Dear Mr I.,

On 21 November 2001, you forwarded to me a complaint against the European Commission concerning the latter's approach to the issue of occupational disease. This complaint was lodged by your client, Mr J.

On 13 February 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 25 June 2002. I forwarded it to you with an invitation to make observations, which you sent on 7 October 2002.

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

THE COMPLAINT

Introduction

The present complaint belongs to a group of seven complaints that were lodged by officials (or former officials) of the European Commission or their spouses who allege that they or their spouses suffer or suffered from occupational diseases due to their exposure to asbestos in the Commission's Berlaymont building in Brussels.

The relevant rules
Article 73 of the Staff Regulations

Under Article 73(1) of the Staff Regulations of Officials of the European Communities (the "Staff Regulations"), an official is insured against the risk of occupational disease and of accident subject to rules drawn up by common agreement of the institutions of the Communities. Under the terms of Article 73(2)(b), the benefit guaranteed in the event of total permanent invalidity consists in payment to the official of a lump sum equal to eight times his annual basic salary calculated on the basis of the monthly amounts of salary received during the 12 months before the accident. In the case of partial permanent invalidity, Article 73(2)(c) provides that the official is to be paid a proportion of the sum provided for in Article 73(2)(b), calculated by reference to the scale laid down in the said rules drawn up by common agreement of the institutions of the Communities.

Article 12 of the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease ("the Rules") referred to in Article 73 of the Staff Regulations provides for the payment of the sums mentioned in Article 73(2)(b) and Article 73(2)(c) of the Staff Regulations. According to Article 17(1) of the Rules, an official who requests application of the Rules on grounds of an occupational disease must submit a statement to the administration of the institution to which he belongs. Under Article 17(2), the administration must then hold an inquiry in order to obtain all the particulars necessary to determine the nature of the disease, whether it resulted from the official's occupation and also the circumstances in which it arose. After seeing the report drawn up following the inquiry, the doctor or doctors appointed by the institutions are to state his or their findings as provided for in Article 19. Article 19 of the Rules provides that decisions recognising the occupational nature of a disease and assessing the degree of permanent invalidity are to 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 or doctors appointed by the institutions and, where the official so requests, after consulting the Medical Committee referred to in Article 23. Article 21 of the Rules places the appointing authority under an obligation to notify the official of the draft decision and of the findings of the doctor or doctors appointed by the institution before it takes a decision pursuant to Article 19. Within a period of 60 days the official may request that the Medical Committee provided for in Article 23 deliver its opinion. According to Article 23, the Medical Committee is composed of three members, one appointed by the appointing authority, one appointed by the official concerned and one appointed by agreement between the first two doctors. Where agreement cannot be reached on the appointment of the third doctor within a period of two months, the President of the Court of Justice of the European Communities shall appoint the third doctor at the request of either party.

In order to protect themselves against the liability arising from the above-mentioned provisions, the European Communities concluded, on 28 January 1977, an "Agreement for collective insurance against accidents and occupational diseases" ("the Agreement") with certain insurance companies(1). The insurers undertook to cover, under the terms of the Agreement, the financial consequences of the obligations assumed by the Communities under the Staff Regulations in respect of accidents and occupational diseases suffered by persons to whom Article 73 of the Staff Regulations and the Rules adopted pursuant thereto apply. It was the Communities, which were the sole beneficiaries of the Agreement, that were covered and it was to them that the insurers had to pay the allowances arising under those provisions (Article 1 of the Agreement).

According to Article 3(1) of the Agreement, the competent administrative authorities of the Communities were to agree with the insurers on practical provisions relating to information about the occurrence of accidents and occupational diseases and the administration of files so as to enable the insurers to monitor the progress of cases and to facilitate their exercise of the right of recourse against liable third parties and the constitution of reserves as required by legislation on the supervision of insurance. Under Article 3(3) of the Agreement, draft decisions likely to give rise to the award of one of the benefits underwritten were to be notified to the insurers for their prior opinion in accordance with the practical provisions referred to in Article 3(1) before they were notified to the interested persons by the competent authority of the Communities.

