Strasbourg, 31 March 2008

Dear Mr X,

On 5 August 2005, you submitted a complaint to the European Ombudsman against the European Parliament concerning its alleged refusal to open an invalidity procedure before your retirement.

On 12 September 2005, I forwarded the complaint to the President of Parliament.

In my letter informing you of the opening of an inquiry into your complaint, I further informed you that, in view of the nature of the documents that you had submitted relating to your state of health, I had decided to deal with your complaint confidentially.

Parliament sent its opinion on 24 October 2005. On 9 November 2005, I forwarded it to you with an invitation to make observations, which you sent on 29 November 2005.

On 6 June and 5 October 2006, you sent me further documents related to your complaint.

On 19 October 2006, I asked Parliament for further information in relation to your complaint. Parliament sent me its reply on 29 November 2006.

On 13 December 2006, I forwarded Parliament's reply to you, with an invitation to make observations, which you sent on 26 January 2007.

On 18 June 2007, I again asked Parliament for further information in relation to your complaint. I asked Parliament to submit its reply by 15 September 2007.

On 21 September 2007, Parliament’s President informed me that I would receive Parliament’s reply by 19 October 2007.

On 23 October 2007, Parliament asked for an extension of the deadline for its opinion until 31 October 2007.

On 13 November 2007, in view of the lack of any reply from Parliament, my services telephoned Parliament’s services. My services were informed that Parliament would send its reply as soon as possible.

On 14 November 2007, Parliament sent me the English version of its reply and, on 20 November 2007, it sent me the French translation of its reply.

On 22 November 2007, I forwarded Parliament's reply to you, with an invitation to make observations, which you sent on 10 December 2007.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts were, in summary, as follows:

In November 2003, the complainant, a disabled official of the European Parliament, went on sick leave because his health was deteriorating.

Following a medical examination on 10 November 2003, he was declared to be able to resume his duties. The complainant however refused to resume his duties and submitted a medical certificate attesting to the fact that he had a permanent invalidity.

By decision of 25 November 2003 of the Director for Personnel, the complainant was informed that he would be entitled to a retirement pension as from 1 February 2004 because he would have attained the age of retirement.

On 27 November 2003, the Director for Personnel informed the complainant that, following the latter’s refusal to resume his duties, he had decided to refer the matter to the "Medical Committee", in accordance with Article 59(3) of the Staff Regulations(1).

By letter of 27 December 2003, the complainant informed the Director for Personnel that he could not attend the meeting of the "Medical Committee" for medical reasons. In the complainant’s view, the administration implicitly abandoned the idea of initiating the invalidity procedure.

By letter of 13 January 2004, the complainant informed Parliament that he had a permanent invalidity and attached two supporting medical certificates to that effect.

By letter of 4 March 2004, the complainant requested the Director-General for Personnel to refer the matter to an Invalidity Committee pursuant to Articles 59(1) and 59(3) of the Staff Regulations.

By letter of 7 May 2004, the complainant asked the Director-General for Personnel to reconsider his position and proposed that the "Medical Committee" foreseen by the provisions of Article 59(3) of the Staff Regulations be converted into an Invalidity Committee under Article 78 of the Staff Regulations.

By letter of 9 July 2004, the complainant formally requested the Appointing Authority to implement Article 78 of the Staff Regulations and to convene the Invalidity Committee.

On 6 December 2004, the complainant lodged a complaint under Article 90(2) of the Staff Regulations against Parliament's implicit decision not to open the invalidity procedure foreseen by Article 78 of the Staff Regulations before he retired.

On 1 June 2005, the Appointing Authority rejected the complainant’s complaint on the ground that Article 78 of the Staff Regulations could not be invoked by a retired official but only by an official who, while in active service, had to suspend the performance of his duties because of his invalidity.

In his complaint to the Ombudsman, the complainant alleged that Parliament had wrongly refused to open the invalidity procedure before his retirement. The complainant claimed that the invalidity procedure should be opened.

THE INQUIRY

Parliament's opinion

Parliament’s opinion on the complaint was, in summary, as follows:

As regards the factual background of the complaint

Parliament pointed out that, when the complainant was still in active service, following a number of periods of absence due to sick leave, he was informed by letter of 4 November 2003 that a medical examination would be arranged for 10 November 2003 by Parliament's medical officer, in accordance with Article 59(1), fourth indent, of the Staff Regulations.

The report of the medical examination concluded that the complainant was "fit for work", and he was accordingly requested, by letter of 19 November 2003 from the Director for Personnel, to return to work.

Given that the complainant did not reply to the letter and did not return to work, the Director for Personnel informed him, on 27 November 2003, that he had decided to refer the matter to a Medical Committee, which would meet on 7 January 2004, in accordance with Article 59(3) of the Staff Regulations. In his letter, the Director for Personnel further informed the complainant that Parliament's medical officer and the complainant's doctor would attend, unless the complainant’s doctor were to object within two working days of receipt of the letter. By letter of the same date, the Director for Personnel asked the complainant’s doctor whether he was willing to represent the complainant on the Committee. The doctor agreed to do so by letter of 1 December 2003.

By letter of 27 December 2003, the complainant informed the Director for Personnel that he had to go to a clinic as from 6 January 2004 because his state of health was deteriorating.

On 6 January 2004, after receiving a request from Parliament’s medical officer, the complainant’s doctor drew up a medical certificate for the attention of Parliament's medical officer stating that his patient would not be able to attend the Medical Committee meeting on 7 January 2004 as he would be receiving treatment at that time. In his letter, the complainant’s doctor stated that the Committee meeting was therefore "cancelled".

Following receipt of the medical certificate, the Director for Personnel expressed his surprise, by letter of 8 January 2004, at the behaviour of the complainant’s doctor and pointed out that the meeting could only be cancelled by the competent appointing authority, and not by a doctor on the Medical Committee.

On 12 January 2004, the complainant’s doctor replied that he had been presented with a fait accompli by the complainant. He also stated that he no longer wished to represent the complainant.

On 13 January 2004, the complainant wrote to the Director-General for Personnel, stating that he was permanently unfit for work and attached two medical certificates in this regard.

On 1 February 2004, the complainant formally retired, in accordance with Article 52 of the Staff Regulations.

On 4 March 2004, the complainant made a number of accusations against the Director for Personnel, stating that his doctor had been dissuaded from representing him. In the same letter, he again requested that the invalidity procedure be initiated.

In response, the Director for Personnel contacted the complainant’s doctor and asked him for his point of view on the matter. By letter of 14 April 2004, the complainant’s doctor refuted the complainant’s allegation that he had been dissuaded from representing the complainant by the Director for Personnel.

