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Legal Advice from SID regarding the Invalidity Pension

Pensions
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Legal Advice from SID regarding the

Invalidity Pension

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Introduction

We hope that you will never need to worry about the invalidity pension, but if you ever loose your ability to work, here are some resources for you and your counsel.

Disclaimer

Please read this disclaimer first

Each individual case is unique. Blindly following quotations taken out of context may lead to serious problems. More than that, the EU system of staff law is unique and distinct from that of Member State governments and of international institutions. Even scholars with long experience in other fields of law may become temporarily disoriented.

Be aware that legislation can be rescinded, changed or replaced by new rules so that yesterday's good advice may loose some or all of its value in the future. The court's interpretation and application of the rules evolves with time and must always be taken into account.

Please inform SID promptly of relevant new legislation or jurisprudence. All your feedback is welcome.

You should always obtain the advice of someone who holds a post-graduate degree in EU Law and who has some previous experience with the rules and practices of the EU Institutions in their dealings with staff. Within the limits of our resources, SID will provide such advice free of charge and obligation. By the same token, we reject all liability for our advice, except where it is statutory.

Thank you.



Constitional Law

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
(2000/C 364/01)

Article 34
Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.


Law

REGULATION No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ P 45, 14.6.1962, p. 1385)
http://www.cc.cec/statut/pdf/20080105_en.pdf

Article 78
An official shall be entitled, in the manner provided for in Articles 13 to 16 of Annex VIII, to an invalidity allowance in the case of total permanent invalidity preventing him from performing the duties corresponding to a post in his function group. Article 52A) shall apply by analogy to recipients of an invalidity allowance. If the recipient of an invalidity allowance retires before the age of 65 without having reached the maximum pension entitlement, the general rules on retirement pensions shall be applied. The amount of the retirement pension shall be based on the salary for the grade and step occupied by the official when he became an invalid. The invalidity allowance shall be equal to 70 % of the official's last basic salary. However, it may not be less than the minimum subsistence figure. The invalidity allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance. Where the invalidity arises from an accident in the course of or in connection with the performance of an official's duties, from an occupational disease, from a public-spirited act or from risking his life to save another human being, the invalidity allowance may not be less than 120 % of the minimum subsistence figure. In such cases, moreover, contributions to the pension scheme shall be paid in full from the budget of the institution or body referred to in Article 1b.

A) S e c t i o n 5
RETIREMENT
Article 52
Without prejudice to the provisions of Article 50B), an official shall be retired: (a) either automatically on the last day of the month in which he reaches the age of 65, or (b) at his own request on the last day of the month in respect of which the request was submitted where he is at least 63 years of age or where he is between 55 and 63 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. However, on an exceptional basis, an official may at his own request and only in the case where the Appointing Authority considers it justified in the interest of the service, carry on working until the age of 67 in which case he shall be retired automatically on the last day of the month in which he reaches that age


B) S e c t i o n 3
RETIREMENT IN THE INTERESTS OF THE SERVICE
Article 50
A senior official as defined in Article 29(2) may be retired in the interests of the service by decision of the appointing authority. Such retirement shall not constitute a disciplinary measure. An official thus retired who is not assigned to another post corresponding to his grade shall receive an allowance calculated in accordance with Annex IV. Income received by the official from any new employment during this period shall be deducted from the allowance provided for in the preceding paragraph if that income and the allowance together exceed the total remuneration last received by the official calculated by reference to the table of salaries applicable on the first day of the month for which the allowance is to be paid. The person concerned shall be required to provide on request written proof and to notify his or her institution of any factor that may affect entitlement to the benefit. The allowance shall not be subject to a correction coefficient. Article 45, third, fourth and fifth paragraphs, of Annex VIII shall apply by analogy.

When the official's entitlement to the allowance ceases, he shall be entitled, provided he has attained the age of fifty-five years, to receive payment of pension under Article 9 of Annex VIII.


Article 59

4. 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.


ANNEX II
Composition and procedure of the bodies provided for in Article 9 of the Staff Regulations

S e c t i o n 3

INVALIDITY COMMITTEE
Article 7
The 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.
In the event of failure to agree on the appointment of a third doctor within two months of the appointment of the second doctor, the third shall be appointed by the President of the Court of Justice of the European Communities at the request of one of the parties concerned.


Article 8
Expenses incurred in connection with the proceedings of the Invalidity Committee shall borne by the institution to which the official concerned belongs. Where the doctor appointed by the official concerned is resident elsewhere than at the place where the official is employed, the official shall bear the cost of the additional fees entailed, with the exception of first-class travel expenses, which shall be refunded by the institution.

