Report for the Hearing in Case C-244/91 P

I — Facts and procedure before the Court of First Instance

It follows from the judgment of the Court of First Instance of 12 July 1991 in Case T-110/89 Giorgio Pincherle v Commission [1991] ECR II-635 that:

It was in those circumstances that Mr Pincherle lodged an action whereby he claimed that the Court of First Instance should:

The Commission contended that the Court should:

In support of his action before the Court, Mr Pincherle put forward two pleas in law based on infringement of Article 72 of the Staff Regulations and breach of the general principle of nondiscrimination inherent, according to Mr Pincherle, in the provisions of Title V of the Staff Regulations.

In regard to the first plea in law, the Court observed:

As regards the second plea in law, the Court of First Instance observed:

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

By a document lodged at the Registry of the Court of Justice on 20 September 1991 Mr Pincherle brought an appeal against the abovementioned judgment of the Court of First Instance, which had been served on him on 19 July 1991, on the ground that the judgment had been adopted in breach of Community law.

Mr Pincherle claims that the Court of Justice should:

The Commission contends that the Court should:

In its rejoinder the Commission also asked the Court to exclude the Unione Sindicale Euratom Ispra, the Sindacato Ricerca della Confederazione Generale Italiana del Lavoro, the Sindacato Ricerca dell'Unione Italiana del Lavoro and the Sindacato Ricerca della Confederazione Italiana Sindacati Liberi from the appeal procedure or, in the alternative, to rule on the application for leave to intervene submitted by them in their alleged response.

The Unione Sindicale Euratom Ispra, the Sindacato Ricerca della Confederazione Generale Italiana del Lavoro, the Sindacato Ricerca dell'Unione Italiana del Lavoro and the Sindacato Ricerca della Confederazione Italiana Sindacati Liberi ask the Court to set aside the judgment appealed against.

III — Legal framework

A — The Staff Regulations

Article 72 of the Staff Regulations of Officials of the European Communities provides:

B — The Insurance Rules

1. Article 8

Article 8 of the Rules on Sickness Insurance for Officials of the European Communities (the Insurance Rules) provides:

As regards Article 8(1), the Interpretation Sickness Insurance Rules provide as follows:

2. The annexes

Section 1 of Annex I lays down maximum limits of reimbursement for surgery visits to and home calls by doctors.

When the rules were revised in 1991 the provisions for the interpretation of that provision were revised. They now provide as follows:

Annex 3 lays down maximum limits for the reimbursement of the cost of dental treatment and dental prostheses.

As revised with effect from 1 January 1991, the interpretation provisions provide for various increased weightings for the reimbursement of dental treatment and certain fixed prostheses where the price and fees are expressed in Italian lire.

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

A — The appeal

(a) Article 72 of the Staff Regulations

First plea in law: misinterpretation of Article 72 of the Staff Regulations and Article 8 of the Insurance Rides in the present case; infringement of Article 72

This plea in law consists of two parts, one concerning Article 72 of the Staff Regulations and the other concerning Article 8 of the Insurance Rules.

(a) Article 72 of the Staff Regulations

The Court of First Instance settled points which were not raised before it

It will be recalled that in paragraph 27 of the judgment the Court of First Instance considered that the upper limits fixed in the annexes to the Insurance Rules could not be considered unlawful or unjust because the reimbursements appearing on Statements of payment Nos 71 and 72 ... were mostly (in 15 out of 20 cases) effected at a rate of 80% or 85%.

Mr Pmcherle considers that in making that finding the Court of First Instance settled a point which was not raised before it. In order to determine whether the upper limits in issue were compatible with Article 72 of the Staff Regulations the Court took into consideration reimbursements other than those challenged by the appellant, which were limited to a surgery visit to a specialist reimbursed at the rate of 38%, a home visit by a specialist reimbursed at the rate of 43%, two surgery visits to a specialist reimbursed at the rale of 29% and dental treatment reimbursed at the rate of 58%. The other reimbursements taken into account by the Court appeared by chance in the statements of payment produced before it.

The Commission considers that that plea is inadmissible. Contrary to what the appellant would have the Court believe, the criticism does not relate to a procedural defect but seeks to reopen the examination of the facts carried out by the Court of First Instance.

In the alternative, the Commission considers that the plea is unfounded. By finding that in fact the application of the statutory maximum rates resulted in reimbursements lower than the maximum limit provided for in Article 72 in only five cases out of 20 the Court of First Instance did not settle a point which was not raised before it. In that regard, the Commission observes that in paragraph 22 of the judgment the Court stated that the reimbursements contested in the present case ... range from 29% to 66% of the expenses incurred. That statement clearly shows that the Court had in mind only the reimbursements contested by Mr Pincherle.

