JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

5 July 2011

Case F-46/09

V

v

European Parliament

(Civil service – Contract staff – Conditions of engagement – Whether physically fit – Pre-recruitment medical examination – Protection of individuals with regard to the processing of personal data – Medical confidentiality – Transfer of medical data between institutions – Right to respect for private life)

Application: brought under Articles 236 EC and 152 EA, by which V seeks, principally, annulment, firstly, of the decision of 19 December 2008 by which the Director for Administrative Management of Personnel of the European Parliament withdrew, on the ground of unfitness for recruitment, the offer of employment which had been made to her on 10 December 2008 and, secondly, of the opinion of the Parliament’s medical officer of 18 December 2008, and compensation for the damage which she considers that she suffered.

Held: The decision of 19 December 2008 by which the Parliament withdrew the offer of employment which it had made to the applicant is annulled. The Parliament is ordered to pay the applicant the sum of EUR 25 000. The remainder of the action is dismissed. The Parliament is ordered to bear its own costs and to pay the costs of the applicant. The European Data Processing Supervisor, intervener, is ordered to bear his own costs.

Summary

1. Officials – Recruitment – Refusal to recruit on grounds of physical unfitness – Judicial review – Scope

(Staff Regulations, Art. 33)

2. Officials – Recruitment – Physical fitness – Medical Committee – Observance of the rights of the defence

(Staff Regulations, Art. 33, second para.; Conditions of Employment of Other Servants, Art. 83)

3. Fundamental rights – Respect for private and family life – Transfer of a person’s medical data to a third party – Interference within the meaning of Article 8 of the European Convention on Human Rights – Justification

4. Officials – Actions – Reliance on a ground during the proceedings which could as a matter of law have justified the decision at issue – Obstacle to the annulment of the decision – None, except where the administration has circumscribed powers in the matter

5. Officials – Non-contractual liability of the institutions – Conditions – Unlawfulness – Injury – Causal link – Concept – Application in proceedings concerning the Staff Regulations – Criteria

6. Officials – Actions – Actions for damages – Annulment of the illegal act in dispute – Whether appropriate reparation for non-material damage – Limits

(Staff Regulations, Art. 91)

1. Although the Courts of the Union cannot, in the context of the judicial review of the legality of a refusal to recruit on grounds of physical unfitness, substitute their own assessment for an opinion which is specifically medical in nature, it is none the less their task to ascertain whether the recruitment procedure was conducted in a lawful manner and, in particular, to examine whether the refusal to recruit is based on a reasoned medical opinion establishing a comprehensible link between the medical findings which it contains and the conclusion which it draws.

It is possible for the medical officer of an institution to base a finding that a candidate is unfit not only on the existence of actual physical or mental disorders but also on a medically justified prognosis of future disorders capable of jeopardising in the foreseeable future the normal performance of the duties in question.

The discretion in medical matters which a doctor is recognised as having does not preclude the Courts, firstly, from establishing the material accuracy, reliability and consistency of the evidence adduced, and, secondly, from satisfying themselves that that evidence constitutes all the relevant data to be taken into account in order to appraise a complex situation and that it is capable of supporting the conclusions drawn from it.

(see paras 72, 73, 81)

See:

14 April 1994, T-10/93 A v Commission, paras 61 and 62; 12 May 2004, T-191/01 Hecq v Commission, para. 63

2. The second paragraph of Article 33 of the Staff Regulations provides for an internal procedure for appealing against a negative opinion issued by the institution’s medical officer. By establishing an appellate medical committee under that provision, the legislature intended to provide an additional guarantee for candidates and thereby improve the protection of their rights. That guarantee, which relates to the principle of observance of the right to a fair hearing, constitutes an essential procedural requirement.

That guarantee must, furthermore, necessarily be observed before the decision refusing recruitment is adopted, and not at a later stage, since it would then lose its rationale, which is to ensure that the rights of defence of candidates for recruitment are respected. The wording of the second paragraph of Article 33 of the Staff Regulations is clear in that regard: the candidate for recruitment has 20 days in which to submit his case to the medical committee, a period which starts to run, not from notification of the decision refusing recruitment, but from notification of the medical officer’s opinion.

