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

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Officials - Sick leave - Medical examination - No prescribed procedure - Recourse to a procedure for consultation of an Invalidity Committee - Permissibility - Decision requiring official to resume work - Irregularities in the proceedings of the Invalidity Committee - No effect
( Staff Regulations of Officials, Arts 59 and 78 )

Article 59 of the Staff Regulations, under which an official who is unable to perform his duties as a result of sickness or accident may be required to undergo a medical examination organized by the institution by which he is employed, does not lay down a specific procedure for that purpose .
If the institution institutes a procedure for consultation of the Invalidity Committee provided for in Article 78 of the Staff Regulations, thus according to the official better safeguards than those provided for in Article 59, the official may not call in question the decision requiring him to resume work in reliance on irregularities in the proceedings of the Invalidity Committee .

In Case 268/86
Lise Clasen, an official of the European Parliament, residing at Roodt-sur-Syre ( Luxembourg ), represented by Kirsten Levinsen, Advokat, with an address for service in Luxembourg at the Chambers of Marc Loesch, 8 rue Zithe,
applicant,
v
European Parliament, represented by its Jurisconsult, Francesco Pasetti-Bombardella, and by M . Peter, Head of Division in the Legal Department, acting as Agents, assisted by Henrik Worning, Advokat, with an address for service in Luxembourg at the seat of the European Parliament, Kirchberg,
defendant,
APPLICATION for the annulment of the instruction to resume work contained in the administrative measure adopted by the European Parliament on 3 March 1986 and for an order that the European Parliament should submit the applicant' s case to a new Invalidity Committee and resume payment of her salary, together with default interest, and travel expenses for her annual leave,
THE COURT ( First Chamber )
composed of : G . Bosco, President of Chamber, R . Joliet and F . A . Schockweiler, Judges,
Advocate General : J . L . da Cruz Vilaça
Registrar : H . A . Ruehl, Principal Administrator
having regard to the Report for the Hearing and further to the hearing on 8 December 1987,
after hearing the Opinion of the Advocate General delivered at the sitting on 9 February 1988,
gives the following
Judgment

