C-155/78

that end the medical officer of the communication to a doctor of his institution may legitimately take into choice of information which should account, on the basis of all relevant in particular enable the person medical criteria, not only possible concerned, either directly or through physical deficiencies in the strict his doctor, to judge whether the meaning of the word but also decision refusing his appointment is in psychical or psychological disorders accordance with the provisions of the of such a nature as to affect the Staff Regulations. fulfilment by the candidate of his duties as an official. 4. Although the Court, when seised of an application against a decision In that regard it is even possible to refusing to appoint a candidate on envisage that a finding of unfitness grounds of physical unfitness, may may be based not only on the not substitute its own judgment for existence of actual disorders but also that of the doctors on questions on a medically justified prognosis of which are specifically medical, it none future disorders capable of the less remains for the Court, in the jeopardizing in the foreseeable future context of the task, which is peculiar the normal performance of the duties to it, of reviewing whether the re- in question. cruitment procedure has followed a lawful course, to consider whether it has available to it all information 3. The obligation to state the reasons for relevant to the reaching of its a refusal to engage a candidate as an decision. A refusal to give any infor- official on grounds of physical mation whatever concerning the basis unfitness must be reconciled with the of the medical records and the requirements of confidentiality which, reliance, by the doctors in the save in exceptional circumstances, confidence of the Commission, on the leave the individual doctor to decide confidentiality of medical findings, whether to communicate to those even when the applicant has expressly whom he is treating or examining the released them from the duty of nature of the condition from which observing it, have the result of making they may be suffering. That it impossible for the Court to carry reconciliation is normally effected out the judicial review entrusted to it through the ability of the person by the Treaty and the Staff Regu- concerned to request and ensure the lations.

APPLICATION for annulment of the Commission decision declaring that the applicant does not fulfil the requirement of physical fitness for the per­ formance of the duties of an official,

T H E 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

the medical examination provided for in By letter of 6 October 1977 the applicant Article 33 of the Staff Regulations, the was informed, in the following terms, first paragraph of which is worded thus: that the medical board had decided to confirm the medical officer's first "Before appointment, a successful opinion: candidate shall be medically examined by one of the institution's medical officers "Following upon your letter of 6 July in order that the institution may be 1977 I am writing to inform you that a satisfied that he fulfils the requirements medical board composed of three of Article 28 (e)". medical officers of the institution met on 12 August 1977 to reconsider your file. The first medical examination, carried out by one of the Commission's medical I regret to have to tell your that at the officers, took place on 5 April 1977. The end of that examination the medical applicant was subsequently requested to board considered itself bound to adhere undergo a neuro-psychiatric examin- to the finding of unfitness in your case. ation. On the basis of the above-mentioned conclusions, the appointing authority As from 1 May 1977 the applicant was considers itself bound to decide to engaged by the Commission as a member declare you to be unfit. Consequently, in of the auxiliary staff for a period of six accordance with the provisions of Article months. 28 (e) of the Staff Regulations of Officials, there can be no question of By letter of 5 July 1977 the applicant was your being recruited to employment with informed that: 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 following upon the medical examination Commission will come to an end on the which you have undergone, the evening of 31 October 1977. Commission's medical officer does not consider himself able to find that you are physically fit to perform your duties with the Commission . . . By a letter of 13 October 1977 the The reasons upon which this opinion of applicant informed the Commission that unfitness is based may be obtained from she proposed to submit a complaint your own doctor on application to . .., against the finding of unfitness made by head of the Commission's medical the medical board and that she had branch. instructed her doctor to acquaint himself with her medical record and to arrange I must also inform you that it is open to for a further opinion. you, before the expiry of the twentieth day following the receipt of this letter, to On 1 November 1977 the applicant's request that your case be submitted for contract as a member of the auxiliary the opinion of a medical board staff was renewed for a period of six composed of three doctors chosen from months. among the medical officers of the institutions of the Communities." At the request of the applicant's own doctor a report explaining the reasons By letter of 6 July 1977 the applicant for her unfitness was sent to him on requested that her case be submitted to 21 November 1977 and, in reply to a such a medical board. request from him on 28 November, a

