1 BY AN APPLICATION FILED ON 11 OCTOBER 1972, THE APPLICANT BROUGHT BEFORE THE COURT OF JUSTICE AN ACTION AGAINST THE COMMISSION' S DECISION OF 15 MARCH 1972, RECOGNIZING HER AS HAVING A PERMANENT PARTIAL INVALIDITY OF 9 PER CENT FOLLOWING AN ACCIDENT SHE SUSTAINED ON 3 JANUARY 1968, AND AGAINST THE COMMISSION' S IMPLIED DECISION OF REJECTION OF HER ADMINISTRATIVE APPEAL OF 12 JUNE 1972;
BY THIS ACTION THE APPLICANT FURTHER SUBMITS THAT SHE SHOULD BE RECOGNIZED AS HAVING A PERMANENT PARTIAL INVALIDITY OF 70 PER CENT OR ALTERNATIVELY OF NO LESS THAN 45 PER CENT AND THAT THE COMMISSION SHOULD BE ORDERED TO PAY HER INTEREST TO WHICH SHE IS ENTITLED AS FROM THE DATE OF HER ACCIDENT;
THE REQUEST FOR ANNULMENT OF THE DECISION OF 15 MARCH 1972
2 IN THE FIRST HEAD OF THE SUBMISSIONS THE ACTION SEEKS THE ANNULMENT OF THE DECISION OF 15 MARCH 1972 BY WHICH THE COMMISSION RECOGNIZED THE PARTY CONCERNED, UNDER ARTICLE 73 OF THE STAFF REGULATIONS, AS HAVING A PERMANENT PARTIAL INVALIDITY OF 9 PER CENT FOLLOWING THE ACCIDENT SHE SUSTAINED ON 3 JANUARY 1968;
3 IT IS ESTABLISHED THAT BY A DECISION DATED 9 OCTOBER 1973, WHICH WAS COMMUNICATED TO THE APPLICANT ON 17 OCTOBER 1972, THE COMMISSION DECIDED TO HAVE THE DEGREE OF PERMANENT PARTIAL INVALIDITY SUFFERED BY THE PARTY CONCERNED FIXED BY A DOCTOR NOT BELONGING TO THE INSTITUTION, TO BE APPOINTED BY MUTUAL AGREEMENT BETWEEN THE COMMISSION' S MEDICAL ADVISER AND THE DOCTOR TREATING THE APPLICANT;
FURTHERMORE, THE DIRECTOR-GENERAL OF PERSONNEL AND ADMINISTRATION EXPRESSLY INFORMED THE APPLICANT BY LETTER DATED 29 NOVEMBER 1972, THAT THE DECISION OF 15 MARCH 1972 " WAS TO BE REGARDED AS REVOKED ";
IN THESE CIRCUMSTANCES IT MUST BE CONCLUDED THAT, SINCE THE DECISION OF 15 MARCH 1972 HAD BEEN REVOKED BY THE COMMISSION, THE SUBJECT MATTER OF THE APPEAL ON THIS ISSUE CEASED TO EXIST .
4 FOR THE SAME REASONS THE SUBJECT MATTER OF THE APPEAL AGAINST THE IMPLIED REFUSAL TO WITHDRAW THE DECISION OF 15 MARCH 1972 ALSO CEASED TO EXIST;
THE REQUEST FOR THE DEGREE OF INVALIDITY TO BE FIXED
5 IT IS FURTHER SUBMITTED IN THE ACTION THAT THE DEGREE OF PERMANENT PARTIAL INVALIDITY SUFFERED BY THE APPLICANT SHOULD BE FIXED AT 70 PER CENT OR AT LEAST AT 45 PER CENT;
6 ARTICLE 13 OF THE POLICY TAKEN OUT BY THE COMMISSION WITH AN INSURANCE COMPANY PROVIDES FOR AN ARBITRATION PROCEDURE IN CASES OF DISPUTES ON MEDICAL MATTERS;
AS STATED PREVIOUSLY, THE COMMISSION DECIDED TO HAVE THE DEGREE OF PERMANENT PARTIAL INVALIDITY SUFFERED BY THE PARTY CONCERNED FIXED BY A DOCTOR NOT BELONGING TO THE INSTITUTION, TO BE APPOINTED BY MUTUAL AGREEMENT BETWEEN THE COMMISSION' S MEDICAL ADVISER AND THE DOCTOR TREATING THE PARTY CONCERNED;
