Opinion of Advocate General Van Gerven delivered on 27 April 1994

1 Original language: Dutch.

2 [1992] ECR II-2195.

3 On this point the facts in this case differ basically from the facts which formed the basis of the judgment delivered by the Court of First Instance on 14 April 1994 in Case T-10/93 A v Commission [1994] ECR II-179. In fact on the occasion of the medical examination which he underwent with a view to recruitment, the applicant in Case T-10/93 informed the Commission medical officer that he was HIV-positive and stated his willingness to undergo an HIV test (judgment in Case T-10/93, at paragraph 3).

4 At the same time the applicant made an application for the adoption of interim measures suspending the operation of the Commission decision of 6 June 1989. By order of the President of the Second Chamber of the Court of Justice of 31 July 1989 that application was declared inadmissible for lack of interest in making the application, since suspension of the operation of the Commission decision of refusal could not have the effect of changing the applicant's position. See Case 206/89 R S v Commission [19S9] ECR 2841, paragraphs 14 and 15.

5 Further details of the course of the procedure before the Court of First Instance may be found in paragraphs 16 to 31 of the contested judgment.

6 This must be interference by a public authority. However, in this case it is not contested that that condition is met.

7 Both the contested judgment and the observations submitted to the Court by all parties show that this point is generally appreciated.

8 Cf. inter alia the judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, at paragraph 19, and section 30 of my Opinion in Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan [1991] ECR I-4703.

9 [1992] ECR I-2575. at paragraph 23.

10 [1992] ECR I-3997, at paragraph 21.

11 Moreover I am doubtful whether the quotation from the judgment in Case C-18/91P must be interpreted in the sense suggested by the Commission. No single provision of the Statute of the Court of Justice of the EEC or of the Rules of Procedure prohibits reliance in an appeal upon pleas in law not put forward at first instance. A number of the pleas in law typically put forward in an appeal (for example those regarding defective statement of reasons in the contested judgment) cannot even be put forward at first instance.

12 See paragraphs 35 and 53 et seq. of the contested judgment.

13 Case 2/57 Hauts Fourneaux de Chasse v High Authority [1957 and 1958] ECR 199, at p. 206.

14 In this connection the Commission refers in particular to the Conclusions of the Council of 13 November 19S9, which it adds as an annex to its reply. On closer scrutiny it appears to involve a document published at a later date, the Resolution of the Council and the Ministers for Health of the Member States, meeting within the Council of 22 December 1989 on the fight against AIDS (OJ 1990 C 10, p. 3).

15 The Council and the Governments have in fact opposed compulsory screening tests: see in particular the Conclusions of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 31 May 1988 concerning AIDS (OJ 1988 C 197, p. 8); the Conclusions of the Council and the Ministers for Health of the Member States, meeting within the Council on 15 December 1988 concerning AIDS and the place of work (OJ 1989 C 28, p. 2, see in particular paragraph 7) and the Resolution of 22 December 1989, above, previous footnote. As far as I know, however, they have never recommended optional tests.

16 As appears from paragraph 47 of the contested judgment already quoted (in section 2), the proposed supplementary examinations consisted in an additional screening not only for the HIV-1 virus but also for the HIV-2.

17 See the Protocol on the Statute of the Court of Justice of the EEC, signed at Brussels on 17 April 1957, as amended by Article 7 of Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities (88/591/ECSC, EEC, Euratom) (OJ 1988 L 319, p. 1; corrected version: OJ 1989 C 215, p. 1). See also the judgment of the Court in Case C-238/90P Vidrányi v Commission [1991] ECR I-4339, paragraphs 11 and 12, as confirmed by the judgment in Case C-346/90P F v Commission [1992] ECR I-2691, paragraph 7).

18 Paragraph 23 of the judgment, previously cited in footnote 8.

19 In paragrapli 58 of the contested judgment the Court of First Instance too has already observed that the taking of blood in order to investigate the possible presence of HIV antibodies constitutes interference with the physical integrity of the person concerned.

20 See respectively the judgment of the European Court of Human Rights of 26 March 1985 Case of X and Y v The Netherlands, Publications of the European Court of Hmnan Rights (hereinafter referred to as Publications), Series A: Judgments and Decisions {hereinafter referred to as Series A), Vol.91, 1985, paragraph 22 (private life, a concept which covers the physical and moral integrity of the person) and the Report of the European Commission of Human Rights of 1 March 1979, Application No 7654/76 D. Van Oostcrwijh against Belgium, Publications, Senes B Pleadings, Oral Arguments and Documents, Vol. 36, 1983, p. 10, paragraph 44 (The disclosure or improper discovery by third persons of facts relating to physical condition, health or personality may undoubtedly interfere with the applicant's privacy and private life).

21 Report of 12 July 1977, Application No 6959/75 Briiggemann and Scheuten v Federal Republic of Germany, Decisions and Reports, Vol. 10, 1978, p. 100, paragraph 56.

