CELEX: 61980CC0059
Language: en
Date: 1981-07-02 00:00:00
Title: Opinion of Mr Advocate General Rozès delivered on 2 July 1981. # Mariette Turner, née Krecké, v Commission of the European Communities. # Staff regulations of officials - Medical branch. # Joined cases 59/80 and 129/80.

OPINION OF MRS ADVOCATE GENERAL ROZÈS
      DELIVERED ON 2 JULY 1981 (
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         Mr President,
      
      
         Members of the Court,
      
      The cases before the Court concern Dr Turner, a doctor specializing in internal illnesses and cardiology, who was assigned to a different post and later compulsorily transferred in the medical branch of the Commission of the European Communities at the Brussels headquarters.
      For the summary of the facts giving rise to the present applications, the course of the procedure and the conclusions, submissions and arguments of the parties, I refer to the very comprehensive Report for the Hearing before the Court. I would only remind the Court that by order of 3 March 1981 it was decided to join Cases 59/80 and 129/80 so that they might be decided in one judgment.
      I should first like to consider the issues of admissibility and then go on to deal with the substance of the problems raised.
      I — Admissibility
      Application 59/80 seeks the annulment of
      
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               First, the letter of 4 May 1979 from the Director-General for Personnel and Administration by which Dr Turner was asked to take from 10 May 1979 the duties described in a letter of 14 March 1979; and
            
         
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               Secondly, the decision of 8 June 1979 assigning the applicant to a new post.
            
         The admissibility of the first claim presents no difficulty. On the other hand the Commission questions the admissibility of the application against the decision of 8 June 1979 on the ground that Dr Turner's prior complaint of 3 July 1979 referred only to the letter of 4 May 1979. That ground is not valid. The duties assigned to the applicant by the formal instructions sent to her on 4 May 1979 could be carried out only in connexion with an administrative posting. Therefore the complaint against the letter of 4 May 1979 should be regarded as relating also to the decision of 8 June 1979. It should also be added that the decision of 8 June 1979 had retroactive effect from 12 July 1978 (and not from 11 July, as is erroneously stated therein).
      However, the applicant cannot seek the annulment both of the decision of 23 May 1980, the object of Application 129/80, transferring her to the Directorate-General for Research, and of the decision of 8 June 1979: if Dr Turner's argument were accepted there would then be no link between her and the administration. Consideration of the substance of her first application shows that she has no interest in seeking the annulment of the decision of 8 June 1979.
      II — Substance
      By her first application the applicant alleges infringement of Article 7 (1) of the Staff Regulations and misuse of power.
      1. Misuse of power
      I do not believe that an entire specialized branch, the “socio-medical unit”, was created simply out of the desire to harm the applicant. If injury was suffered, it was only as the result of the creation of the new branch and not the reason for it.
      It is indeed the case that the applicant's re-assignment occurred against a special background. In fact it was at least partly at the root of two staff cases involving an abuse of supplementary examinations ordered as part of medical examination on recruitment. In the opinion of the doctor who ordered those examinations, which resulted in an unfavourable assessment of the applicants' fitness to perform their duties, they disclosed “no medical factors to be communicated which require treatment” (judgment of 13 April 1978Mollet [1978] ECR 897, paragraph 6).
      Those cases went against the Commission and in one of them the Court expressed this opinion :
      “The Court cannot refrain from noting the irresponsible manner in which, both as regards the request for medical information and the complaint through administrative channels, the services concerned behaved on a matter involving interests meriting the utmost consideration” (Moli [1977] ECR at p. 1977, paragraph 10).
      It was open to the Commission to create a medico-social unit and to proceed to reallocate duties and that need not have implied any adverse effect as regards the applicant's professional independence or that it was equivalent to disciplinary action against her; such disciplinary action is, after all, hardly conceivable since, except in the case of a breach of medical ethics (which is a matter for the disciplinary bodies of the profession), a practitioner of industrial medicine can be subject to only the supervision of a medical superintendent or another doctor appointed for that purpose.
      It would perhaps have been better to assign a psychologist with a diploma in industrial medicine to the new field rather than a specialist in internal illnesses and cardiology. Nevertheless it was at any rate conceivable for such a specialist with a diploma in industrial medicine to be assigned to that field and it was to be desired that a doctor working full time should be in charge of it rather than a visiting doctor with no such diploma.
      2.
      By her second submission the applicant alleges an infringement of Article 7 (1) of the Staff Regulations (interests of the service).
      I feel that it is difficult to deny, in principle, the advisability of setting up a “medico-social” unit and to claim that the name does not really cover any genuine medical duties.
      In a memorandum written by the applicant herself on 13 March 1979 she stressed that she had been “struck by the importance of the problems presented by psychiatric and psychological pathology”.
      For example:
      
