OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 14 MARCH 1973 (*1)

Mr President,

Members of the Court,

I — The facts

Mrs Maria Noé-Dannwerth who entered the service of the European Parliament in February 1963 as a member of the auxiliary staff, was established several months later as a secretary shorthand typist in Grade C 3. She carried out her duties effectively and, it seems, satisfactorily for approximately three years. She was moreover promoted to Grade C 2 on 17 November 1966.

From 1967, however, she absented herself more and more frequently from duty owing to illness. Indeed, for more than 30 months, she proved to be incapable of carrying out her duties normally.

For this reason, on 4 August 1969, the Secretary General of the Parliament decided to refer her case to the Invalidity Committee with a view to receiving a report on the state of health of this official and obtaining an assessment as to whether she was or was not capable of exercising her duties.

This Committee held that the osteo-articular complaint from which it found Mrs Noé to be suffering could not, in the absence of other organic complaints, justify a proposal for early retirement; on 29 December 1969 it delivered the unanimous opinion of its members, including the doctor appointed by the applicant, to the effect that Mrs Noé was not suffering from any permanent invalidity of such a nature as to prevent her from carrying out her duties as secretary shorthand typist.

In view of these conclusions, the Administration, by a letter dated 26 January 1970, invited Mrs Noé to resume work. She refused, disputing the report of the Invalidity Committee and asking for a fresh examination by a German University Clinic. The Parliament rejected this application and confirmed its decision, giving Mrs Noé notice expiring on 2 February 1970 to resume her duties, failing this she would be declared to be absent without authorization and the provisions of Article 60 of the Staff Regulations of Officials which provides in such a case for the loss of right to remuneration would be applied to her. This warning had no effect.

The party concerned, persisting in asserting that she was completely unable to work, sent the Parliament, on 2 February, a certificate from her doctor, Dr Marx-Molitor, certifying that she was still not in a condition to resume her duties.

The Administration, accepting as final the opinion of the Invalidity Committee, refused to consider this document and specified that, thenceforward, it would no longer accept any fresh medical certificates referring to the same ailment. Finally it confirmed its intention of suspending the remuneration of Mrs Noé if, on 26 February, she had not returned to her post.

At that date, however, the applicant who had gone to Cologne, sent the Parliament a certificate issued by a Dr Remmlinger recording incapacity for duty for fifteen days owing to influenza. On those grounds she requested authorization to remain at Cologne until the end of that illness. This authorization was refused; on the contrary, she was invited to return to Luxembourg; nevertheless, the Administration agreed that, for the duration of the temporary illness affecting her, the suspension of salary of which she had been notified would not be put into effect.

On 16 March, that is to say after the end of the period of temporary incapacity specified by Dr Remmlinger, Mrs Noé gave an assurance of her good-will and declared that she was determined to resume her duties as soon as she was in a condition to do so, but nothing of the kind occurred.

Dr Dennewald, medical officer to the European Parliament, requested the Chief Medical Officer of the City of Cologne to arrange for the applicant to be examined and it was then learned that she had returned to Luxembourg before this examination could take place. Nevertheless she did not return to work.

However, she underwent a fresh check-up by the medical officer to the Parliament who found, on 16 April 1970 that she had not completely recovered, but he gave the opinion that as from 1 May her state of health would be compatible with light but not fatiguing work.

In fact the applicant presented herself for duty on the first working day following that date, that is 4 May; her resumption of duties was very brief as from the following day onwards she did not appear again, and did not take the trouble to give reasons for her fresh absence.

On 15 May the Administration again asked her to explain her conduct, but in vain.

It was not until 7 June that Mrs Noé, replying to a fresh formal notice to resume her duties, declared herself to be incapable of carrying out even light office work. She further requested leave of absence for four days with a view to going to Cologne to consult a specialist doctor.

It was then that, by a letter dated 18 June 1970, the Director General of Administration of the European Parliament, notifying her of the rejection of this request, informed her that the four days from 8 to 12 June would be automatically counted against her annual leave which would thus be exhausted on 13 June, and that accordingly, as from Monday 15 June and for the duration of her absence, she would forfeit her remuneration.

