JUDGMENT OF THE EUROPEAN UNION

CIVIL SRVICE TRIBUNAL

(Third Chamber)

20 July 2016

HC

v

European Commission

‛Civil service — Temporary staff — Succession of appointments under various status categories at several institutions of the European Union — Interruption by a period of unemployment — Continued membership of the EU Joint Sickness Insurance Scheme — New appointment — Article 13 of the CEOS — Pre-recruitment medical examination — Article 32 of the CEOS — Failure of the person concerned to declare an illness already affecting her — Subsequent discovery by the AECE — Retroactive application of medical cover deferment for five years — Challenge — Referral to the Invalidity Committee — Duty of loyalty — Decision of the AECE to bar the staff member from being recruited by the institution for a period of six years’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which HC seeks the annulment, first, of the decision of the authority empowered to conclude contracts of employment of the European Commission (‘the AECE’) of 12 February 2014 to apply deferment of her medical cover, under Article 32 of the Conditions of Employment of Other Servants of the European Union (‘CEOS’), retroactively and, secondly, of the decision of the AECE of 29 January 2015 to bar her from being recruited by the Commission for a period of six years.

Held:

The decision of 29 January 2015 by which the authority empowered to conclude contracts of employment of the European Commission barred HC from being recruited by the institution for a period of six years is annulled. The remainder of the application is dismissed. The European Commission to bear its own costs and to pay half the costs incurred by HC. HC is to bear half of her own costs.

Summary

Officials — Disciplinary measures — Penalty — Penalty consisting of a former temporary staff member being barred from the possibility of recruitment for a certain period — Measure not appearing in any provision of the Staff Regulations — Unlawfulness

Fundamental rights — Respect for private and family life — Restrictions justified in the public interest — Obligation of a candidate for a post to disclose the existence of a medical condition affecting him or having affected him in the past — Lawfulness

Officials — Members of the temporary staff — Recruitment — Medical examination — Succession of appointments at several institutions — Interruption of the employment relationship by a significant period of unemployment — Deferment of medical cover at the time of a new medical examination — Lawfulness

Under Article 13 of the Conditions of Employment of Other Servants, before being engaged, a member of the temporary staff is to be medically examined by one of the institution’s medical officers in order that the institution may be satisfied that he fulfils the physical fitness requirements of Article 12(2)(d) of those Conditions, in view of the fact that, under the latter provision, a person may be engaged as a member of the temporary staff only on condition that he is physically fit to perform his duties. In that regard, the medical examination prior to the recruitment of a temporary staff member serves a legitimate interest of the EU institutions, which must be in a position to fulfil the tasks required of them. In the context of that examination, which is conducted by the medical officer of the institution and must necessarily include a clinical examination of the person concerned and also, if need be, supplementary biological tests ordered by the medical officer, the latter may be led to conclude that the candidate for recruitment, although meeting the conditions of physical fitness, is suffering from a particular illness or infirmity that might subsequently progress and lead to the person concerned being covered, or requesting cover, under the invalidity scheme. (see paras 64-65) See: Judgment of 5 October 1994 in X v Commission, C‑404/92 P, EU:C:1994:361, para. 20 Judgment of 5 July 2011 in V v Parliament, F‑46/09, EU:F:2011:101, para. 77 and the case law cited

According to the wording of Article 32 of the Conditions of Employment, medical cover may not be deferred by the authority empowered to conclude contracts of employment in respect of a newly-recruited staff member until after the pre-recruitment medical examination has taken place. The conditions for applying that article must be strictly interpreted. Where periods of employment completed by the same staff member at two institutions have been interrupted by a significant period of unemployment, the second institution may validly take the view that the staff member concerned should undergo a new medical examination in order to determine whether he still meets the conditions of physical fitness required under Article 12(2)(d) of the Conditions of Employment in order to carry out his new duties and, as a consequence, defer medical cover, if appropriate, as provided for in Article 32 of those Conditions. (see paras 70- 71) See: Judgment of 29 September 2009 in O v Commission, F‑69/07 and F‑60/08, EU:F:2009:128, para. 121

The right to respect for private life, embodied in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and deriving from the common constitutional traditions of the Member States, is one of the fundamental rights protected by the EU legal order. It includes in particular a person’s right to keep his state of health secret. However, restrictions may be imposed on fundamental rights provided that they in fact correspond to objectives of general public interest and do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected. In that regard, the temporary staff member’s pre-recruitment medical examination serves a legitimate interest of the EU institutions, which must be in a position to fulfil the tasks required of them. In order both to enable the authority empowered to conclude contracts of employment to determine whether the candidate meets the conditions of physical fitness for a post as a temporary staff member, as required by Article 12(2)(d) of the Conditions of Employment, and to preserve the power of that authority, provided for by Article 32 of those Conditions, to defer medical cover where it considers that to be necessary, that authority must, through its medical officer, be able to have a degree of access to data relating to the health of that candidate, which must in that situation be supplied directly the person concerned himself. Accordingly, purported interference in the private life of the candidate, resulting from the obligation to disclose the existence of a condition from which he suffers or has suffered in the past, may be regarded as being justified. The institution’s medical officer may, in the context of the pre-recruitment medical examination, require a candidate for a temporary staff post to complete a pre-recruitment medical questionnaire and may use the declarations made by the person concerned in this questionnaire in order to assess whether it is appropriate to propose to the authority empowered to conclude contracts of employment that when recruiting him it should defer medical cover under Article 32 of the Conditions of Employment. Moreover, the candidate must, at the time of that medical examination, provide honest answers to the questions put to him by the healthcare professional, who is bound by medical confidentiality, since those questions come within the scope of the task entrusted to him and comply with the principle of proportionality. (see paras 77-81) See: Judgment of 5 October 1994 in X v Commission, C‑404/92 P, EU:C:1994:361, paras 17, 18 and 20 Judgment of 13 July 1995 in K v Commission, T‑176/94, EU:T:1995:139, para. 39

In a particular case where, after the pre-recruitment medical examination, it is apparent that a staff member did not answer sincerely and completely the questions asked about his health by the medical officer during that examination, the authority empowered to conclude contracts of employment may withdraw its original decision not to defer medical cover and take a fresh decision applying that deferment retroactively. The authority is nevertheless first required to follow the procedure provided for in Article 32 of the Conditions of Employment of Other Servants, that is to say, it must first refer the matter to the medical officer so that he can issue an opinion on the question whether the illness or infirmity warranted deferring medical cover when the staff member was engaged, and second, it must inform the staff member of the decision it has taken on the basis of that opinion, so that the staff member may, if appropriate, lodge an appeal with the Invalidity Committee. Such a question, which involves ascertaining whether the illness or infirmity was capable of resulting in the staff member’s invalidity or death within a period of five years from the date of his entering the service of the institution, is of a medical nature and is strictly a matter for the medical officer and, on appeal, the Invalidity Committee. (see para. 85) See: Judgment of 10 July 2012 in AV v Commission, F‑4/11, EU:F:2012:96, para. 34