OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 28 SEPTEMBER 1977 ( 1 )

Mr President

Members of the Court,

Mr Alessandro Moli, a candidate in the competition held by the Commission in 1974 under No COM/B/117, was admitted to the competition and in consequence placed on the reserve list for future recruitment of administrative assistants drawn up as a result.

Under Article 28 (e) of the Staff Regulations, an official may be appointed only on condition that ‘he is physically fit to perform his duties’.

For this reason Article 33 of the Staff Regulations provides as follows:

‘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)’, referred to above.

In accordance with these provisions the applicant was, as required, medically examined on 22 October 1974. He was declared physically fit. But, for reasons of which no details are given on the file he was not appointed at that time.

It was not until January 1976, when a vacancy occurred in a post likely to suit the applicant, that the administration considered appointing him on condition that he underwent another medical examination as the first had taken place more than a year previously.

The fresh examination, which was carried out on 11 February 1976 by Dr Turner, one of the institution's medical officers, was followed by a further examination in Italy, the applicant's country of residence, which was entrusted to a specialist who was also a medical officer of the institution.

On the following 9 March the head of the Recruiting, Appointments and Promotion Division of the Personnel Directorate informed the applicant that the result of the medical examination which he had undergone had been unsatisfactory and explained to him that this report that he was physically unfit prevented his being employed in the service of the Commission.

He suggested that if the applicant wished to know the reasons for his unfitness (which could not be communicated to him direct) he should ask his own doctor to get into touch with Dr Semiller, head of the Commission's Medical Service in Brussels. It is a fact that the strictly medical reasons for a finding of unfitness for service cannot, in the case of certain ailments, be disclosed direct to the candidate for reasons of professional secrecy and this applies as much to the institution as to the individual. It is for the private doctor, at his patient's request, to enquire from the medical service and then to take the responsibility of deciding whether or not to inform his patient of the reasons for which he is considered to be unfit.

Furthermore the Head of Division informed Mr Moli that, within 20 days from that date on which his letter was received, Mr Moli was entitled to request that his case be examined afresh by a board of medical practitioners composed of at least three medical officers connected with the institution.

The applicant followed both of these courses.

He first wrote to his own two doctors, Dr Nardacci of Salerno and Dr d'Avanzo of Brussels. In letters dated respectively 16 and 9 March 1976, that is to say within a very short time, the two doctors asked the Medical Service of the Commission to inform them of the medical reasons for the decision that their patient was physically unfit

At the same time, on 10 March, the applicant requested the Commission to submit his case to a committee of medical officers.

But the letters from the private doctors received no reply and, in those circumstances, Mr Moli submitted, on 20 May 1976, a complaint within the meaning of Article 90 of the Staff Regulations of Officials against the report that he was physically unfit and the resultant decision not to appoint him.

No express decision was taken concerning this complaint and it was only on 21 October 1976 that the conclusions reached by the medical officer of the Commission during the examination of the previous 11 February were submitted for review to a medical board. This board, which was composed of Drs Semilla, Romain and Vigan, substantially confirmed the earlier decision in the following terms: ‘On the basis of thorough examinations and of the opinions given by specialists, the members of the board are of the opinion that Mr Alessandro Moli is not physically fit to perform his duties.’

I do not know whether the applicant became aware of this document in sufficient time. In any case, on 20 December 1976, he brought an action against the implied decision rejecting his complaint, resulting from the fact that no reply to it had been sent by the Commission. In that action he sought the annulment of the implied decision and, in consequence, of the refusal to appoint him on medical grounds which were not communicated to him.

And it was only by letter of 2 February 1977, that is to say during the proceedings, that, as a result, according to the Commission, of technical difficulties, it was possible for the medical reasons for the first report of the applicant's unfitness to be communicated to Dr Nardacci, one of the applicant's own doctors who, as we know, had asked for it nearly a year earlier.

In support of his application, Mr Moli is really making two submissions.

The first is based on the absence of a statement of reasons for the decision of 9 March 1976 in which the responsible head of division refused to appoint the applicant, referring simply to the report of the medical service that he was unfit, which itself did not state the reasons on which it was based.

With regard to the first point I do not think that the decision can validly be criticized. In the event of serious illness, disclosure of which to the person concerned might have serious consequences,, professional secrecy is as binding on the administration as it is on the medical adviser who carried out the examination.

But, on the ground that no reasons were given, the applicant claims that there has been an infringement of the rights of the defence and it is my view that, even although, under the Staff Regulations, there is no provision or arrangement for proper adversary proceedings, the administration itself undertook, by a decision which is binding on it, to set in motion a procedure of this kind which, if not at the same level of authority as the medical examination required under Article 33 would at least allow the official concerned to contest the unfavourable result of the examination.

In other words, in encouraging the applicant to ask, through his own doctor or doctors, for the grounds on which the institution's medical officer drew up a report that he was physically unfit, the administration must have intended to give him, subject to the professional responsibility of those doctors, the means of effectively contesting those grounds.

Those doctors would then have been free to inform their patient, if they saw fit to do so, of the actual medical grounds advanced by the Commission's medical officer against the applicant's engagement in the service of the institution.

Hence Mr Moli would have been in a position effectively to impugn the decision rejecting him, which is the subject of the action.

In any event, even if the applicant s own doctors considered that they were not able to inform the applicant of the medical officer's findings, they would have been in a position to discuss his opinion and to express their point of view concerning the applicants actual ability to perform the duties which were, in principle, intended for him. This would have initiated a discussion between the two sides which could have preserved Mr Moli's rights.

Secondly, although the meeting of an ad hoc medical board, composed of three medical officers connected with the institution, is, in the present state of legislation, not required by any obligation under the Staff Regulations, this does not alter the fact that the administration had, through the head of the Recruiting Division, expressly invited the applicant to ask for such a meeting for the purpose of submitting his case for further review, that is to say, contesting, if need be, the findings or opinions arrived at by a single medical officer in February 1976.

The administration had bound itself by this procedure. But it was important that it should take place in such conditions that the private doctors appointed to represent Mr Moli, were in a position to consider the reasons for which the medical officer had found, at the earlier examination, that he was physically unfit and to make their comments known to the members of the medical review board.

I do not think that such a procedure could have compromised the confidential nature of the medical opinion on the applicant's case formed by the medical service of the institution.

But, in either case, the fact, first, that the findings of the medical officer in February 1976 were communicated to the private doctor only after the application to the Court was lodged and, secondly, that subsequently the review board met and gave its decision in the following October, that is to say, in any case after the complaint was lodged, have resulted in depriving the applicant of the opportunity validly to contest (or to obtain a discussion of) the findings both of the medical officer and of the members of the review board.

In the circumstances, therefore, I am of the opinion that the procedure has been in substance irregular and that this has compromised equality between the parties and the right of the applicant to defend himself.

There is in my view no purpose in reopening the procedure by means of an order that the applicant be medically examined for the third time by a committee on which Mr Moli would be represented by at least one of his own doctors. I therefore recommend that both the decision contained in the letter from the head of the Recruiting Division dated 9 March 1976 and the implied decision rejecting Mr Moli's complaint through official channels be annulled. Furthermore, I consider that the Commission should pay the costs.

( 1 ) Translated from the French.