JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

2 October 2013

Case F‑111/12

Albert Nardone

v

European Commission

(Civil service — Former official — Exposure to asbestos and to other substances — Occupational disease — Accident — Article 73 of the Staff Regulations — Medical Committee — Statement of reasons — Action for damages — Length of the proceedings)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Nardone, a former official of the European Commission, seeks, in particular, annulment of the appointing authority’s decision of 8 November 2011 accepting the findings of the Medical Committee of 25 August 2011, as well as the award of a sum fixed ex æquo et bono and provisionally at EUR 100 000 in compensation for the non-material harm allegedly suffered.

Held:      The European Commission is ordered to pay Mr Nardone default interest for the period between 1 March 2006 and 15 July 2010 on the amount of EUR 8 448.51 at the rate fixed by the European Central Bank for main refinancing operations and applicable to the period in question, increased by two points, and the sum of EUR 3 000. The remainder of the action is dismissed. The European Commission is to bear its own costs and is ordered to pay one quarter of the costs incurred by Mr Nardone. Mr Nardone is to bear three quarters of his own costs.

Summary

1.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Medical Committee’s discretion — Judicial review — Limits — Obligation to state reasons — Scope

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 23)

2.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Processing of an application for recognition of the occupational origin of a disease — Duty to act within a reasonable time — Infringement — Impact on the opinion of the Medical Committee — Limits — Whether administration may be held responsible — Conditions

(Charter of Fundamental Rights of the European Union, Art. 41(1))

1.      The duty of the Medical Committee provided for in Article 23 of the Rules on the insurance of officials against the risk of accident and of occupational disease to assess medical questions entirely objectively and independently requires, first, that the Committee has available to it all the information it might need and, second, that it has full discretionary power. The medical assessments, properly speaking, made by the Medical Committee must be regarded as definitive where they have been issued under proper conditions. The Tribunal has the power only to ascertain, first, whether the Committee was constituted and functioned properly and, second, whether its opinion is lawful, in particular whether it contains a statement of reasons allowing an assessment to be made of the considerations on which it is based, and whether it establishes a comprehensible link between the medical findings it contains and the conclusions reached. Where the Medical Committee is dealing with complex medical issues concerning a difficult diagnosis in particular, it is for that Committee to indicate in its opinion the information on the file on which it relies and, in the event of significant divergence, to give the reasons why it differs from certain earlier and relevant medical reports, more favourable to the person concerned.

The fact that the Medical Committee makes no explicit reference, in its report, to certain documents or, a fortiori, to the content of certain documents drawn up at the applicant’s request is not sufficient to invalidate its findings. In the case of medical questions on which the Medical Committee is required to express an opinion entirely objectively and independently, it must have full discretionary power. It is therefore for the Committee to decide to what extent medical reports drawn up previously must be taken into consideration. Furthermore, the question whether or not to carry out other medical investigations is a medical issue which, as such, is not subject to review by the Union judicature provided that the Medical Committee’s assessment was issued under proper conditions.

(see paras 42-43, 48-49, 51)

See:

29 November 1984, 265/83 Suss v Commission, para. 13; 19 January 1988, 2/87 Biedermann v Court of Auditors, para. 19; 24 October 1996, C‑76/95 Commission v Royale belge, para. 73

15 December 1999, T‑300/97 Latino v Commission, paras 30, 41, 68, 78 and 87; 26 February 2003, T‑145/01 Latino v Commission, para. 47

28 June 2006, F‑39/05 Beau v Commission, para. 35; 14 September 2010, F‑79/09 AE v Commission, paras 64 and 65

2.      Compliance with the reasonable time requirement in the conduct of administrative procedures constitutes a general principle of Union law whose observance the Courts of the Union ensure and which is laid down as a component of the right to sound administration by Article 41(1) of the Charter of Fundamental Rights of the European Union. However, infringement of that principle does not, as a general rule, justify annulment of the decision taken at the end of an administrative procedure. It is only where the elapsing of an excessive period is likely to affect the content itself of the decision adopted at the end of the administrative procedure that failure to observe the reasonable time principle affects the validity of that administrative procedure.

In that regard, any excessive period taken to process an application for recognition of the occupational origin of a disease or of the exacerbation of partial permanent invalidity linked in particular to the sequelae of accidents cannot, in principle, affect the content itself of the opinion adopted by the Medical Committee or that of the final decision adopted by the institution. Such a period cannot, save in exceptional situations, alter the Medical Committee’s assessment of whether or not the disease of the official concerned is occupational in origin, or of whether his partial permanent invalidity has been exacerbated as a result of the sequelae of an accident he suffered. If the Union judicature annulled the final decision adopted, the main practical consequence would be counterproductive in that it would prolong the procedure still further on the ground that it had already gone on too long.

Furthermore, the institution is responsible for the speed at which the doctors work whom it appoints to issue findings concerning the rate of partial permanent invalidity. However, in so far as it is established that a delay in the proceedings of a Medical Committee is ascribable to the dilatory or even obstructive conduct of the official or of the doctor he has appointed, the institution must not be held responsible for that delay. Moreover, the use of legal remedies by the official constitutes an objective fact which, as such, is not ascribable to the institution, in the absence of any proof of delaying tactics for which it might be responsible.

(see paras 60-62, 66, 69, 76)

See:

13 December 2000, C‑39/00 P SGA v Commission, para. 44

20 April 1999, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission, para. 123; 13 January 2004, T‑67/01 JCB Service v Commission, paras 36 and 40 and the case-law cited therein; 11 April 2006, T‑394/03 Angeletti v Commission, paras 152, 154, 162 and 163

6 December 2012, T‑390/10 P Füller-Tomlinson v Parliament, paras 115 and 116

1 July 2010, F‑97/08 Füller-Tomlinson v Parliament, para. 167; AE v Commission, para. 101; 14 September 2011, F‑12/09 A v Commission, para. 226; 13 March 2013, F‑91/10 AK v Commission, para. 78, on appeal before the General Court of the European Union, Case T‑288/13 P