THE COMMISSION' S SAID DECISION WHICH ESTABLISHED THE NEW PROCEDURE CONTAINS NOTHING WHICH WOULD JUSTIFY A RESTRICTIVE INTERPRETATION OF THE AUTHORITY TO BE VESTED IN THE DOCTOR ACTING AS ARBITRATOR;
IN THESE CIRCUMSTANCES THE COURT CANNOT INTERVENE BEFORE THE ARBITRATION PROCEDURE HAS BEEN EXHAUSTED;
7 THE SAID REQUEST IS THEREFORE INADMISSIBLE;
THE REQUEST FOR INTEREST ACCOUNT OF DELAY
8 THE APPLICANT SUBMITS THAT THE COMMISSION SHOULD BE ORDERED TO PAY INTEREST FROM THE DATE OF HER ACCIDENT;
THE AMOUNT OF INTEREST CANNOT BE DETERMINED UNLESS THE DEGREE OF PERMANENT PARTIAL INVALIDITY HAS FIRST BEEN ESTABLISHED;
THE ESTABLISHMENT OF THE SAID DEGREE OF INVALIDITY IS NOW THE SUBJECT OF THE ABOVE-MENTIONED ARBITRATION PROCEDURE;
9 THE SAID REQUEST IS THEREFORE INADMISSIBLE;
INFRINGEMENT OF PARAGRAPH 2 OF ARTICLE 26 OF THE STAFF REGULATIONS
10 LASTLY, THE APPLICANT SUBMITS THAT AN ORDER SHOULD BE MADE FOR THE REMOVAL FROM HER PERSONAL FILE OF A CONFIDENTIAL REPORT PREPARED BY DR G . F . ELENS AND WHICH IN HER OPINION WAS ERRONEOUS IN CONTENT, OR WHOSE VALUE AS A MEDICAL DOCUMENT WAS AFFECTED BY BIAS;
IN SUPPORT OF THIS REQUEST SHE ARGUES THAT THE COMMISSION HAS IN THE CIRCUMSTANCES FAILED TO FULFIL THE OBLIGATIONS IMPOSED ON IT BY PARAGRAPH 2 OF ARTICLE 26 OF THE STAFF REGULATIONS;
11 PARAGRAPH 2 OF ARTICLE 26 OF THE STAFF REGULATIONS PROVIDES THAT : " THE DOCUMENTS REFERRED TO IN SUB-PARAGRAPH ( A ) MAY NOT BE USED OR CITED BY THE INSTITUTION AGAINST AN OFFICIAL UNLESS THEY WERE COMMUNICATED TO HIM BEFORE THEY WERE FILED ".
IT DOES NOT FOLLOW FROM THIS PROHIBITION THAT THE PERSONAL FILE OF AN OFFICIAL MAY ONLY CONTAIN DOCUMENTS WHICH WERE PREVIOUSLY COMMUNICATED TO HIM;
AS LONG AS SUCH DOCUMENTS ARE NOT USED OR CITED AGAINST HER, AND PROVIDED THAT IT HAS NOT BEEN PROVED THAT THE MATERIAL CONTAINED IN THEM IS SUBSTANTIALLY ERRONEOUS, THERE CAN BE NO OBJECTION TO THEIR BEING PLACED IN THE PERSONAL FILE OF THE PARTY CONCERNED;
12 IN THESE CIRCUMSTANCES, THIS HEAD OF THE SUBMISSIONS IN THE ACTION MUST BE DISMISSED .
13 ARTICLE 69 ( 3 ), FIRST SUB-PARAGRAPH, PROVIDES : " 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 ";
14 THE DECISION OF 15 MARCH 1972 WAS ONLY REVOKED AFTER THE ACTION HAD BEEN COMMENCED .
MOREOVER, WHEN THE ACTION WAS BROUGHT, NO RULES HAD BEEN DRAWN UP GOVERNING THE APPLICATION OF ARTICLE 73, WHEREBY ALL THE CONDITIONS CONCERNING ITS APPLICATION COULD BE CLARIFIED;
IN THESE CIRCUMSTANCES AND HAVING REGARD TO ARTICLE 70 OF THE RULES OF PROCEDURE, IT IS APPROPRIATE THAT THE COSTS INCURRED BY THE APPLICANT IN THESE PROCEEDINGS SHOULD BE BORNE BY THE DEFENDANT;
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE ACTION;
2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS OF THE PROCEEDINGS .
