Opinion of Advocate General

Mr President,

Members of the Court,

1. This case concerns an appeal against the judgment of the Court of First Instance delivered on 18 September 1992 in Joined Cases T-121/89 and T-13/90, hereinafter referred to as the contested judgment. The appeal raises a number of legal questions concerning the medical examination on recruitment of applicants for appointment as officials and other members of the staff of the Community institutions. These legal questions relate to the right to respect for private life, the duty to state the reasons on which a measure is based and the right to a fair hearing.

Facts and procedure

2. In the light of the pleas in law which have been put forward, the following paragraphs of the contested judgment and the findings of the Court of First Instance therein seem to me to be relevant (the italics are mine; because of the chronological order of the facts, I have quoted parts of paragraph 47 of the judgment in three places):

3. On 4 July 1989 the applicant brought an action, at that time still before the Court of Justice, which was registered as Case 206/89, for annulment of the decision of 6 June 1989, in so far as necessaiy, of the opinion of the medical officer of 22 March 1989 and of the decision of 26 May 1989 in which the Medical Committee confirmed that opinion and purely in the alternative, of the decision of 28 March 1989 by which the offer of the post of typist was withdrawn. By order of 15 November 1989 the Court of Justice transferred this case to the Court of First Instance, where it was registered as Case T-121/89. On 3 March 1990 the applicant brought before the Court of First Instance a second application, registered as Case T-13/90, seeking compensation for the damage which he claimed to have suffered as a result of the Commission's conduct. By order of 24 October 1990 the Court joined the two cases. Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber) first asked the applicant to submit his observations with regard to the possible production of his full medical records. The applicant stated that he had no objection to their production and the Court then asked the Commission to produce the medical file regarding the applicant's physical unfitness, together with the other relevant documents, and put a number of questions to the parties in writing. The Commission produced the file and the parties replied to the questions put to them, whereupon the Court opened the oral procedure on 12 May 1992; on 18 September 1992 the Court delivered the contested judgment which I shall presently analyse in greater detail (sections 5 to 10 below). The applicant's actions were dismissed on all points.

4. On 2 December 1992 the applicant appealed to the Court of Justice against the contested judgment. In addition to the appellant and the Commission, the respondent, the Union Syndicale, Brussels (hereinafter referred to as the Union Syndicale), and the Fédération Internationale des Droits de l'Homme (hereinafter referred to as the International Federation) submitted observations to the Court of Justice. By decisions of 13 February and 24 October 1990 the Court of First Instance had allowed the Union Syndicale to intervene in Case T-121/89 and Case T-13/90 respectively. By decision of 12 July 1993 the Court of Justice allowed the International Federation to intervene in the procedure on appeal. Both interveners support the appellant's claims.

The contested judgment

5. In Case T-121/89 the applicant put forward before the Court of First Instance four pleas in law, namely infringement of the right to a fair hearing (first plea), of the requirement in Article 25 of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the Staff Regulations) that a decision adversely affecting an official shall state the grounds on which it is based (second plea), of Article 8 of the Convention and the Conclusions of the Council and the Ministers for Health concerning AIDS (third plea) and of the principle of the protection of legitimate expectation and good faith and the prohibition of abuse of process (fourth plea).

First and second pleas in law at first instance

6. In paragraphs 36 to 40 of the contested judgment the Court of First Instance summarizes the arguments of the various parties and in paragraphs 41 to 45 calls attention to the relevant principles as follows:

7. After setting out those findings in paragraph 47 of the judgment (largely quoted already in section 2 in my survey of the facts), the Court of First Instance rejected the first plea in law in paragraphs 48, 49 and 50 in the following terms:

8. The second plea in law, relating to Article 25 of the Staff Regulations, was rejected by the Court of First Instance in paragraph 51 of the judgment in the following terms:

Third and fourth pleas in law at first instance

9. The Court of First Instance set out in paragraphs 53 to 57 of the contested judgment the parties' arguments with regard to the third plea in law (in particular infringement of Article 8 of the Convention) and rejected it in paragraphs 58 and 59 in the following terms:

The application for compensation

10. The arguments of the parties with regard to the application for compensation in Case T-13/90 were set out by the Court of First Instance in paragraphs 66 to 72 of the contested judgment and rejected in paragraphs 73, 74 and 75 for the following reasons:

First plea in law on appeal: infringement of the right to protection of private life

11. In the first plea in law the appellant states that the Court of First Instance wrongly decided that his right to protection of private life, as guaranteed by Article 8 of the Convention, was not infringed by the manner in which he was medically examined and declared physically unfit. Before considering the three parts of this plea separately I should like briefly to examine Article 8 of the Convention and the Commission's argument that the first plea in law is partially inadmissible.

