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

JUDGMENT OF THE COURT (First Chamber)
13 January 2005 (1)

appellant,

defendant at first instance,

THE COURT (First Chamber),

after hearing the Opinion of the Advocate General at the sitting on 29 June 2004,

gives the following

Judgment

1. By his appeal, Mr Nardone seeks the annulment of the judgment of the Court of First Instance of the European Communities of 26 February 2003 in Case T-59/01 Nardone v Commission [2003] ECR-SC I-A-55 and II-323 (-�the judgment under appeal-�) dismissing the application for annulment of the decision of the Commission of the European Communities of 20 March 2000, refusing to grant him an invalidity pension (-�the contested decision-�).

Legal background
2. The first paragraph of Article 78 of the Staff Regulations of Officials of the European Communities (-�the Staff Regulations-�) provides:
-�An official shall be entitled, in the manner provided for in Articles 13 to 16 of Annex VIII, to an invalidity pension in the case of total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket.-�
3. Article 13 of Annex VIII to the Staff Regulations provides:
-�Subject to the provisions of Article 1(1), an official aged less than 65 years who at any time during the period in which he is acquiring pension rights is recognised by the Invalidity Committee to be suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket, and who is obliged on these grounds to end his service with the Communities shall be entitled, for so long as such incapacity persists, to invalidity pension as provided for in Article 78 of the Staff Regulations.
Invalidity pension and retirement pension shall not be paid concurrently.-�

Background to the dispute
4. Mr Nardone, who entered the service of the High Authority of the ECSC in 1963 as a member of the local staff and was subsequently established as an official of the Commission, resigned from his post by letter dated 18 October 1981, with effect from 31 December 1981.
5. On 18 November 1999, he submitted a request for an invalidity pension pursuant to the second paragraph of Article 78 of the Staff Regulations.
6. By the contested decision, the Commission rejected that request, without consulting the Invalidity Committee, on the ground that Mr Nardone did not meet the conditions for eligibility set out in Article 13 of Annex VIII to the Staff Regulations.
7. On 23 May 2000, Mr Nardone lodged a complaint against the contested decision under Article 90 of the Staff Regulations. That complaint was impliedly rejected on 23 September 2000. An express decision to reject it was made on 15 December 2000.
8. By application lodged at the Registry of the Court of First Instance on 13 March 2001, Mr Nardone brought an action seeking, as its principal claim, the annulment of the contested decision.

