OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 21 JUNE 1973 (*1)

Mr President,

Members of the Court,

In the proceedings with which we are dealing today and which were begun by the application dated 11 October 1972, we are concerned with determining the results of an accident suffered by Miss Di Blasi, an official of the Commission of the European Communities.

For the very detailed facts of the case I may make prior reference to the report of the Judge-Rapporteur. For the present I should like to make only the following observations by way of introduction.

The accident occurred on 3 January 1968, when Miss Di Blasi was in the course of her employment in the offices of the Commission in the place de Metz in Luxembourg. She fell in a corridor of this building and suffered what was clearly a complicated fracture of her right foot. The injury was firstly subjected to treatment, including surgery, in a Luxembourg hospital. Later, doctors in Brussels and Italy busied themselves with the physical and psychological consequences of Miss Di Blasi's accident. Particulars of these matters are set out in exhaustive detail in the application which also mentions the examinations arranged and carried out by the medical service of the Commission. Similarly the application states at what times Miss Di Blasi was on sick leave for the reasons already mentioned and during what periods of time she carried out her duties by working half-time or for limited periods of time. In fact Miss Di Blasi had — if I am right — worked in her official capacity only for short periods from 3 January 1968 to 30 June 1972. Since 1 July 1972 she has been on leave on personal grounds ana is staying at her home in Italy.

As is customary in such cases, Miss Di Blasi received from the appropriate department of the Commission a claim form in which particulars of the accident were to be given and which was to be submitted together with a medical report on the degree of invalidity caused by the accident. Miss Di Blasi complied with this on 16 December 1970. According to the doctor's report which she submitted in this connection her invalidity amounted in all to 70 %.

Since the Administration clearly did not wish to be bound by this assessment, Miss Di Blasi was, early in the following year, requested by the Administration of the Commission to go to Brussels for a medical examination. This examination took place on 6 April 1971 and on subsequent days in the medical service of the Commission and in the presence of several doctors, including the medical adviser of the insurance company, with which the Commission had effected a policy concerning accident risks to its officials. Subsequently, by a letter from the Directorate-General of Personnel and Administration dated 15 March 1972, Miss di Blasi was informed that a permanent partial invalidity of 9 % resulting from the accident would be recognized. The lump sum, due under Article 73 (2) (c) of the Staff Regulations was accordingly ascertained.

Miss Di Blasi would not accept this decision. In a letter dated 27 March 1972, which expressly stated that she refused to accept the decision of 15 March 1972. Furthermore, in her letter she asked to be informed of the decisive criteria for ascertaining the degree of partial invalidity. Not receiving any answer, she lodged a complaint through official channels with the Commission on 12 June 1972 against the decision of 15 March 1972. In her complaint she argued that the unilateral determination of the degree of partial invalidity constituted an infringement of Article 73 of the Staff Regulations. She submitted moreover, that as was apparent from enclosed medical reports, her partial invalidity was underestimated. Accordingly Miss Di Blasi applied for the decision of 15 March 1972 to be annulled, for new proceedings to be commenced for determining her partial invalidity and for her partial invalidity to be fixed at 70 % or at any event at no less than 55 %.

Since the Commission failed to comply with this within a period of two months (which still applied in this case). Miss Di Blasi brought the matter before the Court of Justice by an application on 11 October 1972.

The application contains the following submissions:

—that the decision of the Commission dated 15 March 1972 be annulled;

—that the implied decision rejecting the complaint through official channels made on 12 June 1972 be annulled;

—for a declaration that the partial invalidity of the applicant is 70 % and in any event is no less than 45 %;

—that the Commission be ordered to pay interest from the date of the accident and

—for an order that a certain medical report be removed from the personal file of the applicant.

After the proceedings before the Court had been instituted, the applicant was informed, in a letter from the Vice-President of the Commission dated 17 October 1972, that the Commission had decided, after considering the complaint through official channels, to have the degree of partial invalidity of the applicant resulting from the accident determined by a doctor belonging to the institution who would be jointly appointed by the Commission's medical adviser and by the doctor treating the applicant. In a letter dated 24 October 1972 the applicant assured the Commission of her cooperation on this matter in order that the proceedings might be disposed of more quickly. In a declaration dated 22 November 1972 she named the doctor treating her whose practice was in Rome, for the purpose of settling the matter, and a letter dated 23 November 1972 from her adviser in Rome was sent to the Commission together with a list, drawn up by this doctor, of the names of doctors who might be considered for the office of arbitrator for the purpose of the proceedings for determining partial invalidity. Finally, it remains to be said that the Directorate-General of Personnel and Administration expressly told the applicant in a letter dated 29 November 1972 that the decision dated 15 March 1972 had been revoked.

