Opinion of Mr advocate general Reischl

Mr President,

Members of the Court,

The proceedings in which I am giving my opinion today concern settlement of the consequences of an accident sustained in the course of employment, which has already formed the subject of a judgment of this Court of 12 July 1973(Anna Di Blasi v Commission of the European Communities Case 74/72 [1973] ECR 847). In giving an account of the circumstances of the case to date I need therefore only mention those facts which are absolutely necessary to an understanding of it and, if further details are required may refer to the aforementioned judgment and the opinion of Mr Advocate General Roemer of 21 June 1973.

On 3 January 1968 the applicant, Miss B., an official of the Commission, fell during working hours in the offices of the Commission and was taken to hospital with a serious triple malleolar fracture with extensive bone fragmentation and a dislocation of the right foot, where she underwent an operation. Since then she has never fully recovered and, with the exception of certain short periods, has never been able to resume her employment. At the end of 1973 the applicant, who is at present on sick leave and living in Italy, had to undergo an operation for cancer.

In 1972 the Commission recognized in accordance with Article 73 of the Staff Regulations that the applicant was suffering from permanent partial invalidity amounting to 9 %. After the applicant had lodged an application against that decision with a view to obtaining the fixing of a higher degree of invalidity the parties agreed to initiate arbitration proceedings in order to have the degree of permanent partial invalidity determined by an independent doctor to be appointed by both sides. The Court of Justice therefore felt bound in the aforesaid judgment to dismiss the application as inadmissible inter alia on the ground that the Court cannot intervene before the arbitration procedure has been exhausted. As regards the claim for interest on the delayed payment the Court held that the amount of any such interest might only be determined when the degree of permanent partial invalidity suffered by the applicant had been established.

In his opinion of 21 February 1975 Dr Vita of Milan, who was appointed to act as arbitrator, ascertained that Miss B. was suffering from the effects and consequences of, first, a triple malleolar fracture with dislocation of the right foot accompanied by evidence of secondary arthritis and, secondly the removal of the left breast made necessary by the presence of cancer, with curettage of the armpit, as well as from a slight reactionary syndrome of depression and anxiety. He stated that the triple malleolar fracture with dislocation of the foot and the continuing anatomical and functional limitation affecting in particular the tibio-tarsal region, with muscular hypotrophy of that limb and incipient arthritis, were to be attributed to the consequences of the accident sustained by Miss B. and he therefore expressed the opinion that the injury giving rise to a claim for compensation was to be assessed at 15 % of the maximum insured under the policy.

In a letter to the Commission of 25 February 1975 the applicant challenged the accuracy of that finding on the ground that the opinion only considered the physical and not the psychological consequences of the accident. At the same time the applicant requested the transfer, as an advance payment, of the amount corresponding to the degree of invalidity ascertained by the arbitrator, as well as the payment of interest from the day of the accident at the customary rate payable by the banks in Brussels.

After an extensive correspondence the parties finally agreed on the appointment of Dr Bellini of Latina as a new arbitrator on medical matters and by letter of 19 December 1975 the Commission asked him, with the applicant's agreement, whether it was necessary to fix a degree of partial permanent invalidity, in addition to that of 15 % already awarded, in respect of possible injuries of a mental nature resulting directly and exclusively from the accident. If Dr Bellini answered in the affirmative he was to fix the percentage of permanent partial invalidity in question.

In his arbitration report of 26 October 1976, which was received at the Commission on 30 October, Dr Bellini reached the following conclusion:

By letter of 3 February 1977 the Commission then asked Dr Bellini whether there might not be a direct and exclusive connexion between the gravity of Miss B.'s illness (tumour in the breast) and the injurious psychological consequences of the trauma connected with the accident of 3 January 1968. In his reply of 26 March 1977 Dr Bellini denied the existence of such a connexion and stated unequivocally that the injurious psychological effects found by him appeared before the onset of Miss B.'s illness.

By letter of 20 June 1977 the applicant lodged a complaint through official channels under Article 90 (2) of the Staff Regulations against the implied rejection of her request of 1 December 1976 for the implementation of the arbitration award made by Dr Bellini.

