Opinion of Mr Advocate General Jacobs
My Lords,
1. In this case the Commission appeals from a judgment of the Court of First Instance of 6 April 1990. That judgment annulled a decision of the Commission of 20 May 1988 relating to the determination of the respondent's invalidity pension and ordered the Commission to pay the costs. The case also raises a question of general importance on the disposal of appeals before the the Court of Justice.
2. The Commission's decision which is at the origin of these proceedings refused Mr Gill the benefit of the second paragraph of Article 78 of the Staff Regulations (hereafter the Regulations), fixing his pension instead on the basis of the third paragraph of that article. Mr Gill claims he is entitled to the more favourable terms laid down by the second paragraph, on the grounds that his invalidity arose from an Occupational disease' within the meaning of that paragraph.
3. Mr Gill has spent a great deal of his working life going down coal mines. Between 1948 and 1971 he did so five to seven times a week, and between 1971 and 1974, several times a month. Until 1974 he was employed in Great Britain, but in 1974 he was recruited by the Commission as a Principal Administrator, and assigned to duties relating to health and safety in mines. Between 1974 and 1979, in the service of the Communities, he was called upon to descend coal mines a total of 20 to 30 times. As a result of an accident which occurred in 1979, however, he descended only once or twice between 1979 and 1981. On 11 June 1981 he requested retirement on grounds of total and permanent invalidity. It is not disputed that Mr Gill was by then suffering from an illness, namely chronic bronchial pneumonopathy, which rendered him totally unfit to perform his duties. It also appears that in 1974, at the time of Mr Gill's compulsory medical examination on entry into service with the Commission, he was already suffering from a degree of bronchial pneumonopathy, although he was certified then as fit to take up his duties. After a period of procedural confusion and delays, an Invalidity Committee met in March 1987 in order to determine the nature and extent of Mr Gill's incapacity, although Mr Gill had in the meantime provisionally been granted an invalidity pension under the third paragraph of Article 78. In its report of 31 March 1987, the Committee concluded that Mr Gill's incapacity was indeed total, and was the result of an aggravation of the bronchial pneumonopathy diagnosed in 1974, but it also found that the aggravation was not attributable to Mr Gill's service with the Communities. It was on the basis of that report that the Commission concluded that Mr Gill's invalidity did not arise from an Occupational disease' within the meaning of Article 78 of the Regulations. Whether the Commission was right in so concluding is the central issue in these proceedings.
4. Before turning to the Commission's four grounds of appeal, it may be helpful to set out the relevant legislation. Chapter 3 (Articles 77 to 84) of Title V of the Regulations is headed Pensions. Article 78 provides as follows:
5. The composition and proceedings of the Invalidity Committee referred to in Annex VIII to the Regulations are dealt with in Articles 7 to 9 of Annex II. The Committee consists of three doctors, appointed respectively by the official, the employing institution, and by agreement between the first two. By the first paragraph of Article 9, the official may submit to the Committee any reports or certificates from his own doctors.
6. It is to be noted that Article 13 of Annex VIII does not state expressly that it is for the Invalidity Committee to decide whether an invalidity arises from an occupational disease for the purposes of Article 78 of the Regulations. Since however the Committee is entrusted with the task of deciding whether an official is suffering from total permanent invalidity, its competence can be taken to extend to all questions of medical assessment: see Case 76/84 Rienzi v Commission [1987] ECR 315, paragraph 9 of the judgment.
7. Article 78 neither contains nor refers to any definition of Occupational disease'. Article 78 is however not the only provision of the Regulations which makes use of that concept. Chapter 2 (Articles 72 to 76) of Title V of the Regulations is headed Social Security Benefits. By Article 73(1):
8. Rules were duly drawn up, pursuant to Article 73, by common agreement of the Institutions, and entitled Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease (hereafter the Insurance Rules). Article 3 of the Insurance Rules contains the following definition of Occupational disease' :
9. It may be noted, finally, that Article 25 of the Insurance Rules provides that:
10. The Court of First Instance annulled the Commission's decision of 20 May 1988 on two grounds. First, the Commission was wrong in its assumption that, in order for a disease to be classified as an Occupational disease', a causal link had to be established between the disease, or its aggravation, and the performance of the official's duties with the Communities; in particular, the definition of Occupational disease' in Article 3 of the Insurance Rules could not be used for the purposes of Article 78 of the Regulations. Secondly, even if such a causal link had to be established, it could be found to exist in the circumstances of the case.
