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

The applicant, Miss M., was an official with the Commission in Grade C 4 from 1966 until 1974, when she resigned.

On 28 October 1976 she applied to take part in Competition COM/C/149 for the constitution of a reserve for future recruitment of Category C officials.

She was successful in the competition and was consequently invited to undergo the medical examination provided for in Article 33 of the Staff Regulations, the first paragraph of which is worded thus:

“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)”.

The first medical examination, carried out by one of the Commission's medical officers, took place on 5 April 1977. The applicant was subsequently requested to undergo a neuro-psychiatric examination.

As from 1 May 1977 the applicant was engaged by the Commission as a member of the auxiliary staff for a period of six months.

By letter of 5 July 1977 the applicant was informed that:

“... following upon the medical examination which you have undergone, the Commission's medical officer does not consider himself able to find that you are physically fit to perform your duties with the Commission... The reasons upon which this opinion of unfitness is based may be obtained from your own doctor on application to..., head of the Commission's medical branch. I must also inform you that it is open to you, before the expiry of the twentieth day following the receipt of this letter, to request that your case be submitted for the opinion of a medical board composed of three doctors chosen from among the medical officers of the institutions of the Communities.”

By letter of 6 July 1977 the applicant requested that her case be submitted to such a medical board.

By letter of 6 October 1977 the applicant was informed, in the following terms, that the medical board had decided to confirm the medical officer's first opinion:

“Following upon your letter of 6 July 1977 I am writing to inform you that a medical board composed of three medical officers of the institution met on 12 August 1977 to reconsider your file. I regret to have to tell your that at the end of that examination the medical board considered itself bound to adhere to the finding of unfitness in your case. On the basis of the above-mentioned conclusions, the appointing authority considers itself bound to decide to declare you to be unfit. Consequently, in accordance with the provisions of Article 28 (e) of the Staff Regulations of Officials, there can be no question of your being recruited to employment with the Commission. I am sorry to confirm that your contract as a member of the auxiliary staff will not be renewed after its expiry and that your work with the Commission will come to an end on the evening of 31 October 1977. ...”

By a letter of 13 October 1977 the applicant informed the Commission that she proposed to submit a complaint against the finding of unfitness made by the medical board and that she had instructed her doctor to acquaint himself with her medical record and to arrange for a further opinion.

On 1 November 1977 the applicant's contract as a member of the auxiliary staff was renewed for a period of six months.

At the request of the applicant's own doctor a report explaining the reasons for her unfitness was sent to him on 21 November 1977 and, in reply to a request from him on 28 November, a number of additional details were disclosed on 13 December 1977.

On 21 December 1977 the applicant submitted a complaint against the finding of unfitness made by the medical board.

This application was brought on 17 July 1978.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court (Second Chamber) decided to open the oral procedure.

By orders of 24 August and 12 September 1979 the Court decided, on the one hand, that the applicant, should appear personally at the sitting in camera on 11 October 1979 and, on the other hand, that it should hear on the same occasion, as witnesses, Dr P. Corten, Dr M. Tombroff, Dr C. Olmechette and Dr J. De Geyter on the following question:

“ Subject always to the limits imposed by their rules of professional conduct and in the light of their knowledge of the medical records of the applicant, the witnesses will be asked to make such observations as they consider themselves able to give on the finding of unfitness in the applicant's case”.

II — Conclusions of the parties

1. The applicant claims that the Court should: Annul the implied decision rejecting her complaint; Annul the Commission's decision of 6 October 1977 declaring her unfit; Order the Commission to pay the costs.

2. The Commission contends that the Court should: Declare the application to be admissible but unfounded; Order the applicant to pay the costs.

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.

The Commission adds that the engagement of the applicant as from 1 May 1977 was preceded by an interview with one of its officials in the course of which he stated that that engagement was offered pending the completion of the recruitment procedure and that recruitment was subject to a finding of medical fitness. The Commission accordingly does not consider that, by engaging the applicant, it acknowledged her to be physically fit, on which matter it would be unable to form any judgment without the assistance of the medical branch. It confined itself to adopting a measure intended to resolve a personal problem.

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: Another medical report lodged by the applicant is worded thus:

“Miss M. does not suffer and has not suffered from any mental illness. She is accordingly fit to take up any career... The probability of Miss M.'s becoming ill again is no greater than in the case of the average person. That risk will be related to any difficulties she may encounter in her relationships with others and in her emotional life and to any unforeseeable diseases or accidents”.

“I examined Miss M. thoroughly in October 1977. At that time both the clinical examination and the various biological and radiological tests proved normal”.

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.

On this question the Commission states, finally, that, having regard to the strictly medical nature of the documents lodged by the applicant, it considers that it is not for the Commission to comment on their content, which it could do only on the basis of the investigations carried out by the doctors in its medical branch and the independent doctors consulted by that branch who examined the applicant.

