61992CC0404_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1. This case concerns an appeal against the judgment of the Court of First Instance delivered on 18 September 1992 in Joined Cases T-121/89 and T-13/90, (1) hereinafter referred to as "the contested judgment". The appeal raises a number of legal questions concerning the medical examination on recruitment of applicants for appointment as officials and other members of the staff of the Community institutions. These legal questions relate to the right to respect for private life, the duty to state the reasons on which a measure is based and the right to a fair hearing.
Facts and procedure
2. In the light of the pleas in law which have been put forward, the following paragraphs of the contested judgment and the findings of the Court of First Instance therein seem to me to be relevant (the italics are mine; because of the chronological order of the facts, I have quoted parts of paragraph 47 of the judgment in three places):
"1 The applicant worked for the Commission of the European Communities on a freelance basis from 29 August 1985 to 30 March 1986 and from 1 May 1986 to 31 August 1987, and as a member of the auxiliary staff from 1 September 1987 to 31 January 1988. Having been admitted to Competition No COM/C/655 for typists, he was informed on 4 July 1989 that he had not passed the written tests.
2 With a view to the possibility of his being employed for a period of 6 months as a member of the Commission' s temporary staff, the applicant was invited, by letter from the Careers Division of the Directorate-General for Personnel and Administration of 14 February 1989 to undergo a medical examination in accordance with Articles 12(2)(d) and 13 of the Conditions of Employment of other Servants of the European Communities (hereinafter referred to as 'the Conditions of Employment' ).
3 That examination was carried out on 15 March 1989 by Dr S. a medical officer of the Commission. The applicant underwent a clinical examination, supplemented by biological tests. However, he declined the suggestion of the medical service that he should be screened for HIV antibodies (AIDS). (2)
47 The anamnesis drawn up on the basis of a questionnaire completed and signed by the applicant revealed that he suffered from chronic acne and that in 1988 he had contracted shingles. A clinical examination revealed shingles scars on the left haemothorax, signs possibly indicative of the presence of bucco-pharyngeal candida (pale tongue, pale, thick saliva), and bilateral inguinal polyadenopathy. In view of the combined results of the anamnesis and the clinical examination, the medical officer ordered blood tests in order to determine, inter alia, the T4 and T8 lymphocyte counts. The latter test yielded the following results for the applicant: T4 = 299/mm3 (normal range 675-1575), T8 = 41/mm3 (normal range 12-44), T4/T8 ratio 0.39 (normal range 1-3). In view of those results as a whole, the medical officer concluded on 22 March 1989 that the applicant was suffering from a significant immune deficiency which rendered him unfit to perform the duties of a member of the temporary staff.
47 (contd.) By letter of the same date, he informed the applicant that he was unable to issue an opinion that the applicant was suitable for recruitment and asked him to give him the name, address and telephone number of his own doctor, so that he could give the latter details of the abnormalities found. In the opinion of the medical officer, those abnormalities called for 'further examinations to clarify the diagnosis, enabling appropriate treatment to be undertaken, if necessary' . (See also paragraph 4 of the contested judgment).
5 By letter of 28 March 1989, the Head of the Careers Division informed the applicant that, following the medical examination, the medical officer had concluded that he was physically unfit to carry out the duties of typist in the Commission and that there was therefore no possibility of his being recruited.
47 (contd.) After the applicant had given the name of his doctor to the medical officer, the two doctors spoke by telephone on 5 April 1989 and a copy of the results of the laboratory analyses carried out in respect of the applicant was forwarded to the latter' s doctor. According to a handwritten memorandum from the medical officer contained in the medical file, he informed the applicant' s doctor that the immune deficiency ascertained might be linked with the presence of the AIDS virus, which would justify an additional screening test not only for the HIV-1 virus but also for the HIV-2. According to the same memorandum, the two doctors agreed that a mere HIV positive result, in the absence of clinical symptoms, did not constitute a cause of unfitness, whilst the presence of AIDS at an advanced stage would justify a refusal to recruit, as in the case of cancer at an advanced stage or a serious psychological disorder.
7 In response to the abovementioned letter from the Head of the Careers Division, the applicant, by letter of 9 April 1989, requested that his case be referred for an opinion of the Medical Committee provided for in the second paragraph of Article 33 of the Staff Regulations of Officials of the European Communities, which applies to temporary staff by virtue of Article 13 of the Conditions of Employment.
8 By letter of 26 April 1989 the applicant' s doctor informed the President of the Commission that a diagnostic error had been made by the Commission' s medical officer, who had concluded that his patient was suffering from an opportunist infection, constituting a case of 'full blown AIDS', and also objected to the fact that the applicant had, without his consent, been subjected to a dissimulated AIDS screening test.
9 By letter of 27 April 1989 the Head of the Commission' s Medical Service informed the applicant that a Medical Committee had been convened to consider his case on 26 May 1989 and invited him to forward all relevant medical reports and documents.
10 By letter of 19 May 1989, the applicant replied to the Head of the Medical Service that he possessed no medical documents because he had never been seriously ill. He also stated that he had been treated for minor medical problems by Dr P.
11 By letter of 6 June 1989, the Director-General for Personnel and Administration informed the applicant that the Medical Committee, convened at his request, had met on 26 May 1989 and had confirmed the opinion issued on 22 March 1989 by the Commission' s medical officer. On that basis, the Commission considered that the applicant did not meet the physical fitness requirements for recruitment to its staff.
12 By letter of 3 July 1989, the applicant lodged a complaint under Article 90(2) of the Staff Regulations against the decision of 6 June 1989 and, so far as necessary, against the opinion of the medical officer of 22 March 1989 and the decision of 28 March 1989. In that complaint, he requested the annulment of the abovementioned measures and sought compensation for the non-material damage which he had allegedly suffered, although he did not specify the cause of such damage or quantify it.
13 In response to the letter from the applicant' s doctor dated 26 April 1989, the Director-General for Personnel and Administration stated, by letter of 26 July 1989, on behalf of the President of the Commission, that systematic and compulsory HIV screening had been abandoned in the Community institutions more than a year earlier, in conformity with the conclusions of the Council and of the Ministers of Health of 15 May 1987 and 31 December 1988, and the decisions of the Commission. In the same letter, it was stated that the applicant had not been subjected to a disguised AIDS screening test but to a biological examination ° a T4/T8 lymphocyte count ° which was intended to evaluate the state of the patient' s immune system and was not in any way specific to investigation for viral or bacterial infection.
14 By letter of 4 September 1989, which was received at the Secretariat-General on 8 September 1989, the applicant lodged, under Article 90(2) of the Staff Regulations, a 'supplemental' complaint, seeking payment of a lump sum of BFR 10 million in respect of material and non-material damage caused to him by Commission officials.
15 Both of the applicant' s complaints were rejected by decision of the Commission of 27 November 1989, which was notified by a memorandum from the Director-General of Personnel and Administration of 28 November 1989."
3. On 4 July 1989 the applicant brought an action, at that time still before the Court of Justice, which was registered as Case 206/89, for annulment of the decision of 6 June 1989, "in so far as necessary", of the opinion of the medical officer of 22 March 1989 and of the decision of 26 May 1989 in which the Medical Committee confirmed that opinion and "purely in the alternative", of the decision of 28 March 1989 by which the offer of the post of typist was withdrawn. (3) By order of 15 November 1989 the Court of Justice transferred this case to the Court of First Instance, where it was registered as Case T-121/89. On 3 March 1990 the applicant brought before the Court of First Instance a second application, registered as Case T-13/90, seeking compensation for the damage which he claimed to have suffered as a result of the Commission' s conduct. By order of 24 October 1990 the Court joined the two cases. Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) first asked the applicant to submit his observations with regard to the possible production of his full medical records. The applicant stated that he had no objection to their production and the Court then asked the Commission to produce the medical file regarding the applicant' s physical unfitness, together with the other relevant documents, and put a number of questions to the parties in writing. (4) The Commission produced the file and the parties replied to the questions put to them, whereupon the Court opened the oral procedure on 12 May 1992; on 18 September 1992 the Court delivered the contested judgment which I shall presently analyse in greater detail (sections 5 to 10 below). The applicant' s actions were dismissed on all points.
4. On 2 December 1992 the applicant appealed to the Court of Justice against the contested judgment. In addition to the appellant and the Commission, the respondent, the Union Syndicale, Brussels (hereinafter referred to as "the Union Syndicale"), and the Fédération Internationale des Droits de l' Homme (hereinafter referred to as "the International Federation") submitted observations to the Court of Justice. By decisions of 13 February and 24 October 1990 the Court of First Instance had allowed the Union Syndicale to intervene in Case T-121/89 and Case T-13/90 respectively. By decision of 12 July 1993 the Court of Justice allowed the International Federation to intervene in the procedure on appeal. Both interveners support the appellant' s claims.
The appeal is based on three pleas in law relating to infringement of the right to protection of private life (below, sections 11 to 29), failure to state the reasons on which the relevant decisions were based (below, sections 30 and 31) and infringement of the right to a fair hearing (below, sections 32 to 39). The first plea relates to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter referred to as "the Convention") and the third to Article 6 of the Convention.
The contested judgment
5. In Case T-121/89 the applicant put forward before the Court of First Instance four pleas in law, namely infringement of the right to a fair hearing (first plea), of the requirement in Article 25 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as "the Staff Regulations") that a decision adversely affecting an official shall state the grounds on which it is based (second plea), of Article 8 of the Convention and the Conclusions of the Council and the Ministers for Health concerning AIDS (third plea) and of the principle of the protection of legitimate expectation and good faith and the prohibition of abuse of process (fourth plea).
First and second pleas in law at first instance
6. In paragraphs 36 to 40 of the contested judgment the Court of First Instance summarizes the arguments of the various parties and in paragraphs 41 to 45 calls attention to the relevant principles as follows:
"41 This Court observes that Articles 12(2)(d) and 13 of the Conditions of Employment provide that a member of the temporary staff, before being engaged, must undergo a medical examination by one of the institution' s medical officers in order to establish whether 'he is physically fit to perform his duties' . Furthermore, the second paragraph of Article 33 of the Staff Regulations, which is applicable by virtue of Article 13 of the Conditions of Employment, provides as follows:
' Where a negative medical opinion is given as a result of the medical examination provided for in the first paragraph, the candidate may, within 20 days of being notified of its opinion by the institution, request that his case be submitted for the opinion of a medical committee composed of three doctors chosen by the appointing authority from among the institution' s medical officers. The medical officer responsible for the initial negative opinion shall be heard by the Medical Committee. The candidate may refer the opinion of a doctor of his choice to the Medical Committee ...'
