JUDGMENT OF 10. 6. 1980 — CASE 155/78 MISS M. v COMMISSION
In Case 155/78
THE COURT (Second Chamber) composed of: A. Touffait, President of Chamber, P. Pescatore and Lord Mackenzie Stuart, Judges, Advocate General: F. Capotorti Registrar: J. A. Pompe, Deputy Registrar
gives the following
JUDGMENT
Facts and Issues
I — Facts and written procedure
II — Conclusions of the parties
III — Submissions and arguments of the parties
A — The applicant's first submission
B — The applicant's second submission
1. First part
2. Second part
3. Third part
4. Fourth part
C — The applicant's third submission
IV — Measures of inquiry
V — Oral procedure
Decision
Admissibility
Substance
Costs
I —. Facts and written procedure
II —. Conclusions of the parties
1. The applicant claims that the Court should:
2. The Commission contends that the Court should:
III —. Submissions and arguments of the parties
A —. The applicant's first submission
1. The applicant contends that even if the medical examination in question were sound, she is suffering from psychical or psychological unfitness. In her view, however, only physical unfitness may be taken into account in the context of Article 33 of the Staff Regulations.
2. The Commission is of the view that the word physical also embraces psychological and psychiatric aspects of the human being. It considers that the physical fitness must be contrasted with suitability of character and ability to perform his duties as referred to in Article 28 (c) and (d) of the Staff Regulations. In its opinion, it is the law in the Member States that examination of physical fitness for entry to the public service also covers psychical or psychological aspects of the candidate's personality. According to the Commission, afflictions such as nervous depression or a neurasthenic or neurotic condition having their origin in a psychological or psychical deficiency and constituting physical unfitness have properly justified incapacity for work or physical unfitness within the meaning of the Staff Regulations and, where appropriate, an acknowledgment of invalidity.
3. The applicant replies that, having regard to the principle of the protection of the private life of individuals, the adverb physically in the provision in question must be construed narrowly. According to the applicant, the distinction between physical unfitness and mental unfitness is so fundamental that where a Member State, for example, Belgium, wishes to extend a medical examination to encompass mental fitness as well, it does so by express provision. The applicant submits finally that, even if psychical or psychological aspects of a person may be taken into account in determining physical fitness (which is denied), only a physical disability or illness resulting from psychical or psychological disorder is capable of being regarded as physical unfitness within the-meaning of the Staff Regulations. The Commission has not pointed to any physical unfitness stricto sensu and the psychical and/or psychological factors relied upon do not involve any physical disability or any physical disease.
4. In its rejoinder the Commission submits that as in the law of the Member States relating to the public service, the adverb physically, in the context of the Staff Regulations, embraces all medical aspects of a person. In its view, the concept of physical fitness must be placed side by side with the concept of invalidity taken into consideration by the Staff Regulations as the condition for termination of service. According to it, almost half of the cases of retirement on grounds of invalidity during the course of a career are for reasons of a neuropsychiatrie or even psychological nature. It follows, in the Commission's view, that if such a finding of invalidity is permissible in regard to neuropsychiatrie or psychological disorders, disorders of the same nature must also lead to a finding of physical unfitness at the time of recruitment.
B —. The applicant's second submission
1. First part
(a). The applicant contends that the Commission's actions are self-contradictory — which is equivalent to an absence of grounds for the decision in question — inasmuch as it alleges that the applicant does not fulfil the conditions of physical fitness required for exercise of her duties by reason of over-frequent absences whereas, on the one hand, it re-engaged the applicant for a period of six months and, on the other hand, the applicant worked for the Commission for six months giving complete satisfaction.
(b). The Commission observes that the applicant may not rely on the contract of 1 November 1977: that was concluded having regard to the proceedings then in course, pending the opinion of the medical branch and solely as a result of its concern not to cause any serious prejudice to the applicant. Even if on the conclusion of the first contract as a member of the auxiliary staff the applicant had been regarded as fit temporarily to perform duties in the service of the institutions — which is denied — it may not, according to the Commission, be inferred that she was fit to take up a post as an official which was of a permanent nature. Fitness, in fact, is to be judged in regard to the duties and the foreseeable duration of the employment.
