61976CJ0121_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 121/76
ALESSANDRO MOLI, RESIDING AT SALERNO, REPRESENTED AND ASSISTED BY CARMINE PEPE, ADVOCATE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF VICTOR BIEL, 18 A RUE DES GLACIS,
APPLICANT,
V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, G . CAMPOGRANDE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT LODGED BY THE APPLICANT ON 20 MAY 1976 CONCERNING THE REPORT MADE BY THE MEDICAL SERVICE OF THE COMMISSION AND COMMUNICATED TO HIM BY LETTER OF 9 MARCH 1976 TO THE EFFECT THAT HE WAS UNFIT,
Grounds
1 THE APPLICATION, WHICH REACHED THE COURT REGISTRY ON 20 DECEMBER 1976 SEEKS THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT LODGED BY THE APPLICANT ON 20 MAY 1976 CONCERNING THE DECISION NOT TO APPOINT HIM TO A POST AS ADMINISTRATIVE ASSISTANT AND THE REPORT THAT HE WAS UNFIT DRAWN UP BY THE MEDICAL SERVICE OF THE COMMISSION AND NOTIFIED TO HIM ON 8 MARCH 1976 .
2 HE SEEKS, IN ADDITION, A DECLARATION THAT HE IS TO BE APPOINTED TO THE POST IN QUESTION OR, ALTERNATIVELY, INSTRUCTIONS FOR A FRESH MEDICAL EXAMINATION TO BE HELD .
3 ON 22 OCTOBER 1974 THE APPLICANT, WHO HAD BEEN SUCCESSFUL IN OPEN COMPETITION NO COM/B/117, HELD TO DRAW UP A RESERVE LIST FOR THE FUTURE RECRUITMENT OF ADMINISTRATIVE ASSISTANTS IN POSTS IN CAREER BRACKET B 5/B 4, WAS MEDICALLY EXAMINED AS PROVIDED FOR UNDER ARTICLE 33 OF THE STAFF REGULATIONS AND THE OUTCOME OF THE EXAMINATION WAS THE REPORT THAT, AT THAT TIME, AS REQUIRED BY ARTICLE 28 ( E ) OF THE STAFF REGULATIONS, HE WAS PHYSICALLY FIT TO PERFORM HIS DUTIES .
4 WHEN A POST AS ADMINISTRATIVE ASSISTANT FELL VACANT IN JANUARY 1976 THE APPLICANT WAS ASKED, WITH A VIEW TO HIS POSSIBLE APPOINTMENT, TO UNDERGO ANOTHER MEDICAL EXAMINATION, WHICH TOOK PLACE ON 11 FEBRUARY 1976 BUT WHICH ON THIS OCCASION RESULTED IN A REPORT THAT HE WAS PHYSICALLY UNFIT .
5 ON 8 MARCH 1976 THE RESPONSIBLE OFFICER OF THE PERSONNEL DIVISION INFORMED THE APPLICANT THAT THIS REPORT PREVENTED HIS BEING ENGAGED AND ADDED THAT, IF HE WISHED TO KNOW THE GROUNDS ON WHICH HE WAS DECLARED UNFIT, HE SHOULD ASK HIS OWN DOCTOR TO GET IN TOUCH WITH THE HEAD OF THE COMMISSION ' S MEDICAL SERVICE ; IN ADDITION, HE INFORMED HIM THAT HE WAS ENTITLED, WITHIN A PERIOD OF 20 DAYS, TO REQUEST THAT HIS CASE BE REVIEWED BY A BOARD OF THREE DOCTORS CONNECTED WITH THE INSTITUTION .
6 AS EARLY AS 10 MARCH THE APPLICANT PRESSED FOR SUCH A REVIEW AND BY LETTERS OF 9 AND 16 MARCH HIS TWO GENERAL PRACTITIONERS ASKED TO BE INFORMED OF THE REASONS FOR THE DECISION THAT THEIR PATIENT WAS UNFIT .
7 AS A RESULT OF CIRCUMSTANCES WHICH THE COMMISSION DESCRIBES AS ' DIFFICULTIES OF A TECHNICAL CHARACTER ', THESE DOCTORS RECEIVED NO REPLY UNTIL 2 FEBRUARY 1977, OR ALMOST A YEAR LATER, AND AFTER THE COMMISSION ' S REVIEW COMMITTEE HAD, ON 21 OCTOBER 1976, CONFIRMED THE FINDING OF UNFITNESS OF WHICH A REVIEW HAD BEEN REQUESTED .