Upon hearing the report of the Judge- A — The applicant's first submission Rapporteur and the views of the Advocate General the Court (Second 1. The applicant contends that even if Chamber) decided to open the oral the medical examination in question procedure. were sound, she is suffering from psychical or psychological unfitness. In By orders of 24 August and 12 her view, however, only physical September 1979 the Court decided, on unfitness may be taken into account in the one hand, that the applicant, should the context of Article 33 of the Staff appear personally at the sitting in camera Regulations. on 11 October 1979 and, on the other hand, that it should hear on the same 2. The Commission is of the view that occasion, as witnesses, Dr P. Corten, Dr the word "physical" also embraces M. Tombroff, Dr C. Olmechette and Dr psychological and psychiatric aspects of J. De Geyter on the following question: the human being. It considers that the " Subject always to the limits imposed by physical fitness must be contrasted with their rules of professional conduct and in suitability of character and ability to the light of their knowledge of the perform his duties as referred to in medical records of the applicant, the Article 28 (c) and (d) of the Staff Regu­ witnesses will be asked to make such lations. In its opinion, it is the law in the observations as they consider themselves Member States that examination of able to give on the finding of unfitness in physical fitness for entry to the public the applicant's case". service also covers psychical or psychological aspects of the candidate's personality. According to the Commission, afflictions such as nervous II —• C o n c l u s i o n s of t h e p a r t i e s depression or a neurasthenic or neurotic condition having their origin in a 1. The applicant claims that the Court psychological or psychical deficiency and should: constituting physical unfitness have properly justified incapacity for work or —• Annul the implied decision rejecting physical unfitness within the meaning of her complaint; the Staff Regulations and, where appro­ priate, an acknowledgment of invalidity. — Annul the Commission's decision of 6 October 1977 declaring her unfit; 3. The applicant replies that, having regard to the principle of the protection — Order the Commission to pay the of the private life of individuals, the costs. adverb "physically" in the provision in question must be construed narrowly. 2. The Commission contends that the According to the applicant, the Court should: distinction between physical unfitness

and mental unfitness is so fundamental dictory — which is equivalent to an that where a Member State, for example, absence of grounds for the decision in Belgium, wishes to extend a medical question — inasmuch as it alleges that examination to encompass mental fitness the applicant does not fulfil the as well, it does so by express provision. conditions of physical fitness required for The applicant submits finally that, even if exercise of her duties by reason of over- psychical or psychological aspects of a frequent absences whereas, on the one person may be taken into account in hand, it re-engaged the applicant for a determining physical fitness (which is period of six months and, on the other denied), only a physical disability or hand, the applicant worked for the illness resulting from psychical or Commission for six months giving psychological disorder is capable of complete satisfaction. being regarded as physical unfitness within the-meaning of the Staff Regu­ lations. 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 (b) The Commission observes that the disease. applicant may not rely on the contract of 1 November 1977: that was concluded having regard to the proceedings then in 4. In its rejoinder the Commission course, pending the opinion of the submits that as in the law of the Member medical branch and solely as a result of States relating to the public service, the its concern not to cause any serious adverb "physically", in the context of the prejudice to the applicant. Even if on the Staff Regulations, embraces all medical conclusion of the first contract as a aspects of a person. In its view, the member of the auxiliary staff the concept of physical fitness must be applicant had been regarded as fit placed side by side with the concept of temporarily to perform duties in the invalidity taken into consideration by the service of the institutions •—· which is Staff Regulations as the condition for denied — it may not, according to the termination of service. According to it, Commission, be inferred that she was fit almost half of the cases of retirement on to take up a post as an official which was grounds of invalidity during the course of a permanent nature. Fitness, in fact, is of a career are for reasons of a neuro­ to be judged in regard to the duties and psychiatrie or even psychological nature. the foreseeable duration of the It follows, in the Commission's view, employment. that if such a finding of invalidity is permissible in regard to neuro­ psychiatrie or psychological disorders, disorders of the same nature must also lead to a finding of physical unfitness at the time of recruitment. The Commission adds that the engagement of the applicant as from 1 May 1977 was preceded by an Β — The applicant's second submission interview with one of its officials in the course of which he stated that that 1. First part engagement was offered pending the completion of the recruitment procedure (a) The applicant contends that the and that recruitment was subject to Commission's actions are self-contra­ a finding of medical fitness. The

2. Second part On this question the Commission states, finally, that, having regard to the strictly (a) The applicant contends further that medical nature of the documents lodged the medical opinions upon which the by the applicant, it considers that it is not Commission proceeded are vitiated by for the Commission to comment on their errors of fact. A neuro-psychiatric report content, which it 'could do only on the submitted to the Court by the applicant basis of the investigations carried out by concludes indeed as follows: the doctors in its medical branch and the independent doctors consulted by that branch who examined the applicant. "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 3. Third part ill again is no greater than in the case of the average person. That risk will be related to any difficulties she may (a) The applicant takes issue with the encounter in her relationships with practice of the medical branch of the others and in her emotional life and to Commission which, according to the any unforeseeable diseases or accidents". applicant, proceeds by way of ques­ tionnaires and without any medical examination. Even more serious is the Another medical report lodged by the practice of the medical board, which applicant is worded thus: gives its opinion on the basis only of the records compiled by their colleagues and " I examined Miss M. thoroughly in without seeing the person concerned. October 1977. At that time both the According to the applicant, such a clinical examination and the various procedure can only result in an inappro­ biological and radiological tests proved priate opinion because it is a summary normal". 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 (b) The Commission observes that five such grounds is vitiated 'and must be doctors, of whom one specialist did not annulled. 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 (b) According to the Commission it is suffering from mental illness. The neuro- not reasonable to maintain that the psychiatric report produced by the medical opinion given by three doctors

