61978CJ0155_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 155/78
MISS M ., SECRETARY/SHORTHAND-TYPIST, REPRESENTED BY J . PUTZEYS AND X . LEURQUIN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . NICKTS, HUISSIER DE JUSTICE, 17 BOULEVARD ROYAL,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY D . SORASIO-ALLO, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY R . O . DALCQ AND M . GROSSMANN OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, M . CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF THE COMMISSION DECISION DECLARING THAT THE APPLICANT DOES NOT FULFIL THE REQUIREMENT OF PHYSICAL FITNESS FOR THE PERFORMANCE OF THE DUTIES OF AN OFFICIAL,
Grounds
1 THE APPLICATION SEEKS THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE COMPLAINT SUBMITTED BY THE APPLICANT ON 21 DECEMBER 1977 AGAINST THE FINDING OF UNFITNESS WHICH WAS MADE IN HER CASE BY THE MEDICAL BRANCH OF THE COMMISSION AND WHICH WAS NOTIFIED TO HER BY LETTER OF 6 OCTOBER 1977 .
2 THE APPLICANT WAS AN OFFICIAL OF THE COMMISSION IN GRADE C 4 FROM 1966 UNTIL HER RESIGNATION IN 1974 . ON 28 OCTOBER 1976 SHE APPLIED AFRESH TO TAKE PART IN COMPETITION COM/C/149, ARRANGED BY THE COMMISSION WITH A VIEW TO THE CONSTITUTION OF A RESERVE FOR FUTURE RECRUITMENT OF CATEGORY C OFFICIALS . SHE WAS SUCCESSFUL IN THAT COMPETITION AND UNDERWENT, ON 5 APRIL 1977, THE MEDICAL EXAMINATION PROVIDED FOR BY ARTICLE 33 OF THE STAFF REGULATIONS . AFTER BEING FIRST EXAMINED BY THE MEDICAL OFFICER SHE WAS INVITED TO UNDERGO A NEURO-PSYCHIATRIC EXAMINATION . FOLLOWING UPON THE EXAMINATION BY THE SPECIALIST SHE WAS INFORMED BY LETTER OF 5 JULY 1977 THAT SHE DID NOT FULFIL THE CONDITIONS FOR PHYSICAL FITNESS REQUIRED FOR THE PERFORMANCE OF HER DUTIES . THAT LETTER ADDED THAT, SHOULD THE APPLICANT WISH TO KNOW THE REASONS FOR THAT UNFITNESS, SHE MIGHT REQUEST HER OWN DOCTOR TO GET IN TOUCH WITH THE HEAD OF THE MEDICAL BRANCH OF THE COMMISSION . SHE WAS TOLD, MOREOVER, THAT IS WAS OPEN TO HER, WITHIN A PERIOD OF 20 DAYS, TO REQUEST THE RE-EXAMINATION OF HER CASE BY A MEDICAL BOARD COMPOSED OF THREE DOCTORS CHOSEN FROM AMONGST THE MEDICAL OFFICERS OF THE INSTITUTION .
3 THE APPLICANT FIRST AVAILED HERSELF OF THE LATTER OPPORTUNITY . SHE WAS INFORMED ON 6 OCTOBER 1977 THAT THE MEDICAL BOARD HAD DECIDED TO CONFIRM THE EARLIER OPINION OF THE MEDICAL BRANCH . AT THE REQUEST OF THE APPLICANT ' S OWN DOCTOR A REPORT SUMMARILY GIVING THE REASONS FOR THE UNFITNESS WAS SENT TO HIM ON
21 NOVEMBER 1977 AND, IN REPLY TO A FURTHER REQUEST FROM HER OWN DOCTOR ON 28 NOVEMBER, A NUMBER OF ADDITIONAL DETAILS WERE DISCLOSED ON 13 DECEMBER 1977 .
4 IN SUPPORT OF HER APPLICATION THE APPLICANT ARGUES, FIRST, THAT ONLY ' ' PHYSICAL UNFITNESS ' '
MAY BE TAKEN INTO ACCOUNT UNDER ARTICLE 33 OF THE STAFF REGULATIONS AND THAT, BEING BASED ON HER ALLEGED PSYCHOLOGICAL OR PSYCHICAL UNFITNESS, THE DECISION UNDER ATTACK WAS ULTRA VIRES . THE APPLICANT ALSO ALLEGES THAT THE DECISION IN QUESTION IS VITIATED BY ERRORS OF FACT AND, IN ANY EVENT, DOES NOT STATE SUFFICIENTLY THE REASONS UPON WHICH IT IS BASED . FINALLY, SHE CONTENDS THAT THE DECISION IN QUESTION BREACHES THE GENERAL PRINCIPLES OF EQUALITY OF THE SEXES AND EQUALITY OF TREATMENT INASMUCH AS THE COMMISSION SUBMITS FEMALE CANDIDATES TO A NEURO-PSYCHIATRIC EXAMINATION MORE SYSTEMATICALLY THAN MALE CANDIDATES .