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               Patients put in psychiatric wards;
            
         
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               Suicide attempts;
            
         
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               Calls from police stations, house-porters and so on;
            
         
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               Difficulties which some people experience in adapting themselves to the working conditions at the Commission;
            
         
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               Mentally sick persons sent from one department to another so that they gradually become premature invalids”.
            
         Examinations on recruitment form a considerable part of industrial medicine. Yet they do not represent the entire scope of that branch of medicine. Industrial medicine is not restricted to clinical work in the form of medical examinations; it also entails some action with regard to the social aspects of the working environment.
      According to the Commission's recommendation to the Member States of 20 July 1962 on industrial medicine in undertakings, amongst the subjects taught in this branch of medicine were industrial pathology (occupational allergies), special medical problems (psycho-neuroses associated with work or illness), industrial psychology (mental health and human relations) and preventive medicine (periodic examinations). According to the same recommendation, in the realm of preventive medicine, the practitioner of industrial medicine concerns himself with leisure, sport and addictions (alcohol, tobacco and so on). It was therefore not at all absurd to include “the treatment of alcoholic officials” in this field.
      It seems hardly conceivable that the Court should take the place of the responsible authority so as to decide upon the advisability of setting up such a unit. According to the Court's case-law, the authority alone is responsible for arranging its internal organization, subject to the necessity to respect the rights which staff enjoy under their Staff Regulations and which they may ask the Court to enforce.
      Of course, the industrial medical branches in an administration such as that of the Commission at Brussels can not be organized in the same way as in a private undertaking, industrial or otherwise. It is true that recourse may also be had in the public sector to visiting doctors bound to the administration by a part-time contract. But, whether a practitioner of industrial medicine is working as a visiting doctor or as an official, he cannot allow his work to overlap with that of the same patient's own doctor. He does, however, have a monitoring and preventive rôle and he may concern himself with conditions of work. He is much more integrated into the administration, as at the Commission, where the staff of the medical branch come under the Director-General of the Directorate General for Personnel and Administration.
      Doctors serving as officials are necessarily subject to the administrative hierarchy and that fact has to be reconciled with the professional independence which any doctor must retain. Although a doctor serving as an official is subject to the authority of the administration which employs him, he must still observe the obligations of medical ethics and the right to work and enjoy the protection and privileges necessary in the interests of the patients themselves. Let it not be forgotten that the organization of industrial medicine has not been effected principally in the interests of the profession; its prime purpose is to protect the health of staff.
      The difficulty in reconciling those conflicting interests lies at the heart of these two cases. The applicant's argument that “doctors serving as officials should be subject to staff regulations different from those of other officials” must be qualified : it is true that the Staff Regulations should be administered in such a way as to take account of their professional independence as doctors, but it does not follow that they are outside the Staff Regulations.
      As the interlocutory order made by the President of the Second Chamber of the Court on 2 July 1980 emphasizes, “it is not disputed ... that the applicant practised medicine at the Commission — in the way in which she uses the term, that is to say, apparently, having responsibilities connected with the treatment of patients or personal examination of individuals — only after she has been engaged to occupy an administrative post of her own free will, as is shown by her contract of employment of 22 December 1965 and the decision to establish her dated 1 August 1968”. On accepting establishment in the service of the Commission the applicant was certainly not unaware of the consequences entailed and she must have known that as long as she remained an official she could not continue to practise medicine like a doctor in private practice; that was a matter of personal choice such as is binding on the person concerned irrespective of the underlying reasons for it.