In fact, even before the receipt of this letter, the applicant had left Luxembourg, not for Cologne, as she had declared was her intention, but for Spain. She was received by her family near Madrid and it was from Madrid that, on 16 June, her sister-in-law informed the Parliament that Mrs Noé — once again ill, but this time affected by depressive troubles — would continue to stay with her parents until her recovery.

On receipt of this information, the Administration of the Parliament invited the applicant, by telegram on 22 June, to attend for medical examination in Luxembourg.

She failed to comply with this instruction. She sent a proposal for a medical examination by consultant doctors of the German Embassy at Madrid.

The Parliament then confirmed, on 9 July, that it considered Mrs Noé to be absent without authorization under the provisions of Article 60 of the Regulations and that, accordingly, her remuneration would be suspended until she had remedied her situation, as she had already been informed by the Director General of Administration.

From that moment the Administration adhered to this attitude. Neither the protests of Mrs Noé, nor her requests for payment of salary, nor the medical certificates which she sent in, caused it to change its mind.

It was only in the following autumn that Mrs Noé, having returned to Luxembourg, agreed to undergo the medical examination which Dr Dennewald had been instructed to carry out. After calling in another practitioner for consultation, the medical officer concluded that the party concerned was affected by partial disability amounting to 30 % and that she could carry out light office work. This new examination therefore confirmed, in substance, the assessment which he had made six months earlier in respect of the state of health and capacity for work of the applicant who was therefore informed on 18 November by the Administration that her situation would be regularized only provided that she resumed work.

This she refused to do, persisting for her part in denying that she was capable of any occupational activity. She supported her statement by sending the Parliament, on 3 February 1971, two medical certificates: one of 12 December 1970 from Dr Collier declaring her for an indefinite period to be completely unfit; the second, signed by Dr Schumacher on 6 January 1971, certifying a partial incapacity of 60 %.

More than one year had thus elapsed since the opinion given by the Invalidity Committee which had met in 1969. The administration and Mrs Noé, set in their diametrically opposed positions, had reached an apparent deadlock. A way out of this situation had to be found.

The Director-General of Administration of the Parliament decided to propose submitting the applicant's case for a second time to the Invalidity Committee on the basis of the last two medical certificates which she had produced.

The first steps in the matter were taken on 11 April 1971. Difficulties arose as to the choice of one of the members, but the Committee was in the end properly set up and, on 6 September 1971, after a clinical examination and in the light of the medical documents contained in the file, the Committee declared Mrs Noé-Dannwerth to be suffering from total permanent invalidity.

By a decision of 17 September next, adopted on the basis of this finding the Secretary-General of the Parliament granted the applicant an invalidity pension with effect from October 1971 that is, in accordance with Article 14 of Annex VIII to the Regulations, from the first day of the calendar month following recognition of her invalidity.

This situation was notified to the applicant on 11 October. On that occasion the Administration informed her that it acknowledged her entitlement to remuneration as from 6 September 1971, the date on which the Invalidity Committee had given its decision, to 1 October next following, the date of her retirement on grounds of invalidity.

She was also informed that, in accordance with Article 8 of Annex II to the Regulations, she would have to bear that portion of the fees due to Dr Schumacher (the doctor from Cologne appointed by Mrs Noé to sit on the Invalidity Committtee) which exceeded the amount of the fees fixed for the two other doctors from Luxembourg, who were members of that Committee.

Finally by a letter dated 22 October 1971, the Administration admitted that, insofar as the right to remuneration was concerned, the situation of the applicant must be considered as regularized retroactively as from 12 December 1970, the date of the certificate produced by her from Dr Collier declaring her totally unfit for work, since this certificate had not been disputed by the Administration. Thus, Mrs Noé was finally deprived of her remuneration only for the period from 15 June to 12 December 1970.

Nevertheless, she considered herself aggrieved and, on 7 December 1971, claimed from the Director-General of Administration.

first, restitution of the remuneration relating to that period of suspension,

secondly, reimbursement of the medical expenses incurred during the same period,

finally, acceptance by the Administration of responsibility for the whole of the fees due to Dr Schumacher.

