Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. In these proceedings, Maurice Prelle seeks the annulment of the implied decision rejecting his complaint, lodged in November 1987, against the refusal of the office responsible for settling claims of the Sickness Insurance Scheme to reimburse the cost of an organotherapeutic preparation.

2. The facts of the case are as follows: on 14 July 1987, Mr Prelle, a former employee of the Commission, submitted to the office responsible for settling claims in Brussels an application for the reimbursement of the cost of an injectable organotherapeutic product composed of extracts of organs and novocaine which was intended to treat rheumatoid arthritis. It was produced by a homeopathic pharmaceutical laboratory to a prescription issued by Dr Jourdan.

3. The applicant puts forward two submissions in support of his application: infringement of Section V of Annex I to the Community Rules on Sickness Insurance and failure to provide a statement of reasons pursuant to Article 25 of the Staff Regulations.

4. I shall examine first the submission that no statement of reasons was provided.

5. The submission that the administration wrongly applied Section V of Annex I to the Community Rules on Sickness Insurance, upon which it based its refusal, is more difficult to assess.

6. With regard to the first point, some of the definitions contained in Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products might be of assistance in defining more closely the concept of a pharmaceutical product.

7. Having said that, it remains to be considered whether reimbursement of the cost of an organotherapeutic preparation may be refused under the second paragraph of Section V, which lists those products which shall not be considered as pharmaceutical products.

8. Nor, incidentally, do I regard as relevant the administration's reference to Section XV(2) of Annex I, under which expenses relating to treatment considered by the office responsible for settling claims, after its medical officer has been consulted, to be non-functional, superfluous or unnecessary are not to be reimbursed.

9. However, so that what I have said will not be misconstrued, before I finish with this point I would like to set out my thoughts more clearly and at the same time reply to some of the other observations made by the administration.

10. I need not linger over the claim for damages submitted by Mr Prelle, who claims that by forcing him to take legal action over a small amount of money and on account of a typically arbitrary decision, the administration has caused him non-material and material damage put at BFR 8000.

11. In conclusion, I therefore suggest that the Court should annul the contested decision, order the Commission to pay 85% of the equivalent in Belgian francs of the sum of FF 400 plus interest on that sum at the statutory rate from 11 November 1987, the day following acknowledgment of the receipt of the complaint (as requested by the applicant), order the Commission to pay the costs and dismiss the remainder of the application.

1 Original language Italian

2 See the judgment of 21 June 1984 in Case 69/83 Lux v Court of Auditors [1984] ECR 2447, paragraph 36.

3 Judgment of 17 December 1981 in Case 791/79 Demont v Commission [1981] ECR 3105, paragraph 12.

4 OJ, English Special Edition 1965-66. p 20