The Court of First Instance did not comply with Article 72 of the Staff Regulations

As strictly concerns the reimbursements contested in his application, Mr Pincherle considers that the findings of the Court of First Instance are not compatible with Article 72 of the Staff Regulations: the application of maximum rates which lead to reimbursements of 29%, 38%, 43%, 63% and 66% cannot be regarded as consistent with the principle of social insurance cover set forth in Article 72 of the Staff Regulations.

The Commission considers that this plea, too, is inadmissible. In that line of argument, the appellant does not dispute the Court of First Instance's interpretation of Article 72 or the lawfulness of the implementing provisions adopted by the institutions: in reality he is asking the Court of Justice to reconsider whether the rates of reimbursement in question are compatible with Article 72. Since this plea relates not to point of law but to the Court of First Instance's assessment of the facts, it cannot be examined in the context of this appeal.

Furthermore, the Commission observes in its rejoinder that Statement No 71 of 8 June 1988, on which appears the reimbursement obtained at the rate of 38%, was excluded from the proceedings before the Court of First Instance. That fact provides a second reason for declaring the plea inadmissible in so far as it refers to that reimbursement.

As regards the substance of the plea, the Commission supports the reasoning of the Court of First Instance according to which the rates of 80% and 85% mentioned in Article 72 of the Staff Regulations, only fix maximum limits for reimbursement (paragraph 25) and the fixing of upper limits in the implementing provisions is justified by the need to safeguard the scheme's financial balance (paragraph 26). In regard to the first of these points, the Commission further states that the Court of First Instance's interpretation was already apparent from the judgment in Case 155/83 Ooms v Commission [1984] ECR 2613.

(b) Article 8 of the Insurance Rules

In paragraph 30 of the judgment the Court of First Instance held that it (was) not open to the applicant ... to plead the unlawfulness of Article 8 of the Insurance Rules because the applicant (had) not (sought) the benefit of the provisions of Article 8.

In the alternative, the Court of First Instance considered in paragraph 31 that Article 8(1) was applicable to Member States of the Community.

In order to challenge that part of the decision, Mr Pincherle observes first of all that he never asked the Court of First Instance to declare that Article 8(1) of the Insurance Rules was unlawful. His sole intention in invoking that provision was to state that it did not allow him to be granted a special reimbursement to supplement the maximum Ievels which he requested the Court of First Instance to declare inadequate.

Mr Pincherle goes on to challenge two aspects of the Court of First Instance's interpretation of Article 8(1).

First, he considers that the countries of Europe are excluded from the scope of that provision. While he concedes that the provisions for the interpretation of Article 8 provide only that those countries are to be excluded in principle, he states that the subsequent list of the various countries in which medical services can lead to a special reimbursement does not mention any European country.

In Mr Pincherle's view his proposed interpretation is corroborated by the fact that Article 8(1) has never been applied in respect of medical fees incurred in Europe. In that regard, he maintains that, contrary to what the Court of First Instance asserts in paragraph 31 of the judgment, the revaluation of the upper limits on 1 January 1991 is a measure of general scope which has no connection with individual decisions adopted in pursuance of Article 8 of the Insurance Rules.

Secondly, Mr Pincherle disputes the Court of First Instance's finding that the application of Article 8(1) of the Insurance Rules is conditional upon a request by the person concerned. In support of his position, Mr Pincherle claims that the special reimbursements provided for in Article 8(2) are effected by the Commission on its own initiative where it considers that the subjective conditions laid down by that provision are met.

The Commission asks the Court to declare the plea inadmissible on the ground that it seeks to obtain a declaration that a provision which, by his own admission, can be of no assistance to him is inapplicable. In other words, by this plea the appellant is challenging the decision of the Court of First Instance on a point which does not adversely affect his interests.

In the alternative, the Commission approves the Court of First Instance's interpretation of Article 8(1) of the Insurance Rules. It agrees with that Court that the application of Article 8(1) may be extended to the countries of Europe but that it is conditional upon a request being submitted by the individual concerned.

On the first point, the Commission objects first of all that Mr Pincherle has not established that Article 8(1) had never been applied in respect of services provided in Europe and that even if he had done so that would not confirm his interpretation of Article 8.

The Commission then claims that in any event such an argument must be rejected in the context of the present appeal because it relates to elements of fact and not to the interpretation of Article 8.

Similarly, the Commission states, in relation to the second point, that the appellant has not shown that the Commission had effected the special reimbursements provided for in Article 8(2) on its own initiative, and notes that in any event the wording of Article 8(5) clearly makes the reimbursement of the services conditional on a request by the person concerned.

