JUDGMENT OF 12. 7. 1973 — CASE 74/72 DI BLASI v COMMISSION

In Case 74/72

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Submissions of the parties

III — Pleas and arguments of the parties

Grounds of judgment

The request for annulment of the decision of 15 March 1972

The request for the degree of invalidity to be fixed

The request for interest account of delay

Infringement of paragraph 2 of Article 26 of the Staff Regulations

Costs

I —. Facts and procedure

(a). a copy of his letter of 23 November 1972, addressed to the President of the Court,

(b). a declaration by the applicant dated 22 November 1970, confirming the above mentioned conditions and entrusting Professor D. Tognazzi, the doctor treating her, with the election of an arbitrator and

(c). a declaration by Professor Tognazzi dated 23 November 1972 suggesting the appointment of a panel of three medico-legal experts so that a choice might be mady by the institution's doctor.

II —. Submissions of the parties

(a). to declare the application admissible;

(b). to accept it on the merits;

(c). to annul the decision of the Administration notified by the letter of 15 March 1972, for infringement of the rules of procedure, that is to say, inaudita altera parte, and for failure to provide grounds of decision,

(d). to annul the implied decision of rejection of the appeal through official channels dated 12 June 1972,

(e). to declare that the degree of partial permanent invalidity is 70 % and not, in any event, less than 45 %, or is between one third and one half of the total physical capacity of the applicant,

(f). to order the defendant to produce the personal file of the applicant, including all medical documents relating to her connected with the accident,

(g). to order the removal from the applicant's personal file of the confidential report prepared by Dr J. F. Elens for failure to communicate it to her contrary to Article 26 of the Staff Regulations,

(h). to order the defendant to pay the costs and all interest by way of compensation accrued since the accident.

(a). to dismiss the application as having no valid subject matter, or on the grounds that the applicant has no legal interest, or as unfounded;

(b). to rule that the defendant's decision (of 9 October 1972), notified to the applicant by a letter dated 17 October 1972, annulled by implication any previous measure with regard to the degree of invalidity and that the applicant's conduct was indicative of her full compliance with that decision and with the procedure for determining the degree of invalidity;

(c). to rule that the implied decision of rejection was also annulled by the reply to the applicant of 17 October 1972;

(d). to rule that the request relating to the determination of the degree of invalidity by the Court is no longer of any concern to the applicant and lost all foundation when the applicant accepted the procedure established for that purpose;

(e). to rule that it is necessary for the Commission to accede to the applicant's request that the report of Dr Elens be removed from her personal file;

(f). to rule that the interest by way of compensation sought by the applicant is unknown to Community law in that no legal rate of interest has even been established, interest being due only on a liquidated sum, that is to say, on a determined sum;

(g). the defendant leaves the question ot costs to the discretion of the Court.

III —. Pleas and arguments of the parties

(a). in that the Administration made a decision inaudita altera parte, that is to say, infringing the rules of procedure;

(b). for failure to supply any grounds of decision.

1. By an application filed on 11 October 1972, the applicant brought before the Court of Justice an action against the Commission's decision of 15 March 1972, recognizing her as having a permanent partial invalidity of 9 % following an accident she sustained on 3 January 1968, and against the Commission's implied decision of rejection of her administrative appeal of 12 June 1972;

2. In the first head of the submissions the action seeks the annulment of the decision of 15 March 1972 by which the Commission recognized the party concerned, under Article 73 of the Staff Regulations, as having a permanent partial invalidity of 9 % following the accident she sustained on 3 January 1968;

3. It is established that by a decision dated 9 October 1973, which was communicated to the applicant on 17 October 1972, the Commission decided to have the degree of permanent partial invalidity suffered by the party concerned fixed by a doctor not belonging to the institution, to be appointed by mutual agreement between the Commission's medical adviser and the doctor treating the applicant;

4. For the same reasons the subject matter of the appeal against the implied refusal to withdraw the decision of 15 March 1972 also ceased to exist;

5. It is further submitted in the action that the degree of permanent partial invalidity suffered by the applicant should be fixed at 70 % or at least at 45 %;

6. Article 13 of the policy taken out by the Commission with an insurance company provides for an arbitration procedure in cases of disputes on medical matters;

7. The said request is therefore inadmissible;

8. The applicant submits that the Commission should be ordered to pay interest from the date of her accident;

9. The said request is therefore inadmissible;

10. Lastly, the applicant submits that an order should be made for the removal from her personal file of a confidential report prepared by Dr G. F. Elens and which in her opinion was erroneous in content, or whose value as a medical document was affected by bias;

11. Paragraph 2 of Article 26 of the Staff Regulations provides that: the documents referred to in sub-paragraph (a) may not be used or cited by the institution against an official unless they were communicated to him before they were filed.

12. In these circumstances, this head of the submissions in the action must be dismissed.

13. Article 69 (3), first sub-paragraph, provides: The Court may order even a successful party to pay costs which the Court considers that party to have unreasonably or vexatiously caused the opposite party to incur;

14. The decision of 15 March 1972 was only revoked after the action had been commenced.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Staff Regulations of the European Communities, especially Articles 26 and 73; 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 action;

2 Orders the Commission of the European Communities to pay the costs of the proceedings.