JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

13 July 1995

Case T-176/94

K

v

Commission of the European Communities

‛Officials — European Convention for the Protection of Human Rights and Fundamental Freedoms — Complaint — Right to respect for private life’

Full text in French II-621

Application for:

first, the annulment of the Commission's decision implicitly rejecting die applicant's claim for compensation and die decision rejecting his complaint and, secondly, for compensation.

Decision:

Application dismissed.

Abstract of the Judgment

The applicant suffers from a serious illness and for that reason is entitled to have his medical expenses reimbursed at the rate of 100%. He brought a complaint against a decision of die settlement office of die sickness insurance scheme common to the institutions of the European Communities authorizing only part-reimbursement of certain dental costs. He forwarded that complaint together with the following comment: ‘The undersigned (K) considers (...) it to be quite out of keeping with respect for human dignity that, in order to claim his rights, he has been forced to parade his state of health in a complaint dozens of copies of which are circulating within the institution. If, in spite of his initial misgivings, he has decided to lodge this complaint, that is due to his deeply-held conviction that die medical officer's assessment is wrong and that to rectify that mistake would be in the public interest and might be of assistance to other colleagues in similar difficulties.’

The applicant believes that the Commission has infringed his right to respect for his private life, first, by sending the complaint to several officials without any indication of confidentiality when it contained details of his private, life and. his health and, secondly, by organizing the ‘interservice meeting’ according to die usual procedure without making the smallest effort to ensure that he remained anonymous.

The applicant went on to submit a request on 17, June 1993 seeking, first, a public acknowledgement by the Commission ofthe: wrongful act it had allegedly committed in divulging his health problems and, second; the payment of one ecu by way of symbolic compensation for the damage suffered. That request was impliedly rejected. The complaint against that decision impliedly rejecting his request was expressly rejected on 27 January 1994.

Claims for annulment

The plea in law alleging breach of Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (EHRC)

Article 8 of the EHRC provides as follows:

‘1. Everyone has the right to respect for his private and family life, his home and correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

According to Article 10 of die ECHR, ‘everyone has the right to freedom of expression’.

Fundamental rights form an integral part of the general principles of law, the observance of which the Community judicature ensures. For that puipose, the Community judicature draws inspiration from die constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The EHRC has special significance in that respect (paragraph 29).

See: 11/70 InternationaleHandelgesellschaft[l970] ECR 1125, para.4; 4/73 Noldv Commission [1974] ECR 491, para. 13; mm Johnston [1986] ECR 1651, para. 18; C-260/89 £flr[1991] ECR I-2925, para. 41; T-10/93 A Commission [1994] ECR II-179, para. 48

The Court of First Instance rejects the plea first in so far as it alleges breach of Article 10 of the EHRC, on the ground that the applicant has not in any way stated how or to what extent the Commission is supposed to have prevented or restricted die exercise of his freedom of expression (paragraph 28).

As far as concerns Article 8 of the EHRC, it is recognized that the right to respect for private life is one of the fundamental rights protected by the legal order of the Community. It includes in particular a person's right to keep his state of health secret (paragraph 31).

See: C-62/90 Commissionv Germany [1992] ECR I-2575, para. 23; C-404/92P X v Commission [1994] ECR I-4737, para. 17

Fundamental rights, however, do not constitute unfettered prerogatives but may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the Community and that they do not constitute, with regard to the objective pursued, a disproportionate and intolerable interference which encroaches upon the very substance of the rights guaranteed. In that connection, Article 8(2) of the EHRC should be taken as a reference point. According to that provision, interference by a public authority with private life may be justified in so far as (i) it is ‘in accordance with the law’, (ii) it pursues one or more of the objectives specifically listed and (iii) it is ‘necessary’ in order to achieve the objective(s) (paragraph 33).

See: 265/87 Schröder v Hauptzollamt Gronau [1989] ECR 2237, para. 15; Xv Commission, cited above, para. 18

The Court of First Instance finds first that, even supposing that there had been interference with the applicant's private life, it was not without a lawful basis. Consequently, the first condition laid down in Article 8(2) of the EHRC is satisfied (paragraphs 35 to 37).

With regard to the second condition, the Court notes that a system under which officials are reimbursed their medical expenses will be viable only if the insurer can verify whether claims for reimbursement are substantiated. Such verification necessarily requires a degree of access to information about officials' health and requires that information to be passed on to the persons dealing with the file. As any interference in officials' private lives falls within the common sickness insurance scheme, it is therefore in the interests of ‘economic wellbeing’ in so far as the survival of the sickness insurance scheme in question depends on it, and in the interests of ‘the protection of health’, which are two of the objectives listed in Article 8(2) of the EHRC (paragraph 39).

Lastly, as regards compliance with the principle of proportionality, the Court finds that the applicant has not raised any serious doubt that the only people to receive a copy of the complaint were those responsible for examining it. All those persons are bound by the obligation of professional secrecy under Article 214 of the EC Treaty. In principle, that provision must constitute a sufficient guarantee preventing the disclosure of information contained in a complaint and relating to the private life of an official beyond the restricted circle of persons with responsibility for investigating the complaint (paragraphs 40 to 42).

Moreover, the applicant cannot object that his complaint was not dealt with anonymously, when he himself did not even ask die Commission to deal with it anonymously. On the contrary, the postscript to his complaint shows that he had accepted die fact diat this case would be considered publicly (paragraph 43).

Even though it is always possible Üiat, in certain circumstances, the appointing authority may be required to handle complaints anonymously on its own initiative, the fact remains that the circumstances in die present case did not require it to take such action (paragraph 44).

Alleged breach of the duties to provide assistance and to have regard for the welfare of officials

Disclosure of a complaint exclusively to the persons competent to deal with it cannot constitute a breach of the principles of assistance and regard for welfare, even if the complaint does contain information which might give rise to a suspicion that the applicant's professional abilities are waning, which has not however been established in the present case (paragraph 48).

Claims for compensation

Consideration of the pleas in law submitted in support of the claims for annulment has revealed no breach by the Commission either of the general principles of Community law, as interpreted in the light of Articles 8 and 10 of the EHRC, or of its duty to provide assistance to and have regard for the welfare of officials, with the result that it has not been proved that the Commission committed a breach of duty for which it could incur liability (paragraph 51).

Operative part:

The application is dismissed.