Opinion of Mr Advocate General Lenz
Mr President,
Members of the Court,
The applicant in these proceedings has been drawing an invalidity pension since 1 December 1979 on the ground of total incapacity for work. This action concerns claims which he advances on the basis of Article 73 of the Staff Regulations and the Rules on the Insurance of Officials against the Risk of Accident and of Occupational Disease (hereinafter referred to as the Rules), adopted in pursuance of that article, in connection with the consequences of an assault of which he was the victim in May 1977, while in the service of the Communities, and in the course of which he sustained injuries to the head and the left knee.
As those events have already been the subject of proceedings before the Court (Case 186/80), it is not necessary to cite all the details of the case. It is sufficient to note the following points.
On 25 May 1979 the doctor appointed by the Commission submitted a report on the sequelae of the accident. According to that report the permanent partial invalidity rate for the various injuries was as follows: 25% for the eye injuries, 10% for the head injury and 2.25% for the knee injury (those figures give an aggregate partial invalidity rate of 34% under the Balthazar rule, which was explained to the Court in the oral procedure and under which the individual degrees of invalidity are not simply added together).
On that basis, in accordance with Article 21 of the abovementioned Rules, the Commission sent the applicant a draft decision dated 24 July 1979, in which it was stated that it could be concluded from the medical findings resulting from the examination of the applicant on 18 May 1979 that the injuries resulting from the accident had at that stage consolidated. In addition it was proposed that — on the basis of an invalidity rate of 34% — a lump sum, pursuant to Article 73 (2) (c) of the Staff Regulations, of BFR 3187129 should be awarded.
The draft could not become a final decision within the meaning of the third paragraph of Article 21 of the Rules because the applicant requested within the prescribed period (on 7 September 1979) that a Medical Committee should reexamine his case pursuant to Article 23 of the Rules. He did so because he considered that, in the light of the findings of other doctors, the invalidity rate mentioned in the draft was too low in various respects (it failed to take into account any disfigurement and was based on a different assessment of the invalidity resulting from the knee injury). At the same time the applicant asked to be paid the lump sum mentioned in the draft decision as a provisional allowance in accordance with Article 20 of the Rules (a provisional allowance may be granted where the degree of invalidity cannot be defined after medical treatment is terminated and where the undisputed proportion of the invalidity rate is at least 20%).
That request was refused by the Commission on 22 October 1979 on the ground that although agreement had been reached with regard to the eye injury, the degree of invalidity was still a matter for dispute in two respects and was therefore to be determined by the Medical Committee which the applicant had asked to be constituted. The Commission ordered that payment was to be made only in respect of an invalidity rate of 25% (a sum of BFR 2343478). That position was reaffirmed in a latter dated 30 January 1980 (in which, moreover, it was acknowledged that the aggregate invalidity rate should not be calculated by means of the Balthazar rule, but by making a simple addition of the various degrees of invalidity, as the applicant had claimed in a letter dated 24 September 1979).
Following the rejection of his complaint of 12 February 1980, the applicant brought an action concerning the composition of the Medical Committee and the refusal to pay him an additional lump sum corresponding to an invalidity rate of 12% as a provisional allowance pursuant to the third paragraph of Article 20 of the Rules (Case 186/80, to which I have already referred). The case dealt with the question whether the Commission could appoint to the Medical Committee the doctor who had already submitted the report of May 1979 and who was the medical officer for the Commission's insurers. The case also concerned the question whether the applicant was entitled to an additional provisional allowance under Article 20 of the Rules corresponding to an invalidity rate of 12% and the question whether interest was payable as from the date of the consolidation of the injuries.
In the course of those proceedings the Commission paid the applicant the additional amount requested, and the Court stated in its judgment (paragraph 23) that that issue had been settled.
The applicant's remaining claims were dismissed.
The Medical Committee requested by the applicant met on 13 July 1982. At that meeting a fourth doctor was called in for consultation. After the committee had examined the applicant and considered all the medical documents which had been submitted (listed on pages 4 and 5 of the Medical Committee's report of 13 July 1982), it came to the unanimous conclusion that the applicant's permanent partial invalidity was to be assessed as 25% in relation to the eye injury, 8% in relation to the injury to left knee, and 1% in relation to the disfigurement, which resulted in an aggregate partial invalidity of 34%. The committee also expressed the view that further treatment was not necessary and that 1 April 1979 was to be taken as the date by which the injuries had consolidated (an earlier date than that proposed in May 1979 by the doctor appointed by the Commission).
The committee's conclusions were communicated to the applicant in a letter dated 3 February 1983 in which it was explained that the appointing authority had taken its decision in accordance with those conclusions. Moreover, it was stated in that letter that because the applicant had received a provisional allowance which was too high according to the findings of the Medical Committee, he would have to repay the difference between the two amounts, namely BFR 281218. It was also stated that since his treatment after 1 April 1979 (the date by which the Medical Committee considered his injuries to have consolidated) could not be regarded as resulting from the accident, reimbursement at 100% under Article 73 of the Staff Regulations was not justified and therefore it would be necessary to make an adjustment of BFR 24992 in processing future claims for the reimbursement of medical costs.
On 22 April 1983 the applicant addressed a formal complaint to the appointing authority in respect of that letter. In that complaint he criticized the Medical Committee's report (as regards the invalidity rate established therein, the date for the consolidation of the injuries and the necessity for further treatment). He requested the appointing authority to set aside the report and to annul the decision of 3 February 1983 based on it. He also asked that the invalidity rate and the date for the consolidation of the injuries be fixed in accordance with the views of a doctor consulted by the applicant, as set out in a report of 4 May 1982.
