Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Officials – Invalidity – Rejection of a request for the appointment of an invalidity committee)

Application: under Articles 236 EC and 152 EA, by Charlotte Gesner, for annulment of the decision adopted by OHIM on 2 September 2005 dismissing her complaint against the decision of 21 April 2005 by which that Office rejected her request for the appointment of an invalidity committee.

Held: The decision of 21 April 2005 by which OHIM rejected the applicant’s request for the appointment of an invalidity committee is annulled. OHIM is ordered to pay the costs.

Summary

Officials – Invalidity – Members of the temporary staff – Institution of invalidity procedure

(Staff Regulations, Art. 59(4); Conditions of Employment of Other Servants, Art. 31, first para., and Art. 33(1))

In the absence of any provision in the Conditions of Employment of Other Servants to the contrary, the concept of invalidity for the purposes of the latter is the same as that used in the Staff Regulations. It therefore covers the situation of a temporary staff member who, like an official, is suffering from invalidity considered to be total, and who, for that reason, is obliged to suspend employment. A temporary staff member who has been obliged to suspend employment due to his or her state of health is therefore entitled to have the procedure set in motion to investigate his or her possible invalidity. This must be the case unless the request is unlawful, in particular if it is made only to challenge, in the absence of any new evidence, the earlier findings of an invalidity committee which has already investigated the situation concerned.

Initiation of this procedure is not subject to any condition regarding previous length of sick leave. If such a condition were to be laid down it would, in a number of cases, preclude temporary staff members who suffered a sudden or rapid deterioration in their state of health, or who were victims of an accident, being covered against those risks.

The condition regarding previous length of sick leave laid down in Article 59(4) of the Staff Regulations is not applicable where the temporary staff member himself or herself requests the initiation of an invalidity procedure. That provision covers a case where the administration decides to set in motion that procedure, and makes such a decision conditional upon the official or staff member having been absent on sick leave for more than a certain length of time. That provision therefore offers a safeguard both for the staff member and for the administration. On the one hand, it gives the staff member a reasonable length of time to recover and resume his or her duties before being given invalidity status. On the other hand, it enables the administration, after this period has ended, to establish the invalidity status of the person concerned in order, if necessary, to arrange for a permanent replacement to occupy that person’s post, thus giving the appointing authority the power, not the obligation, to refer the matter to an invalidity committee.

(see paras 28-30, 32-34)

See: 42/74 and 62/74 Vellozzi v Commission [1975] ECR 871, paras 25 to 27; 731/79 B v Parliament [1981] ECR 107, para. 7;

T‑84/98 C v Council [2000] ECR-SC I‑A‑113 and II‑497, para. 68