JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

30 November 1994

Case T-588/93

G

v

Commission of the European Communities

‛Officials — Pre-recruitment medical examination — Application to the Court not in conformity with complaint — Inadmissibility’

Full text in French II-875

Application for:

annulment of the Commission's decision of 30 September 1993 rejecting the applicant's complaint against the Commission's decision of 31 March 1993 withdrawing its decision of 1 September 1992 appointing the applicant as a probationary official of the Commission.

Decision:

Application dismissed as inadmissible.

Abstract of Judgment

On 10 August 1992, following her success in an open competition organized by the Commission, the applicant underwent the pre-recruitment medical examination provided for by Artide 33 of the Staff Regulations. On that occasion she was asked to complete a form calling for certain information of a medical nature. It contained a solemn declaration to the effect that the information provided was true and complete, failing which the pre-recruitment medical examination would be void. The applicant failed to mention that in May 1992 she had been placed under observation and taken into psychiatric care and that in December 1991 and January 1992 she had consulted a psychiatrist for depression caused by overwork in her job.

On 19 August 1992 the Commission's medical officer issued a favourable opinion with respect to the applicant's physical fitness to perform her duties. On 1 September 1992 she was appointed a probationary official with immediate effect.

After a number of days at work, the applicant submitted several successive medical certificates attesting to her incapacity for work. On 20 October 1992 the head of the Commission's medical service informed the appointing authority that ‘at her pre-recruitment examination, (Mrs G) concealed the existence of a disorder from which she suffered before her recruitment by the institution and which, in its recurrent form, is responsible for her current incapacity for work. The pre-recruitment form clearly shows that she omitted to mention that condition’.

On 11 November 1992 the appointing authority declared that the pre-recruitment medical examination of 10 August 1992 was null and void and asked the applicant to undergo a new medical examination. In the light of that examination, the Commission's medical officer issued a negative opinion on 17 February 1993.

By letter of 24 February 1993 the applicant contested both the Commission's decision annulling the first pre-recruitment medical examination and the unfavourable reports based on the second medical examination. She requested that her case be referred to the Medical Committee. The Medical Committee confirmed the opinion that the applicant was not fit to perform the duties of a typist with the Commission.

On 31 March 1993 the appointing authority decided to withdraw the applicant's appointment as a probationary official. The applicant submitted a complaint against that decision, challenging the medical assessments made in her regard and asserting that she was in excellent health. The Commission rejected the complaint.

Admissibility

As a preliminary point, the Court of First Instance finds that it has no jurisdiction to consider the form of order sought by the applicant to the effect that she should be reinstated as a probationary official at the Commission. It is settled case-law that when the Court of First Instance reviews the legality of an act in accordance with Article 91 of the Staff Regulations, it has no jurisdiction to issue directions (paragraph 26).

See: 192/88 Turner v Commission [1989] ECR 1017; T-94/92 X v Commission [1994] ECRSC H-481, para. 33

It is also settled case-law that the admissibility of actions brought by officials is contingent upon their compliance with the pre-litigation procedure, the purpose of which is to permit an amicable settlement of the differences which have arisen between officials or servants and the administration and that, in order that such a procedure may fulfil its purpose, it is necessary for the appointing authority to know in sufficient detail the criticisms made of the contested decision by those concerned (paragraph 27).

See: T-57/89 Alexandrakis v Commission [1990] ECR II-143, para. 8

In the present case, the applicant confined herself during the pre-litigation procedure to challenging the medical assessments made in her regard, whereas the pleas in law put forward in support of the application concern the lawfulness of the Commission's decision of 11 November 1992 declaring the initial pre-recruitment medical examination void and asking the applicant to undergo a new medical examination.

The Court of First Instance observes that the applicant's complaint makes no reference to any of the pleas in law on which the application is based and contains nothing from which the Commission could have inferred — even endeavouring to interpret that complaint with an open mind — that the applicant intended to rely on any of the grounds of challenge developed in support of the pleas in law on which her application is based. Furthermore, the applicant herself admitted at the hearing that ‘the pleas in law on which the application is based have no real connection with the complaint’. Since each of those pleas in law is inadmissible, the application must be dismissed as inadmissible in its entirety (paragraphs 29 to 31).

The Court of First Instance further points out that, even if the only ground of challenge contained in the applicant's complaint, namely the argument contesting the medical assessments made in her regard, had been covered by the application, the Court would have been bound to observe that according to settled case-law it has no jurisdiction to review medical assessments, its competence being confined to questions concerning the composition and proper conduct of the Medical Committee (paragraph 32).

See: T-10/93 A v Commission [1994] ECR II-179, para. 61; T-94/92, cited above, paras 39 to 41; T-47/93 C v Commission [1994] ECRSC II-743, para. 47

Operative part:

The application is dismissed as inadmissible.