JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

10 July 2012

Case F‑4/11

AV

v

European Commission

(Civil service — Temporary staff — Recruitment — Medical cover deferment — Retroactive application of medical cover deferment — Opinion of invalidity committee)

Application:      brought under Article 270TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which AV seeks annulment of the decision taken by the European Commission to defer his medical cover as provided for in Article 32 of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) and of the decision refusing him the invalidity allowance.

Held:      The decision of 12 April 2010 is annulled. The decision of 16 April 2010 is annulled. The Commission is to bear its own costs and to pay those incurred by AV.

Summary

Officials — Members of the temporary staff — Recruitment — Medical examination — Candidate’s obligation to answer the questions asked — Consequences of incorrect or incomplete declarations — Justification for the retroactive application of medical cover deferment — Condition — Prior referral to the medical officer

(Conditions of Employment of Other Servants, Art. 32)

It follows from the provisions of Article 32 of the Conditions of Employment of Other Servants that, although the authority empowered to conclude contracts of employment may decide to grant a staff member suffering from sickness or invalidity guaranteed benefits in respect of invalidity or death only after a period of five years from the date of his entering the service of the institution, in so far as risks arising from that sickness or invalidity are concerned, that decision may be taken only on the basis of a medical opinion, issued by the medical officer or, on appeal, by the medical committee, as to whether the staff member is actually suffering from a sickness or invalidity capable, in the light of the risks arising from it, of justifying the application of a medical cover deferment.

In a particular case where, after the pre-recruitment medical examination, it is apparent that a staff member did not answer sincerely and completely the questions asked about his health by the medical officer during that examination, the authority empowered to conclude contracts of employment may withdraw its original decision not to defer medical cover and take a fresh decision applying that deferment retroactively. The authority is nevertheless first required to follow the procedure provided for in Article 32 of the Conditions of Employment of Other Servants, that is to say, it must first refer the matter to the medical officer so that he can issue an opinion on the question whether the sickness or invalidity warranted deferring medical cover when the staff member was engaged, and second, it must inform the staff member of the decision it has taken on the basis of that opinion, so that the staff member may, if appropriate, lodge an appeal with the Invalidity Committee. Such a question, which involves ascertaining whether the sickness or invalidity was capable of resulting in the staff member’s invalidity or death within a period of five years from the date of his entering the service of the institution, is of a medical nature and is strictly a matter for the medical officer and, on appeal, the Invalidity Committee.

(see paras 33, 34)