Further to the complainant’s letters of 13 January 2004 and 4 March 2004, the Director for Personnel informed him, by letter of 26 April 2004, that there was no justification for referring the matter to an Invalidity Committee, in view of (i) the findings of the medical examination of 10 November 2003 which had declared him fit for work and (ii) the fact that the committee to be convened, pursuant to Article 59(3) of the Staff Regulations, for 7 January 2004, had not met at the complainant’s own request.

Subsequently, by letter of 7 May 2004, the complainant asked the Director for Personnel to reconsider his position. He then, by letter of 9 July 2004, reiterated this request, formally applying for an invalidity procedure to be initiated, in accordance with Article 78 of the Staff Regulations. By letter of 3 August 2004, the Director for Personnel stated that he upheld his initial position, given that no new arguments had been put forward.

As regards the substance of the complainant’s allegation

Parliament recalled that, since the formal request for the invalidity procedure to be initiated had been submitted on 9 July 2004, the complaint had been examined in light of the new Staff Regulations solely from the standpoint of the application of Article 78 thereof, and specifically as to whether, under the provisions of that Article, an invalidity procedure could be initiated in respect of a retired official.

In Parliament’s view, an official who had retired pursuant to Article 52 of the Staff Regulations and who was in receipt of a retirement pension, was no longer entitled to request that the invalidity procedure be initiated. Article 78 of the Staff Regulations was not applicable, in cases like the present one, due to the nature and purpose of the invalidity procedure. In effect, the invalidity procedure was designed to cover situations in which an official was obliged to cease to perform his duties as a result of invalidity, which was not true of an official who had already been retired.

Parliament also referred to the judgment of the Court of Justice in Case 12/83 Bähr v Commission(2).

Parliament further stated that, considering the particular aspects of the complainant’s situation, it had sought to ascertain whether the competent authority should have initiated the invalidity procedure provided for in Article 78 of the Staff Regulations before the complainant was retired.

In Parliament’s view, it had to be concluded that:

1. the medical examination of 10 November 2003 found that the complainant was fit for work;
2. the complainant did not return to work after the examination, despite the Director for Personnel's explicit request of 19 November 2003 to do so, which had been forwarded to the complainant by registered mail;
3. the complainant supplied a further medical certificate asserting that, on the contrary, he was unfit for work, thus giving rise to a dispute within the meaning of Article 59(3) of the Staff Regulations;
4. the Director for Personnel's decision of 27 November 2003 to convene a meeting of the Invalidity Committee on 7 January 2004, in order to seek its opinion on the matter, was therefore necessary for the purpose of establishing whether the complainant's absence on sick leave was justified or not - and for that purpose alone;
5. as a result of his inability, as attested by a medical certificate, to attend that meeting of the Invalidity Committee and following his retirement on 1 February 2004, the administration implicitly decided not to continue the procedure.

In its opinion, Parliament pointed out that, given that the medical examination of 10 November 2003 had found that the complainant was fit to return to work, the administration was under no obligation to initiate the invalidity procedure under Article 78 of the Staff Regulations before deciding on 25 November 2003 to retire him.

The complainant's observations

In his observations dated 29 November 2005, the complainant maintained his complaint and made, in summary, the following further comments:

When he made his first request for the opening of the invalidity procedure, on 27 October 2003, he was still in service. Therefore, in his view, the reference to Case 12/83 Bähr v Commission(3), made by Parliament in its opinion, was irrelevant.

The medical examination of 10 November 2003 had to be considered as the first step in the implementation of Article 59(1), fourth indent, of the Staff Regulations which was in force at the time of the facts. Pursuant to this Article, the Appointing Authority could refer to the Invalidity Committee the case of any official whose sick leave amounted to a total of more than 12 months in any period of three years.

The report of the medical examination concluded that he was fit for work. However, he had contested this report by sending four medical certificates, all of which concluded that he was definitively unable to work again. In these circumstances, this situation had led to a conflict which was foreseen by Article 59(3) of the Staff Regulations, pursuant to which cases of dispute were to be referred to the Invalidity Committee for opinion.

Contrary to Parliament’s statement made in its opinion, it was not an ordinary "Medical Committee which had to be convened, but rather an Invalidity Committee. In his view, Parliament had therefore the obligation to convene the Invalidity Committee and to give that Committee competence, in accordance with Article 78 of the Staff Regulations, to ascertain whether he had a permanent invalidity which prevented him from exercising his duties.

In this context, the decision of 25 November 2003 by the Director for Personnel, pursuant to which the complainant became entitled to a retirement pension from 1 February 2004, was rather unusual because it had been taken more than two months before the due date.

Finally, Parliament had failed to reply to a letter sent by the trade union "European Solidarity" in which the latter had invited Parliament to adopt a coherent position on his situation related to the opening of the invalidity procedure. In the same way, the Director for Personnel did not take any measures to remedy his situation despite the repeated invitations made by an MEP to help and assist him.

Further inquiries
Preliminary remark

In his observations, the Ombudsman noted that the complainant had raised the following two further issues:

1. Parliament had failed to reply to a letter sent by the trade union "European Solidarity" in which the latter had invited Parliament to adopt a coherent position on his situation related to the opening of the invalidity procedure;
2. The Director for Personnel did not take any measures to remedy his situation despite the repeated invitations made by an MEP to help and assist him.

In his letter of 19 October 2006 informing the complainant of the request for further information addressed to Parliament, the Ombudsman informed him that, given these points concerned an issue that was already covered by the present inquiry, he did not consider it appropriate to raise these two points specifically to Parliament. The Ombudsman further informed the complainant that he had the possibility of making a new complaint regarding these further issues if he so wished.

The request for information addressed to Parliament

After careful consideration of Parliament’s opinion, it appeared that further inquiries were necessary. The Ombudsman therefore asked Parliament to reply to the following questions:

1. Parliament was requested to explain the reasons why the Article 59(3) procedure, which foresees that cases in dispute shall be referred to the Invalidity Committee for an opinion, was not completed, although this was still possible and although Parliament stressed that this procedure had nothing to do with an invalidity procedure.
2. Parliament was requested to explain the reasons why it did not address the need to initiate an invalidity procedure, although it had received an explicit request from the complainant to that effect on 27 October 2003 and at least two certificates (dated 27 November and 23 December 2003) suggesting that the complainant was unfit for work.

Parliament's reply
As regards the first issue concerning the reasons why the Article 59(3) procedure was not completed

Parliament stated that the Director responsible for absences had decided to refer the case to the Medical Committee by decision of 27 November 2003. Parliament recalled that this decision had been adopted following a medical examination performed in accordance with Article 59(1), third subparagraph, of the Staff Regulations and Parliament’s internal rules adopted by the Bureau on the occasion of its meeting on 23 October 2000.

Following the decision to refer the case to the Medical Committee, the Head of Parliament’s medical cabinet informed the Director responsible for absences of the composition of the Committee. It emerged from the content of this note that the Committee arranged to examine the complainant on 7 January 2004. By letter of 18 December 2003, the complainant was therefore asked to appear before the Medical Committee.