The Commission took the view that there was now no purpose in the application. Accordingly in its statement of defence the Commission submitted that the application should be dismissed as having no valid subject matter, or on the ground that the applicant had no legal interest, and alternatively that it was unfounded.

Since the applicant did not accept the justice of this view and made no substantial alterations in her submissions in the reply, the oral procedure in the case then took place on 17 May 1973.

Against this background it is now my task to appraise the facts and to deliver my opinion on them.

As regards the first submission, which is directed to the annulment of the decision of 15 March 1972, we have seen that, by a decision of the Commission dated 9 October 1972, and communicated to the applicant on 17 October 1972, it was decided to have the degree of partial invalidity ascertained by a impartial doctor. It thus already became clear that the Commission did not adhere to its decision of 15 March 1972, and to the assessment of partial invalidity of 9 % relating to the applicant which it contained. It was, moreover, expressly pointed out to the applicant in a letter from the Directorate-General of Personnel and Administration, that the decision of 15 March 1972 had been revoked.

It may therefore be said that the decision mentioned in the first submission has ceased to exist and has bequeathed no effects in law. This seems moreover to be recognized by the applicant when, as appears in the reply, she speaks of a reduction in the matters of dispute, and of a partial abandonment of the defendant's ‘position’ and says that, to this extent there is occasion to bring Article 69 (4) of the Rules of Procedure into operation.

Furthermore, since so far as the decision of 15 March 1972 is concerned, there is no longer any purpose in establishing its original illegality, there remains in fact — and this is the view of the Commission — nothing to be done by the Court except to declare that this aspect of the main action has been disposed of and to confine itself to a decision as to costs.

The second submission relates to the implied rejection of the applicant's complaint through official channels which she filed on 12 June 1972. The purpose and extent of this submission are thus to be derived from the complaint itself. From this it is apparent that the applicant was making three requests: firstly, for the annulment of the then still extant decision of 15 March 1972, secondly for the institution of new proceedings for determining the degree of partial invalidity. Finally, for a specific partial invalidity to be established. When considering the second submission, these matters should be approached as follows.

(a) There is obviously no necessity for any lengthy explanation with regard to the first request. In fact, as we have just seen, the decision of 15 March 1972 was revoked in all respects. Similarly, the related decision of rejection, issued by implication after the expiry of a period of two months, no longer exists, and accordingly this aspect of the application may be regarded as settled.

(b) The following further observations may be made with regard to the submission relating to the institution of new proceedings for determining the degree of invalidity suffered by the applicant.

There can, indeed, be no doubt that this submission was rejected by implication after the expiry of two months after the complaint was made. However, equally there can be no doubt that the Commission, by its decision of 9 October 1972, ordered the institution of new proceedings for determining the partial invalidity suffered by the applicant and thereby made a de facto decision on the complaint. Accordingly one is compelled to conclude that this aspect, too, of the application has lost its subject matter. In my opinion there is no difficulty in showing that this in fact is so.

In this connection, the applicant relied on Article 13 of the policy which the Commission took out with an insurancy company and contended that it laid down an arbitration procedure in cases of disputed medical questions. In fact, however, the Administration took cognisance of this procedure, in that on 9 October 1972, it ordered that its medical adviser and the doctor treating the applicant were jointly to appoint a third doctor who, after consultation with both medical experts, was to determine the degree of invalidity suffered by the applicant.

The applicant then pointed out that the Commission's medical adviser had misunderstood the point of the arbitration procedure which had been ordered i.e. — in his opinion the doctor appointed jointly was only to deliver a diagnosis, while judgment on the degree of partial invalidity must be given by the medical service of the Commission. The Commission's medical adviser was also of the opinion that the psychological damage suffered by the applicant was not to be taken into consideration, because the insurance policy made no provision for cover in this respect, and these psychological and pathological manifestations were not due to the applicant's accident but to other causes.

However, there is no substance in these objections. This is because the alleged observations of the Commission's medical adviser, which have just been mentioned, were made, as I understand it, before the decision of 9 October 1972 was issued. What is more important, moreover, is that, as has been expressly pointed out in the proceedings there is no indication in the relevant decision of the Commission, that a restrictive interpretation is to be given to the task to be carried out by the jointly appointed doctor. The general concern of the decision is rather with determining the degree of partial invalidity suffered by the applicant, which can only mean that the third doctor, after consulting with his two colleagues, was to undertake this determination, and not the medical service of the Commission, and in doing so he was to take into consideration all the consequences of the accident, including those of a psychological nature.

