JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

11 December 2013

Case F‑142/12

A

v

European Commission

(Civil service — Social security — Accident or occupational disease — Article 73 of the Staff Regulations — Partial permanent invalidity — Claim for compensation)

Application:      under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which A seeks, first, annulment of the decision of the European Commission of 11 January 2012 conferring on him a partial permanent invalidity rate (‘PPI rate’) of 20% and establishing the date of stabilisation of the sequelae of his occupational disease as 25 February 2010 and, secondly, an order that the Commission should compensate him for the material and non-material damage he suffered as a result both of the excessive length of the procedure leading to the decision of 11 January 2012 and of his occupational disease.

Held:      The decision of the European Commission of 11 January 2012 to close the procedure opened under Article 73 of the Staff Regulations of Officials of the European Union as a result of the occupational disease suffered by A is annulled. The European Commission is ordered to pay to A the sum of EUR 3 500. The action is dismissed as to the remainder. The European Commission is to bear its own costs and is ordered to pay the costs incurred by A.

Summary

1.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Discretion of the medical committee — Judicial review — Limits — Obligation to state reasons — Scope

(Staff Regulations, Art. 73)

2.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Medical committee’s obligation to state reasons — Scope — Inadequate and contradictory reasons — Legal consequences — Annulment of the decision based on the opinion of the medical committee

(Staff Regulations, Art. 73)

3.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Power of the appointing authority to depart from the assessment of the medical committee — None

(Staff Regulations, Art. 73)

4.      Actions brought by officials — Judgment annulling a measure — Effects — Obligation to implement — Prolongation of the situation of expectation caused by the unlawfulness of a decision of an institution — Compensation for non-material damage through adequate reparation

(Art. 266 TFEU; Staff Regulations, Art. 73)

5.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Flat-rate compensation under the scheme laid down in the Staff Regulations — Claim for further compensation based on an error of such a kind as to render the institution liable — Assessment of the claim for further compensation requiring a medical report — Inadmissibility during the course of the procedure under the scheme laid down in the Staff Regulations

(Staff Regulations, Art. 73)

1.      With regard to the medical committee referred to in Article 22 of the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease, medical assessments, properly speaking, made by that committee must be regarded as definitive where they have been issued under proper conditions. The court only has the power 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 required to answer complex medical questions relating to a difficult diagnosis or to the causal link between the disorder from which the official concerned is suffering and the performance of his duties with an EU institution it must indicate in its opinion, inter alia, the evidence in the file on which it has relied and, in the event of significant discrepancy, its reasons for departing from certain relevant medical reports drawn up at an earlier stage which were more favourable to the official.

(see para. 62)

See:

14 September 2010, F‑79/09 AE v Commission, paras 64 and 65 and the case-law cited

2.      The report of the medical committee referred to in Article 22 of the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease must contain a statement of reasons allowing an assessment to be made of the considerations on which it is based and establish a comprehensible link between the medical findings it contains and the conclusions reached.

Where the medical committee, in order to justify its establishment of the date of definitive stabilisation, restricts itself to administrative considerations and merely indicates, inter alia, the date on which the doctors met and took note of the content of the medical file, the statement of reasons must be considered to be inadequate.

Moreover, where the medical committee in its report departs from its own earlier medical assessments without going further into the medical reasons which led it to make such assessments, the statement of reasons is contradictory.

By adopting in this way a statement of reasons that is inadequate and contradictory the medical committee has not enabled the person concerned to determine comprehensibly the link it intended to establish between its medical assessments and the conclusions it reached with regard to the date on which his sequelae stabilised.

The rights of the person concerned to have his partial permanent invalidity rate established and, as a consequence, to receive the capital sum provided for in Article 73(2) of the Staff Regulations and the additional partial permanent invalidity allowance provided for in Article 13 of the insurance rules can be determined only on the basis of the date on which the sequelae of his occupational disease stabilised, account being taken in particular of the entry into force on 1 January 2006 of the scale, whose applicability to the person concerned requires that his lesions had stabilised prior to such entry into force, which it remains for the medical committee to demonstrate, showing to the requisite legal standard the reasons for its conclusion.

