C-121/76
ECLI:EU:C:1977:170
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JUDGMENT OF 27. 10. 1977 - CASE 121/76
In Case 121/76
ALESSANDRO MOLI , residing at Salerno, represented and assisted by Carmine Pepe, Advocate, with an address for service in Luxembourg at the Chambers of Victor Biel, 18 a Rue des Glacis, applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES , represented by its Legal Adviser, G. Campogrande, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg, defendant,
Application for the annulment of the implied decision rejecting the
complaint lodged by the applicant on 20 May 1976 concerning the report
made by the medical service of the Commission and communicated to him by letter of 9 March 1976 to the effect that he was unfit,
THE COURT (First Chamber)
composed of: G. Bosco, President, A. M. Donner and J. Mertens de Wilmars,
Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
The facts and the arguments put forward Competition No COM/B/117 held by by the parties in the written procedure the Commission to draw up a reserve list
may be summarized as follows: for future recruitment of administrative
assistants was, with a view to his being placed on the reserve list and in I — Facts and procedure accordance with Article 33 of the Staff 1. On 22 October 1974 the applicant, Regulations of Officials, medically who had been successful in Open examined by one of the Commission s
MOLI v COMMISSION
medical officers, who declared him Regulations against the report that he physically fit to perform his duties. was unfit and the resultant decision not
to appoint him. This complaint was
A post of administrative assistant became registered at the Secretariat General of
vacant in January 1976 and the applicant the Commission on 2 June 1976 but was invited to undergo a fresh medical evoked no reply from the Commission examination, which took place on 11 for more than three months, after which,
February 1976 and which resulted in the on 20 December 1976, the applicant
finding that he was physically unfit to fill brought the present action.
the said post. According to the Com mission that examination was followed By order of 28 April 1977 the Court
by an examination carried out in Italy by (First Chamber) granted the applicant
a specialist who was a medical officer of free legal aid as requested by application the institution. lodged on 21 December 1976.
2. By letter of 9 March 1976 the On hearing the report of the Judge Commission informed the applicant of Rapporteur and the views of the
theunsatisfactory outcome of this second Advocate General, the Court (First medical examination. At the same time it Chamber) decided to open the oral
suggested that if he wanted to know the procedure without any preliminary reasons why he was unfit he should ask inquiry. his own doctor to get in touch with the head of the medical service of the
Commission. He was also informed of II — Conclusions of the parties
his right to apply, within 20 days following the date of receipt of the letter, 1. The applicant claims that the Court for his case to be re-examined by a should:
medical board consisting of at least three — Find in favour ot the application and
of the institution's medical officers. annul the implied decision rejecting the applicants complaint and in 3. By letters of 9 and 16 March 1976 consequence appoint him to the post
Drs d'Avanzo and Nardacci, the appli for which he went through the
cant's own doctors, asked the medical appointment procedure; or service of the Commission to —
Alternatively, order that immediate
communicate to them the reasons for his arrangements be made for the
unfitness whilst, by letter of 10 March medical examination necessary for 1976, the applicant applied for his case the review of the case, such medical
to be reviewed. The grounds for examination to be carried out in
considering him unfit were not accordance with a procedure which
communicated to Dr Nardacci before 2 will ensure that the rights already February 1977, that is to say, almost a acquired by the applicant are
year later and after the present safeguarded.
