C-75/77

JUDGMENT OF 13. 4 1978 — CASE 75/77 MOLLET v COMMISSION

CELEX: 61977CJ0075
Datum: 1978-04-13
Källa: eur-lex.europa.eu

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

gives the following

JUDGMENT

Facts and issues

The facts of the case, the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows:

I — Facts and written procedure

The applicant, who was born an Indonesian national in 1951 at Bandoung (Indonesia); became a Netherlands national in 1970.

After having taken part in 1973 in a recruitment competition organized by the Council of the European Communities she was appointed to the Netherlands typing pool as a probationer on 1 September 1975. She resigned voluntarily with effect from 1 January 1976 on the ground that, because of her personal beliefs (after having indicated in her application that she was a Jehovah's Witness she states in her reply that she is in fact a Seventh-day Adventist), she was unable to work on Sundays (in her reply she speaks of Saturdays), whereas it was possible for meetings of the Council to be held during the weekends.

The applicant subsequently worked at the Commission on a temporary basis, on the staff of the ‘Agence européenne d'intérims’ (European temporary staff agency).

On 24 May 1976 she took part successfully in the tests organized by the Commission for the constitution of a reserve for the future recruitment of auxiliary staff in Grade C VII (Dutch-language typists).

As a result, she was summoned on 15 July 1976 to the examination of physical fitness which is a preliminary to any engagement. Following the examination the Medical Service of the Commission prescribed two additional visits to neuropsychiatrists, as a result of which it was led to inform the Directorate General for Personnel and Administration that:

‘The candidate is not physically fit to perform her duties’.

The Commission therefore informed the applicant by letter dated 14 September 1976 that the result of her medical examination was negative, which suspended the recruitment procedure. The letter added:

‘If you wish to know why you are physically unfit I suggest that you ask your own doctor to get in touch with Dr Semiller, the head of the Medical Service …’

The applicant did so and on 4 October 1976 her doctor received the following reply:

‘We formed certain reservations concerning the recruitment of Miss Mollet … as a result, her candidature was not accepted by the administration of the Commission … there are no medical factors to be communicated which require treatment’.

On 30 November 1976 the applicant submitted a complaint through administrative channels under Article 90 (2) of the Staff Regulations, which asked, if her complaint should not be accepted, that:

‘the entire medical file prepared by the relevant service of the Commission be made available immediately to the doctor’.

By letter dated 26 May 1977 the applicant was informed that, as regards her medical file,

‘… a complete report will be sent without delay’ to her private doctor.

The report in question was communicated on 8 June 1977. However, the applicant's doctor did not consider himself authorized to inform his patient of its content.

As she received no reply to her complaint within the prescribed period of four months, the applicant lodged the present application on 28 June 1977.

By a memorandum dated 18 July 1977 the Director General for Personnel and Administration asked the head of the Medical Service at Brussels:

‘to send a further letter [to the private doctor] stating clearly that it is for him to make such use as he considers appropriate of the information previously communicated to him and that the question whether he informs Miss Mollet is left to his own discretion.’

The applicant states that her doctor has still not received any such statement.

The written procedure followed the normal course.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

1) Declare that her application is admissible and well-founded;

2) Annul the implied decision of rejection which is at issue;

3) Rule that as a result of the decision annulled the applicant has suffered material and non-material damage, the amount of which to be fixed by the Court at Bfrs 2050000, subject to modification in the course of the proceedings;

4) Rule that as a result of the grossly wrongful attitude of the opposite party the applicant has suffered non-material damage, the amount of which to be fixed by the Court at Bfrs 50000, subject to modification in the course of the proceedings;

5) Order the opposite party to pay all the costs.

The defendant contends that the Court should:

1) Declare that the application is unfounded, both as regards the claim for annulment and as regards the claim for compensation for damage assessed at Bfrs 2050000, plus Bfrs 50000;

2) As a result, dismiss the application;

3) Order the applicant to pay the costs.

