C-283/90

Mr President, 4. The Court of First Instance is known to Members of the Court, have dealt with that criticism by the appellant in paragraph 31 et seq. of the grounds for its decision, in particular in 1. In my view, the appeal which Mr paragraph 33 of the judgment. With Vidrányi has brought against the judgment reference to the judgment in Case 140/86' of the Court of First Instance of 12 July (where it was stated that documents 1990 may be analysed—with reference to 'relating to the findings of fact concerning the Report for the Hearing as regards the an incident at work which may serve as a details of the case — as follows. basis for a procedure for the recognition of the existence of an accident at work or an occupational disease' must be recognized as being of a medical nature), the Court of 2. /. In the first place, it is claimed that the First Instance was of the opinion that such assessment by the Court of First Instance of an appraisal was also appropriate with the question whether certain purely admin- regard to the abovementioned reports istrative documents should have been concerning the appellant's working communicated to the appellant to enable conditions and it was for that reason that him to comment was unlawful. The the refusal to communicate them directly to documents — as the Court is him was justified. aware — contain statements made by the appellant's former superiors in 1982 concerning the working conditions which he experienced until his retirement on the ground of ill-health in 1979. 5. In that respect, the appellant pointed out that the judgment cited was concerned with completely different facts and that it was quite clear from the arguments put forward 3. The appellant takes the view that the therein that it did not correspond to his own principle of a fair hearing required that he case. The Court of First Instance had thus be given the opportunity to comment on the made a false subsumption under a rule of abovementioned statements, because only in law of the facts presented to it and could that way could an objective and complete thus rightly be accused of an 'infringement representation of the situation and the of Community law' within the meaning of events which are significant for his legal Article 51 of the Statute of the Court of position (the possible application of Article Justice. 73 of the Staff Regulations) be guaranteed. Since the Court of First Instance did not criticize the Commission's conduct as a breach of procedure, its judgment must be regarded as being vitiated by an error in 6. In my opinion — if I may say so at this law. point — that observation is quite correct.

7. It should first be pointed out that the law realize that it was a question in the case relating to officials in the Community is also cited of documents whose direct communi- governed by the important principle cation to the person concerned could cause according to which everyone is entitled to a him anxiety (which might be medically fair hearing. That principle is referred to in apparent), from which it had to be the judgment in Case 140/86 where, in determined that — contrary to what the paragraph 7, it is emphasized that decisions appellant claimed — it was right for them taken by the appointing authority and not to be placed in his personal file.

It is emphasized here that that possibility afforded to the official (namely to be granted access to documents of a medical 10. The facts which the Court of First nature) must be reconciled with the Instance had to consider in Case requirements of medical confidentiality T-154/89, 2 on the other hand, are clearly 'which make every doctor the judge of of quite a different nature, which must whether he can inform the persons whom he indeed suggest the conclusion that they is treating or examining of the nature of the should not have been treated in accordance illnesses from which they may be suffering'. with the rules laid down in Case 140/86. There thus appears to be justification for granting only indirect access to the documents of a medical nature through the interposition of a medical examiner

I-4355

OPINION OF MR LENZ —CASE C-283/90 P

15. Furthermore, it is clear to me that it was not a matter of referring the appellant to the possibility of commenting through the doctor treating him. In so far as the 13. A glance at those documents, which Commission has in mind Article 21 of the together amount to three typewritten sides, Rules on Insurance of Officials against the immediately makes it clear that, in so far as Risk of Accident and Occupational Disease the statements are relevant to the case, (according to which the official concerned which cannot be said of two of them, they may request that the full medical report certainly include no 'medical assessments' or which the doctor appointed by the assessments of a related nature (for instance, institution has drawn up be communicated concerning 'troubles psychologiques', as the to a doctor chosen by him) it should be Commission's Agent mistakenly thought at borne in mind that, clearly, no access could the oral proceedings) and thus assessments have been provided to the complete report which (within the meaning of the judgment drawn up following the inquiry within the in Case 140/86) were not to be brought to meaning of Article 17 of those Rules the appellant's attention. It is also significant (including the statements of the appellant's that the Commission had no reservations former superiors). O n the other hand, in so about making those documents (the far as it is contemplating the fact that the existence of which the appellant had appellant's doctor had access to all the apparently first become aware in 1986) documents in the context of the procedure available to him in the proceedings before before the Medical Committee, it should the Court of First Instance (where — as has not be forgotten that a reference in that way already been said — they were produced to making comments would mean that the with the statement in defence). discussion of purely administrative problems (the working conditions experienced by the appellant) must have taken place before the

That was the only way to avoid being left with a purely 3 — Biedermann v Court ofAuditon [1988] ECR 143.