However, on 6 January 2004, that is, a day before the examination was due to take place, the complainant’s doctor sent a medical certificate to Parliament certifying that the complainant was unable to appear before the Medical Committee on the grounds that he was receiving treatment at a clinic.

When the Director raised the issue with the complainant’s doctor by letter of 8 January 2004, the latter replied, by letter of 12 January 2004, that he had been presented with a fait accompli by the complainant and that he no longer wished to represent him. In Parliament’s view, the fait accompli to which the doctor referred was linked to the question as to whether the complainant was, in reality, receiving treatment at that time. In any event, the complainant had not obtained prior authorisation for such treatment, as requested by point XI of Annex I of the Rules on sickness insurance for officials of the European Communities, in accordance with the procedure laid down in Article 11 of those rules.

Parliament further stated that it appeared, however, from the information in the file, that the complainant was receiving treatment at a clinic in Germany. By letter of 6 January 2004, the doctor of the clinic stated that the complainant was likely to undergo treatment until 3 February 2004.

Parliament stated that it did, in fact, launch the procedure provided for in Article 59(3) of the Staff Regulations. However, in Parliament’s view, the procedure could not continue because the complainant did not appear before the Medical Committee. Additionally, since the complainant was being treated at a clinic in Germany until 3 February 2004, it was not possible to convene the Medical Committee before his retirement, which took effect from 1 February 2004.

It must be stressed that a precondition for applying Article 59 of the Staff Regulations was that the official be "unable to perform his duties because of sickness or accident." Thus, once on compulsory retirement, in accordance with Article 52 of the Staff Regulations, Parliament was statutorily precluded from pursuing the invalidity procedure provided for by Article 59 of the Staff Regulations. Parliament, in this context, concluded that did not infringe Article 59(3) of the Staff Regulations(4).

As regards the second issue concerning the reasons why Parliament did not address the need to initiate an invalidity procedure

Parliament stated that it was correct that it had received the medical certificates dated 27 November 2003 and 23 December 2003. Nevertheless, neither certificate stated that the complainant was unable to perform his duties on a permanent basis on grounds of permanent invalidity. The medical certificate of Dr M.S. of 27 November 2003 stated that the complainant was considered unfit for the "marché général de l’emploi", but did not deal with the decisive element for the purposes of the former Article 78 of the Staff Regulations, namely, whether the complainant was unable to perform his duties due to permanent invalidity. The medical certificate of Dr W. of 23 December 2003, which was received on 5 January 2004, two days before the "Medical Committee" was scheduled to examine the complainant’s case, did not contain any indication that the complainant was unable to carry out his duties.

In view of the contradictory medical opinions, that is, the opinion of the medical exanimation of 10 November 2003 concluding that the complainant was fit to carry out his duties and the medical certificates provided by the complainant himself, Parliament's decision to submit the case to the Medical Committee in accordance with Article 59(3) of the Staff Regulations showed that it wanted to obtain a thorough assessment of the complainant's health. Nevertheless, in Parliament’s view, no medical evidence was brought before its competent services indicating that the complainant met the requirements set out in Article 78 of the Staff Regulations.

The complainant's further observations

In his observations on Parliament’s reply, the complainant stated that, as regards the first issue, the medical certificate provided by Parliament’s doctor was illegible and did not contain any heading, which precluded him from identifying the author. The complainant stated that he had informally informed Parliament’s Medical Service that he had to enter a clinic. By letter of 27 December 2003, the complainant confirmed this information to the Medical Service. In the complainant’s view, no one had been presented with a fait accompli. The complainant further argued that, contrary to Parliament’s statement, he had received prior authorisation from Parliament and, in his observations, attached a letter of 31 December 2003 from the Bureau liquidateur in this regard.

As regards the second issue, the complainant stated that the medical certificates he had provided confirmed that he was permanently unfit for work. In the complainant’s view, Parliament was required to open the procedure foreseen by Article 78 of the Staff Regulations. The complainant further stated that, since 31 October 2002, he had been unable to work because of a deterioration in his state of health.

The complainant also formulated the following new claim: he claimed that Parliament should pay him damages amounting to the difference between the amount of the retirement pension currently granted to him and the amount corresponding to the invalidity pension to which he was entitled.

The second request for information addressed to Parliament

After careful consideration of Parliament’s further opinion, it appeared that further inquiries were necessary. The Ombudsman therefore asked Parliament to reply to the following question:

In its reply to the request for further information, Parliament stated that the procedure provided for in Article 59(3) of the Staff Regulations had been launched by its services. However, the procedure could not continue because the complainant did not appear before the Invalidity Committee. Additionally, since the complainant was being treated at a clinic in Germany until 3 February 2004, it was not possible to convene the Invalidity Committee before his retirement. The Ombudsman is of the view that the Invalidity Committee could have been convened at a later stage, when the complainant was available.

Parliament was requested to indicate to the Ombudsman whether it considered it to be still possible to convene the Invalidity Committee in order to take a decision on the complainant’s situation.

In case Parliament would consider it to be impossible, Parliament was requested to specify the reasons for its view.

Parliament's reply

In its reply, Parliament informed the Ombudsman that the complainant’s file had been submitted to a medical officer with a view to assessing whether, from a medical point of view, it would be now possible to make a retrospective assessment regarding the complainant’s health, that is, his state of health prior to February 2004.

By note of 15 October 2007, Parliament’s medical officer stated that it would not now be possible to assess what the complainant’s state of health had been before his retirement on 1 February 2004.

Parliament recalled that, according to the conclusions of the medical examination of 10 November 2003, the complainant was considered to be "fit to return to work". The administration was therefore under no obligation to initiate the invalidity procedure under Article 78 of the Staff Regulations. On 1 February 2004, the complainant was formally retired in accordance with Article 52 of the Staff Regulations.

Parliament concluded that it considered that the complainant’s situation had been dealt with in accordance with the Staff Regulations, and in particular Articles 52 and 59 thereof.

The complainant's further observations

In his further observations, the complainant stated that, by letter of 27 October 2003, he had already asked Parliament to open the invalidity procedure and that the latter had refused to do so, without any reason. In the complainant’s view, this refusal constituted an instance of maladministration by Parliament.

THE DECISION

1 Preliminary section: legal framework and factual background

1.1 The Ombudsman finds it useful to recall the relevant provisions of the Staff Regulations for the case under consideration.

In this context, the Ombudsman notes from the file that the complainant retired on 1 February 2004. As the complainant's allegation is that Parliament wrongly refused to open the invalidity procedure "before his retirement", the allegation should be analysed under the Staff Regulations in force up to 30 April 2004, and not under the Staff Regulations that entered into force on 1 May 2004.

