C-75/77

JUDGMENT OF 13. 4 1978 — CASE 75/77

3. When any administrative body an individual it is bound to put him adopts a measure which is liable in a position to express his point of gravely to prejudice the interests of view.

In Case 75/77

Emma Mollet, residing at Brussels, 11 Rue G. and J. Martin, represented and assisted by Jacques Putzeys an Xavier Leurquin, Advocates of the Brussels Bar, with an address for service in Luxembourg at the Chambers of G. Nickts, Huissier, 17 Boulevard Royal,

applicant, v

Commission of the European Communities, represented by Denise Sorasio-Allo, an official employed in the Legal Service of the Commission, acting as Agent, assisted by R. O. Dalcq and M. Grossmann, Advocates of the Brussels Bar, with an address for service in Luxembourg at the Chambers of J. Loesch, Advocate of the Luxembourg Bar, 2 Rue Goethe,

gives the following

MOLLET v COMMISSION

JUDGMENT

Facts and issues

The facts of the case, the procedure and any engagement. Following the exami­ the conclusions, submissions and nation the Medical Service of the arguments of the parties may be Commission prescribed two additional summarized as follows: visits to neuropsychiatrists, as a result of which it was led to inform the Direc­ torate General for Personnel and Admin­ I — Facts and written procedure istration that:

JUDGMENT OF 13. 4 1978 — CASE 75/77

By letter dated 26 May 1977 the the amount of which to be fixed by applicant was informed that, as regards the Court at Bfrs 2 050 000, subject her medical file, to modification in the course of the

"... a complete report will be sent proceedings; without delay" to her private doctor. 4. Rule that as a result of the grossly The report in question was com­ wrongful attitude of the opposite municated on 8 June 1977. However, party the applicant has suffered non- material damage, the amount of the applicant's doctor did not consider himself authorized to inform his patient which to be fixed by the Court at of its content. Bfrs 50 000, subject to modification in the course of the proceedings; As she received no reply to her complaint within the prescribed period 5. Order the opposite party to pay all the costs. of four months, the applicant lodged the present application on 28 June 1977. The defendant contends that the Court By a memorandum dated 18 July 1977 should: the Director General for Personnel and Administration asked the head of the 1. Declare that the application is Medical Service at Brussels: unfounded, both as regards the claim for annulment and as regards the "to send a further letter [to the private claim for compensation for damage doctor] stating clearly that it is for him assessed at Bfrs 2 050 000, plus Bfrs to make such use as he considers appro­ 50 000; priate of the information previously communicated to him and that the 2. As a result, dismiss the application; question whether he informs Miss 3. Order the applicant to pay the costs. Mollet is left to his own discretion."

arising out of an erroneous application its decision. The assessment made by of Article 55 (1) (d) of the Conditions the Medical Service is binding on the of Employment of Other Servants. The Commission, which is not entitled to Medical Service merely expressed reser question its discretionary nature. vations in its letter to the Commission As regards the second submission, the of 4 October 1976 and, without sub opinion of the Medical Service stituting itself for that service, the expressed more than mere reservations. defendant cannot decide that the Its wording is clear: "The candidate is applicant is physically unfit. not physically fit to perform her duties". Furthermore, in the light of the Moreover, treatment is not always admission that the alleged physical necessary, since physical unfitness may unfitness does not require any medical result from a medical condition which is treatment it may be presumed that the permanent or from an incurable illness. unfitness is not one which the defendant By specifying that, in this case, no may validly take into consideration. treatment was necessary, the Medical Service acted on humanitarian motives. Finally, the applicant claims that the general principles of equality of As regards the third submission, the treatment, non-discrimination on racial defendant denies that its decision was grounds, freedom of religion and influenced by the applicant's beliefs, protection of privacy have been which were unknown to it until the

fitness. who has been placed on a reserve list, Even supposing the defendant to have constitutes a decision adversely affecting been aware of the reason which led the him within the meaning of Article 25 of Medical Service to conclude that the the Staff Regulations the reasons for applicant was unfit, it could not have which must in consequence be stated". given a fuller statement of reasons for The applicant's private doctor was not

informed within a reasonable period of constituting the alleged physical the ground on which she was declared unfitness to perform those duties. It is physically unfit. An obligation to for the Court to order complete observe professional secrecy was production of the documents imposed on him, even as regards his concerning all the medical exami patient, without his being able to make nations, including those carried out by any assessment of it. The applicant was the two neuropsychiatrists. never invited to have the assessment of As regards the third submission, it is her case submitted to review by a immaterial whether the violations at committee of three doctors. However, it issue emanate from the Medical Service is clear from the Moli judgment that the of the Commission or from the Commission had to give the person appointing authority within the strict concerned the means of effectively sense of the term. challenging the grounds justifying the The applicant protests against the fan declaration that she was physically unfit. that on the occasion of a mere exami The letter, which, furthermore, was not nation prior to engagement and without implemented, from the Director General any particular previous medical record, for Personnel to the head of the a candidate should be forced to Medical Service, in which he asked for undergo two neuropsychiatric exami the prohibition on disclosure for reasons nations.