Article 5 of the Agreement provided that disputes relating to the performance of this contract could be brought before the Court of Justice of the European Communities, with the exception of medical disputes "where the appointing authority's decision determining the pecuniary rights of the victim or those entitled under him is consistent with the prior opinion given by the insurers' expert or with the opinion delivered by the Medical Committee provided for in Article 23 of the rules referred to in Article 1(1) where the insurers' expert was a doctor member of the Medical Committee; in such case, the insurers shall reimburse to the Communities the whole amount of the sums paid out to the victim or those entitled under him, pursuant to the aforementioned decision of the appointing authority ...".

Under the terms of Article 10(2) of the Agreement, the public limited company J. Van Breda & Co. International (hereinafter "Van Breda") was appointed as intermediary. A letter dated 27 January 1989 from Van Breda to the European Communities confirmed an agreement concluded between the insurers and the European Communities, pursuant to the Agreement, on the procedure applicable to accidents and occupational diseases. Point I of that letter, entitled "Appointment of doctors", stated that it was agreed that the doctor appointed by the appointing authority and approved by the insurers was to act as an expert within the meaning of Article 5 of the Agreement and that that doctor could not be the institution's medical officer.

According to point II of the letter, entitled "Draft decisions - Prior notification to the insurers - Time-limit for responding thereto", the draft decision, which was to be the subject of prior notification to the insurers for their opinion pursuant to Article 3(3) of the Agreement, had to be accepted or rejected by the insurers within the shortest possible period of its notification. The insurers were to use their best endeavours to confirm their agreement or disagreement with the draft decision within no more than one month of the transmission of the latter. If, on the expiry of this period, the insurers had not confirmed their agreement or disagreement, they had to notify the reason to the appointing authority and the period was to be extended by one month. If the insurers found that they would not be in a position to confirm their agreement or disagreement before the expiry of the extended period, they were to propose to the appointing authority and the broker that a consultation procedure be initiated in order to determine how matters should proceed and to fix a new period of up to four months.

Article 78 of the Staff Regulations

According to Article 78 of the Staff Regulations, an official shall be entitled, in the manner provided for in Articles 13 to 16 of Annex VIII ("Pension scheme"), 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 Annex VIII stipulates that the invalidity must have been recognised by the Invalidity Committee foreseen in Article 9(1)(b) of the Staff Regulations. According to Annex II ("Composition and procedure of the bodies provided for in Article 9 of the Staff Regulations"), the Invalidity Committee is composed of three members, one appointed by the appointing authority, one appointed by the official concerned and one appointed by agreement between the first two doctors. Where agreement cannot be reached on the appointment of the third doctor within a period of two months, the President of the Court of Justice of the European Communities shall appoint the third doctor at the request of either party.

The facts of the present case

The complainant worked for the Commission since 1981. As a result of his failing health that in his view is due to his exposure to asbestos, he applied, on 5 October 1995, to have his illness recognised as an occupational disease. On 17 April 2001, and due to his deteriorating state of health, the complainant asked for the recognition of his invalidity within the meaning of Article 78 of the Staff Regulations. This required a finding to that effect by the Invalidity Committee.

The complainant alleged that after the Commission and he himself had appointed their respective doctors, a situation of deadlock arose since the Commission abstained from communicating the full address of its doctor to the complainant's doctor. When the Commission's doctor finally contacted the complainant's doctor, he insisted, according to the complainant, that the third doctor should have Belgian nationality. Since the complainant considered that this condition was not justified, he applied to the President of the Court of Justice on 12 September 2001 who appointed, on 9 November 2001, Professor M. from Paris.

The complainant added that for nearly ten years, he had refused to accept the draft appraisals reports prepared by his superiors after having rejected a rather negative draft for the period between June 1993 and June 1995. He also noted that his superior had requested the appointing authority on 23 July 2001 to relaunch a procedure with a view to establishing the incompetence of the complainant in the performance of his duties (Article 51 of the Staff Regulations) and that this procedure was currently pending.

The allegations and claims raised in the complaint

In his complaint, the complainant pointed out that according to the Staff Regulations, it was for the European Communities to guarantee the social security payments to their officials. In his view, however, the system described above resulted in a confusion between the sole beneficiaries of the Agreement (the Community institutions) and their insurance companies. Whilst the civil servant dealt directly with the Commission, the latter limited itself in effect to transmitting the relevant data to the insurance companies who took the decisions instead of the institution that should have taken them according to the Staff Regulations. The complainant took the view that there was no legal basis for delegating these powers. He further argued that general principles of social security law made it illegal to attribute the functions of the social security system to a commercial enterprise. In this context, the complainant referred to Conventions no. 24 and no. 130 of the International Labour Organisation (ILO). The complainant argued that the Commission had infringed principles of good administration by associating commercial enterprises intending to make a profit to making decisions on its own social security payments. He took the view that the insurance companies concerned thus combined the role of "party and judge" in one person. The complainant further noted that individuals had no direct judicial remedy against these insurance companies.

