JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

9 July 2009

Case F-104/07

**Micheline Hoppenbrouwers**

**v**

**Commission of the European Communities**

(Civil service – Contract staff – Recruitment – Medical examination – Physical unfitness – Article 2(1) of the Annex to the CEOS)

**Application:**brought under Articles 236 EC and 152 EA, in which Ms Hoppenbrouwers seeks, essentially, annulment of the Commission’s decision
of 18 December 2006 refusing to employ her as a member of the contract staff on the ground that she was physically unfit to
work on 1 May 2005.

**Held:**The action is dismissed. Each party is to bear its own costs.

**Summary**

1.      *Officials – Actions – Act adversely affecting a staff member – Decision adopted after reconsideration of a previous decision
– Refusal to employ a member of the contract staff following the opinion of the Medical Committee*

*(Staff Regulations, Arts 33 and 90(2); Conditions of Employment of Other Servants, Art. 83)*

2.      *Officials – Conditions of Employment of Other Servants – Recruitment of contract staff under Article 2 of the Annex to the
Conditions of Employment of Other Servants*

*(Conditions of Employment of Other Servants, Art. 82(3)(d) and Annex, Art. 2)*

1.      An action for annulment brought against a decision which merely confirms an earlier decision not challenged in due time is
inadmissible, since that classification entails that the measure in question contains no new factors as compared with the
previous decision and was not preceded by a re-examination of the circumstances of the person to whom that previous decision
was addressed.

However, in an action brought against a decision refusing to recruit a member of the contract staff because of his physical
unfitness, determined at his pre-employment medical examination, recognition of the possibility of referring his case to the
Medical Committee under Article 33 of the Staff Regulations necessarily implies that it is the decision taken following the
opinion of that Committee and not the original decision which must be regarded as the act adversely affecting him within the
meaning of Article 90(2) of the Staff Regulations. To take the opposite view would be to negate the effectiveness of the right
to apply to the Medical Committee for an opinion, which is recognised by the Staff Regulations. If the previous decision refusing
recruitment were the only one to be regarded as an act adversely affecting him, the person wishing to request the Medical
Committee for an opinion would be forced, in order to avoid any failure to observe the time-limit, to lodge, at the same time
as his request, a complaint within the meaning of Article 90(2) of the Staff Regulations, which would render the procedure
introduced by Article 33 of the Staff Regulations purposeless. Such a situation would also be contrary to the principle of
procedural economy.

(see paras 40, 49-50)

See:

T-121/89 and T-13/90 *X* v *Commission* [1992] ECR II‐2195, paras 4, 5, 7, 11 and 12; T-535/93 *F* v *Council* [1995] ECR-SC I‐A‐49 and II‐163, paras 4, 5, 7-9 and 11; T-331/94 *IPK* v *Commission* [1997] ECR II‐1665, para. 24; T-100/96 *Vicente-Nuñez* v *Commission* [1998] ECR-SC I‐A‐591 and II‐1779, para. 37; T-65/00 *Ioannou* v *Council* [2001] ECR-SC I‐A‐15 and II‐67, paras 5, 8 and 13-15; T‐95/00 and T-96/00 *Zaur-Gora and Dubigh* v *Commission* [2001] ECR-SC I‐A‐79 and II‐379, paras 24 and 27

2.      Under Article 2 of the Annex to the Conditions of Employment of Other Servants, a contract of indefinite duration as a member
of the contract staff offered to any person employed by the Communities on 1 May 2004 under the conditions laid down in Article
2 must take effect at the latest on 1 May 2005. Furthermore, according to the first paragraph of Article 83 of the Conditions
of Employment of Other Servants, the medical examination by one of the institution’s medical officers which the staff member
is required to undergo before being engaged makes it possible to ensure that that person satisfies the physical fitness requirements
laid down in Article 82(3)(d) of the Conditions of Employment.

It is therefore clear from the application of the first paragraph of Article 83 in conjunction with Article 82(3)(d) and Article
2 of the Annex to the Conditions of Employment of Other Servants that a member of the contract staff whose contract must take
effect at the latest on 1 May 2005 must satisfy the physical fitness requirements on that date at the latest. Since the benefit
of Article 2 of the Annex to the Conditions of Employment constitutes an exception to the general procedure for recruiting
contract staff, it must be interpreted strictly.

Consequently, Article 82(3)(d) of the Conditions of Employment of Other Servants cannot be interpreted as meaning that, in
order to determine whether the physical fitness requirements are satisfied, it is sufficient that a person’s physical unfitness
is not permanent and that, consequently, the physical fitness requirements may once again be satisfied even after a lengthy
period.

(see paras 71, 72, 75, 76, 79)