JUDGMENT OF 21.5.1981 — CASE 156/80 MORBELLI v COMMISSION

In Case 156/80

THE COURT (Second Chamber), composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges, Advocate General : Sir Gordon Slynn

Registrar: A. Van Houtte

gives the following

JUDGMENT Facts and Issues

I — Summary of the facts

II — Written procedure

III — Conclusions of the parties

IV — Submissions and arguments of the parties in the course of the written procedure

A — Admissibility

B — Substance

V — Oral procedure

Decision

Admissibility

Substance

The claim for adjustment of the compensation awarded

Costs

I —. Summary of the facts

II —. Written procedure

III —. Conclusions of the parties

(a). Principally,

(b). In the alternative,

(c). Order the Commission to pay the costs.

IV —. Submissions and arguments of the parties in the course of the written procedure

A —. Admissibility

(a). The measure which is contested in the application is the Commission's decision of 30 May 1980 rejecting the applicant's complaint of 11 December 1979.

(b). It is impossible to challenge this finding by claiming that the application is directed by implication against the real measure adversely affecting the applicant. The applicant should have expressly indicated in his application the measure adversely affecting him which he wished to have set aside.

(c). Likewise it is impossible to concur in the argument that the contested decision was separate and distinct because it included a statement of the reasons on which it was based which did not appear in the measure adversely affecting the applicant. A decision rejecting a complaint, even if it contains a separate statement of the reasons on which it is based, cannot, according to the case-law of the Court, directly affect the legal position of the person concerned; hence it does not constitute an act adversely affecting him.

(d). The applicant cannot cure the inadmissibility of his action by trying to represent that it is also intended to obtain compensation and that it is thereby an action in which the Court has unlimited jurisdiction. Previous decisions of the Court indicate, on the one hand, that it is impossible to bring proceedings in which the Court has unlimited jurisdiction if an action for the annulment of a measure cannot be brought and, on the other, that a party may not endeavour by means of an action for damages to obtain a result similar to the annulment of a measure if an action for the annulment of that measure is inadmissible.

(a). The reference to the decision of 30 May 1980 was made primarily to establish that the application was made within the period prescribed by the Staff Regulations. However, in substance the application is not limited to the confirmatory decision but refers by implication to all the prior decisions having the same subject-matter, namely the rejection of the applicant's complaint.

(b). A distinction should be drawn between purely confirmatory decisions which do not themselves contain a statement of the reasons on which they are based and confirmatory decisions which do contain such a statement. A confirmatory decision which resumes discussion of the dispute, analysing the various complaints submitted by the claimant, constitutes a separate decision which it is sufficient to contest. That applies to the decison of 30 May 1980.

(c). The application complies with the requirements of form and substance laid down by Article 38 of the Rules of Procedure of the Court; it is accordingly admissible.

(d). In a court of exclusive jurisdiction like the Court of Justice an objection of inadmissibility may be raised only in cases in which such an objection is strictly necessary.

B —. Substance

1. The report of the Medical Committee

2. Interest and the re-assessment of the lump sum

V —. Oral procedure

1. By application lodged at the Court Registry on 2 July 1980, Mr Morbelli, an official of the Commission of the European Communities assigned to the Office for Official Publications of the European Communities, Luxembourg, brought an action for the review of the degree of his permanent partial invalidity fixed pursuant to the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease enacted under Article 73 of the Staff Regulations of Officials (hereinafter referred to as the Rules).

2. On 21 February 1976 the applicant suffered an accident in the post office near Luxembourg railway station caused by a faulty sliding door as a result of which he sustained head injuries. On 27 February 1976 he reported the accident, pursuant to Article 16 (1) of the Rules, for the purposes of the insurance provided under a contract entered into by the Community pursuant to Article 73 of the Staff Regulations.

3. On 12 May 1978, when the injuries appeared to have stabilized, the applicant was examined by the medical adviser appointed by agreement between the Commission and the insurer. That doctor came to the conclusion that the degree of permanent invalidity suffered by the applicant was 3 %. Accordingly the insurer assessed the compensation in accordance with the conditions in the policy at BFR 95064. That offer was notified to the applicant on 6 July 1978 by the Commission.

4. The applicant refused that offer and the Commission sent him to the head of its Medical Department who, after re-examining him, reached the conclusion that the degree of invalidity determined by the above-mentioned medical adviser was correct. Consequently, in a letter dated 16 November 1978, the administration confirmed its original offer and again expressed its willingness to pay the sum of BFR 95 064.

5. The applicant refused to accept that offer and requested that his case be submitted to the Medical Committee provided for in Article 23 of the Rules. In accordance with that provision he appointed one of the members of that Committee, choosing a doctor who was already acquainted with his case through an action for damages against the Luxembourg State.

6. The Commission likewise appointed a member of the Medical Committee and the two doctors appointed the third member by agreement, in accordance with Article 23 of the Rules.