III — Submissions and arguments of the parties

A. Application for annulment

The applicant maintains that the implied decision rejecting her complaint infringes Article 54 of the Conditions of Employment of Other Servants of the Communities and the second paragraph of Article 25 of the Staff Regulations of Officials and is, therefore, vitiated by misuse of powers. In fact, no reasons are given for the decision in question. To make matters worse, there has been no communication of the medical file. The principle of access to the personal file is acknowledged in Article 26 of the Staff Regulations. The applicant has thus been prevented from defending her interests.

The applicant puts forward a second submission based on a misure of powers arising out of an erroneous application of Article 55 (1) (d) of the Conditions of Employment of Other Servants. The Medical Service merely expressed reservations in its letter to the Commission of 4 October 1976 and, without substituting itself for that service, the defendant cannot decide that the applicant is physically unfit.

Furthermore, in the light of the admission that the alleged physical unfitness does not require any medical treatment it may be presumed that the unfitness is not one which the defendant may validly take into consideration.

Finally, the applicant claims that the general principles of equality of treatment, non-discrimination on racial grounds, freedom of religion and protection of privacy have been violated. In order ‘to camouflage that discrimination under the appearance of physical unfitness’ the defendant made use of its Medical Service to subject the applicant to neuropsychiatric examinations concerning her religious convictions.

As regards the first submission, the Commission replies that its decision of 14 September 1976 contained a statement of reasons, in that it referred to the opinion of the Medical Service. The basis of that statement of reasons is sufficient, since the applicant is thus made aware of the ground for the decision and can take steps to have its lawfulness reviewed. A more explicit statement of reasons was not conceivable, since the Medical Service considers that the rules relating to the obligation of professional secrecy forbid it to divulge the medical reasons which may have led it to express a negative opinion as regards the applicant's fitness.

Even supposing the defendant to have been aware of the reason which led the Medical Service to conclude that the applicant was unfit, it could not have given a fuller statement of reasons for its decision. The assessment made by the Medical Service is binding on the Commission, which is not entitled to question its discretionary nature.

As regards the second submission, the opinion of the Medical Service expressed more than mere reservations. Its wording is clear: ‘The candidate is not physically fit to perform her duties’. Moreover, treatment is not always necessary, since physical unfitness may result from a medical condition which is permanent or from an incurable illness. By specifying that, in this case, no treatment was necessary, the Medical Service acted on humanitarian motives.

As regards the third submission, the defendant denies that its decision was influenced by the applicant's beliefs, which were unknown to it until the application was lodged. Moreover, a candidate is never questioned as to his religion (cf. Case 130/75, Prais v Council of the European Communities, [1976] ECR 1598).

There is nothing to justify the view that either the applicant's religious convictions or her race had any influence on the assessment of her physical fitness formed by the Medical Service. The fact that the applicant underwent two neuropsychiatric examinations is evidence of the safeguards provided by the Medical Service in the performance of its task and its desire for impartiality.

As regards the first submission, the applicant replies by referring to the judgment of the Court (First Chamber) of 27 October 1977 in Case 121/76 (Moli, [1977] ECR 1971), which states that: ‘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’. The applicant's private doctor was not informed within a reasonable period of the ground on which she was declared physically unfit. An obligation to observe professional secrecy was imposed on him, even as regards his patient, without his being able to make any assessment of it. The applicant was never invited to have the assessment of her case submitted to review by a committee of three doctors. However, it is clear from the Moli judgment that the Commission had to give the person concerned the means of effectively challenging the grounds justifying the declaration that she was physically unfit.

The letter, which, furthermore, was not implemented, from the Director General for Personnel to the head of the Medical Service, in which he asked for the prohibition on disclosure for reasons of professional secrecy to be raised as regards the applicant's private doctor, is an admission of the unlawful action taken. What is more, in a document dated 11 July 1977 the defendant recorded its decision that in future the Medical Service would always communicate the real reasons for a decision refusing an engagement to the doctor of the candidate concerned.