ADMISSIBILITY
5 THE COMMISSION HAS DISPUTED THE ADMISSIBILITY OF THE APPLICATION SUBMITTING THAT IN THE COURSE OF THE PROCEEDINGS THE APPLICANT HAD LOST ANY INTEREST IN SUING SINCE IN THE MEANTIME SHE HAS BEEN APPOINTED AN OFFICIAL OF THE EUROPEAN PARLIAMENT IN FEBRUARY 1979 .
6 THAT OBJECTION TO THE ADMISSIBILITY OF THE APPLICATION CANNOT, HOWEVER, BE UPHELD . ALTHOUGH IT IS TRUE THAT FOLLOWING UPON THAT APPOINTMENT THE APPLICANT MAY, IF APPROPRIATE, REQUEST HER TRANSFER TO A VACANT POST WITH THE COMMISSION UNDER ARTICLE 29 ( 1 ) ( C ) OF THE STAFF REGULATIONS, THAT PROSPECT, HYPOTHETICAL IN ITS NATURE, MAY NOT BE LIKENED TO THE POSITION IN WHICH SHE WOULD HAVE FOUND HERSELF HAD SHE BEEN ENTERED SINCE 1977 ON A LIST OF SUITABLE CANDIDATES PERMITTING HER TO BE DIRECTLY APPOINTED TO THE BRUSSELS OFFICE OF THE COMMISSION . ON ANY VIEW, IT IS PLAIN THAT THE APPLICANT HAS AN INTEREST IN CAUSING TO BE WITHDRAWN ANY TRACE OF A FINDING OF UNFITNESS AT A PSYCHICAL LEVEL . IT FOLLOWS THAT THE APPLICANT HAS RETAINED AN INTEREST IN OBTAINING A DECLARATION OF ANY POSSIBLE ILLEGALITY IN THE FINDING OF UNFITNESS WHICH SHE HAS CALLED IN QUESTION .
SUBSTANCE
7 IN THE FIRST SUBMISSION IT IS ALLEGED THAT THE COMMISSION HAS INCORRECTLY APPLIED ARTICLES 28 ( E ) AND 33 OF THE STAFF REGULATIONS IN TAKING INTO ACCOUNT
THE ALLEGED PSYCHOLOGICAL OR PSYCHIATRIC UNFITNESS OF THE APPLICANT . ACCORDING TO THE LATTER, THE CONCEPT OF PHYSICAL FITNESS MENTIONED IN ARTICLE 28 ( E ) OF THE STAFF REGULATIONS, TO WHICH ARTICLE 33 REFERS, DOES NOT ENCOMPASS FITNESS FROM A PSYCHOLOGICAL OR PSYCHIATRIC POINT OF VIEW .
8 ARTICLE 28 ( E ) PROVIDES THAT AN OFFICIAL MAY BE APPOINTED ONLY ON CONDITION THAT ' ' HE IS PHYSICALLY FIT TO PERFORM HIS DUTIES ' ' .
9 ARTICLE 33 OF THE STAFF REGULATIONS STATES IN THIS REGARD THAT ' ' BEFORE APPOINTMENT, 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 ARTICLE 28 ( E ). ' '
10 THE PURPOSE OF THE EXAMINATION PROVIDED FOR BY ARTICLE 33 OF THE STAFF REGULATIONS IS TO ALLOW THE INSTITUTION CONCERNED TO DETERMINE WHETHER, FROM THE POINT OF VIEW OF HIS HEALTH, THE CANDIDATE IS CAPABLE OF FULFILLING ALL THE OBLIGATIONS WHICH ARE CAPABLE OF FALLING UPON HIM HAVING REGARD TO THE NATURE OF HIS DUTIES . TO THAT END THE MEDICAL OFFICER OF THE INSTITUTION MAY LEGITIMATELY TAKE INTO ACCOUNT, ON THE BASIS OF ALL RELEVANT MEDICAL CRITERIA, NOT ONLY POSSIBLE PHYSICAL DEFICIENCIES IN THE STRICT MEANING OF THE WORD BUT ALSO PSYCHICAL OR PSYCHOLOGICAL DISORDERS OF SUCH A NATURE AS TO AFFECT THE FULFILMENT BY THE CANDIDATE OF HIS DUTIES AS AN OFFICIAL .
