61978C0155
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 13 MARCH 1980 (
1
)
Mr President,
Members of the Court,
1.
Under Article 28 (e) of the Staff Regulations of Officials of the European Communities, in order to be appointed it is necessary for an official to satisfy, inter alia, the requirement of being “physically fit to perform his duties”. Article 33 of the same regulations lays down the manner of establishing that requirement. It is the subject-matter governed by those rules which falls to be considered in this case.
I would recall at the outset the facts from which the dispute has arisen. In 1976 the applicant, Miss M., took part in competition COM/C/149 for the constitution of a reserve for future recruitment of Category C officials in the Commission was classified as being among the suitable candidates and was entered on the appropriate list. In the course of the appointment procedure she underwent a medical examination and, after an examination of a general nature, she was examined specifically from a neuro-psychiatric point of view. The outcome of those investigations was a finding of physical unfitness for the performance of the duties which she was due to take up. The applicant was informed of this by letter of 5 July 1977. Immediately thereafter Miss M., by letter of 6 July 1977, requested that her case should be re-examined by a medical board. On 6 October she was informed that that re-consideration had confirmed the previous finding of unfitness and that, accordingly, the Commission considered she did not fulfil the requirement prescribed by Article 28 (c). Having sought to obtain through the intermediary of her own doctor a clarification of the reasons for that adverse finding the applicant learned — from two letters from the Commission's doctor, Dr Turner, — that she had been found to be suffering from a “neurosis of an hysterical nature”.
Miss M. submitted a complaint dated 21 December 1977 through official channels against the Commission's decision. An implied decision of rejection having supervened, she presented, by application lodged on 17 July 1978, the judicial appeal with which this Court is concerned.
2.
In its defence the Commission disputes the admissibility of the application, contending that after it was lodged the applicant's interest in its prosecution ceased to exist because in February 1979, after a competition, she was appointed as an official of the European Parliament.
That objection may not be described as coming too late by reason of its having been advanced only in the course of the oral procedure. It is well settled indeed that, in accordance with a requirement of a general nature, the conditions for the admissibility of an application must be examined by the Court of its own motion. That view has been adopted by the case-law of this Court, as appears in particular from the judgment of 17 May 1976 in Joined Cases 67 to 85/76 Lesieiir Cotelle et Associés, S.A. and Others ν Commission of the European Communities [1976] ECR 391, at paragraph 12 of the decision.
It would be equally misplaced, in my opinion, to object that the applicant's interest at the time of bringing proceedings is not in dispute. The Commission properly submits that, in accordance with the principle of the avoidance of unneccessary litigation, an interest to sue must exist until the time of the judgment. It would indeed be quite pointless for this Court to waste time and energy on deciding proceedings in respect of which neither of the parties has any longer any interest.
The specific content of the objection to the admissibility of the application has therefore to be considered. According to the Commission, the applicant has lost any interest in prosecuting these proceedings further by reason of her having become in the meantime an official with the European Parliament. Having that status, in fact, she may by virtue of Article 29 (1) (c) of the Staff Regulations apply to be transferred to a vacant post with the Commission, thereby attaining the same position as she would have had if she had been engaged following upon Competition COM/C/149.
For various reasons that view cannot be upheld.
First of all it does not appear to me to be correct to place inclusion in a reserve list for future recruitment covering posts in various places, including Brussels, on a par with the opportunity which the Staff Regulations give to officials to request a transfer from one institution to another. Actually, a transfer of that kind is the last of three courses open to the institutions for filling vacant posts without holding an open competition. The other two methods, which must be followed in preference if the requirements can thereby be met, are those of promotion and transfer within the institution and internal competitions advertised within the same institution. Accordingly, the prospect of obtaining a transfer from one institution to another is fairly limited and it constitutes for an individual a situation which is not comparable with inclusion in a reserve list for recruitment. The difference between the two situations becomes very clear-cut when it is borne in mind that inclusion in the list carried with it, as has been said, the possibility of being appointed directly to Brussels whereas one who seeks that goal and who is an official of the Parliament must succeed in obtaining both a transfer to the Commission and appointment to Brussels; and it is well known what difficulties are met by officials of the Commission employed in Luxembourg in obtaining transfers to Brussels.