As regards the second submission, the applicant asks to what end, according to what rules and on the basis of what grounds revealed to the Commission the Medical Service believed itself to be authorized to advise, in that instance, against continuation of the recruitment procedure.

Since the submission put forward consists in maintaining that the opinion of the Medical Service deduces on grounds which are not physical in nature a physical unfitness which is not such as to prevent the performance of the duties in question, the Court is perfectly competent, without substituting its assessment for that of the Medical Service, to determine whether the latter classified in accordance with the legal requirements the factors constituting the alleged physical unfitness to perform those duties. It is for the Court to order complete production of the documents concerning all the medical examinations, including those carried out by the two neuropsychiatrists.

As regards the third submission, it is immaterial whether the violations at issue emanate from the Medical Service of the Commission or from the appointing authority within the strict sense of the term.

The applicant protests against the fan that on the occasion of a mere examination prior to engagement and without any particular previous medical record, a candidate should be forced to undergo two neuropsychiatric examinations. The questions which the applicant was asked during those examinations concerned the precise and intimate reasons which led her to resign from her previous post at the Council of the European Communities.

Moreover, the applicant was not accorded equality of treatment, since the examinations in question are not automatically prescribed for all candidates.

Whatever the apparent reason given in the reports of the neuropsychiatrists there is enough evidence to show that the applicant's religion and race were alone considered, in order to exclude her from office within the Community civil service.

As regards the first submission, the Commission replies that the applicant cannot base her arguments on the Moli judgment, which settles a case different from the present one. Mr Moli was a candidate for appointment as an official. Furthermore, the procedure for appeal against the decisions of the medical officer, which is governed by a decision of the Commission of 9 December 1974, can be implemented only in the case of candidates for appointment as officials who have successfully taken part in a competition. That is not the position of the applicant. However, the absence of any automatic ‘review’ does not deprive her of the right to make her point of view known, since she is entitled to submit a complaint to the administration.

If the private doctor did not consider that he should inform his patient of the reasons for the opinion of the Medical Service, he acted on his own responsibility.

As regards the second submission, the Commission recalls that quite apart from the question of professional secrecy, a medical measure, whether it be preventive, such as an examination, or curative, is technical and scientific in nature and must be adopted in strict independence. Physical unfitness is a fact and not a legal concept which it is for the Court to qualify or interpret. The review by the Court must therefore concern the adequacy of the reasons given (the medical opinion) for the contested decision (omission from the recruitment list on the ground of physical unfitness). Since the Commission adopted its decision on the basis of the medical opinion, that decision is commensurate with the facts which gave rise to it.

As regards the third submission, it must be emphasized that the specialized consultations to which the Commission has recourse are carried out by doctors who are independent of the institutions and whose opinion cannot be taken for granted by the medical officers. The accusation of intention made against the Medical Service itself is groundless: the medical officers were so devoid of any intention to exclude the applicant for a reason of a philosophical nature that on receiving a copy of her complaint they proposed to submit their opinion to a board of three doctors, according to the procedure instituted for candidates for appointment as officials.

The applicant's privacy was not impaired by the question, asked by one of the neuropsychiatrists, why she had resigned from her post at the Council. That is the only way in which her philosophical opinions were touched on and, moreover, the reply to the question could not have been taken for granted.

The requirement that the same conditions should apply is shown sufficiently by the frequency of special examinations.

As regards discrimination, the independence of the specialized practitioners and of the Medical Service itself is sufficient to rule out any such inclination.

B. Application for compensation

According to the applicant her material loss (assessed at Bfrs 2000000) is made up of the difference in salary received during the period from September to December 1976, during which she had to continue her work on a temporary basis and, since January 1977, in the loss in salary which she has to bear until the end of her working life, since work in the private sector is always less well paid than in the Community civil service. Her non-material loss (assessed at Bfrs 50000) results from the fact that it is impossible for her to make a career in the Commission. In addition, the applicant has suffered separate non-material damage (assessed at Bfrs 50000) as a result of the prolonged and tormenting anxiety resulting from the ignorance in which she is left as to her real state of health.

