JUDGMENT OF 13.7.1972 — CASE 29/71 VELLOZI v COMMISSION

In Case 29/71

THE COURT (First Chamber), composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner and R. Monaco (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Grounds of judgment

Costs

I —. Summary of facts and procedure

1. The applicant is an official of the Commission in the post of Principal Clerical Officer in Grade C3. After entering the service in 1960 he worked until 1968 as an operator in the offset workroom. In July 1968 he was transferred to the Directorate-General for Competition where he was given administrative work.

2. Convinced that the best way of determining the rights of the party concerned … and to put an end to the proceedings was to have the applicant re-examined by an Invalidity Committee the Commission, pursuant to Article 7 of Annex II to the Staff Regulations, asked the Court of Justice on 30 July 1971 to appoint the first doctor to serve on the Invalidity Committee and in a letter of 3 August 1971, invited the applicant to appoint the doctor to represent him. As first doctor, the Court appointed Dr Therasse of Brussels; the applicant stated on 27 August 1971 that he had appointed Dr D'Avanzo as his doctor. In January 1972 these two doctors appointed the third doctor, Dr Vapel, a lung specialist. In a letter of 29 September 1971 giving Dr Therasse confirmation of his duty the Commission stated …in the case of Mr Vellozzi the duty of the Invalidity Committee goes beyond the normal task of deciding on the permanent and total invalidity of the person concerned. In view of the present administrative status of Mr Vellozzi and of the possibility that he is not suffering from total and permanent invalidity, it should be determined whether he is suffering from partial permanent invalidity making him capable or incapable of carrying out the duties corresponding to a post in his career bracket in order to determine the sum to which he is entitled under Article 73 (2) (c) of the Staff Regulations. (In the case of partial permanent invalidity the degree thereof should be determined). By a subsequent letter of 10 January 1972 the Commission further informed Dr Therasse that he should 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 the applicant is suffering … and if this is not the case, make a break-down of these costs according to their cause. The same instructions with the same details were given by the Commission to Dr D'Avanzo.

3. On hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court (First Chamber) invited the applicant to produce the report of the Invalidity Committee of 5 October 1968 and 13 January 1969 and invited the defendant to produce the text of the instructions given to the members of the 1968 Invalidity Committee defining their duties. After these documents had been produced the Court (First Chamber) decided to open the oral procedure.

II —. Conclusions of the parties

1. Declare null and void the implied rejection by the Commission of the complaint through official channels of 12 February 1971 registered on 17 February 1971;

2. Accordingly declare and rule that the applicant suffers from 30 % invalidity;

3. Order the defendant to reimburse the applicant on the basis of Article 73 of the Staff Regulations the medical and pharmaceutical expenses amounting to Bfrs 100000, subject to amendment in the course of the proceedings;

4. Order the defendant to pay to the applicant the sum provided for in Article 73 (2) (c) of the Staff Regulations which is assessed at Bfrs 100000, subject to amendment in the course of the proceedings;

5. Order the defendant to pay the costs of the proceedings.

III —. Submissions and arguments of the parties

1. By an application lodged at the Court Registry on 9 June 1971 the applicant has brought an action seeking the annulment of the implied rejection by the Commission of his complaint of 12 February 1971 whereby he sought to be granted the benefit of Article 73 (2) (c) and (3) of the Staff Regulations of Officials.

2. The applicant alleges that the Invalidity Committee convened in 1968 pursuant to the third subparagraph of Article 59(1) of the Staff Regulations admitted that he was suffering partial permanent invalidity, the degree of which remained to be determined.

3. Therefore he asked the appointing authority to determine that degree in order that he might benefit under Article 73 (2) (c) of the Staff Regulations and in accordance with paragraph (3) of that article to reimburse to him all the medical and pharmaceutical expenses incurred because of this invalidity.

4. In 1971 the appointing authority set up a new Invalidity Committee to which it assigned the duty not only of ruling as to the existence of total permanent invalidity but also examining whether the applicant might be suffering from partial permanent invalidity caused by the working conditions and, if this was so, to determine the degree of invalidity.

5. This Committee was further given the task of examining whether the medical and pharmaceutical expenses for which reimbursement was sought should be regarded as attributable to the occupational disease.

6. The applicant refused to appear before this Committee or to allow his medical file to be sent to it by the departments of his institution.

7. In support of this refusal he raised the allegedly ambiguous nature of the duty assigned to the Commission and sought actual admission of the existence of an occupational disease on the basis of the report of the Invalidity Committee of 5 December 1968.

8. The existence of an occupational disease causing total or partial permanent invalidity of the official and giving him the right to benefit under Article 73 or Article 78 of the Staff Regulations as the case may be must appear clearly and precisely from the relevant conclusions of the Invalidity Committee referred to in Article 13 of Annex VIII to the Staff Regulations.

9. In this case the Invalidity Committee convened in 1968 stated in its report that the applicant suffered from asthmatic or related bronchitis caused largely by the conditions in which he had worked in the offset workroom of the Publications Office.

10. At the same time it found that there was an improvement in the asthmatic condition which had been found by several doctors previously, caused in all probability by the fact that since February 1968 the applicant had been transferred to a different department.

11. It concluded that the state of health of Mr Vellozzi does not prevent him from working but urgently requires that the work should be carried out in a place sheltered from the elements and in an atmosphere free from any substance which might irritate the respiratory organs.

12. Thus whilst the Invalidity Committee set up in 1968 admitted that the applicant was suffering from a form of bronchitis it nevertheless did not conclude that he was suffering from an occupational disease entailing partial permanent invalidity.

13. The force of the conclusions which it reached as to the existence of the applicant's partial permanent invalidity are weakened by the fact that according to the report of 5 December 1968 Mr Vellozzi's lack of cooperation prevented the Commission from undertaking all the medical examinations which it contemplated.

14. In these circumstances the applicant cannot rely on such a report to argue that the Invalidity Committee set up in 1968 admitted that he was suffering partial permanent invalidity or that the new Invalidity Committee should merely determine the degree of this invalidity and the medical and pharmaceutical expenses to be reimbursed under Article 73 (3)of the Staff Regulations.

15. On the contrary the report of 5 December 1968 justifies the setting up of a new Invalidity Committee with the duty inter alia of deciding the causes of the applicant's alleged invalidity.

16. For these reasons the application is rejected.

17. Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

18. The applicant has failed in his submissions.

19. However, under Article 70 of the Rules of Procedure, in proceedings brought by servants of the Communities, institutions shall bear their own costs.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of Officials, especially Articles 73 and 78 and Annex II; Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders the parties to bear their own costs.