JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

18 December 1997

Case T-90/95

Walter GUI

v

Commission of the European Communities

‛Officials — Medical examinations — Nondisclosure of information as to state of health — Right to keep state of health confidential’

Full text in French II-1231

Application for:

compensation for the damage allegedly sustained by the applicant as a result of the service-related faults committed by the defendant's administration.

Decision:

Application dismissed.

Abstract of the Judgment

From 1948 until the 1970s the applicant worked in mines, first as a miner and then as a mine manager and mines inspector.

In 1974 the applicant was recruited by the Commission as a Principal Administrator in the Division ‘Safety Matters in the Coal and Steel Industries’ in the Directorate-General for Social Affairs. In that capacity he carried out approximately 25 mine inspections.

Before taking up his duties with the Commission, and in the course of his career, the applicant underwent the medical examinations provided for in the Staff Regulations of Officials of the European Communities (‘Staff Regulations’).

In 1981 the applicant, who was suffering from chronic bronchial pneumonopathy, requested the Commission to declare that he was suffering from invalidity arising from an occupational disease within the meaning of Article 78 of the Staff Regulations.

That request was rejected in 1987. The complaint lodged against that decision was also rejected, by decision of the Commission of 20 May 1988. That decision was annulled by the Court of First Instance (Case T-43/89 Gill v Commission [1990] ECR II-173). However, that judgment was set aside by the Court of Justice (Case C-185/90 P Commission v Gill [1991] ECR I-4779) and the case was referred back to the Court of First Instance, which, in a fresh judgment, dismissed the application (Case T-43/89 RV Gill v Commission [1993] ECR II-303).

On 10 May 1994 the applicant submitted to the appointing authority a request under Article 90(1) of the Staff Regulations for compensation for the damage allegedly sustained as a result of the fact that the Commission's administration did not advise him, either when he was medically examined on taking up his duties or when he received the annual checkups pursuant to Article 59(4) of the Staff Regulations, of the existence of a pulmonary disease, and also of the fact that the Commission required him to continue to perform duties which were incompatible with his state of health, without informing him of the risks which the performance of those duties might have on the development of his disease.

The request was accompanied by a letter from the applicant's counsel pointing out that since the request concerned the applicant's health it was appropriate to take the necessary steps to ensure respect for his private life as protected by, in particular, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (EHRC) and that he wished to be kept informed of the steps taken to that end.

By letter of 20 May 1994 the Commission informed the applicant's counsel that his request had been duly noted and also that it had been ‘immediately forwarded to the competent services so that an answer might be sent to him as soon as possible’.

On 26 September 1994 the Commission rejected the applicant's request. On 28 December 1994 the Commission rejected the complaint which the applicant had submitted against the decision of 26 September 1994.

Claims concerning liability

Liability on the part of the Community supposes that a number of conditions are satisfied as regards the illegality of the conduct in respect of which the institutions are criticised, actual damage and the existence of a causal link between the conduct and the harm which is alleged. It is therefore necessary to consider at the outset whether, by its treatment of the applicant's medical file, the Commission was in breach of its obligations and whether, in particular, it committed the faults alleged by the applicant (paragraph 33).

See: T-82/91 Latham v Commission [1994] ECRSC II-61, para. 72; T-39/93 and T-553/93 Baltsaviasv Commission [1995] ECRSC II-695, para. 80

Breach of the obligation to have regard for employees' welfare

The medical service of the institution is under a duty to warn an official of the existence of any illness revealed by his file and to alert him to behaviour posing a threat to his health, which presupposes that all pertinent data and information in that regard are communicated to him. The medical service must also warn the official of risk factors which may cause an illness to appear (paragraph 34).

See: T-36/89 Nijman v Commission [1991] ECR II-699, para. 37

After studying the reports of the various examinations which the applicant had undergone in the medical service of the Commission during the relevant period, the expert appointed by the Court concluded that neither the record of the medical examination which he underwent on taking up his duties nor the records of the annual medical checkups revealed ‘the presence of either a pulmonary disease or risk factors which might cause a pulmonary disease to appear’. In those circumstances, it cannot be concluded that the Commission's medical service had during the relevant period diagnosed a pulmonary disease in the applicant or risk factors which might cause a pulmonary disease to appear. The applicant's first argument, designed to establish a fault on the part of the Commission, must therefore be rejected (paragraphs 36 and 37)

Infringement of Article 8 of the European Convention on Human Rights

The right to respect for private life enshrined in Article 8 of the EHRC constitutes one of the fundamental rights protected by the legal order of the Community. That right includes, inter alia, the right for everyone to keep his state of health secret. However, an official cannot rely on that right as against the persons responsible for examining a request and a complaint in which the official himself sets out certain information and assessments in relation to his health. Nor is it reasonable to require those persons to draw up anonymous versions of the request, the complaint and the documents present in support thereof. Under Article 214 of the Treaty and Article 17 of the Staff Regulations each official or servant of the Community is required, even after leaving the service, not to disclose information of the kind covered by the obligation of professional secrecy. Those provisions must, in principle, constitute a sufficient guarantee for the purpose of preventing the disclosure of information connected with an official's private life in a request or complaint outside the restricted circle of the persons responsible for examining it. Nor has the applicant established that his request and complaint were disclosed to persons other than those responsible for examining them. Consequently, the argument alleging breach of Article 8 of the EHRC must also be rejected (paragraphs 38 and 40).

See: C-62/90 Commission v Germany [1992] ECR I-2575, para. 23; T-273/94W v Commission [1997] ECRSC II-289, para. 72; T-176/94 K v Commission [1995] ECRSC II-621, paras 31, 39 and 42

Claims for annulment

An institution's decision rejecting a claim for compensation forms an integral part of the preliminary administrative procedure which precedes an action to establish liability before the Court of First Instance and, consequently, such claims cannot be assessed in isolation from the claims relating to liability. The measure setting out the position adopted by the institution during the pre-litigation stage only has the effect of allowing the party who has suffered damage to apply to the Court for compensation (paragraph 45).

See: T-64/91 Marcato v Commission [1992] ECR II-243, para. 33

In the present case the rejection of the applicant's claims for compensation includes the rejection of the claims for annulment (paragraph 46).

Operative part:

The application is dismissed.