The Commission replies that the annulment of the decisions which it adopted would enable the applicant to be included in the reserve for future recruitment, with the result that she could not claim to have suffered certain damage.

A decision that the applicant is physically fit would not in any way entitle her to be appointed. Therefore the damage allegedly suffered does not result from the adoption of the decisions in question. Furthermore, the assessment made of the damage is unjustified.

Moreover, as the contested decision is regular, the defendant has not committed any wrongful act and it cannot incur liability.

The applicant replies that the annulment of the decisions at issue would not enable her to be included in the reserve for future recruitment but would merely oblige the Commission to hold a fresh examination of her physical fitness (cf. Moli judgment). However, the reserve for recruitment is valid only for a specific period and a re-examination would be unlikely to result in a decision that she is physically fit. Even supposing those obstacles to be removed, the applicant might be left on the reserve list for recruitment. Even if she was in fact appointed the damage suffered would have consisted in the loss of salary from the moment when she could have been appointed.

The attitude of the Commission in persistently prohibiting the applicant's private doctor from informing her of the reason given by the Medical Service leads her to express the clearest reservations of her rights as regards any increase in the special non-material loss defined in the application.

The defendant replies that, unlike the case of candidates for appointment as officials, the applicant did not derive any right to be engaged from the acknowledgement of her vocational ability. Furthermore, even supposing her to be the holder of a right finally put into concrete form by her actual engagement, that engagement would not have exceeded one year and would not have constituted a career as an official.

The difference between what the applicant would have earned in the service of the Commission and what she would earn in the private sector is purely hypothetical — and necessarily unproven — as is her engagement.

If the private doctor did not think it expedient to divulge to his patient the reasons for the decision that she was physically unfit, the blame for that cannot be laid at the defendant's door. The applicant could always have turned to another doctor, who could have obtained and divulged the reasons given by the Medical Service. Finally, the basis of the application for annulment conflicts with that of the claim for compensation. Since the applicant was convinced that the ground on which she had been declared unfit camouflaged an intention to discriminate, the cause of the non-material damage (anxiety) does not exist.

The applicant, represented by J. Putzeys, Advocate of the Brussels Bar, and the Commission of the European Communities, represented by M. Grossmann, Advocate of the Brussels Bar, presented oral argument at the hearing on 23 February 1978.

The Advocate General delivered his opinion at the hearing on 9 March 1978.

Decision

1. The application, which was lodged on 28 June 1977, seeks the annulment of the implied decision rejecting the applicant's complaint through official channels of 30 November 1976 relating to the withdrawal of the decision that she was physically unfit contained in a letter of the Commission of 14 September 1976.

2. It seeks, in addition, compensation for the material and non-material damage suffered by the applicant as a result of the contested decision and, independently of that decision, as a result of the fact that the attitude of the Commission still leaves her uncertain as to her state of health and the real reasons for her physical unfitness.

3. After having successfully taken pan in the tests organized by the defendant for the constitution of a reserve for the future recruitment of auxiliary staff in Grade C VII (Dutch-language typists), the applicant underwent on 15 July 1976 the examination of physical fitness which is a preliminary to any engagement, following which the Medical Service of the Commission prescribed two additional visits to neuropsychiatrists.

4. The results of those neuropsychiatric examinations prompted the Medical Service to inform the Directorate General for Personnel and Administration that the applicant was not physically fit to perform her duties.

5. By letter dated 14 September 1976 the Commission informed Miss Mollet that the result of her medical examination was negative, and that this suspended the recruitment procedure, but added:

‘If you wish to know why you are physically unfit I suggest that you ask your own doctor to get in touch with Dr Semiller, the head of the Medical Service …’.

6. Thus, by letter dated 4 October 1976, the applicant's doctor received the following information from the Medical Service of the Commission:

7. On 30 November 1976 the applicant submitted a complaint through official channels under Article 90 (2) of the Staff Regulations, which asked, if her complaint should not be accepted, that:

‘the entire medical file prepared by the relevant service of the Commission be made available immediately to her doctor’.

