JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (First Chamber)

18 September 2007

Case F-10/07

Patricia Botos

v

Commission of the European Communities

(Civil service – Officials – Social security – Sickness insurance – Repayment of medical expenses – Serious illness – Management Committee – Expert medical assessment)

Application: brought under Articles 236 EC and 152 EA, in which Mrs Botos seeks, first, annulment of the Commission appointing authority’s decision of 30 October 2006 rejecting her complaint against a number of decisions of the authorities managing the joint sickness insurance scheme, which refused to recognise her disorder (chronic fatigue syndrome) as a serious illness entitling her to reimbursement of 100% of the expenses incurred and to reimburse certain analysis costs and more than 10 packets of the product Lactas per year, and, secondly, annulment of those decisions of refusal.

Held: The Commission’s decisions of 23 January and 30 October 2006 are annulled inasmuch as they refuse the applicant repayment of the costs of the tests carried out by RED Laboratories and Ategis at the normal rate of the joint sickness insurance scheme. The remainder of the action is dismissed. The applicant is to bear two thirds of her own costs. The Commission is to bear its own costs and pay one third of the applicant’s costs.

Summary

1.      Officials – Social security – Sickness insurance – Serious illness – Refusal to recognise – Judicial review – Limit

(Staff Regulations, Art. 72(1))

2.      Officials – Social security – Sickness insurance – Medical expenses – Repayment – Refusal – Treatments considered inefficacious and unnecessary – Judicial review – Limits

(Staff Regulations, Art. 72(1); Rules on Sickness Insurance, Art. 20(3) and (4))

1.      The remedies provided for by the Staff Regulations may not generally be employed in order to challenge medical appraisals properly so-called, which must be regarded as definitive provided that the conditions in which they are made are not irregular. The Tribunal is under no burden to examine whether the way in which a medical assessment was carried out complies with the best medical practice, or whether it is the best way to ascertain the state of health of the official concerned, or whether a doctor’s diagnosis of an official’s mental health is justified. Without questioning the medical appraisals, it is, however, the Tribunal’s responsibility to consider whether the appointing authority, in refusing to recognise the official’s illness as serious, has properly assessed the facts and applied the relevant legal provisions correctly.

It is therefore for the Tribunal, as part of the limited judicial review it is called upon to perform in medical matters, to consider whether, in refusing to classify an illness as serious, the competent authority has actually taken into account the criteria which determine such a classification, and has not committed a manifest error in inferring from the medical findings communicated to it, on which the Tribunal may not adjudicate unless the administration has misinterpreted their significance, that those criteria were not all met.

(see paras 39-41)

See:

2/87 Biedermann v Court of Auditors [1988] ECR 143, para. 8

T‑33/89 and T‑74/89 Blackman v Parliament [1993] ECR II‑249, para. 44; T-199/01 G v Commission [2002] ECR-SC I‑A‑217 and II‑1085, para. 59; T-191/01 Hecq v Commission [2004] ECR-SC I‑A‑147 and II‑659, para. 63

F-39/05 Beau v Commission [2006] ECR-SC I-A-1-51 and II-A-1-175, para. 74; F-17/05 De Brito Sequeira Carvalho v Commission [2006] ECR-SC I-A-1-149 and II-A-1-577, para. 85

2.      Members of the joint sickness insurance scheme (JSIS) are not automatically entitled to repayment of all their medical expenses. For the purpose of safeguarding the financial equilibrium of the JSIS, the institutions have laid down, in the Rules on Sickness Insurance for Officials of the Communities, rules for situations where the repayment of certain categories of medical expenses may be refused, or specific conditions for entitlement to the repayment of certain services. Thus Article 20(3) of the Rules on Sickness Insurance provides that expenses relating to treatments regarded as inefficacious or unnecessary by the settlements office, after consultation of its medical officer, will not be reimbursed. Likewise, under Article 20(4) of those Rules, the reimbursement of services not provided for in the general implementing provisions is merely optional for the JSIS and is, in any event, limited to 80%, again after consultation of the settlements office’s medical officer.

Consequently, even though a JSIS member may reasonably take the view that his medical expenses will generally be reimbursed within the limits laid down in Article 72(1) of the Staff Regulations, reimbursement of certain expenses may lawfully be refused by the office responsible for settling claims if, after consulting the medical officer and, if appropriate, the Medical Council, it considers that those expenses relate to a treatment or services whose scientific validity is not proven. It is entirely justified that the cost of treatments or services whose therapeutic value or reliability as a diagnostic means is scientifically disputed should not be reimbursed by the JSIS, which is financed by its members and the institutions.

It was in order to avoid endless or inextricable expert debate that the JSIS medical authorities – the medical officers and the Medical Council – were given the task of conducting appraisals in this context, their decisions being taken on the basis of the scientific literature, if necessary after consulting specialists or experts in the medical field in question.

In such a context, where a member cannot claim to be entitled to reimbursement of the expenses he submits to the JSIS, and given the limited scope of the Community judicature’s review of purely medical appraisals, a refusal to reimburse on the ground that a treatment or service is not scientifically valid may not reasonably be contested before the Tribunal unless the member can prove a manifest error vitiating that reason.

A refusal to reimburse analysis costs is vitiated by such an error where no diagnostic method other than those analyses can claim greater validity and where the resulting diagnosis has been accepted by the appointing authority.

(see paras 62-76)