42 The purpose of the medical examination provided for by the abovementioned provisions is thus to allow the institution concerned to determine whether the candidate' s state of health is such that he is capable of fulfilling all the obligations which he may be required to fulfil by virtue of the nature of his duties. To that end, the medical officer of the institution may base his finding of unfitness not only on the existence of present physical or psychological disorders but also on a medically justified prognosis of potential disorders capable of jeopardizing the normal performance of the duties in question in the foreseeable future (judgment of the Court of Justice in Case 155/78 Miss M v Commission [1980] ECR
I-1797, paragraphs 10 and 11).
43 Moreover, a refusal to engage a candidate on grounds of physical unfitness constitutes a decision adversely affecting him within the meaning of Article 25 of the Staff Regulations, which must therefore state the reasons on which it is based. However, that obligation to state reasons must be reconciled with the requirements of medical confidentiality 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. 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 (judgments of the Court of Justice in Case 121/76 Moli v Commission [1977] ECR 1971, at 1978; in Case 75/77 Mollet v Commission [1978] ECR 897, at 906; and in Case 115/78, cited above).
44 At the request of the candidate, the medical officer of the institution is required to disclose to the candidate' s doctor all relevant information concerning the findings of physical unfitness and, more specifically, the results of the medical examinations carried out so that that doctor is in a position to give the person concerned the necessary information regarding the possibility of challenging those findings. If the person concerned wishes to challenge the merits of the negative opinion of the medical officer, he must forward the opinion of his doctor to the Medical Committee, together with all supporting medical documents, and, if appropriate, request that his doctor be heard by the Medical Committee. The purpose of the procedure provided for by the second paragraph of Article 33 of the Staff Regulations is to facilitate a review of the negative medical opinion by a body established under the Staff Regulations, which must give a final opinion as to the physical fitness of the candidate, having regard to all the documents which, at that time, are contained in the medical file of the person concerned. It is for the Medical Committee to decide whether it is appropriate to have the candidate undergo a further medical examination, and it may prescribe further tests or seek the opinion of specialists.
45 In reviewing the legality of a refusal to recruit a person on grounds of physical unfitness, the Court may not substitute its own judgment for the medical opinion on specifically medical matters. However, it is for the Court, in carrying out the task specifically assigned to it, to verify whether the recruitment procedure followed a lawful course and, more particularly, to consider whether the appointing authority' s decision refusing to recruit a candidate on grounds of physical unfitness is based on a medical opinion which incorporates a statement of reasons establishing a comprehensible link between the medical findings which it contains and the conclusion as to unfitness which it draws (judgment in Case 155/78, cited above, paragraph 14; see also Case 189/82 Seiler and Others v Council [1984] ECR 229, paragraph 15).
46 It is in the light of those principles that the charges made by the applicant and the intervener in relation to the first and second pleas in law must be examined. The starting point for such an examination must be certain findings based on the documents before the Court."
7. After setting out those findings in paragraph 47 of the judgment (largely quoted already in section 2 in my survey of the facts), the Court of First Instance rejected the first plea in law in paragraphs 48, 49 and 50 in the following terms:
"48 This Court finds that the Commission' s medical officer thus disclosed to the applicant' s own doctor not only the reasons for the finding of unfitness, namely the presence of a significant immune deficiency, but also all the details concerning the signs which appeared in the course of the anamnesis and the clinical examination. Moreover, the applicant' s own doctor received a complete copy of the results of the applicant' s blood tests. That is confirmed by the answers given by the applicant and the defendant to a written question put to them by the Court in the course of the procedure and by statements from the applicant' s representative at the hearing. Accordingly, neither the applicant nor the intervener is justified in maintaining that the information disclosed to the applicant' s doctor was too concise and insufficiently comprehensive to enable him to give his patient appropriate advice and to enable the applicant to defend his interests effectively.
49 As regards the intervener' s allegation concerning the composition of the Medical Committee, it is important to note that Dr Hoffman, Head of the Commission' s Medical Service, was not a member of it. Accordingly, without its being necessary to rule whether the status of Head of the Medical Service in itself constitutes a legal impediment to membership of the committee provided for in the second paragraph of Article 33 of the Staff Regulations, that allegation must be rejected as unfounded.
50 Similarly, there is no basis for the intervener' s contention that the applicant' s right to a fair hearing was undermined by the fact that the Medical Committee failed to hear his own doctor and did not consider it appropriate to undertake a clinical examination itself. As has been pointed out, it is for the candidate who has the matter referred to the Medical Committee to request a hearing of his own doctor. In the present case, the applicant failed to give the Medical Committee any medical documents whatsoever, whilst his doctor chose to write to the President of the Commission to criticize a medical error which, in his opinion, had been committed and to call in question the practices of the Commission' s Medical Service."
8. The second plea in law, relating to Article 25 of the Staff Regulations, was rejected by the Court of First Instance in paragraph 51 of the judgment in the following terms:
"51 Finally, this Court considers that account must be taken of the following considerations in relation to the question whether the refusal to recruit the applicant as a member of the temporary staff was accompanied by a statement of reasons conforming with the requirements of the Staff Regulations. Firstly, the reason given by the medical officer, which was confirmed by the Medical Committee, namely that the applicant is suffering from a significant immune deficiency, is in principle capable of justifying a finding of physical unfitness for performance of the duties of a member of the temporary staff, in the light of the potential risk of increased susceptibility to infections. The concept of physical unfitness includes not only present disorders but also potential disorders which might prevent the person concerned from properly performing his duties for the period of his engagement. Furthermore, in the medical opinion which was issued on the basis of the results of a clinical examination and blood tests, a comprehensible link is established between the medical findings which it contains and the conclusion as to unfitness which it draws and it cannot therefore be regarded as vitiated by a manifest error of assessment, as the applicant alleges. Secondly, although the parties agree that the abnormalities found in the immune system do not constitute a basis for diagnosing a specific illness, since an immune deficiency may derive from various causes, they nevertheless disagree as regards the possibility of drawing a definitive conclusion regarding the unfitness for work of the person concerned without further clarification as to the aetiology of the illness. In support of their respective positions, the parties have produced conflicting medical opinions. This Court considers that the difference between them relates to a question which should have been raised before the Medical Committee, whose task under the Staff Regulations is to examine the merits of the medical opinion issued by the institution' s medical officer. However, it must be stated, first, that the applicant' s doctor did not arrange for the additional tests suggested by the medical officer to determine the origin of the applicant' s immune deficiency and, secondly, that the latter did not place before the Medical Committee the opinion of any doctor, either his own or another. In those circumstances, this Court considers that the applicant, whose doctor did not cooperate with the Medical Committee, is not entitled to challenge the statement of the reasons for the refusal to recruit him by producing to the Court for the first time medical opinions which were not submitted in due time for consideration by that committee. Accordingly, the applicant' s allegations concerning the legality and adequacy of the statement of the reasons for the contested decision must be rejected."
Third and fourth pleas in law at first instance
9. The Court of First Instance set out in paragraphs 53 to 57 of the contested judgment the parties' arguments with regard to the third plea in law (in particular infringement of Article 8 of the Convention) and rejected it in paragraphs 58 and 59 in the following terms:
"58 The Court observes that the taking of blood in order to investigate the possible presence of HIV antibodies constitutes interference with the physical integrity of the person concerned and can be carried out on a candidate only with his informed consent. However, the question what the legal consequences would be of a refusal by a candidate to submit to an HIV antibody screening test which the medical officer of an institution considered necessary, having regard to the clinical symptomatology of the person concerned, in order to make a medical assessment of his physical fitness, is a different question which does not arise in the present case. The applicant in this case has not established that he was, without his consent, subjected to a specific AIDS screening test or that he was requested to undergo such a test by the Commission as a precondition for his engagement. The applicant has likewise not shown that he was subjected to a dissimulated HIV antibody screening test, since the parties agree that the bloood test in question, namely, the T4/T8 lymphocyte count, is not capable of establishing whether a person is seropositive. Finally, it must be added that in the circumstances, having regard to the abnormalities found in the anamnesis and clinical examination, the medical officer was entitled to request that such a test be carried out.
59 Accordingly, there can be no question in this case of any infringement of Article 8 of the Human Right Convention, or of the Conclusions of the Council and of the Ministers of Health of the Member States, whatever the legal status of those conclusions."
The Court then summarized, in paragraphs 61 and 62, the parties' arguments and stated, in paragraph 63, that the rejection of the first three pleas in law meant that the fourth plea in law must also be rejected.
The application for compensation
10. The arguments of the parties with regard to the application for compensation in Case T-13/90 were set out by the Court of First Instance in paragraphs 66 to 72 of the contested judgment and rejected in paragraphs 73, 74 and 75 for the following reasons:
"73 The Court observes that, in his reply, the applicant states that his second action does not seek the annulment of the measures to be reviewed by the Court in Case T-121/89, or compensation for the material damage caused him by such measures, since the enforcement of a judgment of the Court upholding his first action for annulment would constitute sufficient reparation for that damage. The applicant explains that he seeks compensation for the non-material damage suffered by him as a result of the conduct of the Commission which, in his view, did not take all the necessary measures to preserve the confidentiality of the grounds of the medical finding of unfitness, on the basis of which the decision not to recruit him was taken. That lack of confidentiality made it possible for several people to identify him and aroused in his relations the suspicion that he was seropositive. In view of those clarifications as to the scope of the forms of order sought in the second action, it must be recognized that the latter does not have the same subject-matter as the first action, in so far as the applicant merely seeks compensation for the non-material damage which he claims to have suffered as a result of the unlawful conduct of the Commission.
74 The Court considers that that claim for compensation must be rejected in so far as it is closely linked with the claim for annulment which has itself been rejected as unfounded. The applicant has not put forward any plea capable of securing the annulment of the contested decision and has thus not established any irregularity which might constitute a wrongful act or omission on the part of the Commission.
75 Moreover, that claim would also have to be rejected as inadmissible even if the alleged non-material damage were considered to derive from conduct on the part of the Commission unrelated to the legality of the decision referred to in the claim for annulment. In such circumstances, the administrative procedure must, by virtue of Article 90(1) of the Staff Regulations, start with a request from the official that the appointing authority make good the damage suffered. It is only against a decision rejecting such a request that the person concerned may lodge a complaint with the administration, under Article 90(2) (judgment of the Court of Justice in Case 200/87 Giordani v Commission [1989] ECR 1877, paragraph 22; judgment of the Court of First Instance in Case T-5/90 Marcato v Commission [1991] ECR II-731, paragraph 50). In the present case, the applicant did not submit any such request to the appointing authority and, even on the assumption that the 'supplemental' complaint of 4 September 1989 constituted a request to make good the non-material damage allegedly suffered, the fact would nevertheless remain that the applicant did not lodge a complaint against the Commission' s adverse decision of 27 November 1989."