8. Almost six months later, by letter of 26 May 1977, the applicant was advised that a complete medical report would be sent to her private doctor without delay.

9. The doctor in question received the said report on 8 June 1977 although, according to his reply to a question put to him by the Court, he was not provided with any detailed information regarding the two neuropsychiatric examinations.

10. Moreover, the Commission failed to reply to the applicant's complaint, with the result that with effect from 30 March 1977 its silence constituted an implied decision of rejection, the annulment of which is sought by Miss Mollet in the present application.

11. In support of her application the applicant refers to the absence, in infringement of Article 54 of the Conditions of Employment of Other Servants and of the second paragraph of Article 25 of the Staff Regulations, which is applicable by analogy, of any statement of reasons for the implied decision resulting from the Commission's silence.

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 or lack of statement 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 suspension, on account of physical unfitness, of the procedure for the recruitment of a candidate for engagement as a member of the auxiliary staff who has successfully taken part in the competitions or tests organized for the recruitment of auxiliary staff constitutes a decision adversely affecting him within the meaning of Article 25 of the Staff Regulations of Officials, which is applicable by analogy to other servants by virtue of Article 54 of the Conditions of Employment of Other Servants.

14. In consequence, the reasons for such a decision must be stated.

15. 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.

16. That 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; that information should enable the person concerned, either himself or through his doctor, to judge whether the decision suspending the recruitment procedure conforms with the requirements of the Staff Regulations.

17. The statement of grounds contained in the communication of 14 September 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 put in a position to acquaint himself with the reasons for the decision and to advise the applicant whether it was possible to contest the ground on which she was declared unfit.

18. The medical report concerning the unfitness of the applicant was sent to her private doctor only after the expiry of the period within which a complaint must be submitted.

19. The said doctor was therefore not informed and put in a position in good time to advise the applicant whether it was possible to contest the reasons which led to the conclusion that she was physically unfit to perform the duties in question.

20. In suggesting that the applicant should invite her own dector to ask to be informed of the grounds justifying the declaration that she was physically unfit, the administration intended to give her the means of effectively challenging those grounds.

21. That 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.

22. For that reason both the decision that the applicant was physically unfit contained in the letter from the Commission of 14 September 1976 and the implied decision rejecting her complaint must be annulled.

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

24. Consideration of the other submissions put forward by the applicant is purposeless.

25. The applicant also requests the Court to rule that as a result of the decision annulled she has suffered material and non-material damage, the amount of which should be fixed at Bfrs 2050000, and that as a result of the grossly wrongful attitude of the Commission the applicant has suffered non-material damage, the amount of which should be fixed at Bfrs 50000.

26. As regards compensation for the material damage which the applicant maintains that she suffered as a result of the fact that the suspension of the recruitment procedure caused her to lose the benefit of remuneration, no such compensation can be awarded since she does not derive any right to be engaged from the mere recognition of the fact that she is physically fit.

27. On the other hand, as regards the non-material damage which the applicant claims to have suffered as a result of the state of uncertainty in which she was left regarding her state of health, she is justified in her claim for compensation.

28. Even if the medical report on the applicant's physical unfitness, which was communicated to her private doctor on 8 June 1977, may be regarded as sufficient, in the absence of any detailed reports by the two specialist neuropsychiatrists, to enable the applicant, through her own doctor, to judge whether the defendant's decision conforms with the requirements of the Staff Regulations, she was nevertheless left without any justification in a state of uncertainty regarding her state of health until 8 June 1977.

29. That damage will be fairly compensated by the award of a sum of Bfrs 50000.

Costs

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

31. The defendant has failed in its defence.

32. It must therefore be ordered to pay the costs of the action.

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

1 Annuls the decision that the applicant was physically unfit contained in the letter of the Commission dated 14 September 1976 and the implied decision rejecting the applicant's complaint;

2 Orders the defendant to make good the non-material damage suffered by the applicant by the award of a sum of Bfrs 50000;

3 Orders the defendant to pay all the costs.