The relevant provisions of the Staff Regulations in force at the date of the complaint were the following:

Article 52 of the Staff Regulations:

"Without prejudice to the provisions of Article 50, an official shall be retired

- either automatically on the last day of the month in which he reaches the age of 65,
- or at his own request on the last day of the month in respect of which the request was submitted where he is at least 60 years of age or where he is between 50 and 60 years of age and satisfies the requirements for immediate payment of a pension in accordance with Article 9 of Annex VIII.

The second sentence of the second paragraph of Article 48 shall apply by analogy."

Article 59(1) of the Staff Regulations:

"An official who provides evidence of incapacity to perform his duties because of illness or accident shall be entitled automatically to sick leave.

The official concerned shall notify his institution of his incapacity as soon as possible and at the same time state his present address. He shall produce a medical certificate if he is absent for more than three days. He may be required to undergo a medical examination arranged by the institution (...).

The Appointing Authority may refer to the Invalidity Committee the case of any official whose sick leave totals more than 12 months in any period of three years."

Article 59(3) of the Staff Regulations:

"Cases in dispute shall be referred to the Invalidity Committee for an opinion."

Article 78 of the Staff Regulations:

"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."

Article 13 of the Annex VIII of the Staff Regulations:

"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".

1.2 The Ombudsman also finds it useful to set out the following factual background at the origin of the present complaint:

By letter of 27 October 2003, the complainant informed the Director for Personnel that he was on leave due to long-term sickness and that he could not resume his duties. In this letter, he requested Parliament to implement the invalidity procedure because, in his view, the conditions of Article 59(1) of the Staff Regulations and of Article 13 of Annex VIII of the Staff Regulations were fulfilled.

In this letter, the complainant stated the following:

"Presently on long-term sick leave, I went to the 'Individual Rights' service in order to have information on the implementation of the procedure of invalidity foreseen in the Staff Regulations. (…) In view of the circumstances, I have to inform you that my state of health, as attested by my medical file at Parliament, unfortunately no longer allows me to consider returning to the Institution. Consequently, I request you, pursuant to the provisions of the Staff Regulations, in particular Annex VIII, to implement the invalidity procedure, since the conditions necessary to put an official on invalidity are fulfilled, as regards Article 59(1) of the Staff Regulations and Article 13 of Annex VIII of the Staff Regulations."(5)

1.3 On 4 November 2003, the complainant was informed by Parliament that, following his sick leave, he was required to undergo a medical examination, in accordance with Article 59(1) of the Staff Regulations, on 10 November 2003. Pursuant to this medical examination, the complainant was considered to be able to perform again his duties and was informed accordingly by letter of Parliament's Director of Personnel of 19 November 2003. In this letter, the complainant was further invited to resume his duties at the date of receipt thereof. However, the complainant disagreed with the conclusions of the medical examination and sent a further medical certificate attesting to the fact that he was unable to work. By decision of 25 November 2003 of the Director for Personnel, the complainant was informed that he would be entitled to a retirement pension as from 1 February 2004.

1.4 In view of the complainant’s refusal to resume his duties, the Director for Personnel informed the complainant by letter of 27 November 2003 that:

"[f]ollowing the conclusions of the medical examination of 10 November 2003 and my letter of 19 November 2003 inviting you to resume your duties, you still have not returned to the office but have submitted a new medical certificate. After having re-examined your file, I have concluded that it is appropriate to convene a Medical Committee, in accordance with Article 59(3) of the Staff Regulations and Article 14 of the internal regulation on medical examinations, in order to decide on your case."(6)

This "Medical Committee"(7) meeting was to take place on 7 January 2004.

1.5 By letter of 27 December 2003, the complainant informed the Director-General for Personnel that he could not attend the meeting of the "Medical Committee" because his health was deteriorating and he had to go to a clinic on 6 January 2004. On 6 January 2004, the complainant’s doctor sent to Parliament's medical officer a medical certificate attesting to the fact that his patient could not attend the meeting of the "Medical Committee" because he had to go for treatment.

1.6 Since the reason for the complainant’s absence given in his letter of 27 December 2003 differed from the one given by his doctor(8), on 8 January 2004, the Director-General for Personnel requested, the complainant’s doctor to inform him of the type of treatment his patient was undergoing and of its length in order to determine another date for the meeting of the Committee. He further stated that the Committee could only be cancelled by decision of the Appointing Authority. In his reply of 12 January 2004, the complainant’s doctor informed the Director for Personnel of the following:

"I have been presented with a "fait accompli" by [the complainant] and I have no further information; I have never intended to cancel the Medical Committee foreseen to take place on 7 January 2004; I have only sent a medical certificate upon the request of Mr B. [Parliament’s medical officer]; in view of this muddle, I officially confirm to you that I dissociate myself from [the complainant] and that I will no longer represent him on any medical committee"(9).

1.7 The Ombudsman notes that it results from information submitted by both parties and available in the complaint’s file that the complainant had in fact entered a clinic in Germany in order to attend a "cure" (namely, orthopaedic treatment). This "cure" had been authorised by the Paying Office of the Sickness Insurance Scheme of Community Officials on 31 December 2003, as foreseen in the rules applicable for these kinds of "cures"(10). The Ombudsman also notes that complainant had, by letter of 27 December 2003, already informed Parliament's Medical Service that he would have to enter a clinic.

1.8 By letter of 13 January 2004, the complainant informed Parliament that he was permanently unable to work and attached two further certificates dated 23 December 2003 and 6 January 2004, attesting to the fact that he had a permanent invalidity(11). On 1 February 2004, the complainant's retirement became effective. By letter of 4 March 2004 to the Director for Personnel, the complainant stated that his doctor had clearly been dissuaded from representing him on the "Medical Committee" and again requested that the invalidity procedure be initiated. In view of this, on 26 March 2004, the Director for Personnel asked the complainant’s doctor for his point of view on the matter. By letter of 14 April 2004, the complainant’s doctor replied to Parliament that he had taken the decision not to represent his patient on the "Medical Committee" on his own and considered that the matter was closed.

By letter of 9 July 2004, the complainant formally requested the Appointing Authority to apply Article 78 of the Staff Regulations and to convene the Invalidity Committee. The complainant attached to his letter five medical certificates, dated from 5 May 2003 to 3 February 2004.

2 Parliament’s alleged wrongful refusal to open the invalidity procedure before the complainant’s retirement

2.1 In his complaint, the complainant alleged that Parliament had wrongly refused to open the invalidity procedure before his retirement.

2.2 In its opinion, Parliament stated that an official retired under Article 52 of the Staff Regulations and in receipt of a retirement pension, was no longer entitled to request that the invalidity procedure be initiated. This conclusion was based on the fact that Article 78 of the Staff Regulations was not applicable in the present instance, due to the nature and purpose of the invalidity procedure. In its opinion, Parliament referred to the judgment of the Court of Justice in Case 12/83 Bähr v Commission(12). Parliament further stated that, considering the particular aspects of the complainant's situation, it had sought to ascertain whether the competent authority should have initiated the invalidity procedure provided for in Article 78 of the Staff Regulations before the complainant was retired. Parliament pointed out that, given that the medical examination of 10 November 2003 found that the complainant was fit to return to work, the administration was under no obligation to initiate the invalidity procedure under Article 78 of the Staff Regulations before deciding, on 25 November 2003, to retire him.

