JUDGMENT OF 27. 10. 1977 — CASE 121/76 MOLI v COMMISSION

In Case 121/76

THE COURT (First Chamber) composed of: G. Bosco, President, A. M. Donner and J. Mertens de Wilmars, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Decision

Costs

I —. Facts and procedure

1. On 22 October 1974 the applicant, who had been successful in Open Competition No COM/B/117 held by the Commission to draw up a reserve list for future recruitment of administrative assistants was, with a view to his being placed on the reserve list and in accordance with Article 33 of the Staff Regulations of Officials, medically examined by one of the Commission's medical officers, who declared him physically fit to perform his duties.

2. By letter of 9 March 1976 the Commission informed the applicant of the unsatisfactory outcome of this second medical examination. At the same time it suggested that if he wanted to know the reasons why he was unfit he should ask his own doctor to get in touch with the head of the medical service of the Commission. He was also informed of his right to apply, within 20 days following the date of receipt of the letter, for his case to be re-examined by a medical board consisting of at least three of the institution's medical officers.

3. By letters of 9 and 16 March 1976 Drs d'Avanzo and Nardacci, the applicant's own doctors, asked the medical service of the Commission to communicate to them the reasons for his unfitness whilst, by letter of 10 March 1976, the applicant applied for his case to be reviewed. The grounds for considering him unfit were not communicated to Dr Nardacci before 2 February 1977, that is to say, almost a year later and after the present application was lodged on 15 December 1976. The review applied for was not carried out until seven months after the application, namely, on 21 October 1976. The medical board confirmed the applicant's unfitness to perform his duties.

4. Meanwhile the applicant had, on 20 May 1976, submitted a complaint within the meaning of Article 90 of the Staff Regulations against the report that he was unfit and the resultant decision not to appoint him. This complaint was registered at the Secretariat General of the Commission on 2 June 1976 but evoked no reply from the Commission for more than three months, after which, on 20 December 1976, the applicant brought the present action.

II —. Conclusions of the parties

1. The applicant claims that the Court should:

2. The Commission contends that the application should be dismissed.

3. In his reply the applicant claims that the Court should:

III —. Submissions and arguments of the parties

1. In the application the applicant draws attention to the fact that no reasons were given either for the implied decision rejecting his complaint or for the decision finding him to be unfit. In his view, the fact that the Commission's only reaction to his complaint was an implied decision rejecting it not only confirms that there were no reasons but has made it impossible for him to protect his legal rights.

2. In its defence the Commission contends that the review of legality should be concerned with the decision impugned by the complaint, which was merely confirmed by the implied decision rejecting it

3. With regard to the claim to be appointed as an official the Commission considers that, if the contested decision is annulled, above all because of a defect of form, this does not automatically entail the appointment of the applicant since any appointment must be the subject of a fresh decision by the institution exercising its discretionary power in accordance with the judgment of the Court.

4. With regard to the alternative claim relating to a fresh medical examination, the Commission points out that under Article 33 of the Staff Regulations, a decision regarding the physical fitness of a candidate depends exclusively on examination by the institution's medical officer. There is no provision for any review in the event of objection to the opinion formed by the doctor as a result of that examination. As an act of good management, the institutions have adopted a standard review procedure in the event of the person concerned asking the administration to amend the decision adopted; there is nothing in the provisions in force on which to base a claim for greater protection at administrative level against the outcome of the medical examination.

5. In his reply, the applicant maintains that the absence of a statement of reasons in the report that he was unfit and in the implied decision rejecting the complaint are in breach of Article 25 of the Staff Regulations of Officials in which the institution is expressly enjoined to state the grounds on which a decision adversely affecting an individual is based.

6. In its rejoinder the Commission begins by stating that there is in no circumstances any obligation to appoint a candidate placed on the reserve list even when the candidate has been successful in the tests in the competition and is recognized as being physically fit. The sole purpose of the medical examination is to establish that candidates placed on the reserve list are suitable from the standpoint of their physical condition and the medical examination confers no rights additional to those conferred by success in the competition.

1. The application, which reached the Court Registry on 20 December 1976 seeks the annulment of the implied decision rejecting the complaint lodged by the applicant on 20 May 1976 concerning the decision not to appoint him to a post as administrative assistant and the report that he was unfit drawn up by the medical service of the Commission and notified to him on 8 March 1976.

2. He seeks, in addition, a declaration that he is to be appointed to the post in question or, alternatively, instructions for a fresh medical examination to be held.

3. On 22 October 1974 the applicant, who had been successful in Open Competition No COM/B/117, held to draw up a reserve list for the future recruitment of administrative assistants in posts in Career Bracket B5/B 4, was medically examined as provided for under Article 33 of the Staff Regulations and the outcome of the examination was the report that, at that time, as required by Article 28 (e) of the Staff Regulations, he was physically fit to perform his duties.

4. When a post as administrative assistant fell vacant in January 1976 the applicant was asked, with a view to his possible appointment, to undergo another medical examination, which took place on 11 February 1976 but which on this occasion resulted in a report that he was physically unfit.

