Opinion Of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. Under Article 28 (e) of the Staff Regulations of Officials of the European Communities, in order to be appointed it is necessary for an official to satisfy, inter alia, the requirement of being physically fit to perform his duties. Article 33 of the same regulations lays down the manner of establishing that requirement. It is the subject-matter governed by those rules which falls to be considered in this case.

2. In its defence the Commission disputes the admissibility of the application, contending that after it was lodged the applicant's interest in its prosecution ceased to exist because in February 1979, after a competition, she was appointed as an official of the European Parliament.

3. Turning to the substance, I would first of all recall that the criticisms made by the applicant of the Commission's decision concern:

4. The second ground of appeal is linked above all to the applicant's assertion that the examinations carried out by the Commission in her case at different times led to contradictory results and, therefore, the decision to declare her physically unfit turned out to lack a proper statement of reasons. Miss M. points out that on three occasions her fitness for office work was recognized by the Commission: first during the period from 1966 to 1974 when she had carried out her work as an official with that institution and again on two occasions in 1977 when she had been engaged, on a temporary basis, still with the Commission, under two six-monthly contracts, the first running from 1 May 1977 and the second running from 1 November 1977. According to Miss M., the fact that her mental health had not been called in question either between 1966 and 1974 or in 1977, makes the adverse medical opinion expressed by the Commission subsequent to the competition on the basis of the expert opinion delivered by the medical branch unreliable. According to the submissions for the applicant, the letter from the Director of Personnel and Administration of 6 October 1977, whereby she was informed that the medical board had considered itself bound to adhere to the finding of unfitness, amounted to the adoption of an attitude which was incompatible with the other findings of fitness and in particular those connected with the two more recent six-monthly contracts.

5. Both the criticism of inadequacy of reasons and that involving error of fact concern the medical opinions upon which the Commission based the decision impugned. It therefore appears to me to be necessary at this point to reconstruct in some greater detail the series of medical examinations which the applicant underwent and the information which she received about them.

6. The results of the medical examinations conducted by the Commission must be looked at, in the first place, with a view to establishing whether or not there has been, as the applicant states, an error of fact. It is appropriate to observe in this regard that if such an error were to be recognized it would be necessary to conclude that Article 28 (e) had been wrongly applied by the appointing authority (in this case, the Commission) for failing to acknowledge the satisfaction of that requirement by a candidate who did in fact comply with it, thereby on that ground unlawfully denying him appointment as an official.

7. I have already stressed how the attitude adopted by the Commission's medical officers in the course of this case has been largely influenced by a particular conception of professional secrecy. According to that conception, the matters upon which a doctor has based his diagnosis (or his prognosis) in a given case may not be disclosed even to a judicial body, even where the patient has expressly authorized the physician to disclose them (which is what has occurred in the case before us). The implicit result of that way of thinking is that, where an administrative decision is based upon a medical assessment, a court is unable to review in any way the logic and the technical accuracy of the assessment but has only a choice between relying upon the clinical opinion already given and entrusting the task of preparing an expert report to another doctor (a solution which is not always practicable when time has passed and circumstances may have changed).

8. The considerations discussed hitherto serve to make clear that, if the Commission has not put the Court in the position of being able to review the reasons for the diagnosis made by its medical officers in regard to the applicant, it is unsound to put forward confidentiality of medical findings as a justification. However, it is now convenient to examine closely another aspect, which is also connected with the problem of medical secrecy. I refer to the insufficiency of the information furnished by Dr Turner to Dr Tombroff, when the latter sought to learn the reasons for which Miss M. had been found physically unfit. In fact, the totally inadequate content of the letter from Dr Turner dated 13 December 1977, which presumably was the result of the conception of medical confidentiality which has already been criticized, represents, in my opinion, the circumstance which most aptly shows that the Commission's decision is also vitiated by the inadequacy of its reasons. It is hardly necessary to observe that that flaw is distinct from and independent of that of error of fact so that it invalidates the disputed decision, leaving aside the accuracy or otherwise of its medical foundation.

9. The applicant has also advanced the same criticism on a different basis: by complaining, that is, of the summary nature of the medical examination carried out by the Commission's doctors — in particular the fact that the psychiatric examination was carried out only by means of a questionnaire — as well as of the procedure followed by the medical board which neither summoned nor visited the applicant and contented itself with perusing the record compiled by their colleagues at first instance.

10. I have recalled that, amongst the criticisms advanced by the applicant, there is one relating to disregard of the rights of the defence and that is in regard to the procedure for reviewing the medical opinion expressed at first instance by the Commission's medical officers. Miss M. complains, in particular, that she was not informed in advance of any opportunity to be heard by the medical board charged with reexamining her case or to place before it an expert report of her own but she also infers that any actual opportunity of preparing such a report and of presenting it to the board was thwarted by the shortness of the period which elapsed between her request for a reexamination and the decision of the medical board (little more than a month: from 6 July to 12 August 1977).

11. The final group of criticisms is concerned with an alleged infringement of two fundamental rights and in particular of the right to equality of treatment without distinction based on sex and the right to the protection of private life.

12. For all the foregoing reasons I would propose that the Court should uphold the application made by Miss M. against the Commission on 17 July 1978 and in consequence should annul the decision of the defendant institution dated 6 October 1977 whereby the applicant was declared physically unfit for the duties of an official. Being unsuccessful, the Commission should be ordered to pay the applicant's costs.

1 Translated from the Italian.