application was lodged on 15 December 1976. The review applied for was not 2. The Commission contends that the
carried out until seven months after the application should be dismissed. application, namely, on 21 October 1976. The medical board confirmed the 3. In his reply the applicant claims that
applicant's unfitness to perform his the Court should: duties. — Declare the implied decision by the Commission rejecting his complaint
4. Meanwhile the applicant had, on 20 to be illegal; May 1976, submitted a complaint within — Declare the report that he was unfit
the of Article 90 of the Staff to be equally erroneous and illegal; meaning
JUDGMENT OF 27. 10. 1977 - CASE 121/76
— Uphold Mr Moli's right to be granted the subject of a formal statement of
his appointment as administrative reasons in the letter sent to the applicant,
assistant with effect from 22 October the statement of reasons by delegation is, 1974 (the date when he was declared in the circumstances, in accordance with
fit to perform his duties); the requirements of Article 190 of the
— Order the Commission to appoint Mr Treaty. As a result of the application of
Moli to the post in question with the internal review procedure and of
effect from the date referred to in the delays of a technical character, the
foregoing paragraph, at the same time reasons were not communicated to the
granting him corresponding seniority applicant's doctor until after the
and making good the injury arising commencement of proceedings. The from unpaid remuneration; Commission states that it is prepared to — Order the Commission to pay the accept responsibility for the con
costs. sequences of this delay in terms of the
progress of the action but states that this does not affect the legality of the
III — Submissions and argu contested measure.
ments of the parties
In this connexion the Commission 1. In the application the applicant emphasizes that, because of professional
draws attention to the fact that no secrecy, it is unable to pass judgment on reasons were given either for the implied the opinion of the institution's medical
decision rejecting his complaint or for officer as confirmed by the medical
the decision finding him to be unfit. In board and that it is bound by that his view, the fact that the Commission's opinion in so far as the applicant's
only reaction to his complaint was an physical fitness to perform his dudes is implied decision rejecting it not only concerned.
confirms that there were no reasons but
has made it impossible for him to protect If a candidate claims that these opinions his legal rights. have caused him injury the Court can, in fulfilling its task, review their legality by 2. In its defence the Commission applying procedural steps which, subject
contends that the review of legality to the rules imposed by medical ethics, should be concerned with the decision enable him to be in full and complete
impugned by the complaint, which was possession of the facts. merely confirmed by the implied decision rejecting it 3. With regard to the claim to be appointed as an official the Commission With regard to the submission based on considers that, if the contested decision the absence of a statement of the reasons is annulled, above all because of a defect on which the decision was based, the of form, this does not automatically Commission states that, in view of the entail the appointment of the applicant
nature of the condition from which the since any appointment must be the
applicant was found to be suffering, subject of a fresh decision by the which medical ethics made it impossible institution exercising its discretionary to communicate direct to the patient, it power in accordance with the judgment chose to communicate the grounds 'by of the Court. delegation'
by inviting the applicant to
put his own doctor in touch with the 4. With regard to the alternative claim
medical service of the Commission. relating to a fresh medical examination, the Commission points out that under
The Commission continues that Article 33 of the Staff Regulations, a
although the decision was not specifically decision regarding the physical fitness of
MOLI v COMMISSION
a candidate depends exclusively on normal way action should at that
examination by the institution's medical moment have been taken to appoint him officer. There is no provision for any since all the requisite conditions had review in the event of objection to the been satisfied. The delay in carrying out opinion formed by the doctor as a result his appointment and the fact that the
of that examination. As an act of good applicant was obliged without due cause
management, the institutions have to undergo a fresh medical examination
adopted a standard review procedure in are evidence of a prejudicial, unjustified the event of the person concerned asking and preconceived attitude towards him. the administration to amend the decision adopted; there is nothing in the Commission 6. In its rejoinder the provisions in force on which to base a begins by stating that there is in no claim for greater protection at circumstances any obligation to appoint administrative level against the outcome a candidate placed on the reserve list of the medical examination. been even when the candidate has successful in the tests in the competition 5. In his reply, the applicant maintains and is recognized as being physically fit. that the absence of a statement of reasons The sole purpose of the medical in the report that he was unfit and in the examination is to establish that can
implied decision rejecting the complaint didates placed on the reserve list are are in breach of Article 25 of the Staff suitable from the standpoint of their Regulations of Officials in which the physical condition and the medical institution is expressly enjoined to state examination confers no rights additional the grounds on which a decision to those conferred by success in the adversely affecting an individual is based. competition.