Article 9
The official may submit to the Invalidity Committee any reports or certificates from his regular doctor or from any other medical practitioners whom he may have consulted. The Invalidity Committee's conclusions shall be communicated to the appointing authority and to the official concerned. The proceedings of the Committee shall be secret


ANNEX VIII
Pension scheme

CHAPTER 3

Invalidity allowance

Article 13
Subject to the provisions of Article 1 (1), an official aged less than sixty-five 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 allowance as provided in Article 78 of the Staff Regulations

2. Persons in receipt of an invalidity allowance may not engage in gainful employment without the prior authorisation of the Appointing Authority. Any income from such gainful employment which, in combination with the invalidity allowance, exceeds the final total remuneration received while in active service as determined on the basis of the salary scale in force on the first day of the month in which the allowance is to be paid shall be deducted from the invalidity allowance. The recipient of the allowance shall be required to provide on request any written proof which may be requested and to notify his or her institution of any factor that may affect entitlement to the allowance.

Article 14

The right to receive payment of invalidity allowance shall have effect from the first day of the calendar month following the official's retirement under Article 53 of the Staff Regulations. When the former official ceases to satisfy the requirements for payment of the allowance he must be reinstated in the first post corresponding to his career bracket which falls vacant in his category or service, provided that he satisfies the requirements for that post. If he declines the post offered to him, he shall retain his right to reinstatement when the next vacancy corresponding to his career bracket occurs in his category or service subject to the same proviso; if he declines a second time, he may be required to resign. Where a former official in receipt of invalidity allowance dies, entitlement to allowance shall cease at the end of the calendar month during which he died.

Article 15
While a former official drawing invalidity allowance is aged less than 63 years, the institution may have him medically examined periodically to ascertain that he still satisfies the requirements for payment of the pension.


Jurisprudence


No Active Service – No Claim
An official who has not been in active service for several years has no right to claim an invalidity pension under Article 78. (Number 12 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61983J0012 .)


Sufficiently Direct Link
The Invalidity Commission decides on whether there is a medical condition that prevents the official from working and whether there is a "sufficiently direct link" with a risk that is specific and typical of her/his work. It is up to Admin alone, under control of the Court, to decide whether this condition is due to behaviour forbidden by the Staff Regulations. (Number 14 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61984J0076 .)


Black Lung
If the Institution continues to send an official with a known black lung condition down mine shafts and if s/he becomes an invalid, it must accept the financial responsibility. (See Number 17 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61989A0043 .)

Written Minutes
Although it is "regrettable" that an Invalidity Commission fails to produce written minutes of its deliberations, those deliberations remain legally valid. (See Number 23 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61989A0165 .)


Understandable Link
The Tribunal is competent to examine the opinion of the Invalidity Commission and to decide whether they contain an "understandable" link between its medical findings and its conclusions. (See Number 26 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61989A0043(01) .)


Burden Of Proof
The burden of proof is on the Institutions if the official claims that her/his right to have a medical doctor of her/his choice sit on the Invalidity Commission provided for in Annex II, Article 7 of the Staff Regulations. (See Number 31 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61994A0376 )



An Official Refuses To Present
If an official refuses to present him/herself to the Invalidity Commission, it is for that Commission to decide whether or not it can make a decision on the basis of the documents in her/his personnel file.
(See Number 32 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61995A0196 )


Twelve Months During A Period Of Three Years
The Appointing Authority can apply to the Invalidity Commission only if an official has been on sick leave for at least twelve months during a period of three years.
(See Number 37 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=61997A0047 )


New Representative
Both the official and the Institution have the right to appoint a new representative of their interests to the Invalidity Commission.
(See 42 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=62002A0376 )



Temporary Agents
The same rules on invalidity apply to both officials and temporary agents.
(See Number 48 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=62005W0119 )


No Discretionary Power
Once an official fulfils the conditions she has a right to have the Invalidity Procedure started. The Appointing Authority has no discretionary power in this matter.
(See Number 49 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=62006W0097 )


Contrary Conclusions
The procedures of Articles 73 and 78 may legitimately lead to contrary conclusions about the factual situation of one and the same official, notably whether her/his medical condition is work related or not.
(See Number 51 below and http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=fr&numdoc=62006A0262 )


Summmary of Judgements on Invalidity Cases in French

Created by: admin last modification: Thursday 04 of June, 2009 [16:32:18 UTC] by admin


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