2. Second part
(a). The applicant contends further that the medical opinions upon which the Commission proceeded are vitiated by errors of fact. A neuro-psychiatric report submitted to the Court by the applicant concludes indeed as follows:
(b). The Commission observes that five doctors, of whom one specialist did not belong to the Commission's medical branch, arrived at an opinion consistent with her being unfit. It adds that it has never been alleged that the applicant was suffering from mental illness. The neuro-psychiatric report produced by the applicant accordingly does not demonstrate that the doctors, upon whose opinion the Commission proceeded, committed an error of judgment in deciding at a given time that, having regard to certain neurological or psychiatric deficiencies, the applicant was unfit to assume the career of an official.
3. Third part
(a). The applicant takes issue with the practice of the medical branch of the Commission which, according to the applicant, proceeds by way of questionnaires and without any medical examination. Even more serious is the practice of the medical board, which gives its opinion on the basis only of the records compiled by their colleagues and without seeing the person concerned. According to the applicant, such a procedure can only result in an inappropriate opinion because it is a summary one and can only give rise to an insufficient statement of the grounds on which it is based. In the applicant's view, a decision based on an opinion given on such grounds is vitiated and must be annulled.
(b). According to the Commission it is not reasonable to maintain that the medical opinion given by three doctors in this case produced only insufficient grounds and to criticize the Commission for having based its decision on their opinion. Quoad ultra this part of the submission is indistinguishable from the fourth part of the submission inasmuch as it is concerned with the legitimacy of the practice of the medical board constituted to review the applicant's case.
4. Fourth part
(a). In the context of this part and applying the principles of the judgment of the Court of 27 October 1977 in Case 121/76 Alessandro Moli v Commission of the European Communities [1977] ECR 1971 the applicant states that:
(b). The Commission is of the view that this part of the second submission is based upon a distorted reading of the text of the letter of 5 July 1977. According to the Commission, that letter in no way presented the applicant with an alternative but, quite on the contrary, with two courses, both of which she could follow. The Commission recalls that the tenor of the said letter was approved by the Court in the opening sentence of paragraph 19 of its decision in the judgment in Case 121/76, Moli. The Commission adds that the administration is not to blame if the applicant deprived herself of the right to make known her point of view. It comes ill of the applicant to blame the medical board for not having invited her to make known the grounds for her request for review or for not having expected that she would give those grounds a posteriori. According to the Commission, to adopt the applicant's requirements would lead to the administration's being paralysed. Since the applicant had at her disposal the 20-day appeal period and the 36 days taken by the ad hoc medical board, she had ample time to arrange to present her case, to obtain a responsible alternative report and to submit it to the medical board. Thus, of her own volition she deprived herself of the rights of defence open to her and the board in no way infringed those rights.
C —. The applicant's third submission
1. The applicant claims in the context of this submission that of ten candidates subjected to special examinations such as the neuro-psychiatric examination eight or nine are women. She states, further, that women candidates are the victims of unequal treatment inter se since only certain of them are obliged to undergo a special examination. The applicant adds that no mention of those examinations is made upon publication of the notice of the competition leading to recruitment. Moreover, no provision lays down criteria or an objective procedure which would permit the said examinations to be reviewed.
2. The Commission observes in regard to this submission that the special examinations in no way amount to inequality in treatment. Those examinations, which are decided upon by the medical officers of the institutions on the basis of medical criteria, have the sole purpose of permitting them to give a medical opinion based upon an examination of all facets of the fitness required.
IV —. Measures of inquiry
V —. Oral procedure
(a). What is involved is a preventive medical examination required at the instance of the Community authority in the context of a recruitment procedure and in such manner that there does not exist the relationship of confidentiality which is characteristic of the situation of a person who seeks the assistance of a medical practitioner for therapeutic ends and who places the latter in the position of being a necessary confidant;
(b). The applicant has expressly released the medical practitioners from their obligation of secrecy as regards her.
