JUDGMENT OF 2. 10. 1979 — CASE 152/77 MISS B. v COMMISSION

In Case 152 /77

THE COURT (Second Chamber) composed of: Lord Mackenzie Stuart, President of Chamber, M. Sørensen and A. Touffait, Judges, Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar

give the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — Substance

1. Observations of the applicant

2. Observations of the Commission

C — Interest

D — Costs

IV — Oral procedure

Decision

Admissibility

Substance

Interest

Costs

I —. Facts and procedure

1. On 24 February 1966 the applicant was recruited as a temporary servant of the High Authority of the ECSC in Luxembourg, in Category B, Grade 3. She served as secretary to the President of the High Authority. She was appointed a probationer in Grade 5 of the same category in the Directorate General for Regional Policy of the EEC with effect from 4 July 1967 and was subsequently established in that grade.

2. On 3 January 1968 the applie fell in the offices of the Commission because too much wax polish had been applied to the floor. She was admitted to hospital as the result of a diagnosis which established that she had a serious triple malleolar fracture with extensive bone fragmentation and a dislocation of the right foot and she underwent surgery in order to reduce the fracture. She has never completely recovered. After the accident she was transferred to Brussels but was unable to resume work, except for short periods. She is at present on sick leave.

3. In a letter of 1 December 1976 to the Commission the applicant had requested the implementation of the arbitration decision of 26 October 1976. As the applicant received no reply either to that letter or to the complaint which she submitted under Article 90 (2) of the Staff Regulations she lodged the present application on 16 December 1978.

4. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Second Chamber) decided to open the oral procedure.

II —. Conclusions of the parties

1. declare that the action is admissible;

2. grant the application on the merits; therefore:

3. annul the tacit refusal and the implied decision of rejection by the Administration of the applicant's request of 1 December 1976 and of the complaint of 20 June 1977 concerning the implementation of the arbitration award made by Dr Bellini by report dated 26 October 1976, and consequently;

4. order the Commission to implement the aforesaid arbitration award, and consequently;

5. order the Commission to pay to the applicant the amount corresponding to 100 % invalidity to be calculated in accordance with the provisions of Article 73 of the Staff Regulations minus the amount corresponding to 15 % invalidity which has already been paid to her on account;

6. should the Court declare that in implementation of Article 73 of the Staff Regulations the monetary rights must be related to the loss of bodily and/or mental health rather than to the permanent invalidity, declare that the applicant's right to obtain implementation of the arbitration award referred to under 3. as supplemented by the opinions of Dr Bellini given on 26 March 1977 and 10 January 1978, which recognized her as suffering from a loss of mental health of 60 % in addition to the 15 % permanent invalidity recognized by Dr Vita in his opinion of 22 February 1975 in respect of the bodily injury, and consequently:

7. Order the Commission to implement the aforesaid arbitration award supplemented as above, and consequently;

8. order the Commission to pay to the applicant the amount corresponding to a loss of health of 60 % to be calculated in accordance with the provisions of Article 73 of the Staff Regulations in addition to the amount corresponding to the 15 % invalidity which has already been paid to her on account;

9. order the Commission to pay to the applicant the amount corresponding to the interest on the capital sum calculated as under 5. or, in the alternative, calculated as under 8. at the legal rate of 5 % from the date of the accident until settlement, which as to 15 % has already been effected, of the capital sum and thus until the date of final settlement which as to 85 % or, in the alternative, as to 60 % is still to be effected;

10. order the reimbursement to the applicant of the costs, expenses and fees of the proceedings;

11. subject to all reservations and subject to the right to indicate subsequent measures of inquiry and to the right, if necessary, to ask that the proceedings be stayed for a separate decision on matters relating to the subject-matter of the proceedings.