Going on to impugn the legality of the Moreover, the institution is entitled to medical examinations to which he was submit a candidate placed on the reserve subjected, the applicant questions the list to a fresh medical examination if the evidential value of the psychiatric period of time which has elapsed examination by Doctor S and contends between the previous examination and that, contrary to the Commission's the new appointment procedure gives statement, Dr F who, at the request of reasonable grounds for considering that the Commission's medical officer, his physical condition might have examined him in Italy, did not confirm undergone change; a candidate is not the results of the examinations carried entitled to brush aside the unfavourable out at the headquarters of the results of a medical examination on the Commission. In his view, the fact that, pretext that a previous examination, within the space of a year, the same which was of a more general and less medical body could radically reverse its detailed character, failed to disclose that opinion of his state of health is he was unfit. impossible to explain. The Commission medical board, which reviewed his case, did no more than adopt unreservedly the The Commission further explains that, first doctor's opinion. The applicant's for the contested medical examination, own doctors were never notified or the institution's medical officer enlisted
invited to take part in the work of the the opinion of two specialists, one of
medical board. whom was a Belgian and the Com
mission's usual consultant for the annual
Finally, the applicant points out that, on medical examination of officials and for completion of the first medical examinations to determine the fitness of
examination, there were available posts candidates and the other of whom was an
already in existence and that in the Italian. As a result of the applicant's
JUDGMENT OF 27. 10. 1977 - CASE 121/76
request, the medical officer's opinion was adopted, the outcome of the second
the subject of a review by the ad hoc examination contained safeguards which
medical board as the institution's internal made it unassailable.
consultative body. This complicated
examination procedure is not only such The Commission does not consider that
as to ensure a considered diagnosis but a study of the contents of the documents also safeguards the interests of the held by the medical service and which
candidate in a field where, in the present the applicant has requested to be state of the regulations, there is no produced can provide anything of
provision for adversary proceedings. assistance in arriving at a decision. Nevertheless it expresses its readiness to
With regard to the alleged conflict place them at the disposal of the Court between the medical report and the one in accordance with instructions to be laid drawn up a year earlier, the Commission down by the Court, subject to the rules
points out that the time which elapsed imposed by medical ethics. between the two reports and the difference in character between the two The parties waived their right to submit
examinations explain why the second oral observations at the hearing. report took account of fresh con
siderations which the first doctor was The Advocate General delivered his unable to take into account. In any case, opinion at the hearing on 28 September from the viewpoint of the procedure 1977.
Decision
1 The application, which reached the Court Registry on 20 December 1976
seeks the annulment of the implied decision rejecting the complaint lodged
by the applicant on 20 May 1976 concerning the decision not to appoint him
to a post as administrative assistant and the report that he was unfit drawn up
by the medical service of the Commission and notified to him on 8 March 1976.
2 He seeks, in addition, a declaration that he is to be appointed to the post in question or, alternatively, instructions for a fresh medical examination to be held.
3 On 22 October 1974 the applicant, who had been successful in Open Competition No COM/B/117, held draw up a reserve list for the future to
recruitment of administrative assistants in posts in Career Bracket B 5/B 4,
was medically examined as provided for under Article 33 of the Staff
Regulations and the outcome of the examination was the report that, at that
time, as required by Article 28 (e) of the Staff Regulations, he was physically fit to perform his duties.
MOLI v COMMISSION
4 When a post as administrative assistant fell vacant in January 1976 the
applicant was asked, with a view to his possible appointment, to undergo
another medical examination, which took place on 11 February 1976 but which on this occasion resulted in a report that he was physically unfit.
5 On 8 March 1976 the responsible officer of the Personnel Division informed the applicant that this report prevented his being engaged and added that, if he wished to know the grounds on which he was declared unfit, he should
ask his own doctor to get in touch with the head of the Commission's
medical service; in addition, he informed him that he was entitled, within a
period of 20 days, to request that his case be reviewed by a board of three
doctors connected with the institution.
6 As early as 10 March the applicant pressed for such a review and by letters of 9 and 16 March his two general practitioners asked to be informed of the
reasons for the decision that their patient was unfit.