Another factor to be borne in mind is the matter of time. The omission to include Miss M. on the reserve list for recruitment to the Commission goes back to 1977; her appointment as an official with the Parliament is from February 1979 and is therefore appreciably more recent. The importance of that difference in dates appears clear when it is considered that, were the application to be upheld, it would involve a restoration of Miss M.'s position in regard to 1977 with all the consequences which that involves for the further development of her career. I do not think that the fact that the applicant has not asked for compensation and has confined herself to seeking annulment of the Commission's decision declaring her physically unfit to perform her duties has any relevance to this point. If her claim were to be upheld the annulment would have, in the usual way, effect ex tunc from the point of view of the applicant's career as well.
In my opinion, therefore, the Commission's, objection to the admissibility of the application should be rejected. The applicant still has an interest to pursue and accordingly, in that respect, the application must be held to be admissible.
3.
Turning to the substance, I would first of all recall that the criticisms made by the applicant of the Commission's decision concern:
(a)
infringement of Article 28 (e) of the Staff Regulations;
(b)
failure to give any, or at any event, adequate reasons;
(c)
error of fact;
(d)
infringement of the rights of the defence in the procedure before the reviewing medical board;
(e)
breach of the general principles of equality of treatment without discrimination based on sex and of the protection of the private life of the individual.
The first criticism proceeds upon a construction of the said Article 28 (e) which does not accord with that adopted by the Commission. According to the latter, the phrase “is physically fit to perform his duties”, which occurs in Article 28, is to be read broadly and therefore includes mental unsuitability; it is necessary to take account of the fact that disorders of a mental origin, as, for example, nervous depression or neurasthenia, may, in the same manner, as other illnesses of a purely physical nature, hinder the performance of duties. The applicant, however, advances a more restrictive interpretation of the provision in question: in her view, mental suitability lies outside the rule in question and, accordingly, at the time of appointment the institution may not carry out any examination of the mental health of candidates.
It appears to me that the interpretation favoured by the Commission is the correct one. Once it is accepted — as the applicant herself appears to do in her reply — that mental disorders may affect the ability of officials to perform their respective tasks, the institutions must be acknowledged to have the power and the duty to carry out appropriate checks on the mental health of candidates before appointing them. Moreover, as the Commission observed in its pleadings, it has never been doubted that mental disorders such as to prevent an official “from performing the duties corresponding to a post in his career bracket” may come within the grounds of invalidity giving rise to retirement under the provisions of Articles 53 and 78 of the Staff Regulations. It is surely reasonable to interpret the physical fitness necessary to embark upon an official's career and the fitness required to remain in it according to the same criteria, regard being had to the substantial similarity in the interests at stake in both cases.
The restrictive interpretation of Article 28 (e) which was advanced in the argument for the applicant cannot therefore be accepted. It is true that that argument did not press too strongly for that point of view and, in the end, turned attention to the manner in which the finding of mental suitability was arrived at in the present case and the criteria used. Indeed, when the applicant states that the Commission, by means of the medical investigations carried out, turned to examining the aptitude of the applicant for advancement, that is, to the foreseeable future development of her career in the service, instead of her fitness for the duties which she was called upon to carry out, the criticism concerns not the legitimacy of the examination of her mental health but with the manner in which that examination was carried out in actual fact and the criteria adopted. I shall have occasion to consider this aspect of the case later.
4.