It can thus be said that in this respect, too, there no longer exists any refusal on the part of the Administration, which could be annulled, and that therefore the application is unfounded to this extent.

(c) In the third and last place the applicant requested, in her complaint through official channels, that her partial invalidity should be fixed at 70 %, or alternatively at no less than 55. %.

In this respect, because no such determination has been made, it certainly cannot be said that this aspect of the dispute has lost its subject matter. However the following relevant considerations arise.

As we know from the pleadings, there are a large number of medical opinions on the applicant's state of health, and, indeed, of opinions which partially diverge from one another considerably in their assessment of invalidity. Looked at in this way, it does not seem possible to arrive at a correct judgment on the degree of invalidity suffered by the applicant solely from the documents before us. What is more, reservations, clearly of a serious nature have been expressed, by the Commission's medical adviser amoung others, on the conclusions to be found in the file.

In view ot this state of affairs the Commission certainly was not wrong in refusing simply to accept the submission put forward by the applicant. The procedure which it elected (i.e. the joint commissioning of a third doctor to determine invalidity) is all the more to be commended, not only because, in the absence of the rules provided for in Article 73 of the Staff Regulations, the relevant insurance policy provides for this procedure in the present circumstances, but also because where there is a lack of unanimity this procedure is the only way the parties have of resolving the medical problem, and the state of conflict existing between them.

This aspect of the complaint through official channels was thus properly rejected by implication and the corresponding submission in the application must therefore be dismissed.

Everything material to the third submission has in principle already been said in the foregoing remarks. This is the submission in which the Court is asked to incorporate in its judgment an assessment of the degree of partial invalidity suffered by the applicant. One could raise objections to this submission on the grounds of its uncertainty (as we know, mention is made in the application of a 70 % partial invalidity with a minimum of 45 %; in the reply, invalidity is put at between 33 % and 50 %).

But more important than these objections are the following considerations. Having regard to the situation described (i.e. to the large number and the range of the medical opinions already existing and which in the event do not agree, and also the fact that they, — including obviously the last of the expert opinions submitted dated 11 January 1973 — are not accepted by the Commission) it seems quite unthinkable that the Court, which is a body of lawyers, should deliver a judgment on a contested medical question of this nature. Such an appraisal is clearly more a matter for medical experts. At this stage of the proceedings an appropriate submission would be that an order should be made for the delivery of an expert medical report.

However, there is no point in this, because the Commission, as mentioned before has already decided to put into operation a kind of arbitration procedure for determining the degree of partial invalidity. When the Commission states with reference to this procedure, that it is the only appropriate way in the present case of settling the dispute, then to this extent, as I have already indicated, one can only concur. In support of this reference may be made to the judgment in Case No 29/71 which laid down principles applicable to comparable problems. One must not forget moreover the contents of the insurance policy, which has already been mentioned and which provides for such a procedure, or the judgment in Case No 18/70, according to which, so long as there are no implementing rules under Article 73 of the Staff Regulations, the rights and duties of institutions and their servants are to be determined in accordance with this Article with the insurance policy taken out by the institution in question.

It may therefore be stated, in respect of the third submission, that no legal interest exists and that it must be dismissed as unfounded.

Nor may it be objected as the applicant has sought to do that the arbitration procedure already described and which was instituted in the meantime has broken down for reasons for which the Commission's medical adviser, and thus the Commission itself, are responsible. Certain difficulties did indeed arise, as I understand it, after this procedure had been instituted, because the Commission's medical adviser contacted the doctor treating the applicant and it thus seems doubtful whether the doctor in question can henceforth be regarded as the doctor treating the applicant. On closer inspection however, these circumstances do not justify the use of the expression ‘undue influence’ nur do they make it impossible, objectively, for this procedure to be carried out. The parties to the proceedings must therefore accept that they would be well advised to continue the arbitration procedure promptly and despite the difficulties which have arisen (and, above all on the applicant's part without imposing any conditions connected with the present proceedings) — i.e. through the offices of the jointly appointed doctor who would be able to examine all the medical documents as well as the applicant herself, and who, if he considered it necessary, could also make a diagnosis. In this way, through the cooperation of the parties with the doctors concerned, a judgment could be obtained on the degree of invalidity suffered by the applicant, which in all probability would be just and accurate.

We now turn to the fourth submission; in which an order is sought for the payment of interest by the Commission, and the day of the accident was originally given as the relevant date, whereas mention is made in the reply of an interest period of at least two years. In the Commission's opinion this submission too must be dismissed.

Several matters require to be considered in this connection.