The judgment under appeal
9. In his action before the Court of First Instance, Mr Nardone argued that the Commission had misused its powers in rejecting his request of 18 November 1999 for an invalidity pension without referring it to the Invalidity Committee, which, under Article 53 of the Staff Regulations, is the only body empowered to decide on that request.
10. The applicant also referred to the judgment in Case 12/83 Bähr v Commission [1984] ECR 2155 in which the Court of Justice held that an official who has left the service several years ago and who suffers from an illness which would render him incapable of performing his duties if he were still in active employment is not entitled to request, on that ground alone, the initiation of the procedure to establish invalidity. He inferred from that decision that it should be possible to grant an invalidity pension to a former official despite the fact that he has resigned from his post and that the burden of adducing sufficient evidence of his medical condition falls to that official.
11. Further, Mr Nardone pointed out that the Court held in that judgment that the Commission fails to discharge its obligation to consult the Invalidity Committee on the resignation of an official where it is established that there is a direct and immediate connection between the official-�s ultimate invalidity and the state of his health when he left the service.
12. To justify its decision the Commission maintained that the conditions for the grant of an invalidity pension laid down in Article 78 of the Staff Regulations and Article 13 of Annex VIII to the Staff Regulations were not fulfilled in the present case. In particular, it argued that, according to the express wording of those provisions and the interpretation of them in the judgments in Bähr, cited above, and Case T-295/97 Coussios v Commission [1999] ECR-SC I-A-103 and II-577, -�the procedure to establish invalidity may be initiated only in relation to an official who is obliged to end his service with the Communities because he is suffering from an invalidity preventing him from performing his duties-�.
13. Moreover, it pointed out that, although the Invalidity Committee is the only body authorised to make a finding of invalidity within the meaning of Article 78 of the Staff Regulations, it is only empowered to do so during the period when the official is in active employment.
14. As regards the alleged misuse of powers by the Commission, the Court of First Instance held, in paragraph 29 of the judgment under appeal, that the Commission rejected the request for an invalidity pension submitted by Mr Nardone on the ground that the legal requirements with regard to his administrative position, rather than those relating to his medical condition, were manifestly not fulfilled. Accordingly, the Court of First Instance held that the Commission did not misuse its powers in rejecting Mr Nardone-�s request without referring it to the Invalidity Committee, as that committee was empowered only to resolve questions of a medical nature and not legal questions.
15. As regards the plea based on the interpretation of the judgment in Bähr, the Court of First Instance pointed out, in paragraph 31 of the judgment under appeal, that -�it follows from the terms of Article 13 of Annex VIII to the Staff Regulations that the procedure to establish invalidity may be initiated only in relation to an official who is obliged to end his service with the Communities because he is suffering from an invalidity preventing him from performing his duties-� (Bähr, paragraph 12, and Coussios, cited above, paragraph 37).
16. In that regard, the Court of First Instance observed, in paragraph 32 of the judgment under appeal, that -�an official who has left the service several years ago and who suffers from an illness which would render him incapable of performing his duties if he were still in active employment is not entitled to request, on that ground alone, the initiation of the procedure to establish invalidity-� (Bähr, paragraph 13, and Coussios, paragraph 38). The Court of First Instance went on to find that the applicant, having resigned in 1981 and made his request for the award of an invalidity pension in 1999, was in that position.
17. The Court of First Instance held further, in paragraph 33 of the judgment under appeal, that Mr Nardone did not fulfil the second of the two cumulative conditions laid down by Article 13 of Annex VIII to the Staff Regulations, according to which an official who applies for the award of an invalidity pension must be acquiring pension rights at the time when the Invalidity Committee recognises that he is suffering from total permanent invalidity, because he resigned from his post as an official in 1981.
18. Accordingly, the Court of First Instance held, in paragraph 34 of the judgment under appeal, that, as neither of the two conditions laid down in Article 13 of Annex VIII to the Staff Regulations was fulfilled, the application for annulment of the contested decision should, in principle, be rejected.
