H v Commission of the European Communities (C-291/97 P)

Contents

Judgment of the Court (Fifth Chamber)11 June 1998^noteIn Case C-291/97 P,H, a former official of the Commission of the European Communities, residing in Brussels, represented by Vincent Lurquin, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,the other party to the proceedings being:Commission of the European Communities, represented by Ana Maria Alves Vieira, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,THE COURT (Fifth Chamber),composed of: C. Gulmann, President of the Chamber, M. Wathelet, J. C. Moitinho de Almeida, J.-P. Puissochet and L. Sevón (Rapporteur), Judges,Advocate General: S. Alber,Registrar: R. Grass,having regard to the report of the Judge-Rapporteur,after hearing the Opinion of the Advocate General at the sitting on 5 March 1998,gives the following

Judgment

1By application lodged at the Registry of the Court of Justice on 5 August 1997, Mrs H brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice and the corresponding provisions of the ECSC and Euratom Statutes of the Court of Justice against the judgment of 3 June 1997 in Case T-196/95 H v Commission [1997] ECR-SC II-403 (hereinafter ‘the contested judgment’) in which the Court of First Instance dismissed the action she had brought against the Commission's decision of 27 September 1994 requiring her to take retirement.

2It is apparent from the contested judgment that:1. The applicant, a former Grade B 3 official of the Commission was required to take sick leave by decision of 17 March 1993 of the Commission's Medical Officer, pursuant to Article 59(2) of the Staff Regulations of Officials of the European Communities (hereinafter “the Staff Regulations”).2. On 15 June 1993 she lodged a complaint against that decision.3. By letter dated 17 June 1993, sent by ordinary mail to the applicant's address in Brussels, the Commission informed her of its decision to refer the case to the Invalidity Committee in accordance with Article 59(3) of the Staff Regulations and asked her to appoint a doctor of her choice to represent her on that Invalidity Committee. That request was repeated in a letter dated 15 July 1993, also sent by ordinary mail.4. Since the applicant had not appointed a doctor of her choice, by letter dated 17 December 1993 the Commission asked the President of the Court of Justice to appoint a doctor in accordance with the second paragraph of Article 7 of Annex II to the Staff Regulations....8. By letter of 20 June 1994 the President of the Court of Justice appointed a doctor to represent the applicant on the Invalidity Committee.9. Also by letter of 20 June 1994, sent by ordinary mail, the doctor appointed by the Commission informed the applicant of the establishment and composition of the Invalidity Committee.10. On 13 September 1994 the Invalidity Committee met. It concluded that the applicant “[was] suffering from total permanent invalidity preventing her from performing the duties corresponding to a post in her career bracket and that, for that reason, it [was] obliged to suspend her employment with the Commission”.11. By decision of 27 September 1994, the appointing authority, referring to the opinion of the Invalidity Committee, decided to retire the applicant with effect from 1 October 1994 in accordance with Article 53 of the Staff Regulations (hereinafter “the appointing authority's decision” or “the contested decision”). According to the Commission, a letter, accompanied by the contested decision and containing an acknowledgement of receipt, was delivered that day to the applicant's private address by officials of the security office. Since they did not meet the applicant, the acknowledgement of receipt was not signed by her.12. On 10 January 1995 the applicant acknowledged receipt of the contested decision.13. On 6 April 1995 she submitted a complaint directed against the contested decision....15. By decision of 27 June 1995, received by the applicant on 18 July 1995, the Commission rejected the complaint of 6 April 1995.’

3In those circumstances, by application dated 17 October 1995, Mrs H brought an action before the Court of First Instance for annulment of the Invalidity Committee's opinion of 13 September 1994, the Commission's decision of 27 September 1994 requiring her to take retirement and the Commission's decision of 27 June 1995 rejecting her complaint against that decision.

