Judgment No. 4401
1. The decision of 7 November 2017 is set aside.
2. Eurocontrol shall reimburse the complainant for the expenses incurred by her in respect of the five sessions of acupuncture referred to in her initial claim for reimbursement, together with interest as specified in consideration 8 of the judgment.
3. Eurocontrol shall also pay the complainant costs in the amount of 5,000 euros.
4. All other claims are dismissed.
The complainant challenges the decision to dismiss her application for the reimbursement of medical expenses.
complaint allowed; decision quashed; medical expenses
Precedent has it that “[a]s a rule the conditions of employment of staff are subject exclusively to the [organisation]’s own Staff Regulations and to the general principles of the international civil service: see Judgments 322 [...], under 2; 473 [...], under 2 and 3; and 493 [...] under 5. National laws, and in particular those of the host country, apply only where there is express reference thereto” (see Judgment 1311, consideration 15).
ILOAT Judgment(s): 322, 473, 493, 1311
The question that must be decided in order to resolve this dispute is therefore whether Ms Q., as a holder of a degree in traditional Chinese medicine, was legally authorised to practise acupuncture at the date of the claim for reimbursement. This legally delicate question should have been referred by the Organisation to the Belgian authorities, who alone were in a position to provide the correct answer. As it did not do so, Eurocontrol could not lawfully refuse to effect the reimbursement at issue, since the file shows that acupuncture is widely practised in Belgium and it is clear from the evidence that the complainant had every reason to believe that the treatment carried out by Ms Q., who had been recommended by her doctor, was performed legally.
Accordingly, the impugned decision must be set aside, without there being any need to consider the complainant’s other pleas.
[T]he complainant cannot seek, in these proceedings, reimbursement of the other sessions prescribed. The Tribunal cannot rule in the abstract and for the future on the reimbursement of sessions that were not covered by the impugned decision.
The complainant alleges that moral injury was caused by the Organisation’s breach of its duty of care. However, a refusal to reimburse expenses based on the rules in force, even if it results from an error in their application, cannot be regarded as a breach of the duty of care. This argument will therefore be dismissed.
moral injury; duty of care
The complainant [...] submits that the slow handling of her internal complaint caused her medical and psychological harm.
Under Article 35(2) of Rule of Application No. 10, “[b]efore taking a decision regarding a complaint submitted under Article 92.2 of the Staff Regulations [...], the Director General shall request the opinion of the Management Committee. The Management Committee may instruct its Chairman to make further investigations. Where the point at issue is of a medical nature, the Management Committee may seek expert medical advice before giving its opinion. The cost of the expert opinion shall be borne by the Agency’s Sickness Insurance Scheme. The Management Committee must give its opinion within two months of the request being received. The opinion shall be transmitted simultaneously to the Director General and to the person concerned.”
Under Article 92(2) of the Staff Regulations governing officials of the Eurocontrol Agency, the Director General is to notify the person concerned of her or his reasoned decision within four months from the date on which the internal complaint was lodged.
In this case, on 19 January 2017 the complainant lodged an internal complaint with the Director General against the decision of 15 December 2016 informing her of the refusal to cover the costs of the acupuncture sessions because the treatment had not been carried out by a doctor. The impugned decision was taken on 7 November 2017, more than ten months later.
The Tribunal notes that the Organisation had four months from the date when the internal complaint was filed to take a decision on it. It breached its own rules by exceeding this period by six months. However, in her submissions, the complainant does not establish that any particular injury arose from that breach. In the circumstances, it is unnecessary to award her compensation under this head (see, for example, Judgment 4396, consideration 12).
ILOAT Judgment(s): 4396
injury; moral injury; time limit