1. The application seeks the annulment of the implied decision rejecting the complaint submitted by the applicant on 21 December 1977 against the finding of unfitness which was made in her case by the medical branch of the Commission and which was notified to her by letter of 6 October 1977.
2. The applicant was an official of the Commission in Grade C 4 from 1966 until her resignation in 1974. On 28 October 1976 she applied afresh to take part in Competition COM/C/149, arranged by the Commission with a view to the constitution of a reserve for future recruitment of Category C officials. She was successful in that competition and underwent, on 5 April 1977, the medical examination provided for by Article 33 of the Staff Regulations. After being first examined by the medical officer she was invited to undergo a neuro-psychiatric examination. Following upon the examination by the specialist she was informed by letter of 5 July 1977 that she did not fulfil the conditions for physical fitness required for the performance of her duties. That letter added that, should the applicant wish to know the reasons for that unfitness, she might request her own doctor to get in touch with the head of the medical branch of the Commission. She was told, moreover, that is was open to her, within a period of 20 days, to request the re-examination of her case by a medical board composed of three doctors chosen from amongst the medical officers of the institution.
3. The applicant first availed herself of the latter opportunity. She was informed on 6 October 1977 that the medical board had decided to confirm the earlier opinion of the medical branch. At the request of the applicant's own doctor a report summarily giving the reasons for the unfitness was sent to him on 21 November 1977 and, in reply to a further request from her own doctor on 28 November, a number of additional details were disclosed on 13 December 1977.
4. In support of her application the applicant argues, first, that only physical unfitness may be taken into account under Article 33 of the Staff Regulations and that, being based on her alleged psychological or psychical unfitness, the decision under attack was ultra vires. The applicant also alleges that the decision in question is vitiated by errors of fact and, in any event, does not state sufficiently the reasons upon which it is based. Finally, she contends that the decision in question breaches the general principles of equality of the sexes and equality of treatment inasmuch as the Commission submits female candidates to a neuro-psychiatric examination more systematically than male candidates.
5. The Commission has disputed the admissibility of the application submitting that in the course of the proceedings the applicant had lost any interest in suing since in the meantime she has been appointed an official of the European Parliament in February 1979.
6. That objection to the admissibility of the application cannot, however, be upheld. Although it is true that following upon that appointment the applicant may, if appropriate, request her transfer to a vacant post with the Commission under Article 29 (1) (c) of the Staff Regulations, that prospect, hypothetical in its nature, may not be likened to the position in which she would have found herself had she been entered since 1977 on a list of suitable candidates permitting her to be directly appointed to the Brussels office of the Commission. On any view, it is plain that the applicant has an interest in causing to be withdrawn any trace of a finding of unfitness at a psychical level. It follows that the applicant has retained an interest in obtaining a declaration of any possible illegality in the finding of unfitness which she has called in question.
7. In the first submission it is alleged that the Commission has incorrectly applied Articles 28 (e) and 33 of the Staff Regulations in taking into account the alleged psychological or psychiatric unfitness of the applicant. According to the latter, the concept of physical fitness mentioned in Article 28 (e) of the Staff Regulations, to which Article 33 refers, does not encompass fitness from a psychological or psychiatric point of view.
8. Article 28 (e) provides that an official may be appointed only on condition that he is physically fit to perform his duties.
9. Article 33 of the Staff Regulations states in this regard that before appointment, a successful candidate shall be medically examined by one of the institution's medical officers in order that the institution may be satisfied that he fulfils the requirements of Article 28 (e).
10. The purpose of the examination provided for by Article 33 of the Staff Regulations is to allow the institution concerned to determine whether, from the point of view of his health, the candidate is capable of fulfilling all the obligations which are capable of falling upon him having regard to the nature of his duties. To that end the medical officer of the institution may legitimately take into account, on the basis of all relevant medical criteria, not only possible physical deficiencies in the strict meaning of the word but also psychical or psychological disorders of such a nature as to affect the fulfilment by the candidate of his duties as an official.