In the complainant's view, the result of this system was an extreme slowness in handling applications. The complainant argued that principles of good administration required however that decisions should be taken within an appropriate period, all the more so since in cases like the present one they concerned the health of a person.

In the complainant's view, Article 41 of the EU's Charter of Fundamental Rights protected in particular the right of every person to have access to files that concern him, whilst respecting legitimate interest of confidentiality and of professional secrecy. The complainant alleged that a person submitting an application pursuant to Article 73 of the Staff Regulations was not in a position fully to exercise this right, since a substantial part of the file was dealt with directly by the insurance companies. He concluded that the principle of transparency was not at all applied in what concerned communications between the institutions and the insurance companies or the intermediary.

The complainant submitted the following claims:

(A) Recognition of the fact that the agreements between the Commission and the insurance companies constituted maladministration

(B) Recognition of the fact that the practice of the Commission and the insurance companies regarding the application of Article 73 of the Staff Regulations constituted maladministration

(C) Access to all the correspondence between the Commission on the one hand and the insurance companies and the doctor appointed by the Commission on the other hand concerning his application to have his illness recognised as an occupational disease and to have his invalidity recognised.

(D) Equitable compensation for the violation of the principle of good administration

The complainant noted that the present complaint was independent of and autonomous with regard to other procedures he had opened in order to have his illness recognised as an occupational disease.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission made the following comments:

The Communities had not delegated their powers regarding social security payments. It was only with the aim to cover the financial risk arising from the application of Article 73 of the Staff Regulations that the Community institutions had obtained insurance coverage from private insurance companies. The first such contract had been in force since 1 February 1977 and extended until 31 January 1995. A new insurance contract with the company 'Royale Belge' had run from 1 February 1995 until 31 January 2000. After a call for tenders, a new contract had been concluded with the company 'Axa Royale Belge' with effect from 1 February 2000.

The letter of 27 January 1989 to which the complainant had referred concerned the modalities of the application of the agreement in force since 1 February 1977. Since the expiry of this agreement on 31 January 1995, these modalities were no longer applicable and no similar provisions had been agreed with the insurance companies.

The relevant agreements (between Van Breda and the Commission) aimed at guaranteeing the implementation of medical opinions within the framework of Article 73 of the Staff Regulations. There was nothing to suggest that these agreements had caused damage to civil servants who were victims of an occupational disease or an accident.

The appointing authority had always adopted its decisions on the basis of the conclusions of the medical expert appointed by it and, if the civil servant had so requested, after consultation of the Medical Committee foreseen in the Rules. The full autonomy of the appointing authority via-à-vis the insurance companies was shown by Case C-76/95(2). In this case, the Court had confirmed that the administrative practice of the Commission was correct.

Since 1 February 1995, the medical experts of the institution were chosen by the appointing authority on the basis of their experience in the field of evaluating bodily harm, and following the opinion of the medical counsel of the 'Caisse de Maladie' of the Commission.

The Conventions of the ILO were not applicable to the Community institutions who, according to Article 28(3) of the Treaty, enjoyed the immunities and privileges necessary for the accomplishment of their mission.

The agreements between the Communities and the insurance companies that had been laid down by the letter of 27 January 1989 thus did not constitute maladministration and it had not been proven that the insurance companies had, either in the past or at present, any influence on the decisions taken autonomously by the appointing authority on the basis of the Staff Regulations.

Since the entry into force of the contract of 1 February 1995, there had been no general correspondence between the Commission and the insurers. In so far as the correspondence in respect of individual cases was concerned, the exception as regards the privacy and the integrity of the individual set out at Article 4 (1) of Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(4) was applicable. However, each civil servant had the right to have access to his own file concerning an accident or an occupational disease. This file contained all the administrative and medical documents, including the correspondence between the Commission and the insurance companies.

