Report for the Hearing delivered in Case 2/87

I — Summary of the facts

On 8 December 1980 the applicant was involved in a traffic accident as a result of which he spent 10 days in hospital. In spite of medical treatment which he has since received, the applicant still suffers from various problems and complaints.

Between 14 September 1981 and 20 September 1983 the applicant consulted specialists who gave opinions on the degree of invalidity resulting from the accident; their assessments varied between 15 and 40%.

On the basis of a report drawn up on 15 November 1983 by a doctor appointed in accordance with Article 18 of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease (hereinafter referred to as the Rules), the defendant paid the applicant, on 1 August 1984, an amount corresponding to the 6% degree of invalidity assessed by that doctor.

The applicant stated that he did not accept that degree of invalidity and on 27 August 1984 he requested that a Medical Committee be set up in accordance with Article 21 of the Rules. The Committee consisted of a doctor appointed by the applicant, a doctor appointed by the defendant and a third doctor appointed by agreement between the other two doctors.

The Medical Committee drew up a report dated 5 December 1985 in which the degree of invalidity, consolidated on 9 December 1983, was assessed at 9%.

The defendant accepted the report of the Medical Committee, recognized that the applicant was suffering from a degree of invalidity of 9% and paid him an amount representing the difference between the original award of 6% and the 9% fixed by the Medical Committee.

The applicant submitted a complaint against that decision on 9 June 1986 in which he challenged the proceedings of the Medical Committee and requested the annulment of its report, the appointment of a fresh Medical Committee and the payment of default interest.

The complaint was rejected by the defendant by a decision of 8 October 1986.

II — Written procedure and conclusions of the parties

By an application lodged at the Court Registry on 6 January 1987, the applicant brought the present action based on Article 28 of the Rules, in which he claims that the Court should:

In its defence, lodged at the Court Registry on 6 March 1987, the Court of Auditors contends that the Court should:

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court (Fourth Chamber) decided to open the oral procedure without any preparatory inquiry.

III — Submissions and arguments of the parties

Both parties rely upon the principles expounded by the Court in its judgments, confining its review of the degree of invalidity fixed by a medical committee to questions concerning the constitution and proper functioning of the committee, since such review may not extend to medical appraisals (judgment of 29 November 1984 in Case 265/83 Suss ν Commission [1984] ECR 4029). But whereas the applicant states that there were in this case defects in the constitution and functioning of the Medical Committee, the defendant maintains that there are no grounds for complaint in that regard.

1. Constitution of the Medical Committee

The applicant considers that the constitution of the Medical Committee was defective because one of the doctors on the Committee was an expert remunerated by two of the parties concerned (since he was both the doctor used by the insurer and the expert chosen by the Court of Auditors) and had drafted the first report which had been accepted by the Court of Auditors. Moreover, it was he who coordinated all the proceedings of the Medical Committee, and the latter in practice confined itself to confirming the first report which he had drawn up.

The defendant contends that there is no provision or principle of law to prevent an institution from appointing the same doctor to carry out the examination provided for by Article 18 of the Rules and to serve on the Medical Committee. In addition, it states that it was Dr Schumacher, the doctor appointed by agreement between the other two doctors, who drew up the Committee's report; that report was approved and signed without reservation by the applicant's doctor and its conclusions were not identical to those of the doctor appointed by the defendant.

2. Functioning of the Medical Committee

The applicant makes various complaints about the functioning of the Medical Committee.

In the first place, the Committee did not respect his rights in so far as it did not invite him to express his own views to it.

In the second place, it erroneously referred to a scan which was never carried out, since the only examinations performed on the applicant were an X-ray and the preparation of a tomogram.

Thirdly, the Committee disregarded the opinions and reports of the doctors previously consulted by the applicant and relied solely on the report of Dr Kratzenberg, a neurologist. As regards that report, the applicant makes the following observations :

According to the applicant, those factors show the disorder surrounding the drawing up of the expert medical opinion.

In answer to the applicant's arguments, the defendant contends first of all that the Rules which, as the Court stated in its judgment of 21 May 1981 in Case 156/80 (Morbelli v Commission [1981] ECR 1357), ensure the balance and objectivity of medical committees, do not provide for the victim to be heard, since his interests may be protected by the doctor enjoying his confidence whom he can himself appoint. As regards the difference of dates alleged by the applicant, the defendant considers it irrelevant since it does not concern the report of the Medical Committee but the previous reports which did not form the basis for the decision of the Court of Auditors challenged by the applicant. Lastly, the defendant states that it is clear from the documents before the Court that a scan was in fact carried out on 5 August 1985; it does not comment on the applicant's redefinition of the type of examination performed on him.

3. The result of the Medical Committee's proceedings

Lastly, the applicant challenges the result of the Committee's proceedings, stating that the Committee failed to take account of the distinction drawn by the Court in its judgment of 18 March 1982 in Case 103/81 (Chaumont-Barthel ν Parliament [1982] ECR 1003) between compensation for permanent invalidity and the allowance in respect of any injury which, although not affecting the official's capacity for work, constitutes a physical defect and has an adverse affect on his social relations, and the clear distinction also drawn by the Court in its judgment of 8 October 1986 in Joined Cases 169/83 and 136/84 (Leussink-Brummelhuis ν Commission [1986] ECR 2801) between economic consequences and those affecting family and social relationships. Moreover, it disregarded the guidelines on the interpretation of the Rules in so far as it allowed compensation solely, albeit inadequately, for the applicant's anatomical and functional invalidity and wholly neglected the invalidity of a psychological nature. Throughout the medical report, reference is made to the sinistrosis suffered by the applicant as a result of the accident and yet no account is taken of it when the degree of compensation is fixed.

The defendant considers that in the light of the judgments in Morbelli and Suss, cited above, in which the Court held that its review could not extend to medical appraisals properly so called, there is no purpose in seeking to call in question medical appraisals, such as whether or not there was any psychological or social damage, which were made by a medical committee properly constituted in accordance with Article 23 of the Rules. It also contends that there is no basis in the Rules for the applicant's claim that the Court should appoint a new Medical Committee.

4. The claim for interest

The applicant claims interest on the amounts due to him from the date of consolidation of the sequelae, fixed by the medical experts at 9 December 1983; however, he adds that he relies upon the judgment of the Court on that point.

The defendant contends that, according to a previous decision of the Court (judgment of 14 July 1981 in Case 186/80 Suss ν Commission [1981] ECR 2041, at paragraph 16), interest may be claimed only where the person entitled to an award is able to establish that payment thereof was improperly delayed by the administration; in this case, there was no delay on the part of the defendant in paying the allowance due to the applicant by virtue of the original report or the additional amount awarded following the Medical Committee's report.

1 Language of the Case: French.