11. In contesting the judgment of the Court of First Instance, the Commission has relied upon four grounds of appeal. In my view, the first two grounds are sufficient to dispose of this appeal.
The first ground of appeal
12. The first of the Commission's grounds is that the Court of First Instance misinterpreted the concept of Occupational disease' occurring in Article 78, second paragraph, of the Regulations. The Commission divides this ground into two branches: (1) Contrary to the view of the Court of First Instance, the concept of Occupational disease' cannot vary as between Article 73 and Article 78 of the Regulations. (2) The concept of occupational disease in Anicie 78 is to be interpreted as covering any disease, or aggravation of a disease, the principal or predominant cause of which is found in the exercise of the official's duties with the Communities, and as excluding diseases which arise from the exercise of professional activities preceding his entry into service.
13. As the Court of First Instance points out in paragraph 19 of its judgment, the benefits available under Article 73 and 78 of the Regulations are distinct benefits awarded as a result of separate and independent procedures: see Article 25 of the Insurance Rules (cited above in paragraph 9), and see Case 731/79 B. v Parliament [1981] ECR 107 and Case 257/81 K. v Council [1983] ECR 1. The definition of Occupational disease' contained in Article 3 of the Insurance Rules was made for the purposes of applying Article 73, rather than Article 78. If therefore there were some sufficient reason for interpreting the concept differently in the two provisions, it would in principle be permissible to do so.
14. It does not seem to me however that there is any reason for interpreting Occupational disease' more widely in Article 78 than in Article 73. On the contrary, where the same term is used in the same regulations, one would expect its meaning to be the same. Furthermore, the view of the Court of First Instance is not supported by the jurisprudence of the Court of Justice, which suggests, in particular, that in order to establish the existence of an Occupational disease' for the purposes of Article 78, it is necessary to demonstrate a causal link between the disease, or its aggravation, and the performance of the official's duties with the Communities.
15. Thus, in Case 257/81 K. v Council, cited above in paragraph 13, the Court annulled a decision of the Council refusing the applicant the benefit of the second paragraph of Article 78, on the ground that certain reports of the Invalidity Committee were inadequately reasoned. In paragraph 17 of its judgment, the Court made the following criticisms of the reports:
16. In my opinion, therefore, Case 257/81 K. v Council does not support the proposition that occupational disease differs in its meaning as between Articles 73 and 78; it leads rather to the opposite conclusion. It does not seem to me, on the other hand, that the test to be derived from the Court's judgment is whether the performance of the official's duties is the principal or predominant cause of his condition, as the Commission suggests. In my view, the issue the Invalidity Committee has to decide is simply whether the applicant's condition would have arisen if he had not performed the duties in question. That, it seems to me, is the test which emerges from the analysis of Advocate General Sir Gordon Slynn, and in my view it is to be preferred to the first of Advocate General Roemer's two alternative formulations in the Vellozzi case (Case 29/71 Vellozzi v Commission [1972] ECR 513, cited by Advocate General Slynn in K. v Council at page 18), which is the formulation that appears to have been adopted by the Commission.