The complainant's observations

The complainant's lawyer submitted the following observations on behalf of his client (which were the same for all seven related complaints):

The Commission had implicitly refused to forward to the Ombudsman and, by way of extension, to the complainants the documents that had been requested, that is to say all the correspondence exchanged between the Commission on the one hand and the insurance companies and the medical experts appointed by the Commission on the other hand. The person that was protected by the provision of Regulation 1049/2001 on which the Commission had relied was the civil servant himself, not the institution. However, the holders of the right had demanded that the documents be forwarded to the Ombudsman so as to enable the latter to judge whether there had been maladministration. The Ombudsman needed these documents to decide on the complaint.

The complainants were aware of the possibility to consult their own files. However, they wished the Ombudsman to conduct an inquiry as to whether the Commission had fulfilled its own obligations in conformity with the Staff Regulations and in particular with the principle of good administration. By refusing to transmit the complete files the institution seemed to want to escape such control by the Ombudsman.

The Commission had singled out one complaint (the one lodged by Mr Y) in order to make detailed comments. It was clear that the Commission had presented this case in a light that was favourable to itself. However, the judgement that Mr Y had obtained had still not produced any benefits for him.

In conclusion, the Ombudsman should pursue the inquiry in order to clarify the ambiguities and imprecisions in the Commission's opinion. As a first step, the Ombudsman should ask the Commission to provide the information that had been requested by the complainants.

It would be useful to obtain the criteria that the Commission had applied before 1 February 1995 when choosing the medical experts of the institution. The criterion that according to the Commission was applied since that date was too vague and could thus not be considered adequate. The Commission had also failed to indicate how the medical counsel of the Caisse de Maladie of the Commission was appointed and whether he was independent and unbiased as regards the insurance companies.

The general principles laid down in the Conventions of the ILO did have an effect on international organisations like the Commission as well.

THE DECISION

1 Introductory remarks

1.1 In the light of the complaint, the Commission's opinion and the complainant's observations, two preliminary remarks ought to be made.

1.2 First, in his complaint (see claim B) the complainant appears to ask the Ombudsman to find that the behaviour not only of the Commission, but also of the insurance companies constitutes maladministration. To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be the subject of a complaint to the Ombudsman. The Ombudsman's inquiries into the present complaint have therefore been directed towards examining whether there has been maladministration in the activities of the European Commission.

1.3 Second, the complaint lodged in November 2001 concerned the approach by the Commission to applications under Article 73 of the Staff Regulations of Officials of the European Communities (the "Staff Regulations"), in so far as occupational diseases were concerned, in general. The complainant described the facts of his individual case but did not make any specific allegations or claims based on these facts. In his observations, however, the complainant appears to request the Ombudsman also to consider his individual case with a view to establishing whether the Commission acted in accordance with the rules in his respect. In this context, the complainant suggests that the Ombudsman should request the Commission to forward a copy of its file on his case to him. The complainant also appears to wish to obtain further information from the Commission regarding the choice of its medical experts.

1.4 The Ombudsman considers that it would not be appropriate to extend his inquiry in the sense suggested by the complainant. Under the system established by the Statute of the Ombudsman(5) and the Implementing Rules(6), it is for complainants to submit precise claims and allegations that the Ombudsman can examine. In the absence of specific claims or allegations concerning possible maladministration, the Ombudsman will thus not open a new inquiry or extend a pending one. Furthermore, a complaint can only be examined by the Ombudsman once the appropriate prior approaches have been made. However, the complainant does not seem to have put his supplementary questions regarding the choice of the Commission's medical experts to the Commission before raising them in his observations on the Commission's opinion.

1.5 The present decision thus deals only with the allegations and claims made in the original complaint.

2 Alleged delegation of powers

2.1 The complainant alleges that the Commission has acted wrongly by delegating some or all of its powers concerning the handling of applications under Article 73 of the Staff Regulations to private insurance companies. According to Article 73 (1) of the Staff Regulations, an official is insured against the risk of occupational disease and of accident subject to rules drawn up by common agreement of the institutions of the Communities, the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of Occupational Disease ("the Rules"). In the complainant's view, general principles of social security law make it illegal to attribute the functions of the social security system to a commercial enterprise. The complainant argues that these insurance companies combined the role of "party and judge" in one person.