1. dismiss the applicant's request for the implementation of Dr Bellini's award of 26 October 1976 as inadmissible and unfounded;

2. dismiss the applicant's alternative request for the implementation of Dr Bellini's award as modified by his letter of 10 January 1978, as inadmissible and unfounded;

3. declare that the partial invalidity awarded to the applicant shall be in the degree of 15 % and that as the corresponding capital sum has already been paid to her nothing further is due under Article 73 of the Staff Regulations;

4. in the alternative, after determining the criteria applicable and, if appropriate, after considering a fresh expert medical opinion based solely upon the reports drawn up by Dr Vita and Dr Bellini, fix a higher degree of invalidity, up to a limit of 40 %, in order to take account of the mental injuries suffered and declare due the difference between the capital sum corresponding to the degree thus fixed and that already paid on the basis of the degree of 15 % invalidity;

5. dismiss the claim for interest as unfounded or, in the alternative, fix the period for which interest is to be paid on the basis of the principles of natural justice, taking into account the amount corresponding to 9 % invalidity paid by the Commission in March 1972;

6. order each party to bear its own costs.

III —. Submissions and arguments of the parties

A —. Admissibility

1. The Commission observes that by endorsing in her letter of 25 October 1977 the administrative authority's proposal to put an additional question to Dr Bellini the applicant accepted that the arbitration procedure be reopened and thus by implication accepted that the request and complaint submitted on the basis of Article 90 of the Staff Regulations became devoid of purpose. The Commission considers, furthermore, that since Dr Bellini's opinion of 10 January 1978 is totally different from his first opinion the aim of the applicant's request should be different from that of the original request and it adds that it is only if the fresh request is expressly rejected or rejected by implication that the applicant may submit a fresh complaint and, if that is rejected, a fresh application. However, the Commission does not consider that that aspect is sufficiently important to justify a formal plea of inadmissibility. It therefore leaves that question to the discretion of the Court.

2. The applicant disputes that she accepted the reopening of the arbitration procedure. As evidence of that she refers to the fact that the question put to Dr Bellini was totally different from that to which she had agreed.. She maintains, furthermore, that the request for implementation of the arbitration award cannot be regarded as devoid of purpose on the ground that she agreed to seek clarification of certain of the technical conclusions contained in the opinion.

B —. Substance

1. Observations of the applicant

(a). In support of her request for the arbitration award of 26 October 1976 to be implemented the applicant recalls that the Commission put forward no objection concerning the lawful nature of the arbitration procedure and that it was, on the contrary, the Commission which decided to implement that form of procedure and drew up the questions to be put to the arbitrator.

(b). The applicant considers that Dr Vita's arbitration award of 21 February 1975 shows such substantial defects that it must be regarded as invalid. The applicant in fact considers that award to be biased, inconsistent and incorrect and, furthermore, that insufficient reasons were given for it.

(c). As regards the opinion of Dr Bellini given on 10 January 1978 the applicant observes that it resulted from an initiative on the part of the administrative authority of which she did not approve, that she did not accept the argument on which it was based and that she expressed a clear reservation concerning both the factual and legal position as regards each aspect of that initiative. Furthermore, the question put by the administrative authority to the arbitrator is completely different from that contained in the applicant's letter of 25 October 1977.

(d). The applicant then maintains that the factor to be taken into consideration within the context of Article 73 of the Staff Regulations is that of permanent invalidity. The aim of that article is in fact protection against the loss of the specific capacity, that is to say, the capacity to be a Community official etc., rather than against the loss of general capacity, that is, general fitness for everyday life. That explains the difference between the two factors fixed by Dr Bellini: that of 100 %, which relates to the total loss of the capacity for work, and that of 60 %, which relates to the loss of general capacity.

e). The applicant considers that Article 73 of the Staff Regulations covers every infirmity and that if the table annexed to the insurance policy provides no precise information in relation to certain specific infirmities resort must be had to the accepted rules of interpretation, in particular, interpretation by analogy. She considers that any limitation which may be contained in that table cannot modify or restrict the scope of Article 73 since that article remains the source of the rules carried into effect by the policy. Moreover, the Court has accepted that the body of rules formed by the insurance policy supplements the rules contained in Article 73. She adds that the policy contains no restrictions as regards the infirmity involved in the present case. She regards it as incorrect to equate insanity with total invalidity, since the policy does not cover insanity as such but only to the extent to which it has resulted in permanent invalidity.