22 According to A. Nieuw, Informed Consent, Medicine and Law, 1993, p. 125, this expression was established in the United States in Natanson v Kline [186 Kan 393, 350 P 2d 1093 (1960)]: The law requires that the inroads made upon a person's body take place only with informed voluntary consent of that person. See also R. Faden, T. Beauchamp and N. King, A History and Theory of Informed Consent, Oxford, 1986, and the basic study in comparative law by T. Vansweevelt: De civielrechtlijke aansprakelijkheid van tie geneesheer en het ziekenhuis, Reeks aansprakelijkheidsrecht, Antwerp, 1992, pp. 262 to 306, 313 and 314.

23 See for example H. Leenen, S. Gevers and G. Pinet: The Rights of Patients in Europe, World Health Organization — Regional Office for Europe, Kluwer, Deventer, 1993, pp. 7 to 47.

24 See for example H. Leenen, Handboek gezondheidsrecht-Rechten van mensen in de gezondheidszorg, Alphen 1988, pp. 26 et seq., 160 et seq. and 170 et seq.; H. Nys, Geneeskunde — Recht en medisch handelen, Algemene Practische Rechtsverzameling, Brussels 1991, pp. 135 to 138, 143 and 144.

25 See the works, mentioned in the previous footnote, by H. Leenen, p. 161, and H. Nys, pp. 135 and 136.

26 As regards that question, which involves an appreciation of fact, the Court of First Instance made the definitive finding in paragraph 58 of the contested judgment that the applicant has ... not shown that he was subjected to a dissimulated HIV antibody screening test.

27 In his appeal and in his observations during the oral procedure before the Court of Justice, the appellant remarked that he was still normally active, which would be a factual refutation of the medical officer's diagnosis. This last question is of course not a matter for the Court of Justice.

28 See the judgment in Case C-62/90, previously cited in footnote 8, and paragraph 23 thereof, quoted in section 22 above.

29 Exceptions to the general law laid down in Article 8(1) of the Convention must be strictly interpreted. Cf. also the judgment of the Court of Human Rights of 21 February 1975, Publications, Series A, Golder, Vol. 18, 1975, paragraph 44.

30 Cf. the judgment of the Court of Human Rights of 24 March 1988, Olssen Case, Publications, Series A, Vol. 130, 1988, paragraph 67: The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.

31 I can leave aside here the question whether that article also has horizontal effect since the interference at present in question emanates from a public authority. It does not seem to me relevant here that the authority was acting not as a legislative authority but as an employer.

32 Cf. the judgment of the Court of Human Rights of 25 March 1985, Barthold Case, Publications, Series A, Vol. 90, paragraph 45, according to which the requirement of a legal basis means that the interference must have some basis in domestic law, which itself must be adequately accessible and be formulated with sufficient precision to enable the individual to regulate his conduct, if need be with appropriate advice.

33 See, as regards the articles in question, Council Regulation No 31 (EEC), 11 (EAEC) of 18 December 1961 (OJ, English Special Edition 1959-1962, p. 135), Council Regulation (EEC, Euratom, ECSC) No 259/68 of 29 February 1968 (OJ, English Special Edition 1968 (I), p. 30), Council Regulation (Euratom, ECSC, EEC) No 912/78 of 2 May 1978 (OJ 1978 L 119, p. 1) and Council Regulation (ECSC, EEC, Euratom) No 2799/85 of 27 September 1985 (OJ 1985 L 265, p. 1).

34 I therefore do not agree with the appellants statement that the medical examination is prescribed exclusively in the interests of the institutions.

35 I leave out of account here — because, as the Court of First Instance states in paragraph 58 of the contested judgment, it does not arise — the question whether the Commission may refuse to appoint a candidate who does not wish to proceed with the question of informed consent to a more searching examination.

36 Moreover the appellant relies on exactly the same facts as at first instance.

37 Footnote 16, above.

38 Vidrányi judgment, paragraphs 16, 17 and 18.

39 Applicable by analogy by virtue of the second paragraph of Article 13 of the Conditions of Employment.

40 Cf. section 13, above.

41 [1981] ECR 1883, it paragraphs 41 and 42.

42 Sec inter alia the judgments in Case 322/81 Michelin v Commission [1983] ECR 3461, at paragraph 7; in Case 85/87 Dow Benelux v Commission [1989] ECR 3137, at paragraph 25; in Case C-49/88 Al-Jubail Feitlhzer v Coimai [1991] ECR I-3187, at paragraph 15; and in Case T-I1/S9 Shell v Commission [1992] ECR II-757, at paragraph 39.

43 See inter aha the judgments in Case 115/80 Démont v Commission [1981] ECR 3147, at paragraphs 6 to 12 (see particularly paragraph 11); in Case 319/85 Misset v Coimai [19SS] ECR 1861, at paragraph 7; in Case T-S2/S9 Murato v Commission [1990] ECR II-735, at paragraph 7S; and in Case T-109/92 Lacruz Bassols v Court of Justice [1994] ECR II-105, at paragraphs 67 to 70.