19. Moreover, the Court of First Instance held, in paragraph 36 of the judgment under appeal, that the facts of the case in Bähr were very different from those of the present case. Mr Bähr retained his status as an -�official-� after leaving the service on the basis of Regulation (Euratom, ECSC, EEC) No 2530/72 of the Council of 4 December 1972 introducing special and temporary measures applicable to the recruitment of officials of the European Communities in consequence of the accession of new Member States, and for the termination of service of officials of those Communities (OJ, English Special Edition 1972 (1-8 December), p. 11). Thus, unlike Mr Nardone, Mr Bähr continued to make contributions, in accordance with the provisions of Regulation No 2530/72, with a view to acquiring pension rights (see Bähr, paragraphs 5 and 8) and, accordingly, to fulfil that requirement of Article 13 of Annex VIII to the Staff Regulations.
20. In paragraph 37 of the judgment under appeal, the Court of First Instance held that, in any event, the Commission was under no obligation to have the applicant-�s state of health checked by the Invalidity Committee at the time when he resigned and left the service of the Communities.
21. In that connection, the Court of First Instance observed, in paragraph 38 of the judgment under appeal, that there is no indication in the judgment in Bähr or in any other source of Community law that there is a general obligation on a Community institution to verify the capacity for work of an official who leaves the service voluntarily.
22. Moreover, in paragraph 39 of the judgment under appeal, the Court of First Instance pointed out that, since, in its judgment in Bähr, the Court of Justice made clear that it is at the time when an official leaves the service that an institution has, in some circumstances, an obligation to consult an Invalidity Committee, the question whether the Invalidity Committee should be consulted in the applicant-�s case must be assessed only in the light of the information available to the institution at the time of his resignation in 1981.
23. In that regard, the Court of First Instance held, in paragraphs 40 and 41 of the judgment under appeal:
-�40 If an official considers that his state of health requires him to leave the service, it is for him to submit, before he leaves, a request pursuant to Article 90 of the Staff Regulations for an invalidity pension under Article 78. In the present case, it appears from the application that the applicant was very concerned about his state of health during the 1970s and that he resigned inter alia because he was convinced that his unsafe working conditions were harming his health. As officials are deemed to be aware of the provisions of the Staff Regulations (see, for example, Case T-27/99 Drabbe v Commission [2000] ECR-SC I-A-213 and II-955), an official in such a position must make use of that option if he wishes to receive an invalidity pension. He falls short of the standard of diligence required if he fails to do so, particularly as he can be assumed to be more aware than the institution concerned of his medical history and his physical condition at the time he resigns. Thus, other than in exceptional circumstances, an institution cannot be criticised, at least in the case of an official who leaves it voluntarily without the institution having requested his departure, for not having consulted an Invalidity Committee on its own initiative where the person concerned has made no request to that effect.
41 The serious medical history of Mr Bähr, that is to say, the first heart attack he suffered, six years before he stopped working, was a fact not disputed between the parties (Bähr, paragraph 14, in fine). In the present case, although it appears from the file that the applicant complained to the medical officer of the institution about his state of health and about his unsafe working conditions, it must be found that the Commission had no knowledge of any previous medical history of comparable seriousness to Mr Bähr-�s first heart attack which would enable the Court of First Instance to hold that it should have consulted an Invalidity Committee at the time of his resignation, although he had made no request to that effect (Bähr, paragraph 15). In that connection, it must be observed that counsel for the applicant stated at the hearing that the applicant was himself unaware, in 1981, of the extent of the effect on his health of the dust he had inhaled and he remained unaware of it until 1992.-�
24. Finally, in paragraph 42 of the judgment under appeal, the Court of First Instance observed that, even if the existence of a connection is established between the state of health of the applicant at the time he submitted his request on 18 November 1999 and his state of health at the time he ceased working, that would not constitute sufficient evidence that the Commission should have consulted the Invalidity Committee in 1981.
25. In the light of those arguments, the Court of First Instance decided that the application for annulment of the contested decision should be dismissed, as the invalidity pension sought could not be granted to the applicant in the circumstances of the case.

