INTERLOCUTORY JUDGMENT OF 29. 11. 1973 — CASE 31/71 GIGANTE v COMMISSION

In Case 31/71

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted by the parties

III — Submissions and arguments of the parties

Grounds of judgment

Costs

I —. Facts and procedure

1. Pursuant to Article 59 of the Staff Regulations: the appointment of an Invalidity Committee;

2. Pursuant to Article 73 (2), (c) and (3):

II —. Observations submitted by the parties

1. to assess whether the applicant is suffering a total permanent invalidity, or a partial permanent invalidity such as to render him nevertheless incapable of performing the duties corresponding to a post in his career bracket,

2. to assess the extent of his invalidity, for the purposes of applying Article 73 (2) (4) of the Staff Regulations,

3. to assess what treatment the applicant should undergo;

III —. Submissions and arguments of the parties

(a). whether the applicant is suffering a total permanent invalidity;

(b). if it should transpire that he is not suffering from a total permanent invalidity, whether the applicant is suffering from a partial permanent invalidity such as would render him incapable of performing the duties corresponding to a post in his career bracket;

(c). or further, whether he is suffering a partial permanent invalidity as the direct consequence of the accident which he suffered on 13 November 1962; the purpose of this is to make it possible to assess the compensation which he is entitled to claim under Article 73 (2) (c) of the Staff Regulations (it might be necessary to assess the extent of the partial permanent invalidity resulting from the accident);

(d). the date, if any, when the medical position resulting from the injuries caused by the accident of 13 November 1962 had become stabilized and whether further medical treatment is necessary thereafter;

(e). whether the medical and pharmaceutical expenses, the reimbursement of which is claimed, were incurred as a result of the accident and whether they are covered by the provisions of Article 73 (3). If it is found that they are not, the Committee is to make a separate evaluation of the expenses according to their origin.

1. By an application lodged on 16 June 1971 the applicant requested the annulment of several implicit and express decisions of the Commission relating to the appointment of an Invalidity Committee within the meaning of Article 59 (3) of the Staff Regulations and the institution of the procedure for the convening of such a Committee.

2. By letters dated 29 September and 15 October 1971, and by two letters dated 11 January 1972, sent by the Director-General for Administration and Personnel to Doctor Belenger and Doctor D'Avanzo, the Commission instituted the procedure for convening an Invalidity Committee.

3. It was the task of this committee to assess:

4. By these letters the Commission satisfied all the applicant's claims in so far as lay in its power.

5. However, the proceedings before the Court were suspended to await the Invalidity Committee's report, but it was inpossible to convene it, since the doctors appointed by the Commission and by the applicant respectively could not reach agreement on the choice of a third doctor.

6. During the course of the hearing at which proceedings were reopened the agent for the Commission stated that in consequence of the attitude of the applicant and of his doctor the procedure under Article 59 of the Staff Regulations was deadlocked and that, this being the case, the Commission was bound to keep the applicant in employment and pay him, in spite of repeated absences attested by certificates made out by a variety of doctors.

7. Under these circumstances the defendant, while maintaining that the initial application had become devoid of purpose, submitted that the Court should take such measures as might be necessary in order to convene an Invalidity Committee as provided for by Article 59 of the Staff Regulations, its task being that set out above.

8. At the same hearing, the applicant, admitting that in fact the two doctors could not reach agreement as to the choice of a third, agreed that the Court should take such measures as might be necessary in order to bring to a close the procedure for the assessment of invalidity.

9. The Staff Regulations do not provide a solution to the difficulties indicated by the parties.

10. Article 7 — last indentation — of Annex II explicitly provides for the intervention by the President of the Court of Justice in the event of failure by the official concerned to appoint a doctor, but remains silent as to the hypothesis of a failure by the two appointed doctors to agree as to the appointment of the third.

11. Having regard to the joint submission of the two parties as regards the appointment of the third doctor by the Court, Article 7 — last indentation — of Annex II should be applied by analogy and measures should be taken to bring the procedure for the assessment of invalidity to a close.

12. Accordingly, before arriving at a judgment in this matter, the necessary measures must be ordered.

13. Having regard to the circumstances of the case it is ordered that if the doctors appointed by both parties have not agreed on the appointment of a third doctor before 10 December 1973 the Court of Justice, First Chamber, will undertake this appointment, the two doctors having the right to make written observations and suggestions to the Court by 17 December 1973 at the latest.

14. The Invalidity Committee shall present its report within three months following the date upon which it is constituted by the appointment of the third doctor.

15. If meanwhile fresh difficulties threaten to jeopardize the normal progress of the work of the Invalidity Committee, the parties, the Committee or its members shall be at liberty to notify this fact to the Court, which reserves to itself the power to order the necessary measures.

16. Costs are reserved.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations, especially Article 7 of Annex II; Having regard to the Protocol 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) orders, before giving judgment:

1 If the doctors appointed by both parties have not succeeded in appointing a third doctor before 10 December 1973 the Court of Justice, First Chamber, will undertake this appointment, the two doctors having a right to make written observations and suggestions to the Court by 17 December 1973 at the latest.

2 The Invalidity Committee shall present its report within three months following the date upon which it is constituted by the appointment of the third doctor.

3 If meanwhile fresh difficulties threaten to jeopardize the normal progress of the work of the Invalidity Committee, the parties, the Committee or its members shall be at liberty to notify this to the Court, which reserves to itself the power to order the necessary measures.

4 A copy of this judgment shall be sent to each of the doctors already appointed to the Invalidity Committee.