The second ground of appeal is linked above all to the applicant's assertion that the examinations carried out by the Commission in her case at different times led to contradictory results and, therefore, the decision to declare her physically unfit turned out to lack a proper statement of reasons. Miss M. points out that on three occasions her fitness for office work was recognized by the Commission: first during the period from 1966 to 1974 when she had carried out her work as an official with that institution and again on two occasions in 1977 when she had been engaged, on a temporary basis, still with the Commission, under two six-monthly contracts, the first running from 1 May 1977 and the second running from 1 November 1977. According to Miss M., the fact that her mental health had not been called in question either between 1966 and 1974 or in 1977, makes the adverse medical opinion expressed by the Commission subsequent to the competition on the basis of the expert opinion delivered by the medical branch unreliable. According to the submissions for the applicant, the letter from the Director of Personnel and Administration of 6 October 1977, whereby she was informed that the medical board had “considered itself bound to adhere to the finding of unfitness”, amounted to the adoption of an attitude which was incompatible with the other findings of fitness and in particular those connected with the two more recent six-monthly contracts.
That criticism does not appear to me to be entirely justified. The finding of physical fitness relating to the period of service between 1966 and 1974 cannot, indeed, be recognized as of decisive weight seeing that eleven years separate the commencement of that first employment from the finding of unfitness which is in issue and that three years had elapsed after the ending, by voluntary resignation, of that employment when the applicant underwent the new medical examination. As for the positive assessment connected with the two six-monthly contracts this is a factor which does not of itself permit the disputed finding of unfitness to be regarded as unreasonable or contradictory since, in terms of. Article 55 of the Conditions of Employment of Other Servants of the European Communities, physical fitness for the performance of temporary duties may be assessed in a less strict manner than the fitness required for appointment as an official in view of the short term of the employment to which a temporary contract — particularly if it is only a six-month one — gives rise. That is to be inferred — in my opinion — from paragraph (2) of the article just cited, which provides that the appointing authority “may waive the requirement that the person concerned should produce documentary evidence” that he fulfils the conditions set out in paragraph (1) — one of which is physical fitness — “where his engagement is for not more than three months”. That provision shows that the duration of the contract affects the checking of the conditions, in the sense that it may be less rigorous where the duration is short.
However, although the criticism under consideration may not be said to be answered by the comments just made, it serves to draw attention to the discrepancy in the assessments made by the Commission of Miss M.'s state of health, which ought to have led that institution towards a more conscientious and careful approach. I mean to say that, having assessed the applicant's physical fitness in a positive manner on other occasions, the Commission was bound to give careful reasons (in the form which we shall see later, namely through its medical officers and the applicant's own doctor) for its later decision to declare the same person to be physically unfit, so as to allow her to know and to understand the reasons for the new attitude.
5.
Both the criticism of inadequacy of reasons and that involving error of fact concern the medical opinions upon which the Commission based the decision impugned. It therefore appears to me to be necessary at this point to reconstruct in some greater detail the series of medical examinations which the applicant underwent and the information which she received about them.
After the successful outcome of Competition COM/C/149 Miss M. underwent on 5 April 1977 a first general medical examination at the Commission's medical centre. Subsequently, and at different times, she was seen by two psychiatrists, Dr Olmechette and Dr De Geyter. On completion of those examinations, the Commission, by the above-mentioned letter of 5 July 1977, signed by the head of the Recruiting, Appointments and Promotion Division, informed the applicant that its own medical branch considered “that it was unable to regard her as meeting the requirement of physical fitness for the performance of duties with the Commission”, stating further that “the reasons upon which this opinion of unfitness is based” might be obtained by the applicant's own doctor, if he were to apply for that purpose to the head of the Commission's medical branch. In the same letter the candidate was informed also that she could request that her case be submitted for the opinion of a medical board composed of three doctors chosen from amongst the medical officers of the Community institutions.
As I recalled at the beginning of my opinion, Miss M. put forward such a request. By decision of 20 July 1977 the Director of Personnel and Administration appointed the medical board, designating the head of the Commission's medical branch, Dr Semiller, as its chairman. The medical board met on 12 August and on the same date delivered the following opinion: “On the basis of the results of the thorough medical examinations and of the opinions given by the medical specialists, the ad hoc board is of the opinion that Miss M. does not possess the physical requisites necessary for the performance of her duties.”