17. The interpretation of Case 257/81 K. v Council suggested above is supported by Rienzi v Commission, cited at paragraph 6, where the Court stated, at paragraphs 9 to 12 of its judgment:
18. In paragraph 19 of its judgment, the Court of First Instance refers to Case 242/85 Geist v Commission [1987] ECR 2181. In that case, the applicant attempted to bring an action for annulment against a decision granting him an invalidity pension on the basis of the third, rather than the second, paragraph of Article 78, notwithstanding that his rate of pension would have been the same in either case. The Court held that the applicant had an insufficient interest in bringing the action. A finding that his illness was not an occupational disease for the purposes of a decision under Article 78 would not prejudice any decision which might be taken under Article 73, since
19. The Court's case-law does not therefore support the proposition that an occupational disease can be established, for the purposes of Article 78 of the Regulations, without there being a causal relationship between the official's condition and his service with the Communities; it supports, rather, the contrary conclusion. This result is in my opinion confirmed by an examination of the wording of the second paragraph of Article 78. Thus, in the case where invalidity arises from an accident, for that paragraph to apply the accident must have occurred in the course of or in connection with the performance of the official's duties. In the absence of express provision to the contrary, it seems to me that the same principle should obtain where the invalidity arises from a disease. As the Court pointed out in Case 342/82 Cohen v Commission [1983] ECR 3829, at paragraph 13, after referring to the history of the legislation:
20. The question arises, furthermore, of what other test could be applied if the causal criterion were to be abandoned. In the case of diseases contained in the European List mentioned in Article 3(1) of the Insurance Rules, it is sufficient, for the purposes of applying Article 73, that the applicant be exposed to the risk of contracting the disease; it is only in the case of diseases not included in the List that the more stringent requirement of Article 3(2) must be satisfied. I can see no objection to using the more liberal criterion, of exposure to the risk, in the case of diseases contained in the European List, for the purposes of Article 78 as well as of Article 73. In paragraphs 22 to 24 of the judgment of the Court of First Instance, however, there is some suggestion that it was applying that criterion in the present case (where, it will be recalled, the disease is not included in the European List). In my view it cannot be appropriate to apply such a criterion for the purposes of a decision under Article 78, in circumstances where a causal connection would be required for a decision under Article 73.
21. The conclusion I have reached is in no way affected by the fact that Mr Gill's illness is attributable to a career in the mines prior to his service with the Commission, during which period he accumulated professional experience from which the Commission subsequently benefited (see paragraph 24 of the judgment of the Court of First Instance). It goes without saying that the Commission employed Mr Gill because he had knowledge and skills which made him useful to the Communities. It would however be contrary both to principle and to the case-law of the Court, to classify as an occupational disease an illness attributable to the performance of professional duties prior to the official's entry into service with the Communities. Such professional experience does not amount to the performance of duties with the Communities, even if it is experience from which the Communities can subsequently be said to have benefited.
22. I conclude therefore that the first ground of appeal should be upheld; the Court of First Instance erred in concluding that a causal connection did not have to be established between Mr Gill's illness, or its aggravation, and the performance of his duties with the Commission.
The second ground of appeal
23. As I have already mentioned, the Court of First Instance also held that, even if it were necessary to establish a causal connection between Mr Gill's disease, or its aggravation, and his service with the Commission, such a connection could be found to exist in the circumstances of the present case. It is therefore necessary to consider the Commission's second ground of appeal, according to which the Court of First Instance was mistaken in deciding, contrary to the opinion of the Invalidity Committee, that a causal link of the required kind had been sufficiently established.
24. As the Commission points out, the question whether such a link has been established is a matter of fact which can only be decided by the Invalidity Committee. A distinction must be drawn here between questions of medical fact and issues of legal appraisal. Thus, as we have already seen, the question whether the activities giving rise to a disease fell within the scope of the official's duties, as opposed to being conduct inconsistent with them, would be a question of law to be decided by the appointing authority: see Case 76/84 Rienzi, cited above in paragraph 6. Such an issue of legal classification does not however arise in the present case, since it is not disputed that Mr Gill's underground descents during his period of service were made in the course of the performance of his duties with the Commission. Contrary to the submission made by Mr Gill in his response, it is only where such an issue of legal appraisal is at stake that the question whether an illness is an occupational disease becomes a question to be decided by the appointing authority, rather than a question of medical fact to be decided by the Invalidity Committee.
25. The principle that questions of causality are issues of medical fact to be decided by the Invalidity Committee is clear from the Court's judgments in Case 257/81 K. v Council, cited above at paragraph 13, and Case 76/84 Rienzi. It should be noted, furthermore, that the organization and appointment of invalidity committees for the purposes of Article 78 of the Regulations are similar to those of medical committees for the purposes of Article 73. Thus, in both cases care is taken to ensure the balance and objectivity of the committees in question (compare Articles 7 to 9 of Annex II to the Regulations with Article 23 of the Insurance Rules). As the Court observed, in relation to decisions under Article 73, in Case 265/83 Suss v Commission [1984] ECR 4029, at paragraph 11 of the judgment:
26. Nor does it seem to me that, as the Court of First Instance appears to argue in paragraph 24 of its judgment, the Commission must, in the peculiar circumstances of the present case, be presumed to have accepted responsibility for the risk that Mr Gill's illness would lead to his eventual incapacity to work.
