JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

17 February 2011

Case F‑119/07

Guido Strack

v

European Commission

(Civil service — Officials — Mediation procedure — Act adversely affecting an official — Article 73 of the Staff Regulations — Consolidation — Provisional allowance)

Application: brought under Articles 236 EC and 152 EA, in which Mr Strack seeks, first, annulment of the Commission’s refusals to conduct a mediation procedure and to pay him a provisional allowance pursuant to Article 19(4) of the Common Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease, together with annulment of the appointing authority’s decision of 20 July 2007 rejecting his complaint; second, an order that the Commission pay him damages for the non-material damage and damage to health which he claims to have suffered, together with late-payment interest.

Held: The Commission’s decision of 26 February 2007 refusing to pay the applicant a provisional allowance pursuant to Article 19(4) of the Common Rules is annulled. The remainder of the action is dismissed. The Commission is ordered to pay half of the costs incurred by the applicant in addition to its own costs. The applicant is ordered to pay half of his own costs.

Summary

1.      Actions for annulment — Actionable measure — Action against the refusal to conduct a mediation procedure — Not included

(Art. 263 TFEU)

2.      Officials — Administration's duty to have regard for the interests of officials

(Staff Regulations, Art. 24)

3.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Invalidity — Allowance — Right to payment — Conditions

(Staff Regulations, Art. 73(2)(c); Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease, Arts 18 to 20)

1.      An action for annulment is not admissible in so far as it is directed against the defendant’s refusal to conduct a mediation procedure.

Mediation is a voluntary dispute resolution process, the purpose of which is, precisely, to enable the parties to arrive at an out-of-court settlement of their dispute. Consequently, even if one party’s refusal to engage in that process may adversely affect its opponent, annulment of that refusal would be of only hypothetical benefit, since that annulment could not force the party concerned to accept mediation.

(see paras 65, 66)

2.      The obligations arising from the duty to have regard for the welfare of officials are substantially greater where the situation in question concerns an official whose psychological health is evidently being affected. In such circumstances, the administration must consider that official’s requests with a particularly open mind. That obligation applies a fortiori where, in particular, the aggravation of the official’s state of health is not disputed and a psychiatrist treating him draws the administration’s attention to the fact that it is urgently necessary on medical grounds to take immediate steps to resolve the dispute and put an end to the underlying conflict.

(see para. 85)

3.      Entitlement to payment of the benefit for partial permanent invalidity referred to in Article 73(2)(c) of the Staff Regulations arises only once the injuries have consolidated, that state being reached when a victim’s physical injuries have become fixed such that they no longer appear capable of recovery or improvement and treatment is no longer, in principle, required except to prevent a deterioration.

However, Article 19(4) of the Common Rules on the insurance of officials against the risk of accident and of occupational disease provides entitlement to payment of a provisional allowance precisely because the benefit referred to in Article 73(2)(c) of the Staff Regulations is payable only after that consolidation. The payment of a provisional allowance presupposes, however, the existence of an ‘undisputed portion of the permanent invalidity rate’.

In that respect, where an official submits an application for a provisional allowance, before rejecting that application, the administration and the appointing authority, in particular, must consult medical experts, the Medical Officer and, where appropriate, the Medical Committee, applying by analogy Articles 18 to 20 of the Common Rules. It is apparent from the general scheme of the Common Rules and, in particular, Article 19(3) and Article 20 that medical assessments are to be made by doctors alone.

Furthermore, where the administration rejects an application for a provisional allowance without consulting a doctor, it overlooks the general scheme of Article 19(4) and Article 20 of the Common Rules, and infringes its duty to have regard for the welfare of its officials. Moreover, where the infringement of Article 19(4) and of the duty to have regard for the welfare of officials contributes to the aggravation of the illness and delays its consolidation, compensation for that damage must be made under the procedure for the implementation of Article 73 of the Staff Regulations.

(see paras 88, 89, 93, 95, 105)

See:

4 October 1991, C‑185/90 P Commission v Gill, para. 24

21 May 1996, T‑148/95 W v Commission, paras 36 and 37

2 May 2007, F‑23/05 Giraudy v Commission, para. 200