JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

21 October 2009

Case F-33/08

**V**

**v**

**Commission of the European Communities**

(Civil service – Members of the contract staff – Recruitment – Refusal to employ the applicant for physical unfitness to perform her duties – Validity of the procedure – Validity of the medical examination prior to appointment – Preparatory acts)

**Application:**brought under Articles 236 EC and 152 EA, in which V seeks, in particular, annulment of the Commission’s decision of 15 May
2007 informing her that she did not fulfil the physical fitness requirements necessary for her to perform her duties, as well
as an order that the Commission pay her damages for the losses she considers she has suffered.

**Held:**The action is dismissed. The Commission is ordered to bear its own costs and to pay half of the applicant’s costs. The applicant
is ordered to bear half of her own costs.

**Summary**

1.      *Officials – Actions – Pleas in law – Plea alleging irregularities in the medical examination prior to appointment – Lawfulness*

*(Staff Regulations, Art. 33)*

2.      *Officials – Administration's duty to have regard for the welfare of officials – Obligation to address to an official an individual
decision worded in a language of which he has a thorough knowledge*

*(Art. 21, third para., EC)*

3.      *Community law – Principles – Duty to act within a reasonable time*

*(Charter of Fundamental Rights of the European Union, Art. 41(1))*

4.      *Officials – Recruitment – Refusal to recruit on grounds of physical unfitness*

*(Staff Regulations, Arts 25, second para., and 33; Conditions of Employment of Other Servants, Art. 83)*

5.      *Officials – Actions – Unlimited jurisdiction – Possibility for the Tribunal to order the defendant institution of its own
motion to pay compensation for non-material damage*

*(Staff Regulations, Art. 91(1))*

1.      In so far as a contested decision refusing to appoint a person because of physical unfitness to perform the duties in question
is based not just on the medical opinion of the Medical Committee, but on all the medical documents expressly referred to
in that opinion, including opinions issued at the medical examination prior to appointment by the doctors who examined the
staff member, it is possible that any irregularities vitiating those opinions may have influenced the findings of the Medical
Committee and, therefore, the lawfulness of the contested decision. There is a close link between the medical examination
prior to appointment, any expert reports drawn up by other doctors, the referral to the Medical Committee, the opinion of
the Medical Committee and the contested decision. As a result of that link, the Community judicature is justified, in the
light of the coherence between the various measures involved in such a procedure, in reviewing the lawfulness of the preparatory
measures which culminated in that decision.

(see paras 132-133)

See:

35/67 *Van Eick* v *Commission* [1968] ECR 329, 341

T-293/03 *Giulietti* v *Commission* [2006] ECR-SC I‐A‐2‐5 and II‐A‐2‐19, para. 39 and the case-law cited therein

2.      Persons entering the service of the European Communities do not have an absolute right to have the language of their choice,
whether their mother tongue or any other language they might prefer, used in all procedures having implications for their
employment or career. Recognition of such a right would be manifestly incompatible with the need for the Community institutions
to operate smoothly. Even if it were desirable to recognise that right, its scope would have to be the same, in accordance
with the principle of equal treatment, for all officials and other staff of the Communities, regardless of the languages concerned
and their place of employment. The situation of most officials and other staff of the Communities as expatriates and the constraints
of organising departments make it very difficult to implement such a guarantee.

However, in accordance with their duty to have regard for the welfare of staff, the institutions have a responsibility, where
the individual situation of an official or other staff member is at issue, to use a language of which he has a thorough knowledge.
That obligation is particularly important where it is not just a question, for the administration, of properly informing an
official of a decision affecting him, but of guaranteeing that psychological analyses and tests conducted are fully understandable
by the person concerned and that the expert report drawn up reflects his personality faithfully and objectively. The level
of knowledge of the language used by the official concerned in such tests and analyses must therefore be particularly high.