(f). The applicant maintains, finally, that there can be no question of the depression having already begun when the accident occurred. She points out that in the twenty years during which she was employed by the national administrative authority she was never absent through illness and that she entered the service of the High Authority after a medical examination on recruitment. She claims, furthermore, that her depression is not caused by the fact that she was classified in a lower grade, since she accepted reclassification from Grade B 3 to Grade B 5 so that she could be established.

2. Observations of the Commission

(a). The Commission considers that in the light of the revised opinion given by Dr Bellini, which reduced to 60 % the degree of impairment of the applicant's mental health, the applicant can no longer sustain her request for the payment of a capital sum corresponding to total invalidity.

(b). The Commission expresses surprise at the degree of 60 % invalidity given by Dr Bellini in his latest opinion.

C —. Interest

1. In this connexion the applicant maintains that the delay in payment of the capital sum must be attributed to the administrative authority, which she regards as bound to pay compensation in full from the date of the accident since it is with effect from that date that the official in question is incapable of working.

2. The Commission maintains that even if it is accepted that the Court acknowledged in the abstract a right to the payment of interest it is impossible to find in the aforementioned judgment any information as to the date from which such interest began to run. It considers that in normal circumstances interest is only payable on debts the amount whereof is ascertained and due, that is to say, in the present case, only with effect from the date of the decision of the Court fixing definitively the degree of invalidity and until final settlement of the corresponding capital sum.

D —. Costs

IV —. Oral procedure

1. The application lodged on 16 December 1977 seeks to obtain payment to the applicant of an invalidity benefit under Article 73 of the Staff Regulations of Officials in respect of permanent invalidity resulting from the accident which she sustained on 3 January 1968 in the course of her employment with the Commission.

2. The question of the degree of invalidity resulting from that accident first formed the subject of arbitration proceedings. Dr Vita of Milan, who was appointed to act as arbitrator with the agreement of both parties, found in an opinion given on 21 February 1975 that the injury giving rise to compensation was to be assessed at 15 % of the maximum sum assured. The applicant claimed that that opinion was not appropriate on the ground that it only took account of the bodily injury suffered to the exclusion of the injury of a mental nature. The parties subsequently agreed to ask another doctor, Dr Bellini of Latina, to act as arbitrator and to give a medico-legal opinion on the question whether it was necessary to fix a degree of partial permanent invalidity, in addition to that of 15 % already determined, in respect of possible injuries of a mental nature resulting directly and exclusively from the accident. If so, Dr Bellini was to fix that degree of invalidity.

3. In his report of 26 October 1976 Dr Bellini concluded that Dr Vita's medical report had not taken account of the mental injuries which, as they derived directly and exclusively from the applicant's accident, had resulted in total permanent invalidity.

4. In a letter of 1 December 1976 to the Commission the applicant asked for the arbitration award to be implemented. As the Commission doubted whether Dr Bellini's conclusions were appropriate having regard to Article 73 of the Staff Regulations it did not comply with that request. When no reply was received to the complaint through official channels submitted by the applicant she lodged the present application within the time-limits prescribed by the Staff Regulations.

5. Without putting forward a formal plea of inadmissibility the Commission has pointed out that in October 1977 the applicant had accepted a proposal by the Commission for a further question to be put to Dr Bellini in order to clarify the meaning and scope of his earlier report. She therefore by implication consented to the reopening of the arbitration procedure, as a result of which her request became devoid of purpose.