12. Article 8 of the Convention is worded as follows:

13. In its response the Commission contends that the appellant's first plea in law is inadmissible in so far as it calls in question the compatibility with Article 8 of the Convention of any AIDS test prior to the appointment of officials and temporary employees. This question, it states, was not discussed in the proceedings before the Court of First Instance where it was only a matter of the applicant's assertion that he had been subjected to a concealed AIDS test. In support of its objection of inadmissibility the Commission relies on the judgment in Case C-18/9IP V v Parliament, in which the Court stated that:

First part: permissibility of AIDS tests on recruitment

14. This part may itself be divided into two subdivisions. The first (section 15 below) concerns the statement of the Court of First Instance that AIDS tests may be effected on a candidate for appointment if he has expressly given his consent; the second subdivision (section 16 below) concerns the conclusions drawn by the Court of First Instance from the finding that the applicant's own doctor did not arrange for the supplementary tests suggested by the medical officer.

15. In paragraph 58 of the contested judgment, already quoted (section 9 above) the Court of First Instance stated that

16. The second subdivision of the first part of the appellant's first plea in law relates to paragraph 51 of the contested judgment, quoted in section 8 above. From its finding that the applicant's own doctor did not arrange for the supplementary HIV tests suggested by the medical officer, the Court of First Instance, he states, wrongly deduced in that paragraph that his own doctor did not cooperate with the Medical Committee. In fact, according to the appellant, his own doctor could not carry out the proposed examinations because Article 8 of the Convention prevents any HIV test as part of an examination on recruitment and thus also an HIV test effected by a candidate's own doctor. By failing to acknowledge that, the Court of First Instance infringed Article 8 of the Convention.

Second part: proof that an AIDS test was carried out

17. With the second part of his first plea in law the appellant challenges the statement of the Court of First Instance in paragraph 58 of the contested judgment (section 9 above) that the applicant in this case has not established that he was, without his knowledge, subjected to a specific AIDS screening test.

18. The Commission contends that this part of the appellant's first plea in law is inadmissible because, contrary to Article 168A of the EC Treaty and Article 51 of the Protocol on the Statute of the Court of Justice of the EEC, it amounts to calling in question once more a finding of fact by the Court of First Instance — more specifically the Court's finding that it was not shown that the T4/T8 test constitutes a concealed AIDS test (see also section 24 below). In his reply the appellant makes it clear, however, that he is challenging only the statement of reasons on which the contested judgment was based, inasmuch as the Court of First Instance did not take into account the report of the meeting on 5 June 1989.

19. The fact that the Court of First Instance did indeed have knowledge of the report in question and of the applicant's views thereon is clear from paragraph 31 of the contested judgment, worded as follows:

20. It may be seen sufficiently clearly from the passages quoted from the contested judgment that the Court of First Instance did indeed take the applicant's arguments into consideration — and did take account in its reasoning of the report of the meeting of 5 June 1989 — but that it rejected those arguments as being unfounded in fact. I conclude therefore that the second part of the appellant's first plea in law must also be rejected.

Third part: permissibility of a T4/T8 test

21. The third part of the appellant's first plea in law is directed against the statement of the Court of First Instance in paragraph 58 of the contested judgment that in the circumstances, having regard to the abnormalities found in the anamnesis and clinical examination, the medical officer was entitled to request that such a test (the T4/T8 test) be carried out. The appellant claims that the Court of First Instance infringed Article 8 of the Convention by regarding it as unnecessary for a candidate in a situation such as his to give his informed consent to the carrying out of a T4/T8 test.

22. It seems to me important, before analysing in detail the third part of the appellant's first plea in law, to define the legal issue which it raises. In my view the only question is whether, when certain facts which might indicate immune deficiency have come to light during a medical examination, the Commission may carry out a T4/T8 test (and, partly on the basis of the negative results obtained, may refuse appointment) in the case of a candidate for recruitment as an official or other member of staff without informing the candidate in advance or seeking that person's consent and in the knowledge that the candidate has expressly refused to undergo an HIV test. That is the only question I shall consider here and only in the context of the specific facts of the case as they were established by the Court of First Instance including for example the fact that the appellant was a candidate for a six-month appointment.

