OPINION OF MR GAND — CASE 3/66 ALFIERI v PARLIAMENT

Mr President,

Members of the Court,

By a decision of 13 November 1965 of the President of the European Parliament, Cesare Alfieri, an official of that institution, was granted the invalidity pension referred to in Article 78 of the Staff Regulations, with effect from 1 December 1965. He requests you to annul the said decision and also contests, in so far as is necessary, the decisions concerning the setting up and composition of the Committee which decided his case together with the report of that Committee.

The facts in which the contested step occurred are sufficiently well-known to you through the report of the hearing and the statements of the witnesses for me to be able to refrain from repeating them at this point.

Instead I wish in the first place to dismiss two objections of inadmissibility which the defendant has raised against the application, while ultimately relying on the wisdom of the Court in the matter.

First Mr Alfieri does not base his application on a defect in the retirement decision itself, but rather on the alleged illegality of the steps which preceded it. This point had already emerged at the outset of the proceedings, by which time the applicant had already made a complaint through official channels to the President of the European Parliament on 22 October 1964. However,

since this letter was of a private and personal nature, it seems impossible to consider it as a complaint within the meaning of Article 90 of the Staff Regulations. Furthermore, your case-law is firmly established to the effect that the applicant may always rely on defects vitiating the preliminary procedure in respect of a decision which ultimately affects him adversely (that is, the retirement decision). Secondly the European Parliament maintains that Mr Alfieri wished to take advantage of apparent lacunae in the Staff Regulations to obstruct his retirement which was made necessary by his state of health. For example, he refused to appoint a doctor to represent him on the Invalidity Committee, which was not only his right but his duty. It is alleged that this obstruction prevents him from relying on Article 91 of the Staff Regulations and that his application is improper. To which one might reply that if, as in the present case, there is a dispute between an institution and one of its servants concerning the legality of an act adversely affecting the latter, under Article 91 it is your duty to give a ruling on the dispute. The legality of the position adopted by the applicant — which I shall come to examine in connexion with the complaints which he raises — comes within the substance of the case and does not concern its admissibility. What are the provisions of the Staff Regulations and of the Annexes thereto which govern the matter? According to Article 59, an official who provides evidence of incapacity to perform his duties because of sickness or accident shall automatically be entitled to sick leave. In this situation, the duration of his leave is not limited, although it is necessarily temporary, and he is in active employment within the meaning of the Staff Regulations. The leave ends either when the person concerned is cured and returns to work or when the Invalidity Committee finds that he suffers from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket. In such a case, the official shall cease to perform his duties and shall be retired (Article 53) and is entitled to an invalidity pension the rate of which is to be calculated under Article 78.

These are the basic rules. With regard to the course of the proceedings, it is possible that it is the sick official (or his family) who, having given up hope of recovering health, wishes to have his invalidity recognized so as to be able to leave the service permanently. The provisions do not mention this possibility, but it is self-evident that the administration must at the request of the person concerned bring the matter before the Committee. It is also possible that, if the servant is absent for a long time, the institution itself, wishing to have the post held by the servant actively filled, may commence the proceedings. Article 59 of the Staff Regulations provides that the appointing authority may refer to the Invalidity Committee (it is not obliged to do so) the case of any official whose sick leave totals more than twelve months in any period of three years. You know the rather unusual method whereby this Committee is constituted. Of the three doctors who form the Invalidity Committee, the first shall be appointed by the President of this Court, the second by the person concerned and the third by the agreement of the first two doctors. This system implies, for its normal functioning, the cooperation of the servant the state of whose health is under consideration, and is supplemented by the right conferred upon the official to submit to the Committee any reports or certificates from his regular doctor or from any other medical practitioners whom he may have consulted.

Although the composition of this Committee and its manner of functioning afford the best protection of the interests of the official, it would be too much to say that recourse to the Committee is provided in his exclusive interests. It is desirable that the question should be settled by doctors and not by officials, precisely because it is a purely medical matter. At the same time as protecting the official, it has regard for logical and good administration. What must be emphasized is that the Committee's conclusions, which under Article 9 of Annex II require to be communicated to the appointing authority, guide the decision which it must take, to the extent that in this sphere it only has what might be termed a limited power. The institution is bound to apply Articles 53 and 78 only to an official whom the Committee has recognized as suffering from permanent invalidity. On the other hand, it may not retire a servant whose case the Committee has been unable to examine, or whom the Committee did not recognize as suffering from permanent invalidity. The facts of the case are known, and the entire dispute in the application centres around the circumstances in which the Committee was constituted.

I am therefore of the opinion that:

1 Translated from the French.