First plea in law on appeal: infringement of the right to protection of private life
11. In the first plea in law the appellant states that the Court of First Instance wrongly decided that his right to protection of private life, as guaranteed by Article 8 of the Convention, was not infringed by the manner in which he was medically examined and declared physically unfit. Before considering the three parts of this plea separately I should like briefly to examine Article 8 of the Convention and the Commission' s argument that the first plea in law is partially inadmissible.
12. Article 8 of the Convention is worded as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
In the context of the question now before the Court, namely the permissibility of certain tests carried out during an examination on recruitment it is the first of the four rights protected by Article 8 of the Convention which is relevant. If it appears that this case involves interference with private life, (5) it will be necessary to consider whether it is justified in accordance with Article 8(2).
As is well-known, (6) the Convention does not form a direct part of Community law but does so indirectly since the basic rights and fundamental freedoms protected therein are also enforceable as general principles of Community law. (7) In that connexion the Court expressly stated in its judgment in Case C-62/90 Commission v Germany that the right to respect for private life and the right to the protection of medical confidentiality constituted fundamental rights protected by the Community legal order (see in addition section 22 below). (8)
13. In its response the Commission contends that the appellant' s first plea in law is inadmissible in so far as it calls in question the compatibility with Article 8 of the Convention of any AIDS test prior to the appointment of officials and temporary employees. This question, it states, was not discussed in the proceedings before the Court of First Instance where it was only a matter of the applicant' s assertion that he had been subjected to a concealed AIDS test. In support of its objection of inadmissibility the Commission relies on the judgment in Case
C-18/91P V v Parliament, in which the Court stated that:
"as follows from Articles 113(2) and 116(1) of the Rules of Procedure, fresh submissions not contained in the original application may not be raised in an appeal" (9) (my italics).
Articles 113(1) and 116(1) of the Rules of Procedure provide that a different form of order from that sought at first instance shall not be sought in an appeal.
I do not think there is any reason to declare the appellant' s first plea in law inadmissible. There is no doubt that he has complied with Articles 113(1) and 116(1) of the Rules of Procedure since the form of order sought on appeal (declaration that the decision not to appoint him is void and claim for compensation) is the same as that sought at first instance. But the first plea in law, relating to infringement of the right to protection of private life, as guaranteed by Article 8 of the Convention, is not new either. (10) The applicant raised this matter already at first instance, as is perfectly clear from the contested judgment. (11) It is true that he has elaborated this plea further on appeal, inter alia by going further into the general meaning and structure of Article 8 of the Convention and by formulating a number of additional arguments, such as precisely the argument with regard to the incompatibility with Article 8 of AIDS tests on recruitment. With regard to such new arguments the Court decided in a judgment as long ago as 12 June 1958 that:
"a distinction must be drawn between the introduction of new submissions in the course of the proceedings and, on the other hand, the introduction of certain new arguments. In the present case the Court' s view is that the applicant did not introduce new submissions but merely developed those made in its application by invoking a number of arguments, some of which were adduced for the first time in the reply. In those circumstances there is nothing to prevent the Court from considering them". (12)
That judgment seems to me to be entirely applicable to this case. I therefore propose to the Court that the Commission' s objection of inadmissibility should be rejected, and shall now proceed to analyse the various parts of the appellant' s first plea in law.
First part: permissibility of AIDS tests on recruitment
14. This part may itself be divided into two sub-divisions. The first (section 15 below) concerns the statement of the Court of First Instance that AIDS tests may be effected on a candidate for appointment if he has expressly given his consent; the second sub-division (section 16 below) concerns the conclusions drawn by the Court of First Instance from the finding that the applicant' s own doctor did not arrange for the supplementary tests suggested by the medical officer.
15. In paragraph 58 of the contested judgment, already quoted (section 9 above) the Court of First Instance stated that
"the taking of blood in order to investigate the possible presence of HIV antibodies constitutes interference with the physical integrity of the person concerned and can be carried out on a candidate only with his informed consent" (in French: "avec le consentement éclairé de celui-ci").
According to the appellant, the Court of First Instance is thus suggesting that an HIV antibodies test (hereinafter referred to as "an HIV test") as part of the recruitment procedure is compatible with Article 8 of the Convention if the person concerned expressly agrees to it. That, he states, is an infringement of Article 8 of the Convention which is so compelling that even the consent of the person concerned cannot justify any interference with his private life which is incompatible with that article.
In answer to that argument the Commission states first that its practice of offering candidates on the occasion of their medical examination on recruitment an optional HIV test and informing them that an asymptomatic HIV positive result does not entail rejection for physical unfitness ° though "the later stage of clinical signs of the illness" does ° is fully in accord with the points of view adopted by the Council and the Governments of the Member States on screening tests. (13) The Commission adds that it would be lacking in a recognized public health duty if it were not to offer an HIV test on the occasion of the medical examination on recruitment and the annual medical check-up.
Although the appellant' s statement, by its absolute nature, and the Commission' s last statement (14) seem to me to be questionable, I agree with the Commission that the appellant' s argument cannot be upheld because it refers to a statement in the contested judgment which in no way serves as a basis for the operative part of the judgment. The contested judgment contains no finding of fact to the effect that the applicant was subjected to an HIV test with his express consent (it appears incontestably from the facts established that that was not the case) and a fortiori nowhere indicates that the test was rightly carried out.
16. The second sub-division of the first part of the appellant' s first plea in law relates to paragraph 51 of the contested judgment, quoted in section 8 above. From its finding that the applicant' s own doctor did not arrange for the supplementary HIV tests (15) suggested by the medical officer, the Court of First Instance, he states, wrongly deduced in that paragraph that his own doctor did not cooperate with the Medical Committee. In fact, according to the appellant, his own doctor could not carry out the proposed examinations because Article 8 of the Convention prevents any HIV test as part of an examination on recruitment and thus also an HIV test effected by a candidate' s own doctor. By failing to acknowledge that, the Court of First Instance infringed Article 8 of the Convention.
It is perhaps possible to see in the passage referred to by the appellant from paragraph 51 an indication that the Court of First Instance saw no objection to a candidate for appointment being required to undergo an HIV test carried out by his own doctor and that a refusal to do so might lead to the rejection of the candidate. However, I regard such an interpretation as rather implausible, seeing that the Court actually stated later, in paragraph 58 of the contested judgment, that an AIDS test constitutes an interference with the physical integrity of the person concerned and may be carried out on a candidate only with his informed consent (see above, sections 8 and 9 in which the paragraphs in question are quoted).
In my view the passage referred to implies nothing more than that for whatever reason the applicant' s own doctor chose not to submit any opinion either of his own or of another doctor to the Medical Committee, from which the Court of First Instance deduced his failure to cooperate. The consequence of this, according to the Court, was that the applicant could not produce to it for the first time supplementary medical opinions (the third plea in law, to be considered later, deals with this point: below, section 32 et seq.). Considered in the context of this reasoning, the appellant' s interpretation of the passage in question is by no means of such a nature as to affect the final decision arrived at by the Court of First Instance in paragraph 51. That plea must therefore be rejected.
Second part: proof that an AIDS test was carried out
17. With the second part of his first plea in law the appellant challenges the statement of the Court of First Instance in paragraph 58 of the contested judgment (section 9 above) that "the applicant in this case has not established that he was, without his knowledge, subjected to a specific AIDS screening test".
The applicant had already stated at first instance that he had been subjected to a concealed AIDS test. More specifically, he was subjected to a T4/T8 lymphocyte count (hereinafter referred to as a "T4/T8" test) for the sole reason that he had refused to undergo a "normal" HIV test. The fact that the T4/T8 test was applied as an alternative method of HIV testing is incompatible, he claims, with Article 8 of the Convention and with the Commission' s stated practice of not systematically testing for HIV. In this connection the appellant draws attention, as he did before the Court of First Instance, to a report drawn up on the occasion of a meeting of the Commission' s medical officers on 5 June 1989 stating in point 8 that in the event of refusal of the HIV test the following tests were to be applied: T4/T8 lymphocyte count, electrophoresis of proteins and IgA, IgG and IgM.
18. The Commission contends that this part of the appellant' s first plea in law is inadmissible because, contrary to Article 168A of the EC Treaty and Article 51 of the Protocol on the Statute of the Court of Justice of the EEC, (16) it amounts to calling in question once more a finding of fact by the Court of First Instance ° more specifically the Court' s finding that it was not shown that the T4/T8 test constitutes a concealed AIDS test (see also section 24 below). In his reply the appellant makes it clear, however, that he is challenging only the statement of reasons on which the contested judgment was based, inasmuch as the Court of First Instance did not take into account the report of the meeting on 5 June 1989.
The Commission retorts that the Court of First Instance was indeed in possession of that report but was obviously convinced by the Commission' s explanations at first instance, according to which the wording of point 8 of the report (referred to in the foregoing section) was based upon an error, that the report was never approved by the Medical Service and that the statement at issue was contradicted in a memorandum of 11 August 1989 from the head of that service and in various public statements, including those from the President of the Commission and the Director General for Personnel and Administration. In accordance with the Medical Service' s settled practice, a T4/T8 test is carried out only where there are external signs of immune deficiency.
19. The fact that the Court of First Instance did indeed have knowledge of the report in question and of the applicant' s views thereon is clear from paragraph 31 of the contested judgment, worded as follows:
"In response to a request made by the Court at the hearing, the defendant lodged at the Registry of the Court of First Instance, on 20 May 1992, a report of the meeting of the doctors in the Commission' s Medical Service held on 15 June 1989 and a confidential memorandum from the head of that service dated 11 August 1989, addressed to Mr L. By letter of 27 May 1992, the applicant and the intervener submitted their observations on those documents. "
Moreover the Court of First Instance paid great attention to the parties' views and in paragraph 55 of the contested judgment reports the applicant' s viewpoint as follows:
"In the applicant' s view, Article 8 of the Human Rights Convention was infringed in his case, as were the abovementioned Conclusions of the Council and of the Ministers of Health, because he was subjected by the Commission Medical Service, against his will and without his knowledge, to a dissimulated AIDS screening test, that is to say a T4 and T8 lymphocyte count. The applicant maintains that, in current medical practice, that blood test is used only in the case of persons who are seropositive and, very exceptionally, people who have been exposed to radiation. Since the applicant displays no signs of irradiation, the Commission' s medical officer had no reason to subject him to a biological examination of that kind, which is not a suitable basis for a reliable diagnosis. According to the applicant, the only reason for the refusal to recruit him was therefore a mere suspicion that he was seropositive."
Paragraphs 56 and 57 of the contested judgment summarize the Commission' s arguments in reply as follows:
"With respect to the alleged infringement of Article 8 of the Human Rights Convention, the Commission contends that no screening test for AIDS is carried out in connection with the pre-recruitment medical examination without the informed consent of the candidate ...
Furthermore, the Commission contends that its medical officer never carried out a dissimulated HIV antibody screening test but that, having found a number of clinical signs that suggested an immune deficiency, he prescribed a number of blood tests to determine the immunoglobuline count, the lymphocyte count and the shortfall thereof ...".