11 IN THAT REGARD IT IS EVEN POSSIBLE TO ENVISAGE THAT A FINDING OF UNFITNESS MAY BE BASED NOT ONLY ON THE EXISTENCE OF ACTUAL DISORDERS BUT ALSO ON A MEDICALLY JUSTIFIED PROGNOSIS OF FUTURE DISORDERS CAPABLE OF JEOPARDIZING IN THE FORESEEABLE FUTURE THE NORMAL PERFORMANCE OF THE DUTIES IN QUESTION .
12 THE SUBMISSION RELATING TO THE INFRINGEMENT OF ARTICLES 28 ( E ) AND 33 OF THE STAFF REGULATIONS MUST THEREFORE BE REJECTED AS UNFOUNDED .
13 IN ESSENCE, THE THREE OTHER SUBMISSIONS ADVANCED BY THE APPLICANT CALL IN QUESTION THE CORRECTNESS OF THE CONCLUSIONS REACHED BY THE MEDICAL OFFICERS OF THE DEFENDANT INSTITUTION AND THE MANNER IN WHICH THEY PERFORMED THEIR TASK .
14 THOSE SUBMISSIONS CALL FOR A GENERAL OBSERVATION . IT IS NOT FOR THE COURT TO SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE DOCTORS ON QUESTIONS WHICH ARE SPECIFICALLY MEDICAL . BUT IT NONE THE LESS REMAINS FOR THE COURT, IN THE CONTEXT OF THE TASK, WHICH IS PECULIAR TO IT, OF REVIEWING WHETHER THE RECRUITMENT PROCEDURES HAVE FOLLOWED A LAWFUL COURSE AND THUS OF ASSESSING WHETHER THE CANDIDATE FULFILS THE CONDITIONS REQUIRED BY ARTICLE 28 ( E ) FOR THE PERFORMANCE OF HIS DUTIES, TO CONSIDER WHETHER IT HAS AVAILABLE TO IT ALL INFORMATION RELEVANT TO THE REACHING OF ITS DECISION .
15 IN THIS CASE THE MEDICAL PRACTITIONERS INSTRUCTED BY THE COMMISSION TO EXAMINE THE APPLICANT OBJECTED TO THE PRODUCTION OF THE APPLICANT ' S MEDICAL RECORDS . MOREOVER, WHEN THE COURT ORDERED THE APPEARANCE OF THE SAID PRACTITIONERS, THEY REFUSED TO GIVE ANY INFORMATION CONCERNING THE CONDUCT OF THE EXAMINATIONS CARRIED OUT BY THEM, RELYING ON THE CONFIDENTIALITY OF MEDICAL FINDINGS, EVEN THOUGH THE APPLICANT HAD FORMALLY RELEASED THEM FROM THE OBLIGATION TO OBSERVE IT .
16 IN REGARD TO THE PROTECTION OF THE CONFIDENTIALITY OF MEDICAL FINDINGS IN RECRUITMENT PROCEDURES THE COURT HAS ALREADY DECIDED IN ITS JUDGMENTS OF 27 OCTOBER 1977 AND 13 APRIL 1978 IN CASE 121/76 MOLI V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1977 ) ECR 1971 AND CASE 75/77 MOLLET V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1978 ) ECR 897 RESPECTIVELY THAT THE OBLIGATIONS TO STATE THE REASONS FOR A REFUSAL TO ENGAGE A CANDIDATE AS AN OFFICIAL ON GROUNDS OF PHYSICAL UNFITNESS MUST BE RECONCILED WITH THE REQUIREMENTS OF 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 .
17 THE COURT ADDED THAT THAT RECONCILIATION IS NORMALLY EFFECTED THROUGH THE ABILITY OF THE PERSON CONCERNED TO REQUEST AND ENSURE THE COMMUNICATION TO A DOCTOR OF HIS CHOICE OF INFORMATION WHICH SHOULD IN PARTICULAR ENABLE THE PERSON CONCERNED, EITHER DIRECTLY OR THROUGH HIS DOCTOR, TO JUDGE WHETHER THE DECISION REFUSING HIS APPOINTMENT IS IN ACCORDANCE WITH THE PROVISIONS OF THE STAFF REGULATIONS .
