Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The dispute between Sandro Ghérardi Dandolo and the Commission concerns the type of invalidity pension which he is paid. The applicant seeks to obtain the benefit of the second paragraph of Article 78 of the Staff Regulations of Officials, and not the third paragraph, which has been applied to him by the Commission.

2. A Community official normally works until he retires, at the latest when he reaches the age-limit of 65. Early retirement may occur for a number of reasons, one of them being that provided for by Article 78.

3. Since it is for the administration to determine whether or not the accident or illness is work-related, how can the Invalidity Committee properly make a finding with a view to the possible application by the administration of the second paragraph of Article 78?

4. At this stage only the reply to the first of those letters need concern us.

5. May it be considered, as Mr Gherardi submits, that by deciding to re-examine his case the administration withdrew its decision of 21 June 1982 and that, contrary to the Commission's position, the decision of 20 July 1984 does not merely confirm the previous decision but is an entirely new decision inasmuch as it was arrived at in the light of new elements — the two reports prepared in 1984 by the Invalidity Committee?

An administrative decision may be withdrawn by an act issued by the same authority or its superior which either expressly withdraws the previous decision or contains a new decision which implicitly but necessarily takes the place of the previous one.

Contrary to the applicant's assertions, the letter sent to his counsel on 20 June 1983 by the appointing authority cannot be regarded as a decision withdrawing the previous one. After recalling that

it appears that no reply was made to Mr Gherardi's letter so that it must be concluded that there was an implied rejection of his complaint for the purposes of Article 90 (2) of the Staff Regulations,

the signatory simply refers to the continuing uncertainty with regard to the cause of Mr Gherardi's invalidity and states that he has asked Dr Nijs for further information regarding the cause of the invalidity in the light of which he will consider whether or not it is appropriate to revise the amount of the pension received by the applicant.

The letter thus contains a confirmation of the definitive nature of the decision of 21 June 1982 and a promise to reconsider it if the medical evidence justifies such reconsideration.

That information was provided by the Invalidity Committee and includes no new element of fact. It is true that the committee made two statements.

Its report of 19 June 1984 simply rectifies an error (the issue whether or not the accident of 3 January 1968 was an accident at work) and draws the appropriate conclusion with regard to the question whether the accident of 17 November 1964 alone was the determining or constitutive factor in the applicant's invalidity. By stating that that accident was not the substantial and primary cause of the invalidity, the committee provided the appointing authority with the information considered necessary for the letter of 20 June 1983 in order to put an end to the uncertainty which might have resulted from its earlier report. According to the committee, although the accident of 17 November 1964 was a partial cause of the invalidity (report of 28 May 1982) it was not its substantial and primary cause (report of 19 June 1984).

6. Inasmuch as the decision of 21 June 1982 was not withdrawn, and in the absence of any new element of fact which would make it possible, notwithstanding the expiry of the strict time-limits, to call that decision in question, it must be regarded as the act adversely affecting the applicant for the purposes of these proceedings.

7. It is not necessary, therefore, to consider the objection of inadmissibility based on the late submission, on 22 October 1984, of the complaint concerning the decision of 20 July 1984 or the substance of the case. I propose that the Court should declare Mr Gherardi Dandolo's application inadmissible and order the applicant to pay the costs, subject to the provisions of Article 70 of the Rules of Procedure.

1 Translated from the French.

2 Judgment of 21 January 1987 in Case 76/84 Rienzi v Commission [1987] ECR 315.

3 Case 1/76 Wack v Commission [1976] ECR 1017, paragraph 7; Case 17/71 Tontodonati v Commission [1971] ECR 1059, paragraph 3.