The contested judgment

4The Court of First Instance held, at paragraph 36 of the contested judgment, that in respect of the decision of 27 September 1994, the application was admissible. By contrast, it held, at paragraphs 39 and 40, that the Commission's decision of 27 June 1995 rejecting the complaint did not constitute an act that could be challenged, and, at paragraphs 43 to 50, that the Invalidity Committee's opinion of 13 September 1994 should be regarded as a preparatory act.

5Mrs H raised, in particular, a plea based on irregularities in respect of the establishment and work of the Invalidity Committee. That plea consisted of three parts. The appeal relates only to the decision of the Court of First Instance in respect of the first two parts of that plea.

6By the first part of the plea, Mrs H criticised the Commission for having followed a strictly unilateral procedure in order to constitute the Invalidity Committee and to procure the appointment of the doctor representing her on that Committee.

7At paragraphs 77 and 78 of the contested judgment, the Court of First Instance held that several documents in the case, in particular the application and Mrs H's letters in which she acknowledged that she had received the Commission's letters of 17 June and 15 July 1993 inviting her to appoint a doctor of her choice, demonstrated beyond doubt that she was fully aware of the Commission's decision to refer her case to the Invalidity Committee and of the constitution of that Committee.

8It held, at paragraph 79, that in the absence of any reply to those letters, the Commission was entitled to request the President of the Court to appoint a doctor to represent the applicant on the Invalidity Committee, in accordance with the second paragraph of Article 7 of Annex II to the Staff Regulations.

9Furthermore, the Court of First Instance held, at paragraph 80, that the appointment which must be made by the President of the Court pursuant to the second paragraph of Article 7 of Annex II to the Staff Regulations does not constitute a judicial procedure but, rather, an administrative measure. To accept that the procedure should be inter partes would be contrary to the purpose of that provision, which is to rectify a failure on the part of an official.

10Finally, the Court of First Instance held, at paragraph 81, that Mrs H had been informed, by letter of 20 June 1994 from the doctor appointed by the Commission, of the appointment of the doctor representing her and of the names of the doctors of whom the Invalidity Committee consisted.

11By the second part of the plea, Mrs H challenged the validity of the proceedings of the Invalidity Committee in so far as the name of the doctor representing her had not been notified to her, thus depriving her of the possibility of fully exercising her rights under Article 9 of Annex II to the Staff Regulations, that is to say to submit to the Invalidity Committee any reports or certificates from her regular doctor or from practitioners she considered it appropriate to consult.

12The Court of First Instance held, however, at paragraph 83, that it was quite clear from the notes of 22 July and 10 September 1994, written by the doctor appointed to represent Mrs H and by, respectively, the third doctor appointed by agreement, that in spite of having been invited in writing to appear, Mrs H had refused to contact the members of the Invalidity Committee.

13It held, furthermore, at paragraph 84, that having been informed of the composition of the Invalidity Committee by the aforementioned letter of 20 June 1994, Mrs H had in fact been able to submit to that Committee the medical reports considered relevant, but had failed to do so.

14The Court of First Instance concluded, at paragraph 85, that Mrs H could not claim that she was prevented from exercising her rights under the first paragraph of Article 9 of Annex II to the Staff Regulations.

15After considering the other pleas put forward by Mrs H, the Court of First Instance dismissed the application directed against the decision of 27 September 1994 as unfounded.

The first plea of the appeal

16In her appeal, Mrs H first raises a plea alleging procedural irregularities in the composition and work of the Invalidity Committee referred to by Article 7 of Annex II to the Staff Regulations. The Court of First Instance was wrong to consider, on the one hand, that the procedure whereby the President of the Court of Justice appoints a doctor to represent an official on the Committee should not be inter partes and, on the other, that the procedure before the Invalidity Committee was inter partes on account of the letter of 20 June 1994 in which Dr P informed her of his appointment and of the names of the doctors of whom the Invalidity Committee consisted.