23. The appellant rightly points out that two aspects of his private life — his physical integrity or inviolability and the right to decide for himself to whom he will divulge information with regard to his state of health — are affected by the carrying out of tests such as that to which he was subjected (the T4/T8 test) or which were suggested to him (the HIV test) as well as by the consequences attached to such tests or to the refusal to undergo them.

24. The requirement of informed consent entails two closely-related aspects: sufficient information must be provided for the consent of the individual concerned to be complete, which means to enable consent to be given in knowledge of the facts. Both the failure to give sufficient information and the failure to seek the consent of the individual concerned may therefore entail interference with the right to respect for private life. The question whether the requirements of information and consent are met must be determined in the specific case on the basis of factors such as the physical or psychological impact (the nature) of the medical treatment, whether it is usual or unusual (its seriousness) and the implications, for the person concerned and his circle, of the knowledge obtained as a result of this treatment. Depending on the specific context, information and consent, in the case of commonplace, routine or minor treatment, may be relatively quickly assumed to be (by implication) present or to follow naturally upon one another, whereas with more invasive, serious or potentially far-reaching forms of treatment more detailed or in-depth information and more explicit consent are required.

25. The fact that there may be such interference as already defined is not sufficient to conclude that there has been an infringement of the right to protection of private life and the right to medical confidentiality. According to the case-law of the Court, those rights may be restricted provided that such restrictions do in fact correspond to objectives of general interest pursued by the Community and do not constitute with regard to the objectives pursued a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. The provisions of Article 8(2) of the Convention, previously quoted in section 12, are guidelines for this purpose: according to those provisions, interference by a public authority in private life may be justified if it is in accordance with the law, pursues one or more of the objectives set out — exclusively — in Article 8(2) of the Convention and is necessary in a democratic society for attaining the objective or objectives pursued. That last condition means that interference in private life may not go further than necessary but must on the contrary be proportionate to the aim pursued. I shall now consider whether in this case the three conditions set out in Article 8(2) of the Convention are met.

26. As regards the first condition, it must be noted that, according to Article 12(2)(d) of the Conditions of Employment and Article 28(e) of the Staff Regulations, an official or a member of the temporary staff may be appointed only on condition that he is physically fit to perform his duties, whilst the first paragraph of Article 13 of the Conditions of Employment and the first paragraph of Article 33 of the Staff Regulations provide that before being engaged a successful candidate:

27. As regards the second condition with which interference in private life must comply in order to be justifiable under Article 8(2) of the Convention, the Commission argues in the first place that the medical examination is for the protection of health. In principle I can agree: in so far as the obligation for a candidate for appointment to undergo a medical examination prevents his being recruited to a post which might damage his state of health, the examination does indeed serve to protect health. Moreover the appointment of a person who, in view of his state of health, would not be able to perform his duties properly may result in overwork and additional stress for colleagues so that the medical examination may be regarded also as protecting the health of other persons.

28. An interference in a person's private life — more specifically with his physical integrity and right not to communicate to third persons facts concerning his state of health — which, as in this case, may be justified on grounds of the protection of the health or the rights and liberties of others, or both, complies with the requirement of proportionality if it is not disproportionate to the objective pursued by the interference and does not infringe upon the very substance of the right guaranteed.

29. Since the requirement of proportionality recognized in the case-law of the Court of Justice and in Article 8(2) of the Convention is thus not met, I can only come to the conclusion that the third part of the appellant's first plea in law must be accepted as well founded.

Second plea in law on appeal: contradictory statement of the reasons on which the contested judgment is based

30. A distinction must be made between two parts of the appellant's second plea in law. The first part alleges a contradiction in the grounds of the contested judgment. He claims that the finding in paragraph 58 of the judgment:

31. As regards the first part of the appellant's second plea in law, I do not regard the passages quoted from paragraphs 58 and 45 as being contradictory. In my view, the finding in question in paragraph 58 of the contested judgment is taken out of context by the appellant. In that paragraph the Court of First Instance was dealing with the applicant's third plea in law at first instance regarding the infringement of Article 8 of the Convention. With its finding that the medical officer was entitled to request that a T4/T8 test be carried out, the Court simply wished to state (wrongly in my view, as has already been shown) that it did not regard an infringement of Article 8 of the Convention as proved and by no means wished to give a medical opinion.

