7.

I have already stressed how the attitude adopted by the Commission's medical officers in the course of this case has been largely influenced by a particular conception of professional secrecy. According to that conception, the matters upon which a doctor has based his diagnosis (or his prognosis) in a given case may not be disclosed even to a judicial body, even where the patient has expressly authorized the physician to disclose them (which is what has occurred in the case before us). The implicit result of that way of thinking is that, where an administrative decision is based upon a medical assessment, a court is unable to review in any way the logic and the technical accuracy of the assessment but has only a choice between relying upon the clinical opinion already given and entrusting the task of preparing an expert report to another doctor (a solution which is not always practicable when time has passed and circumstances may have changed). Without professing to deal in every aspect with the extremely complex problem which the problem of medical confidentiality represents, I shall confine myself to observing that under all the legal systems of the Community countries which have that concept, it seeks essentially to protect the interests of the patient. The purpose of secrecy is to avoid the risk that those who are in need of treatment may decline to seek assistance from a doctor for fear that he may reveal to others facts learned on the occasion of the consultation and to ensure, further, that there will be ho disclosure to the patient of his condition such as might upset his health and cause him harm. Where, however, the course of judicial proceedings requires that light be cast on the nature of a medical finding, it is necessary to find a point at which two interests equally worthy of consideration may be reconciled, namely, that of the protection of the patient and that of the defence of the same person's rights before a court. It appears to me therefore that a reasonable solution, and one which is in accordance with general principles in force on this topic in the Member States, would be one which excludes reliance on professional secrecy in judicial proceedings, at least where, as in the present case, a dispute between a public employee and the administration is involved, where, moreover, the medical examinations have been carried out on behalf of the administration and not at the request or in the interests of the patient and where, finally, the person concerned agrees to the information in the possession of the doctor being disclosed to the court. Belgian law itself — by which the Belgian doctors in the service of the Commission feel themselves bound, so it seems, even when carrying out tasks entrusted to them by Community institutions — appears to me to be in accordance with the solution which I have just put forward. Indeed, in administrative matters, the Council of State in its judgment of 6 June 1974 No 16.702, Van de Plas, stated that doctors undertaking preventive examinations for an authority may not claim confidentiality for their findings as against the authority or as against the person subject to the examination, or, finally, as against the judicial body charged with adjudicating upon the lawfulness of the decision adopted by the authority on the basis of the medical investigation. The French Council of State has also adopted the approach that medical confidentiality may not be relied upon as against the patient and that an administrative court has the power to order the administrative authorities to make the medical records available to the person concerned. Where it has invited the administration to produce medical records covered by professional secrecy, that court may draw inferences supporting the other party in the event of its being met with a refusal to do so. Likewise, under Netherlands law, confidentiality may not, as a rule, be claimed before administrative courts in disputes between the administration and public officials. As for the legal system of the Federal Republic, professional secrecy is there seen as a relative concept and is always relinquished where the patient's consent is given. Italian law on this matter gives priority to the need to protect the employee, whether public or private, and accordingly medical confidentiality may not be claimed in relation to a medical examination to which he has been subjected at the instance of the employer; on the contrary, in cases of that kind the principle which applies is that of the right of the worker to be informed of the result of the medical examination. Under the Danish legal system the court may always compel a doctor to give evidence about facts learned in the course of his professional activity, even in the absence of the patient's consent. A similar approach appears to have been adopted under English and Irish law. This brief comparative excursus makes it possible to identify a commondenominator which is represented by a duty on the doctor, within the compass of disputes between a public employee and the administration and provided that the patient's consent has been given, to provide an administrative court with information acquired in the course of medical examinations carried out at the request of the authority. It appears to me to be essential to identify common principles on this subject, since professional secrecy has an impact on the jurisdiction exercised by the Court and it is not acceptable that the latter should proceed upon the basis of the different laws to which doctors are subject in different countries. If it were to function in that manner, the differences between the national systems would involve an expansion or contraction of the powers of the Court and its ability to ascertain the facts necessary to give judgment would vary according to the differences in the national rules. That would obviously conflict with the necessary uniformity in the administration of justice at Community level. It is worth adding, however, that even if it were held — in my opinion, incorrectly, — that the system of rules of the place where the medical examination is carried out must apply, the solution in the present case would not differ. In fact, as has just been seen, Belgian law, relying on the case-law of the Conseil d'État (which is that to which it is proper to make reference in regard to disputes between the administration and public servants) takes the view that confidentiality of medical findings may not be claimed before the court, with regard to examinations conducted on behalf of the administration. The result of this reasoning is that, contrary to the opinion of the Commission's doctors heard as witnesses in this case, confidentiality could not be claimed in this Court. The consequence of those doctors' refusal adequately to clarify the facts of their diagnosis cannot but have repercussions on the Commission's position in the litigation, considering that those doctors were engaged for and in the interests of the Commission. Indeed, in my opinion, it behoves the Commission to organize its own departments in such a manner as to avoid difficulties of the kind described arising.