Contents
In Case 115/76LEONARDO LEONARDINI, a former official of the Commission of the European Communities, resident in Brussels, represented by Marcel Grégoire and Edmond Lebrun, Advocates at the Cour d'Appel, Brussels, with an address for service in Luxembourg at the Chambers of Tony Biever, Advocate at the Court, 83 Boulevard Grande-Duchesse Charlotte,vCOMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Raymond Baeyens, acting as Agent, assisted by Mme Denise Sorasio-Allo, a member of the Legal Service of the Commission, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg,THE COURT (First Chamber)composed of: G. Bosco, President of Chamber, J. Menens de Wilmars and A. O'Keeffe, Judges,Advocate General: J.-P. WarnerRegistrar: A. Van Houttegives the following
Judgment
Facts and issues
The facts and arguments put forward by the parties during the written procedure may be summarized as follows:
I —Facts and written procedure
II —Conclusions of the parties
The applicant claims that the Court should:1. Annul the implied decision of rejection of his complaint of 19 May 1976 inasmuch as that complaint also had as its object the award of default interest and compensation for the injury suffered;2. Rule that default interest at the rate of 8 % is due on the capiul of Brs 382361 from the day of the accident or, alternatively, from the end of September 1969, until the day of payment of the capiul;3. Order the defendant to pay to the applicant by way of default interest the sum of Bfrs 318634 or alternatively the sum of Bfrs 214122;4. Rule that default interest on the sum of Bfrs 318634 or alternatively on the sum of Bfrs 214122 is due by the defendant at the rate of 8 % per annum from 1 October 1976, or alternatively from the date of lodging of this application, until the date of actual payment;5. Order the defendant to pay the costs’.The defendant claims that the Court should:— Dismiss the present application in its entirety as unfounded;— Order the applicant to pay the costs’.
III —Submissions and arguments of the parties
In support of the application the applicant makes the following submissions:— Infringement of Article 24 of the Staff Regulations, in that there was a considerable and abnormal delay in determining the degree of invalidity (25 April 1966— 16 September 1976) due to the wrongful act or omission of the Commission;— Infringement of the principle that the wrongful act or omission on the part of the administration renders it liable and gives a right to compensation for resulting damage.In the present case the delay in dealing with the file was such as necessarily to give rise to the presumption of a wrongful act or omission on the part of the Commission.(a) The applicant makes the following observations on these irregularities:Apart from the fact that the invalidity was stabilized at the end of 1968 (since the office responsible for payment informed the applicant on 11 January 1969 of the proposal by the insurers to assess the degree of invalidity at 6 %), the Commission was guilty of several acts of negligence, in particular:— Since the applicant did not accept the aforementioned proposal the Commission informed him on 6 March 1969 that his file was being studied; however, it was not until November 1971, after several reminders, that a medical examination was conducted by the Commission;— It was not unul 7 June 1972 that the Commission informed the applicant of the result of that examination, involving the degree of invalidity being fixed at 6 %;— After the Commission decided on 25 September 1972 to have the degree of invalidity determined by a medical arbitrator to be appointed by mutual agreement between the applicant's private doctor and the medical officer of the institution, the head of the Commission's Medical Service did not contact the applicant's medical adviser for this purpose until December 1973;— Although the medical officer was invited he was neither present nor represented at nor did he excuse his absence from the medical examination carried out by the medical arbitrator in Milan on 2 July 1974;— The medical officer did not contact the medical arbitrator again on the subject of that examination unul September 1975, at a time when the decision of the medical arbitrator was no longer open to discussion;— After this resumption of contact it was not until September 1976 that the Commission informed the applicant of its decision to fix the degree of invalidity at 16 o/o.(b) With regard to the damage alleged the applicant further observes:— That the capital sum due in the event of invalidity (which under Article 73 (2) (b) and (c) of the Staff Regulations should be calculated on the basis of the amounts of salary received during the 12 months before the accident) was calculated in the present case according to the degree of invalidity determined in September 1976 on the salary paid in April 1966. The value of money has considerably depreciated since then, while the salaries of officials have considerably increased;— If the determination of the degree of invalidity and consequendy the corresponding payment of capiul had been undertaken within a reasonable period the applicant could have invested his capital and received the interest from that date.The applicant sutes finally, as regards his alternative claim for default interest from the end of September 1969, that even assuming that his invalidity did not formally arise until 11 January 1969 the dispute regarding the degree of that invalidity could have been settled, if necessary by arbitration, before the end of September 1969.The defendant denies that it was guilty of a wrongful act or omission in settling the present case. To this effect it rehearses the course of events since 25 April 1966 until 16 September 1976, which in its view is divided by the following facts into four periods:(a) First period (25 April 1966 — 11 January 1969):— Submission of the first medical report by the applicant assessing the degree of invalidity at 20 %.— Examination of the applicant in May 1967 by the medical officer of the insurers with whom the Commission had effected accident cover in respect of its staff in the absence of the implementing rules under Article 73 of the Staff Regulations.