Court of Justice of the European Communities (including Court of First Instance Decisions)

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1 . OFFICIALS - SOCIAL SECURITY - INSURANCE AGAINST ACCIDENTS AND OCCUPATIONAL DISEASE - ACCIDENT AND OCCUPATIONAL DISEASE - FINDING - DISAGREEMENT BETWEEN THE MEMBERS OF THE MEDICAL COMMITTEE - MAJORITY DECISION - WHETHER VALID
( STAFF REGULATIONS, ART . 73; RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE, ART . 23 )
2 . OFFICIALS - SOCIAL SECURITY - INSURANCE AGAINST ACCIDENTS AND OCCUPATIONAL DISEASE - ACCIDENT AND OCCUPATIONAL DISEASE - MEDICAL REPORT - REVIEW BY THE COURT - LIMITS
( STAFF REGULATIONS, ART . 73; RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE, ART . 28 )

IN CASE 277/84
HEINZ GOENTHER JAENSCH, A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING AT 3 BAHNHOFSTRASSE, D-2105 SEEVETAL, REPRESENTED BY V . BIEL, AVOCAT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER' S CHAMBERS, 18 A RUE DES GLACIS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER, H . ETIENNE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION INTER ALIA FOR THE ANNULMENT OF THE COMMISSION' S DECISION OF 17 JANUARY 1984 ( IX D 000347 ),
THE COURT ( SECOND CHAMBER )
COMPOSED OF : O . DUE, PRESIDENT OF CHAMBER, K . BAHLMANN AND T . F . O' HIGGINS, JUDGES,
ADVOCATE GENERAL : C . O . LENZ
REGISTRAR : H . A . ROEHL, PRINCIPAL ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 OCTOBER 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 27 OCTOBER 1987,
GIVES THE FOLLOWING
JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 21 NOVEMBER 1984, MR JAENSCH, A RETIRED OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION UNDER ARTICLE 179 OF THE EEC TREATY FOR, INTER ALIA, THE ANNULMENT OF THE DECISION ADOPTED BY THE COMMISSION ON 17 JANUARY 1984 ( IX D 000347 ) IMPLIEDLY REFUSING TO RECOGNIZE THAT THE APPLICANT WAS SUFFERING FROM AN OCCUPATIONAL DISEASE .
2 ON 19 NOVEMBER 1975 AN ACCIDENT OCCURRED IN A GERMAN NUCLEAR POWER-STATION . A FEW MINUTES AFTER THE ACCIDENT, THE APPLICANT, AS INSPECTOR FOR NUCLEAR INSTALLATIONS, WAS ALLOWED TO ENTER THE LOCK CHAMBER OF THE REACTOR, WHICH FILLED WITH MILDLY RADIOACTIVE VAPOUR . HE WAS LET OUT OF THE LOCK CHAMBER NOT MORE THAN 15 MINUTES LATER .
3 THE MEDICAL COMMITTEE SET UP UNDER ARTICLES 21 TO 23 OF THE RULES ON THE INSURANCE OF OFFICIALS OF THE EUROPEAN COMMUNITIES AGAINST THE RISK OF ACCIDENT AND OF OCCUPATIONAL DISEASE ( HEREINAFTER REFERRED TO AS "THE INSURANCE RULES "), WHICH WAS FORMED PURSUANT TO A DECISION OF THE DEFENDANT OF 20 JULY 1977 AND WHICH DID NOT HOLD ITS ONE AND ONLY SITTING UNTIL 18 SEPTEMBER 1981, COULD NOT AGREE ON A SINGLE EXPERT REPORT . THE MAJORITY REPORT REACHED THE CONCLUSION THAT THE APPLICANT HAD BEEN EXPOSED TO A CLOUD OF VAPOUR IN THE INCIDENT BUT NOT TO A DANGEROUSLY HIGH LEVEL OF RADIATION; THE INCIDENT HAD NOT AFFECTED THE OFFICIAL' S PHYSICAL OR MENTAL HEALTH .