At that point Miss M. turned to her own doctor, Dr Tombroff, in order to discover, through him, the reasons for the Commission's having found her physically unfit. By letter of 13 December 1977 Dr Turner, a medical practitioner in the service of the Commission, informed Dr Tombroff that Miss M. was “suffering from a neurosis of an hysterical nature” and added that that illness had, “during her (Miss M.'s) employment with the institutions of the European Communities, involved considerable absenteeism between 1970 and 1974”. The letter concluded by stating that although Miss M.'s mental balance was satisfactory at that time, the prognosis remained most doubtful and, having regard to past history, relapses were to be expected.
6.
The results of the medical examinations conducted by the Commission must be looked at, in the first place, with a view to establishing whether or not there has been, as the applicant states, an error of fact. It is appropriate to observe in this regard that if such an error were to be recognized it would be necessary to conclude that Article 28 (e) had been wrongly applied by the appointing authority (in this case, the Commission) for failing to acknowledge the satisfaction of that requirement by a candidate who did in fact comply with it, thereby on that ground unlawfully denying him appointment as an official.
It is stated on the applicant's behalf that Miss M. does not suffer from any mental abnormality and that the probabilities of her becoming ill are no higher than those applying to the average person. In support of that point of view there is produced in the applicant's pleadings the expert report of Dr Corten who, with the assistance of other specialists, subjected Miss M. to a series of medical examinations. In his report, which bears the date 20 January 1979, Dr Corten states that the clinical examination carried out on Miss M. showed her to be a normal person who showed non-pathological somatic reactions and added that “considering that there is no pathology, the concept of prognosis cannot be relevant”. The report states moreover that Miss M. underwent various psychological tests (Rorschach, Szondi, M.M.P.I.) and that those tests “demonstrated the same basic personality”, and showed that “all was normal on a pathological level”. The conclusions to which Dr Corten comes in his report are to the effect that Miss M. “does not suffer and has not suffered from any mental illness” and that she is accordingly “fit to take up any career” and further to the effect that the probability of her becoming ill is “no greater than in the case of the average person”. Dr Corten's clinical assessment represents the result of a long series of investigations; it may suffice to consider that he had fifteen interviews with Miss M. over a period lasting from 5 April to 9 December 1978.
So far as the documents relating to the medical examinations carried out by the Commission are concerned, the only information available is that contained in the letter from Dr Turner, the contents of which I have summarized above. At all events, that letter adds very little to the diagnosis: there is a reference to Miss M.'s “considerable absenteeism” in her previous period of employment (1970 to 1974) and the prognosis of “foreseeable relapses”. On the other hand, the effect of the diagnosis of “hysterical neurosis” is greatly diminished by the admission that “Miss M.'s mental balance is satisfactory at present”; whilst as regards the absenteeism (which, as is well known, certainly does not represent in itself an indication of neurosis) one learns from the same source that numerous medical examinations were carried out without ever demonstrating any specific organic illness which might justify such absenteeism. That leads to the supposition that an anxious or illdisciplined personality may have been labelled as a neurotic character and that that neurosis, to which the absenteeism may be due, may have been regarded as the pathological record on which the prognosis of a relapse was based.
The Court has also heard as witnesses both Dr Corten and Drs Olmechette and De Geyter (at the sitting on 12 October 1979). The first of these confirmed and clarified the contents of the report referred to above. So far as the testimony of Drs Olmechette and De Geyter are concerned, they were united in declaring that, for reasons of professional etiquette and on account of the obligations to maintain confidentiality, they were not prepared to make known the facts on the basis of which they had formed the conviction that Miss M. was suffering from hysterical neurosis and presented, in regard to her mental condition, a risk of invalidity which was higher than that of the average person.