Firstly it is of decisive importance that the demand for interest is an ancillary claim derived from the principal claim for the payment of a lump sum under Article 73 of the Staff Regulations. So long as it is not established whether the applicant is suffering from any invalidity, or what is the extent of the disputed partial invalidity, an order for the payment of interest could only be made in principle and the essential factors of length of time and rate of interest could not be determined.

As has been recognized m cases which have been previously decided by the Court, there are no rules in Community law which grant rights to interest on overdue payments. These cases are concerned with commercial matters of a very special kind. In my opinion they are therefore not binding in claims brought in a social welfare context. At the very least, the award of compensatory interest can be justified in cases in which a creditor suffers damage as the result of an overdue payment. In any event none of the necessary elements are to be found at this juncture in the present case, such as a finding that it would have been possible for the proceedings to establish whether the applicant was suffering from partial invalidity to have been concluded earlier, and that the applicant had suffered pecuniary damage due to delay on the part of the Commission. It is also important to know whether in the legal relations between the Commission as policy holder and the insurer there exists a right to claim interest on sums paid out by insurer to be calculated from the date on which the insurer became liable for payments. That date may in certain circumstances be the day on which the event giging rise to the damage occurred.

The applicant's claim for an order for payment of interest must therefore be rejected as being, at this time, unfounded.

5. The fifth submission

It still remains to deal with the submission by which an order is sought for the removal of a medical report from the applicant's personal file. The grounds of this submission are that this report contains a wrong diagnosis and was prepared in circumstances which put in issue the question of invalidity. It is further contended that the Commission had previously failed to communicate this document to the applicant under Article 26 of the Staff Regulations. Paragraph (2) of Article 26 provides that documents may not be used or cited against an official unless they were previously communicated to him. The proper context of this provision is in the rules relating to files currently maintained in the Personnel Department. It seems to me very doubtful whether similar considerations apply to documents dealing with fitness for work issued by a doctor in proceedings pending for the determination of the consequences of an accident in the course of employment, having regard, inter alia, to the duty of medical secrecy. The purpose for which an employer obtains an expert medical report is reason enough for it to remain in the file for medical opinions, provided that there are no exceptional, circumstances which make it clear that the report, on any sensible appraisal, is irrelevant. The interests of the person who is the subject of an expert report are fully protected if the report is communicated upon request, to the doctor attending the servant whose condition is to be assessed. The request for the removal of the document objected to appears excessive and inappropriate. Even if it contradicts other medical opinions there is no reason to omit this document from the overall consideration and to grant to persons concerned whose interests are sufficiently protected by an opinion from a neutral expert, a right to prevent a document from being considered.

This submission must therefore fail.

6. Costs

Finally, it is necessary to made a few brief remarks on the subject of costs. As we have seen, part of the dispute (i.e. the first submission and part of the second submission) was settled when the defendant Commission made a new decision on 9 October 1972 with regard to the determination of the degree of invalidity suffered by the applicant and gave her notice thereof on 20 October 1972. Article 69 (5) of the Rules of Procedure therefore applied to this part of the proceedings. This is the provision under which, where a case does not proceed to judgment, the costs shall be in the discretion of the Court. Properly understood this involves a summary assessment of the applicant's chances of success. In the present case this must surely lead to the conclusion that, at the time when the application was made, there were grounds for raising the matter with which we are concerned, and that it was well-founded, although, as the Commission itself admits, the decision of 15 March 1972 was revoked after the application was made because the determination of the degree of invalidity suffered by the applicant was based on a mistake and also because the procedure laid down for determining the degree of invalidity was not observed.

This provides grounds for making an order against the Commission for the costs incurred by the applicant in pursuing her clain.

Assuming it has been shown that the application fails in other respects, I would still submit the following considerations to the Court on the burden of costs. Under special provisions in the Rules of Procedure a successful party may be ordered to pay in whole or in part the costs of the unsuccessful party. The Court is given a discretion as to costs by this wording. In exercising its discretion the Court must bear in mind: that the facts were not clear, that the rules promised for years under Article 73 of the Staff Regulations were not issued by the Community institutions (see the decision as to costs in Case No 18/70) and that it was difficult for legal advisers working in Rome to know the rules of the Staff Regulations and the Rules of Procedure.

The Court must therefore decide the case as follows: that the subject matter of the case ceased to exist in the course of the proceedings so far as a submission concerned the annulment of the decision of 15 March 1972 and of the implied refusal to institute new proceedings for determining the degree of partial invalidity suffered by the applicant. For the rest, the application must be dismissed in part as inadmissible, in part as for the time being unfounded and in part as unfounded.

* * *

(*1) Translated from the German.