appellant's pulmonary carcinoma was to be regarded as an occupational disease; his permanent total invalidity was 100% and was to be backdated to the date on which it was first diagnosed (January 18. By note of 17 February 1992 the head 1990). Having regard to the permanent of the unit 'Insurance against Accidents and Occupational Disease' informed the appel- lant of Dr Dalem's conclusions and for- 6 — The Medical Committee consisted of Dr Cognigni warded to him a draft decision rejecting his (appointed by the appellant), Professor Brochard (appointed by the Commission) and Professor Maltoni (appointed by request to be recognised as suffering from the first two doctors).

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24. On 15 December 1994 the appellant 1 January 1990 or no later than 10 June submitted a complaint pursuant to Arti­ 1991 until the final payment of this sum, cle 90(2) of the Staff Regulations against the claim for interest being provisionally the decision contained in the letter of reckoned in t h e a m o u n t of 22 September 1994. By a decision of BEF 15 000 000. 3 May 1995, which was notified to the appellant on 29 May 1995, the Commis­ sion rejected the appellant's complaint.

25. On 29 August 1995 the appellant The Commission's decision of 22 Septem­ brought his action before the Court of First ber 1994, he submitted, should be declare Instance, requesting it to rule that the null and void to the extent necessary. Commission should:

— pay the difference between his salary as an official and his invalidity pension from 1 August 1991 until reaching This application was dismissed by judg­ pensionable age (31 January 2006) as ment of 14 May 1998. compensation for material harm, this difference being provisionally esti­ mated at BEF 15 000 000 and BEF 12 500 000, 7 and calculate the former amount;

2. accordingly, to uphold his claims advanced at first instance, except for the claim for compensation for the material damage, estimated at 27. On 15 July 1998 the appellant BEF 12 500 00, arising from the sale appealed against this judgment, pleading of various items of real property; principally an 'infringement of Community law by the Court of First Instance'. His plea of infringement is divided into four limbs. First, the Court of First Instance did not examine all the factors involving the Com- mission's liability according to ordinary 3. to order the respondent to pay the costs law, namely fault, damage and the causal of the proceedings. connection between fault and damage; it merely stated that the appellant had not shown that any damage existed. In so doing it failed to distinguish between this addi- tional claim for compensation and that based on the Staff Regulations. Second, the 29. In the view of the Commission, the Court of First Instance did not properly appeal is partially inadmissible and entirely investigate the material and non-material unfounded. The Court of First Instance, it damage suffered by the appellant. Third, argues, did not err in stating that the the Court of First Instance subsumed the appellant had failed to prove any damage material and non-material damage suffered in excess of the sums paid to him, so that by the appellant under the lump sum paid there was no need to consider further the to him under the social security scheme for additional factual conditions for entitle- Community officials, and did not advance ment to damages. Nor had the Court of any reasons for doing so. Fourth, the First Instance erred in investigating the appellant argues that the Court of First damage. These were merely assertions on Instance erred in law by failing to pay him the part of the appellant, which are how- interest for the delay in dealing with his ever, inadmissible in appellate proceedings. case. The Commission also rejects, as being at

3. to make the appropriate order as to 8—Joined Cases 169/83 and 136/84 Leussink and Others v costs. Commission [1986] ECR 2801, paragraph 13.

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insurance scheme are insufficient to provide for payment of a lump sum pursuant to full compensation for the injury suffered', Article 73 of the Staff Regulations and, on the appellant argues that when there is a the other, liability according to ordinary claim for damages the liability of the law based on the liability of an institution institution in question must first be esta- for fault. However, if claims under the two blished. Only at a second stage, if liability heads are to be compared there must be an has been established, is the extent of the investigation of the facts giving rise to the damage payable to be ascertained, taking claims, that is to say, confirmation of total into account any benefits which may invalidity and the presence of fault, in this already have been paid on the basis of the case by the Commission. However, the social security scheme. The Court of First Court of First Instance failed to consider Instance, however, made no finding as to the question of fault by the Commission, the Community's liability. Not one of the and thus erred in law. breaches alleged to have been committed by the Commission was investigated by it. The Court of First Instance's decision was legally flawed in that it did not examine the fault, the damage and the causal link between them. The faults alleged to have been committed by the Commission were numerous and extremely serious. These points should have been addressed before the question of the existence of damage.

36. As for the objection that two indepen­ dent claims for damages have been con­ fused, there is, according to the Commis­ 38. In the judgment under appeal 1 0 the sion, no legal principle whereby the harm Court of First Instance stated, referring to caused and its extent must be appraised in its established case-law, that in an action the light of the faults committed. Compen­ for damages by an official the Community's sation must always be determined by liability is dependent on several condition reference to damage actually incurred. being met concurrently — the unlawfulness of the conduct imputed to the institutions, the fact of damage and the existence of a causal link. From this the Court of First Instance concluded, in paragraph 57 of the judgment under appeal, that even if the Analysis Commission were shown to have been at fault, the Community would be liable only if actual harm not otherwise covered had occurred and been proven.

