JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

9 June 1994

Case T-94/92

X

v

Commission of the European Communities

‛Officials — Recruitment — Refusal to appoint on medical grounds’

Full text in English II-481

Application for:

— the annulment of the Commission's decisions declaring that the applicant does not fulfil the requirements of physical fitness for appointment as an official;

— a claim for compensation for all material and nonmaterial damage caused by the unlawful decisions referred to above, by the medical procedure and by breach of the confidentiality of the applicant's medical and personal data;

— a declaration that the applicant is fit to work and a direction that the defendant should appoint the applicant to the post for which he was selected.

Decision:

Annulment.

Abstract of the Judgment

During the recruitment medical examination in September 1990, the applicant declared that a liver biopsy carried out in 1986'had revealed the presence of hepatitis C antigens. A specialist consulted by the institution's medical officer performed a second biopsy on the applicant in order to assess the progression of the disease. The applicant contracted biliary peritonitis as a result of complications attributable to the biopsy.

The specialist found that there had been no progression in the applicant's condition since 1986 and he did not think that the applicant was likely to be prevented from performing his duties in the short or medium term, although he estimated the risk of cirrhosis of the liver developing as about 20 to 25 % over a 15 to 20 year period.

The Commission, on the contrary, decided that the applicant was physically unfit, in accordance with the opinion of the medical officer and the medical committee, which last considered that there was a definite and quantifiable risk that in the medium term the candidate might suffer health problems making it impossible for him to perform his duties.

A first decision that he was physically unfit was notified to the applicant on 24 September 1991. His complaint being rejected on 3 July 1992, he brought the action on 6 November 1992.

Admissibility

Admissibility of the claims for annulment

After pointing out that it is the responsibility of the Commission, as the party alleging that the action is out of time, having regard to the time-limit of three months for bringing proceedings laid down in Article 91 of the Staff Regulations, to prove on what date the decision of 3 July 1992 was notified to the applicant, the Court of First Instance finds that the institution has not proved that the decision was notified as early as the month of July 1992 to the lawyer who represented the applicant during the administrative procedure (paragraph 22).

See: T-1/90 Pérez-Mingiiez Casariego v Commission [1991] ECR II-143

Since a decision is duly notified within the meaning of Article 91 of the Staff Regulations where it has been communicated to its addressee and the latter is in a position to have effective knowledge of it, the Court considers that the applicant in this case cannot be criticized for not having gone to the post office to collect the registered letter containing the contested decision until 10 August 1992 and that the decision must therefore be considered to have been notified on that date, with the result that the action is admissible (paragraphs 24 and 25).

See: 5/76 Jansch v Commission [1976] ECR 1027; T-50/92 Fioroni v Parliament [1993] ECR II-555

Admissibility of the claims for compensation

The Court points out that the pre-Iitigation procedure required under the Staff Regulations where the damage for which compensation is sought has been caused by an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations differs from that required where the damage has been caused by conduct that is not in the nature of a decision. In the first case, the admissibility of the action for compensation is subject to the condition that the person concerned should have submitted to the appointing authority, within the prescribed period, a complaint against the act which caused the damage and to the condition that he should have brought the action within three months of the rejection of his complaint. In the second case, on the other hand, the administrative procedure which must compulsorily precede an action for damages, in accordance with Articles 90 and 91 of the Staff Regulations, involves two stages, namely, first a request and then a complaint against the express or implied rejection of that request (paragraph 29).

Since the applicant did not submit a request pursuant to Article 90(1) of the Staff Regulations for compensation for the damage attributed to the second biopsy or to the Commission's improper handling of his medical data, the claims for compensation are inadmissible (paragraphs 30 and 31).

See: T-59/92 Carolina v Commission [1993] ECR II-1129

Admissibility of the claims for a declaration and a direction

The Court of First Instance considers that the applicant's request that the Court declare him fit for work and direct the institution to appoint him immediately is likewise inadmissible. On the one hand, the Community judicature clearly has no jurisdiction to issue directions to the Community institutions. On the other hand, where an act is annulled, the institution concerned is required, pursuant to Article 176 of the EEC Treaty, to take the measures necessary in order to comply with the judgment (paragraphs 32 to 34).

See: T-56/92 Koelman v Commission [1993] ECR II-1267

Substance

The Court points out that judicial review may not extend to medical findings properly so-called, which must be considered definitive provided that the conditions in which they are made are not irregular, but is intended to verify that the procedure followed at the medical examination, especially where the medical committee is involved, was correct, and also to verify the regularity of opinions issued, in order to examine whether they contain reasons enabling the reader to assess the considerations on which the conclusions which they contain were based and also whether they have established a comprehensible link between the medical findings and the conclusions which they reach (paragraphs 40 and 41).

See: T-165/89 Plug v Commission [1992] ECR II-367

After pointing out that the purpose of the examination provided for in Article 33 of the Staff Regulations is to enable the institution concerned to determine whether, from the point of view of his health, the candidate is capable of fulfilling all the obligations which are likely to be his having regard to the nature of his duties, the Court finds that that is at present the case for the applicant whose disease causes him no distress (paragraphs 42 and 43).

See: 155/78 M. v Commission [1980] ECR 1797, para. 10

In so far as a finding of unfitness may be based on a medically justified prognosis of future disorders capable of jeopardizing in the foreseeable future the normal performance of the duties in question, the Court considers that, in the present case, the prognosis as to the progression of the applicant's condition made by the specialist does not satisfy that test (paragraph 45).

See: M. v Commission, cited above, paras 10 and 11

The most pessimistic interpretation shows that, statistically, there is a 75% chance that the applicant will not develop cirrhosis of the liver in the next 20 years and that, beyond those 20 years, no prognosis is possible (paragraph 46).

Such a prognosis as to the possible progression of a disease affecting a successful candidate but not causing him any distress of such a nature as to jeopardize the performance of his duties cannot justify a decision declaring him physically unfit (paragraph 47).

The claims for compensation for the loss allegedly suffered by the applicant as a result of the decisions declaring him physically unfit

After pointing out that, as a rule, the adoption of an incorrect interpretation of a provision of the Staff Regulations does not in itself constitute a service-related fault, the Court finds that the mistake made by the Commission in its interpretation of the Staff Regulations is not so serious as to constitute a service-related fault (paragraphs 52 and 53).

See: 79/71 Heinemann v Commission [1972] ECR 579

Operative part:

1. The Commission's decisions of 24 September 1991 and 3 July 1992, declaring that the applicant does not satisfy the requirement of physical fitness laid down in Article 28(e) of the Staff Regulations, are annulled.

2. The remainder of the application is dismissed.

Officials — Recruitment — Refusal to appoint on medical grounds (JUDGMENT OF 9. 6. 1994 — CASE T-94/92 - X / COMMISSION) II-481