6. The Court cannot accept that assessment of the applicant's conduct or the conclusions drawn by the defendant as regards her interest in bringing the action. Although it is true that the applicant agreed that an additional question be put to Dr Bellini she did not approve the terms of the question actually put by the Commission. In those circumstances it cannot be claimed that there was agreement between the parties to reopen the arbitration procedure. That procedure was terminated by the report of 26 October 1976, which is therefore the final basis for determining the reciprocal rights and obligations of the parties. The subsequent correspondance and negotiations which took place between them have not served to alter that situation. The applicant's complaint through official channels and her application in fact concern the subject-matter of the original request and the application, which was lodged within the prescribed time-limits, is admissible.

7. The applicant seeks, principally, the implementation of the arbitration award by Dr Bellini in the report of 26 October 1976 and, accordingly, the payment of an amount corresponding to 100 % invalidity minus the amount already paid which corresponds to the 15 % invalidity recognized by the first arbitration award. In the alternative the applicant seeks payment of an amount corresponding to 60 % invalidity in addition to the 15 % already recognized. The Commission contends that the Court should dismiss both the applicant's principal and alternative claims and, in the alternative, should fix a degree of invalidity which is higher than the 15 % already recognized.

8. It must be stated first of all that the arbitrators' opinions in question were given by virtue of a clause in the insurance policy taken out by the Commission in the period before the adoption of rules for the implementation of Article 73 of the Staff Regulations and applicable at the time of the events giving rise to the present application. The arbitration procedures followed the proper course and the opinions of the arbitrators, in particular that of Dr Bellini of 26 October 1976, thus form the legal basis for the relationships between the parties in the matter in dispute in so far as they do not exceed the limits of the Commission's obligations under Article 73 The disagreement between the parties concerns, first, the concept of invalidity within the meaning of that article and, secondly, the meaning and scope of Dr Bellini's opinion.

9. As regards the concept of invalidity within the meaning of Article 73 it is not disputed that in addition to physical injuries that concept includes injuries of a mental nature. The parties differ, however, over the question whether these disorders which do not directly affect the mental faculties but only concern the emotions may be taken into account.

10. In that connexion it must be said that there are no grounds for giving the concept of invalidity a restrictive interpretation. Within the meaning of the article in question an invalid must be regarded as a person who as a result of an accident or an occupational disease is totally or partially unable to lead a normal active life. If an expert medical assessment establishes that a mental injury which only affects the emotions satisfies that condition there is nothing to prevent its being considered as falling within the concept of invalidity within the meaning of Article 73 of the Staff Regulations. The fact that injuries of that nature do not appear in the table of degrees of partial permanent invalidity annexed to the insurance policy is of no relevance in this connexion. Like any other case for which no provision is made in the table the question of such an injury must be resolved by fixing the degree of invalidity by analogy with those cases for which express provision is made.

11. It must therefore be concluded in this instance that Dr Bellini's report, as supplemented by his evidence before the Court, did not exceed the limits of Article 73 of the Staff Regulations when if found that, in addition to the physical injury ascertained by the first doctor to act as arbitrator, the applicant was affected by permanent invalidity in the emotional sphere.

12. The Commission maintains, however, that in assessing that invalidity as total Dr Bellini applied a criterion which is foreign to Article 73, that is, the applicant's capacity for work. According to the Commission that article must be interpreted as relating to those risks of accident which affect the bodily or mental health of officials, irrespective of repercussions on their capacity for work. The applicant, on the other hand, maintains that Article 73 must be interpreted as relating to incapacity for work.

13. The choice between those two different interpretations of Article 73, neither of which is positively supported by the wording of that provision, must be determined by the position of that provision within the social security system of officials.