— Second medical report dated 22 November 1967 submitted by the applicant to the Commission, assessing the degree of invalidity at 25 % in respect of the dental injuries (Application, Annex 25).— Note of 9 May 1968 sent to the Commission by the insurers who, as advised by their medical officer, took the view that the dental treatment could not be regarded as terminated and asked the Commission to send them, as soon as the dental treatment was ended, a certifícate to that effect.— Submission by the Commission to the insurers on 18 September 1968 of a medical certifícate dated 15 September 1968 drawn up by a medical practitioner acting for the applicant and assessing the degree of invalidity at 35-38 % in respect of the dental injuries.— Proposal by the insurers of a degree of invalidity of 6 %, brought to the knowledge of the applicant by a note from the Commission dated 11 January 1969.(b) Second period (umil 7 June 1972):— Rejection of that proposal by the applicant and submission of a new medical certificate dated 15 February 1969 assessing the degree of invalidity at 55 % for the consequences of the accident as a whole. Since recourse to arbitration provided for in Article 13 of the insurance policy was not possible because the applicant did not agree, it was decided that the degree of invalidity would be definitely fixed by the Medical Service of the Commission, and this moreover accorded with the wishes of the applicant as expressed during a meeting on 3 July 1969 (Defence, Annex VII).— Several successive notes from the Commission asking the applicant to give the name of the medical practitioner treating him and to confirm that the medical treatment which he had had to have as a result of his accident as terminated.— Note from the applicant dated 28 January 1971 stating mat additional treatment was necessary and forwarding fresh medical reports assessing the degree of invalidity as a whole at 38 %. The applicant was again asked by notes dated 22 July and 21 October 1971 to produce a certificate to the effect that his dental treatment was terminated or alternatively stating the stage reached in that treatment.— On 4 November 1971 the applicant was examined by a specialist appointed by the Commission. As a result of that examination and in view of the applicant's file as a whole the Medical Service of the Commission drew up a report dated 22 December 1971 assessing the degree of invalidity at 6 %. The administrative authority confirmed that assessment by decision of 7 June 1972 and in so doing took account of the observations of the applicant concerning the relevant scales. The capiul sum so calculated was paid to the applicant on 9 June 1972.(c) Third period (until 2 July 1974)— The applicant returned that sum and on 14 June 1972 lodged a complaint under the Staff Regulations against the aforementioned decision of 7 June 1972. That decision was rescinded by the Commission, who informed the applicant that the degree of partial permanent invalidity would be determined ‘by a medical practitioner not responsible to the Commission and appointed by common agreement between the medical officer of the Commission and your private medical practitioner’.— The name of the last-mentioned practitioner was supplied by the applicant at the end of October 1973.— On 12 December 1973 the Commission contacted the said practitioner for the purpose of appointing the arbitrator. By letter dated 5 March 1974 the Commission agreed to the appointment of one of the medical practitioners proposed and on 27 May 1974 wrote to him informing him that he had been appointed to act as umpire, asking him to examine the applicant and at the same time enclosing the relevant scales for calculating degrees of invalidity for servants of the Commission.— The Commission's Medical Service was not asked to send a representative to be present at that examination. It was only on receipt of a letter dated 23 July 1974 from the arbitrator that the Medical Service became aware that the medical examination had been carried out by the arbitrator on 2 July 1974 in Milan in the presence of the applicant's private practitioner (Defence, Annex IX) and that the Service received a copy of the report made following that examination. That report, which was not available to the Medical Service, after translation, until September 1974, determined a degree of invalidity of 17 %.(d) Fourth period (until decision of 16 September 1976)— There was a meeting on 22 September 1975 between the head of the Medical Service and the arbitrator on the subject of the result of the said examination and the conditions under which it had taken place, in particular in view of the fact that the report relating to it was based on scales other than those supplied by the Commission, taken from the Italian legislation. That meeting was followed by an exchange of letters, the last of which from the arbitrator being dated 28 April 1976 and available, so it appears, in translation during June 1976.— On 16 September 1976 there was a letter from the Commission informing the applicant that the degree of invalidity had been fixed at 16 %.Having set out these facts the defendant addresses itself to the two submissions made by the applicant and makes the following observations:
(a)Infringement of Article 24 of the Staff Regulations
Article 24 of the Staff Regulations, which is of general scope, does not apply in cases governed by specific provisions of the Staff Regulations. Accident risk is specifically covered by Article 73 of the Staff Regulations. In addition, Article 24 (and in particular its first paragraph) relates mainly to damage intentionally caused to an official, his family or property by reason of his position or duties. Moreover, it is not disputed that in the present case the Community must assist the applicant. The present action relates only to the delay in the payment of the allowances for the invalidity found and therefore raises a question which is not covered by Article 24 of the Staff Regulations.
