OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 19 FEBRUARY 1975 (*1)

Mr President,

Members of the Court

For the second time I have to consider the case which Mr Gigante, an official of the Commission of the European Communities, brought against the Commission on 16 June 1971.

Let me briefly remind you of the facts.

After suffering a motor accident in 1962 and after long-drawn-out medical treatment and unsuccessful proceedings before the Invalidity Committee in 1968 and 1969 Mr Gigante submitted a formal complaint to the appointing authority under Article 90 of the Staff Regulations. In this complaint he claimed that there remained to be repaid to him a sum of BF 90391 for the treatment of the effects of the accident; furthermore he requested that an Invalidity Committee be convened to give a report on the state of his health and that a specified capital amount be paid by reason of the partial permanent invalidity occasioned by the accident. In a letter in April 1971 from the Directorate-General for Administration and Personnel it was proposed to him that a new Invalidity Committee should be convened, constituted differently from that which had exercised its functions during the years 1968/69 (as is known, the doctor chosen by the applicant refused to sign the report by the Invalidity Committee).

Since Mr Gigante did not agree he applied in June 1971 to the Court. Subsequent to the filing of the action the appointing authority issued a decision to the effect that the case should again be referred to the Invalidity Committee, but this time without any conditions being made as to its constitution. This time the task of the Invalidity Committee was outlined as follows:

1.To assess whether the applicant is suffering any partial permanent invalidity such as to render him incapable of performing the duties corresponding to a post in his career bracket;

2.To assess the extent of the partial invalidity;

3.To determine whether the partial invalidity is the direct consequence of the accident suffered;

4.To state whether additional medical treatment of the effects of the accident is necessary; and

5.To determine whether the expenses claimed by the applicant can be regarded as having been caused by the accident, so as to see whether corresponding allocation has to be undertaken.

Thereafter long-drawn-out attempts were made to constitute the Invalidity Committee. They were unsuccessful in 1972 when the first oral procedure took place; they remained so up to the time of a second oral procedure on 24 October 1973, because agreement could not be reached by the two doctors appointed on the appointment of a third doctor.

Having regard to this unsatisfactory position and the statement made by both parties at the hearing that the Court should appoint a third doctor to complete the Committee, an interlocutory judgment was given on 29 November 1973 in the following terms:

1.If the doctors appointed by both parties have not succeeded in appointing a third doctor before 10 December 1973 the Court of Justice, First Chamber, will undertake this appointment, the two doctors having a right to make written observations and suggestions to the Court by 17 December 1973 at the latest.

2.The Invalidity Committee shall present its report within three months following the date upon which it is constituted by the appointment of the third doctor.

3.If meanwhile fresh difficulties threaten to jeopardize the normal progress of the work of the Invalidity Committee, the parties, the Committee or its members shall be at liberty to notify this to the Court, which reserves to itself the power to order the necessary measures.

It then seemed as though the said two doctors would be able to agree upon a third. Since ultimately, however, agreement was not reached, the Court, as intimated in the judgment, had to undertake the appointment of the third doctor. This was done by order dated 10 January 1974.

Contrary to the intention expressed in the interlocutory judgment, the proceedings were not thereupon speedily concluded. After the Invalidity Committee had met for the first time on 22 May 1974 in the absence of the doctor appointed by the applicant, the proceedings dragged on over the whole of 1974. It was not until 6 January 1975 that the Committee's report dated 9 December 1974, and an accompanying letter from the chairman of the Invalidity Committee dated 27 December 1974 was received by the Court.

Its conclusions may be summarized as follows:

(a)The applicant is not a complete and permanent invalid.

(b)The applicant is suffering a partial permanent invalidity and therefore not able to undertake heavy work. It should however be possible to entrust Mr Gigante with duties in which he does not have to lift heavy objects nor stand for any length of time.

(c)There is a 10 % partial permanent invalidity arising from the accident in 1962.

(d)The date of recovery from the consequences of the accident is 16 October 1970. Medical treatment after this date no longer relates to the consequences of the accident.

(e)In the absence of the requisite documents it was not possible to answer the question which expenses claimed by the applicant can be regarded as caused by the accident. The Committee is prepared to consider it in a supplementary report.

The report is signed however by only two doctors. The doctor appointed by the applicant had objections to certain points and therefore considered that he could not sign.

Both parties have made observations on this at the hearing on 23 January 1975. The applicant is of the opinion that in the absence of unanimity the report must be regarded as invalid and there is thus a ‘new difficulty’ within the meaning of the interlocutory judgment of 29 November 1973. The Commission on the other hand takes the view that the Committee has essentially fulfilled its task apart from investigating the question which of the expenses claimed by the applicant can be regarded as being caused by the accident, an investigation which will now be carried out. The application has thus become devoid of purpose.

I am at this stage of the proceedings of the following opinion:

First it is necessary to recall what the claim was when the proceedings were brought. In the application the claim is made to declare null and void the rejection of the complaint and the decision of the Commission of 29 April 1971 on the convening of an Invalidity Committee and to order the Commission to pay the medical and pharmaceutical expenses which were caused by the accident.

In my first opinion I took the view that in the course of the proceedings only the first two claims have been pursued. This I deduced from a letter which the applicant's advocate sent to the Commission on 3 November 1971 and in which he requested that the Invalidity Committee should also examine whether the medical and pharmaceutical expenses required by the applicant were due to him under Article 73 (3) of the Staff Regulations. There is also the fact that the Commission acceded to the application and gave the Invalidity Committee appropriate instructions. In this way the claim was to be decided by the proceedings of the Invalidity Committee. Since it scarcely seems compatible to leave it at the same time to the Court I could only draw the conclusion that to this extent there had been a tacit but clear alteration of the claim. I am still of this opinion. I feel strengthened in this view in that the applicant's advocate, to whom the contents of my then opinion are known, has not now raised any objections and has not said that his intentions have been wrongly interpreted.

