JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

10 July 1997

Case T-36/96

Giuliana Gaspari

v

European Parliament

‛Officials — Sick leave — Medical certificate — Medical officer's examination — Findings at variance with the medical certificate’

Full text in French II-595

Application for:

annulment of the decisions of 22 May 1995 and 9 August 1995 of the Parliament treating the applicant's absence on 5 May 1995 as irregular and deducting one day from her annual leave.

Decision:

Annulment.

Abstract of the Judgment

The applicant, an official in Grade B 2 in the Parliament, sent to the defendant a certificate of incapacity for work from her attending medical practitioner dated 3 May 1995 in respect of the period from Wednesday 3 May to Friday 5 May 1995 inclusive.

On 4 May 1995 Dr Broutchoux, the defendant institution's medical officer in Luxembourg, went to the applicant's home to examine her.

Following that examination he informed her that he considered her fit to take up her duties again on the following day, Friday 5 May 1995.

According to the defendant, the institution's medical officer tried in vain to contact the applicant's attending medical practitioner by telephone following the visit. The applicant disputes that statement and claims that she telephoned her doctor after that visit.

She did not resume her duties until Monday 8 May 1995. On that same day she sent a note to the defendant institution's Director-General of Personnel, the Budget and Finance objecting to the way in which the institution's medical officer had treated her.

By letter of 22 May 1995 (the contested decision), the Parliament's Head of Personnel informed her, first, that her absence on 5 May 1995 was being treated as irregular, since its medical officer had informed her that she was fit to take up her duties again on that date, and second, that that day of absence would be deducted from her annual leave pursuant to Article 60 of the Staff Regulations of Officials of the European Communities (the Staff Regulations).

On 11 August 1995 the applicant lodged a complaint. It was rejected by decision of 13 December 1995.

Substance

First plea in law: breach of the obligation to state the grounds on which a decision is based laid down in the second paragraph of Article 25 of the Staff Regulations and breach of the rights of the defence

Under Article 60 of the Staff Regulations, deduction of days of absence from annual leave presupposes that it has been duly established that the absence was irregular. That implies, in a case where the official concerned has produced a medical certificate of incapacity for work, that he has undergone a medical examination arranged by the institution, pursuant to the second subparagraph of Article 59(1) of the Staff Regulations, and that the presumption that the medical certificate is valid has been overturned by the contrary findings of the institution's medical officer (paragraph 26).

See: T-169/95 Quijano v Commission [1997) ECRSC II-273. para. 39, and the case-law cited therein

The act adversely affecting the official is not the report drawn up by the institution's medical officer following the medical examination but rather the administrative decision treating the absence as irregular pursuant to the second subparagraph of Article 59( 1 ) of the Staff Regulations and deducting it from the annual leave of the official concerned in accordance with Article 60 of the Staff Regulations. However, since the decision to treat the absence as irregular is taken on the basis of the results of the medical examination referred to in the second paragraph of Article 59 of the Staff Regulations, the report of the institution's medical officer constitutes the sole basis for the administrative decision in question. In order to be well founded, such a decision must be the logical result of the medical officer's conclusion that the official concerned was fit to work during the absence in question. That conclusion must itself be the logical result of the findings of the medical examination (paragraph 27).

Consequently, in order to ensure that the official in question is aware of the grounds of the administrative decision and is thus in a position to assess effectively whether it is well founded, he must, if he so requests, be apprised of the report of the institution's medical officer (paragraph 28).

A mere reference to the conclusions drawn by the medical officer in the administrative decision treating the absence as irregular does not constitute an adequate statement of its grounds. If that were so, it would be impossible not only for the official concerned but also for the Court of First Instance to verify the medical officer's report, which is the sole basis of the contested decision. The Court has jurisdiction to determine whether the opinions of medical committees establish a comprehensible link between the medical findings which they incorporate and the conclusions reached. Since the medical reports drawn up by medical officers following examinations carried out pursuant to the second subparagraph of Article 59(1) are similar in nature to the opinions of medical committees, they must be subject to the same review (paragraph 29).

See: T-47/93 C v Commission [1994] ECRSC II-743, para. 47; T-148/95 W v Commission [1996] ECRSC II-645, paras 38 and 39, and the case-law cited therein

In this case, despite having made a request to that effect, at no point during the pre-litigation procedure was the applicant apprised, directly or indirectly through her attending medical practitioner, of the precise medical reasons underlying the decision taken in her regard, nor, in consequence, was she allowed to give her views on the findings and conclusions of the medical officer and if appropriate challenge their basis (paragraph 31).

It is a fundamental principle of Community law that the rights of the defence must be observed and that principle must be complied with in any procedure initiated against a person which might culminate in an act adversely affecting him, even in the absence of rules governing the procedure in question (paragraph 32).

Applied to the medical examination procedure referred to in the second subparagraph of Article 59(1) of the Staff Regulations, the principle requires that the person concerned, assisted if necessary by his attending medical practitioner, should be in a position effectively to make known his views on the conclusions of the medical examination and, where appropriate, to challenge the merits thereof. Inasmuch as the person concerned cannot usefully dispute the basis of such conclusions without knowledge of the medical findings on which they are based, that principle requires that he should be in a position to make known his views on the medical officer's report as a whole (paragraph 33).

See: T-169/95 Quijano v Commission, cited above, para. 44

In this case it cannot be excluded that the defendant might have taken a decision other than the contested decision if the applicant had been able to give her views on the medical officer's report. Hence the claim that there was a breach of the applicant's rights of defence is well founded (paragraph 34).

Operative part:

The decision of 22 May 1995 in which the Parliament stated that it was treating the applicant's absence on 5 May 1995 as irregular and deducting one day from her annual leave and the decision of 9 August 1995 confirming the former decision are annulled.