40. Contrary to the view of the appellant, this approach by the Court of First Instance does not constitute an infringement of 43. Moreover, the appellant has failed to Community law within the meaning of establish on his part the existence of an Article 51 of the Statute of the Court. interest warranting legal protection in hav- ing the Court of First Instance make a finding on the issue of fault despite con- cluding that there was no harm. Such an interest might have been present if special protection had been required in the form of a finding of fault by the Commission in 41. The only aspect of the appellant's order to compensate for potential future argument which can be upheld is that the harm, but no such argument was made. If existence of a claim for damages depends further harm occurs at a later stage the on the three abovementioned conditions appellant remains free to claim compensa- being met. However, it is nowhere stated in tion if none has already been granted. the case-law of either Community Court that a strict order of priority has to be followed in examining those criteria. It is not apparent that there is any general binding principle of law common to the legal systems of the Member States, and nor has the appellant shown there to be such a principle, that fault must first be 44. Contrary to the appellant's argument established on the part of the institution the judgment in Leussink case, to which concerned before actual damage can be both parties have referred, cannot be con- ascertained at a second stage. strued in any other way. Admittedly, in that case, which involved an action for damages, the Court began its examination of the question of liability by dealing with the condition of fault, in order to ascertain the damage to be compensated, proceed- ings at a third stage to a consideration of 42. Although it may appear regrettable the causal link. However, it is also clear from the view of the person concerned that from this judgment that the Court was the Court of First Instance, before which he initially concerned with the question of brought his action, made no finding on the whether the claimant had an entitlement

50. In this connection the appellant argues 47. In the present case also, the Court of that he has suffered material and non- First Instance first of all dealt with the material harm that has not been compen­ sated under either Article 73 of the Staff 11—Judgment in Joined Cases 169/83 and 136/84, cited in Regulations or Article 14 of the Insurance footnote 8, paragraph 10 et seq. Rules. Since the Court of First Instance

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failed to acknowledge this in the judgment arguing for additional compensation, this under appeal, its assessment of damage was cannot already be covered by Article 73 of legally flawed. the Staff Regulations.

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tion for comparable non-material damage. of the appellant — making due allowance In the appellant's view his contentions on for the difference between his invalidity this point had been merely of a supplemen­ pension and his salary as an official until tary nature, and if the Court of First reaching pensionable age — should be Instance was convinced that they lacked regarded as already covered, effectively, substantiation, it should have clarified the by the lump sum of approximately matter ex proprio motu. BEF 25 800 000 paid on the basis of Article 73 of the Staff Regulations. This conclusion does not, however, contradict either Article 73 of the Staff Regulations or the case-law of the Court.

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Court of First Instance, in its judgment, sufficient. This also follows from the fact was correct in finding that the appellant that the meaning and purpose of the had failed to establish that a sum in the payment under Article 73 otherwise would amount claimed could be granted by the be defeated and the person concerned courts of the Member States in compensa- would be unjustifiably enriched. However, tion for comparable non-material damage. this simply means that the estimated actual damage must be set against the benefits paid under Article 73 of the Staff Regula- tions or Article 14 of the Insurance Rules. Only if these benefits are insufficient to provide compensation will the way be open Analysis for a supplementary claim.

61. It should first be noted that in his arguments the appellant confines himself mainly to repeating facts and opinions 63. The case-law 13 is likewise consistent in which had already been addressed in the stating that the compensation benefits paid proceedings before the Court of First under Article 73 of the Staff Regulations or Instance. However, since an appeal to the Article 14 of the Insurance Rules are inten- Court, under Article 51 of its Statute, is ded to cover not only the financial con- limited to the examination of questions of sequences of an accident or occupational law, the appellant's arguments to this effect disease, but also the physical and psycho- must, according to the consistent case- logical consequences. law, 12 be rejected as inadmissible.