Third plea in law on appeal: infringement of the right to a fair hearing

32. The appellant's third plea in law relates to paragraphs 44 and 51 of the contested judgment. In paragraph 44 the Court of First Instance lays down the following principle:

33. The appellant, supported on this point by the Union Syndicale and the International Federation, argues that the Court's refusal to check the validity of the Medical Committee's opinion and the statement of the reasons on which it was based in the light of the medical opinions which he had produced is incompatible with the right to a fair hearing as guaranteed by Article 6 of the Convention. That article guarantees to everyone, when a question arises as to the determination of his civil rights and obligations', in particular the right to a fair ... hearing ... by an independent and impartial tribunal'. The Medical Committee, it is contended, is by no means independent since in the words of the second paragraph of Article 33 of the Staff Regulations, it is composed of three doctors chosen by the appointing authority from among the institution's medical officers (my italics). In those circumstances, the appellant states, the Court of First Instance has infringed the right to a fair hearing by declaring that the Medical Committee must give a final opinion as to the physical fitness of a candidate.

34. The Commission argues primarily that the appellant's plea is new — the incompatibility of the second paragraph of Article 33 of the Staff Regulations with Article 6 of the Convention was raised only before the Court of Justice — and is therefore inadmissible. Let me say straight away that I cannot agree with that. At first instance the applicant's first plea in law concerned the infringement of his right to a fair hearing, and his second plea in law the statement of reasons on which the Commission's refusal was based. The Court of First Instance rejected both those pleas in law, inter alia on the basis of the consideration that the applicant cannot produce medical opinions for the first time before the Court of First Instance. By contesting that decision now before the Court of Justice the appellant is, by implication but unmistakably, referring back to his pleas in law at first instance. I regard the fact that the appellant now refers for the first time to Article 6 of the Convention as a subsidiary matter in view of what is stated below (in section 35), namely that the right to a fair hearing, as a general principle, forms part of Community law quite apart from that article. There can therefore be no question of an inadmissible new plea in law being raised.

35. First I should like to emphasize that the right to a fair hearing is not guaranteed simply by Article 6 of the Convention on which the appellant's observations are centred but also constitutes a general principle of law (more specifically expressed in Article 6 of the Convention) the observance of which the Court of Justice and the Court of First Instance have always ensured-in staff cases as well as others. The Court of Justice can therefore consider the appellant's third plea in law without first going into the controversial question of whether this case actually concerns a determination of civil rights and obligations within the meaning of Article 6 of the Convention.

36. In the light of the foregoing, the appellant's third plea in law raises the question whether the Court of First Instance, by refusing to go into medical opinions (and arguments based on them) which had not first been submitted to the Medical Committee, has assessed too narrowly the scope of its judicial review of the decision of the Medical Committee and has thus infringed the appellant's right to a fair hearing. I think that question must be answered in the negative.

37. In the contested judgment the Court of First Instance correctly recapitulates the principles of Community law just mentioned. In paragraph 45 it states that

38. It was for the appellant, if he wished, in accordance with that paragraph of Article 33 of the Staff Regulations (and as in fact he did by letter of 9 April 1989), to submit his case to a Medical Committee and then, if he wished, to submit to the committee the opinion of a doctor of his choice. The appellant did not take the latter course, although he had already been informed on 22 March 1989 of the unfavourable opinion of the medical officer and had been asked for the name, address and telephone number of his own doctor (the same doctor with whom the medical officer had then made contact by telephone on 5 April 1989: see paragraph 47 of the contested judgment, quoted in section 2 above). Nor did the appellant by 26 May 1989, the date on which — as he had been informed (see paragraph 9 of the contested judgment, quoted in section 2) — the Medical Committee was to meet, provide the committee with the medical opinion of a doctor of his choice. However, the Head of the Commission Medical Service had insistently requested the appellant to send him all reports or medical documentation which he wished to submit to the Medical Committee (ibid.).

39. The refusal of the Court of First Instance to take cognizance of medical opinions which were not first submitted to the Medical Committee is based on its appreciation of the findings already mentioned. Paragraph 51 of the contested judgment is worded as follows:

Further course of the proceedings and the claim for compensation

40. It may be seen from the foregoing that I regard the third part of the first plea in law on appeal to be admissible and well founded. If the Court agrees with me in this, it must to that extent quash the contested judgment on the basis of Article 54 of the Protocol on the Statute of the Court of Justice of the EEC. It may itself then give final judgment if it regards the state of the proceedings as so permitting or refer the case back to the Court of First Instance for judgment.