27. It cannot of course be disputed that, in appointing an official, the appointing institution accepts the risk that he might one day claim an invalidity pension calculated according to one of the two bases laid down in Article 78 of the Regulations. The Commission has not however sought to deny such liability in respect of Mr Gill; and nor did it make use of the option given by Article 1(1) of Annex VIII to the Regulations, which at the time of Mr Gill's appointment would have allowed it to defer for five years his admission to certain benefits.
28. It seems to me, however, that the onlyliability which the Commission can be said to have accepted was a liability to pay whatever benefits were properly due under the Regulations. Contrary to the view of the Court of First Instance, neither the presence of a preexisting condition diagnosed at the time of Mr Gill's entry into service, nor (as I have already argued) the fact that the Commission benefited from a period of prior professional experience which had contributed to that condition, would be sufficient in themselves to make the aggravation of Mr Gill's illness an Occupational disease' for the purposes of Article 78.
29. I reach the conclusion, therefore, that neither of the reasons given by the Court of First Instance for annulling the Commission's decision of 20 May 1988 is valid. Accordingly, it is not necessary to consider the third and fourth grounds of appeal.
Other issues
30. Having reached the conclusion that the Commission's appeal must succeed, I must now consider the consequences. Article 54, first paragraph, of the Statute of the Court (EEC) provides as follows:
31. It seems to me therefore that, on an appeal from the Court of First Instance, a respondent must be entitled, in his response, to raise an issue which was raised before, but not addressed by the Court of First Instance, and which might, if it had been addressed, have resulted in a decision in the respondent's favour. In other words, a respondent should be entitled to contend, not only that the decision of the Court of First Instance which is challenged by the appellant should stand, but also that, in the alternative, the Court of Justice should decide in the respondent's favour on one or more alternative grounds on which the respondent had relied before the Court of First Instance. Such a course is, in my view, open to a respondent under Articles 115 and 116 of the Rules of Procedure, even though no express provision is made for that possibility, as might have been expected, under Article 117(2) of those Rules. The view that the Court of Justice may consider grounds other than those upon which the Court of First Instance based its judgment is supported by the fact that the Court of Justice will have the entire case file at its disposal; see Article 111(2) of the Rules.
32. Such a possibility must also, in my view, be allowed to the respondent in the interest of procedural economy. Otherwise, if the risk of injustice is to be avoided, it would be necessary for the case to be referred back to the Court of First Instance, for further proceedings to take place there and further costs to be incurred — not to mention the risk of a further appeal and, if other grounds had to be considered, for the entire process to be repeated yet again.
33. However, the jurisdiction of the Court of Justice, on appeals from the Court of First Instance, is limited to points of law; indeed, the provision for referring questions back to the Court of First Instance can be understood as concerning cases where further findings of fact are necessary. It seems to me therefore that in general it would be helpful if the Court of First Instance, when giving judgment on one ground in favour of an applicant, were to make the necessary findings of fact relevant to any other grounds on which the applicant has relied and on which, in the event of an appeal, he might seek to rely as respondent.
34. In the present case, it seems to me that the only point of substance on which the respondent might have sought to rely in the alternative, in the proceedings on the appeal, is that the decision of the Invalidity Committee was itself vitiated by defects rendering it invalid. Even though the respondent has not raised that issue in his response, I take the view that the Court can properly consider it, since no further findings of fact are necessary and since it can be regarded as a point which it is necessary for the Court to consider with a view to deciding, in accordance with Article 54 of the Statute, whether to give final judgment or to refer the case back to the Court of First Instance. Moreover the report of the Invalidity Committee is annexed to the response and has therefore been put before the Court.