(see paras 170, 171, 173)

See:

T-197/98 *Rudolph* v *Commission* [2000] ECR-SC I‐A‐55 and II‐241, para. 46

F‐51/05 and F‐18/06 *Duyster* v *Commission* [2007] ECR-SC I‐A‐1‐0000 and II‐A‐1‐0000, paras 57 and 58; F-122/07 *Marcuccio* v *Commission* [2009] ECR-SC I‐A‐1‐0000 and II‐A‐1‐0000, para. 60

3.      The obligation to conduct administrative procedures within a reasonable time is a general principle of Community law which
is enforced by the Community Courts and which, moreover, is set forth, as an element of the right to good administration,
in Article 41(1) of the Charter of Fundamental Rights of the European Union. However, infringement of the reasonable time
principle does not, as a general rule, justify the annulment of a decision taken as the culmination of an administrative procedure.
It is only where the elapsing of an excessive period is likely to affect the content itself of the decision adopted at the
end of the administrative procedure that failure to observe the reasonable time principle affects the validity of that administrative
procedure. In the context of recruitment and the medical examination prior to appointment, therefore, any excessive delay
cannot, save in exceptional situations, alter the fundamental elements which, in some circumstances, establish unfitness to
perform duties for a Community institution. If the Community judicature annulled the decision taken in the light of those
findings, the main practical consequence would be counterproductive in that it would prolong the procedure still further on
the ground that it had already gone on too long.

(see paras 209-211)

See:

C-39/00 P *SGA* v *Commission* [2000] ECR I‐11201, para. 44

T-67/01 *JCB Service* v *Commission* [2004] ECR II‐49, paras 36 and 40 and the case-law cited therein; T-394/03 *Angeletti* v *Commission* [2006] ECR-SC I‐A‐2‐95 and II‐A‐2‐441, paras 162 and 163

4.      The method of providing a statement of reasons for an opinion of unfitness issued by the Medical Committee in the context
of the medical examination prior to appointment, which consists of forwarding the medical grounds for its findings under medical
confidentiality to the head of the medical service of the Community institution concerned, is not satisfactory for the person
in question, who does not have direct access to the considerations justifying the Medical Committee’s findings. However, that
method does not thereby render such an opinion invalid, since the duty to provide a statement of reasons must be reconciled
with the requirements of medical confidentiality. That reconciliation is effected through the ability of the person concerned
to request and ensure that the grounds of unfitness are disclosed to a doctor of his choice.

While such a statement of reasons for the Medical Committee’s opinion may be improper where it prevents the Community judicature
from reviewing its legality, should it be challenged by the person concerned, that does not apply when the Community institution
concerned states on a number of occasions to the Community court that it is prepared to disclose to it all the documents on
the basis of which the Medical Committee reached its opinion, on condition that the person concerned agrees to release the
members of that committee from the duty to observe medical confidentiality in that respect, but the person concerned categorically
refuses to accede to that request. In such a case it is not the administration or the members of the Medical Committee who,
by invoking medical confidentiality, prevent the normal operation of justice.

(see paras 221-226)

See:

121/76 *Moli* v *Commission* [1977] ECR 1971, paras 15 to 17; 75/77 *Mollet* v *Commission* [1978] ECR 897, paras 15 to 17; 155/78 *M*. v *Commission* [1980] ECR 1797, paras 15 to 19

5.      Where an application is brought before them over which they have unlimited jurisdiction, and even in the absence of proper
claims to that effect, the Community courts have the power of their own motion to order the administration to compensate for
non-material damage associated with maladministration on its part. However, the courts exercise that power only where they
do not resort to annulment, which they should usually order, because of the excessive consequences which such an outcome would
have or the inappropriateness of such a penalty for the breach established, or where they find that the annulment ordered
will not, as such, be capable of providing adequate compensation for the damage suffered and in order to ensure that the annulling
judgment is effective.

(see para. 266)

See:

24/79 *Oberthür* v *Commission* [1980] ECR 1743, paras 13 to 15

T-10/02 *Girardot* v *Commission* [2004] ECR-SC I‐A‐109 and II‐483, paras 84 to 91

F-46/07 *Tzirani* v *Commission* [2008] ECR-SC I‐A‐1‐0000 and II‐A‐1‐0000, paras 214 and 215; F-27/08 *Simões Dos Santos* v *OHIM* [2009] ECR-SC I‐A‐1‐0000 and II‐A‐1‐0000, paras 142 to 144