8 MEANWHILE, BECAUSE OF THE LENGTH OF TIME TAKEN BY THE COMMISSION TO REPLY TO THE REQUEST FOR INFORMATION MADE BY HIS OWN MEDICAL ADVISERS, THE APPLICANT ON 20 MAY 1976 LODGED A COMPLAINT WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS, AGAINST THE DECISION, NOTIFIED TO HIM ON 8 MARCH 1976, NOT TO APPOINT HIM . THE COMPLAINT WAS REGISTERED ON 2 JUNE 1976 .
9 THE COMMISSION AGAIN FAILED TO REPLY TO THAT COMPLAINT, WITH THE RESULT THAT, AS FROM 2 OCTOBER 1976, THE ABSENCE OF A REPLY BECAME, IN ACCORDANCE WITH THE FIFTH SUBPARAGRAPH OF ARTICLE 90 ( 2 ) AN IMPLIED DECISION REJECTING IT, THE ANNULMENT OF WHICH THE APPLICANT IS SEEKING THROUGH THE PRESENT APPLICATION .
10 WHATEVER MAY BE THE CONSEQUENCE WHICH MUST FOLLOW IN LAW FROM THE FACTS HEREINBEFORE DESCRIBED, THE COURT CANNOT REFRAIN FROM NOTING THE IRRESPONSIBLE MANNER IN WHICH, BOTH AS REGARDS THE REQUEST FOR MEDICAL INFORMATION AND THE COMPLAINT THROUGH ADMINISTRATIVE CHANNELS, THE SERVICES CONCERNED BEHAVED ON A MATTER INVOLVING INTERESTS MERITING THE UTMOST CONSIDERATION .
11 IN SUPPORT OF HIS APPLICATION THE APPLICANT POINTS TO THE ABSENCE, CONTRARY TO ARTICLE 25 OF THE STAFF REGULATIONS, OF A STATEMENT OF THE REASONS ON WHICH BOTH THE IMPLIED DECISION ARISING FROM THE ABSENCE OF A REPLY FROM THE COMMISSION AND THE DECISION OF WHICH HE WAS INFORMED ON 8 MARCH 1976 WERE BASED .
12 UNDER THE CONDITIONS REFERRED TO IN THE FOURTH SUBPARAGRAPH OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS THE STATEMENT OF REASONS ON WHICH AN IMPLIED DECISION REJECTING A COMPLAINT IS BASED IS NECESSARILY DEEMED TO BE THE SAME AS THE STATEMENT OF REASONS OR THE ABSENCE OF REASONS FOR THE DECISION WHICH WAS THE SUBJECT OF THE UNANSWERED COMPLAINT, WITH THE RESULT THAT THE GROUNDS FOR EACH OF THEM MUST BE REVIEWED AT ONE AND THE SAME TIME .
13 THE REFUSAL, ON ACCOUNT OF PHYSICAL UNFITNESS, TO ENGAGE A CANDIDATE FOR APPOINTMENT AS AN OFFICIAL WHO HAS BEEN PLACED ON A RESERVE LIST, CONSTITUTES A DECISION ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 25 OF THE STAFF REGULATIONS THE REASONS FOR WHICH MUST IN CONSEQUENCE BE STATED .
14 NEVERTHELESS, THE DUTY TO STATE THE REASONS MUST BE RECONCILED WITH THE REQUIREMENTS OF PROFESSIONAL SECRECY WHICH, SAVE IN EXCEPTIONAL CIRCUMSTANCES, LEAVE THE INDIVIDUAL DOCTOR TO DECIDE WHETHER TO COMMUNICATE TO THOSE WHOM HE IS TREATING OR EXAMINING THE NATURE OF THE CONDITION FROM WHICH THEY MAY BE SUFFERING .
15 THIS RECONCILIATION IS EFFECTED THROUGH THE ABILITY OF THE PERSON CONCERNED TO REQUEST AND ENSURE THE COMMUNICATION TO A DOCTOR OF HIS CHOICE OF THE GROUNDS ON WHICH HE HAS BEEN DECLARED UNFIT ; THIS INFORMATION SHOULD ENABLE THE PERSON CONCERNED, EITHER HIMSELF OR THROUGH HIS DOCTOR, TO JUDGE WHETHER THE DECISION SETTING ASIDE HIS APPOINTMENT CONFORMS WITH THE REQUIREMENTS OF THE STAFF REGULATIONS .