14. In this connexion it is essential to point out, first, that the invalidity benefit provided for in Article 73 differs from the invalidity pension provided for in Article 78, which is only awarded in the case of incapacity for work. The benefit provided for in Article 73, on the other hand, is paid whatever the capacity of the person concerned to continue to perform his duties. Partial permanent invalidity gives rise to a right to the benefit even if it does not in any way affect the ability of the person concerned to perform his duties. Moreover, the degree of invalidity, which is one of the factors which determines the amount of the benefit, is fixed at flat rates in accordance with a general scale which does not take account of the nature of the official's employment. A given category of injuries, which in one official amounts to total incapacity for work but does not affect the capacity for work of another official, gives a right to the same benefit in each case. Although it is true that in a general way the degree of incapacity for work forms the basis for the degrees of invalidity fixed by the scale it cannot be said that that has been the only decisive criterion and it is in any event established that the degree of incapacity is of no importance in determining, in each particular case, the degree of invalidity. In these circumstances Article 73 cannot be interpreted by reference to comparable provisions in the laws of the Member States, special features and conditions of application whereof are, moreover, different from those of the provision in dispute. The result is that invalidity within the meaning of Article 73 must be interpreted as referring to the impairment of the bodily or mental health of the official irrespective of any degree of incapacity for work which may result from the accident.

15. In the present case it follows from Dr Bellini's report of 26 October 1976 as supplemented by his evidence before the Court that the total permanent invalidity ascertained by him refers to the incapacity for work. Before the Court Dr Bellini has explained, as he had previously done in correspondence with the Commission, that the loss of mental health suffered by the applicant as a result of her accident may be evaluated at 60 %.

16. Having regard to the interpretation of Article 73 set out above the latter is the degree of invalidity which must be accepted and added to the figure of 15 % ascertained by the first arbitrator as regards the impairment of the applicant's bodily health.

17. It also follows from the evidence given by Dr Bellini that the degree of invalidity ascertained by him results solely from the accident which occurred on 3 January 1968, so that that figure need not be reduced in order to take account of any subsequent contributory causes.

18. The Commission must therefore be ordered to pay the applicant the amount corresponding to 60 % invalidity, to be calculated in accordance with the provisions of Article 73 of the Staff Regulations, in addition to the amount which has already been paid to her on the basis of a degree of invalidity of 15 %.

19. The applicant also seeks payment of interest at the rate of 5 % on the amounts which she claims as due to her.

20. The Court has already held in its judgment of 26 February 1976 in Case 101/74 Kurrer v Council [1976] ECR 259, at p. 269, that since there is no provision of the Staff Regulations or of the insurance policy which expressly provides for the payment of interest it is for the applicant to establish that the delay in payment of the allowance constitutes a wrongful act or omission on the pan of the defendant institution which has in fact caused him damage.

21. The benefit provided for in Article 73 is only payable as from the date on which the degree of permanent invalidity has been finally fixed. In this instance there was no delay on the part of the Commission in paying the benefit corresponding to the physical injury once the relevant degree of invalidity was fixed by Dr Vita in his arbitration award. As regards the injury of a mental nature, the delays which have occurred in the determination of the degree of invalidity are not solely due to negligence on the part of the Commission. In particular it must be remembered that Dr Bellini's report of 26 October 1976 fixing the degree of invalidity at 100 % was based upon an interpretation of Article 73 of the Staff Regulations which the Court has not accepted.

22. It was not until 10 January 1978 that the degree of invalidity was fixed in such a way as to establish the liability of the Commission on which date Dr Bellini sent a letter to the Commission in which he assessed the applicant's loss of mental health at 60 %. If it has not been possible to resolve the difference between the parties on the basis of that assessment that is primarily due to the applicant's refusal to accept the assessment. The Commission is therefore not obliged to pay interest on the amount due.

23. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. As the Commission has, in the main, failed in its submissions it must be ordered to pay the costs.

On those grounds, THE COURT (Second Chamber) hereby:

1 Orders the Commission of the European Communities to pay the applicant, Miss B., by way of invalidity benefit the amount corresponding to a degree of invalidity of 60 %, to be calculated in accordance with the provisions of Article 73 of the Staff Regulations, in addition to the amount which has already been paid to her on the basis of a degree of invalidity of 15 %.

2 Orders the Commission to bear the costs.