C-404/92

X v COMMISSION

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 27 April 1994

Mr President, facts, I have quoted parts of paragraph 47 of Members of the Court, the judgment in three places):

1. This case concerns an appeal against the judgment of the Court of First Instance delivered on 18 September 1992 in Joined 'l ) The applicant worked for the Commis­ Cases T-121/89 and T-13/90, 1 hereinafter sion of the European Communities on a referred to as 'the contested judgment'. The freelance basis from 29 August 1985 to appeal raises a number of legal questions 30 March 1986 and from 1 May 1986 to concerning the medical examination on 31 August 1987, and as a member of the recruitment of applicants for appointment as auxiliary staff from 1 September 1987 to officials and other members of the staff of 31 January 1988. Having been admitted the Community institutions. These legal to Competition No COM/C/655 for questions relate to the right to respect for typists, he was informed on 4 July private life, the duty to state the reasons on 1989 that he had not passed the written which a measure is based and the right to a tests. fair hearing.

Facts and procedure

2) With a view to the possibility of his being employed for a period of 6 months as a member of the Commis­ sion's temporary staff, the applicant was 2. In the light of the pleas in law which have invited, by letter from the Careers Divi­ been put forward, the following paragraphs sion of the Directorate-General for Per­ of the contested judgment and the findings sonnel and Administration of 14 Febru- of the Court of First Instance therein seem ary 1989 to undergo a medical to me to be relevant (the italics are mine; examination in accordance with Articles because of the chronological order of the 12(2)(d) and 13 of the Conditions of Employment of other Servants of the European Communities (hereinafter referred to as "the Conditions of * Original language: Dutch. 1 — [1992] ECR II-2195. Employment").

47. (contd.) By letter of the same date, he informed the applicant that he was unable to issue an opinion that the applicant was suit­ able for recruitment and asked him to give him the name, address and telephone number of his own doctor, so that he could give the latter details of the abnormalities found. In 47. The anamnesis drawn up on the basis of the opinion of the medical officer, those a questionnaire completed and signed by the abnormalities called for "further examina­ applicant revealed that he suffered from tions to clarify the diagnosis, enabling appro­ chronic acne and that in 1988 he had con­ priate treatment to be undertaken, if neces­ tracted shingles. A clinical examination sary". (See also paragraph 4 of the contested revealed shingles scars on the left haemotho- judgment). rax, signs possibly indicative of the presence of bucco-pharyngeal candida (pale tongue, pale, thick saliva), and bilateral inguinal polyadenopathy. In view of the combined results of the anamnesis and the clinical examination, the medical officer ordered blood tests in order to determine, inter alia, the T4 and T8 lymphocyte counts. The latter test yielded the following results for the applicant: T4 = 299/mm3 (normal range 675- 1575), T8 = 41/mm3 (normal range 12-44), 5) By letter of 28 March 1989, the Head of the Careers Division informed the applicant that, following the medical 2 — On this point the facts in this case differ basically from the examination, the medical officer had facts which formed the basis of the judgment delivered by concluded that he was physically unfit the Court of First Instance on 14 April 1994 in Case T-10/93 A v Commission [1994] ECR II-179. In fact on the to carry out the duties of typist in the occasion of the medical examination which he underwent with a view to recruitment, the applicant in Case Commission and that there was there­ T-10/93 informed the Commission medical officer that he fore no possibility of his being was HIV-positive and stated his willingness to undergo an HIV test (judgment in Case T-10/93, at paragraph 3). recruited.

11) By letter of 6 June 1989, the Director- 8) By letter of 26 April 1989 the applicant's General for Personnel and Administra­ doctor informed the President of the tion informed the applicant that the Commission that a diagnostic error had Medical Committee, convened at his

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OPINION OF MR VAN GERVEN — CASE C-404/92 P

request, had met on 26 May 1989 and disguised AIDS screening test but to a had confirmed the opinion issued on biological examination •— a T4/T8 lym­ 22 March 1989 by the Commission's phocyte count — which was intended medical officer. On that basis, the Com­ to evaluate the state of the patient's mission considered that the applicant immune system and was not in any way did not meet the physical fitness specific to investigation for viral or bac­ requirements for recruitment to its staff. terial infection.