17According to Mrs H, although it may be conceded that the appointment by the President of the Court of Justice of a doctor to represent an official on the Committee is an administrative measure, that does not prevent the steps directly preceding and following that measure from being inter partes. According to Mrs H, the Commission was therefore under an obligation to inform her of its decision to refer the matter to the President of the Court of Justice and should have sent her a copy of the order of the President of the Court of Justice concerning the appointment. Similarly, she considers that she should have been invited to appear by the Invalidity Committee. The failure to notify the letters referred to by the Court of First Instance is a breach of the third paragraph of Article 26 of the Staff Regulations, according to which the communication of any document concerning an official's administrative status must be evidenced by his signing it or to be effected by registered letter.

18In its reply, the Commission claims that this plea is inadmissible in so far as it merely criticises the factual assessment carried out by the Court of First Instance of the matters put forward by the parties and of the evidential value of the documents submitted to it. In the context of an appeal, the Court of Justice has no jurisdiction to undertake an assessment of the facts or to consider the evidence admitted by the Court of First Instance in support of those facts.

19Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure governing the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attributed to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see, in particular, order in Case C-55/97 P AIUFFASS and AKT v Commission [1997] ECR I-5383, paragraph 25).

20In considering the material in the file submitted to it and described at paragraphs 78 and 79 of the contested judgment, and in concluding that Mrs H had undoubtedly been fully aware of the decision to refer her case to the Invalidity Committee and of the constitution of that Committee, the Court of First Instance carried out a factual assessment which is not open to review by the Court of Justice.

21Furthermore, the Court of First Instance was right to consider that, in the absence of any reply by the applicant to the Commission's letters, the latter was entitled to request the President of the Court of Justice to appoint a doctor to represent Mrs H on the Invalidity Committee. As the Court of First Instance correctly pointed out at paragraph 80 of its judgment, to accept that the appointment procedure should be inter partes would have been contrary to the purpose of the second paragraph of Article 7 of Annex II to the Staff Regulations, which is to rectify a failure on the part of the official.

22Finally, by holding, at paragraph 81 that, by letter of 20 June 1994 from the doctor appointed by the Commission, the applicant had been informed of the appointment of the doctor representing her and of the names of the doctors of whom the Invalidity Committee consisted, the Court of First Instance also made an assessment of fact which is not open to review by the Court.

23The first plea raised by the appellant is therefore in part inadmissible and in part unfounded.

24As regards the argument put forward by Mrs H in the context of her first plea, alleging infringement of the third paragraph of Article 26 of the Staff Regulations, it should be pointed out that this is a separate plea which was not raised before the Court of First Instance.

25In an appeal, the Court's jurisdiction is confined to review of the assessment carried out by the Court of First Instance of the pleas argued before it (order in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 49).

26It follows that this plea must be declared inadmissible.

The second plea supporting the appeal

27By her second plea, alleging infringement of the first paragraph of Article 9 of Annex II to the Staff Regulations, Mrs H claims that the Court of First Instance was wrong to consider that she was able to exercise her rights under that provision.

28The Commission considers that this plea also challenges an assessment of fact carried out by the Court of First Instance, so that it is inadmissible.

29The Court finds that, in considering the material in the file submitted to it and described at paragraphs 83 and 84 of the contested judgment and in concluding that, despite having been invited in writing to appear the applicant had refused to contact the members of the Invalidity Committee and that she had been able to submit to the Invalidity Committee the medical reports considered relevant, but had failed to do so, the Court of First Instance carried out an assessment of fact which is not open to review by the Court.

30It follows that the second plea must also be declared inadmissible.

Costs

31Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure pursuant to Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. The defendant has applied for the appellant to be ordered to bear the costs. Since the appellant has been unsuccessful, she must be ordered to pay the costs.

Operative part

On those grounds,THE COURT (Fifth Chamber),hereby:

1.Dismisses the appeal;

2.Orders the appellant to pay the costs.

Delivered in open court in Luxembourg on 11 June 1998.