(a) The Court of First Instance took into consideration factors extraneous to the case

Second plea in law: irrelevance of the adaptations effected subsequent to the facts at issue in the present case; failure to take account of essential evidence; breach of the principle of non-discrimination

Referring to the opinions of the Management Committee of the Joint Scheme of 23 February 1989 and 20 December 1990 and also to the revision of the rules which came into effect on 1 January 1991 (paragraph 41 of the judgment), the Court of First Instance considered that the institutions ... [had] demonstrated the necessary diligence (paragraph 42).

On that point, Mr Pincherle criticizes the Court of First Instance, first for having taken into consideration factors extraneous to the case and, secondly, for not taking into account evidence which he had supplied. Those procedural defects might be sanctioned by the Court called upon to determine only points of law.

(a) The Court of First Instance took into consideration factors extraneous to the case

Mr Pincherle observes that the revision of the rules, which entered into force on 1 January 1991, or two years after the services in issue, does not concern the present case.

Supported by the interveners, he further observes that that revision, in so far as it provides for a revaluation of the maximum rates fixed for surgery visits to specialists and dental treatment, proves that he is right: if the maximum rates were amended in 1991, it follows that prior to that date they were not consistent with the principle of nondiscrimination.

Once again, the Commission considers that this plea is inadmissible. Since it does not relate to the Court of First Instance's analysis in paragraphs 35 to 40 of the judgment, it must be regarded as relating solely to the facts.

In the alternative, the Commission states that it agrees with the Court of First Instance's analysis in the abovementioned paragraphs of the judgment and asks that this plea be held to be unfounded.

(b) The Court of First Instance did not take account of evidence adduced by the applicant

Mr Pincherle observes that, in assessing the diligence with which the Commission had acted, the Court of First Instance omitted to consider a number of documents which he had supplied to it: two reports of the Management Committee of the Sickness Fund of 30 June 1987 and 30 June 1988 and a report of the Local Staff Committee at Ispra of 3 June 1983.

The first two documents show that in 1987 the situation was one of total disparity. To take only one example, it follows from the tables attached to the first report that the impugned maximum rates compensated for specialist consultation fees in 321 cases out of 1000 in Italy compared with 693 in Belgium, 962 in Germany and 983 in Luxembourg. Given the urgency of the situation, the period of four years required to revise the rules must be regarded as excessive.

As regards the report of the Ispra Local Staff Committee, it already showed, on the basis of evidence gathered in 1982, and therefore 10 years before the rules were revised, that the reimbursements granted for services provided in Italy had not been adapted and criticized the resulting discrimination for members of the staff of the Community institutions. That report was produced, at the request of the Court of First Instance, at the close of the oral procedure before that Court.

Lastly, Mr Pincherle observes that in Case 158/79 Roumengous Carpentier v Commission [1982] ECR 4379 and [1985] ECR 39 the Court of Justice has already sanctioned the Commission's delay in adjusting pecuniary benefits. In that case the time-lag before the administration acted was not as long as in the present case.

Mr Pincherle further observes that in Case 7/87 Commission v Council [1988] ECR 3401 the Court of Justice also required that regulations establishing weightings, based as in the present case on previous inquiries and by the principle of equality of treatment, be made retroactive.

The Commission asks the Court to declare the plea inadmissible. The appellant does not dispute either the analysis or the reasoning of the Court of First Instance in paragraphs 39, 40 and 41, but attempts, by relying on facts which he considers more useful in his case, to reopen the discussion concerning the figures and the way in which they were used.

The Commission considers, in the alternative, that the plea is unfounded.

First of all, it states that the report of the Ispra Local Staff Committee on which the appellant relies was not issued by the institution in question and that it was produced for the first time at the hearing, without any warning to the Commission or any justification for the delay. Since, given its date, it does not take account of the amendments of the maximum rates between 1983 and 1987 it cannot be taken into account for the purpose of assessing the appellant's position.

The Commission refers to Opinions Nos 3/83 and 35/90, which show that the revision of the maximum rates of reimbursement in 1983 had eliminated any discrimination in the rates of reimbursement and that it was only in 1988 and 1990 that differences reappeared.

The Commission further states that even if it were decided that the administration reacted too late, Mr Pincherle could not obtain compensation for the damage sustained since he did not request the application of the Insurance Rules. On that point the Commission refers to the judgment of the Court of First Instance in Case T-42/90 Barassi v Commission [1992] ECR II-181.

The Commission then agrees with the Court of First Instance's assessment that in adapting the maximum rates it was necessary to proceed in stages in order to guarantee the financial balance of the scheme and also to increase the contributions paid by officials and the institutions. The need to act progressively was again illustrated recently by the adoption by all the institutions of new amendments of the Rules of the Joint Sickness Insurance Schemes. Those amendments, which are at the draft stage, are annexed to the Commission's submissions to the Court.