Consequently, the finding that the opinion of the medical committee contained inadequate reasoning as regards the date of stabilisation is such that it entails annulment of a decision establishing that date.

(see paras 70-78)

See:

AE v Commission, para. 64 and the case-law cited; 13 June 2012, F‑31/10 Guittet v Commission, paras 54 and 68 and the case-law cited

3.      The provisions of the Staff Regulations relating to the medical committee to which reference is made under Article 73 are designed so as to confer upon medical experts the task of definitively assessing all medical matters, which no appointing authority, because of its internal administrative composition, could do. Consequently, the appointing authority cannot, without erring in law, depart from the medical assessments made by the medical committee, unless it establishes that such assessments are not relevant because they were not issued under proper conditions. Even if it were the case that a medical assessment made by the medical committee was incorrect, the appointing authority could not, without exceeding its powers, assume the role of that committee by taking decisions itself on medical matters.

As regards establishing the date of stabilisation, suffice it to note that the stabilisation of lesions is a medical matter to be assessed by the medical committee, which cannot be determined according to the length of time medical care is covered under the Common rules on the insurance of officials of the European Union against the risk of accident and of occupational disease.

Consequently, by establishing a date for the stabilisation of the sequelae of the disease that is different from that decided on by the medical committee, the appointing authority exceeded its powers and erred in law in its decision as a result.

(see paras 81-85)

See:

7 May 2013, F‑86/11 McCoy v Committee of the Regions, para. 78

4.      In the case of a judgment annulling a decision of an institution that has set a particular partial permanent invalidity rate, under Article 266 TFEU it is for the institution concerned to take the measures necessary to comply with that judgment and, in particular, to adopt, while observing the principle of legality, any measure that will fairly compensate for the disadvantage resulting for the applicant from the annulled measures, without prejudice to the possibility for the applicant to bring an action at a later stage against the measures adopted by that institution to comply with that judgment.

However, since the stabilisation of the lesions is not yet established, by the effect of the annulling judgment, it is not possible to assess at this stage whether the length of the procedure is reasonable, since the decision establishing definitively the applicant’s invalidity rate, which will bring that procedure to a close cannot be taken until after the date on which the lesions have finally stabilised has been established.

Nevertheless, since, by the effect of the annulling judgment, the applicant is again in a position of waiting for the final outcome of the procedure opened under Article 73 of the Staff Regulations, such a prolongation of the situation of expectation and uncertainty, caused by the unlawfulness of the contested decision, constitutes non-material damage which it is for the institution to compensate through adequate reparation to be assessed ex aequo et bono in the context of the judgment annulling the decision.

(see paras 90-92)

See:

15 September 2005, T‑132/03 Casini v Commission, para. 98

24 June 2008, F‑15/05 Andres and Others v ECB, para. 132; 13 June 2012, F‑63/10 BL v Commission, para. 108

5.      An official who is the victim of occupational disease is only entitled to claim further compensation in accordance with the general law when the scheme governed by the Staff Regulations laid down in Article 73 of those Regulations does not allow appropriate compensation to be paid. As a consequence and in principle, a claim for compensation for the material and non-material damage caused to an official by an occupational disease is not admissible until the procedure commenced under Article 73 of the Staff Regulations has been concluded.

Admittedly, it cannot automatically be deduced from the fact that the medical procedure has not been concluded that an action for damages on account of a wrongful act allegedly committed by an institution is premature. It is for reasons of economy of procedure that the admissibility of an action for damages under the general law is subject to exhaustion of the compensation procedure provided for in the Staff Regulations.

However, where establishment of the causal link between the working conditions of the person concerned and the damage claimed, and also the evaluation of the damage, require the preparation of a medical report, with the result that neither the causal link nor the damage claimed can be established before the procedure commenced under Article 73 of the Staff Regulations has been concluded, the claim for compensation for the material and non-material damage caused by the occupational disease is premature.

(see paras 95-97)

See:

15 December 1999, T‑300/97 Latino v Commission, para. 94; 10 December 2008, T‑57/99 Nardone v Commission, para. 56

13 January 2010, F‑124/05 and F‑96/06, A and G v Commission, paras 151 and 152