2.3 In his observations, the complainant stated that the reference to Case 12/83 Bähr v Commission(13), made by Parliament in its opinion, was not relevant because he was still in service at the date of his first request for the opening of the invalidity procedure, on 27 October 2003. The complainant further stated that the medical examination of 10 November 2003 had to be considered as the first step of the implementation of Article 59(1), fourth indent, of the Staff Regulations. The report of the medical examination concluded that he was fit for work. However, the complainant contested this report by sending four medical certificates, all of which concluded that he was definitively unable to work again. In the complainant’s view, this situation had led to a conflict which was set out by Article 59(3) of the Staff Regulations pursuant to which cases of dispute were to be referred to the Invalidity Committee for opinion. The complainant further pointed out that Parliament should not have convened an "ordinary Medical Committee", but rather an "Invalidity Committee", and should have given the "Invalidity Committee" the power to take a decision pursuant to Article 78 of the Staff Regulations (that is, to make a finding that he was “permanently unfit for work”).

2.4 After careful consideration of Parliament’s opinion, it appeared that further inquiries were necessary. The Ombudsman therefore asked Parliament (i) to explain the reasons why the Article 59(3) procedure, which foresaw that cases in dispute shall be referred to the Invalidity Committee for an opinion, was not completed, although this was still possible and although Parliament stressed that this procedure had nothing to do with the invalidity procedure.

The Ombudsman further asked Parliament (ii) to explain the reasons why it did not address the need to initiate an invalidity procedure, although it had received an explicit request from the complainant to that effect on 27 October 2003 and at least two certificates, dated 27 November and 23 December 2003, suggesting that the complainant was "unfit for work".

2.5 In its reply, Parliament stated that, as regards the first issue raised by the Ombudsman, the procedure provided for in Article 59(3) of the Staff Regulations had been launched by its services. However, the procedure could not continue because the complainant did not appear before the "Medical Committee". Additionally, since the complainant pursued treatment at a clinic in Germany until 3 February 2004, it was not possible to convene the "Medical Committee" before his retirement, which took effect from 1 February 2004. It must be stressed that a precondition for applying Article 59 was that the official be "unable to perform his duties because of sickness or accident". Thus, once on compulsory retirement in accordance with Article 52 of the Staff Regulations, Parliament was statutorily precluded from pursuing the procedure provided for by Article 59 of the Staff Regulations.

As regards the second issue raised by the Ombudsman, Parliament pointed out that neither of the medical certificates of 27 November and 23 December 2003 stated that the official was unable to perform his duties on a permanent basis on grounds of permanent invalidity. In view of the contradictory medical opinions, Parliament's decision to submit the case to the "Medical Committee" in accordance with Article 59(3) of the Staff Regulations showed that it wished to obtain a thorough assessment of the complainant's health. Nevertheless, in Parliament’s view, no medical evidence was brought before the competent services of Parliament that indicated that the complainant met the requirements set out in Article 78 of the Staff Regulations.

2.6 In his observations on Parliament’s reply, the complainant stated that, as regards the first issue, the medical certificate provided by Parliament’s doctor was illegible and did not contain any heading, which precluded the complainant from identifying the author. The complainant stated that he had informally informed the Medical Service that he had to enter a clinic. By letter of 27 December 2003, the complainant confirmed this information to the Medical Service. In the complainant’s view, no one had been presented with a fait accompli. The complainant further argued that, contrary to Parliament’s statement, he had received the relevant prior authorisation from Parliament and attached a letter of 31 December 2003 from the "Bureau liquidateur" in this regard.

As regards the second issue, the complainant stated that the medical certificates he had provided confirmed that he was permanently unfit for work. In the complainant’s view, Parliament was under the obligation to open the procedure foreseen by Article 78 of the Staff Regulations. The complainant further stated that, since 31 October 2002, he had been unable to work because of a deterioration in his state of health.

2.7 On 18 July 2007, the Ombudsman requested Parliament to indicate to him whether it considered it to be still possible to convene the Invalidity Committee in order to take a decision as regards what the complainant's state of health was prior to his retirement on 1 February 2004.

2.8 In its reply, Parliament informed the Ombudsman that the complainant’s file had been submitted to a medical officer with a view to assessing whether, from a medical point of view, it would now be possible to make any retrospective statement regarding the complainant’s health prior to 1 February 2004. By note of 15 October 2007, Parliament’s medical officer stated that it would now not be possible to make such a statement. The administration was therefore under no obligation to initiate the invalidity procedure under Article 78 of the Staff Regulations. On 1 February 2004, the complainant was formally retired in accordance with Article 52 of the Staff Regulations. Parliament concluded that it considered that the complainant’s situation had been dealt with in accordance with the Staff Regulations, and in particular Articles 52 and 59 thereof.

2.9 In his further observations, the complainant stated that, by letter of 27 October 2003, he had asked Parliament to "open the invalidity procedure" and that the latter had refused to do so, without any reason. In the complainant’s view, this failure constituted an instance of maladministration by Parliament.

2.10 The Ombudsman considers it necessary to make the following three observations:

First, the Ombudsman observes that the complainant attached to his complaint a series of medical certificates relating to his state of health. In this context, the Ombudsman would like to point out that his role consists in investigating complaints concerning alleged instances of maladministration in the activities of the institutions and bodies of the European Union. The Ombudsman's mandate does not allow him to assess, in themselves, any medical certificates relating to the medical state of health of a complainant, this role being the sole prerogative of qualified doctors. In the present case, the Ombudsman will therefore only examine whether Parliament acted on the basis of the medical opinions forwarded to it and in accordance with the rules foreseen in the Staff Regulations in force at the time. In this context, the Ombudsman would like to highlight that his inquiry will only deal with the procedural issue raised by the complainant, that is, Parliament’s alleged failure to "open the invalidity procedure".

Second, the Ombudsman considers it necessary to clarify an issue of terminology. In its opinion and its correspondence with the complainant, Parliament regularly (but not always) uses the term "Medical Committee" to refer to the body that was convened for 7 January 2004. The meeting in question, however, was convened on the basis of Article 59(3) of the Staff Regulations which refers only to the convocation of an "Invalidity Committee". The Ombudsman notes, therefore, that the use of term "Medical Committee" in this context is devoid of any legal basis. Thus, regardless of Parliament's use of certain terms to refer to the meeting of 7 January 2004, the Ombudsman understands that this meeting was a meeting of the Invalidity Committee.

