Dear X,
On 23 August and 27 September 1999, you made a complaint to the European Ombudsman against the European Commission concerning the handling of your medical file by the Commission.
On 14 October 1999, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 7 January 2000 and I forwarded the opinion to you with an invitation to make observations, if you so wished. I received your observations on 29 February 2000. On 22 September 2000, your lawyers sent further information.
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 as follows:
The complainant is a former official of the Commission who has worked in the Berlaymont building of the Commission for 7 and a half years. On 5 November 1996, the complainant asked for his health problems to be recognised as an occupational disease on the basis of Article 73 of the Staff Regulations. He claimed that his problems originated from an over-exposure to asbestos at the Berlaymont building. Following an investigation and on the basis of the medical report from the Institution's doctor, the complainant's request was rejected by the Appointing Authority by letter of 25 June 1998.
On 6 July 1998, the complainant asked for a Medical Committee to be established pursuant to Article 21 of the Rules on the insurance of officials of the European Communities against the risk of accident and occupational disease (hereinafter the Rules) in order to investigate the origin of his health problems. According to Article 23, paragraph 1 of the Rules, a Medical Committee consists of 3 doctors, 2 of which chosen by the institution and by the complainant respectively as well as a third doctor chosen by common agreement. In case of disagreement on the person of the third doctor, a doctor will be selected by the President of the Court of Justice.
The Commission chose Dr. D. as the doctor representing the institution on the Medical Committee. By letter of 14 December 1998, the complainant submitted a complaint to the Commission (R/697/98) under Article 90 paragraph 2 of the Staff Regulations in which he questioned the competence and the independence of Dr. D. as the doctor representing the Commission on the Medical Committee. On 31 May 1999, the Commission decided on this complaint. As regards the designation of Dr. D., the Commission referred to Article 19 of the Rules according to which decisions recognising the occupational nature of a disease shall be taken by the appointing authority in accordance with the procedure laid down in Article 21:
- on the basis of the findings of the doctor(s) appointed by the institutions; and
- where the official so requests, after consulting the Medical Committee referred to in Article 23.
The Commission further referred to the case law of the Court of Justice according to which the Rules are intended to allow officials to be examined twice, first by a doctor enjoying the confidence of the Institution and, in the event of disagreement, by a Medical Committee to which both parties appoint a doctor enjoying their confidence. It further stated that the interests of the official are safeguarded by the presence on the Medical Committee of a member enjoying his confidence and by the appointment of the third member on the committee by agreement between the two members appointed by the parties or, if they fail to agree, by the President of the Court of Justice(1).
As regards the competence of Dr. D., the Commission stated that the doctor has a very long-standing experience as the doctor of the Institution, in particular with regard to occupational diseases and the Community legislation in this regard. The Commission also referred to the possibility of the chosen doctor to seek advice from a specialist in the particular medical field, a possibility which the doctor chosen by the Commission had made use of.
On 5 May 1999, the complainant submitted a second complaint (R/205/99) to the Commission in which he asked for compensation because the administration had failed to inform him of the dangers of asbestos in the Berlaymont building even though the Commission was aware of these dangers. By letter of 12 August 1999, the Commission replied to the complainant's second complaint. As regards the claim for compensation, the Commission referred to two judgements of the European Court of Justice and the Court of First Instance respectively(2). According to these judgements, in a claim for damages brought by an official, the Community may only be held liable if a number of conditions are satisfied: there must be unlawful conduct on the part of the institutions, actual damage and a causal link between the act and the damage alleged to have been suffered. The Commission considered that it acted in accordance with its rules and that there was no material or moral claim for compensation by the complainant.
Given that an agreement on the third doctor could not be reached, the Commission asked the President of the Court of Justice to nominate a doctor for the Medical Committee by letter of 16 June 1999. On 27 July 1999, the Court informed the complainant of its choice of the third doctor.
By letter of 18 August 1999, the complainant complained to the Commission about the length of the procedure of 3 years, and about the choice of the third doctor by the Court of Justice who allegedly did not have the independence necessary to perform his duties as he had links to the asbestos lobby.
The complainant thereafter lodged a complaint with the Ombudsman.
The complainant complains in particular about
· the length of time it took the Commission to deal with his case;
· the choice of the third doctor.

