Judgment No. 4425
1. The impugned decision dated 13 March 2014 is set aside to the extent stated in consideration 12 of this judgment.
2. The EPO shall pay the complainant 1,600 euros in material damages for its failure to reimburse her the full amount of her spa cure under Article 20, point 4.8(a), of the Collective Medical Insurance Contract, less any amount already paid to her on this account.
3. The EPO shall pay the complainant 2,500 euros in moral damages for the delay in the internal appeal process.
4. The EPO shall also pay the complainant costs in the amount of 7,000 euros.
5. All other claims are dismissed.
The complainant impugns the decision to reject her request for reimbursement of the cost of her spa cure as a type A cure undergone for “absolute medical necessity”.
complaint allowed; decision quashed; insurance; medical expenses
The complainant signifies in the complaint form that she wants a hearing under Article 12, paragraph 1, of the Tribunal’s Rules and that she wishes to call the EPO’s Medical Adviser as well as the former Principal Director of Human Resources to address the reasons that were given for the rejection of her request for reimbursement of the cost of the spa cure which she underwent. In her complaint she states that she believes that, given the unclear reasons the Office provided for the original decision to reject her request for the spa cure, particularly elements surrounding the “management instruction” to the Medical Adviser, an oral hearing would enable the truth to emerge. Inasmuch, however, as the facts of the case are not disputed, the request for an oral hearing is rejected.
[T]he Office had informed the complainant that her request for reimbursement of the cost of her spa cure could not be processed under Article 20, point 4.8(a), of the Collective Medical Insurance Contract, first, because of a change in the rules and, subsequently, rather, because of a stricter application of the reimbursement criteria for type A cures. This was wrong in law because, as the case law confirms, the principle of non-retroactivity requires that a new administrative practice (which must also include a decision to apply stricter criteria) must be clearly announced to staff prior to its application (see, for example, Judgment 3884, considerations 4 and 12, and the case law cited therein). There is no evidence that a decision to change the rules and/or to apply stricter criteria for reimbursement of the cost of type A cures was announced to EPO staff prior to determining that the complainant was not to be reimbursed for a type A cure.
ILOAT Judgment(s): 3884
non-retroactivity; practice; refund; medical expenses
Regarding the complainant’s claim for moral damages not based on delay, the case law states that the complainant bears the burden of proof and must provide evidence of the alleged unlawful act, of the injury suffered, and of the causal link between the unlawful act and the injury. The case law further states that the mere fact a decision was initially flawed does not suffice to warrant awarding damages for moral injury and, to be entitled to moral damages, an official must have suffered more severe injury than that which an improper decision ordinarily causes (see, for example, Judgment 4156, consideration 5). The complainant provides no evidence to show that she has suffered more severe injury than that which an improper decision ordinarily caused her. Her claim for moral damages for the delay in the internal appeal process is however well founded, as a period of almost four years from the filing of the request for review to the issuing of the impugned decision is too long and, additionally, the complainant has provided evidence of the injury (the stress) which that delay caused her. She will therefore be awarded the amount of 2,500 euros in moral damages for the delay in the internal appeal process.
ILOAT Judgment(s): 4156
moral injury; delay in internal procedure
Regarding the complainant’s claim for costs arising from the internal appeal process, Article 8(9) of the Implementing Rules for Articles 106 to 113 of the Service Regulations (in force at the material time) provided that any costs incurred by an appellant in the course of the internal appeal proceedings shall be borne by the appellant, unless the competent appointing authority decided otherwise. The Tribunal has determined that such costs may only be awarded under exceptional circumstances (see, for example, Judgments 4157, consideration 14, 4217, consideration 12, and 4392, consideration 13), which do not exist in the present case.
ILOAT Judgment(s): 4157, 4217, 4392
costs for internal appeal procedure