Having regard to that premise, it is not surprising that those depositions brought only a few specific, and moreover, not particularly important, matters of fact to the knowledge of the Court. It appears (from Olmechette's evidence) that in 1974, when she was an official with the Commission, Miss M. suffered from “mental depression” but to an extent which did not prevent her from performing her duties. It is the fact that on that occasion Dr Olmechette, who examined her, expressed an opinion against granting sick leave precisely because of the minor extent of the illness which he found her to be suffering from. And then it appears that both doctors confined themselves to subjecting Miss M. to an examination conducted in the form of an interview — without any form of additional investigation and also without considering the medical records in existence at the Commission — and for those purposes saw the patient only on one occasion and that for a period of about one hour. In that regard, it must be stressed that Dr De Geyter conceded in his evidence to the Court that a direct examination confined to a single interview of not more than one hour could lend itself to the criticism of “being subjective” and stated that he had previously drawn the attention of the Commission's medical officers to this but without result inasmuch as the answer given to him was that the psychiatric examination formed part of a fuller series of examinations and could accordingly be restricted to a short time.
From the evidence given there therefore emerge no factual details which allow the matters upon which the Commission's doctors made their judgments to be tested. The Court's requests to the Commission's medical branch to produce the records relating to the medical examinations carried out on Miss M. were countered with objections regarding the confidentiality of medical findings. In those circumstances I am inclined to doubt the reliability of the medical opinion adopted by the Commission as a basis for its own decision and to share the opinion, largely supported by documentary evidence, to the opposite effect expressed by Dr Corten.
The fact, already noted, that Miss M.'s mental health was not called in question either at the time of her previous employment with the Commission or in 1977, when she was held to be fit to perform the duties of a temporary employee, and also the fact, of which the applicant gave evidence at the sitting at which she appeared before the court, that in 1979 she was judged by the Parliament to be physically fit to be engaged as an official are further matters which confirm my view. All this means, of course, that, in my opinion, the complaint of an error of fact deserves to be upheld.
7.
I have already stressed how the attitude adopted by the Commission's medical officers in the course of this case has been largely influenced by a particular conception of professional secrecy. According to that conception, the matters upon which a doctor has based his diagnosis (or his prognosis) in a given case may not be disclosed even to a judicial body, even where the patient has expressly authorized the physician to disclose them (which is what has occurred in the case before us). The implicit result of that way of thinking is that, where an administrative decision is based upon a medical assessment, a court is unable to review in any way the logic and the technical accuracy of the assessment but has only a choice between relying upon the clinical opinion already given and entrusting the task of preparing an expert report to another doctor (a solution which is not always practicable when time has passed and circumstances may have changed).
Without professing to deal in every aspect with the extremely complex problem which the problem of medical confidentiality represents, I shall confine myself to observing that under all the legal systems of the Community countries which have that concept, it seeks essentially to protect the interests of the patient. The purpose of secrecy is to avoid the risk that those who are in need of treatment may decline to seek assistance from a doctor for fear that he may reveal to others facts learned on the occasion of the consultation and to ensure, further, that there will be ho disclosure to the patient of his condition such as might upset his health and cause him harm. Where, however, the course of judicial proceedings requires that light be cast on the nature of a medical finding, it is necessary to find a point at which two interests equally worthy of consideration may be reconciled, namely, that of the protection of the patient and that of the defence of the same person's rights before a court. It appears to me therefore that a reasonable solution, and one which is in accordance with general principles in force on this topic in the Member States, would be one which excludes reliance on professional secrecy in judicial proceedings, at least where, as in the present case, a dispute between a public employee and the administration is involved, where, moreover, the medical examinations have been carried out on behalf of the administration and not at the request or in the interests of the patient and where, finally, the person concerned agrees to the information in the possession of the doctor being disclosed to the court.
