Action brought on 9 November 2023 – MD v Commission

(Case T-1063/23)

Language of the case: Italian

Parties

Applicant: MD (represented by: P. D’Imporzano, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

Annul the contested decision, and therefore the implicit decision rejecting the complaint lodged on 11 May 2023 against draft decision PMO.3, which became final after 60 days;

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

1.    First plea, alleging that the criterion of ‘prior condition’ (original: ‘état antérieur’), on which the decision is based, is not provided for in the Common rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (‘the common rules’) (Article 9)

It can be inferred from the wording of Article 9 that it is not relevant whether, before the accident, a part of the body was in good or poor condition. It is only relevant whether it was necessary to intervene in order to restore, to the extent possible, a situation that is not less favourable than before; the treatment to restore, to the extent possible, physical integrity could also lead to functional improvement;

The ‘prior condition’ is irrelevant in order to determine the appropriate treatment, including long-term treatment;

Unlawfulness of the contested decision based, at least implicitly, on the criterion of ‘prior condition’.

2.    Second plea, alleging a contradiction between acceptance of the expenses incurred directly in relation to the accident and refusal to pay expenses potentially incurred in relation to potential complications

The applicant was reimbursed under the accident rules governing the costs of the implant and crown on tooth 13. However, as a result of the reports by the doctor designated by the Institution, at least accepted implicitly by that institution, the possibility of the accident rules covering treatment in the event of potential complications was ruled out on grounds of a prior condition. Were a prior condition to be relied on – the lawfulness of which is disputed – payment of direct expenses should also, logically, have been refused.

Infringement of Article 17 of the common rules, which makes the reopening of a case subject to the sole condition that the injury has worsened in comparison with the situation before the accident.

3.    Third plea in law, alleging inadequate statement of reasons in the report of the doctor designated by the Institution and, at least implicitly, accepted by the administration

The finding in the report of the doctor designated by the Institution and, at least implicitly, accepted by the administration was not supported by adequate reasons, having regard to the medical documents submitted.

4.    Fourth plea in law, alleging lack of independence and conflict of interest of the doctor designated by the Institution

An insurance policy was signed by the Institutions in respect of the risk of accidents of their staff. Should an accident covered by Article 73 of the Staff Regulations be determined to have occurred, the cost of the services set out in paragraphs 2 and 3 are covered by the insurance company. In this case, the doctor designated by the Institution is also the doctor of the insurance company which concluded the contract with the Institutions and which must bear the expenses laid down in the Staff Regulations.

That doctor, in performing both sets of duties, cannot operate with the necessary independence and impartiality. If it were the case that his fees for drafting his findings were paid by the insurance company, the conflict of interest would be obvious.

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