(see paras 92-94)

See:

8 July 1999, C-51/92 P Hercules Chemicals v Commission, paras 75 to 78

A v Commission, para. 23; 8 July 2008, T-48/05 Franchet and Byk v Commission, para. 151

13 December 2007, F-95/05 N v Commission, paras 69 and 76

3. The right to respect for private life, embodied in Article 8 of the European Convention on Human Rights and deriving from the common constitutional traditions of the Member States, is one of the fundamental rights protected by the legal order of the European Union. It includes in particular a person’s right to keep his state of health secret.

The transfer to a third party, including to another institution, of personal data relating to a person’s state of health collected by an institution constitutes in itself an interference with the private life of the person concerned, whatever the subsequent use of the information thus communicated.

However, under the terms of Article 8(2) of the Convention, interference by a public authority with private life may be justified provided that it is ‘in accordance with the law’, it pursues one or more of the – exhaustively listed – objectives, and it is ‘necessary’ in order to achieve that (those) objective(s).

In view of the extremely intimate and sensitive nature of medical data, the possibility of being able to transfer or communicate such information to a third party, even where that party is another European Union institution or body, without the consent of the person concerned, calls for particularly rigorous examination.

(see paras 111-113, 123)

See:

8 April 1992, C-62/90 Commission v Germany, para. 23; 5 October 1994, C-404/92 P X v Commission, paras 17 and 18; 20 May 2003, C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others, paras 73 to 75

4. In an action by an official, reliance on a ground during the proceedings which could as a matter of law have justified the decision at issue cannot preclude annulment of that decision, except where the administration has circumscribed powers in the matter.

In the context of a refusal to recruit on the basis of the person’s physical unfitness, the institution cannot claim that it was in such a situation of circumscribed powers, since it has a wide discretion as regards the ground relating to the breaking of the relationship of trust, relied on during the proceedings.

(see paras 147-148)

See:

10 December 2003, T-173/02 Tomarchio v Commission, para. 86; 15 March 2006, T-10/04 Leite Mateus v Commission, para. 43

15 December 2010, F-67/09 Angulo Sánchez v Council, paras 76 to 78

5. The administration can be held liable in damages only if a number of conditions are satisfied: the illegality of the allegedly wrongful act committed by the institutions, actual harm suffered, and the existence of a causal link between the act and the damage alleged to have been suffered. Those three conditions are cumulative. The absence of any one of them is sufficient for the claim for damages to be dismissed.

As regards the causal link, the applicant must, in principle, adduce proof of a direct and certain causal nexus between the fault committed by the institution concerned and the injury pleaded.

However, the degree of certainty of the causal link is attained where the unlawful act committed by a European Union institution has definitely deprived a person, not necessarily of recruitment, to which the person concerned could never prove he had a right, but of a genuine chance of being recruited as an official or other member of staff, resulting in material damage for the person concerned in the form of loss of income. Where it seems eminently probable, in the circumstances of the case, that, if it had abided by the law, the institution concerned would have recruited the member of staff, the theoretical uncertainty as regards the outcome of a properly conducted recruitment procedure cannot preclude reparation for the genuine material damage sustained by the person concerned through the rejection of his candidature for the post which he would have had every chance of securing.

(see paras 157-159)

See:

1 June 1994, C-136/92 P Commission v Brazzelli Lualdi and Others, para. 42; 21 February 2008, C-348/06 P Commission v Girardot, para. 52

28 September 1999, T-140/97 Hautem v EIB, para. 85; 5 October 2004, T-45/01 Sanders and Others v Commission, para. 150

22 October 2008, F-46/07 Tzirani v Commission, para. 218

6. The annulment of an unlawful act of the administration may in itself constitute appropriate and, in principle, sufficient reparation for the non-material damage which the official may have suffered.

However, the annulment of such an act cannot constitute full reparation for the non-material damage if that act contains an assessment of the abilities and conduct of the person concerned which is capable of offending him, where it has no practical effect, or where the illegality committed is particularly serious. Thus, the infringement of the right to respect for private life and of 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 particularly serious, justifying the award of compensation for the non-material damage.

(see paras 167, 169, 171-173)

See;

7 February 1990, C-343/87 Culin v Commission, paras 25 to 29

26 January 1995, T-60/94 Pierrat v Court of Justice, para. 62; 21 January 2004, T-328/01 Robinson v Parliament, para. 79; 30 September 2004, T-16/03 Ferrer de Moncada v Commission, para. 68

13 December 2007, F-42/06 Sundholm v Commission, para. 44; Tzirani v Commission, para. 223; 7 July 2009, F-99/07 and F-45/08 Bernard v Europol, para. 106