In Case C-185/90 P,
Commission of the European Communities, represented by its Legal Adviser, Joseph Griesmar, and Sean van Raepenbusch, a member of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a national official on secondment to its Legal Service, Wagner Centre, Kirchberg,
applicant,
APPEAL against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 6 July 1990 in Case T-43/89 between Walter Gill and the Commission of the European Communities and seeking to have that judgment set aside,
the other party to the proceedings being:
Walter Gill, residing at Long Barn, Stoke-by-Clare, Sudbury, Suffolk (United Kingdom), represented by A. May, of the Luxembourg Bar, with an address for service in Luxembourg at his chambers, 31 Grand Rue, who submits that the appeal should be dismissed in its entirety,
supported by
Union Syndicale-Luxembourg, represented by J.-N. Louis, of the Brussels Bar, with an address for service at the office of Fiduciaire Myson S.à r.l, 1 Rue Glesener,
THE COURT (Second Chamber),
composed of: T.F. O' Higgins, President of the Chamber, G.F. Mancini and F.A. Schockweiler, Judges,
Advocate General: F. G. Jacobs,
Registrar: J.-G. Giraud,
having regard to the appeal of the Commission and the response of Mr Gill,
having regard to the Report of the Judge-Rapporteur and after hearing the Advocate General and the parties in accordance with Article 20 of the Rules of Procedure,
after hearing the Opinion of the Advocate General at the sitting of 19 September 1991, gives the following
Judgment
1 By an application lodged at the Registry of the Court of Justice on 7 June 1990, the Commission of the European Communities brought an appeal under Article 49 of the EEC Statute and the corresponding provisions of the ECSC and Euratom Statutes of the Court of Justice against the judgment of 6 April 1990 in Case T-43/89 [1990] ECR II-173 by which the Court of First Instance annulled the Commission' s decision of 20 May 1988 refusing to apply in Mr Gill' s case the second paragraph of Article 78 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the "Staff Regulations") and determining his invalidity pension on the basis of the third paragraph of Article 78 of the Staff Regulations, that last provision being less advantageous to the official; that judgment of the Court of First Instance also ordered the Commission to pay the costs of the proceedings.
2 In support of its appeal, the Commission relies on four pleas in law: infringement of the second paragraph of Article 78 of the Staff Regulations, infringement of Article 13 of Annex VIII to the Staff Regulations, infringement of the general principle that judgments must state reasons and infringement of Article 73 of the Staff Regulations and Articles 3 and 19 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").
3 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
4 By its first plea, the Commission claims that the Court of First Instance, in the judgment appealed against, misinterpreted the term "occupational disease" in the second paragraph of Article 78 of the Staff Regulations.
5 In support of this plea, the Commission objects that the Court of First Instance refused to take account, for the purposes of applying the second paragraph of Article 78 of the Staff Regulations, of the definition of the term "occupational disease" appearing in Article 3 of the Insurance Rules adopted in implementation of Article 73 of the Staff Regulations. According to the Commission, that term cannot vary according to whether it is a matter of applying Article 73 or Article 78 of the Staff Regulations. The Commission further complains that the Court of First Instance took no account of the principle according to which there must be a causal link between the occupational disease, within the meaning of the second paragraph of Article 78 of the Staff Regulations, or its aggravation, and the duties performed in the service of the Communities.
6 In order to rule on the merits of that plea, it is appropriate to make the preliminary point that the first paragraph of Article 78 of the Staff Regulations provides that in the case of total permanent invalidity preventing an official from performing the duties corresponding to a post in his career bracket the official is to be entitled to an invalidity pension which, according to the third paragraph of that provision, is to be equal to the retirement pension to which the official would have been entitled at the age of 65 years if he had remained in the service until that age. The second paragraph of that article provides that where the invalidity arises from, inter alia, an occupational disease, the invalidity pension is to be 70% of the basic salary of the official.
7 The term "occupational disease", which is not defined in Article 78 of the Staff Regulations, also appears in Article 73 of the Staff Regulations, which provides for each official to be covered, from the day of his entry into the service of the Communities against the risks of, in particular, occupational disease.
8 Article 3 of the Insurance Rules, adopted in implementation of Article 73 of the Staff Regulations, defines the term "occupational disease" as follows:
"1. The diseases contained in the 'European List of Occupational Diseases' annexed to the Commission Recommendation of 23 July 1962 (Journal Officiel 1962 No 80, p. 2188) and to any supplements thereto shall be considered occupational diseases to the extent to which the official has been exposed to the risk of contracting them in the performance of his duties with the European Communities.
2. Any disease or aggravation of a pre-existing disease not included in the List referred to in paragraph 1 shall also be considered an occupational disease if it is sufficiently established that such disease or aggravation arose in the course of or in connection with the performance by the official of his duties with the Communities."
9 It was not disputed before the Court of First Instance that the bronchial pneumonopathy from which Mr Gill suffered is not contained in the European List referred to in Article 3(1) of the Insurance Rules.
10 In the judgment appealed against, the Court of First Instance declined to refer, for the purposes of applying the second paragraph of Article 78 of the Staff Regulations, to the definition of "occupational disease" contained in Article 3(2) of the Insurance Rules, taking the view that that definition applied only for the purposes of the application of Article 73 of the Staff Regulations.
11 In that regard, the Court of First Instance held that the sets of rules established by Articles 73 and 78 of the Staff Regulations were different and independent of one another. According to the Court of First Instance, Article 78, unlike Article 73, does not empower the institutions to lay down the conditions for the award of the benefits to which it refers and the application of its provisions is therefore subject only to the conditions provided for in Articles 13 to 16 of Annex VIII to the Staff Regulations, which contain neither a definition of occupational disease nor a reference to Article 73 of the Staff Regulations or to the rules implementing that article. It would therefore be contrary to the scheme of the provisions concerned to interpret Article 78 of the Staff Regulations in the light of Article 3 of the Insurance Rules, which were drawn up by common agreement of the institutions under the express power conferred by Article 73(1) of the Staff Regulations; according to the Court of First Instance, that is especially so if such an interpretation were to have the consequence of limiting the rights of those concerned.