These three claims were rejected on 7 January 1972 by the Director-General of Administration.

On 23 March, that is, less than three months later, Mrs Noé's lawyer sent the Director-General a letter in which, referring to his client's first two claims, he expressly requested him to reconsider his decision regarding both the payment of the remuneration which he asserted was legally due to his client as from 15 June 1970 and also the right to reimbursement of medical expenses incurred.

He added that, by virtue of Article 76 of the Regulations, Mrs Noé should have benefited from assistance from the Administration, the expenses incurred as a result of her illness having substantially exceeded her financial resources.

The Director-General of Administration replied on 19 May 1972 that, in this intervention, he had found no new factor permitting him to alter his letter of 7 January. Furthermore he drew Mr Biel's attention to the fact that the decision relating to suspension of the applicant's remuneration dated from 18 June 1970.

II — Discussion

These, Members of the Court, are the facts on the basis of which the Court was approached on 17 July 1972, with an application in which one may distinquish four different types of submission:

First, that you should decide that the applicant was legally entitled to her remuneration between 15 June and 12 December 1970;

The second category is for admission of the right to reimbursement of medical expenses incurred by Mrs Noé during the same period;

Thirdly the applicant requests you to rule that the Administration has failed in the legal duty of assistance imposed on it by Article 76 of the Regulations in respect of any official who is in a particularly difficult position as a result inter alia of serious or protracted illness;

As for the pleas requesting that the European Parliament assume the whole of the fees of the doctor appointed by the applicant as a member of the Invalidity Committee, these were expressly abandoned during the course of the proceedings. Accordingly you will not have to give a decision on that point.

The first series of submissions put forward essentially a question of admissibility.

The defendant counters this line of argument by saying that the letter of 18 June 1970 contained a genuine decision, stating the reasons on which it was based, in the form of a recital of the factual circumstances in which the applicant forfeited her right to remuneration; that, furthermore, this consequence resulted by virtue of Article 60 of the Regulations from the mere establishment of the state of unauthorized absence in which she had placed herself; that accordingly, the Director-General having limited himself to establishing this fact, his competence could not be disputed; and, that, furthermore, the notification of a decision taken in pursuance of Article 60 is not subject to any particular formality. It is necessary to clarify this argument in which the applicant puts forward at one and the same time arguments relating to admissibility and pleas affecting legality;

—The crucial question is that of the true nature of the letter of 18 June 1970. Does it constitute a decision adversely affecting the applicant? In the latter case, if it has not been contested in due time, it has become final and submissions directed against such decision are inadmissible. On the other hand, is it not a mere notification, a preparatory measure? If this is correct, it could not cause the legal period for appeals to start to run; it is then necessary to ascertain which was the act as a result of which the applicant was deprived of her salary; was it the letter from the Director-General dated 22 October 1971 which, by restoring the right of Mrs Noé to remuneration as from 12 December 1970 only, allowed the effects of the suspension of salary from 15 June up to that latter date to subsist, or merely the refusal of her claim of 7 December 1971?

—A second question also relates to the admissibility of the submissions: it concerns the conditions in which the decision in dispute was notified.

—On the other hand, the questions whether, first, the Director-General did or did not have the power to take such a decision, and secondly, whether the reasons on which such a decision was based were stated would concern simply legality; these questions should be examined only if the submissions were admissible.

It is necessary therefore to analyse the tenor of the letter from the Director-General of Administration with a view to ascertaining whether it contains an element of decision capable of adversely affecting the applicant, as is required by your decisions in previous cases.

The external form of a document is in this connexion of no importance. Only its objective content and its true effects make it possible to classify the same. This has been decided quite recently by your Second Chamber in a decision of 8 February 1973 (Case 56/72 — Goeth); ‘a memorandum of the Head of the Personnel Division (of the Commission) stating that an official no longer fulfils the conditions for the grant of the expatriation allowance, followed by the actual withdrawal of such allowance, constitutes an act adversely affecting the applicant.’ It is not a question of a simple notification but a decision affecting the individual legal status of the official concerned.