procedure. As regards the first submission, the Since the submission put forward Commission replies that the applicant consists in maintaining that the opinion cannot base her arguments on the Moli of the Medical Service deduces on judgment, which settles a case different grounds which are not physical in from the present one. Mr Moli was a nature a physical unfitness which is not candidate for appointment as an official. such as to prevent the performance of Furthermore, the procedure for appeal the duties in question, the Court is against the decisions of the medical perfectly competent, without sub officer, which is governed by a decision stituting its assessment for that of the of the Commission of 9 December Medical Service, to determine whether 1974, can be implemented only in the the latter classified in accordance with case of candidates for appointment as the legal requirements the factors officials who have successfully taken

part in a competition. That is not the The applicant's privacy was not position of the applicant. However, the impaired by the question, asked by one absence of any automatic "review" does of the neuropsychiatrists, why she had not deprive her of the right to make her resigned from her post at the Council. point of view known, since she is That is the only way in which her entitled to submit a complaint to the philosophical opinions were touched on administration. and, moreover, the reply to the question could not have been taken for granted. If the private doctor did not consider that he should inform his patient of the The requirement that the same reasons for the opinion of the Medical conditions should apply is shown Service, he acted on his own sufficiently by the frequency of special

during the period from September to concern the adequacy of the reasons December 1976, during which she had given (the medical opinion) for the to continue her work on a temporary contested decision (omission from the basis and, since January 1977, in the recruitment list on the ground of loss in salary which she has to bear until physical unfitness). Since the the end of her working life, since work Commission adopted its decision on the in the private sector is always less well basis of the medical opinion, that paid than in the Community civil decision is commensurate with the facts

accusation of intention made against the Medical Service itself is groundless: the The Commission replies that the annulment of the decisions which it medical officers were so devoid of any intention to exclude the applicant for a adopted would enable the applicant to be included in the reserve for future reason of a philosophical nature that on receiving a copy of her complaint they recruitment, with the result that she could not claim to have suffered certain proposed to submit their opinion to a board of three doctors, according to the damage. procedure instituted for candidates for A decision that the applicant is appointment as officials. physically fit would not in any way

regular, the defendant has not The difference between what the committed any wrongful act and it applicant would have earned in the cannot incur liability. service of the Commission and what she The applicant replies that the annulment would earn in the private sector is of the decisions at issue would not purely hypothetical — and necessarily enable her to be included in the reserve unproven — as is her engagement. for future recruitment but would merely If the private doctor did not think it oblige the Commission to hold a fresh expedient to divulge to his patient the examination of her physical fitness (cf. reasons for the decision that she was Moli judgment). However, the reserve physically unfit, the blame for that for recruitment is valid only for a cannot be laid at the defendant's door. specific period and a re-examination The applicant could always have turned would be unlikely to result in a decision to another doctor, who could have that she is physically fit. Even supposing obtained and divulged the reasons given those obstacles to be removed, the by the Medical Service. Finally, the applicant might be left on the reserve list for recruitment. Even if she was in basis of the application for annulment conflicts with that of the claim for fact appointed the damage suffered would have consisted in the loss of compensation. Since the applicant was convinced that the ground on which she salary from the moment when she could have been appointed. had been declared unfit camouflaged an intention to discriminate, the cause of The attitude of the Commission in the non-material damage (anxiety) does persistently prohibiting the applicant's not exist. private doctor from informing her of the reason given by the Medical Service The applicant, represented by J. leads her to express the clearest reser­ Putzeys, Advocate of the Brussels Bar, vations of her rights as regards any and the Commission of the European increase in the special non-material loss Communities, represented by M. defined in the application. Grossmann, Advocate of the Brussels Bar, presented oral argument at the The defendant replies that, unlike the hearing on 23 February 1978. case of candidates for appointment as officials, the applicant did not derive The Advocate General delivered his any right to be engaged from the opinion at the hearing on 9 March acknowledgement of her vocational 1978.

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:

"We formed certain reservations concerning the recruitment of Miss Mollet ... as a result, her candidature was not accepted by the administration of

JUDGMENT OF 13. 4. 1978 — CASE 75/77

the Commission . .. there are no medical factors to be communicated which require treatment".

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.

MOLLET v COMMISSION

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.

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 2 050 000, 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 50 000.

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.

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;