4 ON THE BASIS OF THOSE CONCLUSIONS THE APPOINTING AUTHORITY DECIDED ON 17 JANUARY 1984 TO MAINTAIN UNCHANGED, FROM 1 JANUARY 1983, ITS DECISION OF 16 DECEMBER 1982 BY WHICH THE APPLICANT WAS RETIRED AND GRANTED AN INVALIDITY PENSION EQUAL TO 70% OF HIS LAST BASIC SALARY .
5 BY A LETTER OF 17 FEBRUARY 1984 THE APPLICANT RAISED OBJECTIONS TO THE CONTESTED DECISION . ON 18 APRIL 1984 HE LODGED A COMPLAINT AGAINST THE DECISION OF THE DIRECTORATE-GENERAL FOR ADMINISTRATION OF 17 JANUARY 1984 AND AGAINST THE "REJECTION, SO FAR IMPLIED, OF THE OBJECTIONS RAISED ON 17 FEBRUARY 1984 ". SINCE THE DEFENDANT TOOK NO DECISION ON THE COMPLAINT, THE APPLICANT BROUGHT THE PRESENT ACTION .
6 HIS MAIN CLAIM IS FOR THE ANNULMENT OF THE APPOINTING AUTHORITY' S DECISION OF 17 JANUARY 1984 . HIS OTHER HEADS OF CLAIM ARE, IN ESSENCE, FOR THE PAYMENT UNDER ARTICLE 73 ( 2 ) OF THE STAFF REGULATIONS OF A LUMP SUM AS COMPENSATION, THE DEFRAYMENT IN FULL, IN ACCORDANCE WITH ARTICLE 73 ( 3 ) OF THE STAFF REGULATIONS, OF ALL THE MEDICAL EXPENSES INCURRED AS A RESULT OF THE "OCCUPATIONAL DISEASE" AND LASTLY AN AWARD OF COMPENSATION FOR THE DAMAGE TO HIS CAREER AND ALL OTHER MATERIAL INJURY .
7 THE DEFENDANT CLAIMS THAT THE COURT SHOULD DISMISS MOST OF THE HEADS OF CLAIM AS INADMISSIBLE AND DISMISS THE REMAINDER OF THE APPLICATION AS UNFOUNDED .
8 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE LEGAL BACKGROUND TO THE DISPUTE, THE FACTS OF THE CASE AND THE CLAIMS, SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
9 IT SHOULD BE NOTED FIRST OF ALL THAT, ALTHOUGH THE INSURANCE RULES DID NOT ENTER INTO FORCE UNTIL 1 JANUARY 1977, THEY MAY BE APPLIED IN THEIR ENTIRETY FOR THE PURPOSE OF REVIEWING THE PROCEEDINGS CHALLENGED IN THIS CASE, SINCE THE APPLICANT HAD FORMALLY REQUESTED THEIR APPLICATION AND THE DEFENDANT RESPONDED BY FOLLOWING A PROCEDURE IN CONFORMITY WITH THE INSURANCE RULES .
10 AS FAR AS THE ADMISSIBILITY OF THE APPLICATION IS CONCERNED, IT MUST THEREFORE BE EXAMINED IN THE CONTEXT OF THE INSURANCE RULES . THE CLAIM FOR ANNULMENT IS ADMISSIBLE IN ACCORDANCE WITH ARTICLE 91 OF THE STAFF REGULATIONS . AS REGARDS THE OTHER HEADS OF CLAIM, SOME OF THEM PRESUPPOSE ANNULMENT WHILST OTHERS, HAVING REGARD TO THE GENERAL SCHEME OF THE INSURANCE RULES, ARE THE LOGICAL CONSEQUENCE OF THE CLAIM FOR ANNULMENT . A RULING SHOULD THEREFORE BE GIVEN ON THEIR ADMISSIBILITY ONLY IF THE CLAIM FOR ANNULMENT IS GRANTED . FINALLY, THE CLAIM FOR COMPENSATION FOR DAMAGE TO THE APPLICANT' S CAREER IS INADMISSIBLE BECAUSE IT WAS MADE FOR THE FIRST TIME IN THE APPLICATION TO THE COURT .