Procedure before the Court and forms of order sought
26. By application lodged at the Court Registry on 25 April 2003, Mr Nardone applied for legal aid under Article 76 of the Rules of Procedure of the Court.
27. By order of 6 February 2004, the Court granted that application.
28. The appellant claims that the Court should:
principally:
- declare that the appeal is admissible and well-founded;
- set aside in its entirety the judgment under appeal;
in the alternative:
- annul the express decision of the Appointing Authority of 15 December 2000 rejecting the appellant-�s complaint of 23 May 2000 regarding the award of an invalidity pension;
- annul the contested decision rejecting the appellant-�s request of 18 November 1999 regarding the award of an invalidity pension under the second paragraph of Article 78 of the Staff Regulations;
in any event:
- make an order as to costs in accordance with the applicable provisions of the Rules of Procedure.
29. The Commission contends that the Court should:
- declare the appeal brought by the appellant against the judgment under appeal inadmissible or, at the very least, unfounded;
- order the appellant to pay the costs of the appeal.

The appeal
The first plea
Arguments of the parties
30. By his first plea, Mr Nardone takes issue with the finding of the Court of First Instance that, because he had resigned in 1981 and submitted his request for the award of an invalidity pension in 1999, he was not in the position described in Article 13 of Annex VIII to the Staff Regulations of an official who is obliged to end his service with the Communities because he is prevented from performing his duties by reason of his invalidity.
31. He takes the view that the Court of First Instance did not interpret the judgment in Bähr correctly and claims that he is entitled, now, to the initiation of an invalidity procedure since some of his medical complaints, which are considered, moreover, to be occupational diseases, would prevent him from performing his duties if he were still in active employment.
32. Although he did not initiate the invalidity procedure provided for by Article 78 of the Staff Regulations and Article 13 of Annex VIII to those regulations at the time he ended his service because he was unaware of the state of his health at that time, the appellant argues that, in law, the decisive factor for the implementation of that procedure is the causal connection between the state of health of the official during the period when he was in the service of the Communities and his state of health at a time after his service had definitively ended.
33. The Commission takes the view that the appellant-�s argument disregards the clear and precise terms of Article 13 of Annex VIII to the Staff Regulations. According to that provision, the invalidity pension referred to in Article 78 of the Staff Regulations can be awarded only to an official suffering from total permanent invalidity preventing him from performing the duties corresponding to a post in his career bracket, and who is obliged on these grounds to end his service with the Communities.
34. Pointing out that the appellant ended his service in 1981, the Commission argues that it is impossible for him now to be -�obliged to end his service with the Communities-�, even on grounds of total permanent invalidity, given that that service has definitively ended.
35. According to the Commission, it follows from the judgment in Bähr in conjunction with Article 13 of Annex VIII to the Staff Regulations that an official who has left the service several years ago and who suffers from an illness which would render him incapable of performing his duties if he were still in active employment is not entitled to request, on that ground alone, the initiation of the procedure to establish invalidity. He must, in addition, have been -�obliged to end his service with the Communities-�.
36. It points out that it is at the time when an official ceases work that the institution has, in the appropriate circumstances, an obligation to consult an Invalidity Committee. Accordingly, that question had, in the case of the appellant, to be assessed in the light only of the information available to the institution at the time of the appellant-�s resignation, that is to say, in 1981. The Commission argues that, in 1981, at the time of the appellant-�s resignation, it was not required to, or able to, consult an Invalidity Committee because the state of health of the appellant at that time did not warrant such a measure. It points out, in that regard, that the appellant himself acknowledges that he was unaware, in 1981, of the medical conditions which might affect his state of health. The Commission could a fortiori not be aware of them and had no reason, at that time, to consult an Invalidity Committee.
Findings of the Court
37. As a preliminary point, it must be observed that the appellant does not call the judgment under appeal into question on the ground that it held that the Commission had not failed to fulfil one of its obligations by failing to consult the Invalidity Committee at the time he ended his service in 1981.
38. The question that remains to be answered is whether, as the appellant maintains, there should have been such consultation at the time he submitted his request for an invalidity pension, in 1999.
39. In that connection, it follows from the unequivocal provisions of Article 13 of Annex VIII to the Staff Regulations which lays down, in accordance with Article 78 of the Staff Regulations, the conditions on which an official is entitled to an invalidity pension, that the procedure to establish invalidity may be initiated only in relation to an official who is obliged to end his service with the Communities because he is suffering from an invalidity preventing him from performing his duties (Bähr, paragraph 12).
40. It follows that an official who has left the service several years ago and who suffers from an illness which would render him incapable of performing his duties if he were still in active employment is not entitled to request, on that ground alone, the initiation of the procedure to establish invalidity (Bähr, paragraph 13).
41. In the present case, the Court of First Instance found that Mr Nardone resigned voluntarily by letter dated 18 October 1981, without reporting health problems or requesting an examination of his state of health by an Invalidity Committee. It was not until 18 years later, in 1999, that the appellant submitted a request for an invalidity pension.
42. In the light of those facts, the Court of First Instance was right to hold, in paragraphs 30 to 32 of the judgment under appeal, that the appellant was not in the position, described in Article 13 of Annex VIII to those regulations, of an official who is obliged to end his service with the Communities because he is suffering from an invalidity preventing him from performing his duties.
43. Against that background, the first plea in law is unfounded and must be rejected.
The second plea
Arguments of the parties
44. By his second plea, Mr Nardone argues that the Court of First Instance was wrong to hold that he did not fulfil the second of the two cumulative requirements laid down by Article 13 of Annex VIII to the Staff Regulations, according to which an official who applies for the award of an invalidity pension must be acquiring pension rights. The appellant considers that he was acquiring pension rights within the meaning of Article 13 of Annex VIII to the Staff Regulations on the ground that, when he ceased working, he received a severance grant pursuant to Article 12 of Annex VIII to the Staff Regulations.
45. The Commission contends that this plea, which, it alleges, was raised for the first time before the Court of Justice, is inadmissible.
46. Further, the Commission considers that the plea is unfounded.
Findings of the Court
47. It must be observed that, as the Court of First Instance pointed out in paragraph 33 of the judgment under appeal, Article 13 of Annex VIII to the Staff Regulations lays down two cumulative conditions. It follows that, in finding, also in paragraph 33, that the appellant did not fulfil the second of those conditions having established, in paragraphs 30 to 32, that he did not fulfil the first, the Court of First Instance-�s ruling in that regard was superfluous.
48. Since the second plea is directed against a superabundant ground for the judgment under appeal, it must be rejected as nugatory (see, inter alia, Case C-244/91 P Pincherle v Commission [1993] ECR I-6965, paragraphs 25 and 31, and the order of 12 December 1996 in Case C-49/96 P Progoulis v Commission [1996] ECR I-6803, paragraph 27).

Costs
49. Under the first subparagraph of Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party-�s pleadings. Article 70 of those rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs. However, by virtue of the second paragraph of Article 122 of those rules, Article 70 is not to apply to appeals brought by officials or other servants of the institutions. Since the Commission applied for an order for costs against the appellant and since his appeal has been unsuccessful, he must be ordered to pay the costs of these proceedings.




On those grounds, the Court (First Chamber) hereby:
1. Dismisses the appeal;
2. Orders Mr Nardone to pay the costs.

[Signatures]

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1 - Language of the case: French.