Third, the complainant, in his observations, called on Parliament to convene the Invalidity Committee and to give that Invalidity Committee competence, in accordance with Article 78 of the Staff Regulations, to ascertain whether he had a permanent invalidity which prevented him from exercising his duties. The Ombudsman considers it necessary to underline that an Invalidity Committee, once convened, has the power to carry out any evaluations which relate to its specific role, which is to evaluate invalidity. An Invalidity Committee, once convened, does not therefore require any additional specific authorisation from Parliament to carry out an analysis of permanent invalidity. Thus, the Invalidity Committee convened for 7 January 2004 was competent, without the need for any further authorisation from Parliament, to evaluate the alleged permanent invalidity of the complainant.

2.11 The Ombudsman observes that Parliament, following a number of instances where the complainant took sick leave, requested the complainant to undergo a medical examination on 10 November 2003. The Ombudsman notes that, in his report, Parliament’s medical officer stated the following:

"Given the nature of the professional activity exercised by the patient (a conference room technician), given that the patient has exercised, with this handicap, this activity for nearly 20 years, given the rather satisfactory orthopaedic result of the 2002 operation concerning the motor level, given the absence of complications following the operation for an inguinal hernia of October 2003, the extension of the complainant’s leave does not appear to be justified in these circumstances. The patient does not have any professional incapacity, in the medical and professional senses"(14).

The Ombudsman observes that the complainant did not, however, return to work as requested by Parliament in its letter of 19 November 2003, but rather sent a new medical certificate in which reference was made to his disability and his inability to work.

2.12 The Ombudsman notes that the medical report of Parliament’s medical officer concluded that the complainant was considered "fit for work", despite his disability. The Ombudsman notes, in this respect, that the complainant has informed him that he suffers from a congenital disability(15). The complainant also informed the Ombudsman that he was recruited by Parliament following the implementation of a policy by Parliament aimed at recruiting "disabled persons". The Ombudsman thus presumes that Parliament did not, when the complainant was recruited, consider the complainant’s congenital disability to constitute medical grounds which would have prevented him from carrying out his duties(16). The Ombudsman thus presumes that any subsequent medical certificates which would did not go further than certifying that the complainant suffered from the aforesaid congenital disability, would not, in themselves, constitute proof that the complainant was permanently unfit to carry out his duties for Parliament. The Ombudsman notes that the medical certificates of 27 November 2003 and 23 December 2003 merely stated that the complainant suffered from the aforesaid congenital disability(17). Thus, the Ombudsman concludes that these medical certificates do not constitute proof that the complainant was permanently unfit to carry out his duties for Parliament.

2.13 The Ombudsman however notes that, in his letters to Parliament and in his observations on Parliament’s opinions, the complainant argued that his state of health was deteriorating. The Ombudsman agrees that, in view of such declarations, it could not be excluded that the complainant's condition had worsened to an extent which would have made him "unfit for work" or "permanently unfit for work".

2.14 The Ombudsman notes that, in such circumstances, and, in light of Article 59(3) of the Staff Regulations, it was appropriate for Parliament to convene a meeting of the Invalidity Committee in order to verify if the complainant's condition had worsened to an extent which would have made him "unfit for work" or "permanently unfit for work". The Ombudsman notes that Parliament did convene a meeting of the Invalidity Committee for 7 January 2004. Parliament's medical officer, the complainant's doctor, a third doctor as well as the complainant himself, were invited to attend that meeting.

The Ombudsman notes that the Invalidity Committee, once convened, has the power to carry out any evaluations which relate to its specific role. In particular, an Invalidity Committee, once convened, does not require any additional specific authorisation from Parliament to carry out an analysis of "permanent invalidity".

Thus, the Invalidity Committee convened for 7 January 2004 was competent, without the need for any further authorisation from Parliament, to evaluate the alleged "permanent invalidity" of the complainant.

2.15 In light of the above, the Ombudsman concludes that Parliament did in fact convene a meeting of the Invalidity Committee, as provided for in Article 59(3) of the Staff Regulations.

2.16 The Ombudsman observes that, by letter of 27 December 2003, the complainant informed the Director for Personnel that he would attend a clinic from 6 January 2004 until 3 February 2004. The complainant was thus unable to attend the meeting of the Invalidity Committee which Parliament had convened for 7 January 2004.

In view of the circumstances described above, Parliament cannot be faulted for the inability of the Invalidity Committee to decide on the state of health of the complainant prior to his retirement on 1 February 2004.

2.17 Parliament, in its opinions, stated that the cancellation of the meeting of the Invalidity Committee had brought the on-going invalidity procedure to an end.

The Ombudsman is thus of the view that Parliament implicitly considered that the Article 59(3) procedure had been terminated and that the request for invalidity had thus been rejected.

2.18 After the complainant's retirement, Parliament refused the various requests from the complainant to "re-initiate" the invalidity procedure and to convene the Invalidity Committee. Parliament stated that, in view of Article 78 of the Staff Regulations and the "Bähr case-law", it was precluded from convening the Invalidity Committee once the complainant had retired.

2.19 The Ombudsman agrees that Article 78 of the Staff Regulations can only be applied if it can be demonstrated that an official was, at a point in time when he was still in the service of the institution, permanently unfit for work. The fact that a retired official may be deemed, as of a point in time subsequent to his retirement, to be permanently unfit for work on medical grounds is irrelevant as regards the application of Article 78 of the Staff Regulations.

2.20 The Ombudsman notes that in Bähr v Commission the Court of Justice held, inter alia, 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. 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"(18). (Emphasis added).

It is clear from this wording that the Court of Justice found that the mere fact that the applicant had an incapacitating illness several years after leaving the service was, absent other factors, insufficient to require the initiation of the procedure to establish invalidity.

2.21 The Court of Justice also stated in Bähr v Commission that:

"However, circumstances of that kind may be taken into account in connection with the review of the legality of the contested decision only if 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. That connection cannot be deduced simply from the fact that the official suffered two consecutive heart attacks particularly where, as in this case, they are separated by more than 10 years."(19) (Emphasis added).

It is evident from the above that if a "direct and immediate connection" can be found between the current state of health of a former official and his state of heath at the time (or before) he left the service, it would be possible, even at a point in time subsequent to the retirement of the official, to establish that he had been permanently medically unfit for work prior his retirement. Such a "direct and immediate connection" could not be deduced from the specific medical facts in Bähr, especially given the significant number of years which had elapsed since the applicant's retirement. However, the Court of Justice clearly did not rule out the possibility that such a "direct and immediate connection" could be made given alternative medical facts.

2.22 In order to illustrate clearly the significance of this reasoning, the Ombudsman would like to refer to the hypothetical example of an official who is involved in a severe traffic accident a few days before his retirement, leading immediately to complete and permanent paralysis. Even though, in such circumstances, it might be impossible for an Invalidity Committee to convene before the date of the official’s retirement, it should not be excluded that a "direct and immediate connection" could be made between the retired official's current medical status and his medical status at a point in time prior to his retirement.