11 AS REGARDS THE MERITS OF THE APPLICATION, THE VALIDITY OF BOTH THE CONTESTED DECISION AND THE PROCEDURE LEADING TO IT MUST BE EXAMINED . THE APPLICANT COMPLAINS IN FACT OF CERTAIN PROCEDURAL DEFECTS IN THE CONVENING OF THE MEDICAL COMMITTEE, WHICH IN HIS VIEW INVALIDATE THE MEDICAL REPORT . IN THIS CONNECTION IT MUST BE ADMITTED THAT THE PROCEDURE WHICH CULMINATED IN THE CONVENING OF A MEDICAL COMMITTEE WAS INDEED VERY SLOW AND LABORIOUS . HOWEVER, ANY IRREGULARITY WHICH MAY HAVE BEEN COMMITTED DURING THAT PROCEDURE MUST BE CONSIDERED TO HAVE BEEN MADE GOOD BY THE CONSTITUTION OF THE MEDICAL COMMITTEE, THE MANNER OF WHICH IS NOT CHALLENGED BY THE APPLICANT .
12 AS REGARDS THE MODUS OPERANDI OF THE MEDICAL COMMITTEE, IT IS OPEN TO CRITICISM IN TWO RESPECTS, NAMELY FOR THE ABSENCE OF MINUTES, APPROVED BY A MAJORITY, OF THE MEETING OF 18 SEPTEMBER 1981 AND FOR THE FAILURE BY THE MEMBERS OF THE COMMITTEE TO AGREE ON THE CLOSURE OF THE PROCEEDINGS .
13 AS REGARDS TO THE MINUTES, IT SHOULD BE NOTED THAT, ALTHOUGH THE ABSENCE OF SUCH A DOCUMENT IS REGRETTABLE, ITS EXISTENCE IS NOT AN ESSENTIAL CONDITION FOR THE VALIDITY OF A COMMITTEE' S DELIBERATIONS . IN THIS CASE, MOREOVER, THE OMISSION HAD NO EFFECT ON THE PURSUIT BY THE MEDICAL COMMITTEE OF ITS WORK .
14 AS REGARDS THE FAILURE OF THE MEMBERS OF THE COMMITTEE TO AGREE ON THE CLOSURE OF THE PROCEEDINGS, IT MUST BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD THAT THE STAFF REGULATIONS, BY PROVIDING FOR A COMMITTEE CONSISTING OF THREE MEMBERS, IMPLY THAT IN THE EVENT OF DISAGREEMENT THE COMMITTEE MAY DECIDE BY A MAJORITY . IT FOLLOWS THAT THE COMMITTEE MAY DECIDE BY A MAJORITY WHETHER TO CONTINUE ITS WORK OR TO TERMINATE IT . THAT PRINCIPLE MAY BE SUBJECT TO CERTAIN LIMITS IN CASES WHERE THERE IS NO COOPERATION AT ALL BETWEEN THE MAJORITY AND THE MINORITY, BUT THAT IS NOT THE POSITION IN THIS CASE, FOR THE MINORITY EXPERT DID NOT RESIGN UNTIL AFTER THE CONTENTS OF THE MEDICAL FILE HAD BEEN DISCUSSED IN DETAIL BY THE FULL MEDICAL COMMITTEE . FURTHERMORE, WHEN HE PREPARED HIS MINORITY REPORT HE WAS ACQUAINTED WITH THE DRAFT REPORT OF THE MAJORITY EXPERTS . FINALLY, THE MAJORITY EXPERTS REVIEWED THEIR DRAFT IN THE LIGHT OF THE MINORITY REPORT AND CONCLUDED THAT IT WAS NOT AFFECTED BY THAT REPORT . IN THOSE CIRCUMSTANCES, IN VIEW OF THE FACT THAT THE WORK WAS IN FACT BROUGHT TO A CONCLUSION INASMUCH AS A MAJORITY REPORT WAS DRAWN UP, IT MUST BE CONCLUDED THAT THE PROCEDURE WAS PROPERLY CONDUCTED .