Belgian law itself — by which the Belgian doctors in the service of the Commission feel themselves bound, so it seems, even when carrying out tasks entrusted to them by Community institutions — appears to me to be in accordance with the solution which I have just put forward. Indeed, in administrative matters, the Council of State in its judgment of 6 June 1974 No 16.702, Van de Plas, stated that doctors undertaking preventive examinations for an authority may not claim confidentiality for their findings as against the authority or as against the person subject to the examination, or, finally, as against the judicial body charged with adjudicating upon the lawfulness of the decision adopted by the authority on the basis of the medical investigation. The French Council of State has also adopted the approach that medical confidentiality may not be relied upon as against the patient and that an administrative court has the power to order the administrative authorities to make the medical records available to the person concerned. Where it has invited the administration to produce medical records covered by professional secrecy, that court may draw inferences supporting the other party in the event of its being met with a refusal to do so. Likewise, under Netherlands law, confidentiality may not, as a rule, be claimed before administrative courts in disputes between the administration and public officials. As for the legal system of the Federal Republic, professional secrecy is there seen as a relative concept and is always relinquished where the patient's consent is given. Italian law on this matter gives priority to the need to protect the employee, whether public or private, and accordingly medical confidentiality may not be claimed in relation to a medical examination to which he has been subjected at the instance of the employer; on the contrary, in cases of that kind the principle which applies is that of the right of the worker to be informed of the result of the medical examination. Under the Danish legal system the court may always compel a doctor to give evidence about facts learned in the course of his professional activity, even in the absence of the patient's consent. A similar approach appears to have been adopted under English and Irish law.
This brief comparative excursus makes it possible to identify a commondenominator which is represented by a duty on the doctor, within the compass of disputes between a public employee and the administration and provided that the patient's consent has been given, to provide an administrative court with information acquired in the course of medical examinations carried out at the request of the authority. It appears to me to be essential to identify common principles on this subject, since professional secrecy has an impact on the jurisdiction exercised by the Court and it is not acceptable that the latter should proceed upon the basis of the different laws to which doctors are subject in different countries. If it were to function in that manner, the differences between the national systems would involve an expansion or contraction of the powers of the Court and its ability to ascertain the facts necessary to give judgment would vary according to the differences in the national rules. That would obviously conflict with the necessary uniformity in the administration of justice at Community level.
It is worth adding, however, that even if it were held — in my opinion, incorrectly, — that the system of rules of the place where the medical examination is carried out must apply, the solution in the present case would not differ. In fact, as has just been seen, Belgian law, relying on the case-law of the Conseil d'État (which is that to which it is proper to make reference in regard to disputes between the administration and public servants) takes the view that confidentiality of medical findings may not be claimed before the court, with regard to examinations conducted on behalf of the administration.
The result of this reasoning is that, contrary to the opinion of the Commission's doctors heard as witnesses in this case, confidentiality could not be claimed in this Court. The consequence of those doctors' refusal adequately to clarify the facts of their diagnosis cannot but have repercussions on the Commission's position in the litigation, considering that those doctors were engaged for and in the interests of the Commission. Indeed, in my opinion, it behoves the Commission to organize its own departments in such a manner as to avoid difficulties of the kind described arising.
8.
The considerations discussed hitherto serve to make clear that, if the Commission has not put the Court in the position of being able to review the reasons for the diagnosis made by its medical officers in regard to the applicant, it is unsound to put forward confidentiality of medical findings as a justification. However, it is now convenient to examine closely another aspect, which is also connected with the problem of medical secrecy. I refer to the insufficiency of the information furnished by Dr Turner to Dr Tombroff, when the latter sought to learn the reasons for which Miss M. had been found physically unfit. In fact, the totally inadequate content of the letter from Dr Turner dated 13 December 1977, which presumably was the result of the conception of medical confidentiality which has already been criticized, represents, in my opinion, the circumstance which most aptly shows that the Commission's decision is also vitiated by the inadequacy of its reasons. It is hardly necessary to observe that that flaw is distinct from and independent of that of error of fact so that it invalidates the disputed decision, leaving aside the accuracy or otherwise of its medical foundation.