(b) The Commission is of the view that this part of the second submission is (a) In the context of this part and based upon a distorted reading of the applying the principles of the judgment text of the letter of 5 July 1977. of the Court of 27 October 1977 in Case According to the Commission, that letter 121/76 Alessandro Moli ν Commission of in no way presented the applicant with the European Communities [1977] ECR an alternative but, quite on the contrary, 1971 the applicant states that: with two courses, both of which she could follow. The Commission recalls that the tenor of the said letter was — The Commission confronted the approved by the Court in the opening applicant with a dilemma in so far as, sentence of paragraph 19 of its decision if she decided to request the in the judgment in Case 121/76, Moli. disclosure of her medical records to The Commission adds that the her own doctor that necessarily administration is not to blame if the implied the abandonment of her right applicant deprived herself of the right to of appeal to the medical board: 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 — Even if the Commission's letter of review or for not having expected that 5 July 1977 must be interpreted she would give those grounds a otherwise, the fact remains that the posteriori. According to the Commission, applicant, who decided to appeal to to adopt the applicant's requirements the medical board, was not informed . would lead to the administration's being in advance of any opportunity to be paralysed. Since the applicant had at her heard or to submit an alternative disposal the 20-day appeal period and medical report; the 36 days taken by the ad hoc medical

From these observations the applicant C — The applicant's third submission 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. The applicant claims in the context (1) and 14 of the European Convention of this submission that of ten candidates on Human Rights, namely: equality of subjected to special examinations such as the sexes, equality of treatment and the neuro-psychiatric examination eight protection of the private life of or nine are women. She states, further, individuals. That decision infringes, that women candidates are the victims of moreover, the second paragraph of unequal treatment inter se since only Article 27 of the Staff Regulations. 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 2. The Commission observes in regard the competition leading to recruitment. to this submission that the special exam­ Moreover, no provision lays down inations in no way amount to inequality criteria or an objective procedure which in treatment. Those examinations, which would permit the said examinations to be are decided upon by the medical officers reviewed. of the institutions on the basis of medical criteria, have the sole purpose of permitting them to give a medical The applicant also alleges against the opinion based upon an examination of Commission the fact that the medical all facets of the fitness required. examination consists in putting questions which relate in particular to the private and even the intimate life of the can­ The Commission adds, finally, that in didates. 1976 2 7 % of male candidates underwent a neuro-psychiatric examination as against 3 7 % of female candidates. The In regard to the specialists entrusted with figures for 1977 are 26% and 5 1 % the examinations the applicant observes respectively. In its opinion, no discrimi­ that: nation may be inferred from those figures. As for the applicant's argument to the effect that on the occasion of the — A small number of such specialists is medical examination questions are asked always appointed unilaterally by the relating to the private life of the medical branch of the Commission; candidate, the Commission states that such an examination necessarily involves a review of the candidate's private life. — They are remunerated by the But that review does not constitute an Commission; invasion of privacy since the candidate

The Commission states, finally, that The problems raised by this case results although its medical branch has recourse from the fact that the medical prac- to a limited number of specialists that is titioners entrusted by the Commission for the reason that generally speaking, with making medical examinations in the those specialists are also consulted by the context of recruitment procedures plead medical branches of the public auth- the confidentiality of their findings orities of the Member States and that, before the Court, thus making it through experience, they are able to impossible for the Court to take into become acquainted with the require- account certain matters of evidence ments of Community administration. 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 IV — M e a s u r e s of i n q u i r y limits to the confidentiality of medical findings in a situation which is char- acterized by the fact that: At the sitting held in camera on 11 October 1979 the applicant, (a) What is involved is a preventive appearing in person, and also Dr P. medical examination required at the Corten, Dr M. Tombroff, Dr C. instance of the Community authority Olmechette and Dr J. De Geyter, in the context of a recruitment appearing as witnesses, replied to procedure and in such manner that questions from the Court (Second there does not exist the relationship Chamber). of confidentiality which is charac- teristic of the situation of a person who seeks the assistance of a medical practitioner for therapeutic ends and V — Oral procedure who places the latter in the position of being a necessary confidant; The applicant, represented by (b) The applicant has expressly released X. Leurquin, and the Commission, the medical practitioners from their represented by D. Sorasio-Allo and obligation of secrecy as regards her. M. Grossmann, presented oral argument at the sittings on 8 November 1979 and 7 February 1980. At the latter sitting the What is required is a selection from the parties provided, in particular, an Member States' national laws and analytical conspectus of comparative law practices, whether civil, administrative or

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

JUDGMENT OF 10. 6. 1980 — CASE 155/78

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.

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

MISS Μ. ν COMMISSION

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)."

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 ν Commission of the European Communities [1977] ECR 1971 and Case 75/77 Mollet ν 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.

— Where reliance on such confidentiality would have the result of ob­ structing 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.

JUDGMENT OF 10. 6. 1980 — CASE 155/78

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.

Delivered in open court in Luxembourg on 10 June 1980.

J. A. Pompe A. Touffait Deputy Registrar President of the Second Chamber