(b)Wrongful act or omission on the part of the Commission in dealing with the file
First, it is necessary to observe that the applicant's argument regarding the alleged damage arising from the increase in the salaries of officials between 1966 and 1976 comes up against Article 2 (c) of the Staff Regulations, so that the only relevant question can be that of the damage arising from the alleged wrongful delay on the part of the Commission in the present case.Further, the length of time between the date of the accident and the decision of 16 September 1976 cannot in itself lead to a presumption of a wrongful act or omission on the pan of the Commission. According to the principles of law applicable to the case it is for the applicant to prove the existence of any wrongful an or omission.There is no such proof in the present case, for the Commission cannot be said to have been guilty of a wrongful act or omission throughout the procedure for the setdement of the file in question.The applicant himself does not complain of ‘negligence’ on the part of the Commission until the second period. The relative length of that period is due in part to the difficulty of establishing an ad hoc procedure in the absence of the implementing provisions provided for in Article 73 (1) of the Staff Regulations and further to the refusal or failure by the applicant to provide the particulars repeatedly requested by the Commission.As for the third period, it was the persistent silence of the applicant from September 1972 to October 1973 which prevented the procedure from taking the normal course. likewise as regards the fourth period, the period of a year between receipt of the repon from the arbitrator and the meeting between him and the head of the Commission's Medical Service is due to the rather delicate situation in which the Commission found itself by reason of the irregular nature of the procedure adopted for the medical examination on 2 July 1974 and the problems involved in the conversion of the degree of invalidity determined by the arbitrator on the basis of the Italian scales.In view of these circumstances it is not possible to find the Commission guilty of a wrongful act or omission. This is all the more so since the absence of rules for the implementation of Article 73 of the Staff Regulations caused the administration to adopt an ad hoc procedure and the applicant was himself guilty on many occasions of unreasonable, or in any event unjustifiable, neglect.
(c)The default interest claimed
Since the Commission has not been guilty of any wrongful act or omission in the present case, the question of the payment of default interen does not arise; it could arise only if the Commission were found liable for a wrongful act or omission.As for the question of the time from which such interen should be calculated the following observations may be made:— Firn of all, the consequences of the accident determining the degree of invalidity cannot be regarded as having been clear before 4 November 1971, when the Medical Service examined the applicant.— Secondly, according to the case-law of the Court formal notice from the applicant is necessary to establish delay on the part of the administration and to determine the moment from which it begins. In the present case the complaint made on 14 June 1972 was unreservedly abandoned by the applicant as a result of the proposal by the Commission to pursue a new procedure to determine the degree of invalidity. In the circumstances it is only the request dated 21 October 1975 submitted by the applicant under Article 90 (1) of the Staff Regulations which may be regarded as formal notice within the abovementioned meaning so that the said interen cannot in any event be regarded as running from a time earlier than that date, it being understood moreover that the applicant's share in the responsibility for the delay in payment should reduce correspondingly the period for which the Commission was liable.This said, it is fitting to observe further that the Commission paid the applicant on 19 June Bfrs 143386, representing a first determination of the degree of invalidity at 6o/o and that the applicant of his own accord returned that sum to the Commission. In these circumstances the damages claimed by the applicant cannot in any event embrace the payment of that sum, for which there was no delay, but should relate solely to the payment of the balance, that is to say Bfrs 382361 — Bfrs 143386 — Bfrs 238975.Finally, there is no foundation in the claim for payment of default interest on the capiul created by the default interest on the capiul payable in respect of the partial permanent invalidity. Since the Commission considers that the applicant is not entitled to the latter interest, the failure to pay it cannot in itself be wrongful.In his reply the applicant challenges the defendant's version of the course of events, which far from showing negligence on his part reveals the wrongful delays on the pan of the Commission. In this respect he observes, inter alia:— The defendant's claim that the recourse to arbitration provided for in Article 13 of the insurance policy was not possible in the absence of the applicant's consent is not correct. In fact the applicant never objected to independent arbitration, as is shown by his acceptance of the decision of 25 September 1972. Moreover, the applicant's alleged refusal to consent to arbitration is irrelevant. The matter in any case ought to have gone to arbitration and the applicant would have had to bear the consequences if he had failed to attend before the arbitrator.