In the case in point, the terms in which the Director-General of Administration expressed himself are explicit.

After recalling that Mrs Noé had not complied with the invitation addressed to her by the Administration to resume her duties on 8 June 1970, he stated that the days from 8 to 12 June, in respect of which the applicant had applied for leave of absence, would be automatically counted against her annual leave, which thus became exhausted on 13 June. He referred to the provisions of Article 60 of the Regulations in accordance with which ‘any unauthorized absence which is duly established shall be deducted from the annual leave of the official concerned.’

Then he draws the consequence provided for in the following sentence of the same Article, worded as follows: ‘If he has used up his annual leave he shall forfeit his remuneration for an equivalent period’, that is to say for the period of unauthorized absence exceeding the duration of the annual leave.

‘Accordingly (wrote the Director-General) from Monday 15 June and for the duration of your absence, you will lose the benefit of your remuneration’.

Here we are not dealing with a warning or even with a formal notice but with a decision affecting the legal status of the applicant with regard to her right to salary.

Furthermore, this decision had been preceded by warnings because, on two occasions, the applicant had been expressly invited to resume duties on 2 and on 26 February 1970, failing which, if she did not return to her post, her remuneration would be suspended.

The letter of 18 June on the other hand contains an element of decision. The fact that the Director-General did not expressly refer to Article 60 of the Regulations is, in my view, of negligible importance because the contents of the letter clearly show that his intention was to apply it.

In the second place, it is not disputed that the decision was followed by action: the remuneration of the applicant was in fact suspended as from the date indicated.

We would add that the Administration took care to confirm, by a letter dated 9 July, that Mrs Noé was considered as being absent without authorization under the provisions of Article 60 of the Regulations, and that until she remedied her situation her remuneration would remain suspended, as she had already been notified on 18 June.

But, in order that the period for appeal should start to run, it is still necessary that the decision in dispute shall have been formally notified to the applicant. The applicant does not dispute that in fact she received the letter from the Director-General and, furthermore, she had various protests sent from Madrid about it. The terms of this letter were sufficiently clear for her not to be able to mistake the scope of the decision which it contained. Finally, by providing only that ‘any decision relating to a specific individual shall at once be communicated in writing to the official concerned’, Article 25 of the Regulations does not impose any special requirements of form for the notification; it in no way prescribes the use of a registered letter with provision for acknowledgment of receipt.

Of necessity therefore, one must find that the applicant, who had due knowledge of the decision in dispute at the beginning of July 1970 at the latest, appealed to the Court only on 7 July 1972, that is nearly two years after the expiry of the period for appeals.

Neither her letter to the Director-General of Administration dated 7 December 1971 nor, a fortiori, the letter which her lawyer wrote on 23 March 1972 to the same authority could have the effect of reviving this period even if one were to regard them as complaints within the meaning of Article 90 of the Regulations then in force.

In these circumstances, the submissions in the application relating to recognition of her right to salary, are manifestly out of time and, accordingly, inadmissible.

The problem is in my view not the same with regard to the submissions that you should recognize Mrs Noé's right to reimbursement of the medical expenses which she incurred during the period for which her remuneration was suspended.

According to the Parliament, the right to sickness allowances is linked to the right to salary by the very reason of the contributory nature of the system for insurance against sickness. Indeed, in accordance with the provisions of Article 72 of the Regulations ‘one third of the contribution required to meet such insurance shall be charged to the official, but so that the amount charged to him shall not exceed 2 % of his basic salary’.

It is claimed that whenever, by virtue of Article 60 of the Regulations, an official — in a state of unauthorized absence — is deprived of his salary, it is no longer possible to deduct the subscription due from him; accordingly, he ceases to be affiliated to the scheme and forfeits, for the duration of suspension of salary, any right to reimbursement of medical expenses.

The question of admissibility is linked to the merits in this instance.

If the contention of the Administration is accepted, the decision of 18 June 1970 imposing suspension of salary would of necessity entail the loss of affiliation under the sickness scheme and therefore the loss of the right to reimbursement of expenses. And as this decision has become final since it did not form the subject of an appeal in due time, the applicant's objections to its effects as far as the sickness allowances are concerned will no longer be admissible.