41. As regards the claim for compensation, a distinction must be made between the appellant's claims in Case T-121/89 and those in T-13/90. In Case T-121/89 the appellant stated before the Court of First Instance (see paragraph 73 of the contested judgment, quoted in section 10 above) that if his application for annulment in that case were upheld, that would constitute sufficient reparation for the material damage caused him by the measures to be annulled. In that case he therefore made no application to the Court of First Instance for the reparation of that damage. In Case T-13/90 he claimed, apart from the annulment of the contested measures, an order that the Commission should pay him a lump sum of BFR 10000000 as compensation for nonmaterial damage which he claims to have suffered owing to the Commission's conduct. In his appeal the appellant claims that the contested judgment should be quashed and that his claims at first instance be upheld.

42. There remains the appellant's claim for compensation for nonmaterial damage, the subject of Case T-13/90. In the proceedings before the Court of First Instance, the appellant gave the reasons for this claim as follows:

43. In paragraph 74 of the contested judgment (quoted in section 10 above) the Court of First Instance rejected the applicant's claim for compensation for nonmaterial damage on the ground that it was closely connected with the claim for annulment which the Court had rejected as unfounded. The applicant, it is stated in paragraph 74, has not put forward any plea capable of securing the annulment of the contested decision and has thus not established any irregularity which might constitute a wrongful act or omission on the part of the Commission.

44. As regards its admissibility it must be observed that the admissibility of a claim for annulment entails in principle the admissibility of a claim for compensation closely connected therewith. In the very recent judgments in Cases T-3/92 and T-82/91 the Court of First Instance confirmed this principle, in my view correctly, as follows:

45. With his claim, however, the appellant is also seeking compensation for the nonmaterial damage resulting from an alleged failure by the Commission to comply with its duty of confidentiality (section 42 above). In my view that aspect of the appellant's claim for compensation for nonmaterialb damage is not closely connected with the claim for annulment since it is connected with conduct by the Commission other than that referred to in the application for annulment. Its admissibility cannot therefore be deduced from the admissibility of the application for annulment but must be examined on the basis of principles which are to be traced back to the Staff Regulations and have been clarified in judgments of the Court of Justice and the Court of First Instance. In that respect the judgment in Case 200/87 Giordani v Commission, to which the Court of First Instance calls attention in paragraph 75, should in particular be taken into account. In that judgment the Court of Justice stated inter alia as follows with regard to the admissibility of a claim for compensation:

46. In the light of that case-law it can only be concluded that in paragraph 75 of the contested judgment the Court of First Instance rightly decided that the applicant's claim for compensation for the nonmaterial damage resulting from a breach by the Commission of the principle of confidentiality was inadmissible. Since the Commission's conduct resulting in the publication in the Official Journal of the applicant's initials and address cannot be regarded as an act adversely affecting the applicant within the meaning of Article 90(2) of the Staff Regulations, the applicant should first have submitted a request under Article 90(1) for the damage suffered as a result of that conduct to be made good and — after its rejection — have submitted a complaint to the Commission under Article 90(2). In this case he simply lodged a supplemental complaint on 4 September 1989 without previously having submitted to the Commission a request for compensation. If that complaint were to be construed as a prior request within the meaning of Article 90(1), then, as the contested judgment correctly states, the applicant did not lodge a complaint against the rejection of that request by the Commission's decision of 27 November 1989 (which on that hypothesis would be the act adversely affecting him within the meaning of Article 90(2) of the Staff Regulations).

47. On the basis of the foregoing considerations I propose that the Court, giving judgment itself, should declare the appellant's claim for compensation for nonmaterial damage to be admissible, but only in so far as that claim is connected with the conduct of the medical officer on which the Commission's refusal to recognize the appellant's physical fitness is based.

Costs

48. Finally as regards the costs of the proceedings, I can be brief. From the foregoing (proposal that the contested judgment be partially quashed and partially referred back to the Court of First Instance) it follows that the decision of the Court of First Instance on costs must be set aside. Under the first paragraph of Article 122 of the Rules of Procedure of the Court of Justice, the Court is to make a decision as to costs where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case. Since neither of those two situations applies, I propose that the decision as to costs be reserved.

Conclusion

49. In conclusion I propose that the Court should:

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.