— The defendant's version of the meeting on 3 July 1969 is also not correct. It is not true that at that meeting the applicant expressed the wish to have the degree of invalidity determined directly by the Commission's Medical Service. On the contrary, what was then agreed was that there should be arbitration by an independent medical practitioner selected by agreement between the head of the Medical Service and the practitioner treating the applicant. This is confirmed by the way the applicant acted, for since he did not accept the determination of the degree of invalidity by the Commission's Medical Service he had no alternative but to agree that the degree of invalidity should be determined by an independent practitioner.— There is no valid reason to explain why, after a decision was taken on 3 July 1969 to obtain a specialist's opinion, this was not obtained until 4 November 1971. It was not necessary to know the sute of the medical treatment of the consequences of the accident and the name of the practitioner treating the applicant in order to obtain the specialist's opinion which was decided upon on 3 July 1969. In any event, medical certificates were lodged in support of the requests for reimbursement of the medical expenses and those certificates showed both the sute of the treatment and the name of the practitioner treating the applicant. Further, it was not until 7 June 1972 (more than six years after the accident) that the applicant was finally informed of the Commission's decision to fix the degree of his invalidity at 6 %, so that at that date there was a return to the position on 11 January 1969.— The defendant's complaint that the applicant by his persistent silence from September 1972 to October 1973 obstructed the normal course of the procedure is quite unjustified. Following the decision of 25 September 1972 it was for the administration and not the official to take action, since it was the administration's duty to sun the procedure required by that decision. The fan that 15 months were necessary between the said decision and the first contact by the Medical Service with the practitioner treating the applicant (12 December 1973) in order to set that procedure in motion is in any event an unreasonable delay for which the defendant is responsible.— Not only was the Commission's Medical Service invited to attend the medical examination by the arbitrator, but the arbitrator was informed that the service in question would be represented at the examination. The medical arbitrator further testified that since he had not received the scales from the Commission's Medical Service he had used a centesimal system allowing his assessment of the degree of invalidity to be converted to the scale used by the Commission (Reply, Annex 3).This being so, it follows that the dies a quo of the default interest should be at the very least the end of September 1969, more than eight months after the date (11 January 1969) on which it is proper to regard the permanent consequences of the accident as having been apparent, that period being quite sufficient to allow an arbitrator to determine the degree of invalidity. As for the defendant's argument that there was no formal notice prior to the complaint of 21 October 1975, the applicant refers to his notes of 16 January 1968, 18 January 1969 and 12 March 1969 (Application, Annexes 24, 22 and 20).As regards the basis for the calculation of that interest, the applicant challenges the defendant's argument that the capital amount awarded should be reduced by the sum paid to the applicant on 9 June 1972. First of all, the applicant should not be penalized for the fact that upon objecting to a decision he at the same time returned what was paid to him under such decision. Secondly, that repayment did not increase the damage which had to be compensated and was thus in that respect of neutral effect. Finally, even assuming that the Court accepts the defendant's case, the default interest should be payable not only on the capital so reduced from 10 June 1972 to 30 September 1976, but also on the whole capital sum from the date of the accident or the end of September 1969 until 9 June 1972.As regards the question of ‘interest due on default interest on the capiul’, it is accepted that interest on a sum legally recognized as being due (in the present case, the default interest on the capiul) is in any case due from the date on which the legal proceedings to obtain payment of the sum are instituted without its being necessary to show any wrongful act or omission.The defendant also takes up again in its rejoinder the arguments previously put forward and stresses the following aspects:— It is at the very least doubtful whether the date on which the permanent consequences of the accident were apparent can be regarded as being 11 January 1969, especially as the practitioner treating the applicant had in his report of 25 January 1971 made a reduction (38 %) in the degree of invalidity which he had determined altogether at 55 % in his report of 15 February 1969.— The applicant, as shown by a note dated 18 January 1969 (Rejoinder, Annex XXIII), refused the arbitration procedure provided for by the insurance policy and this caused difficulties in reaching a proper settlement.— The applicant's claim that he had never accepted that the degree of invalidity should be established by the Commission's Medical Service conflicts with the applicant's note dated 5 November 1971 (Application, Annex 17).— The head of the Medical Service was never aware of an invitation to attend the examination carried out by the medical arbitrator, or of the date on which it was to take place (Rejoinder, Annexes XXV and XXVI, and offer to call the head of the Medical Service as a witness).
IV —Oral procedure
The parties presented oral argument at the hearing on 13 October 1977.The Advocate General delivered his opinion at the hearing on 22 February 1978.
Decision
Costs
Operative part
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