Judgment — ECLI:EU:F:2016:158
Date: 2016-07-20
Language of the case: French
Court formation: Third Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Procedure: Staff cases - unfounded;Staff cases - successful

Summary 1. Officials — Members of the temporary staff — Recruitment — Medical examination — Purpose — Succession of appointments at several institutions — Interruption of the employment relationship by a significant period of unemployment — New medical examination — Lawfulness (Conditions of Employment, Arts 12(2)(d) and 13) 2. Officials — Members of the temporary staff — Recruitment — Medical examination — Succession of appointments at several institutions — Interruption of the employment relationship by a significant period of unemployment — Deferment of medical cover at the time of a new medical examination — Lawfulness (Conditions of Employment, Arts 12(2)(d) and 32) 3. Fundamental rights — Respect for private and family life — Restrictions justified in the public interest — Obligation of a candidate for a post to disclose the existence of a medical condition affecting him or having affected him in the past — Lawfulness (Charter of Fundamental Rights of the European Union, Art. 7; Conditions of Employment, Arts 12(2)(d) and 32) 4. Officials — Members of the temporary staff — Recruitment — Medical examination — Obligation on a candidate to reply to questions raised — Consequences of incorrect or incomplete declarations — Retroactive application of medical cover deferment — Condition — Prior referral to the medical officer (Conditions of Employment, Art. 32) 5. Officials — Disciplinary measures — Penalty — Penalty consisting of a former temporary staff member being barred from the possibility of recruitment for a certain period — Measure not appearing in any provision of the Staff Regulations — Unlawfulness (Staff Regulations, Art. 11, and Annex IX, Art. 9; Conditions of Employment, Art. 50a) 1. Under Article 13 of the Conditions of Employment of Other Servants, before being engaged, a member of the temporary staff is to be medically examined by one of the institution’s medical officers in order that the institution may be satisfied that he fulfils the physical fitness requirements of Article 12(2)(d) of those Conditions, in view of the fact that, under the latter provision, a person may be engaged as a member of the temporary staff only on condition that he is physically fit to perform his duties. In that regard, the medical examination prior to the recruitment of a temporary staff member serves a legitimate interest of the EU institutions, which must be in a position to fulfil the tasks required of them. In the context of that examination, which is conducted by the medical officer of the institution and must necessarily include a clinical examination of the person concerned and also, if need be, supplementary biological tests ordered by the medical officer, the latter may be led to conclude that the candidate for recruitment, although meeting the conditions of physical fitness, is suffering from a particular illness or infirmity that might subsequently progress and lead to the person concerned being covered, or requesting cover, under the invalidity scheme. (see paras 64-65) See: Judgment of 5 October 1994 in X v Commission, C‑404/92 P, EU:C:1994:361, para. 20 Judgment of 5 July 2011 in V v Parliament, F‑46/09, EU:F:2011:101, para. 77 and the case law cited 2. According to the wording of Article 32 of the Conditions of Employment, medical cover may not be deferred by the authority empowered to conclude contracts of employment in respect of a newly-recruited staff member until after the pre-recruitment medical examination has taken place. The conditions for applying that article must be strictly interpreted. Where periods of employment completed by the same staff member at two institutions have been interrupted by a significant period of unemployment, the second institution may validly take the view that the staff member concerned should undergo a new medical examination in order to determine whether he still meets the conditions of physical fitness required under Article 12(2)(d) of the Conditions of Employment in order to carry out his new duties and, as a consequence, defer medical cover, if appropriate, as provided for in Article 32 of those Conditions. (see paras 70- 71) See: Judgment of 29 September 2009 in O v Commission, F‑69/07 and F‑60/08, EU:F:2009:128, para. 121 3. The right to respect for private life, embodied in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and deriving from the common constitutional traditions of the Member States, is one of the fundamental rights protected by the EU legal order. It includes in particular a person’s right to keep his state of health secret. However, restrictions may be imposed on fundamental rights provided that they in fact correspond to objectives of general public interest and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected. In that regard, the temporary staff member’s pre-recruitment medical examination serves a legitimate interest of the EU institutions, which must be in a position to fulfil the tasks required of them. In order both to enable the authority empowered to conclude contracts of employment to determine whether the candidate meets the conditions of physical fitness for a post as a temporary staff member, as required