Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

The applicant in the proceedings in which I am today giving my opinion entered the service of the Commission of the European Economic Community in 1960. He is an official in Grade C3 (Principal Clerical Officer) and for some years was a technician in offset printing in the printing department of the Commission. However since 1964 the applicant has apparently repeatedly suffered from diseases of the respiratory organs which have kept him away from work and necessitated medical treatment. From February 1968 onwards he was also unfit for work for a long period. He himself believes that this was caused by working conditions in the printing department (working in a basement and contact with irritant solutions) and indeed with effect from 5 July 1968 he was transferred to the Directorate-General for Competition where he was given other duties (filing of documents, distribution of office materials etc.).

In view of the frequent illnesses of the applicant (from September 1965 until September 1968 he was on sick leave for more than twelve months) and in view of the provisions of the third subparagraph of Article 59(1) of the Staff Regulations whereby the appointing authority may refer to the Invalidity Committee the case of any official whose sick leave totals more than twelve months in any period of three years the appointing authority decided in the autumn of 1968 to have the health of the applicant examined by an Invalidity Committee. The appropriate procedure was initiated by a letter sent to the President of the Court of Justice on 27 September 1968 whereby the President of the Court of the Court of Justice was asked to appoint a doctor in accordance with Article 7 of Annex II to the Staff Regulations. Once set up, the Invalidity Committee was instructed, in a letter of 25 October 1968 from the Director-General for Personnel and Administration, to examine whether the party concerned is suffering from permanent invalidity which may be regarded as total and which prevents him from carrying out the duties of a post of his career bracket. The results of the examinations carried out for this purpose were set out in reports of 5 December 1968 and 13 January 1969. They established that the current state of health of Mr Vellozzi does not prevent him from working. However it was also emphasized that it was necessary that the work should be carried out in a place sheltered from the elements in healthy premises and in an atmosphere free from any substance which might irritate the respiratory organs. Finally the report also stated that without saying that they are the sole cause, it may in all fairness be accepted that the conditions in which Mr Vellozzi worked for eight years are largely the cause of his bronchitis.

In view of this latter conclusion the applicant took the view that his illness was to be regarded as an occupational disease. Accordingly he submitted claims under Article 73 of the Staff Regulations, namely a claim for compensation for partial permanent invalidity and a claim for full reimbursement of medical and pharmaceutical expenses (that is the proportion of the expenses which was not covered by sickness insurance). Apparently he put forward this view—we do not have the details—in a letter sent to the Directorate-General for Personnel and Administration on 12 November 1970. Since this application met with no success, on 12 February 1971 he submitted a formal complaint in accordance with Article 90 of the Staff Regulations to the President of the Commission. With reference to the above-mentioned report of the Invalidity Committee of 5 December 1968 he argued that because of the very bad working conditions he had caught an asthmatic bronchitis. Accordingly it should be admitted that he was suffering from an occupational disease and all the medical expenses which he had already incurred or might incur in the future should be reimbursed. In addition on the basis of a certificate from the Institute of Forensic Medicine and Insurance of the University of Rome of 15 May 1970 showing partial invalidity of 40 %, he sought recognition of this partial invalidity.

As he received no answer to his complaint he made an application to the Court of Justice on 9 July 1971 and thereby initiated the present proceedings. With his application he submitted the report of a Belgian doctor of 6 April 1971 which ended with the statement that the present degree of invalidity may be assessed at 30 % subject to review hereafter.

On the basis of the contents of the complaint and the last-mentioned certificate, the applicant claimed in his application that the Court should:

In view of the medical questions in issue (which the Commission alleges are not sufficiently clarified) but also because the applicant remained away from work for a considerable period because of illness (a total Of approximately 300 days from January 1969 until June 1971) the Commission took the view, after the initiation of proceedings, that an Invalidity Committee should be set up with the duty of clarifying these issues. To this end it sent a letter on 30 July 1971 to the President of the Court of Justice who immediately appointed a doctor, by a letter of 18 August 1971, in accordance with Article 7 of Annex II to the Staff Regulations. The applicant was also invited to appoint a doctor and did so by a letter lodged on 27 August 1971. In this letter it was also stated that I cannot agree with the setting up of an Invalidity Committee unless it has full powers and in particular is able to determine the degree of invalidity for the purposes on Article 73 of the Staff Regulations. By letters of 29 September 1971 and 15 October 1971 these doctors were given the duty by the appointing authority of examining whether the applicant did suffer from partial permanent invalidity and, if so, of determining the degree thereof in order that the compensation due could be settled in accordance with Article 73 of the Staff Regulations. In addition, in a letter from the Commission of 10 January 1972 the doctors were asked to decide whether the medical and pharmaceutical expenses for which reimbursement is sought should be considered to be the consequence of the occupational disease from which Mr Vellozzi is suffering and are covered by Article 73(3) and if this is not the case, make a break-down of these costs according to their cause (whether caused by the occupational disease or not).

After the Invalidity Committee had been fully constituted, that is after the first two doctors appointed had by agreement appointed a third doctor in accordance with Asticle 7 of Annex II to the Staff Regulations, the first meeting was fixed for 23 February 1972. However the applicand did not comply with the request contained in a letter of 18 February 1972 to present himself for examination. In a letter of 21 February 1972 he gave as his reasons that the duties of the Invalidity Committee were not clearly defined and that they should be in the terms sought by the applicant (that is to say, the existence of occupational disease on the basis of the report of 5 December 1968 should be admitted and all that remained to be determined was the degree of invalidity and the break-down of the medical and pharmaceutical expenses. The applicant also failed to comply with the request from the Head of the Medical Department of the Commission in a letter of 25 February 1972 to authorize the medical file to be set to the Invalidity Committee. On 23 March 1972 by his Counsel he justified his refusal on the ground of the confidential nature of the file and by reference to Article 26 of the Staff Regulations and Article 9 of Annex II to the Staff Regulations.

In view of this, the commission emphasizes its view that the applicant no longer has any legal interest in his action. It therefore seeks a ruling that the application has lost its purpose and that it should be rejected in its entirety as inadmissible and unfounded.

My opinion in this matter is as follows:

1 Translated from the German.