12) By letter of 3 July 1989, the applicant lodged a complaint under Article 90(2) 14) By letter of 4 September 1989, which of the Staff Regulations against the deci­ was received at the Secretariat-General sion of 6 June 1989 and, so far as neces­ on 8 September 1989, the applicant sary, against the opinion of the medical lodged, under Article 90(2) of the Staff officer of 22 March 1989 and the deci­ Regulations, a "supplemental" com­ sion of 28 March 1989. In that com­ plaint, seeking payment of a lump sum plaint, he requested the annulment of of BFR 10 million in respect of material the abovementioned measures and and non-material damage caused to him sought compensation for the non- by Commission officials. material damage which he had allegedly suffered, although he did not specify the cause of such damage or quantify it.

'in so far as necessaiy', of the opinion of the applicant's actions were dismissed on all medical officer of 22 March 1989 and of the points. decision of 26 May 1989 in which the Medi­ cal Committee confirmed that opinion and 'purely in the alternative', of the decision of 28 March 1989 by which the offer of the post of typist was withdrawn. 3 By order of 15 November 1989 the Court of Justice transferred this case to the Court of First Instance, where it was registered as Case T-121/89. On 3 March 1990 the applicant brought before the Court of First Instance a second application, registered as Case 4. On 2 December 1992 the applicant T-13/90, seeking compensation for the dam­ appealed to the Court of Justice against the age which he claimed to have suffered as a contested judgment. In addition to the appel­ result of the Commission's conduct. By lant and the Commission, the respondent, order of 24 October 1990 the Court joined the Union Syndicale, Brussels (hereinafter the two cases. Upon hearing the report of referred to as 'the Union Syndicale'), and the the Judge-Rapporteur, the Court of First Fédération Internationale des Droits de Instance (Third Chamber) first asked the l'Homme (hereinafter referred to as 'the applicant to submit his observations with International Federation') submitted obser­ regard to the possible production of his full vations to the Court of Justice. By decisions of 13 February and 24 October 1990 the medical records. The applicant stated that he Court of First Instance had allowed the had no objection to their production and the Union Syndicale to intervene in Case Court then asked the Commission to pro­ T-121/89 and Case T-13/90 respectively. By duce the medical file regarding the appli­ decision of 12 July 1993 the Court of Justice cant's physical unfitness, together with the allowed the International Federation to other relevant documents, and put a number intervene in the procedure on appeal. Both of questions to the parties in writing. 4The interveners support the appellant's claims. Commission produced the file and the par­ ties replied to the questions put to them, whereupon the Court opened the oral proce­ dure on 12 May 1992; on 18 September 1992 the Court delivered the contested judg­ ment which I shall presently analyse in greater detail (sections 5 to 10 below). The

'41. This Court observes that Articles 12(2)(d) and 13 of the Conditions of The contested judgment Employment provide that a member of the temporary staff, before being engaged, must undergo a medical examination by one of the institution's medical officers in order to establish whether "he is physically fit to per­ form his duties". Furthermore, the second paragraph of Article 33 of the Staff Regula­ tions, which is applicable by virtue of Article 5. In Case T-121/89 the applicant put for­ 13 of the Conditions of Employment, pro­ ward before the Court of First Instance four vides as follows: pleas in law, namely infringement of the right to a fair hearing (first plea), of the requirement in Article 25 of the Staff Regu­ lations of Officials of the European Commu­ nities (hereinafter referred to as 'the Staff Regulations') that a decision adversely affect­ ing an official shall state the grounds on "Where a negative medical opinion is given which it is based (second plea), of Article as a result of the medical examination pro­ 8 of the Convention and the Conclusions of vided for in the first paragraph, the candidate the Council and the Ministers for Health may, within 20 days of being notified of its concerning AIDS (third plea) and of the opinion by the institution, request that his principle of the protection of legitimate case be submitted for the opinion of a med­ expectation and good faith and the prohibi­ ical committee composed of three doctors tion of abuse of process (fourth plea). chosen by the appointing authority from among the institution's medical officers. The medical officer responsible for the initial neg­ ative opinion shall be heard by the Medical Committee. The candidate may refer the opinion of a doctor of his choice to the Med­ First and second pleas in law at first instance ical Committee ..."