      I should point out that, although the applicant no longer had the advantage in that field of the privileged supervisory rôle afforded by medical examinations on recruitment, she had other fields of action such as medical check-ups and taking part in work with the Invalidity Committee.
      Moreover, amongst the duties assigned to her there was still scope for practising the “art of healing”. The number of staff at the Economic and Social Committee, for whom she had to provide medical supervision as part of the duties assigned to her on 14 March 1979, was far from negligible. She retained responsibility for carrying out “medical check-ups” on employees and their families, which are no less essential than the medical examinations which new staff have to undergo, even if they do overlap somewhat with the annual medical examination.
      I should point out that the Court has also made it clear that an official has no right to retain any specific duties save within the limits imposed by the requirement that basic posts should correspond to career brackets and that regard must be had to the description of duties involved in each basic post.
      It is therefore perfectly conceivable that a practitioner of industrial medicine who is an official of the Commission may carry out his work in a “medico-social unit” even if that unit is predominantly social in aspect, provided that in order to resolve “problem cases” submitted to him he is able to propose individual measures which have a chance of taking effect at the administrative level. For example, whilst not checking whether officials' absence for illness is justified, he may, in accordance with Article 7 of Recommendation No 112 of the International Labour Organization of 24 June 1959, decide that such absence does not come under the invalidity procedure but should be dealt with by an adjustment of the conditions of work (working hours, part-time work), a change of posting or duties or, as that recommendation put it, by the adaptation of work to workers. That is an interesting area of activity for the doctor in charge of such a field; he may instigate medical examinations even if he does not undertake them himself. Therefore the “interests of the service” may have been behind the reorganization which led to the change of duties.
      It was not for the applicant, therefore, to claim that there was no basis for the decisions taken by the administration as regards industrial medicine, or that there was no need for them, even though it was necessary for her to take part in the elaboration of those decisions and for the bodies representing the staff to be consulted about them. The expediency of her posting to that unit cannot in principle be a matter for review by the Court either.
      However, the duties which she was to perform thenceforward should have been fixed at the highest level and when she was given notice on 4 May 1979 to “take up her new duties”, to submit proposals on the specialized unit which she was to run and implement a “working plan on the treatment of alcoholic officials”, the applicant rightly felt that her responsibilities did not extend to this.
      It must be admitted that the Director-General for Personnel and the head of the medical branch transferred the entire responsibility for giving specific expression to the decisions which had been taken to the applicant who had great difficulty in obtaining even a coherent organizational chart of the medical branch. Even though she did also have planning or advisory duties as a result of her promotion to Grade A 4 on 7 April 1978, the responsibility for outlining such a programme and defining the duties assigned to her lay primarily with the medical board and the Director-General for Personnel.
      The medical board's task is inter alia to advise the Director-General for Administration, to deal with questions arising in relation to the health and hygiene of staff, to establish regular cooperation between the doctors of the institutions at the scientific, technical and administrative level with a view to achieving standardization and finally to give its opinion on the preparation of the budget of the different medical branches.
      Likewise, the elaboration of a “campaign against alcoholism at the Commission” is, as the applicant believes, not so much the responsibility of a doctor as a matter of a prior definition by the Commission of a comprehensive policy on that subject. The Commission itself stated during the proceedings for the adoption of interim measures that “the requirements of the specialized medical branches have to be determined by the administration alone”.
      The instructions given to the applicant in the letter from the Director-General for Personnel of 4 May 1979 must therefore be declared null and void. However, that does not put in question the applicant's posting by the decision of 8 June 1979 to the specialized medical branch for Brussels staff, but, in so far as she remains in charge of the medico-social unit within that branch, that posting may take effect only after directives as to how that unit is to operate have been issued in circumstances such as I have just described.