It is settled, according to the case-law of this Court, that an individual decision is to be considered as giving the reasons on which it is based even when, instead of being set forth in the actual context of the instrument, the grounds upon which it proceeds are brought to the knowledge of the person concerned so as to give him clear information and to provide him with all the essential factors sufficient to allow judicial review. That view is laid down — with reference to an adverse decision based on staff memoranda — in the judgment of 14 July 1977 in Case 61/76 Geist ν Commission of the European Communities [1977] ECR 1419. However, the Court has also had occasion to apply and to develop the principle of the Geist judgment in two rulings which involved the issue of the confidentiality of medical findings: the judgment of 27 October 1977 in Case 121/76 Moli ν Commission of the European Communities [1977] ECR 1971 and of 13 April 1978 in Case 75/77 Mollet ν Commission of the European Communities [1978] ECR 897. From these it appears that, where the reason on which a measure is based consists in the physical unfitness of the official to whom the measure itself refers (as occurs with a refusal to appoint, on grounds of physical unfitness, a candidate entered on a reserve list) the reasons on which the decision is based must be stated but “the duty to state the reasons must be reconciled with the requirements of professional secrecy which, save in exceptional circumstances, leave the individual doctor to decide whether to communicate to those whom he is treating or examining the nature of the condition from which they may be suffering”. The Court added that “that reconciliation is effected through the ability of the person concerned to request and ensure the communication to a doctor of his choice of the grounds on which he has been declared unfit; that information should enable the person concerned, either himself or through his doctor, to judge” whether the decision which affects him is in accordance with the provisions of the Staff Regulations.
In those decisions may be discerned the formulation of two important rules for the resolution of the case with which this Court is now concerned. The first rule is that the person concerned is entitled to learn, through his own family doctor, the reasons for his own unfitness. The second rule is that those reasons must be made known to the extent of the relevant information necessary to allow the person concerned to judge the correctness of the administration's decision, and, if appropriate, to exercise his rights against the said administration.
If we apply those criteria to this case, the Commission would have to be regarded as having fulfilled its duty to give reasons for the adverse decision taken as respects Miss M. if it had provided her family doctor with all the facts necessary for a proper judicial review of that decision and accordingly, in particular, the facts upon which the diagnosis of “hysterical neurosis” had been based. In my opinion, the entire “medical file” or, at least, a precise indication of its contents ought to have been made accessible to the applicant's doctor once she had asked to be informed of the reasons for the decision and had relieved the Commission's doctors of any supposed restriction connected with professional confidentiality. We have seen, however, what poor, evasive and superficial information was provided by Dr Turner's letter. Taking that into account, I think that the complaint of inadequacy of the statement of reasons is fully justified.
9.
The applicant has also advanced the same criticism on a different basis: by complaining, that is, of the summary nature of the medical examination carried out by the Commission's doctors — in particular the fact that the psychiatric examination was carried out only by means of a questionnaire — as well as of the procedure followed by the medical board which neither summoned nor visited the applicant and contented itself with perusing the record compiled by their colleagues at first instance.
In my opinion these points do not represent independent grounds of complaint but they serve, rather, to complete the factual reconstruction which has led me to hold the complaints of error of fact and inadequacy of reasons to be well-founded. In general terms, I do not think the psychiatrist may be denied the right to carry out his examinations in the manner which appears to him to be scientifically most appropriate or that a review procedure confined to re-examination of the medical records may be ruled out, even if such a manner of proceeding were to remain limited to cases where many unconflicting clinical investigations have already been carried out and the records contain objective diagnostic facts, such as the results of analyses, X-rays and so on. But when we turn to the present case, it is difficult not to remain struck by the restricted and hasty nature of the medical examinations of the applicant. That applies above all to the opinion given by the medical board sitting on appeal. It is surprising that it did not perceive either the need to hear the doctors who had formed the initial judgment or the need to subject the patient to a fresh examination and that it was content with perusing the records at one session only. However, it is not for this Court to suggest to a medical board the correct manner of carrying out its duties which are of a technical nature; what matters is that in this forum the Commission has not seen its way to put forward factual matters capable of contradicting the careful findings of the doctor whom the applicant has consulted, just as, previously, it did not see its way to explain to the applicant, in a satisfactory manner, the reasons for the diagnosis with which its adverse decision accorded.