12 From those considerations the Court of First Instance deduced that in order to satisfy the second paragraph of Article 78 of the Staff Regulations the official was not required to establish that the disease or aggravation arose in the course of or in connection with the performance of his duties with the Communities within the meaning of Article 3(2) of the Insurance Rules.
13 However, that interpretation of the Court of First Instance is not in accordance with either the wording of the Staff Regulations and the Insurance Rules or with the general scheme of the relevant provisions of those rules and regulations.
14 Contrary to what the Court of First Instance held in the judgment appealed against, there is no valid reason for taking the view that the term "occupational disease" must have a different meaning depending on whether it is a question of invalidity pension rights arising from occupational disease under Article 78 of the Staff Regulations or of cover against the risks of occupational disease within the meaning of Article 73 of the Staff Regulations, since the two benefits are intended to provide compensation for the economic consequences of the same cause of invalidity which is connected with occupational activities actually and regularly performed in the service of the Communities.
15 The definition of occupational disease given in Article 3(2) of the Insurance Rules appears, moreover, to correspond with the ordinary meaning of the words according to which a disease, or its aggravation, which originates in the performance of duties with the Communities may be regarded as assuming an occupational character under the Community rules.
16 It follows that, in the absence of any indication to the contrary in the Staff Regulations, the term "occupational disease" cannot have a different meaning within that instrument, depending on whether it is a question of applying Article 73 or Article 78, even though each of those provisions concerns a set of arrangements which has its own characteristics.
17 In those circumstances, the Court of First Instance was also wrong to rule that, in order to establish the existence of an occupational disease within the meaning of the second paragraph of Article 78 of the Staff Regulations, the official was not obliged to prove the existence of a causal link between the disease or its aggravation and the performance of his duties with the Communities.
18 In the judgment appealed against, the Court of First Instance therefore misconstrued the legal concept of "occupational disease" as it appears in the second paragraph of Article 78 and thus infringed Community law.
19 That conclusion is not affected by the consideration that when Mr Gill was recruited the Commission had been fully aware, from the results of his prior medical examination, of the disease affecting him which could have had its origin in his previous occupational activities during which he had acquired the experience which had led to his recruitment by the Commission.
20 That factual circumstance cannot affect the legal concept of "occupational disease". Even if it must be considered to be established that the Commission was aware of the disease affecting Mr Gill, the sole inference which may lawfully be drawn from that fact is that the appointing authority had, with full knowledge of all the relevant facts, accepted the risk that the employment relationship with the official concerned would cease prematurely and that it would have to pay him a pension before the normal date. On the other hand, the Court of First Instance was not entitled to infer from the abovementioned circumstance that a disease which the official had contracted in the course of occupational activities prior to his entry into the service of the Communities could be considered to be an occupational disease for the purposes of the second paragraph of Article 78 of the Staff Regulations.
21 It follows from the foregoing that the first plea of the Commission is well founded.
22 By its second plea, the Commission submits that the Court of First Instance infringed Article 13 of Annex VIII to the Staff Regulations by ruling that, even if, for the purposes of the application of the second paragraph of Article 78 of the Staff Regulations, the existence of a causal link between Mr Gill' s disease, or its aggravation, and the performance of his duties in the Communities' service had to be proved, that causal relationship was proved in this case, despite the contrary conclusion reached by the Invalidity Committee.
23 With regard to that submission it should be pointed out first of all that, pursuant to Article 13 of Annex VIII to the Staff Regulations, supplemented by Articles 7 to 9 of Annex II to the Staff Regulations, the declaring of an official' s invalidity, which Article 78 of the Staff Regulations has in view, is a matter for the Invalidity Committee.
24 Secondly, it is settled law (see, for example, the judgment in Case 156/80 Morbelli v Commission [1981] ECR 1357) that the abovementioned provisions are intended to confer upon medical experts the task of making definitive appraisals of all medical questions. The Court has accordingly concluded (see, for example, the judgment in Case 265/83 Suss v Commission [1983] ECR 4029 and that in Case 2/87 Biedermann v Court of Auditors [1988] ECR 143) that the Court' s review may not extend to medical appraisals properly so-called, which must be regarded as definitive provided that they were properly made. That case-law, on Article 73 of the Staff Regulations, is, for the same reasons, equally applicable to the conclusions of the Invalidity Committee acting under Article 78 of the Staff Regulations.
25 Questions concerning the origin of a disease are by their nature medical questions. It follows that in this regard neither the appointing authority nor the Court of First Instance may substitute their own opinion for the conclusions of the Invalidity Committee.
26 Consequently, by ruling, contrary to the conclusions of the Invalidity Committee, which found no causal relationship between Mr Gill' s condition and his duties with the Communities, that his disease arose in the course of his occupational activities in the service of the Communities, the Court of First Instance infringed Community law.
27 The Commission' s second plea is therefore well founded as well.
28 It follows from all the foregoing considerations that none of the grounds on which the Court of First Instance annulled the Commission' s decision of 20 May was well founded in law. Consequently, the judgment of the Court of First Instance of 6 April 1990 must be set aside, without its being necessary to examine the other pleas put forward by the Commission in support of its appeal.
On those grounds,
THE COURT (Second Chamber)
hereby rules:
1. The judgment given by the Court of First Instance on 6 April 1990 in Case T-43/89 Gill v Commission, is set aside;
2. The case is referred back to the Court of First Instance;
3. Costs are reserved.