18. If one considers (as I myself do) that it was necessary for the appellant to be given the opportunity to comment in respect of 21. — The appellant also considers that the purely administrative documents before the contents of the report (or the Medical Committee's inquiry was held, then reasons on which it is based) are clearly it was also not necessary for the open to criticism in so far as there is Medical Committee to hold a hearing no 'comprehensible link' between concerning purely administrative documents the medical findings contained in and to forward to the official concerned the the report and the conclusions documents referring to him to enable him to drawn from it (within the meaning comment. Suffice it to say that a criticism of the judgment in Case 277/84). 4 along those lines was thus rightly dismissed as irrelevant by the Court of First Instance. 4 — Jänschv Commillion [1987] ECR 4923.

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OPINION OF MR LENZ —CASE C-283/90 P

23. In that respect, it should first be noted demonstrate that that rule, the fairness of that it is certainly unimportant that the which is evident, does not correspond to criticism referred to was not already raised basic administrative principles (as they before the Court of First Instance and that could, for instance, have been taken from the Court thus has to deal, at least in part, national rules). with new submissions. According to the relevant procedural rules (Article 113(2) of the Rules of Procedure of the Court) it is perfectly clear that such an extension of the subject-matter in the course of the proceedings relating to an appeal is not to be regarded as inadmissible.

24. It is also clear, however — once more the information obtained from the anticipating the outcome of my deliber- statements of the appellant's former ations — that the judgment of the Court of superiors) to normal working conditions to First Instance can scarcely be called into the fact that it is impossible to see how they question in the way just described. could have influenced the appellant's disease, it cannot be said, in spite of the brevity of which the report of the Medical Committee can be accused, that the report is not definitive within the meaning of the

I-4358

VIDRÀNYl v COMMISSION

27. Also beyond reproach in my view is the 30. It is clear to me that that claim also fact that the report does not speak, as was cannot be granted in these proceedings. suggested in the brief given to the Committee, of an aggravation of the appellant's disease owing to the performance of his duties. It was significant for the doctors that, as far as they were 31. If the appellant himself begins with the aware, the working conditions did not differ assumption that the claims put forward at from what was normal. They concluded that first instance have 'almost nothing' to do those conditions must have had no relevance with an infringement of Article 24 of the for the appellant's disease and thus Staff Regulations, there is certainly no also — at least implicitly — showed that the reason to criticize the judgment of the working conditions could also not have led Court of First Instance for paying no to an aggravation of the appellant's disease. particular attention to the argument referring to Article 24 of the Staff Regu- lations and thereby implicitly dismissing it.

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OPINION OF MR LENZ —CASE C-283/90 P

regarded as irregular because it wrongly lished that the administrative proceedings took the view that the Commission's held by the Commission were not conduct in the administrative proceedings conducted in accordance with the rules. It (the failure to communicate to the appellant cannot be ruled out, however, that that the statements of his former superiors) was could have had consequences for the lawful. Medical Committee's appraisal concerning the cause of the appellant's disease and for the decision adopted by the Commission pursuant to Article 73 of the Staff Regu- 34. If we ask ourselves now whether the lations. The Court can thus simply declare only conclusion to be drawn from that that that decision was reached in error and statement is that the judgment of the Court accordingly — as requested by the of First Instance of 12 July 1990 is to be set appellant — set it aside. It is then for the aside and the case referred back to the Commission to hold a new procedure (with Court of First Instance, or whether it is the possibility, for the appellant, of appropriate rather to take the view (as arranging for more detailed investigations Article 54 of the Court's Statute permits) into his working conditions) and once that the state of the proceedings permits again — possibly following a further vote of final judgment in the matter to be given the Medical Committee — adopt a decision directly, preference should, in my opinion, on the question whether the appellant's be given to the last-mentioned possibility. If disease had its origins in his working my opinion is followed, it is already estab- conditions.