JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

12 December 2012

Case F‑90/11

BS

v

European Commission

(Civil service — Former official — Social security — Article 73 of the Staff Regulations — Rules on insurance against the risk of accident and occupational disease — Scale annexed to the Insurance Rules — Physical and mental disability rating scale — Interpretation of the scale — Medical Committee — Terms of reference — Principle of collegiality)

Application: Action brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby BS, a former official of the European Commission, seeks, in essence, annulment of the decision of 20 December 2010 whereby the appointing authority closed the procedure opened under Article 73 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) finding that there was no physical and mental disability.

Held: The action is dismissed. The applicant is ordered to bear his own costs and to pay the costs incurred by the Commission.

Summary

1.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Refusal of one of the members of the Medical Committee to sign the report — Procedural defect — None — Conditions

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 22(3))

2.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Competence of the Medical Committee — Assessments of a legal nature — Not included — Interpretation of the physical and mental disability rating scale — Lawfulness

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 22(3) and Annex C)

3.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Medical opinion — Judicial review — Limits

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 22(3))

4.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Medical Committee’s obligation to state reasons — Scope

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 22(3))

5.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Expert medical report — Medical Committee’s obligation to answer the questions raised in the terms of reference drawn up by the appointing authority — Scope — Limits

(Staff Regulations, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Art. 22(2))

6.      Officials — Social security — Insurance against the risk of accident and of occupational disease — Invalidity — Concept — Lesions presenting sufficient gravity — Included

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

1.      The Medical Committee’s report is not vitiated by a procedural defect merely because one of its members refused to sign it. However, in order to comply with the principle of the collegiality of the proceedings of the Medical Committee, it must be established that the member who declined to sign the report was given the proper opportunity to put forward his views before the other two members.

(see para. 38)

See:

14 September 2010, F‑79/09 AE v Commission, para. 56 and the case-law cited

2.      Under Article 22(3) of the Rules on insurance against the risk of accident and of occupational disease, provided for in Article 73 of the Staff Regulations, the competence of the Medical Committee is limited to the purely medical aspects of the case and where the case entails a legal dispute the committee is required to declare that it does not have competence to deal with the matter.

To that end, in order to evaluate the physical and mental disability rating of those insured, the Medical Committee applies the European physical and mental disability rating scale for medical purposes in Annex A to those rules, and also Annex C. In applying that scale, the Medical Committee necessarily compares its medical findings with the legal categories defined in the scale and Annex C, which presumes that it has first identified and defined those categories. Thus, it is inherent in the Medical Committee’s activities that it should classify, in the light of the provisions of the scale and of Annex C that it applies, the medical findings which it has reached. Its competence is therefore not precluded, since those operations indisputably fall within the framework of the medical aspects of the case.

Furthermore, it is in fact the appointing authority that will ultimately validate or not validate the Medical Committee’s interpretation of the scale and of Annex C, for the purposes of classifying the Medical Committee’s medical findings, and that will thus avoid any risk of legal uncertainty linked with any variation in that interpretation, in view of the variation inherent in the composition of the Medical Committees.

(see paras 62, 64-65, 69)

3.      Judicial review of medical opinions may not extend to medical appraisals properly so-called, which must be considered definitive, provided that the conditions in which they are made are not irregular. Conversely, the Courts of the European Union have jurisdiction to examine whether a medical opinion contains a statement of reasons enabling the reader to assess the considerations on which the conclusions which it contains are based and whether it has established a comprehensible link between its medical findings and the conclusions reached.

(see para. 72)

See:

27 June 2000, T‑47/97 Plug v Commission, para. 117

4.      The task of the medical committee is to deliver an opinion on the medical issues submitted to it. In view of that task, the obligation to state reasons imposed on that committee means solely that it must explain the procedure that led it, on the basis of the evidence before it, to the findings which it ultimately made. That duty to state reasons does not require that it explain the reasons why it deemed itself competent.

(see para. 77)

5.      The Medical Committee cannot be criticised for not answering in detail each of the points mentioned in its terms of reference if it is apparent from the documents in the file that, by its medical assessments, it provided the appointing authority with all the elements necessary for the latter to adopt its decision. While Article 22(2) of the Rules on insurance against the risk of accident and of occupational disease provide that the institution is to define the terms of reference which it then entrusts to the Medical Committee, that article does not expressly provide that the Medical Committee is required to answer every question in those terms of reference.

In that regard, the Medical Committee is entrusted by the Insurance Rules with a broad task, consisting in providing the appointing authority with all the medical assessments necessary for the adoption of its decision on the setting of the rate of physical and mental disability. Furthermore, in the context of the task entrusted to it by the Insurance Rules, the Medical Committee must make its assessment of the medical questions in complete objectivity and independence, which implies that its discretion is unlimited. Admittedly, when it receives the report of the Medical Committee whose terms of reference it had drawn up, the appointing authority may, by supplementary terms of reference, clarify its questions or raise new questions in order to obtain all the assessments desired and, in that case, the Medical Committee is required to answer, clearly and precisely, the questions put by the appointing authority. Even in the absence of a question on a specific point in the terms of reference, however, the Medical Committee is entitled to inform the appointing authority of supplementary medical findings that might clarify its decision.

(see paras 80-85)

See:

19 January 1988, 2/87 Biedermann v Court of Auditors, para. 19

9 July 1997, T‑4/96 S v Court of Justice, paras 41, 42 and 44

6.      An invalid within the meaning of Article 73 of the Staff Regulations must be regarded as a person who, as a result of an accident or an occupational disease, is totally or partially unable to lead a normal active life. It would therefore be contrary to the purpose of Article 73 of the Staff Regulations, which is specifically intended to cover the risk of such invalidity, to interpret Article 73 of the European physical and mental disability rating, set out in Annex A to the Rules on insurance against the risk of accident and occupational disease, as meaning that any cutaneous lesion, irrespective of its gravity, could entail a rate of physical and mental disability rating of at least 5%. Consequently, only injuries of sufficient gravity may be taken into account.

(see para. 91)

See:

2 October 1979, 152/77 B. v Commission, para. 10