Finally the fact that the Court of First Instance was convinced by these counter-arguments appears from this passage in paragraph 58:
"The applicant in this case has not established that he was, without his consent, subjected to a specific AIDS screening test or that he was requested to undergo such a test by the Commission as a precondition for his engagement. The applicant has likewise not shown that he was subjected to a dissimulated HIV antibody screening test, since the parties agree that the blood test in question, namely the T4/T8 lymphocyte count, is not capable of establishing whether a person is seropositive. Finally, it must be added that in the circumstances, having regard to the abnormalities found in the anamnesis and clinical examination, the medical officer was entitled to request that such a test be carried out."
20. It may be seen sufficiently clearly from the passages quoted from the contested judgment that the Court of First Instance did indeed take the applicant' s arguments into consideration ° and did take account in its reasoning of the report of the meeting of 5 June 1989 ° but that it rejected those arguments as being unfounded in fact. I conclude therefore that the second part of the appellant' s first plea in law must also be rejected.
Third part: permissibility of a T4/T8 test
21. The third part of the appellant' s first plea in law is directed against the statement of the Court of First Instance in paragraph 58 of the contested judgment "that in the circumstances, having regard to the abnormalities found in the anamnesis and clinical examination, the medical officer was entitled to request that such a test" (the T4/T8 test) "be carried out". The appellant claims that the Court of First Instance infringed Article 8 of the Convention by regarding it as unnecessary for a candidate in a situation such as his to give his informed consent to the carrying out of a T4/T8 test.
It is not contested that the appellant was in fact subjected to a T4/T8 test without his being individually and expressly informed thereof in advance and without his consent being sought. However, the Commission has argued both before the Court of First Instance and before the Court of Justice that these facts do not constitute an infringement of Article 8 of the Convention because the medical officer, in the course of completing his examination, had effected a T4/T8 test only after he had observed external signs of immune deficiency and because a candidate who agrees to undergo an examination on recruitment consents by implication but unequivocally to the medical officer' s completing his task, that is to say investigating whether the candidate meets the requirement of physical fitness. Moreover a T4/T8 test is fundamentally different from an HIV test, which does in fact require the candidate' s specific and express consent.
The Court of First Instance concurs in the contested judgment with the Commission' s point of view. In paragraphs 56 to 59 it states to begin with that an HIV test in fact constitutes an interference with physical integrity and may be carried out on a candidate only with his informed consent, but that in this case no such test was carried out. Next it states that in the circumstances of the case the medical officer was entitled to request a T4/T8 test, and decides that there was no infringement of Article 8 of the Convention.
22. It seems to me important, before analysing in detail the third part of the appellant' s first plea in law, to define the legal issue which it raises. In my view the only question is whether, when certain facts which might indicate immune deficiency have come to light during a medical examination, the Commission may carry out a T4/T8 test (and, partly on the basis of the negative results obtained, may refuse appointment) in the case of a candidate for recruitment as an official or other member of staff without informing the candidate in advance or seeking that person' s consent and in the knowledge that the candidate has expressly refused to undergo an HIV test. That is the only question I shall consider here and only in the context of the specific facts of the case as they were established by the Court of First Instance including for example the fact that the appellant was a candidate for a six-month appointment.
First of all (sections 23 and 24 below) I shall consider whether there was an interference with the appellant' s private life (and the related right to medical confidentiality) inasmuch as, with a view to his recruitment by the Commission, a T4/T8 test was carried out on the appellant without his informed consent being sought in advance. In the event of an answer in the affirmative I shall then (sections 25 to 29 below) inquire whether or not this interference was justified. This supplementary investigation is necessary because the right to respect for private life and to protection of medical confidentiality are not absolute rights, as the Court of Justice stated in the aforementioned judgment in Case C-62/90:
"Those rights, however, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed." (17)
In considering whether there has been interference with private life I shall have regard, as the parties have done before the Court of Justice, to the judgments of the European Court of Human Rights and the opinions of the European Commission of Human Rights.
23. The appellant rightly points out that two aspects of his private life ° his physical integrity or inviolability (18) and the right to decide for himself to whom he will divulge information with regard to his state of health ° are affected by the carrying out of tests such as that to which he was subjected (the T4/T8 test) or which were suggested to him (the HIV test) as well as by the consequences attached to such tests or to the refusal to undergo them.
The fundamental right of respect for private life covers in principle the protection of both these aspects of private life. (19) However, the Commission states that in this case the appellant cannot invoke this fundamental right: by consciously choosing to take part in a recruitment procedure which includes a medical examination he has assented to interference in his private life. In support of its viewpoint the Commission refers to the following passage from a report of 1977 by the Commission of Human Rights:
"The claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests." (20)
It seems to me that this argument of the Commission must be examined on the basis of the principle of medical law in accordance with which the informed consent of the person concerned is required for any medical action (treatment, examination, test or experiment). This principle, frequently referred to by the expression "informed consent", which comes from the United States, (21) appears to be generally accepted in the medical law of the Member States (22) and is generally deduced from the right to physical integrity and from a (wider) right of self-determination. (23)
24. The requirement of informed consent entails two closely-related aspects: sufficient information must be provided for the consent of the individual concerned to be complete, which means to enable consent to be given in knowledge of the facts. (24) Both the failure to give sufficient information and the failure to seek the consent of the individual concerned may therefore entail interference with the right to respect for private life. The question whether the requirements of information and consent are met must be determined in the specific case on the basis of factors such as the physical or psychological impact (the nature) of the medical treatment, whether it is usual or unusual (its seriousness) and the implications, for the person concerned and his circle, of the knowledge obtained as a result of this treatment. Depending on the specific context, information and consent, in the case of commonplace, routine or minor treatment, may be relatively quickly assumed to be (by implication) present or to follow naturally upon one another, whereas with more invasive, serious or potentially far-reaching forms of treatment more detailed or in-depth information and more explicit consent are required.
The Commission' s statement that it follows by definition from the mere decision to take part in a recruitment procedure with a medical examination that no unacceptable interference with the protected private life of the applicant can take place during that medical examination seems to me to conflict with the specific appreciation inherent in the requirement of informed consent. In the light of the considerations mentioned in the previous paragraph it does indeed seem to me that in the specific circumstances of this case that requirement is inconsistent with the manner in which the appellant was subjected to a T4/T8 test. Apart from the factual question whether or not the T4/T8 test constitutes a concealed AIDS test, (25) it is established that the medical officer, followed in this matter by the Medical Committee and the Commission itself, attached (and from the beginning intended to attach) very far-reaching consequences to the outcome of the T4/T8 test. Inter alia ° and, as far as can be seen, above all ° the medical officer took the view on the basis of the outcome of that test that the appellant was in the terminal stage of AIDS ("full-blown AIDS") (26) and was therefore physically unfit for recruitment even for a temporary post of six months. Moreover it is not possible to regard the T4/T8 test as a normal incident in the context of a medical examination upon recruitment since, as the Court of First Instance itself stated, the medical officer decided to carry out the test only after, and because, he had noted a number of possible symptoms of immune deficiency. Finally the appellant had expressly refused to undergo an HIV test.
The requirement of informed consent demands, in my view, that the appellant (in person or through his own doctor) should be informed in such circumstances of the proposal to effect a T4/T8 test and should be acquainted with the scope of the test and the possible consequences of carrying it out or of refusing to undergo it. Of course an appreciation of "such circumstances" involves a finding of fact and is thus a matter for the Court of First Instance. The fact that that Court entirely omitted to make such an appreciation and thus did not think it necessary to put the requirement of informed consent to the test constitutes, however, an infringement of the law since, as previously stated, it is clear that there may in certain circumstances be interference with the appellant' s private life and with the right to medical confidentiality which is part thereof provided that it is not possible to invoke any justification in law for such interference.
25. The fact that there may be such interference as already defined is not sufficient to conclude that there has been an infringement of the right to protection of private life and the right to medical confidentiality. According to the case-law of the Court, (27) those rights may be restricted provided that such restrictions do in fact correspond to objectives of general interest pursued by the Community and do not constitute with regard to the objectives pursued a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. The provisions of Article 8(2) of the Convention, previously quoted in section 12, are guidelines for this purpose: according to those provisions, interference by a public authority in private life may be justified if it is "in accordance with the law", pursues one or more of the objectives set out ° exclusively (28) ° in Article 8(2) of the Convention and "is necessary in a democratic society" for attaining the objective or objectives pursued. That last condition means that interference in private life may not go further than necessary but must on the contrary be proportionate to the aim pursued. (29) I shall now consider whether in this case the three conditions set out in Article 8(2) of the Convention are met. (30)
26. As regards the first condition, it must be noted that, according to Article 12(2)(d) of the Conditions of Employment and Article 28(e) of the Staff Regulations, an official or a member of the temporary staff may be appointed only on condition that "he is physically fit to perform his duties", whilst the first paragraph of Article 13 of the Conditions of Employment and the first paragraph of Article 33 of the Staff Regulations provide that before being engaged a successful candidate:
" ... shall be medically examined by one of the institution' s medical officers in order that the institution may be satisfied that he fulfils the requirements" of the relevant article.
According to the appellant and the International Federation those provisions are not a sufficient legal basis because they are not sufficiently accessible and precise. (31) I cannot agree with that. The accessibility of the Conditions of Employment and the Staff Regulations is ensured by the fact that both legal texts have been approved by the Council in accordance with the appropriate procedures and published in the Official Journal. (32) The Commission points out in addition that competition notices invariably mention the obligation to undergo a medical examination. As regards precision and predictability, the argument of the appellant and the International Federation that every medical examination carried out in connection with a recruitment procedure must be separately and expressly provided for by law seems to me obviously wrong.
27. As regards the second condition with which interference in private life must comply in order to be justifiable under Article 8(2) of the Convention, the Commission argues in the first place that the medical examination is for the protection of health. In principle I can agree: in so far as the obligation for a candidate for appointment to undergo a medical examination prevents his being recruited to a post which might damage his state of health, the examination does indeed serve to protect health. Moreover the appointment of a person who, in view of his state of health, would not be able to perform his duties properly may result in overwork and additional stress for colleagues so that the medical examination may be regarded also as protecting the health of other persons. (33)
Next the Commission refers, in the rejoinder and in the response to the observations of the International Federation, to the "economic well-being of the country". According to the Commission, the practice of medical examination upon recruitment of members of staff corresponds to a social choice generally accepted in Europe with regard to the distribution of social burdens (and more specifically of the costs of sickness and invalidity), namely that an employer does not have to bear the economic cost of sickness or invalidity resulting from a risk which the employee incurred before his recruitment. That argument does not convince me: the "social choice" to which the Commission refers need not necessarily involve a refusal of appointment but may be effected by recourse to the second paragraph of Article 28 of the Conditions of Employment. According to that provision, if the medical examination shows the candidate to be suffering from sickness or invalidity, the appointing authority "may decide that expenses arising from such sickness or invalidity are to be excluded from the reimbursement of expenditure" relating to sickness cover.