5. On 8 March 1976 the responsible officer of the Personnel Division informed the applicant that this report prevented his being engaged and added that, if he wished to know the grounds on which he was declared unfit, he should ask his own doctor to get in touch with the head of the Commission's medical service; in addition, he informed him that he was entitled, within a period of 20 days, to request that his case be reviewed by a board of three doctors connected with the institution.

6. As early as 10 March the applicant pressed for such a review and by letters of 9 and 16 March his two general practitioners asked to be informed of the reasons for the decision that their patient was unfit.

7. As a result of circumstances which the Commission describes as difficulties of a technical character, these doctors received no reply until 2 February 1977, or almost a year later, and after the Commission's review committee had, on 21 October 1976, confirmed the finding of unfitness of which a review had been requested.

8. Meanwhile, because of the length of time taken by the Commission to reply to the request for information made by his own medical advisers, the applicant on 20 May 1976 lodged a complaint within the meaning of Article 90 of the Staff Regulations, against the decision, notified to him on 8 March 1976, not to appoint him. The complaint was registered on 2 June 1976.

9. The Commission again failed to reply to that complaint, with the result that, as from 2 October 1976, the absence of a reply became, in accordance with the fifth subparagraph of Article 90 (2) an implied decision rejecting it, the annulment of which the applicant is seeking through the present application.

10. Whatever may be the consequence which must follow in law from the facts hereinbefore described, 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.

11. In support of his application the applicant points to the absence, contrary to Article 25 of the Staff Regulations, of a statement of the reasons on which both the implied decision arising from the absence of a reply from the Commission and the decision of which he was informed on 8 March 1976 were based.

12. Under the conditions referred to in the fourth subparagraph of Article 90 (2) of the Staff Regulations the statement of reasons on which an implied decision rejecting a complaint is based is necessarily deemed to be the same as the statement of reasons or the absence of reasons for the decision which was the subject of the unanswered complaint, with the result that the grounds for each of them must be reviewed at one and the same time.

13. The refusal, on account of physical unfitness, to engage a candidate for appointment as an official who has been placed on a reserve list, constitutes a decision adversely affecting him within the meaning of Article 25 of the Staff Regulations the reasons for which must in consequence be stated.

14. Nevertheless, the duty to state the reasons must be reconciled with the requirements of professional secrecy which, save in exceptional circumstances, leave the individual doctor to decide whether to communicate to those whom he is treating or examining the nature of the condition from which they may be suffering.

15. This reconciliation is effected through the ability of the person concerned to request and ensure the communication to a doctor of his choice of the grounds on which he has been declared unfit; this information should enable the person concerned, either himself or through his doctor, to judge whether the decision setting aside his appointment conforms with the requirements of the Staff Regulations.

16. Since the head of the medical service considered that the reasons for which the applicant had been declared physically unfit ought to be communicated only to a doctor designated by the applicant, the responsible officer in the Personnel Department had no authority, even if he was aware of the findings which had led to the conclusion that the applicant was physically unsuitable for the vacant post, to disclose them, with the result that the statement of grounds in the communication of 8 March 1976 was adequate provided that, within a reasonable time and in any case before the end of the period within which a complaint must be submitted, the applicant's private doctor was informed and put in a position to advise the applicant whether it was possible to contest those grounds.

17. This was a fortiori the position since by the decision of 8 March 1976 the applicant was invited to have the assessment of his case submitted to review by a committee of three doctors.

18. Although, under legislation at present in force, there is no legal requirement for a meeting of an ad hoc medical board to be held, this does not affect the fact that the administration had expressly invited the applicant to apply for such a meeting for the purpose of instituting a fresh review of his case, that is to say, if necessary, of impugning the findings or assessments made by a single medical officer in February 1976. It had thus committed itself to that procedure.

19. At the same time, in suggesting that the applicant should invite his own doctor to ask to be informed of the grounds justifying the declaration that he was physically unfit, the administration intended to give him the means of effectively challenging those grounds when the case was reviewed.

20. This opportunity was not given to the applicant, with the result that the Commission violated the general principle that when any administrative body adopts a measure which is liable gravely to prejudice the interests of an individual it is bound to put him in a position to express his point of view.

21. In consequence both the decision of 8 March 1976 and the implied decision rejecting the applicant's complaint must be annulled.

22. The applicant further requests the Court to declare that he must be appointed to the vacancy or, failing that, order a fresh medical examination.

23. The Court has no jurisdiction to put itself in the place of the appointing authority and in any case the illegality disclosed does not enable it to be decided whether the applicant does or does not possess the requisite degree of fitness, only that the report on his fitness was drawn up under conditions which were unlawful and that it must be recommenced.

24. It is for the Commission to take the necessary steps to give effect to this judgment.

25. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

26. The defendant has failed in its submissions.

27. The defendant must therefore be ordered to pay the costs of the action.

On those grounds, THE COURT (First Chamber) hereby:

1 Annuls the decision of 8 March 1976 and the implied decision rejecting the applicant's complaint;

2 Dismisses the remainder of the application;

3 Orders the Commission to pay the whole of the costs.