JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

1 July 2010

Case F-97/08

Paulette Füller-Tomlinson

v

European Parliament

(Civil service — Former member of the temporary staff — Occupational disease — Physical or mental harm — Duration of the procedure for the recognition of the occupational nature of the disease)

Application: brought under Articles 236 EC and 152 EA, in which Ms Füller-Tomlinson, a former member of the temporary staff of the Parliament, seeks annulment of the decision of the authority empowered to conclude contracts of employment of 9 April 2008 fixing the part of her physical and mental harm having an occupational origin at 20%.

Held: The application is dismissed. The applicant is ordered to bear all the costs.

Summary

1.      Officials — Actions — Action against a decision rejecting a complaint — Admissibility

(Staff Regulations, Arts 90 and 91)

2.      Officials — Actions — Prior administrative complaint — Plea not explicitly included in the complaint, but relied on by implication — Admissibility

(Staff Regulations, Arts 90 and 91)

3.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Invalidity — Fixing by the scale of an invalidity rate or range of invalidity rates — Legality — Judicial review — Limits

(Staff Regulations, Art. 73(1); Rules on insurance against the risk of accident and of occupational disease, Art. 11)

4.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Recognition of the occupational nature of the disease and determination of the degree of permanent invalidity — Procedure

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Arts 18 and 20)

1.      Claims for annulment formally directed against the rejection of a complaint have the effect, where those claims lack, as such, any independent content, of bringing before the Tribunal the decision against which the complaint was submitted.

(see para. 43)

See:

293/87 Vainker v Parliament [1989] ECR 23, para. 8

T-309/03 Camós Grau v Commission [2006] ECR II‑1173, para. 43

F-136/06 Reali v Commission [2008] ECR-SC I‑A‑1‑451 and II‑A‑1‑2495, para. 37

2.      For a plea which has not been explicitly raised in the prior administrative complaint to be admissible, it is sufficient that the applicant referred to it by implication at that stage. Since the pre-litigation procedure is informal in character and those concerned are generally acting without the assistance of a lawyer at that stage, the administration must not interpret the complaints restrictively but, on the contrary, must consider them with an open mind.

To hold a plea alleging illegality of a legislative or regulatory text inadmissible for breach of the correspondence rule would upset the balance between the protection of the official’s procedural rights and the purpose pursued by the pre-contentious procedure and would amount to a disproportionate and unjustified penalty for the official. Given the intrinsically legal nature of a plea alleging illegality of a legislative or regulatory text, and also of the reasoning which underlies contemplating and then pleading illegality of this nature, the official or servant who lodges the complaint, and who does not necessarily have the appropriate legal expertise, cannot be required to formulate such a plea at the pre-contentious stage, failing which it will be declared inadmissible in the legal proceedings. That is particularly so since to raise a plea of illegality at the pre-contentious stage seems hardly liable to result in the complainant being successful at that stage, as, except in hypothetical cases of manifest illegality, the administration is unlikely to choose to disapply a provision in force by accepting the applicant’s argument that the provision does not comply with a higher-ranking rule.

(see paras 55, 57)

See:

T-297/94 Vanderhaeghen v Commission [1997] ECR-SC I‑A‑7 and II‑13, para. 37

judgment of 1 July 2010 in F-45/07 Mandt v Parliament, para. 121

3.      The Civil Service Tribunal’s review of the provisions of the Common rules on the insurance of officials against the risk of accident and of occupational disease must be confined to establishing whether there has been a manifest error of assessment or whether the institutions have exceeded the bounds of their discretion. More precisely, the Tribunal’s review of the legality of the fixing by the scale of an invalidity rate or range of invalidity rates must necessarily be very limited in view, first, of the complex medical assessments involved in applying the scale and, second, of the wide discretion conferred on the institutions by Article 73(1) of the Staff Regulations regarding the conditions for insuring the risks of accident and of occupational disease.

(see paras 70, 101)

4.      For a Medical Committee legitimately to issue a medical opinion, it must be able to acquaint itself with all the documents capable of helping it to make its assessments. That reasoning must be applied, by analogy, to the findings of the doctor(s) appointed by the institutions under Articles 18 and 20 of the Common rules on the insurance of officials against the risk of accident and of occupational disease. In the absence of a full investigation and of a comprehensive report on the investigation conducted, therefore, the doctor appointed by the institution is not in a position legitimately to issue his findings as provided for in Article 18 of the Insurance Rules.

(see para. 163)

See:

T-187/95 R v Commission [1997] ECR-SC I‑A‑253 and II‑729, para. 49; T-27/98 Nardone v Commission [1999] ECR-SC I‑A‑267 and II‑1293, para. 68; T-48/01 Vainker v Parliament [2004] ECR-SC I‑A‑51 and II‑197, paras 129 and 133