sions is thus to allow the institution con­ 44. At the request of the candidate, the med­ cerned to determine whether the candidate's ical officer of the institution is required to state of health is such that he is capable of disclose to the candidate's doctor all relevant fulfilling all the obligations which he may be information concerning the findings of phys­ required to fulfil by virtue of the nature of ical unfitness and, more specifically, the his duties. To that end, the medical officer of results of the medical examinations carried the institution may base his finding of unfit­ out so that that doctor is in a position to give ness not only on the existence of present the person concerned the necessary informa­ physical or psychological disorders but also tion regarding the possibility of challenging on a medically justified prognosis of poten­ those findings. If the person concerned tial disorders capable of jeopardizing the wishes to challenge the merits of the negative normal performance of the duties in question opinion of the medical officer, he must for­ in the foreseeable future (judgment of the ward the opinion of his doctor to the Medi­ Court of Justice in Case 155/78 Miss M v cal Committee, together with all supporting Commission [1980] ECRI-1797, paragraphs medical documents, and, if appropriate, 10 and 11). request that his doctor be heard by the Med­ ical Committee. The purpose of the proce­ dure provided for by the second paragraph of Article 33 of the Staff Regulations is to facilitate a review of the negative medical opinion by a body established under the Staff Regulations, which must give a final opinion as to the physical fitness of the can­ didate, having regard to all the documents which, at that time, are contained in the medical file of the person concerned. It is for the Medical Committee to decide whether it 43. Moreover, a refusal to engage a candidate is appropriate to have the candidate undergo on grounds of physical unfitness constitutes a further medical examination, and it may a decision adversely affecting him within the prescribe further tests or seek the opinion of meaning of Article 25 of the Staff Regula­ specialists. tions, which must therefore state the reasons on which it is based. However, that obliga­ tion to state reasons must be reconciled with the requirements of medical 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. That rec­ onciliation is effected through the ability of the person concerned to request and ensure that the grounds of unfitness are disclosed to 45. In reviewing the legality of a refusal to a doctor of his choice (judgments of the recruit a person on grounds of physical Court of Justice in Case 121/76 Moli v Com- unfitness, the Court may not substitute its mission [1977] ECR 1971, at 1978; in Case own judgment for the medical opinion on 75/77 Mollet v Commission [1978] ECR 897, specifically medical matters. However, it is at 906; and in Case 115/78, cited above). for the Court, in carrying out the task specif-

7. After setting out those findings in para­ graph 47 of the judgment (largely quoted already in section 2 in my survey of the 49. As regards the intervener's allegation facts), the Court of First Instance rejected concerning the composition of the Medical the first plea in law in paragraphs 48, 49 and Committee, it is important to note that Dr 50 in the following terms: Hoffman, Head of the Commission's Medi­ cal Service, was not a member of it. Accord­ ingly, without its being necessary to rule whether the status of Head of the Medical Service in itself constitutes a legal impedi­ ment to membership of the committee pro­ vided for in the second paragraph of Article '48. This Court finds that the Commission's 33 of the Staff Regulations, that allegation medical officer thus disclosed to the appli­ must be rejected as unfounded.

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X v COMMISSION

The concept of tion itself. As has been pointed out, it is for physical unfitness includes not only present the candidate who has the matter referred to disorders but also potential disorders which the Medical Committee to request a hearing might prevent the person concerned from of his own doctor. In the present case, the properly performing his duties for the period applicant failed to give the Medical Commit of his engagement. Furthermore, in the med tee any medical documents whatsoever, ical opinion which was issued on the basis of whilst his doctor chose to write to the Pres the results of a clinical examination and ident of the Commission to criticize a medi blood tests, a comprehensible link is estab cal error which, in his opinion, had been lished between the medical findings which it committed and to call in question the prac contains and the conclusion as to unfitness tices of the Commission's Medical Service.' which it draws and it cannot therefore be regarded as vitiated by a manifest error of assessment, as the applicant alleges.