Finally the Commission invokes "the rights and liberties of others". More specifically the Community institutions have, it claims, the right to ensure the physical fitness of their staff for the duties assigned to them. This argument too seems to me to be in general acceptable. It is not only the Community institutions which have a direct interest in the proper functioning of their services performing tasks of public utility but the citizens too. Such proper functioning is compromised if the services are performed by employees who are frequently absent on grounds of ill-health.
However, the question is whether, in this specific case, the Commission can reasonably rely on the two grounds of justification which, as just stated, are in principle regarded as acceptable, in view of the fact that it is clear that the appellant was seeking only an appointment for a period of six months and it was doubtful whether in that short period his health would have changed so rapidly as to make him physically unfit for that appointment. That brings us to the third condition, the requirement of proportionality.
28. An interference in a person' s private life ° more specifically with his physical integrity and right not to communicate to third persons facts concerning his state of health ° which, as in this case, may be justified on grounds of the protection of the health or the rights and liberties of others, or both, complies with the requirement of proportionality if it is not disproportionate to the objective pursued by the interference and does not infringe upon the very substance of the right guaranteed.
It seems to me that the Commission' s conduct ° in having a T4/T8 test carried out without informing the appellant and without his knowledge, with a view to his appointment to a temporary post for six months and in spite of his express refusal to undergo an HIV test ° is in no way proportional to the objective pursued, which consists in checking physical fitness for the post involved for the purpose of protecting the appellant' s health and the health and rights of others. A clinical examination (supplemented by the usual biological tests) effected on the basis of the general consent of the person concerned to undergo a medical examination with a view to appointment is undeniably proportionate to that objective. The position is different however if, on the occasion of that examination, findings are made with make a more searching examination necessary. In such a case the doctor must ask the person concerned for permission and give him or at least his own doctor (if the medical officer, in view of the seriousness of the findings, expects an unfavourable psychological reaction from the patient) the necessary information so that consent may be given in full knowledge of the facts. That is so particularly where the more searching examination includes a test which, whilst not an HIV test, nevertheless constitutes an immune deficiency test, the findings from which may point to the presence of the AIDS virus, and where the person concerned has refused to undergo an HIV test. (34)
The foregoing considerations relate particularly to the right to physical integrity. As regards the other aspect of the protection of private life which arises here, namely the right that facts concerning a person' s state of health should not be communicated to third persons (in this case the future employer), it is still more obvious that the requirement of proportionality is not met if, without the informed consent of the person concerned having been obtained, facts come to light by means of a more thorough medical examination than is normal, and are brought to the attention of the future employer. As a result of the failure to obtain informed consent for the communication of such medical facts, the protected right is infringed in substance.
29. Since the requirement of proportionality recognized in the case-law of the Court of Justice and in Article 8(2) of the Convention is thus not met, I can only come to the conclusion that the third part of the appellant' s first plea in law must be accepted as well founded.
Second plea in law on appeal: contradictory statement of the reasons on which the contested judgment is based
30. A distinction must be made between two parts of the appellant' s second plea in law. The first part alleges a contradiction in the grounds of the contested judgment. He claims that the finding in paragraph 58 of the judgment:
"that in the circumstances, having regard to the abnormalities found in the anamnesis and clinical examination, the medical officer was entitled to request that such a test be carried out"
° that is to say, a T4/T8 lymphocyte count ° contradicts the principle set out in paragraph 45 of the judgment that:
"the Court may not substitute its own judgment for the medical opinion on specifically medical matters".
The second part of this plea relates to paragraph 45 of the contested judgment in which it is stated that it is for the Court
"in carrying out the task specifically assigned to it, to verify whether the recruitment procedure followed a lawful course and, more particularly, to consider whether the appointing authority' s decision refusing to recruit a candidate on grounds of physical unfitness is based on a medical opinion which incorporates a statement of reasons establishing a comprehensible link between the medical findings which it contains and the conclusion as to unfitness which it draws" (my italics).
According to the appellant the medical opinion in this case did not establish any comprehensible link. The medical officer and the Medical Committee merely noted the existence of an immune deficiency without explaining its origin.
31. As regards the first part of the appellant' s second plea in law, I do not regard the passages quoted from paragraphs 58 and 45 as being contradictory. In my view, the finding in question in paragraph 58 of the contested judgment is taken out of context by the appellant. In that paragraph the Court of First Instance was dealing with the applicant' s third plea in law at first instance regarding the infringement of Article 8 of the Convention. With its finding that the medical officer was entitled to request that a T4/T8 test be carried out, the Court simply wished to state (wrongly in my view, as has already been shown) that it did not regard an infringement of Article 8 of the Convention as proved and by no means wished to give a medical opinion.
I agree with the Commission that the second part of the second plea is inadmissible because it calls in question again findings of fact made by the Court of First Instance. (35) In paragraph 51 of the contested judgment (section 8 above) that Court stated unequivocally that the medical opinion established a comprehensible link between the medical findings which it contained and the conclusion as to unfitness which it drew. As may be seen from the Vidrányi judgment of 1 October 1991, (36) that constitutes a finding of fact on the part of the Court of First Instance from which no appeal lies. In connection with a similar plea in law also put forward in an appeal, the Court of Justice stated:
"With regard to the appellant' s second submission, it is sufficient to point out that Mr Vidrányi disputes the Court of First Instance' s appraisal of the facts which led it to declare that the medical report established a comprehensible link between the findings which it made and the conclusion to which it led.
... such an appraisal of the facts cannot be reviewed by the Court, which has jurisdiction only to examine whether the contested judgment complied with the rules of law.
It follows that that plea also is inadmissible." (37)
Having regard to the foregoing considerations, I conclude that both parts of the second plea in law must be rejected.
Third plea in law on appeal: infringement of the right to a fair hearing
32. The appellant' s third plea in law relates to paragraphs 44 and 51 of the contested judgment. In paragraph 44 the Court of First Instance lays down the following principle:
"If the person concerned wishes to challenge the merits of the negative opinion of the medical officer, he must forward the opinion of his doctor to the Medical Committee, together with all supporting medical documents, and, if appropriate, request that his doctor be heard by the Medical Committee. The purpose of the procedure provided for by the second paragraph of Article 33 of the Staff Regulations is to facilitate a review of the negative medical opinion by a body established under the Staff Regulations, which must give a final opinion as to the physical fitness of the candidate, having regard to all the documents which, at that time, are contained in the medical file of the person concerned."
In paragraph 51 the Court of First Instance applied that principle as follows to the circumstances of the case:
"The applicant, whose doctor did not cooperate with the Medical Committee, is not entitled to challenge the statement of the reasons for the refusal to recruit him by producing to the Court for the first time medical opinions which were not submitted in due time for consideration by that committee. Accordingly, the applicant' s allegations concerning the legality and adequacy of the statement of the reasons for the contested decision must be rejected."
33. The appellant, supported on this point by the Union Syndicale and the International Federation, argues that the Court' s refusal to check the validity of the Medical Committee' s opinion and the statement of the reasons on which it was based in the light of the medical opinions which he had produced is incompatible with the right to a fair hearing as guaranteed by Article 6 of the Convention. That article guarantees to everyone, when a question arises as to "the determination of his civil rights and obligations", in particular the right "to a fair ... hearing ... by an independent and impartial tribunal". The Medical Committee, it is contended, is by no means independent since in the words of the second paragraph of Article 33 of the Staff Regulations, (38) it is "composed of three doctors chosen by the appointing authority from among the institution' s medical officers" (my italics). In those circumstances, the appellant states, the Court of First Instance has infringed the right to a fair hearing by declaring that the Medical Committee must give "a final opinion" as to the physical fitness of a candidate.
34. The Commission argues primarily that the appellant' s plea is new ° the incompatibility of the second paragraph of Article 33 of the Staff Regulations with Article 6 of the Convention was raised only before the Court of Justice ° and is therefore inadmissible. Let me say straight away that I cannot agree with that. At first instance the applicant' s first plea in law concerned the infringement of his right to a fair hearing, and his second plea in law the statement of reasons on which the Commission' s refusal was based. The Court of First Instance rejected both those pleas in law, inter alia on the basis of the consideration that the applicant cannot produce medical opinions for the first time before the Court of First Instance. By contesting that decision now before the Court of Justice the appellant is, by implication but unmistakably, referring back to his pleas in law at first instance. I regard the fact that the appellant now refers for the first time to Article 6 of the Convention as a subsidiary matter in view of what is stated below (in section 35), namely that the right to a fair hearing, as a general principle, forms part of Community law quite apart from that article. There can therefore be no question of an inadmissible new plea in law being raised. (39)
As regards the substance of the plea, the Commission contends that the doctors in its Medical Service enjoy full freedom of assessment, guaranteed by the Court, with regard to their medical conclusions. In its judgment in Joined Cases 59 and 129/80 Turner v Commission the Court stated:
"The administration has the right to define the nature and the scope of the various medical tasks arising in those different areas, save only that it may not impair the independence of judgment and decision of the doctors whom it employs when they are carrying out the duties assigned to them in that framework as thus defined and when they are required to carry out certain kinds of medical work of a preventive or therapeutic nature on their own responsibility.
Those principles also apply to the practice of conducting medical examinations of new staff. It is for the administration to determine the nature and scope of the examinations and to give appropriate instructions to the doctors responsible for undertaking them. Within that framework doctors enjoy freedom of assessment in regard to their medical findings and assessment of the fitness of candidates." (40)
Finally the Commission states that the file in this case does not contain the least suggestion that the Medical Committee did not come to its decision with all the objectivity and impartiality required.
35. First I should like to emphasize that the right to a fair hearing is not guaranteed simply by Article 6 of the Convention on which the appellant' s observations are centred but also constitutes a general principle of law (41) (more specifically expressed in Article 6 of the Convention) the observance of which the Court of Justice and the Court of First Instance have always ensured -in staff cases as well as others. (42) The Court of Justice can therefore consider the appellant' s third plea in law without first going into the controversial (43) question of whether this case actually concerns a "determination of civil rights and obligations" within the meaning of Article 6 of the Convention.