15 THE NEXT POINT TO EXAMINE IS THEREFORE WHETHER THE MAJORITY REPORT IS VITIATED BY DEFECTS WHICH RENDER IT INVALID . IN THAT CONNECTION IT MUST BE POINTED OUT THAT THE COURT' S JURISDICTION IS LIMITED TO ANNULLING THE DECISIONS OF A MEDICAL COMMITTEE WHICH ARE VITIATED BY ILLEGALITY INASMUCH AS THEY ARE BASED ON AN IRRELEVANT CONCLUSION . THAT WOULD BE THE CASE IF THE MEDICAL COMMITTEE ADOPTED AN ERRONEOUS VIEW OF THE CONCEPT OF "OCCUPATIONAL DISEASE" OR IF ITS REPORT DID NOT ESTABLISH A COMPREHENSIBLE LINK BETWEEN THE MEDICAL FINDINGS WHICH IT CONTAINS AND THE CONCLUSIONS WHICH IT DRAWS .
16 IT FOLLOWS THAT THE COURT HAS JURISDICTION TO CONSIDER WHETHER AN EXPERT, WHEN REFERRING TO "OCCUPATIONAL DISEASE" AND "ACCIDENT", HAS KEPT WITHIN THE LIMITS OF THE RELEVANT PROVISIONS .
17 IN THAT REGARD, IT MUST BE OBSERVED THAT IN THE CONCLUSIONS OF THEIR REPORT THE MAJORITY EXPERTS SET OUT ALL THE STATUTORY CRITERIA FOR DEFINING AN OCCUPATIONAL DISEASE AND AN ACCIDENT AND CONSIDER THEM UNFULFILLED IN THIS CASE . MORE PARTICULARLY, IT SHOULD BE POINTED OUT THAT IN THE MAJORITY REPORT REGARD WAS HAD TO THE VALUES LAID DOWN IN COUNCIL DIRECTIVE 80/836/EURATOM OF 15 JULY 1980 AMENDING THE DIRECTIVES LAYING DOWN THE BASIC SAFETY STANDARDS FOR THE HEALTH PROTECTION OF THE GENERAL PUBLIC AND WORKERS AGAINST THE DANGERS OF IONIZING RADIATION ( OFFICIAL JOURNAL 1980, L 246, P . 1 ). THE REPORT EXPRESSLY RULED OUT THE EXISTENCE OF AN OCCUPATIONAL DISEASE IN CATEGORY F 1 ( DISEASES DUE TO IONIZING RADIATION ) OR IN CATEGORY B 2 ( DERMATITIS CONTRACTED AT WORK FROM SUBSTANCES NOT MENTIONED ELSEWHERE ) ON THE GROUNDS THAT, IN THIS CASE, THERE WAS NO ACCIDENTAL EXPOSURE, THAT IS TO SAY NO UNFORESEEN AND UNINTENTIONAL EXPOSURE TO RADIATION WHEREBY ONE OF THE SPECIFIED DOSAGE LIMITS FOR EMPLOYEES EXPOSED TO RADIATION IS EXCEEDED . FURTHERMORE, THE CAUSE OF THE RASHES FOUND ON THE APPLICANT' S BODY IS DISCUSSED IN DETAIL IN THE REPORT; IT ALSO DEALS WITH THE QUESTION OF THE APPLICANT' S MENTAL WELL-BEING .
