JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 September 2013

CN

v

Council of the European Union

‛Civil service — Article 78 of the Staff Regulations — Invalidity Committee — Medical Report — Medical data of a psychiatric or psychological nature — Medical confidentiality — Access — Actions for annulment — Actions for damages’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty by virtue of article 106a thereof, seeking, firstly, annulment of the decisions refusing the applicant direct access to the final report of the Invalidity Committee and access to the diagnosis of the Committee’s “third doctor”, as those decisions appear from a letter of the medical officer of the Council of the European Union, dated 17 October 2011, and of the decision of the appointing authority of the Council, of 24 March 2012, rejecting the applicant’s complaint and, secondly an order for the Council to pay damages in compensation for alleged material and non-material loss.

Held:

The application is dismissed. CN is to bear his own costs and is ordered to pay those incurred by the Council of the European Union.

Summary

Approximation of laws — Protection of individuals with regard to the processing of personal data — Processing of such data by Union institutions and bodies — Regulation No 45/2001 — Processing of medical data — Decision of an institution refusing an official direct access to a final report of the invalidity committee — Infringement of Regulation No 45/2001 — None (Charter of Fundamental Rights of the European Union, Art. 41; European Parliament and Council Regulation No 45/2001, Art. 13(c) and 20(1)(c)) Officials — Principles — Officials’ access to their medical files — Refusal of direct access to a medical report containing data of a psychiatric or psychological nature — Infringement of the principle of good administration — None (Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 26a) Actions brought by officials — Acts adversely affecting an official — Meaning — Decision taken at the conclusion of an invalidity procedure — Included — Challenge to the lawfulness of a final report of the Invalidity Committee — Admissibility (Staff Regulations, Arts 90 and 91)

Regulation No 45/2001, on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, is to be construed in accordance with Article 41 of the Charter of Fundamental Rights of the European Union, which recognises the right to good administration and in particular the right of every person to have access to his file. While Regulation No 45/2001 does not contain a provision permitting an institution to refuse the interested person access to his medical data, it sets out the means of access to personal data, including medical data, and the obligations of the institutions to protect individuals. Thus it is not contrary to Regulation No 45/2001, or in particular Article 13(c) thereof, for an institution to refuse an official direct access to a final report of an Invalidity Committee. In any event, Article 20(1)(c) of Regulation No 45/2001 can justify an institution in refusing an official direct access to a final report of an Invalidity Committee. In relation to a final report dealing amongst other things with problems of a psychiatric nature, the institution may consider that it is necessary to protect the official concerned and to reconcile such protection with the requirements of medical confidentiality. Thus, the institution may decide, pursuant to that Article, only to grant the official concerned access to the final report of the Invalidity Committee through a medical examiner, who will provide the explanations necessary to understand the medical opinion which formed the basis for the decision declaring him an invalid. (see paras 40-41) Article 41(2)(b) of the Charter of Fundamental Rights of the European Union recognises the right of every person to have access to his file, but stipulates that such access is to be provided while respecting, amongst other things, the legitimate interests of confidentiality and professional secrecy. That provision thus does not require that officials are given direct access to their medical files in all circumstances but, on the contrary, permits indirect access where the legitimate interests of confidentiality and professional secrecy justify it. Accordingly, Article 26a of the Staff Regulations, in so far as it recognises that officials have the right to acquaint themselves with their medical files, and specifies that such access is to be in accordance with arrangements laid down by the institutions, cannot be considered to be contrary to Article 41(2)(b) of the Charter. The same applies to the Council’s internal directive No 2/2004, concerning access of officials and other staff to their medical file. This, after stipulating that officials have the widest possible right of access to their medical file, sets out the conditions and practical arrangements for such access. It provides that the medical file must be consulted on the premises of the Council’s medical department in the presence of a person nominated by that department. Nevertheless, when an official requests access to a medical report which contains data of a psychological or psychiatric nature, he can obtain such access only through a doctor nominated by him. Indirect access of this kind, through a medical examiner nominated by the official, is a means of reconciling, as required by Article 41(2)(b) of the Charter, the official’s right of access to medical documents concerning him, and the requirements of medical confidentiality, which make every doctor the judge of whether he can inform the person he is treating or examining of the nature of the illnesses from which they may be suffering. (see paras 51-53) The provisions of the Staff Regulations concerning appeals enable officials to challenge the lawfulness of a decision taken at the conclusion of the invalidity procedure and, in the course of such a challenge, to rely on any irregularity in earlier acts with a close connection to that decision, such as the final report of the Invalidity Committee. Even without knowing the contents of the final report of the Invalidity Committee, the official concerned may, within the time-limit laid down by the Staff Regulations, submit a complaint under Article 90(2) of the Staff Regulations against the decision declaring him an invalid. In the event of such a complaint being rejected, he is entitled to appeal to the Courts of the European Union in accordance with Article 91 of the Staff Regulations, and ask the Courts to consider, amongst other things, whether or not the final report of the Invalidity Committee is lawful. (see paras 69, 72) See: 3 June 1997, T‑196/95 H v Commission, paras 48 and 49

JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

16 September 2013

CN

v

Council of the European Union

‛Civil service — Article 78 of the Staff Regulations — Invalidity Committee — Medical Report — Medical data of a psychiatric or psychological nature — Medical confidentiality — Access — Actions for annulment — Actions for damages’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty by virtue of article 106a thereof, seeking, firstly, annulment of the decisions refusing the applicant direct access to the final report of the Invalidity Committee and access to the diagnosis of the Committee’s “third doctor”, as those decisions appear from a letter of the medical officer of the Council of the European Union, dated 17 October 2011, and of the decision of the appointing authority of the Council, of 24 March 2012, rejecting the applicant’s complaint and, secondly an order for the Council to pay damages in compensation for alleged material and non-material loss.

Held:

The application is dismissed. CN is to bear his own costs and is ordered to pay those incurred by the Council of the European Union.

Summary

Approximation of laws — Protection of individuals with regard to the processing of personal data — Processing of such data by Union institutions and bodies — Regulation No 45/2001 — Processing of medical data — Decision of an institution refusing an official direct access to a final report of the invalidity committee — Infringement of Regulation No 45/2001 — None (Charter of Fundamental Rights of the European Union, Art. 41; European Parliament and Council Regulation No 45/2001, Art. 13(c) and 20(1)(c)) Officials — Principles — Officials’ access to their medical files — Refusal of direct access to a medical report containing data of a psychiatric or psychological nature — Infringement of the principle of good administration — None (Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 26a) Actions brought by officials — Acts adversely affecting an official — Meaning — Decision taken at the conclusion of an invalidity procedure — Included — Challenge to the lawfulness of a final report of the Invalidity Committee — Admissibility (Staff Regulations, Arts 90 and 91)