by Article 12(2)(d) of the Conditions of Employment, and to preserve the power of that authority, provided for by Article 32 of those Conditions, to defer medical cover where it considers that to be necessary, that authority must, through its medical officer, be able to have a degree of access to data relating to the health of that candidate, which must in that situation be supplied directly the person concerned himself. Accordingly, purported interference in the private life of the candidate, resulting from the obligation to disclose the existence of a condition from which he suffers or has suffered in the past, may be regarded as being justified. The institution’s medical officer may, in the context of the pre-recruitment medical examination, require a candidate for a temporary staff post to complete a pre-recruitment medical questionnaire and may use the declarations made by the person concerned in this questionnaire in order to assess whether it is appropriate to propose to the authority empowered to conclude contracts of employment that when recruiting him it should defer medical cover under Article 32 of the Conditions of Employment. Moreover, the candidate must, at the time of that medical examination, provide honest answers to the questions put to him by the healthcare professional, who is bound by medical confidentiality, since those questions come within the scope of the task entrusted to him and comply with the principle of proportionality. (see paras 77-81) See: Judgment of 5 October 1994 in X v Commission, C‑404/92 P, EU:C:1994:361, paras 17, 18 and 20 Judgment of 13 July 1995 in K v Commission, T‑176/94, EU:T:1995:139, para. 39 4. In a particular case where, after the pre-recruitment medical examination, it is apparent that a staff member did not answer sincerely and completely the questions asked about his health by the medical officer during that examination, the authority empowered to conclude contracts of employment may withdraw its original decision not to defer medical cover and take a fresh decision applying that deferment retroactively. The authority is nevertheless first required to follow the procedure provided for in Article 32 of the Conditions of Employment of Other Servants, that is to say, it must first refer the matter to the medical officer so that he can issue an opinion on the question whether the illness or infirmity warranted deferring medical cover when the staff member was engaged, and second, it must inform the staff member of the decision it has taken on the basis of that opinion, so that the staff member may, if appropriate, lodge an appeal with the Invalidity Committee. Such a question, which involves ascertaining whether the illness or infirmity was capable of resulting in the staff member’s invalidity or death within a period of five years from the date of his entering the service of the institution, is of a medical nature and is strictly a matter for the medical officer and, on appeal, the Invalidity Committee. (see para. 85) See: Judgment of 10 July 2012 in AV v Commission, F‑4/11, EU:F:2012:96, para. 34 5. Where it intends to adopt a measure with regard to one of its staff, including in connection with conduct which the latter engaged in prior to taking up his duties and which has persisted during his period of employment, the authority empowered to conclude contracts of employment cannot adopt a decision affecting that staff member, or former staff member, unless it acts in accordance with any relevant provisions of the Staff Regulations which may circumscribe the procedure for the adoption of such a decision. Where the measure which that authority intends to adopt in respect of a member of its temporary or contract staff is coercive and, hence, has the characteristics of an administrative penalty, even if that measure is not one of those listed in Article 9 of Annex IX to the Staff Regulations, that authority is bound by the rules pertaining to disciplinary measures, in view of the fact that, under Article 50a of the Conditions of Employment, any intentional or negligent failure by a member of the temporary staff or of a former member of the temporary staff to comply with his obligations under those Conditions of Employment renders him liable to disciplinary action in accordance with Title VI of the Staff Regulations and where applicable Annex IX to the Staff Regulations, the provisions of which apply by analogy. Thus, a decision to bar a staff member from being recruited by the institution for a period of six years, justified on grounds of failure by the person concerned to comply with the duty of loyalty referred to in Article 11 of the Staff Regulations, can be adopted only on the basis of the provisions relating to disciplinary measures. In keeping with the principle of the legality of criminal offences and penalties, no administrative penalty may be imposed on a staff member by the authority empowered to conclude contracts of employment unless an EU act prior to the conduct complained of has made provision for that type of penalty. It is undisputed that the penalty of barring a former temporary staff member from the possibility of recruitment for a certain period of time does not appear in any provision of the Staff Regulations. (see paras 100, 101, 103, 106) See: Judgment of 28 October 2010 in SGS Belgium and Others, C‑367/09, EU:C:2010:648, para. 39