18 IT SHOULD BE ADDED THAT EVEN THE MINORITY REPORT, WHICH IN SUBSTANCE IS ACCEPTED BY THE APPLICANT, MERELY CONTAINS THE STATEMENT THAT SOMATIC SEQUELAE CANNOT BE DISCOUNTED, WHICH IS INSUFFICIENT TO SUPPORT THE CONCLUSION THAT AN ACCIDENT OR AN OCCUPATIONAL DISEASE WITHIN THE MEANING OF THE STAFF REGULATIONS HAS OCCURRED .
19 SINCE THE AUTHORS OF THE MAJORITY REPORT DID NOT THEREFORE PROCEED FROM ANY MISCONCEPTIONS AND DID NOT DRAW ANY MANIFESTLY WRONG CONCLUSIONS, THEIR REPORT MUST BE CONSIDERED VALID .
20 IT REMAINS TO CONSIDER WHETHER THE CONTESTED DECISION WAS A PROPER DECISION FOR THE PURPOSES OF ARTICLE 19 OF THE INSURANCE RULES . BEING EXPRESSLY BASED ON ARTICLE 23 OF THE INSURANCE RULES IT MUST BE REGARDED AS AN IMPLICIT REFUSAL TO RECOGNIZE THAT THE CONDITIONS FOR THE GRANT OF BENEFITS UNDER ARTICLE 73 OF THE STAFF REGULATIONS ARE SATISFIED; IT MUST THEREFORE BE REGARDED AS A DECISION FOR THE PURPOSES OF ARTICLE 19 OF THE INSURANCE RULES, ALTHOUGH IT WOULD HAVE BEEN PREFERABLE FOR THIS TO HAVE BEEN CLEARLY STATED .
21 SINCE THE APPLICANT' S CLAIM FOR THE ANNULMENT OF THE CONTESTED DECISION IS UNFOUNDED, THERE IS NO NEED TO CONSIDER THE OTHER CLAIMS .
22 IT FOLLOWS THAT THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY . HOWEVER, THE COURT MUST POINT OUT THAT, SHOULD ANY SUBSEQUENT DAMAGE EMERGE, IT IS OPEN TO THE APPLICANT TO CALL ON THE DEFENDANT TO REOPEN THE ADMINISTRATIVE PROCEDURE, THAT IS TO SAY TO RECONSIDER HIS CASE AND TO COME TO A FRESH DECISION .

COSTS
23 ACCORDING TO THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY' S PLEADING . HOWEVER, ARTICLE 70 OF THE RULES OF PROCEDURE PROVIDES THAT INSTITUTIONS MUST BEAR THEIR OWN COSTS IN ACTIONS BROUGHT BY OFFICIALS OR OTHER SERVANTS OF THE COMMUNITIES, WITHOUT PREJUDICE TO THE SECOND SUBPARAGRAPH OF ARTICLE 69 ( 3 ), WHICH PROVIDES THAT THE COURT MAY ORDER EVEN A SUCCESSFUL PARTY TO PAY COSTS WHICH THE COURT CONSIDERS THAT PARTY TO HAVE UNREASONABLY OR VEXATIOUSLY CAUSED THE OPPOSITE PARTY TO INCUR .
24 FACED WITH THE DEFENDANT' S FAILURE TO RESPOND TO HIS REQUEST FOR AN EXPLANATION REGARDING THE CONTESTED DECISION AND TO HIS FORMAL COMPLAINT AGAINST THAT DECISION, THE APPLICANT WAS COMPELLED TO BRING AN ACTION IN ORDER TO AVOID FORFEITING ANY LEGAL RIGHTS .
25 SINCE, THEREFORE, THE DEFENDANT CAUSED THE APPLICANT TO INCUR THE COSTS IN THIS CASE, IT MUST BE ORDERED TO PAY ALL THE COSTS .

ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION;
( 2 ) ORDERS THE COMMISSION TO PAY THE COSTS .