Thus it may be said that there remains only the claim to declare null and void the decision of 29 April 1971 and for the institution of the procedure for the convening of the Invalidity Committee with the instructions as already effectively formulated by the Commission.

I —As regards the first point referred to I can be very brief. I have already said all that is necessary on this in my first opinion. For me the observation still holds that the said decision has been tacitly annulled and replaced by another made after the claim was brought in which the Commission has no longer held to its demand that the new Invalidity Committee must be differently constituted from the one which was active in 1968/1969. To this extent the proceedings are in the main satisfied and all that is required is a decision on costs in this respect.

II —As regards the second remaining point, the convening of the Invalidity Committee, we have to recognize that it has now been done and on the basis claimed by the applicant. The only problem is that one of its tasks has not yet been fulfilled and that the report has not been signed by all three doctors; rather the doctor appointed by the applicant has made objections.

Strictly this need not concern us any more. On the basis of the application, which is the criterion, and having regard to the fact that an Invalidity Committee has been convened and that proceedings with the objectives as known have been commenced, essentially it could suffice to find that the application has been satisfied on this point too, and simply rule on the question of the costs of the application.

I do not want however, to leave it there. I can also imagine that the Chamber, which has already thought it reasonable to have a hand in the constitution of the Invalidity Committee, considers it proper to say a few additional words in the judgment on the problem which has lately arisen.

In my view no difficulties arise from the fact that the Invalidity Committee has not completely fulfilled its task. The Committee has said it is ready to consider the remaining point as soon as the necessary documents are available, and if what the Commission has said at the hearing is correct, this should already be the case. The Commission has therefore to await the supplementary report of the Committee and then to draw the necessary consequences with regard to the reimbursement of the medical and pharmaceutical expenses. No inquiry need be made in the present proceedings as to who is responsible for the delay, since this question lies clearly outside the subject-matter of the application.

Nor do any problems arise with regard to the first of the two conclusions in the report of the Invalidity Committee. On this, in the view of the doctor appointed by the applicant, there are no differences. It is true that this doctor advocates the deletion of the second part of the second point of the said conclusions. Since the remark contained therein has however obviously no medical significance on its own, the proposed deletion does not seriously affect the conclusion of the report. The appointing authority can thus immediately draw the necessary consequences from these basic findings of the Invalidity Committee.

Differences of opinion remain, on the other hand, on the third and fourth points of the conclusions of the Invalidity Committee. The doctor appointed by the applicant does not consider it right to accept a partial permanent invalidity of only 10 %. On this he refers to the evidence of Italian doctors and the fact that 20 % invalidity was discussed in the Committee. As regards the recovery from the consequences of the accident he does not object to the date of 16 October 1970, but is of the opinion that subsequent treatment is also referable to the accident.

Thus the question arises whether there is a valid report or whether such can be said to be the case only when all three doctors concur.

On this question, which was the main one to be canvassed at the hearing on 23 January 1975, let me say at once that the applicant's argument that unanimity is necessary does not appear convincing to me.

I do not think any thorough investigation of the question whether the principle of unanimity or majority decision prevails in the Communities is called for to draw conclusions on the interpretation of the Staff Regulations, which do not expressly say whether unanimity is required or majority decision suffices in the work of the Invalidity Committee. In my view it suffices if, in answering the question which has arisen, we are guided by the problems which have obviously arisen in this action. The present application has shown to what difficulties the system obtaining, under which a committee of three doctors has to be appointed in the familiar manner, can lead. Basically, they could only be overcome by the Court endeavouring to compensate in a law-making manner for the inadequacies of the Staff Regulations. As regards the question of formulating the opinion of the Invalidity Committee, it is probably sufficiently clear that the principle of unanimity could block the whole procedure even without ill will on the part of a doctor, because there is no possibility of replacing under some superior power a doctor who objects on medical grounds. To solve our problem the principle of the ‘effet utile’ must be applied. It must be assumed that the Staff Regulations, when they provide for the convening of an Invalidity Committee to judge certain questions, cannot reasonably contemplate a procedure which thwarts any result. If however the conclusion of invalidity proceedings is to be guaranteed, this necessarily means that majority decisions must suffice.

I would consider it right to mention these considerations in the judgment and thus apprise the parties of them. The Commission would then know that it has valid conclusions of an Invalidity Committee, even if they are given by only two doctors, and that it is entitled to draw the necessary administrative consequences from this.

Let me finally say a word on the costs of the application.

On the basis of the view — and it decidedly comes to this now — that the application has indeed become completely devoid of purpose, the costs can be, under Article 69 (5) of the Rules of Procedure, ‘in the discretion of the Court’. In this way the facts and dispute, the course of the proceedings and — in a summary way — the prospects of success may be taken into account.

Looking at the matter in this light, it is in my view significant that it was only after the application was brought that the Commission replaced the decision of 29 April 1971 by another which took account of the claim and that it was also after the application was brought that it instituted the procedure for convening the Invalidity Committee as requested by the applicant. The Commission has thus given cause for bringing the application and this must certainly be taken into account in deciding the costs. On the other hand there is no reason in my view to take account of the difficulties which have arisen in constituting the Invalidity Committee and in the course of its procedure. They were not caused by the parties but by the doctors, and they cannot therefore be laid to the charge of the parties.

Having regard to the rule in Article 70 of the Rules of Procedure, I would accordingly propose that a small part of the applicant's costs should be borne by the Commission.

In view of this my proposal is that the judgment should be as follows:

It is established that the substance of the application has been satisfied. The Commission shall bear its own costs and a quarter of the applicant's costs.

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(*1) Translated from the German.