2.2 The Commission takes the view that it has not delegated its powers regarding social security payments but that all it did was to procure insurance coverage against the financial risk arising from the application of Article 73 of the Staff Regulations. The appointing authority had always adopted its decisions in full autonomy and on the basis of the conclusions of the medical expert appointed by it and, if the civil servant had so requested, after consultation of the Medical Committee foreseen in the Rules.

2.3 The Ombudsman considers that the complainant has not established that the Commission would have delegated powers to the insurance companies as alleged by him. Decisions on applications pursuant to Article 73 of the Staff Regulations and the Rules are taken by the Commission, not the insurance companies. It is true that the contents of the 'agreements' set out in the letter which was sent by the company J. Van Breda & Co. International to the Commission on 27 January 1989 could raise questions as to the extent of the involvement of the insurance companies in the procedure in general and regarding the choice of medical experts in particular. However, the Commission has explained that these agreements have ceased to be applicable on 1 February 1995 and that no similar provisions had been agreed with the insurance companies. The relevant agreements thus did not affect the complainant(7). The Ombudsman further takes the view that in the light of his conclusion that no delegation of powers has been established, there is no need to consider the Conventions of the International Labour Organisation invoked by the complainant and the question as to whether they could be binding on the Commission.

2.4 In these circumstances, there appears to be no maladministration on the part of the Commission in so far as this allegation is concerned.

3 Slowness of procedure

3.1 The complainant alleges that the system adopted by the Commission results in an extreme slowness in handling applications pursuant to Article 73 of the Staff Regulations.

3.2 The Commission has not made any specific comment on this issue.

3.3 It is good administrative practice to handle applications within a reasonable period of time. The Ombudsman considers, however, that what is a reasonable period of time can only be determined on a case by case basis, having regard to the circumstances of each case. Given that the complainant has not forwarded any evidence to support his allegation that the system adopted by the Commission as such causes inacceptable delays, this allegation cannot therefore be regarded as established.

4 Access to documents and transparency

4.1 The complainant alleges that the Commission infringed the right to good administration laid down in Article 41 of the EU's Charter of Fundamental rights by refusing access to its file concerning his application, including the correspondence exchanged between the Commission on the one hand and the insurance companies and the medical experts appointed by the Commission on the other hand. In the complainant's view, the Commission has thus failed to comply with the principle of transparency.

4.2 According to the Commission, each civil servant has the right to see his own file concerning an accident or an occupational disease and this file contains all the administrative and medical documents, including the correspondence between the Commission and the insurance companies. As regards possible public access to such files, the Commission mentioned the exception as regards the privacy and the integrity of the individual set out at Article 4 (1) of Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(8).

4.3 The Ombudsman notes that the Commission has acknowledged the complainant's right to see his own file. The Ombudsman further notes that the complainant is aware of this right. It has therefore not been established how the Commission should have infringed the complainant's right to see the relevant documents or the general principle of transparency. The Ombudsman is not aware that any question of public access arises in this case and therefore considers it unnecessary to examine the Commission's arguments concerning the exception contained in Article 4 (1) of Regulation 1049/2001.

4.4 In these circumstances, there appears to be no maladministration on the part of the Commission in so far as this allegation is concerned.

5 Compensation

5.1 The complainant claims that he should receive equitable compensation for the violation of the principle of good administration.

5.2 It follows from the above-mentioned conclusions that the complainant's allegations of maladministration cannot be regarded as having been established. These allegations do thus not appear to provide a basis for a claim for compensation.

5.3 The Ombudsman cannot exclude that compensation may be due on account of specific instances of maladministration that the Commission could have committed when handling the complainant's applications. However, and as mentioned in point 1.4 above, the Ombudsman's inquiry and his present decision do not extend to the individual facts of the complainant's case.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.

The President of the Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) The Agreement is described in detail in the judgement of the Court of Justice in Case C-76/95 Commission v Royale Belge SA [ECR] 1996, I-5501.

(2) Case C-76/95 Commission v Royale Belge SA [ECR] 1996, I-5501.

(3) The Commission presumably wished to refer to Article 291 (formerly 218) of the EC Treaty in this context.

(4) OJ 2001 no. L 145 page 43.

(5) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113 page 15.

(6) Decision of the European Ombudsman of 16 October 1997 adopting implementing provisions (available online: http://www.ombudsman.europa.eu).

(7) It should be recalled that the complainant asked to have his illness recognised as a professional disease on 5 October 1995.

(8) OJ 2001 no. L 145 page 43.