      Should the Commission now have available only the post to which Vacancy Notice No COM/847/80 relates and which corresponds only to Career Bracket A 6/A 7, there is nothing to prevent the Commission from reassigning the post which the applicant occupies at present, together with its holder, to the Directorate-General for Research, as it has done on many occasions.
      3.
      It remains to consider the substance of Application 129/80 which seeks, on the one hand, the annulment of the decision of 23 May 1980 of the Member of the Commission responsible for staff matters, transferring the applicant to post COM/229/80 in the Directorate-General for Research and, on the other hand, the award of a sum equivalent to two years' salary by way of compensation for non-material damage. Examination of those claims may be brief in view of what I have just stated.
      Indeed it is sufficient to point out that the preamble to that decision, according to which the applicant “has not adapted herself to the new duties assigned to her in her previous post in the specialized medical branch for Brussels staff”, is incorrect. Although, as is stated in Article 21 of the Staff Regulations, an official is certainly “responsible for the performance of the duties assigned to him”, it is still necessary for those duties to have been defined beforehand. However, that has not been the case.
      I would add, as a subsidiary matter, that the other submissions directed against the transfer do not seem to me to be well founded.
      The applicant alleges that there was a breach of the duty of care and complains that she was not given any notice of the purpose of the meeting on 6 May 1980 with the Director-General for Personnel before she was summoned to it: however, the purpose of the meeting was precisely in order to inform her of the possibility of her being transferred and to obtain her views on the matter. At the hearing Counsel for the applicant did not press this submission.
      As a result of the decision of 23 May 1980 the applicant's duties under the Biology, Radiation Protection and Medical Research Programme are once more related to research, science and education and they are not substantially different from those which she had when she was engaged in 1965 as a temporary employee in Grade A 6 in the Directorate for Health Protection (Hygiene and Atomic Medicine), and was subsequently established in 1968 in the Directorate-General for Social Affairs, after which she occupied a post in the medical branch of the Directorate-General for Personnel and Administration from 1 July 1970. It is therefore incorrect to say that she has performed only medical or clinical work in the service of the Commission.
      What is more, I do not believe that it is appropriate for the applicant to criticize the employment in the medical branch at Brussels of visiting doctors who have no protection under the Staff Regulations whereas she believes that the branch should not be “bureaucratized” and has refrained from performing the purely medical duties, even though residual ones, left to her in the medico-social field.
      Having thus received satisfaction on the issue of annulment, the applicant cannot in addition obtain the compensation for non-material damage which she seeks. Pending the outcome of these cases the interlocutory order of 2 July 1980 stated in paragraph 4 that: “The fact that she has been temporarily asked to carry out duties comparable to those which she had previously applied to perform does not, moreover, amount to a disciplinary measure and does not in any way call Mrs Turner's reputation in question”.
      It is also difficult to see how the applicant's husband, who is also a doctor, might be adversely affected by the transfer, unless it is thought that she practises medicine in collaboration with him.
      I will not dwell any longer on the merits of the second application since the decision of 23 May 1980 must be annulled on the ground that the reasons on which it is based are incorrect.
      My opinion is:
      
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               The letter from the Director-General for Personnel and Administration of 4 May 1979 and the decision of 23 May 1980 transferring the applicant should be annulled;
            
         
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               The remainder of the applicant's conclusions should be rejected; and
            
         
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               Besides paying its own costs, the Commission should bear the costs incurred by the applicant in her two actions, except for those which she incurred in her Application 129/80 R for the adoption of interim measures, which should be borne by the applicant.
            
         (
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         )	Translated from the French.