But it seems to me that this argument should be rejected.

In itself, Article 60 of the Regulations contains no provision excluding, for officials in a state of unauthorized absence, the social security benefits laid down by the Regulations and in particular cover against sickness. Article 72, relating to such cover, limits itself to laying down the principle and provides for the participation of the official in the financing of the scheme; it remains silent on the consequences of suspension of salary for any reason whatsoever. The solution must be sought in the rules relating to the cover against sickness for officials of the European Communities, drawn up by agreement between the institutions after consulting the Staff Regulations Committee, to which Article 72 makes express reference.

Article 3 of these rules maintains the right to the sickness allowances in several cases where the official ceases to receive his remuneration:

if he is assigned non-active status (Article 41 of the Regulations) until his resignation;

if he is called up for military service (second paragraph of Article 42 of the Regulations) for his dependants;

if he is seconded without pay (Article 39, sub-paragraph (d) of the Regulations), until his resignation.

The same applies when an official is suspended before disciplinary proceedings in the event of an allegation of serious misconduct being made against him. It is true that in such circumstances the official retains, at least partially, the right to receive his remuneration.

Of course, in these various situations, the personal contribution continues to be due, save in the case of military service.

The sole exception concerns an official on leave on personal grounds (Article 40, of the Regulations) in respect of which affiliation and also the cover for corresponding risks are suspended by virtue of Article 3 (1) of the rules.

On the other hand, these rules in no way provide for the situation referred to in Article 60 of the Regulations.

Should this situation be assimilated to a case of leave on personal grounds, as is maintained by the European Parliament?

I do not think so. A measure, the effects of which are as serious as the loss of any protection against sickness, cannot, in my view, be presumed in the absence of any express provisions prescribing it.

The state of unauthorized absence cannot by itself justify this. Furthermore we are dealing with a temporary situation the termination of which consists either in resumption of duty or in definitive removal from office by a disciplinary measure or again by resignation accepted by the Administration. It is a state which does not cause the forfeiture of the official's status as such and to decide that deprivation of remuneration entails deprivation of cover for sickness would be adding a consequence to Article 60 of the Regulations which it has not provided for.

This scheme of course depends upon the financial contributions of officials, but an argument based on the impossibility of retaining their contributions at source in the event of suspension of salary does not, it seems to us, suffice to eliminate the right to the allowances. The automatic deduction of the contribution is merely a means of recovery; it cannot be regarded as a necessary condition for the exercise of the right.

In such an eventuality it is incumbent on the Administration either to give formal notice to the official to pay his contributions direct during the period of his absence, to deduct them from the salary restored after resumption of duty or, finally, in the last analysis to recover them by appropriate legal means.

At the very least, an official subject to the effects of Article 60 of the Regulations must be clearly informed that he must pay his contribution in order to continue to benefit from the payment of his medical expenses.

I fully realize that this interpretation is very liberal, but it seems to me to be essential particularly since, as we know now that the permanent invalidity of the applicant has been finally recognized, she continues to be entitled, as a person in receipt of a pension on that account, to the cover against sickness in accordance with Article 72 (2) of the Regulations.

If you share my opinion, you will therefore acknowledge that her claim for reimbursement of the medical expenses incurred by her during the period from 15 June to 12 December 1970 is both admissible and justified.

Which was in tact the decision as a result of which the applicant was deprived of the reimbursement of her medical expenses? It was not the letter of 18 June 1970, contrary to what the Administration maintains. It was not even the letter from the Director-General of Administration of 22 October 1971 which restored Mrs Noè's right to remuneration as from 12 December 1970 but which does not breathe a word about the medical expenses.

It was only in his letter of 7 January 1972 that the Director-General of Administration, after declaring that he adhered — insofar as the payment of salary was concerned — to the terms of his letter of 22 October 1971, decided that the medical expenses incurred by the applicant after 12 December 1970 would ‘naturally’ be reimbursed to her following the restoration of her salary, hence one may deduce a contrario and just as ‘naturally’ that they would not be reimbursed for the previous period. This is the point at which the connexion established by the Administration between payment of the salary and the benefit of the sickness allowances explicitly appears.