18 IN THIS CASE IT APPEARS THAT THE INFORMATION COMMUNICATED TO THE CANDIDATE ' S OWN DOCTOR WAS SO SCANT THAT IT WAS NOT POSSIBLE FOR HIM TO ADVISE HER SATISFACTORILY OR FOR HER TO SEE TO THE DEFENCE OF HER INTERESTS . IN THESE CIRCUM
STANCES THE COURT HAS BEEN OBLIGED TO CONSIDER THE QUESTION WHETHER THE DOCTORS IN THE CONFIDENCE OF THE COMMISSION MAY, BY RELYING ON THE CONFIDENTIALITY OF THEIR FINDINGS, PROPERLY REFUSE TO GIVE INFORMATION INDISPENSABLE TO THE CARRYING OUT OF A REVIEW OF THE LEGALITY OF THE COMMISSION ' S ACTIONS .
19 WITH A VIEW TO PREPARING AN ANSWER TO THAT QUESTION THE COURT REQUESTED THE COMMISSION TO DRAW UP A STUDY OF COMPARATIVE LAW ON THE QUESTION OF THE CONFIDENTIALITY OF MEDICAL FINDINGS UNDER THE LAWS OF THE VARIOUS MEMBER STATES OF THE COMMUNITY . IT APPEARS FROM THAT STUDY THAT ALTHOUGH IT IS TRUE THAT IN ALL THE MEMBER STATES SUCH CONFIDENTIALITY IS PROTECTED BECAUSE OF THE CONFIDENTIAL RELATIONSHIP WHICH IS FORMED BETWEEN THE PATIENT SEEKING TREATMENT AND THE DOCTOR THE LAWS OF ALL THE MEMBER STATES ALSO RECOGNIZE - ALBEIT TO A VARIABLE EXTENT - CERTAIN LIMITS TO THE SCOPE OF THAT CONFIDENTIALITY . SUCH LIMITS RESULT, IN PARTICULAR, FROM THE FOLLOWING CIRCUMSTANCES .
- WHERE THE PERSON CONCERNED HAS EXPRESSLY GIVEN HIS CONSENT ;
- WHERE THE DOCTOR ' S INVOLVEMENT TAKES PLACE IN THE CONTEXT OF ADMINISTRATIVE CHECKING PROCEDURES SO THAT THE SPONTANEOUS CONFIDENTIAL RELATIONSHIP WHICH IS THE BASIS OF PROFESSIONAL SECRECY DOES NOT EXIST ;
- WHERE RELIANCE ON SUCH CONFIDENTIALITY WOULD HAVE THE RESULT OF OBSTRUCTING THE NORMAL COURSE OF JUSTICE .
20 IN THIS CASE IT MUST BE OBSERVED THAT THE APPLICANT HAS EXPRESSLY GIVEN HER CONSENT TO ALL RELEVANT INFORMATION RELATING TO THE MEDICAL EXAMINATIONS WHICH WERE CARRIED OUT BEING GIVEN TO THE COURT . THE MEDICAL EXAMINATIONS IN QUESTION WERE CARRIED OUT PURSUANT TO THE STAFF REGULATIONS IN THE CONTEXT OF AN ADMINISTRATIVE RECRUITMENT PROCEDURE THE LEGALITY OF WHICH MUST, AT EVERY STAGE, BE CAPABLE OF REVIEW BY THE COURT . IN THESE CIRCUMSTANCES THE REFUSAL TO GIVE ANY INFORMATION WHATEVER CONCERNING THE BASIS OF THE MEDICAL RECORDS AND THE RELIANCE, BY THE DOCTORS IN THE CONFIDENCE OF THE COMMISSION, ON THE CONFIDENTIALITY OF MEDICAL FINDINGS AS GROUNDS FOR REFUSING TO PROVIDE ANY USEFUL INDICATION HAS THE RESULT OF MAKING IT IMPOSSIBLE FOR THE COURT TO CARRY OUT THE JUDICIAL REVIEW ENTRUSTED TO IT BY THE TREATY AND THE STAFF REGULATIONS .
21 IT FOLLOWS THAT THE IMPLIED DECISION REJECTING THE COMPLAINT THROUGH OFFICIAL CHANNELS SUBMITTED BY THE APPLICANT ON 2 DECEMBER 1977 AND THE DECISION HOLDING HER PHYSICALLY UNFIT CONTAINED IN THE DEFENDANT ' S LETTER OF 6 OCTOBER 1977 MUST BE ANNULLED .
Decision on costs
22 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS DEFENCE IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . ANNULS THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT OF 21 DECEMBER 1977 AND THE DECISION HOLDING HER PHYSICALLY UNFIT CONTAINED IN THE COMMISSION ' S LETTER OF 6 OCTOBER 1977 ;
2 . ORDERS THE COMMISSION TO PAY THE COSTS .