35. Again, the alternative courses might have the effect of penalizing the respondent, either by giving final judgment without addressing a relevant issue, or by referring the case back to the Court of First Instance, thus causing the parties to incur additional costs and delay. The respondent should not be penalized for failing to raise in his response points previously raised in his application but not considered by the Court of First Instance, especially if it is borne in mind that this is one of the first appeals to have been brought, that the scope of the appellate jurisdiction of this Court is still uncertain and that there is no express provision in the Rules of Procedure governing the matter. It should be noted that Mr Gill did in fact raise the issue of the validity of the Committee's report before the Court of First Instance, arguing both that the mandate given to the Invalidity Committee was imprecise and incorrect, and that the Committee's report was based on insufficient reasoning (see paragraph 16 of the judgment of the Court of First Instance).
36. Accordingly it is necessary to consider whether the report of the Invalidity Committee was itself vitiated by either of those defects. Such defects would arise where, as a result of the mandate given to it, the Committee addressed itself to the wrong issues; or where the Committee adopted an erroneous view of the concept of occupational disease, or if its report did not establish a comprehensible link between the medical findings which it contains and the conclusions which it draws (Case 277/84 Jänsch v Commission [1987] ECR 4923, paragraph 15 of the judgment); or if the report contained no reasons enabling the reader to assess the considerations on which [its] conclusion was based (Case 257/81 K. v Council, cited above in paragraph 13, paragraph 17 of the judgment).
37. It is noteworthy that those matters are not addressed by the Court of First Instance in its judgment, and are not relied upon by the respondent or the intervening party in their pleadings before the Court of Justice. It is clear, none the less, that the validity of the Invalidity Committee's report is central to this case. As I have already observed, the question whether Mr Gill is suffering from an occupational disease involves an assessment of medical fact, and that assessment must be made by a properly constituted invalidity committee. Moreover, if the conclusions of the report of 31 March 1987 cannot be accepted, the result must be that the matter is to be referred again to an invalidity committee, so that the Commission can take a fresh decision based upon the conclusions of the latter: see Case 257/81 K. v Council, cited above in paragraph 13, at paragraph 20 of the judgment.
38. I turn therefore to the Committee's report. According to that report, the mandate given to it was in the following terms, namely to se prononcer sur l'existence éventuelle d'une maladie professionelle et, dans l'affirmative, sur son rapport avec les fonctions que M. Gill a exercées aux Communautés, à l'exclusion de ses états de service antérieurs. While it is true that those terms are somewhat lacking in clarity and precision (in particular, the Committee could not decide whether an illness was an occupational disease without first enquiring into its relationship with the duties performed), they do not in the event appear to have prevented the Committee from addressing the relevant issues. Thus, it is clear from its report that the Committee addressed itself exclusively to questions of medical fact (see page 1 of the report), and in particular to the issue of whether a relationship of cause and effect existed between Mr Gill's incapacity to work and the performance of his duties between 1974 and 1981 (see its conclusions at page 3). As I have already mentioned, the Committee reached the conclusion that the aggravation of Mr Gill's disease was not attributable to his service with the Commission. As regards the reasons upon which its conclusions were based, it appears, from page 2 of the report, that the Committee examined and questioned Mr Gill, and considered, in particular, the development of his illness after 1981. The Committee thus took into account the fact that there had been no significant alteration in Mr Gill's condition after the date of his retirement.
39. It seems to me that the Committee, having examined Mr Gill and considered the history of his symptoms before, during and after his period of service with the Commission, was entitled to conclude, as a matter of medical fact, that Mr Gill's incapacity for work was attributable to his activities prior to 1974. Thus the Committee, addressing itself to the relevant issues, based its conclusions upon relevant considerations. Its reasons for drawing those conclusions can be gathered from the report, which accordingly enables the reader to assess the considerations upon which it is based. The Committee's reasoning could perhaps have been stated with greater clarity and in greater detail, but it does not seem to me that the report can be said to be invalid for want of sufficient reasoning. In the result, therefore, no objection can be taken to the validity of the report, and the Commission was consequently entitled to rely upon it in reaching its decision regarding Mr Gill's pension.
Conclusion
40. I conclude that the Commission's appeal against the judgment of the Court of First Instance should be allowed, and the decision of the Court of First Instance quashed in accordance with Article 54 of the Statute. In view of Articles 70 and 122 of the Rules of Procedure, the parties should bear their own costs, including the costs before the Court of First Instance. The Union Syndicale-Luxembourg, which intervened in support of Mr Gill's submissions, should also bear its own costs.
1 Original language: English.