16 SINCE THE HEAD OF THE MEDICAL SERVICE CONSIDERED THAT THE REASONS FOR WHICH THE APPLICANT HAD BEEN DECLARED PHYSICALLY UNFIT OUGHT TO BE COMMUNICATED ONLY TO A DOCTOR DESIGNATED BY THE APPLICANT, THE RESPONSIBLE OFFICER IN THE PERSONNEL DEPARTMENT HAD NO AUTHORITY, EVEN IF HE WAS AWARE OF THE FINDINGS WHICH HAD LED TO THE CONCLUSION THAT THE APPLICANT WAS PHYSICALLY UNSUITABLE FOR THE VACANT POST, TO DISCLOSE THEM, WITH THE RESULT THAT THE STATEMENT OF GROUNDS IN THE COMMUNICATION OF 8 MARCH 1976 WAS ADEQUATE PROVIDED THAT, WITHIN A REASONABLE TIME AND IN ANY CASE BEFORE THE END OF THE PERIOD WITHIN WHICH A COMPLAINT MUST BE SUBMITTED, THE APPLICANT ' S PRIVATE DOCTOR WAS INFORMED AND PUT IN A POSITION TO ADVISE THE APPLICANT WHETHER IT WAS POSSIBLE TO CONTEST THOSE GROUNDS .
17 THIS WAS A FORTIORI THE POSITION SINCE BY THE DECISION OF 8 MARCH 1976 THE APPLICANT WAS INVITED TO HAVE THE ASSESSMENT OF HIS CASE SUBMITTED TO REVIEW BY A COMMITTEE OF THREE DOCTORS .
18 ALTHOUGH, UNDER LEGISLATION AT PRESENT IN FORCE, THERE IS NO LEGAL REQUIREMENT FOR A MEETING OF AN AD HOC MEDICAL BOARD TO BE HELD, THIS DOES NOT AFFECT THE FACT THAT THE ADMINISTRATION HAD EXPRESSLY INVITED THE APPLICANT TO APPLY FOR SUCH A MEETING FOR THE PURPOSE OF INSTITUTING A FRESH REVIEW OF HIS CASE, THAT IS TO SAY, IF NECESSARY, OF IMPUGNING THE FINDINGS OR ASSESSMENTS MADE BY A SINGLE MEDICAL OFFICER IN FEBRUARY 1976 . IT HAD THUS COMMITTED ITSELF TO THAT PROCEDURE .
19 AT THE SAME TIME, IN SUGGESTING THAT THE APPLICANT SHOULD INVITE HIS OWN DOCTOR TO ASK TO BE INFORMED OF THE GROUNDS JUSTIFYING THE DECLARATION THAT HE WAS PHYSICALLY UNFIT, THE ADMINISTRATION INTENDED TO GIVE HIM THE MEANS OF EFFECTIVELY CHALLENGING THOSE GROUNDS WHEN THE CASE WAS REVIEWED .
20 THIS OPPORTUNITY WAS NOT GIVEN TO THE APPLICANT, WITH THE RESULT THAT THE COMMISSION VIOLATED THE GENERAL PRINCIPLE THAT WHEN ANY ADMINISTRATIVE BODY ADOPTS A MEASURE WHICH IS LIABLE GRAVELY TO PREJUDICE THE INTERESTS OF AN INDIVIDUAL IT IS BOUND TO PUT HIM IN A POSITION TO EXPRESS HIS POINT OF VIEW .
21 IN CONSEQUENCE BOTH THE DECISION OF 8 MARCH 1976 AND THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT MUST BE ANNULLED .
22 THE APPLICANT FURTHER REQUESTS THE COURT TO DECLARE THAT HE MUST BE APPOINTED TO THE VACANCY OR, FAILING THAT, ORDER A FRESH MEDICAL EXAMINATION .
23 THE COURT HAS NO JURISDICTION TO PUT ITSELF IN THE PLACE OF THE APPOINTING AUTHORITY AND IN ANY CASE THE ILLEGALITY DISCLOSED DOES NOT ENABLE IT TO BE DECIDED WHETHER THE APPLICANT DOES OR DOES NOT POSSESS THE REQUISITE DEGREE OF FITNESS, ONLY THAT THE REPORT ON HIS FITNESS WAS DRAWN UP UNDER CONDITIONS WHICH WERE UNLAWFUL AND THAT IT MUST BE RECOMMENCED .
24 IT IS FOR THE COMMISSION TO TAKE THE NECESSARY STEPS TO GIVE EFFECT TO THIS JUDGMENT .
Decision on costs
COSTS
25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
26 THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .
27 THE DEFENDANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE ACTION .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . ANNULS THE DECISION OF 8 MARCH 1976 AND THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT ;
2 . DISMISSES THE REMAINDER OF THE APPLICATION ;
3 . ORDERS THE COMMISSION TO PAY THE WHOLE OF THE COSTS .