It seems to me, without wishing to call in question the Commission' s statements with regard to the freedom of assessment of the doctors in its Medical Service and the objectivity and impartiality of the Medical Committee (which moreover the appellant does not do), that the composition of the Medical Committee may give at least an appearance of dependence or partiality. (44) That does not in itself constitute an infringement of the right to a fair hearing, although even an appearance of dependence is best avoided. (45) The Court of Human Rights and the Commission of Human Rights, in their case-law on Article 6 of the Convention, have accepted that certain litigation may be dealt with at first instance by bodies, in particular administrative bodies, which do not comply with all the requirements of Article 6 of the Convention. In this connection, however, they stress ° and I think that this must apply equally as regards the right to a fair hearing in Community law ° that an appeal must be available against the decisions of such bodies to a judicial body which fully complies with the requirements of Article 6 of the Convention and has sufficiently wide jurisdiction to review the legality of the contested decision. (46)
36. In the light of the foregoing, the appellant' s third plea in law raises the question whether the Court of First Instance, by refusing to go into medical opinions (and arguments based on them) which had not first been submitted to the Medical Committee, has assessed too narrowly the scope of its judicial review of the decision of the Medical Committee and has thus infringed the appellant' s right to a fair hearing. I think that question must be answered in the negative.
As both the Court of Justice and the Court of First Instance have consistently held, the review by the Community judicature of the decisions of a Medical Committee cannot extend to the actual medical appraisals made by the committee, but can relate only to the legality of its composition and decision-making. (47) The conclusions of a Medical Committee must therefore be regarded by the Community judicature as definitive provided that they have been arrived at in circumstances which are not irregular. (48)
37. In the contested judgment the Court of First Instance correctly recapitulates the principles of Community law just mentioned. In paragraph 45 it states that
"the Court may not substitute its own judgment for the medical opinion on specifically medical matters. However, it is for the Court, in carrying out the task specifically assigned to it, to verify whether the recruitment procedure followed a lawful course and, more particularly, to consider whether the appointing authority' s decision refusing to recruit a candidate on grounds of physical unfitness is based on a medical opinion which incorporates a statement of reasons establishing a comprehensible link between the medical findings which it contains and the conclusion as to unfitness which it draws (judgment in Case 155/78, cited above, paragraph 14; see also Case 189/82 Seiler and Others v Council [1984] ECR 229, paragraph 15)."
Did the Court of First Instance fail in that task by refusing to take cognizance of medical opinions which had not first been submitted to the Medical Committee? I do not think so. Before elucidating this, it seems to me appropriate to recall the text of the second paragraph of Article 33 of the Staff Regulations (as the Court of First Instance did in paragraph 41 of the contested judgment, quoted in section 6 above). That provision is worded as follows:
"Where a negative medical opinion is given as a result of the medical examination provided for in the first paragraph, the candidate may, within 20 days of being notified of this opinion by the institution, request that his case be submitted for the opinion of a medical committee composed of three doctors chosen by the appointing authority from among the institution' s medical officers. The medical officer responsible for the initial negative opinion shall be heard by the Medical Committee. The candidate may refer the opinion of a doctor of his choice to the Medical Committee. Where the opinion of the Medical Committee confirms the conclusions of the medical examination provided for in the first paragraph, the candidate shall pay 50% of the fees and of the incidental costs."
38. It was for the appellant, if he wished, in accordance with that paragraph of Article 33 of the Staff Regulations (and as in fact he did by letter of 9 April 1989), to submit his case to a Medical Committee and then, if he wished, to submit to the committee the opinion of a doctor of his choice. The appellant did not take the latter course, although he had already been informed on 22 March 1989 of the unfavourable opinion of the medical officer and had been asked for the name, address and telephone number of his own doctor (the same doctor with whom the medical officer had then made contact by telephone on 5 April 1989: see paragraph 47 of the contested judgment, quoted in section 2 above). Nor did the appellant by 26 May 1989, the date on which ° as he had been informed (see paragraph 9 of the contested judgment, quoted in section 2) ° the Medical Committee was to meet, provide the committee with the medical opinion of a doctor of his choice. However, the Head of the Commission Medical Service had insistently requested the appellant to send him all reports or medical documentation which he wished to submit to the Medical Committee (ibid.).
It was in the light of these findings ° and of the finding that the applicant' s own doctor had been informed of the reasons for the opinion that he was unfit and had received all the details concerning the signs which had come to light in the anamnesis and the clinical examination, together with a complete copy of the results of the blood tests carried out on the applicant (see paragraph 48 of the contested judgment, quoted in section 7) ° that the Court of First Instance had come to the conclusion in paragraph 50 that the applicant' s right to a fair hearing had not been prejudiced "by the fact that the Medical Committee failed to hear his own doctor and did not consider it appropriate to undertake a clinical examination itself". The Court added: "As has been pointed out, it is for the candidate who has the matter referred to the Medical Committee to request a hearing of his own doctor".
39. The refusal of the Court of First Instance to take cognizance of medical opinions which were not first submitted to the Medical Committee is based on its appreciation of the findings already mentioned. Paragraph 51 of the contested judgment is worded as follows:
"It must be stated, first, that the applicant' s doctor did not arrange for the additional tests suggested by the medical officer to determine the origin of the applicant' s immune deficiency and, secondly, that the latter did not place before the Medical Committee the opinion of any doctor, either his own or another. In those circumstances, this Court considers that the applicant, whose doctor did not cooperate with the Medical Committee, is not entitled to challenge the statement of the reasons for the refusal to recruit him by producing to the Court for the first time medical opinions which were not submitted in due time for consideration by that committee."
I cannot find in that reasoning by the Court of First Instance any infringement of law or more specifically any failure in the Court' s task of reviewing the regularity of the Medical Committee' s decision-making process. In my opinion the Court of First Instance correctly formed the view that a candidate for appointment who has requested a fresh examination of his case by a Medical Committee must himself take the initiative, if he so wishes, to provide the committee with supplementary opinions by a doctor of his choice and to request the committee to hear that doctor. By neglecting to do that, the applicant acquiesced in the committee' s carrying out its investigation on the basis of the information known to it and the applicant (and his own doctor). It is therefore only on the basis of that information that the Court of First Instance can and must carry out its judicial review. The appellant' s third plea in law must therefore be rejected. If the Court of Justice were to take a different view and to accept that the applicant was entitled to provide the Court of First Instance for the first time with supplementary medical documents which it had to review, then that Court would unavoidably be compelled to substitute its appraisal for that of a doctor, which it is not empowered to do.
Further course of the proceedings and the claim for compensation
40. It may be seen from the foregoing that I regard the third part of the first plea in law on appeal to be admissible and well founded. If the Court agrees with me in this, it must to that extent quash the contested judgment on the basis of Article 54 of the Protocol on the Statute of the Court of Justice of the EEC. It may itself then give final judgment if it regards the state of the proceedings as so permitting or refer the case back to the Court of First Instance for judgment.
In Case T-121/89 the applicant requested the Court of First Instance to annul primarily (49) the letter of 6 June 1989 in which the Commission' s Director General for Personnel and Administration informed him that the Medical Committee had confirmed the opinion of the medical officer of 22 March 1989 and that on the basis thereof the Commission considered that the applicant did not fulfil the conditions of physical fitness for appointment. In Case T-13/90 he sought payment by the Commission of a lump sum of BFR 10 000 000 as compensation for the damage which he alleged its officers had caused him.
As regards the appellant' s claim for annulment, which was the subject of Case
T-121/89, the Court has before it, in my view, all the matters of fact (as determined by the Court of First Instance) and of law which it needs to give final judgment itself. If the Court, as already proposed, holds the third part of the appellant' s first plea in law to be admissible and well founded, it must accede to the appellant' s claim for annulment of the letter of 6 June 1989. That letter is in fact vitiated by illegality in view of the fact that the decision contained therein is based on medical opinions which have infringed the appellant' s right to protection of his private life by subjecting him without his informed consent to a T4/T8 count.
41. As regards the claim for compensation, a distinction must be made between the appellant' s claims in Case T-121/89 and those in T-13/90. In Case T-121/89 the appellant stated before the Court of First Instance (see paragraph 73 of the contested judgment, quoted in section 10 above) that if his application for annulment in that case were upheld, that would constitute sufficient reparation for the material damage caused him by the measures to be annulled. In that case he therefore made no application to the Court of First Instance for the reparation of that damage. In Case T-13/90 he claimed, apart from the annulment of the contested measures, an order that the Commission should pay him a lump sum of BFR 10 000 000 as compensation for non-material damage which he claims to have suffered owing to the Commission' s conduct. In his appeal the appellant claims that the contested judgment should be quashed and that his claims at first instance be upheld.
From that I deduce that, in the appellant' s view, if the letter of 6 June 1989 referred to in Case T-121/89 were to be annulled, judgment would at the same time be given as to any material damage arising therefrom. As the appellant is not claiming any compensation for that, the Court would be acting ultra petita if it were to award any.
42. There remains the appellant' s claim for compensation for non-material damage, the subject of Case T-13/90. In the proceedings before the Court of First Instance, the appellant gave the reasons for this claim as follows:
"The applicant has suffered serious non-material damage as a result of the accusations made against him by the Commission' s medical officer.
These accusations, which might have had serious consequences both morally and psychologically, caused and continue to cause the applicant damage which the Commission is required to make good.
Finally the Commission published in the Official Journal a summary of the claims and pleas in law put forward by the applicant in his claim for annulment.
By publishing in the preamble to that document the initials of the applicant and his place of residence in Portugal, the Commission has infringed the principle of strict confidentiality which it should have observed in such a delicate matter.
In so doing the Commission has committed a further wrongful act towards the applicant and once more failed in its duty of care towards him."
It may be seen from that quotation that the appellant is demanding compensation for non-material damage for two reasons: first because the medical officer made "accusations" against him (I assume that by that he means primarily the diagnosis of "full-blown AIDS"), and secondly because the Commission has failed in its duty of confidentiality. (50) In his reply lodged before the Court of First Instance in Case T-13/90 the applicant specifies in greater detail the exact nature of that infringement.
43. In paragraph 74 of the contested judgment (quoted in section 10 above) the Court of First Instance rejected the applicant' s claim for compensation for non-material damage on the ground that it was closely connected with the claim for annulment which the Court had rejected as unfounded. "The applicant", it is stated in paragraph 74, "has not put forward any plea capable of securing the annulment of the contested decision and has thus not established any irregularity which might constitute a wrongful act or omission on the part of the Commission".
If the Court of Justice, as proposed above, accepts the third part of the first plea in law on appeal and finds the appellant' s claim for annulment, on those grounds, admissible and well founded, his claim for compensation for non-material damage can naturally no longer be rejected for the sole reason that that claim is closely linked to the claim for annulment. The justification of the claim for compensation for non-material damage will then necessarily have to be considered afresh on condition, of course, that it is previously established that the claim is admissible.