2.23 In light of the above, the Ombudsman concludes that, ideally, the Invalidity Committee should have been reconvened before the complainant's retirement. However, given that the complainant was not available to attend a meeting of the Invalidity Committee before his retirement, the Invalidity Committee should have been reconvened as soon as possible after his retirement, that is, after the complainant left the clinic on 3 February 2004.

An Invalidity Committee should only determine that a retired official should be entitled to invalidity status if the Invalidity Committee can, on the basis of medical facts, establish a "direct and immediate connection" between the retired official's current medical status and his medical status at a point in time prior to his retirement.

2.24 The Ombudsman therefore concludes that, in the complainant’s case, Parliament should have convened a meeting of the Invalidity Committee as soon as possible after the complainant left the clinic on 3 February 2004. While it may have been impossible to convene the Invalidity Committee immediately after the complainant left the clinic on 3 February 2004, given that the complainant's doctor resigned from the Invalidity Committee by letter of 12 January 2004(20), Parliament clearly had the possibility, pursuant to Article 7 of Annex II of the Staff Regulations(21), to invite the complainant to appoint another doctor to represent him on the Invalidity Committee. This would have allowed Parliament formally to conclude the procedure and issue an explicit decision with respect to the complainant's request to be declared permanently unfit for work. Parliament's failure to take such steps constitutes an instance of maladministration.

2.25 When the Ombudsman considers that there exists an instance of maladministration, he will examine whether there are steps which can be taken by the institution or body concerned to eliminate the effects of that maladministration. In this context, the Ombudsman asked Parliament, in the context of further inquiries, whether, from a medical point of view, it would still be possible to make a retrospective assessment regarding the complainant’s health (that is, his state of health prior to February 2004). Parliament answered that it was no longer possible to ascertain whether a direct and immediate connection existed between the complainant's current medical status and his medical status at a point in time prior to his retirement. The Ombudsman stresses that Parliament's view reflects the medical judgment of Parliament's medical service, the substance of which the Ombudsman is not competent to review.

Thus, it appears, from the available evidence, that the instance of maladministration identified, namely the failure to reconvene the Invalidity Committee as soon as possible after the complainant left the clinic on 3 February 2004, cannot now be put right by any further steps by Parliament.

The Ombudsman will therefore make a critical remark in relation to the instance of maladministration identified.

2.26 Notwithstanding the above, the Ombudsman observes that if, in the future, the complainant were to produce new evidence, namely a medical certificate which specifically states that, from a medical view of point, a "direct and immediate connection" does indeed exist between the complainant's current medical status and his medical status at a point in time prior to his retirement, thereby specifically concluding that he was "permanently unfit for work" at a point in time prior to his retirement, Parliament should reconvene the Invalidity Committee to evaluate whether the medical opinion of Parliament's medical service or the new medical opinion furnished by the complainant, is accurate(22).

2.27 The Ombudsman further notes that, in his observations, the complainant argued that the decision of Parliament of 25 November 2003, pursuant to which he became entitled to a retirement pension was "unusual" because it had taken more than two months before the date on which he retired. The Ombudsman notes that the complainant did not raise this point in his Article 90(2) appeal of 6 December 2004. The Ombudsman did not, therefore, consider that this point could be included within the scope of his inquiry in view of Article 2 (8) of his Statute.

3 The complainant's claims

3.1 The complainant claimed that the invalidity procedure should be opened. In his further observations, the complainant also claimed that Parliament should pay him damages amounting to the difference between the amount of the retirement pension currently granted to him and the amount corresponding to the invalidity pension to which he was entitled.

3.2 As noted above, the Ombudsman considers that Parliament, by convening a meeting of the Invalidity Committee for 7 January 2004, had in fact opened the invalidity procedure. The Ombudsman also considers that Parliament subsequently implicitly closed the invalidity procedure. The Ombudsman therefore understands the complainant's claim to relate to whether Parliament should now reopen the invalidity procedure.

The Ombudsman made further inquiries on 18 June 2007, in which he requested Parliament to assess whether, from a medical perspective, it would still be possible to evaluate what the complainant’s state of health was prior to 1 February 2004. It emerges, from Parliament’s reply, that it was not now possible to assess what the complainant’s state of health was before his retirement on 1 February 2004.

3.3 The Ombudsman notes that Parliament's response to his further inquiries is based on the medical opinion of qualified doctors. There is no contrary evidence in the file, namely, no medical certificate has been provided by the complainant which specifically states that, from a medical view of point, a "direct and immediate connection" does exist between the complainant's current medical status and his medical status at a point in time prior to his retirement, thereby specifically concluding that he was "permanently unfit for work" at a point in time prior to his retirement. The Ombudsman therefore considers that there are no grounds to pursue further the inquiry into the claim that the invalidity procedure should be re-opened. The Ombudsman, however, draws the complainant's attention to the observation made in Point 2.26 above.

3.4 As regards the complainant’s claim to be paid damages, the Ombudsman observes that the complainant did not previously submit this claim in his complaint. This claim would therefore appear to be inadmissible on the ground of Article 2(8) of the Ombudsman’s Statute(23).

3.5 However, the Ombudsman also considers it useful to observe that the complainant’s second claim clearly depends on establishing, from a medical perspective, whether the complainant was in fact permanently unfit for work prior to his retirement. The Ombudsman recalls that this medical assessment can only be carried out by qualified doctors. In the course of his inquiry, the Ombudsman has established that, in Parliament's view, it is impossible for Parliament retrospectively to assess the complainant’s state of health before his retirement(24).

4 Conclusion

On the basis of his inquiries into this complaint, the Ombudsman considers that there are no grounds for further inquiries into the complainant’s claims.

However, as regards the complainant’s allegation, the Ombudsman makes the following critical remark:

Parliament should have convened a meeting of the Invalidity Committee as soon as possible after the complainant left the clinic on 3 February 2004, and, potentially, after having asked the complainant to appoint a new doctor to represent him. This would have allowed Parliament formally to conclude the procedure and issue an explicit decision on the complainant's request to be declared "permanently unfit for work". This failure constituted an instance of maladministration.

Given that these aspects of the case concern procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

The President of Parliament will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) All references made in the present decision to the Staff Regulations relate to those in force prior to 1 May 2004, unless otherwise indicated.

(2) Case 12/83 Bähr v Commission [1984] ECR 2155. While Parliament did not mention any particular paragraph of Case 12/83 in its opinion, the Ombudsman understands that Parliament refers to paragraphs 12 and 13 (quoted below).

(3) Case 12/83 Bähr v Commission [1984] ECR 2155.

(4) According to Article 59(3) of the Staff Regulations, cases in dispute are to be referred to the Invalidity Committee for an opinion.