11. In that regard it is even possible to envisage that a finding of unfitness may be based not only on the existence of actual disorders but also on a medically justified prognosis of future disorders capable of jeopardizing in the foreseeable future the normal performance of the duties in question.
12. The submission relating to the infringement of Articles 28 (e) and 33 of the Staff Regulations must therefore be rejected as unfounded.
13. In essence, the three other submissions advanced by the applicant call in question the correctness of the conclusions reached by the medical officers of the defendant institution and the manner in which they performed their task.
14. Those submissions call for a general observation. It is not for the Court to substitute its own judgment for that of the doctors on questions which are specifically medical. But it none the less remains for the Court, in the context of the task, which is peculiar to it, of reviewing whether the recruitment procedures have followed a lawful course and thus of assessing whether the candidate fulfils the conditions required by Article 28 (e) for the performance of his duties, to consider whether it has available to it all information relevant to the reaching of its decision.
15. In this case the medical practitioners instructed by the Commission to examine the applicant objected to the production of the applicant's medical records. Moreover, when the Court ordered the appearance of the said practitioners, they refused to give any information concerning the conduct of the examinations carried out by them, relying on the confidentiality of medical findings, even though the applicant had formally released them from the obligation to observe it.
16. In regard to the protection of the confidentiality of medical findings in recruitment procedures the Court has already decided in its judgments of 27 October 1977 and 13 April 1978 in Case 121/76 Moli v Commission of the European Communities [1977] ECR 1971 and Case 75/77 Mollet v Commission of the European Communities [1978] ECR 897 respectively that the obligations to state the reasons for a refusal to engage a candidate as an official on grounds of physical unfitness must be reconciled with the requirements of confidentiality 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.
17. The Court added that that reconciliation is normally effected through the ability of the person concerned to request and ensure the communication to a doctor of his choice of information which should in particular enable the person concerned, either directly or through his doctor, to judge whether the decision refusing his appointment is in accordance with the provisions of the Staff Regulations.
18. In this case it appears that the information communicated to the candidate's own doctor was so scant that it was not possible for him to advise her satisfactorily or for her to see to the defence of her interests. In these circumstances the Court has'been obliged to consider the question whether the doctors in the confidence of the Commission may, by relying on the confidentiality of their findings, properly refuse to give information indispensable to the carrying out of a review of the legality of the Commission's actions.
19. With a view to preparing an answer to that question the Court requested the Commission to draw up a study of comparative law on the question of the confidentiality of medical findings under the laws of the various Member States of the Community. It appears from that study that although it is true that in all the Member States such confidentiality is protected because of the confidential relationship which is formed between the patient seeking treatment and the doctor the laws of all the Member States also recognize — albeit to a variable extent — certain limits to the scope of that confidentiality. Such limits result, in particular, from the following circumstances.
20. In this case it must be observed that the applicant has expressly given her consent to all relevant information relating to the medical examinations which were carried out being given to the Court. The medical examinations in question were carried out pursuant to the Staff Regulations in the context of an administrative recruitment procedure the legality of which must, at every stage, be capable of review by the Court. In these circumstances the refusal to give any information whatever concerning the basis of the medical records and the reliance, by the doctors in the confidence of the Commission, on the confidentiality of medical findings as grounds for refusing to provide any useful indication has the result of making it impossible for the Court to carry out the judicial review entrusted to it by the Treaty and the Staff Regulations.
21. It follows that the implied decision rejecting the complaint through official channels submitted by the applicant on 2 December 1977 and the decision holding her physically unfit contained in the defendant's letter of 6 October 1977 must be annulled.
22. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has failed in its defence it must be ordered to pay the costs.
On those grounds, THE COURT (Second Chamber) hereby:
1 Annuls the implied decision rejecting the applicant's complaint of 21 December 1977 and the decision holding her physically unfit contained in the Commission's letter of 6 October 1977;
2 Orders the Commission to pay the costs.