Repon of the Judge-Rapporteur in Case C-185/90 P

I — Facts and procedure before the Court of First Instance

It emerges from the judgment of the Court of First Instance of 6 April 1990 in Case T-43/89 Gill v Commission [1990] ECR II-173 that:

Those were the circumstances in which Mr GUĻ on 18 August 1988, brought an action in which he claimed that the Court of First Instance should:

The Commission contended that the Court of First Instance should:

In support of his claims, the applicant submitted that:

The Court of First Instance stated in the contested judgment that:

II — Subject matter and forms of order sought in the appeal

By a document lodged at the Court Registry on 7 June 1990 the Commission of the European Communities, which was notified of the abovementioned judgment of the Court of First Instance on 9 April 1990, brought an appeal against that judgment, on the ground that it infringed Community law.

The Commission claims that the Court should:

Mr Gill contends that the Court should :

By order of 21 November 1990, the Court allowed the Union Syndicale-Luxembourg to intervene in support of Mr Gill.

III — Summary of the pleas in law and arguments of the parties

In support of the appeal, the Commission relies on four submissions alleging respectively infringement of the second paragraph of Article 78 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the Staff Regulations), infringement of Article 13 of Annex VIII to the Staff Regulations, infringement of the general principle that judgments must state the reasoning on which they are based and infringement of Article 73 of the Staff Regulations and Articles 3 and 19 of the Rules on the Occupational Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease (hereinafter referred to as the Insurance Rules).

A — Infringement of the second paragraph of Article 78 of the Staff Regulations

1. This plea of the Commission is expressed in two branches, the first of which refers to the infringement by the Court of First Instance of the legal concept of occupational disease within the meaning of Article 3 of the Insurance Rules, the second being concerned with that court's failure to take proper account of the causal link which must exist between the occupational disease or its aggravation and the duties carried out in the service of the Communities.

2. (a) With regard to the first branch of the plea, Mr Gill contends that it not permissible to refer, for the requirements of the application of Article 78 of the Staff Regulations, to the definition of the concept of occupational disease contained in Article 3 of the Insurance Rules. It follows from the case-law that the Insurance Rules were adopted to give effect to Article 73 of the Staff Regulations, but do not concern Article 78 of those Staff Regulations (judgment in K. v Council, above, paragraph 10) and that the benefits provided under those two provisions are different and mutually independent (judgment in B. v Parliament, above). Moreover, in his Opinion in K. v Council, above, Advocate General Sir Gordon Slynn stated, that, unlike Article 73, which refers expressly to rules drawn up by common agreement of the Institutions, Article 78 refers only to Articles 13 to 16 of Annex VIII. Similarly, that argument is confirmed by Article 25 of the Insurance Rules, which provides that recognition of invalidity pursuant to Article 73 of the Staff Regulations shall in no way prejudice application of Article 78. Mr Gill adds that, while Article 73 of the Staff Regulations is intended to ensure that cover is provided in respect of risks created by the performance of duties and to grant entitlement to compensation in the event of harm suffered while performing them, Article 78 is concerned only with determining a state of incapacity for work and entitlement to a pension. The existence of an occupational disease is relevant only in so far as it provides a higher rate of pension where it is established that a pension is in any event payable. Occupational disease, which is merely one factor governing the application of Article 78, is an essential basis of Article 73 (see the Opinion of Mr Advocate General Darmon in Case 242/85 Geist v Commission [1987] ECR 2181). (b) As regards the second branch of the plea, Mr Gill disputes the Commission's point of view that the application of the second paragraph of Article 78 depends on proof of the existence of a causal link between the disease and the duties performed. Mr Gill argues that, even if the Commission's argument is to be accepted, the purpose of Anicie 78 of the Staff Regulations is to avoid benefits which are unjustified and, accordingly, to exclude from the scope of the second paragraph of that provision only events which occurred prior to the official's entry into the service (judgment in Vellozziv Commission, above).

3. (a) The Union Syndicale-Luxembourg (hereinafter referred to as the Union) refers to the arguments developed by Mr Gill concerning the first branch of the plea. (b) The Union takes the view that the second branch of the plea must be dismissed as inadmissible, in that paragraph 22 et seq. of the judgment appealed against are devoted to an appraisal of the facts, which is not susceptible of review by the Court of Justice in an appeal to it.

B — Infringement of Article 13 of Annex VIII to the Staff Regulations

1. By this plea, the Commission objects that the Court of First Instance infringed Article 13 of Annex VIII to the Staff Regulations by ruling that Mr Gill satisfied the conditions of the second paragraph of Article 78 of the Staff Regulations, despite the fact that the medical experts had agreed that there was a probable and sufficiently direct relationship of cause and effect between the applicant's illness and the work performed in the United Kingdom, whilst there was little likelihood of a causal link as regards the period when Mr Gill was an official of the Communities.

2. Mr Gill submits that there was no infringement of Article 13 of Annex VIII to the Staff Regulations, since, pursuant to that provision, the Invalidity Committee recognized that he was afflicted with a permanent invalidity, considered as total. On the other hand, it was for the Commission and not for the Invalidity Committee to pronounce, subject to review by the Court, on the occupational origin of that invalidity. In that respect, the Court of First Instance correctly made use of its power of review by annulling the Commission's decision refusing to apply to Mr Gill the second paragraph of Article 78 of the Staff Regulations and by also drawing all the legal consequences not only from the medical findings placed on the file but also from the other elements of fact and law in the case.

3. The Union supports the arguments put forward by Mr Gill with regard to the second plea.

C — Infringement of the general principle that judgments must state the reasoning on which they are based

1. The Commission complains that the Court of First Instance did not properly state the reasoning of its judgment and based it on considerations which are contradicted by the facts of the case.

2. Mr Gill emphasizes that the medical examination carried out prior to recruitment at the initiative of the institution is done with the aim of ensuring that the candidate meets the conditions of physical fitness required for the performance of his duties. In the event of a negative medical opinion, the institution undeniably has the right to refuse to engage the candidate, by means of a reasoned decision, on the ground of physical unfitness.

3. The Union contends that the Court of First Instance rightly considered that the Commission was aware of the existence of Mr Gill's disease and must, therefore, bear the consequences of it.

D — Infringement of Article 73 of the Staff Regulations and of Articles 3 and 19 of the Insurance Rules

1. As part of the plea, the Commission contends that the Court of First Instance failed to take account of Article 73 of the Staff Regulations and Articles 3 and 19 of the Insurance Rules by deciding, in paragraph 26 of the judgment appealed against, that the aggravation of Mr Gill's disease arose in the course of or in connection with the performance of his duties in the service of the Communities.

2. Mr Gill points out that it follows from the wording of Article 3(2) of the Insurance Rules that any aggravation of a preexisting disease not appearing on the European List must be considered an occupational disease if it is sufficiently established that it arose in the course of or in connection with the performance of his duties with the Communities.

3. The Union begins by pointing out that the Court of First Instance was entitled to consider that Mr Gill's disease or its aggravation arose because of the work carried out with the Commission. Either the disease did not exist at the time he was engaged, in which case its onset can only be due to the performance of his duties with the Communities, or it was not diagnosed during the medical examination on engagement, in which case the Commission accepted responsibility. In the Union's view, the Court of First Instance could only base itself on the presumption that the Commission had observed its obligation to recruit only persons fulfilling the conditions of physical fitness, so that it was bound to consider that Mr Gill's invalidity was the necessary consequence of the performance of his duties with the Communities.

1 Language of the case: French.