By an application lodged at the Court Registry on 30 October 1986, Lise Clasen, an official of the European Parliament, brought an action for the annulment of the instruction to resume work contained in the administrative measure adopted by the European Parliament on 3 March 1986 and, in consequence thereof, for the European Parliament to be ordered to refer the applicant' s case for consideration by a new Invalidity Committee, to resume paying her salary, in particular the monthly transfers to her account in Denmark, and payment of her travel expenses for her annual leave, in each case with effect from 1 May 1986, and, in view of the delay in the payment of her salary, to pay default interest at the bank rate as from 1 June 1986 until payment is made .
Having been informed that Mrs Clasen, who had been absent from work through sickness for a total of 542 days between 13 January 1982 and 1 August 1985, had recently submitted a new request for sick leave until 3 September 1985, the Director of Personnel and Social Affairs of the European Parliament notified Mrs Clasen, by letter of 4 October 1985, that he had decided to refer her case to an Invalidity Committee pursuant to Article 78 of the Staff Regulations . In that letter, the Director of Personnel asked Mrs Clasen to give him the name of the doctor proposed by her as a member of the Invalidity Committee, in accordance with the Staff Regulations .
The applicant designated Dr J . Christophersen, a doctor in Denmark, and the European Parliament asked Dr Fettmann, the doctor appointed as its representative on the Invalidity Committee, to contact Dr Christophersen in order to choose the third doctor and to make arrangements for the proper functioning of the committee .
The task entrusted to the Invalidity Committee was to determine whether the applicant was suffering from total permanent invalidity preventing her from performing the duties corresponding to a post in her career bracket .
By letter of 6 December 1985, Dr Fettmann informed Dr Christophersen that he had contacted Dr Palgen, the third doctor on the Invalidity Committee, and that he envisaged holding a meeting of the committee on 12 December 1985 .
On 9 December 1985, Dr Christophersen wrote to Dr Fettmann to say that she had no up-to-date information on the applicant' s case, and that she was going to see the applicant on 19 December 1985 .
On 6 January 1986, Dr Christophersen sent to the European Parliament a medical report concluding that Mrs Clasen should be granted an invalidity pension .
On 30 January 1986, Dr Fettmann acknowledged receipt of that report and told Dr Christophersen that the Invalidity Committee would meet on 17 February 1986 at his office . In his letter, Dr Fettmann noted, referring to earlier telephone conversations, that Dr Christophersen had been informed that her presence in person was not necessary . He also told Dr Christophersen that, in the event of her not agreeing with the report of the other two doctors, it would be appropriate for her not to sign the report but to send it back, if necessary accompanied by a brief memorandum .
On 4 February 1986, Dr Christophersen wrote to Dr Fettmann to say that she was unable to be present in Luxembourg on 17 February 1986 .
On 17 February 1986, Dr Fettmann and Dr Palgen, taking note of the fact that Dr Christophersen had "apologized for her inability to attend by letter of 4 February 1986" and that she had "sent a detailed report concerning her patient", drew up the report of the Invalidity Committee, concluding that Mrs Clasen was not suffering from either permanent or temporary invalidity .
By registered letter dated 3 March 1986, a copy of the conclusions of the Invalidity Committee was notified by the European Parliament to Mrs Clasen . In that letter, the Director-General of Personnel also asked Mrs Clasen to resume work without delay, having regard to the conclusions of the committee .
The submissions contained in the application may be summarized as follows :
( i ) Infringement of the first indent of the first paragraph of Article 7 of Annex II to the Staff Regulations;
( ii ) Infringement of the third paragraph of Article 7 of Annex II to the Staff Regulations;
( iii ) Involuntary absence of Dr Christophersen from the meeting of the Invalidity Committee as a result of incorrect information;
( iv ) Proceedings of the Invalidity Committee irregular for lack of a quorum;
( v ) Infringement of the second paragraph of Article 7 of Annex II to the Staff Regulations;
( vi ) Infringement of Article 78 of the Staff Regulations .
The European Parliament contends that the applicant has no interest in bringing an action and that her submissions are unfounded .
Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the 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 .
The European Parliament contests the admissibility of the application and contends that the case is not concerned with an application for a finding of invalidity submitted by the applicant and rejected by the appointing authority . In the interests of sound administration, the procedure adopted was intended to establish whether or not the absences in question were justified and, at the same time, to determine whether it was appropriate to make a finding of invalidity in respect of the official concerned . The European Parliament considers, however, that it was at all times entitled to waive a discretionary power granted to it by the Staff Regulations in order to initiate an invalidity procedure and that there was nothing to prevent it from taking account of the opinions of Dr Fettmann and Dr Palgen as medical assessments on which to base a finding that the applicant' s absences were irregular . The European Parliament concludes that even if the validity of the procedure adopted by the Invalidity Committee were open to question, the appointing authority' s decision calling upon the applicant to resume work would in no way be affected thereby, since it was in any case based on the opinions of two medical experts .
Mrs Clasen states in reply that the instruction of 3 March 1986 refers expressly to the report of the Invalidity Committee; if the decision of the Invalidity Committee were inoperative as a result of certain procedural defects, the instruction of 3 March 1986 would necessarily be inoperative as well . She does therefore have an interest in bringing an action .
With respect to the objection of inadmissibility raised by the European Parliament, it must first be stated that, in the letter against which this action is directed, the European Parliament did not give a decision concerning retirement on grounds of invalidity . The letter can only be regarded as a decision liable to affect the applicant adversely to the extent to which it implied that the applicant' s absences were not justified on health grounds .
Whilst it may be acknowledged that that is the meaning to be attributed to the letter in dispute, it should be noted that Article 59 of the Staff Regulations, under which an official who is unable to perform his duties as a result of sickness may be required by the institution in which he is employed to undergo a medical examination, does not lay down any specific procedure for that purpose .
By following the procedure under Article 78 and by relying upon the concurring opinions of two doctors issued having regard to a report prepared by the doctor enjoying the confidence of and designated by the person concerned, the European Parliament accorded to the applicant better safeguards than those provided for in Article 59 .
It follows that the alleged irregularities in the procedure under Article 78, even if they were to be established, could not have any effect upon the contested measure .
Consequently, although the application must be regarded as admissible against the contested measure in so far as the latter instructs the applicant to resume her work and refuses, by implication, to accept that her absences were justified on health grounds, it must be stated that the applicant' s submissions fail with respect to the substance of the measure construed in those terms . Therefore, the action, which is based exclusively on those submissions, must be dismissed as unfounded .

Costs
Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs and under Article 70 of those rules institutions are to bear their own costs in proceedings brought by servants of the Communities . However, the second subparagraph of Article 69 ( 3 ) of the Rules of Procedure 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 . It must be noted that the European Parliament, by initiating a procedure under Article 78 of the Staff Regulations, which it continued subsequently only for the purposes of applying Article 59, misled the applicant into bringing her action on the basis described above . Accordingly, it is appropriate to apply the second subparagraph of Article 69 ( 3 ) of the Rules of Procedure and to order the European Parliament to pay the costs in their entirety .

On those grounds,
THE COURT ( First Chamber )
hereby :
( 1 ) Dismisses the application .
( 2 ) Orders the European Parliament to pay the costs in their entirety, including those of the applicant .