CELEX: C1995/174/16
Language: en
Date: 1995-07-08 00:00:00
Title: Action brought on 12 May 1995 by Friedel Börsch against the Council of the European Union and the Commission of the European Communities (Case T-120/95)

8 . 7. 95            LEN                    Official Journal of the European Communities                                   No C 174/9
Instance of the European Communities on 28 April 1995 by               The applicant submits that:
X, represented by Mr Drs. P. Bergkamp, with an address for
service in Luxembourg at c/o Ms Ruth Bleijerveld , Embassy
of the Netherlands, 5 , rue C. M. Spoo, L-2546                         ( a ) the measures decided in the judgment of 9 June 1994
Luxembourg.                                                                  necessarily include , under Article 1 76 of the EC Treaty,
                                                                             a decision as to the applicant's fitness without undue
                                                                             and unnecessary delay and without subjecting the
                                                                             applicant to any further medical examination ;
The applicant claims that the Court should :
                                                                       ( b ) the defendant has all information and data about the
— annul the decision of the Commission of the European                       applicant's fitness that is necessary to make a
     Communities        signed    by Frans          de    Koster,            decision ;
     Director-General , Directorate-General of Personnel and
     Administration , dated 17 February 1995, confirming
     the decision of the defendant, signed by Frans de Koster,         (c ) the defendant has had an opportunity to examine the
     Director-General , Directorate-General of Personnel and                 applicant, who has fully cooperated with all tests and
     Administration, dated 4 November 1994 and the                           examinations that the defendant has required ;
     decision of the defendant, signed by Nicolas Hoffmann,
     Chef du Service Medical, Directorate-General of
     Personnel and Administration, dated 2 August 1994,                ( d ) the health status of the applicant today is irrelevant, in
                                                                             so far as the Commission must only make a decision
                                                                             based on the applicant 's fitness at the time of the
— annul the decision of the defendant, signed by Frans de                    medical examination in 1990;
     Koster , Director-General, Directorate-General of
     Personnel and Administration, dated 1 February 1995 ,
     denying the applicant's claims for compensation of                ( e ) the defendant has refused to compensate the applicant's
     damages caused by the defendant's requirement that the                  damages caused by the liver biopsy and the breach of
     applicant undergo a liver biopsy , and the defendant's                  confidentiality, in spite of the fact that the decision to
     breach of its duty to maintain the confidentiality of the               require that the applicant undergo a liver biopsy was
     applicant's medical and personal data ,                                 not made solely and exclusively by the specialist, but
                                                                             was made by the defendant itself, and the fact that the
                                                                             defendant physicians have breached their obligations to
— order the defendant to compensate all material and                         maintain confidentiality and that the applicant has
     non-material damages caused by this biopsy and the                      suffered material and non-material harm as a result of
     breach of confidentiality, and                                          these wrongful acts of the defendant.
— order the defendant to pay the costs of ( 1 ) the
     proceedings and ( 2 ) the applicant's lawyer's fees, in
     accordance with applicable law.
Pleas in law and main arguments adduced in support:
                                                                       Action brought on 12 May 1995 by Friedel Borsch against
The applicant is the same as in case T-94/92, which has been            the Council of the European Union and the Commission of
judged by a judgment of 9 June 1 994, whereby the Court of                                the European Communities
First Instance has annulled the defendant's decision of
24 September 1991 and 3 July 1992, declaring that the                                          (Case T-120/95 )
applicant did not satisfy the requirement of physical fitness                                    ( 95 /C 174/ 16 )
laid down in Article 28 ( e ) of the Staff Regulations .
In 1990 , although the applicant had previously informed the                            (Language of the case: German)
defendant of a liver biopsy conducted in Spain, the
 Commission required a second liver biopsy, which resulted
 in confirming the results of the first one . As a complication         An action against the Council of the European Union and
 of the second biopsy, the applicant suffered a biliary                 the Commission of the European Communities was brought
 peritonitis, severe pain and suffering and his life was in             before the Court of First Instance of the European
 danger . Furthermore , without the applicant's consent, a              Communities on 12 May 1995 by Friedel Borsch of
 physician of the Commission's medical service has informed             Wipperfiirth, Germany, represented by Bernd Meisterernst,
 various other persons of the results of the liver biopsy.              Mechtild Diising, Dietrich Manstetten, Frank Schulze and
 Finally, by letter of 2 August 1 994 , the defendant invited the       Winfried Haneklaus, Rechtsanwalte, Miinster, with an
 applicant to make an appointment for a 'new                            address for service in Luxembourg at the Chambers of
 pre-appointment medical examination '.                                 Dupong & Associes, 14a Rue des Bains .
 ---pagebreak--- No C 174/ 10        EN                 Official Journal of the European Communities                                  8 . 7. 95
The applicant claims that the Court should :                      2 . join the present application with the pending Case
                                                                      T-77/93 Hiilseberg and Others v. Council and
1 . order the defendants jointly and severally to pay the             Commission and likewise stay the proceedings .
    applicant SLOM-III compensation for the period from
    3 July 1984 to 29 July 1993 in the amount of DM               Pleas in law and main arguments adduced in support:
    193 864,60 together with interest at 8 % for the period
    from 19 May 1992 , and order the defendants jointly and       The pleas in law and main arguments are similar to those in
    severally to pay the costs of the proceedings ;               Case T-20/94 .