44. As regards its admissibility it must be observed that the admissibility of a claim for annulment entails in principle the admissibility of a claim for compensation closely connected therewith. (51) In the very recent judgments in Cases T-3/92 and T-82/91 the Court of First Instance confirmed this principle, in my view correctly, as follows:
"it is only where a direct link exists between an action for annulment and an action for damages that the latter action is admissible as being ancillary to the action for annulment without its necessarily having to be preceded by a request made to the appointing authority for compensation for the damage allegedly suffered and by a complaint challenging the correctness of the implied or express rejection of the request." (52)
Since the admissibility of the appellant' s claim for annulment is established (and moreover was not called in question by the Court of First Instance), it must be deduced from the case-law quoted above that the appellant' s claim for compensation for non-material damage is also admissible inasmuch as it is closely connected with the claim for annulment. In so far as the appellant claims compensation for the non-material damage which, he alleges, results from the conduct of the medical officer on which the Commission' s refusal to recognize his physical fitness is based (section 42 above), such a close link with the application for annulment does, in my view, exist, and his claim for compensation for non-material damage must be declared admissible. The Court of Justice, which has at its disposal all the matters of law necessary to give final judgment on this point, may itself establish such admissibility.
45. With his claim, however, the appellant is also seeking compensation for the non-material damage resulting from an alleged failure by the Commission to comply with its duty of confidentiality (section 42 above). In my view that aspect of the appellant' s claim for compensation for non-material damage is not closely connected with the claim for annulment since it is connected with conduct by the Commission other than that referred to in the application for annulment. (53) Its admissibility cannot therefore be deduced from the admissibility of the application for annulment but must be examined on the basis of principles which are to be traced back to the Staff Regulations and have been clarified in judgments of the Court of Justice and the Court of First Instance. In that respect the judgment in Case 200/87 Giordani v Commission, to which the Court of First Instance calls attention in paragraph 75, should in particular be taken into account. In that judgment the Court of Justice stated inter alia as follows with regard to the admissibility of a claim for compensation:
"It should be borne in mind that Articles 90 and 91 of the Staff Regulations have the effect of making an appeal admissible only if the administrative procedure prescribed in those provisions has first been duly followed. In cases such as the present one, in which an official seeks a decision by which the administration acknowledges its own infringement of Article 40(4)(d) of the Staff Regulations and consequently compensates him for the damage he has suffered as a result, the administrative procedure must be initiated by a request from the official concerned that the administration take that decision, in accordance with Article 90(1) of the Staff Regulations. The official may submit a complaint to the administration only against a decision rejecting that request, in accordance with Article 90(2)." (54)
In the same paragraph of the contested judgment (75) the Court of First Instance also refers to the judgment in Case T-5/90 Marcato v Commission in which it stated as follows with regard to situations in which ° as here ° there is no close link between a claim for compensation and a claim for annulment:
"The admissibility of the claim for compensation must be determined independently of that of the application for annulment. It should be noted in this regard that the admissibility of such an application is conditional upon the prior administrative procedure following the normal course, as laid down in Artcile 90 and 91 of the Staff Regulations.
Where, as in this case, the application is for the making good of damage allegedly caused by conduct which, having no legal effect, cannot be termed an act having an adverse effect on the official concerned, the administrative procedure must commence, pursuant to Article 90(1) of the Staff Regulations, with the submission of a request by the person concerned to the appointing authority for such damage to be made good. It is only against the decision rejecting such a request that the person concerned may submit a complaint to the administration, pursuant to Article 90(2)." (55)
46. In the light of that case-law it can only be concluded that in paragraph 75 of the contested judgment the Court of First Instance rightly decided that the applicant' s claim for compensation for the non-material damage resulting from a breach by the Commission of the principle of confidentiality was inadmissible. Since the Commission' s conduct resulting in the publication in the Official Journal of the applicant' s initials and address cannot be regarded as an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations, the applicant should first have submitted a request under Article 90(1) for the damage suffered as a result of that conduct to be made good and ° after its rejection ° have submitted a complaint to the Commission under Article 90(2). In this case he simply lodged a "supplemental" complaint on 4 September 1989 without previously having submitted to the Commission a request for compensation. If that "complaint" were to be construed as a prior request within the meaning of Article 90(1), then, as the contested judgment correctly states, the applicant did not lodge a complaint against the rejection of that request by the Commission' s decision of 27 November 1989 (which on that hypothesis would be the act adversely affecting him within the meaning of Article 90(2) of the Staff Regulations).
Accordingly "the administrative procedure did not follow that normal course, which is mandatory under the Staff Regulations" (56) and on that ground the contested judgment correctly decided that that part of the claim for compensation was inadmissible.
47. On the basis of the foregoing considerations I propose that the Court, giving judgment itself, should declare the appellant' s claim for compensation for non-material damage to be admissible, but only in so far as that claim is connected with the conduct of the medical officer on which the Commission' s refusal to recognize the appellant' s physical fitness is based.
Such a declaration of partial admissibility naturally implies no decision as to the validity of the claim for the payment of a lump sum of BFR 10 000 000 (which in any case was based on the two reasons mentioned in section 42 above, of which I regard only the first as admissible). In that respect it should be observed that hardly any arguments were put forward before either the Court of First Instance or the Court of Justice regarding the non-material damage which the appellant alleges that he suffered as a result of the conduct of the medical officer and of the Commission decision based thereon. In any event, any consideration of, in particular, the extent of the non-material damage suffered and the causal link between that damage and the unlawful nature of the Commission' s conduct constitutes an appreciation of fact which the Court of Justice has no jurisdiction to entertain in the context of an appeal. (57) I therefore propose that the Court of Justice refer the case back to the Court of First Instance for a decision as to the validity of the claim for compensation for the non-material damage which the appellant allegedly suffered as a result of the conduct of the medical officer and the Commission' s refusal, based thereon, to recognize the appellant' s physical fitness.
Costs
48. Finally as regards the costs of the proceedings, I can be brief. From the foregoing (proposal that the contested judgment be partially quashed and partially referred back to the Court of First Instance) it follows that the decision of the Court of First Instance on costs must be set aside. Under the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice, the Court is to make a decision as to costs "where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case". Since neither of those two situations applies, I propose that the decision as to costs be reserved.
Conclusion
49. In conclusion I propose that the Court should:
(1) declare the third part of the first plea in law on appeal admissible and well founded and reject the other parts of that plea and the remaining pleas;
(2) quash the contested judgment in so far as it declares that:
° the medical officer was entitled in the circumstances of the case to subject the appellant to a T4/T8 lymphocyte count;
° the parties should bear their own costs;
(3) giving judgment itself, annul the letter of 6 June 1989 in which the Commission' s Director General for Personnel and Administration informed the appellant that the Commission took the view that he did not comply with the conditions of physical fitness for recruitment;
(4) giving judgment itself, declare admissible the appellant' s claim for compensation for the non-material damage which he allegedly suffered as a result of the conduct of the medical officer and the Commission' s decision, based thereon, to regard him as physically unfit;
(5) refer the case back to the Court of First Instance for a decision as to the validity of the claim referred to in the foregoing subparagraph;
(6) reserve the costs.
(*) Original language: Dutch.
(1) ° [1992] ECR II-2195.
(2) ° On this point the facts in this case differ basically from the facts which formed the basis of the judgment delivered by the Court of First Instance on 14 April 1994 in Case T-10/93 A v Commission [1994] ECR II-0000. In fact on the occasion of the medical examination which he underwent with a view to recruitment, the applicant in Case T-10/93 informed the Commission medical officer that he was HIV-positive and stated his willingness to undergo an HIV test (judgment in Case T-10/93, at paragraph 3).
(3) ° At the same time the applicant made an application for the adoption of interim measures suspending the operation of the Commission decision of 6 June 1989. By order of the President of the Second Chamber of the Court of Justice of 31 July 1989 that application was declared inadmissible for lack of interest in making the application, since suspension of the operation of the Commission decision of refusal could not have the effect of changing the applicant' s position. See Case 206/89R S v Commission [1989] ECR 2841, paragraphs 14 and 15.
(4) ° Further details of the course of the procedure before the Court of First Instance may be found in paragraphs 16 to 31 of the contested judgment.
(5) ° This must be interference by a public authority. However, in this case it is not contested that that condition is met.
(6) ° Both the contested judgment and the observations submitted to the Court by all parties show that this point is generally appreciated.
(7) ° Cf. inter alia the judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, at paragraph 19, and section 30 of my Opinion in Case
C-159/90 Society for the Protection of Unborn Children Ireland v Grogan [1991] ECR I-4703.
(8) ° [1992] ECR I-2575, at paragraph 23.
(9) ° [1992] ECR I-3997, at paragraph 21.
(10) ° Moreover I am doubtful whether the quotation from the judgment in Case C-18/91P must be interpreted in the sense suggested by the Commission. No single provision of the Statute of the Court of Justice of the EEC or of the Rules of Procedure prohibits reliance in an appeal upon pleas in law not put forward at first instance. A number of the pleas in law typically put forward in an appeal (for example those regarding defective statement of reasons in the contested judgment) cannot even be put forward at first instance.
(11) ° See paragraphs 35 and 53 et seq. of the contested judgment.
(12) ° Case 2/57 Hauts Fourneaux de Chasse v High Authority [1957 and 1958] ECR 199, at p. 206.
(13) ° In this connection the Commission refers in particular to the Conclusions of the Council of 13 November 1989, which it adds as an annex to its reply. On closer scrutiny it appears to involve a document published at a later date, the Resolution of the Council and the Ministers for Health of the Member States, meeting within the Council of 22 December 1989 on the fight against AIDS (OJ 1990 C 10, p. 3).
(14) ° The Council and the Governments have in fact opposed compulsory screening tests: see in particular the Conclusions of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 31 May 1988 concerning AIDS (OJ 1988 C 197, p. 8); the Conclusions of the Council and the Ministers for Health of the Member States, meeting within the Council on 15 December 1988 concerning AIDS and the place of work (OJ 1989 C 28, p. 2, see in particular paragraph 7) and the Resolution of 22 December 1989, above, previous footnote. As far as I know, however, they have never recommended optional tests.
(15) ° As appears from paragraph 47 of the contested judgment already quoted (in section 2), the proposed supplementary examinations consisted in an additional screening not only for the HIV-1 virus but also for the HIV-2 .
(16) ° See the Protocol on the Statute of the Court of Justice of the EEC, signed at Brussels on 17 April 1957, as amended by Article 7 of Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities (88/591/ECSC, EEC, Euratom) (OJ 1988 L 319, p. 1; corrected version: OJ 1989 C 215, p. 1). See also the judgment of the Court in Case C-238/90P Vidrányi v Commission [1991] ECR I-4339, paragraphs 11 and 12, as confirmed by the judgment in Case C-346/90P F v Commission [1992] ECR I-2691, paragraph 7).
(17) ° Paragraph 23 of the judgment, previously cited in footnote 8.
(18) ° In paragraph 58 of the contested judgment the Court of First Instance too has already observed that the taking of blood in order to investigate the possible presence of HIV antibodies constitutes interference with the physical integrity of the person concerned .