(5) Translation by the Ombudsman’s service from the original version in French, which reads as follows: "Actuellement en congé de longue maladie, je suis passé à la division des droits individuels pour prendre des renseignements concernant le déclenchement de la procédure d’invalidité prévue au Statut. (…) Au vu des circonstances, je dois vous informer que malheureusement, mon état de santé attesté par mon dossier médical du Parlement, ne me permet plus d’envisager un retour dans l’institution. Je vous demande par conséquent, eu égard aux dispositions du Statut, notamment de l’annexe VIII, de mettre en œuvre la procédure d’invalidité, les conditions de la mise en invalidité étant réunies tant au regard de l’article 59, paragraphe 1, in fine, que de l’article 13 de l’annexe VIII du Statut".

(6) Translation by the Ombudsman’s service from the French original version: "Suite aux conclusions du contrôle médical du 10 novembre 2003 et ma lettre du 19 novembre 2003 vous invitant à reprendre vos fonctions, vous ne vous êtes toujours pas présenté au bureau mais vous avez soumis un nouveau certificat d’arrêt de travail.

Après avoir réexaminé attentivement votre dossier, j’ai conclu qu’il est opportun de saisir une commission médicale conformément à l’article 59 paragraphe 3 du Statut et l’article 14 du Règlement interne relatif aux contrôles médicaux, afin de statuer sur votre cas."

(7) The Ombudsman understands that Parliament refers in reality to the "Invalidity Committee", mentioned in Article 59(3) of the Staff Regulations.

(8) In this regard, the Ombudsman notes that the complainant’s doctor refers to a "cure" whereas the complainant referred to "a treatment at a clinic" with a view to dealing with a deterioration in his state of health.

(9) Translation by the Ombudsman’s service from the original version in French, which reads as follows: "J’ai été mis devant le fait accompli par [le plaignant] et je n’ai donc aucun renseignement complémentaire; je n’ai jamais eu l’intention d’annuler la commission médicale prévue pour le 7 janvier 2004; j’ai simplement envoyé le certificat à la demande expresse de Mr B. [nom du médecin conseil]. Devant cet embrouillamini, je vous confirme officiellement que je me désolidarise [du plaignant] et que je ne le représenterai plus dans le cadre d’aucune commission médicale".

(10) See, in this regard, see Article XI of the Rules on sickness insurance for officials of the European Communities: "Article 11 Procedures Application or prior authorization 1. Where, pursuant to these Rules, reimbursement of expenses is subject to prior authorization, the decision shall be taken by the appointing authority or by the office responsible for settling claims designated by the appointing authority in accordance with the following procedure:(a) the application for prior authorization, together with a prescription and/or an estimate made out by the attending practitioner, shall be submitted by the member to the office responsible for settling claims, which shall refer the matter to the medical officer if need be. In the latter case, the medical officer shall transmit his opinion to the office responsible for settling claims within two weeks;(b) the office responsible for settling claims shall take a decision on the application if it has been appointed to do so or shall transmit its decision and, where applicable, that of the medical officer to the appointing authority for a decision. The member shall be informed of the decision forthwith (…)."

(11) The Ombudsman notes that it emerges from the medical certificates provided by the complainant that he has suffered from a congenital disability since childhood.

(12) See footnote 4 above.

(13) Case 12/83 Bähr v Commission, cited above, paragraphs 12 and 13.

(14) The original version in French reads as follows: "Vu le type d’activité professionnelle du patient (technicien de salle de conférence), vu que le patient exerce, avec ce handicap, cette activité depuis presque 20 ans, vu le résultat orthopédique plutôt satisfaisant sur la plan moteur de l’intervention de 2002, vu l’absence de complications dans l’intervention sur hernie inguinale d’octobre 2003, la prolongation de l’arrêt de travail dans ces circonstances n’apparaît pas justifiée. Il n’existe pas d’incapacité professionnelle dans le contexte médical et professionnel de ce patient".

(15) See footnote 11.

(16) In this regard, the Ombudsman notes that, in his letter of 27 December 2003 to Parliament, the complainant wrote the following: "Doctor C., who knows my situation since I entered into duties following Parliament’s policy aiming to recruit disabled persons (…)".

(17) The Ombudsman notes that the medical certificate of Dr M.S. of 27 November 2003 stated that the complainant was considered unfit to work in the "general labour market" ("marché général de l’emploi" in the original version in French). However, the Ombudsman notes that Article 78(8) of the Staff Regulations in force at the relevant time states that "[a]n 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." As such, in order to be of direct relevance for the purposes of Article 78(8) of the Staff Regulations in force at the relevant time, a medical certificate would have to state specifically that the person concerned was incapable of carrying out duties corresponding to any "post in his career bracket". The medical certificate supplied by the complainant does not, however, specify that he was unfit for specific work, corresponding to a "post in his career bracket", which Parliament may have assigned him to carry out.

(18) Case 12/83 Bähr v Commission [1984] ECR 2155, at paragraphs 12 and 13.

(19) Case 12/83 Bähr v Commission, cited above, paragraph 16.

(20) By letter of 14 April 2004, the complainant’s doctor again confirmed to Parliament that he had taken the decision not to represent his patient on the "Medical Committee" and considered that the matter was closed. The complainant's doctor letter was in response to a consultation of the Director for Personnel, of 26 March 2004, concerning the complainant's allegation that Parliament had dissuaded his doctor from representing him on the "Medical Committee".

(21) Article 7 of Annex II of the Staff Regulations provides that "[t]he Invalidity Committee shall consist of three doctors: one appointed by the institution to which the official concerned belongs; one appointed by the official concerned; and one appointed by agreement between the first two doctors. Should the official concerned fail to appoint a doctor, the President of the Court of Justice of the European Communities shall appoint one".

(22) The Ombudsman notes that the complainant retired under the former Staff Regulations, which were in force until 1 May 2004. However, under the new Staff Regulations, in force from 1 May 2004, Invalidity Pensions are only paid until such time as the member of staff reaches retirement age. After this date, and irrespective of any previous finding of invalidity, only a "Retirement Pension" is paid. As such, staff who retire under the current legal regime will have no practical interest in obtaining a retrospective declaration that they were "permanently unfit for work" prior to their retirement. Thus, the general impact of the findings set out herein is likely to be very limited.

(23) Article 2(8) of the Ombudsman’s Statute states that “[n]o complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all possibilities for submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned (...)”

(24) However, as observed above, if the complainant were to produce, in the future, a medical certificate which specifically states that, from a medical view of point, a "direct and immediate connection" does exist between the complainant's current medical status and his medical status at a point in time prior to his retirement, thereby specifically concluding that he was "permanently unfit for work" at a point in time prior to his retirement, Parliament should convene the Invalidity Committee to evaluate which of those medicals opinions, that is, either the medical opinion of Parliament's medical service or the medical opinion furnished by the complainant, is accurate.