In its reply of 6 October 1977 the Commission expressed doubts whether the total permanent invalidity found by Dr Bellini, which related to the capacity for work, was to be equated with the total invalidity referred to in Article 73 of the Staff Regulations. It therefore suggested that with the agreement of the other party Dr Bellini be consulted again in order to obtain the necessary clarification. By letter of 25 October 1977 the applicant agreed to the proposal with one express reservation and suggested inter alia that the arbitrator be asked to what extent — expressed as a degree or percentage — the bodily and/or mental health of the victim had been impaired as a result of the accident.

On 7 December 1977 the Commission sent to Dr Bellini a fresh letter, of which the applicant only became aware later, in which it asked inter alia whether the effect of the impairment of mental health was comparable or identical to that caused by the incurable insanity referred to in the conditions of insurance or how else the relationship between the applicant's diminished mental health and such incurable insanity was to be assessed.

On 16 December 1977 Miss B. lodged an application to the Court.

After the application was lodged Dr Bellini informed the Commission on 10 January 1978 that it clearly results from his report that the mental injury suffered by Miss B. did not take the form of psychological disorder or disorder of consciousness but only affected her emotional faculties. He explained that the injury resulted from a state of profound depression and in particular from an incapacity for work which was emotional in origin, the result of which was that any form of work produced in the patient a feeling that her life had been a total failure. It was however evident that despite that incapacity for work Miss B.'s mental health was not 100 % impaired. The loss of mental health resulting from the accident could be assessed at 60 % but it concerned the emotions and only affected the mental faculties indirectly.

In her reply the applicant finally asked the Court to:

In the alternative:

After also amending its conclusions the Commission contends that the Court should:

My opinion on those conclusions is as follows:

I —. The question of the admissibility of the application must be dealt with first of all. Without, it is true, putting forward a formal plea of inadmissibility the Commission considers the application to be inadmissible since in her letter of 25 October 1977 the applicant expressed agreement with its proposal for the reopening of the arbitration procedure. The Commission maintains that the application and the complaint through official channels which preceded it thereby became devoid of purpose. Irrespective of that, it is in any event to be inferred from Dr Bellini's letter of 10 January 1978 that he totally changed his opinion, since he no longer recognizes total invalidity, but only 60 % partial invalidity. The Commission claims that the object of the request should therefore have been different from that originally submitted, with the result that its wording ought also to have been amended. It maintains that only if that fresh request is expressly or impliedly rejected may the applicant lodge a fresh complaint and, if that is rejected, a fresh application.

II —. With that I come to the question of the merits of the application.

1. Let me now turn to the questions broached by the parties. I have already explained — to begin with the argument last put forward — that after Dr Vita made his award the parties agreed to initiate fresh arbitration proceedings and to appoint Dr Bellini as the arbitrator on medical matters. Their question, which concerned the degree of possible additional partial invalidity to be recognized as resulting from mental injuries attributable to the accident, can only be understood to mean that as arbitrator on medical matters Dr Beliini was to give his opinion on whether mental injury resulting from the accident actually exists and if so at what level it is to be assessed. It is, in fact, only possible for an arbitrator on medical matters to give an opinion on questions of that nature. If, however, the arbitrator expressed his opinion on that question it is clear from the meaning and purpose of arbitration procedure that the parties are to that extent bound by the arbitrator's decision. That is also stated in Article 13 of the insurance policy. It is therefore inconceivable than the Court of Justice should, as an authoritative legal body, proceed without more ado to deliver judgment on such a disputed medical issue on which a large number of different medical opinions exists.

2. Let me deal, first of all, with the first question which concerns the conditions under which invalidity may exist under the rules governing the employment of Community officials.

3. With that I come to the further question whether those mental injuries which do not affect the intellectual faculties are also to be taken into account in determining the degree of invalidity.

4. To my mind the situation cannot be changed by the objections put forward by the Commission as regards, in particular, the relationship of cause and effect between the accident and its consequences. In his evidence to the Court Dr Bellini again confirmed the statements already made in his letter to the Commission of 26 March 1977, to the effect that the mental condition which renders it impossible for the applicant ever to work again was already present before the breast tumor was discovered at the end of 1973. It is, therefore, clear that that illness has not led to a break in the relationship of cause and effect.

5. With that I come to the last of the conclusions in the application, which seeks an order that the Commission pay 5 % interest on the amount to be calculated in accordance with Article 73 of the Staff Regulations, minus the amount corresponding to 15 % invalidity which has already been paid to the applicant.

III —. I therefore propose that:

1 Translated from the German.