7 As a result of circumstances which the Commission describes as 'difficulties of a technical character', these doctors received no reply until 2 February 1977, or almost a year later, and after the Commission's review committee
had, on 21 October 1976, confirmed the finding of unfitness of which a
review had been requested.
8 Meanwhile, because of the length of time taken by the Commission to reply to the for information made by his own medical advisers, the request
applicant May 1976 lodged a complaint within the meaning of Article on 20
90 of the Staff Regulations, against the decision, notified to him on 8 March 1976, not to appoint him. The complaint was registered on 2 June 1976.
9 The Commission again failed to reply to that complaint, with the result that, as from 2 October 1976, the absence of a reply became, in accordance with the fifth subparagraph of Article 90 (2) an implied decision rejecting it, the annulment of which the applicant is seeking through the present application.
10 Whatever may be the consequence which must follow in law from the facts hereinbefore described, the Court cannot refrain from noting the
irresponsible manner in which, both as regards the request for medical
JUDGMENT OF 27. 10. 1977 - CASE 121/76
information and the complaint through administrative channels, the services
concerned behaved on a matter involving interests meriting the utmost
consideration.
11 In support of his application the applicant points to the absence, contrary to Article 25 of the Staff Regulations, of a statement of the reasons on which
both the implied decision arising from the absence of a reply from the
Commission and the decision of which he was informed on 8 March 1976
were based.
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 of reasons or the absence 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 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.
14 Nevertheless, 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.
15 This 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; this information should enable the person concerned, either himself or through his doctor, to judge whether the decision setting aside his appointment conforms with the requirements of the Staff Regulations.
16 Since the head of the medical service considered that the reasons for which the applicant had been declared physically unfit ought to be communicated
MOLI v COMMISSION
only to a doctor designated by the applicant, the responsible officer in the Personnel Department had no authority, even if he was aware of the findings which had led to the conclusion that the applicant was physically unsuitable
for the vacant post, to disclose them, with the result that the statement of
grounds in the communication of 8 March 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
informed and put in a position to advise the applicant whether it was possible to contest those grounds.
17 This was a fortiori the position since by the decision of 8 March 1976 the applicant was invited to have the assessment of his case submitted to review
by a committee of three doctors.
18 Although, under legislation at present in force, there is no legal requirement for a meeting of an ad hoc medical board to be held, this does not affect the fact that the administration had expressly invited the applicant to apply for such a meeting for the purpose of instituting a fresh review of his case, that is to say, if necessary, of impugning the findings or assessments made by a single medical officer in February 1976. It had thus committed itself to that procedure.
19 At the same time, in suggesting that the applicant should invite his own
doctor to ask to be informed of the grounds justifying the declaration that he was physically unfit, the administration intended to give him the means of
effectively challenging those grounds when the case was reviewed.
20 This 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.
21 In consequence both the decision of 8 March 1976 and the implied decision
rejecting the applicant's complaint must be annulled.
22 The applicant further requests the Court to declare that he must be appointed to the vacancy or, failing that, order a fresh medical examination.
JUDGMENT OF 27. 10. 1977 - CASE 121/76
23 The Court has no jurisdiction to put itself in appointing the place of the
authority and in any illegality case the disclosed does it to be not enable
decided whether the applicant does or does not possess the requisite degree of
fitness, only that the report on his fitness was drawn up under conditions
which were unlawful and that it must be recommenced.
24 It is for the Commission to take the necessary steps to give effect to this
judgment.
Costs
25 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be
ordered to pay the costs.
26 The defendant has failed in its submissions.
27 The defendant must therefore be ordered to pay the costs of the action.
On those grounds,
THE COURT (First Chamber)
hereby:
1. Annuls the decision of 8 March 1976 and the implied decision
rejecting the applicant's complaint;
2. Dismisses the remainder of the application;
3. Orders the Commission to pay the whole of the costs.
Bosco Donner Mertens de Wilmars
Delivered in open court in Luxembourg on 27 October 1977.
A. Van Houtte G. Bosco
Registrar President of the First Chamber