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.

The Commission stresses that the medical board was not bound to reexamine the applicant; it was in a position to form an opinion on the documentary evidence, if it considered that the records submitted to it were complete.

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: The applicant considers that such an opinion may not lawfully serve as a basis for the decisions in dispute, which must consequently be annulled.

The Commission confronted the applicant with a dilemma in so far as, if she decided to request the disclosure of her medical records to her own doctor that necessarily implied the abandonment of her right of appeal to the medical board:

Even if the Commission's letter of 5 July 1977 must be interpreted otherwise, the fact remains that the applicant, who decided to appeal to the medical board, was not informed in advance of any opportunity to be heard or to submit an alternative medical report;

Furthermore, between 6 July 1977 (the date upon which the applicant requested that her case be submitted to the medical board) and 12 August 1977 (the date of the medical board's opinion) the applicant had virtually no opportunity to submit to the board an alternative medical report based upon medical examinations;

In any event, the applicant was never invited to state her point of view or to present a defence before the board.

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. The applicant also alleges against the Commission the fact that the medical examination consists in putting questions which relate in particular to the private and even the intimate life of the candidates. In regard to the specialists entrusted with the examinations the applicant observes that: A small number of such specialists is always appointed unilaterally by the medical branch of the Commission; They are remunerated by the Commission; The framing by the medical officer of the Commission of the oral or written request for a special examination may influence, if not to say pre-determine, the content or indeed the angle of the question put to the candidate. From these observations the applicant deduces that the impugned decision breaches general legal principles which apply in the Community legal order and which are also recognized in Articles 8 (1) and 14 of the European Convention on Human Rights, namely: equality of the sexes, equality of treatment and protection of the private life of individuals. That decision infringes, moreover, the second paragraph of Article 27 of the Staff Regulations.

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. The Commission adds, finally, that in 1976 27% of male candidates underwent a neuro-psychiatric examination as against 37% of female candidates. The figures for 1977 are 26% and 51% respectively. In its opinion, no discrimination may be inferred from those figures. As for the applicant's argument to the effect that on the occasion of the medical examination questions are asked relating to the private life of the candidate, the Commission states that such an examination necessarily involves a review of the candidate's private life. But that review does not constitute an invasion of privacy since the candidate cannot be unaware that the medical examination which he voluntarily undergoes necessarily involves such a review.The Commission continues by stating that to have recourse to specialist examinations is a right so universally recognized as being held by medical officers in public institutions that the applicant may not seriously complain that she was not advised of the possibility of such examinations.The Commission states, finally, that although its medical branch has recourse to a limited number of specialists that is for the reason that generally speaking, those specialists are also consulted by the medical branches of the public authorities of the Member States and that, through experience, they are able to become acquainted with the requirements of Community administration.

IV — Measures of inquiry

At the sitting held in camera on 11 October 1979 the applicant, appearing in person, and also Dr P. Corten, Dr M. Tombroff, Dr C. Olmechette and Dr J. De Geyter, appearing as witnesses, replied to questions from the Court (Second Chamber).

V — Oral procedure

The applicant, represented by X. Leurquin, and the Commission, represented by D. Sorasio-Allo and M. Grossmann, presented oral argument at the sittings on 8 November 1979 and 7 February 1980. At the latter sitting the parties provided, in particular, an analytical conspectus of comparative law in answer to a written question from the Court sent to them on 14 November 1979, which reads as follows:

“The Second Chamber wishes to be enlightened as to the scope of certain aspects, specified below, of the confidentiality of medical findings from the perspective of comparative law and in such a way as to be informed of the concept as it exists not only under Belgian law but also under the laws of all the Member States. The problems raised by this case results from the fact that the medical practitioners entrusted by the Commission with making medical examinations in the context of recruitment procedures plead the confidentiality of their findings before the Court, thus making it impossible for the Court to take into account certain matters of evidence which are necessary to decide on Miss M.'s application in full knowledge of the facts. The question is thus raised of ascertaining the scope of and the possible limits to the confidentiality of medical findings in a situation which is characterized by the fact that: (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. What is required is a selection from the Member States' national laws and practices, whether civil, administrative or criminal, of factors capable of casting light on the particular situation in which the Court finds itself placed in this case.”

The Advocate General delivered his opinion at the sitting on 13 March 1980.

Decision

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.

Admissibility

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.

Substance

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. Where the person concerned has expressly given his consent; Where the doctor's involvement takes place in the context of administrative checking procedures so that the spontaneous confidential relationship which is the basis of professional secrecy does not exist; Where reliance on such confidentiality would have the result of obstructing the normal course of justice.

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.

Costs

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.