7. After studying the file and examining the applicant the Committee thus constituted delivered its opinion on 27 June 1979 in the following terms:

8. On 11 September 1979 the administration informed the applicant of the decision of the Medical Committee and repeated its offer of payment of the lump sum previously calculated. On 11 December 1979 the applicant submitted a complaint pursuant to Article 90 of the Staff Regulations of Officials in which he challenged the opinion of the Medical Committee, requested the setting up of a new committee and claimed from the institution, in addition to the lump sum to be fixed, payment of interest from the day of the accident and compensation for the loss which had in the meantime occurred through the fall in the value of money. A number of documents and medical reports were appended to the complaint; the file was later supplemented by the lodging of a medical report drawn up at the request of the applicant by Professor Zanalda, a physician in Turin.

9. The Commission did not reply to that complaint within the period laid down in the second subparagraph of Article 90 (2) of the Staff Regulations. However, by a letter of 30 May 1980 it expressly rejected the complaint and stated the reasons for its attitude. The application, which was lodged on 2 July 1980, is directed against that letter.

10. From the terms of the complaint through official channels, read in conjunction with the application, it is apparent that the purpose of the action is as follows:

11. The Commission contests the admissibility of the application on the ground that it is directed against a decision which merely confirmed a prior decision which was not challenged. It relies upon the fact that the application is directed against a decision of the Commission rejecting a complaint, a decision which was adopted after the expiry of the period of four months laid down by the last subparagraph of Article 90 (2) of the Staff Regulations, and not against the implied decision rejecting it, which was deemed to be taken on the expiry of that period.

12. In this case the act adversely affecting the applicant is the communication of 11 September 1979 whereby the Commission confirmed the report of the Medical Committee and notified the applicant of its decision. The applicant submitted a complaint which was received by the Secretariat-General of the Commission on 12 December 1979, thus setting in motion a period of four months within which the Commission had to reply. That period expired in principle on 12 May 1980. It is accordingly on that date that an implied decision to reject the complaint is deemed to have been taken, which caused a further period of three months to start to run, within which the applicant was able to lodge an application in accordance with Article 91 (3) of the Staff Regulations.

13. It is apparent from the foregoing that the applicant submitted his application within the limitation period set in motion by the implied decision to reject his complaint. The Commission's objection of inadmissibility is accordingly based solely on the fact that the application is directed against the subsequent express decision instead of the implied decision of rejection.

14. That line of argument on the part of the Commission must be rejected since it is contrary to the good faith which must prevail in relations between the Commission and its employees, including their relations in legal proceedings. The Commission may not rely on the fact that it failed to reply to a complaint within the period laid down by the Staff Regulations. Since the decision of 30 May 1980 and the earlier implied decision to reject the complaint were the same in substance, it is irrelevant to establish which of those decisions the application formally contests in view of the fact that the adoption of the confirmatory measure and the lodging of the application occurred within the limitation period which started to run from the date of the implied decision rejecting the complaint.

15. In order to give judgment on the claims submitted by the applicant it is necessary first of all to clarify the scope of the Court's power to review decisions of the kind under challenge in the present proceedings. The scope and the limits of that power of review must be determined on the basis of the relevant provisions of the Treaty, the Staff Regulations of Officials and the Rules.

16. According to Article 179 of the EEC Treaty the Court has jurisdiction in any dispute between the Community and its servants within the limits and under the conditions laid down in the Staff Regulations.

17. The rules drawn up under Article 73 of the Staff Regulations adopt the following procedure for the settlement of disputes which may arise in the application of the insurance scheme against the risk of accident and of occupational disease:

18. Those provisions are intended to confer upon medical experts the task of appraising in their entirety medical questions which are relevant to the operation of the insurance scheme set up by the Rules. Under them each official is entitled to two examinations, the first by the doctor or doctors of the institution and the second, in case of disagreement, by a medical committee composed in such a way that each of the parties is entitled to appoint a doctor of his choice, whilst the impartiality of the third doctor is guaranteed by the requirement that he be appointed by agreement between the first two doctors appointed, or, where agreement cannot be reached, by the President of the Court of Justice.

19. The organization of that complaints procedure and the care with which the provisions quoted strive to ensure the balance and objectivity of medical committees are evidence of a desire to settle definitively at that stage, in case of dispute, all questions of a medical nature.

20. In those circumstances the remedies provided by the Staff Regulations may in principle be employed only in order to obtain a review by the Court confined to questions concerning the constitution and proper functioning of the committees provided for by Articles 19 and 23 of the Rules. On the other hand, the Court's review may not extend to medical appraisals properly so called which must be considered definitive, provided that they are adopted in accordance with the correct procedure.

21. It is in the light of these principles that the complaints submitted by the applicant must be examined.

22. First, the applicant submits various complaints concerning the constitution of the Medical Committee, the qualifications of its members and the reality of the agreement reached within that Committee. It is argued that the third member of the Committee was irregularly chosen since his appointment was suggested by the Commission's doctor to the doctor appointed by the applicant who did not authorize that choice or approve it. The applicant further calls in question the qualifications both of the doctor appointed by the Commission and of the third doctor, contrasting them with the high qualifications of the various specialists which he himself consulted and whom he classifies as eminent authorities in the field of injuries to the brain. Finally, he claims that the doctor appointed by him was misled and that he signed the report against his real persuasions.