paragraph 76, dealt explicitly with the to have suffered. If that has been achieved difference invoked by the appellant by virtue of the Staff Regulations and the between his invalidity pension and his Insurance Rules, this would be an obstacle salary as an official until reaching retire­ to any supplementary claim for damages. ment age. On this point the Court of First Instance stated that even assuming payment of c o m p e n s a t i o n a m o u n t i n g t o BEF 8 400 000 claimed by the appellant — a claim which lacked substantiation — the damage which had occurred was already effectively covered; even if the sum of 67. On this point the Court of First BEF 5 950 000 paid under Article 14 of Instance stated, in paragraphs 83 to 91 of the Insurance Rules were to be deducted the judgment under appeal, that on the from the amount of BEF 25 794 194, the basis of the expert report of the Medical sum remaining exceeds the amount of the Committee, pursuant to Article 14 of the claim, so that no damage remains. Insurance Rules, and in order specifically to compensate him for physical impairment and for serious 'psychological' disturbance, the appellant had received, in addition to the sum payable under Article 73 of the Staff Regulations, a further payment of BEF 5 950 000. Contrary to the appellant's view, the Court of First Instance did there­ 65. If, however, the actual material damage fore deal quite adequately with the ques­ suffered by the appellant had already been tion of compensation for non-material fully compensated by benefits under Arti­ damage. In estimating the damage, it cle 73 of the Staff Regulations, no scope concluded in paragraph 87 that in equity, remains for any supplementary claims for damage of this kind could be evaluated at a compensation in excess of these. On this maximum of BEF 5 950 000. It is of course point the Court of First Instance did not err quite conceivable that in principle a higher in rejecting the plea, and it follows that the figure could be set on non-material appeal based on it is unfounded. damage. Damage of this kind, however, can be properly estimated only on the basis of the invalidity scale, and such an estima­ tion is essentially dependent on the parti­ cular case concerned. This, however, is a discretionary decision, and the fact that the medical assessments of the appellant's state of health disagree shows that neither the 66. As regards compensation for the non- Commission nor the Court of First Instance material damage pleaded by the appellant, made any error of law in the matter. he is correct is stating that Article 14 of the Insurance Rules does not refer expressly to psychological impairment. In the light of the case-law of both Courts, however, the question should also be asked in this connection whether the benefits paid to the appellant have already sufficiently 68. It is indeed apparent from the Court of compensated him for the harm he claims First Instance's statements in paragraph 85

Third limb: failure to state reasons 71. Likewise, the argument that the deci- sions of courts of the Member States cited by the appellant have been disregarded must be rejected as lacking foundation. The Court of First Instance formed the view the Arguments of the parties appellant had been unable to demonstrate in the proceeding that a higher sum could, as he claimed, be granted by the courts of the Member States to compensate for comparable non-material damage in similar cases. This follows from paragraph 88 of 73. According to the appellant, the judg- the judgment under appeal. In this respect ment of the Court of First Instance under the Commission is also correct in stating appeal contains no objective verifiable that the judgments cited by the appellant statement of reasons as to why the com- do not warrant the conclusion that the pensation benefits already paid sufficiently compensation sought as a supplementary compensate the material and non-material

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damage sustained. He states that he sustained had been adequately compensa­ received only the sums to which he was ted. entitled according to the provisions of the Staff Regulations and the Insurance Rules, and nothing more to compensate him for the tragic situation in which he found himself. He would, however, regard it as a token of justice if the Commission, which Analysis has seriously undermined his health through its own grave fault, were required to pay compensation on that account.

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non-material damage must be the same, lidity Committee should also have dealt since here too the Court of First Instance with the question of whether there was an concluded, after evaluating the damage occupational disease, and not solely with which had actually occurred, that no fur- the question of invalidity. He contends that ther damage existed above and beyond that the link between his disease and his work covered by the sums already paid. In this would in that case probably have been respect also reference is made to what the recognised earlier by the Invalidity Com- Court of First Instance said in para- mittee. A claim for damages therefore graphs 83 to 91 of its judgment. arises because of the delay in dealing with this matter. The appellant essentially repeats the same arguments as those advanced in the original application, and concludes that the Court of First Instance 77. Finally, it should also be pointed out erred in law by not admitting that, as a that the purpose of the payment made to result of the Commission's conduct, he had the appellant was to compensate the suffered damage from the delay in examin- damage sustained. This is, precisely, not ing his case. He also criticises the judgment payment of the 'normal' retirement pension under appeal for failing to rule that the to which an official would be entitled Commission had misused its discretion in according to the provisions of the Staff that respect. Regulations. In summary, it may be said of this plea likewise that it should be dis- missed as inadmissible and in any event as unfounded.

Analysis result that the Commission did not misuse its discretion in this area by not requiring the Invalidity Committee established under Article 78 of the Staff Regulations to decide, during the procedure under Arti­ 80. Here likewise, it must first be stated cle 73 of the Staff Regulations, whether the that the appellant's arguments are confined appellant's disease was of an occupational essentially to a repetition of facts which nature. have already been dealt with in the pro­ ceedings before the Court of First Instance. However, in appeal cases this Court may only concern itself with questions of law, and the appellant's arguments must there­ 82. There would have been a misuse of fore be rejected as inadmissible. discretion only if the Commission had had a compelling reason to put to the Invalidity Committee the same question as to the committee established under Article 73 of the Staff Regulations. The appellant was, 81. Moreover, it is not clear in what sense however, unable to adduce or to demon­ the Court of First Instance is said to have strate any such compelling reason. Since made an error of law. Referring to the the appeal also contains no further expla­ consistent case-law of this Court, the Court nation on this point, the argument must in of First Instance begins by stating that a any case be rejected as unfounded. comparison between Articles 73 and 78 of the Staff Regulations shows that the bene­ fits specified in those provisions are differ­ ent from and independent of each other, although they may be granted concurrently. 83. In summary, therefore, it may be said According to it, the two procedures are that the plea based on infringement of different and may result in Community law must be rejected as par­ tially inadmissible, but also in any event as unfounded in its entirety.

(2) order the appellant to pay the costs of the appeal proceedings.

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