(19) ° See respectively the judgment of the European Court of Human Rights of 26 March 1985 Case of X and Y v The Netherlands, Publications of the European Court of Human Rights (hereinafter referred to as Publications ), Series A: Judgments and Decisions (hereinafter referred to as Series A ), Vol.91, 1985, paragraph 22 ( private life, a concept which covers the physical and moral integrity of the person ) and the Report of the European Commission of Human Rights of 1 March 1979, Application Nº 7654/76 D. Van Oosterwijk against Belgium, Publications, Series B: Pleadings, Oral Arguments and Documents, Vol. 36, 1983, p. 10, paragraph 44 ( The disclosure or improper discovery by third persons of facts relating to physical condition, health or personality may undoubtedly interfere with the applicant' s privacy and private life ).
(20) ° Report of 12 July 1977, Application No 6959/75 Brueggemann and Scheuten v Federal Republic of Germany, Decisions and Reports, Vol. 10, 1978, p. 100, paragraph 56.
(21) ° According to A. Nieuw, Informed Consent, Medicine and Law, 1993, p. 125, this expression was established in the United States in Natanson v Kline [186 Kan 393, 350 P 2d 1093 (1960)]: The law requires that the inroads made upon a person' s body take place only with informed voluntary consent of that person . See also R. Faden, T. Beauchamp and N. King, A History and Theory of Informed Consent, Oxford, 1986, and the basic study in comparative law by T. Vansweevelt: De civielrechtlijke aansprakelijkheid van de geneesheer en het ziekenhuis, Reeks aansprakelijkheidsrecht, Antwerp, 1992, pp. 262 to 306, 313 and 314.
(22) ° See for example H. Leenen, S. Gevers and G. Pinet: The Rights of Patients in Europe, World Health Organization ° Regional Office for Europe, Kluwer, Deventer, 1993, pp. 7 to 47.
(23) ° See for example H. Leenen, Handboek gezondheidsrecht -Rechten van mensen in de gezondheidszorg, Alphen 1988, pp. 26 et seq., 160 et seq. and 170 et seq.; H. Nys, Geneeskunde ° Recht en medisch handelen, Algemene Practische Rechtsverzameling, Brussels 1991, pp. 135 to 138, 143 and 144.
(24) ° See the works, mentioned in the previous footnote, by H. Leenen, p. 161, and H. Nys, pp. 135 and 136.
(25) ° As regards that question, which involves an appreciation of fact, the Court of First Instance made the definitive finding in paragraph 58 of the contested judgment that the applicant has ... not shown that he was subjected to a dissimulated HIV antibody screening test .
(26) ° In his appeal and in his observations during the oral procedure before the Court of Justice, the appellant remarked that he was still normally active, which would be a factual refutation of the medical officer' s diagnosis. This last question is of course not a matter for the Court of Justice.
(27) ° See the judgment in Case C-62/90, previously cited in footnote 8, and paragraph 23 thereof, quoted in section 22 above.
(28) ° Exceptions to the general law laid down in Article 8(1) of the Convention must be strictly interpreted. Cf. also the judgment of the Court of Human Rights of 21 February 1975, Publications, Series A, Golder, Vol. 18, 1975, paragraph 44.
(29) ° Cf. the judgment of the Court of Human Rights of 24 March 1988, Olssen Case, Publications, Series A, Vol. 130, 1988, paragraph 67: The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued .
(30) ° I can leave aside here the question whether that article also has horizontal effect since the interference at present in question emanates from a public authority . It does not seem to me relevant here that the authority was acting not as a legislative authority but as an employer.
(31) ° Cf. the judgment of the Court of Human Rights of 25 March 1985, Barthold Case, Publications, Series A, Vol. 90, paragraph 45, according to which the requirement of a legal basis means that the interference must have some basis in domestic law, which itself must be adequately accessible and be formulated with sufficient precision to enable the individual to regulate his conduct, if need be with appropriate advice .
(32) ° See, as regards the articles in question, Council Regulation No 31 (EEC), 11 (EAEC) of 18 December 1961 (OJ, English Special Edition 1959-1962, p. 135), Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 (OJ, English Special Edition 1968 (I), p. 30), Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978 (OJ 1978 L 119, p. 1) and Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 (OJ 1985 L 265, p. 1).
(33) ° I therefore do not agree with the appellant' s statement that the medical examination is prescribed exclusively in the interests of the institutions.
(34) ° I leave out of account here ° because, as the Court of First Instance states in paragraph 58 of the contested judgment, it does not arise ° the question whether the Commission may refuse to appoint a candidate who does not wish to proceed with the question of informed consent to a more searching examination.
(35) ° Moreover the appellant relies on exactly the same facts as at first instance.
(36) ° Footnote 16, above.
(37) ° Vidrányi judgment, paragraphs 16, 17 and 18.
(38) ° Applicable by analogy by virtue of the second paragraph of Article 13 of the Conditions of Employment.
(39) ° Cf. section 13, above.
(40) ° [1981] ECR 1883, at paragraphs 41 and 42.
(41) ° See inter alia the judgments in Case 322/81 Michelin v Commission [1983] ECR 3461, at paragraph 7; in Case 85/87 Dow Benelux v Commission [1989] ECR 3137, at paragraph 25; in Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, at paragraph 15; and in Case T-11/89 Shell v Commission [1992] ECR II-757, at paragraph 39.
(42) ° See inter alia the judgments in Case 115/80 Demont v Commission [1981] ECR 3147, at paragraphs 6 to 12 (see particularly paragraph 11); in Case 319/85 Misset v Council [1988] ECR 1861, at paragraph 7; in Case T-82/89 Marcato v Commission [1990] ECR II-735, at paragraph 78; and in Case T-109/92 Lacruz Bassols v Court of Justice [1994] ECR II-0000, at paragraphs 67 to 70.
(43) ° The European Commission of Human Rights has frequently decided that litigation concerning access to, or dismissal from, civil service falls outside the scope of ... the Convention . See the Decision of 10 October 1983, Application No 9248/81 Leander v Sweden, D & R, Vol. 34, 1983, p. 78 at p. 83 (English) and p. 91 (French) (with references to previous decisions). On the other hand there is the point that access to an appointment with the Commission has important consequences as regards rights which are indeed of a civil nature, such as the right to a pension and the right to social security. The International Federation points in that connection to a recent judgment of the Court of Human Rights on pension rights of officials: judgment of 26 November 1992, Lombardo, Publications, Series A, Vol. 249-C 1992, paragraph 16.
(44) ° The composition of other committees established by the Staff Regulations does not give such an appearance. The Invalidity Committee, for example, established by Article 9 of the Staff Regulations, 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 (Article 7 of Annex II to the Staff Regulations).
(45) ° Cf. the judgment of the Court of Human Rights of 22 October 1984, Sramek, Publications, Series A, Vol. 84, 1984, paragraph 42.
(46) ° Judgments of the Court of Human Rights of 23 June 1981, Le Compte, Van Leuven and De Meyere, Publications, Series A, Vol. 43, 1981, paragraph 51, and of 10 February 1983, Albert and Le Compte, Publications, Series A, Vol. 58, 1983, paragraph 29; Opinion of the Commission of Human Rights (as formulated in the Report of 3 July 1985), published as annex to the judgment of 23 April 1987, Ettl and Others, Publications, Series A, Vol. 117, p. 21, paragraphs 77 and 78; see also P. Van Dijk and G. van Hoof, De Europese Conventie in theorie en praktijk, Nijmegen, 1990, pp. 340 and 341.
(47) ° The decision-making process of a Medical Committee is not lawful if the procedure before it was irregular or if the committee relied on erroneous concepts or if there is no comprehensible link between its medical findings and the conclusions of its report. See the judgments in Case 189/82 Seingry, née Seiler v Council [1984] ECR 229, at paragraph 15; in Case 277/84 Jaensch v Commission [1987] ECR 4923, at paragraph 15; and in Case T-154/89 Vidrányi v Commission [1990] ECR II-445, at paragraph 48. There is also an irregularity if the report of a Medical Committee does not contain a statement of reasons from which it is possible to judge what considerations served as the basis for the findings contained therein. Judgments in Case 257/81 K. v Council [1983] ECR 1, at paragraph 17; in Case T-165/89 Plug v Commission [1992] ECR II-367, at paragraph 75; and in Case
T-43/89-RV Gill v Commission [1993] ECR II-303, at paragraph 36.
(48) ° See the judgments in Case 156/80 Morbelli v Commission [1981] ECR 1357, at paragraph 20; in Case 265/83 Suss v Commission [1984] ECR 4029, at paragraph 11; in Case 2/87 Biedermann v Court of Auditors [1988] ECR 143, at paragraph 8; the Plug case (previous footnote), at paragraph 75; the Vidrányi case (previous footnote), at paragraph 48.
(49) ° As he did at first instance (section 3 above) the appellant is also claiming in so far as is necessary the annulment of the decision of 22 March 1989 by which the Commission' s medical officer gave a negative medical opinion and of the decision of 26 May 1989 in which the Medical Committee confirmed that opinion. Purely in the alternative the appellant also claims the annulment of the letter of 28 March 1989 in which the Head of the Careers Division informed the appellant that he could not be recruited. I do not think it is necessary to go into these claims: if, as proposed in this section, the letter of 6 June 1989 is annulled for the reasons I have given, the medical opinion of the medical officer and its confirmation by the Medical Committee ° assuming that they constitute acts which may be challenged by an action for annulment ° will no longer be of any effect as regards the appellant.
(50) ° Paragraph 73 of the contested judgment might wrongly give the impression that the applicant was claiming compensation for non-material damage solely for the second reason.
(51) ° The opposite is also true: the inadmissibility of a claim for annulment leads to the inadmissibility of a claim for compensation for damage which is closely connected therewith. See inter alia the judgments in Case 129/75 Hirschberg v Commission [1976] ECR 1259, at paragraph 22; in Case 33/80 Albini v Council and Commission [1981] ECR 2141, at paragraph 18; and in Case T-5/90 Marcato v Commission [1991] ECR II-731, at paragraph 49.
(52) ° Latham v Commission [1994] ECR II-0000, at paragraph 34, and [1994] ECR II-000, at paragraph 37.
(53) ° The appellant is contesting here not the Commission' s decision to subject him without his knowledge to a T4/T8 test and to find him, partly on the basis thereof, physically unfit but the Commission' s conduct in publishing in the Official Journal his initials and his place of residence in Portugal.
(54) ° [1989] ECR 1877, at paragraph 22.
(55) ° Judgment previously cited in footnote 51, paragraphs 49 and 50.
(56) ° Marcato judgment, paragraph 50, where the applicant had also failed to submit a prior request for compensation for the damage of which he complained.
(57) ° See sections 19 and 25 of my Opinion in relation to the judgment in Case C-68/91P Moritz v Commission [1992] ECR I-6849.