Lastly, the Commission agrees with the Court of First Instance that the revision which came into force on 1 January 1991 cannot have retroactive effect. In that regard, it argues that the case-law cited by Mr Pincherle concerns another situation, namely the application of weightings to the remuneration of officials provided for in Articles 64 and 65 of the Staff Regulations. Those provisions seek to establish equivalence of purchasing power for officials irrespective of the place to which they are posted and is therefore based on the principle of retroactivity.

Lastly, the interveners claim that various officials of the Commission serving in Italy have lodged administrative complaints against various reimbursements of medical expenses incurred in that country. From the time this action was brought, those officials were requested not to bring judicial proceedings and the Commission undertook to apply the Pincherle judgment to them.

B — The intervention

In the present case the Unione Sindicale Euratom Ispra, the Sindacato Ricerca della Confederazione Generale Italiana del Lavoro, the Sindacato Ricerca dell'Unione Italiana del Lavoro and the Sindacato Ricerca della Confederazione Italiana Sindacati Liberi lodged a response before the Court.

The Commission infers from the fact that the Registry accepted that response that it interpreted Article 115(1) of the Rules of Procedure, which provides that [a] ny party to the proceedings before the Court of First Instance may lodge a response within two months after service on him of notice of the appeal, as applying to the interveners before the Court of First Instance. It follows that the interveners automatically become parties to the appeal and that they can submit both a response and a rejoinder to the Court.

The Commission disputes that interpretation and asks the Court to exclude the abovementioned trade unions from the appeal procedure or, in the alternative, to rule on the application for leave to intervene implicit in the response.

That position is based on three grounds. First of all, the interpretation in question is not well-founded in law. Secondly, its application would lead to results which were not adapted to the situation of individuals who have intervened at first instance. Finally, it leaves the parties in the main proceedings open to unjustified intervention.

1. The interpretation is not well founded in law

According to the Commission, the disputed interpretation of Article 115(1) of the Rules of Procedure might well lead to situations contrary to Article 37 of the Protocol on the Statute of the Court of Justice, a superior rule of law which requires that an intervener must establish an interest in the result of the case. The fact that an individual was allowed to intervene before the Court of First Instance docs not mean that he necessarily has an interest in intervening before the Court of Justice. It may be that an interest found to exist by the Court of First Instance concerned only questions of fact, which arc not susceptible to review by the Court of Justice, or aspects of the case which do not form the subject-matter of the appeal.

The Commission observes that that risk could easily be eliminated.

First of all, Article 115(1) should be interpreted as applying only to the main parties to the proceedings before the Court of First Instance. The use in that provision of the expression any party rather than the opposing party would then be justified by the fact that those drafting the Rules of Procedure intended that, where the appeal is lodged by the intervener at first instance in accordance with the second paragraph of Article 49 of the Statute both the applicant and the defendant at first instance would be allowed to lodge a response before the Court.

Secondly, Article 123 of the Rules of Procedure might be interpreted as also applying to third parties who intervened at first instance. According to that provision, [a] n application to intervene made to the Court in appeal proceedings shall be lodged before the expiry of a period of three months running from the date on which the appeal was lodged. The Court shall, after hearing the Advocate-General, give its decision in the form of an order on whether or not the intervention is allowed.

2. The broad interpretation of Article 115(1) would lead to results which were not adapted to the situation of individuals who intervened at first instance

The Commission considers that the broad interpretation of Article 115(1) adopted by the Registry has the effect of distorting the procedural rules on intervention: a third party intervening at first instance would automatically be allowed to intervene before the Court of Justice although he would have to show a special interest in order to bring an appeal against the judgment of the Court of First Instance. It will be recalled that the second paragraph of Article 49 of the Protocol on the Statute of the Court of Justice provides that interveners other than the Member States and the Community institutions may bring an appeal only where the decision of the Court of First Instance directly affects them.

Another consequence of the contested interpretation is that an intervener would be able to present both a response and a rejoinder before the Court of Justice although, according to Article 93(4) and (5) of the Rules of Procedure, an intervener must accept the case as he finds it at the time of his intervention and can present only a single statement in writing in support of the submissions of one of the parties. That exchange of statements would create an artificial dialogue between the appellant and the intervener, even if the intervener has intervened in support of the appellant. The situation would be particularly paradoxical where they are both represented by the same lawyer.

3. The contested interpretation leaves the parties in the main proceedings open to unjustified intervention

If the interveners at first instance were automatically allowed to intervene before the Court of Justice, the main parties would be subjected to unwarranted, or even vexatious, intervention without being able to object and without the Court being able to ascertain the existence of an interest in intervening. The interveners might thus present arguments susceptible of influencing the final decision to the detriment of one of the main parties. What is more, if that party should be unsuccessful it might in appropriate circumstances be ordered to pay the intervener's costs.

1 Language of the case: Italian.