10.
I have recalled that, amongst the criticisms advanced by the applicant, there is one relating to disregard of the rights of the defence and that is in regard to the procedure for reviewing the medical opinion expressed at first instance by the Commission's medical officers. Miss M. complains, in particular, that she was not informed in advance of any opportunity to be heard by the medical board charged with reexamining her case or to place before it an expert report of her own but she also infers that any actual opportunity of preparing such a report and of presenting it to the board was thwarted by the shortness of the period which elapsed between her request for a reexamination and the decision of the medical board (little more than a month: from 6 July to 12 August 1977).
At the time of the actual events the procedure under discussion was not governed by any provisions in the regulations (the second paragraph of Article 33 of the Staff Regulations was added only by Regulation No 912/78 of 3 May 1978). It took place under internal provisions which the administrations of the three institutions had decided upon of their own accord. The person concerned was not given any personal right to present opinions or reports to the medical board and accordingly the institutions had no duty to acquaint her with such a possibility. That also reflects the fact that the task of making a review entrusted to the medical board did not have, as it still does not have, any judicial character. It accordingly appears to me to be quite out of place to speak of disregard of the rights of the defence. The criticism relating to the brevity of the period between the request for reexamination and the Commission's decision is likewise unjustified. In that regard, account has to be taken of, inter alia, the administration's interest in reaching a practical decision on staff recruitment without excessive delay but that is not to say that, in the present case, 30 odd days represented a sufficient period of time for the party concerned to obtain medical reports for production.
11.
The final group of criticisms is concerned with an alleged infringement of two fundamental rights and in particular of the right to equality of treatment without distinction based on sex and the right to the protection of private life.
After contending in the initial application that only female candidates are subjected to a psychiatric examination with a view to their appointment as officials the applicant subsequently corrected her assertion in the face of the Commission's denial so as to confine herself to complaining that the percentage of female candidates subjected to psychiatric examination is significantly higher than that of male candidates. According to the applicant, such actions on the part of the Commission conflict with the second paragraph of Article 27 of the Staff Regulations which provides that “Officials shall be selected without reference to ... sex”. The Commission disputes that proposition and makes the observation that psychiatric checks fall under the examination for physical fitness which is legitimately carried out prior to appointment and are decided upon by the medical branch in individual cases on the basis of specific medical reasons. The Commission concedes that, at least in recent years, the number of women made subject to that kind of examination has turned out to be higher than the number of men but it submits that it is not possible to infer from that fact any argument asserting any presumed discrimination of treatment on grounds of sex.
I am of the opinion that the Commission's reasoning may be adopted.
Undoubtedly, the numerical imbalance between the sexes recorded in relation to the checks carried out in 1976 and 1977 may be puzzling: in 1976 27% of male candidates and 37% of female candidates and, in 1977 26% and 51% respectively were subjected to psychiatric examination. However, in the absence of other evidence, it would be going too far to infer from that figure alone that the Commission is acting in a discriminatory manner.
The applicant then complains that the psychiatric examination is conducted by putting to the patient a series of questions concerning his or her private life. It is said that that gives rise to an infringement of the fundamental right to have one's private life respected, which is recognized also in Article 8 of the European Convention on Human Rights. This criticism also appears to me to be groundless. It is wholly reasonable that a psychiatrist, in examining a patient by means of an interview, should also address to him questions concerning personal or family problems as well. The choice of topics through which to direct the conversation obviously lies within the professional discretion of the doctor. Furthermore, the content of such conversations is covered by medical confidentiality which serves, inter alia, to protect the patient's privacy.
12.
For all the foregoing reasons I would propose that the Court should uphold the application made by Miss M. against the Commission on 17 July 1978 and in consequence should annul the decision of the defendant institution dated 6 October 1977 whereby the applicant was declared physically unfit for the duties of an official. Being unsuccessful, the Commission should be ordered to pay the applicant's costs.
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1
)	Translated from the Italian.