23. Those allegations must be dismissed as unfounded in fact and in law.

24. It is not in dispute that the applicant duly appointed the doctor whom he was entitled to appoint under Article 23 of the Rules. He was not required to take any part in the choice of the doctor appointed by the Commission and the criticisms made by him as to the qualifications of that doctor must thus be dismissed as entirely unfounded. With regard to the appointment of the third doctor it is sufficient to refer to Article 23 of the Rules which provides that the third doctor is to be appointed by agreement between the first two doctors. It follows from this that the doctor chosen by the applicant was not required to take instructions from the applicant or seek his approval. The fact that the name of the third doctor was suggested by the Commission's doctor is a normal practice in this connexion since either of the first two doctors is free to make suggestions as to the choice of the third, the sole requirement of the Rules being that the appointment of that third doctor should be by agreement between the first two doctors, as undoubtedly happened in this case.

25. The allegation that the doctor appointed by the applicant signed the report only against his real persuasions appears to be based on the consideration that in a previous report drawn up for the purpose of an action for damages against the Luxembourg State he had expressed the opinion that the applicant's degree of invalidity was higher. That view, which was reached at another time and in a different context, cannot in any way bind that doctor who, according to the declarations made in the course of the inquiry into the case, ultimately concurred in the opinion of the other two members of the Medical Committee. Whatever doubts he may have entertained, the adoption of the opinion of the Committee, whether unanimously or by a majority, constitutes a final decision which cannot be called in question.

26. Secondly, the applicant claims that the examination procedure followed by the Medical Committee was inadequate. It had only carried out a summary examination lasting 30 minutes which bore no comparison with the thorough examinations which he underwent privately; certain preliminary tests were carried out by ancillary medical staff; finally, he doubts whether all the members of the Committee were able to understand the finer points of the medical reports which he had placed on his file and which were written in Italian.

27. Those affirmations are not of such a nature as to cast any doubt whatever on the proper conduct of the Medical Committee's proceedings. It is normal medical practice for certain preliminary examinations to be carried out by ancillary staff. Furthermore, it is not contested that the Committee had before it the whole medical file which included the results of the thorough examinations carried out at an earlier stage of the procedure by the Commission's doctors. Finally, the Committee remained entitled to determine the nature and length of the personal examination of the applicant. It was also for the Committee to assess the appropriateness of taking into consideration the medical reports which the applicant himself placed on his file and to resolve the translation problems which such reports might entail for one or other of its members.

28. Finally, the applicant claims that the Medical Committee took into consideration only the objective elements of his invalidity and entirely disregarded the subjective effects of the accident. The rate of 3% is said to be manifestly insufficient to take account of the serious deterioration in the mental state of the applicant and of hypochondria caused by the accident. According to the applicant, the rate of 15%, at which Professor Zanalda arrived by taking account of the subjective factor, represents a more appropriate level of compensation.

29. On this question it is sufficient to remark that, in assessing the degree of invalidity at 3%, the Medical Committee expressly stated that it had regard to the general state of health of the applicant. It is thus clear that the Committee considered all aspects of the case of invalidity in question and that it did not consider that the physical and mental after-effects of the accident justified finding a degree of invalidity in excess of 3%. Having regard to the foregoing considerations that appraisal must be considered final and conclusive.

30. With regard to the request that the Court should order a new expert opinion to be obtained, that claim must be dismissed as exceeding the bounds of the judicial review which the Court is able to perform in this case.

31. It is clear from the foregoing that the conclusions and arguments relating to the work of the Medical Committee must be dismissed in their entirety.

32. Finally, the applicant claims that the lump sum paid by the Commission should attract interest as from the date of the accident and that it should be adjusted by some means or other in order to take account of the fall in the value of money.

33. As the Commission rightly states, that claim is based on a confusion between reparation for loss in the context of an action for damages and the principles applicable in the context of accident insurance.

34. Under the insurance provided for by the Staff Regulations the compensation payable in the event of invalidity is in the nature of a flat-rate award assessed on the basis of the lasting effects of an accident. Interest may thus be claimed only where the person entitled to that award is able to establish that payment thereof was improperly delayed by the administration.

35. In this case it is clear that the Commission offered the applicant the compensation payable under the terms of the insurance policy as soon as it was possible to consider that his condition had stabilized and that the appropriate examinations had been concluded. In challenging that decision the applicant took upon himself the risk of delay inevitably associated with the settlement of such a dispute. He may not cast the blame for that upon the Commission.

36. It is thus necessary to dismiss the claim for interest and the claim for adjustment of the compensation offered by the Commission.

37. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. However, under Article 70 of the Rules of Procedure the institutions are to bear their own costs in proceedings brought by servants of the Communities.

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

1 Dismisses the application;

2 Orders the parties to bear their own costs.