For the Administration, this was merely the confirmation of what was implicitly but necessarily contained in its letter of 18 June 1970 relating to the salary.

For my part I do not think that this is the true position.

Of course, on 18 June 1971, in a registered, personal and confidential letter addressed to the President of the European Parliament, the applicant complained of the situation in which she had been placed and requested this high authority to intervene so that the Administration of the Parliament should acknowledge the decision of the German Federal Insurance Office for Employees of 1. 10. 69 and 1. 3. 71 declaring her to be suffering from invalidity, so that she should be paid the salary due to her from 15 June 1970 and that the medical expenses incurred by her since that date should be reimbursed as soon as possible in order that she might meet pressing needs.

To this letter, submitted by the applicant as Annex V to her reply, were attached nine schedules (which are not actually attached) including a letter of 25 January 1971 from the Sickness Fund refusing reimbursement of medical expenses.

The result of this step was soon forthcoming, as we have seen; on 6 September 1971 the second invalidity Committee unanimously pronouced Mrs Noe's total and permanent invalidity.

Should we then take the view that, failing the decision of 18 June 1970 or the letter of 22 October 1971, it was the decision of the Fund of 25 January 1971 which deprived the applicant of the reimbursement of her sickness expenses? I hesitate to suggest this to you. After careful consideration, I believe it is not necessary to demand the production of this letter since it certainly does not constitute a decision within the meaning of Article 15 of the Regulations relating to cover against sickness, against which an appeal would lie, but a simple application by an executive body of the principle: no subscription, no allowance. I come back therefore to the problem of the merits of the case.

In reality, the situation of the applicant in this connexion was finally fixed only by the letter of the Director-General of Administration dated 7 January 1972.

On 23 March next, Mrs Noé's lawyer requested the same authority to reconsider its decision. Although he himself does not claim to attach to his intervention the nature of a complaint with the meaning of Article 90 of the Regulations, I believe that it is in accordance with your previous decisions to consider it as such: without a doubt it was aimed at the withdrawal of the decision in dispute and it was addressed to the author of that decision.

Moreover, I cannot see why an official should not instruct her lawyer to send, in her name, a complaint which may be analysed as an administrative appeal preliminary to an appeal to the Court. Mrs Noé's application made less than three months after the rejection of this complaint by the Director-General is, therefore from this point of view, admissible and, as we have said, justified.

The third head of the submissions is based on the contravention of Article 76 of the Regulations under which gifts, loans or advances may be made to officials who are in particularly difficult position as a result inter alia of serious or protracted illness. This provision has neither the object nor the effect of guaranteeing the official a statutory right. As you have decided in a Judgment of 15 June 1971 (Joined Cases 63 — 65/70, Bode, Rec. 1971, p. 555) it does not impose any specific obligation on the Community authorities but merely aims at giving them the power to assist officials who are in difficulties. It originates in a certain conception of assistance rather than in a purely discretionary power; it in no way binds the Administration, whose task it is to assess the individual circumstances whenever the use of this power is requested of it, before being able to admit the existence of a particularly difficult situation.

Thus the Court has decided that this provision does not require an automatic appraisal as soon as certain events such as serious or protracted illness, occur.

This interpretation of Article 76 is sufficient to set aside the claims of the applicant in this connexion.

As for Article 24 of the Regulations, the benefit of which is also invoked by her, this concerns the assistance which the Communities are to give to their officials, in particular in proceedings against any persons perpetrating threats, insulting or defamatory acts or utterances to which they are subjected by reason of their position or duties. These provisions, unconnected with the proceedings are manifestly inapplicable to the case in point.

Finally, I am of the opinion:

—that you should decide that the applicant is entitled to the reimbursement of medical expenses incurred by her between 15 June and 12 December 1970;

—that you reject the other submissions of the application;

—finally, that the costs be borne by the European Parliament.

* * *

(*1) Translated from the French.