No decision was taken on that complaint within the time-limit laid down in Article 90 (2) of the Staff Regulations. The complaint was not expressly rejected until 3 October 1983. It was explained that the applicant had failed to show that the composition and the proceedings of the Medical Committee were irregular, and that, further, there did not appear to be any grounds for suggesting that the Medical Committee, which has a wide discretion, made an incorrect assessment of the applicant's case.
As a result Mr Suss brought an action before the Court on 26 November 1983. In his application he claimed that the Court should:
Declare the Medical Committee's report void;
Annul the decision of 3 February 1983 and the rejection of the complaint;
Declare that the applicant is entitled to an invalidity benefit calculated at a rate of 56%;
Fix as the date of consolidation 1 April 1979 in respect of the neurological sequelae and the eye injury and 5 April 1982 in respect of the knee injury;
In any event, declare the degree of invalidity fixed for the payment of the provisional allowance definitive and order a new expert opinion in respect of the sequelae which are still disputed;
Declare that thermal cures are necessary for the applicant.
In addition the applicant claimed in his reply that the Court should:
Order the Commission to pay BFR 50000 under Article 73 of the Rules of Procedure and, because of the delay in dealing with his case, award the applicant interest on the allowance to which he is entitled.
The Commission considers those claims to be inadmissible in part, and in any case unfounded. Accordingly it asks the Court to dismiss the application.
My view on this case is as follows.
1. In the first place, in support of his claims, the applicant submits that the Medical Committee's report on which the decision of 3 February 1983 is based was accepted and signed by four doctors, that is to say, even by the doctor whom the committee consulted and to whom it entrusted the examination of the applicant's locomotor system. The fact that a fourth doctor participated in drawing up the report and thus became a member of the Medical Committee constitutes an infringement of Article 23 of the Rules, according to which the Medical Committee is to consist of three doctors and only those doctors are to submit a report. The report was therefore not produced in accordance with the correct procedure and consequently a new expert opinion must be ordered.
2. The applicant relies in the second place on the fact that he was granted a provisional allowance, paid in two amounts corresponding to invalidity rates of 25% and 12% respectively. Inasmuch as the third paragraph of Article 20 provides for such payments only in respect of the undisputed proportion of the invalidity rate, the payment of that allowance fixed the undisputed proportion at 37%, that is to say the sum of the partial rates determined in May 1979 by the doctor appointed by the Commission. That rate was binding on the appointing authority and on the Medical Committee. Therefore the only issue which could be considered at any subsequent stage in the procedure was that of the proportion of the invalidity rate which was still a matter for dispute (in other words the questions whether the knee injury should be estimated at more than 2% and whether it was also necessary to take into account the disfigurement, which was not referred to in the report of 25 May 1979). It was therefore not permissible to decide that after the Medical Committee's intervention the applicant's permanent partial invalidity rate was only 34%. On the contrary, if account is taken of those elements of the Medical Committee's report in relation to which the Committee was still entitled to reach a conclusion, (in other words the assessment of the knee injury at 8% invalidity and the disfigurement at 1%), the applicant qualifies for compensation on the basis of an invalidity rate of at least 44% (25% for the eye injury, 10% for the head injuries, 8% for the knee injury and 1% for the disfigurement).
3. The plaintiff also claims that the Medical Committee's report is erroneous, and is therefore not applicable, in so far as it states in relation to the knee injuries and their consolidation that further treatment in the form of thermal cures does not seem indicated.
4. Let us now consider the additional claims submitted in the reply. The Court is asked to order the Commission to pay BFR 50000 in accordance with Article 73 of the Rules of Procedure and to award interest on the additional lump sum owed to the applicant.
5. My views may be summarized as follows.
1 Translated from the German.
2 Judgment of 14. 7. 1981 in Case 186/80, Benoît Suis v Commission of the European Communities, [1981] ECR
3 Judgment of 14. 7. 1981 in Case 186/80, Benoit Suss v Commission of the European Communities, [1981] ECR 2041.
4 Judgment of 21. 5. 1981 in Case 156/80, Giorgio Morbelli v Commission of the European Communities, [1981] ECR 1357.
5 Judgment of 21. 5. 1981 in Case 156/80, Giorgio Morbelli v Commission of the European Communities, [1981] ECR 1357.
6 Judgment of 14. 7. 1981 in Case 186/80, Benoît Suss v Commission of the European Communities, [1981] ECR 2041.
7 Judgment of 14. 7. 1981 in Case 186/80, Anion Aw v Commmion o/the European Communities, [1981] ECR
8 Judgment of 14. 7. 1981 in Case 186/80, Benoit Suss v Commission of the European Communities, [1981] ECR 2041.
9 Judgment of 14. 7. 1981 in Case 186/80, Benoit Suss v Commission of the European Communities, [1981] ECR 2041.
10 Judgment of 21. 5. 1981 in Case 156/80, Giorgio Morbclli v Commission of lhe Bimpemi Commnmlici, [1981] ECR 1357.
11 Judgment of 21. 5. 1981 in Case 156/80, Giorgio Morbelli v Commission of the European Communities, [1981] ECR 1357.
12 Judgment of 14. 7. 1981 in Case 186/80, Benoît Suss v Commission of the European Communities, [1981] ECR 2041.
13 Judgment of 21. 5. 1981 in Case 156/80, Giorgio Morbilli v Commission o/ the European Communities, [1981] ECR 1357.