44 The European Commission of Human Rights has frequently decided that litigation concerning access to, or dismissal from, civil service falls outside tile scope of ... the Convention. See the Decision of 10 October 1983, Application No 9248/81 Leander v Sweden, D&R, Vol. 34, 1983, p. 78 at p. 83 (English) and p. 91 (French) (with references to previous decisions). On the other hand there is the point that access to an appointment with the Commission has important consequences as regards rights which are indeed of a civil, such as the right to a pension and the right to social security. The International Pedcration points in hat connection to a recent judgment of the Court of Human Rights on pension rights of officials: judgment of 26 November 1992, Lombardo, Publications, Senes A, Vol. 249-C 1992, paragraph 16.

45 The composition of other committees established by the Staff Regulations docs not give such an appearance. The Invalidity Committee, for example, established by Article 9 of the Staff Regulations, shall consist of three doctors, one appointed by the institution to which the official concerned Dclongs, one appointed by the official concerned and one appointed by agreement between the first two doctorsle 7 of Annex II to the Staff Regulations).

46 Cf. the judgment of the Court of Human Rights of 22 October 1984, Sramek, Publications, Scries A, Vol. 84, 1984, paragraph 42.

47 Judgments of the Court of Human Rights of 23 June 1981, Le Compte, Van Leuven and De Meyere, Publications, Series A, Vol. 43, 1981, paragraph 51, and of 10 February 1983, Albeit and Le Compte, Publications, Seríes A, Vol. 58, 1983, paragraph 29; Opinion of the Commission of Human Rights (as formulated in the Report of 3 July 1985), published as annex to the judgment of 23 April 1987, Ettl and Others, Publications, Series A, Vol. 117, p. 21, paragraphs 77 and 78; see also P. Van Dijk and G. van Hoof, De Europese Conventie in theorie en praktijk, Nijmegen, 1990, pp. 340 and 341.

48 The decision-making process of a Medical Committee is not lawful if the procedure before it was irregular or if the committee relied on erroneous concepts or if there is no comprehensible link between its medical findings and the conclusions of its report. See the judgments in Case 189/82 Seingry, née Seller v Council [1984] ECR 229, at paragraph 15; in Case 277/84 Jänsch v Commission [1987] ECR 4923, at paragraph 15; and in Case T-154/89 Vidrányi v Commission [1990] ECR II-445, at paragraph 48. There is also an irregularity if the report of a Medical Committee does not contain a statement of reasons from which it is possible to judge what considerations served as the basis for the findings contained therein. Judgments in Case 257/81 K. v Council [1983] ECR 1, at paragraph 17; in Case T-165/89 Plug v Commission [1992] ECR II-367, at paragraph 75; and in Case T-43/89-RV Gill v Commission [1993] ECR -303, at paragraph 36.

49 See the judgments in Case 156/80 Morbelli v Commission [1981] ECR 1357, at paragraph 20; in Case 265/83 Suss v Commission [1984] ECR 4029, at paragraph 11; in Case 2/87 Biedermann v Court of Auditors [1988] ECR 143, at paragraph 8; the Plug case (previous footnote), at paragraph 75; the Vidrányi case (previous footnote), at paragraph 48.

50 As he did at first instance (section 3 above) the appellant is also claiming in so far as is necessary the annulment of the decision of 22 March 1989 by which the Commission's medical officer gave a negative medical opinion and of the decision of 26 May 1989 in which the Medical Committee confirmed that opinion. Purely in the alternative the appellant also claims the annulment of the letter of 28 March 1989 in which the Head of the Careers Division informed the appellant that he could not be recruited. I do not think it is necessary to go into these claims: if, as proposed in this section, the letter of 6 June 1989 is annulled or the reasons I have given, the medical opinion of the medical officer and its confirmation by the Medical Committee — assuming that they constitute acts which may be challenged by an action for annulment — will no longer be of any effect as regards the appellant.

51 Paragraph 73 of the contested judgment might wrongly give the impression that the applicant was claiming compensation for nonmaterial damage solely for the second reason.

52 The opposite is also true: the inadmissibility of a claim for annulment leads to the inadmissibility of a claim for compensation for damage which is closely connected therewith. See inter aha the judgments in Case 129/75 Hirschberg v Commission [1976] ECR 1259, at paragraph 22; in Case 33/80 Albim v Council and Commission [1981] ECR 2141, at paragraph 18; and in Case T-5/90 Marcato v Commission [1991] ECR II-731. at paragraph 49.

53 Latham v Commission [1994] ECR II-61, at paragraph 34, and [1994] ECR II-83, at paragraph 37.

54 The appellant is contesting here not the Commission's decision to subject him without his knowledge to a T4/TS test and to find him, partly on the basis thereof, physically unfit but the Commission's conduct in publishing in the Official Journal his initials and his place of residence in Portugal.

55 [1989] ECR 1877, at paragraph 22.

56 Judgment previously cited in footnote 51, paragraphs 49 — en

57 Marcato judgment, paragraph 50, where the applicant had also failed to submit a prior request for compensation for the damage of which he complamed.

58 See sections 19 and 25 of my Opinion in relation to the judgment in Case C-68/91 P Moritz v Commission [1992] ECR I-6849.