THE INQUIRY

The Commission's opinion
In its opinion the Commission described the different steps taken by the parties concerned.
As regards the first allegation made by the complainant, the Commission stated that no irregularity occurred in the procedure followed by the Commission in accordance with the Rules in order to establish a possible occupational disease of the complainant. According to the Commission, the length of the procedure was due partly to the critical attitude that the complainant took concerning the composition of the Medical Committee.
With regard to the second allegation, the Commission stated that after a third doctor had been nominated by the President of the Court of Justice, the Medical Committee started its work. The authority of this committee could not be questioned by either the Commission or the complainant. Given that the conclusions of this committee were not yet available, the Commission could not comment on the possible origin of the complainant's health problems.
The complainant's observations
In his observations, the complainant maintained his complaint.
As regards the first allegation, the complainant put forward that it took the Commission 20 months to decide on his request to recognise his health problems as an occupational disease. Furthermore, the complainant stated that there was a time span of 16 months between his request to set up a Medical Committee and the first meeting of the committee. The complainant stated that the delay was not due to the fact that he changed his doctor, but rather due to the attitude of the Commission's doctor who systematically refused all the doctors proposed by the complainant's doctors for the position of third doctor on the Medical Committee. The complainant further stated that he was still waiting for a conclusion to be reached by the Medical Committee.
The complainant did not make any observations with regards to the second allegation.
He further stated that the Commission failed to respond to another aspect of his complaint which was linked to the Commission's response to the complainant's second complaint (R/205/99). In its response, the Commission allegedly ignored the medical results reached by the Catholic University of Leuven according to which pleural patches linked to the exposure to asbestos were found in the complainant's case and which was the base of the complainant's complaint to the Commission.
Further information sent by the complainant
On 2 October 2000, the Ombudsman received further information on the case. The complainant's lawyers sent a copy of a complaint addressed to the Commission in accordance with Article 90 (2) of the Staff Regulations following the negative decision of the Medical Committee as regards the complainant's request to have his health problems recognised as an occupational disease.
In this complaint, the lawyers request the Commission to annul the decision of the Medical Committee because
- the conclusions drawn by the Medical Committee were wrongly motivated;
- the Medical Committee failed to take important medical information into account;
- the Medical Committee did not make full use of its mandate;
- the Medical Committee was constituted in an irregular manner.

THE DECISION

Introductory Remarks
During the investigation of this complaint, the Ombudsman received further information on the case by the complainant's lawyers which relate to the result reached by the Medical Committee. Given that these allegations are now dealt with by the Commission in accordance with Article 90 (2) of the Staff Regulations, the Ombudsman refers to Article 2 (8) of his statute and considers that this issue cannot be dealt with in this decision.
Furthermore, the complainant stated in his observations that the Commission ignored the medical results reached by the Catholic University of Leuven according to which pleural plaques linked to the exposure to asbestos were found in the complainant's case and that this was the basis of the complainant's complaint to the Commission. As this issue is related to the merits of the complaint to the Commission, it will surely be presented in that procedure. The Ombudsman thus considers that this allegation was brought to his attention for information purposes only.
1 Length of Procedure
1.1 The complainant complains about the length of time it took the Commission to deal with his request for his health problems to be recognised as an occupational disease.
1.2 The Commission stated that a possible long duration of the procedure was partly due to the complainant's critical attitude as regards the designation of doctors for the Medical Committee.
1.3 Principles of good administrative behaviour require that the Commission's services ensure that a decision is taken within reasonable time. This is particularly important when the state of health of a person is involved. According to the information provided to the Ombudsman, there was a delay of nearly 20 months for the Commission to conclude on the complainant's request for the recognition of his health problems as occupational disease and 16 months for the Commission to set up a Medical Committee after he requested it. There was therefore a considerable delay. The fact that the complainant questioned the Commission's choice of doctor to represent it on the Medical Committee cannot be seen as a sufficient explanation for this delay. It must thus be considered that the Commission did not deal with the complainant's allegations within reasonable time, which constitutes an instance of maladministration.
2 The choice of the third doctor
2.1 The complainant complained about the choice of the third doctor by the President of the Court of Justice as the doctor chosen did not have the independence necessary to carry out his duties because he had links to the asbestos lobby.
2.2 The Commission had asked the President of the Court of Justice to nominate a doctor for the Medical Committee pursuant to Article 23 of the Rules as the parties could not agree on the choice of the third doctor. The Commission stressed that the authority of this Committee could not be questioned by either the Commission or the complainant.
2.3 On the basis of the information provided to the Ombudsman, there appears to be no sufficient grounds to investigate into the question of the nomination of the third doctor to the Medical Committee. Further investigations into this part of the allegations are thus not justified.
3 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, it is necessary to make the following critical remark as regards the first allegation:

Principles of good administrative behaviour require that the Commission's services ensure that a decision is taken within reasonable time. This is particularly important when the state of health of a person is involved. According to the information provided to the Ombudsman, there was a delay of nearly 20 months for the Commission to conclude on the complainant's request for the recognition of his health problems as occupational disease and 16 months for the Commission to set up a Medical Committee after he requested it. There was therefore a considerable delay. The fact that the complainant questioned the Commission's choice of doctor to represent it on the Medical Committee cannot be seen as a sufficient explanation for this delay. It must thus be considered that the Commission did not deal with the complainant's allegations within reasonable time, which constitutes an instance of maladministration.

Given that this aspect of the case concerns 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 the European Commission will also be informed of this decision.
Yours sincerely
Jacob SÖDERMAN

---

(1) Biedermann v. Court of Auditors, judgement of 19 January 1988, 2/87, pt.10.

(2) Commission v. Brazzelli Lualdi a.o., judgement of 1 June 1994, C-136/92 P, I-1981, pt.42. Ojha v. Commission, judgement of 6 July 1995, T-36/93, p. II-497, pt.130.