JUDGMENT OF THE CIVIL SERVICE TRIBUNAL (Second Chamber)

28 October 2010

Case F-92/09

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v

European Parliament

(Civil service — Officials — Decision to dismiss — Duty to have regard for the welfare of officials — Incompetence — Medical reasons)

Application: brought under Articles 236 EC and 152 EA, in which the applicant seeks annulment of the decision of 6 July 2009 by which the Parliament dismissed her with effect from 1 September 2009, and payment of a sum of EUR 15 000, subject to all proper reservations, as compensation for the non-material harm which she considers herself to have suffered.

Held: The decision of the Parliament of 6 July 2009 dismissing the applicant is annulled. The remainder of the action is dismissed. The Parliament is ordered to pay all the costs.

Summary

Official — Dismissal for incompetence — Duty to have regard for the welfare of officials

The duty to have regard for the welfare of officials requires the administration, where there is doubt as to the medical origin of the difficulties encountered by an official in performing the tasks falling to him or her, to take all necessary steps to dispel that doubt before a decision dismissing that official is adopted.

That requirement is reflected in the Parliament’s Internal Rules themselves on the remedial procedure to certify, deal with and remedy potential cases of incompetence on the part of officials, since Article 8 of those Rules provides that the final assessor must, in certain circumstances, refer the matter to the Parliament’s medical service if he is aware of facts likely to show that the conduct alleged against the official could have a medical origin.

Moreover, the obligations imposed on the administration by the duty to have regard for the welfare of officials are substantially reinforced when what is at issue is the particular situation of an official in respect of whom there are doubts regarding his or her mental health and, consequently, his or her ability to defend his or her own interests.

When an official is not capable of acting on his or her own behalf and of perceiving the very existence of his or her illness, that situation may, where appropriate, imply a positive obligation on the part of the institution, a fortiori when the official in question is under threat of a dismissal and therefore in a vulnerable position. Consequently, in that particular context, the onus is on the administration to insist on the official’s agreeing to undergo a further medical examination, in particular relying on the right of the institution to have the official examined by the medical officer, pursuant to Article 59(5) of the Staff Regulations, under which an official may be required to take leave when his or her state of health so requires.

Such a medical examination of the official concerned should take place before the adoption of the proposed decision to dismiss, which could, in some circumstances, be justified if the doctor thus consulted has actually ruled out any possible medical reason for the conduct alleged against the official in question.

(see paras 65-67, 85, 88)

See:

T-145/01 Latino v Commission [2003] ECR-SC I-A-59 and II-337, para. 93

F-17/05 de Brito Sequeira Carvalho v Commission [2006] ECR-SC I-A-1-149 and II-A-1-577, para. 72