This Court considers that the difference between them relates to a question which should have been raised before the Medical Committee, whose task under the Staff Regulations is to examine the merits of the medical opinion issued by the institution's medical officer. However, it must be stated, first, that the applicant's doc tor did not arrange for the additional tests '51. Finally, this Court considers that suggested by the medical officer to determine account must be taken of the following con the origin of the applicant's immune defi siderations in relation to the question ciency and, secondly, that the latter did not whether the refusal to recruit the applicant as place before the Medical Committee the a member of the temporary staff was accom opinion of any doctor, either his own or panied by a statement of reasons conforming

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OPINION OF MR VAN GERVEN — CASE C-404/92 P

of the reasons for the refusal to recruit him case. The applicant in this case has not estab­ by producing to the Court for the first time lished that he was, without his consent, sub­ medical opinions which were not submitted jected to a specific AIDS screening test or in due time for consideration by that com­ that he was requested to undergo such a test mittee. Accordingly, the applicant's allega­ by the Commission as a precondition for his tions concerning the legality and adequacy of engagement. The applicant has likewise not the statement of the reasons for the con­ shown that he was subjected to a dissimu­ tested decision must be rejected.' lated HIV antibody screening test, since the parties agree that the bloood test in question, namely, the T4/T8 lymphocyte count, is not capable of establishing whether a person is seropositive. Finally, it must be added that in the circumstances, having regard to the Third and fourth pleas in law at first instance abnormalities found in the anamnesis and clinical examination, the medical officer was entitled to request that such a test be carried out.

'73. The Court observes that, in his reply, 75. Moreover, that claim would also have to the applicant states that his second action be rejected as inadmissible even if the alleged does not seek the annulment of the measures non-material damage were considered to to be reviewed by the Court in Case derive from conduct on the part of the Com­ T-121/89, or compensation for the material mission unrelated to the legality of the deci­ damage caused him by such measures, since sion referred to in the claim for annulment. the enforcement of a judgment of the Court In such circumstances, the administrative upholding his first action for annulment procedure must, by virtue of Article 90(1) of would constitute sufficient reparation for the Staff Regulations, start with a request that damage. The applicant explains that he from the official that the appointing author­ seeks compensation for the non-material ity make good the damage suffered. It is only damage suffered by him as a result of the against a decision rejecting such a request conduct of the Commission which, in his that the person concerned may lodge a com­ view, did not take all the necessary measures plaint with the administration, under Article to preserve the confidentiality of the grounds 90(2) (judgment of the Court of Justice in of the medical finding of unfitness, on the Case 200/87 Giordani v Comtirission [1989] basis of which the decision not to recruit ECR 1877, paragraph 22; judgment of the him was taken. That lack of confidentiality Court of First Instance in Case T-5/90 Mar- made it possible for several people to iden­ cato v Commission [1991] ECR 11-731, para­ tify him and aroused in his relations the sus­ graph 50). In the present case, the applicant picion that he was seropositive. In view of did not submit any such request to the those clarifications as to the scope of the appointing authority and, even on the forms of order sought in the second action, it assumption that the "supplemental" com­ must be recognized that the latter does not plaint of 4 September 1989 constituted a have the same subject-matter as the first request to make good the non-material dam­ action, in so far as the applicant merely seeks age allegedly suffered, the fact would never­ compensation for the non-material damage theless remain that the applicant did not which he claims to have suffered as a result lodge a complaint against the Commission's of the unlawful conduct of the Commission. adverse decision of 27 November 1989.'

6 As is well-known, the Convention does not '1 . Everyone has the right to respect for his form a direct part of Community law but private and family life, his home and his does so indirectly since the basic rights and correspondence. fundamental freedoms protected therein are also enforceable as general principles of Community law. 7 In that connexion the Court expressly stated in its judgment in Case C-62/90 Commission v Germany that

2. There shall be no interference by a pub­ lic authority with the exercise of this 5 — This must be interference by a public authority. However, in right except such as is in accordance this case it is not contested that that condition is met. 6 — Both the contested judgment and the observations submitted with the law and is necessary in a dem­ to the Court by all parties show that this point is generally ocratic society in the interests of appreciated. 7 — Cf. inter alia the judgment in Case 222/84 Johnston v Chief national security, public safety or the Constable of the Royal Ulster Constabulary [1986] ECR economic well-being of the country, for 1651, at paragraph 19, and section 30 of my Opinion in Case C-159/90 Society for the Protection of Unborn Children Ire- the prevention of disorder or crime, for land v Grogan [1991] ECR 1-4703.

I - 4750

X v COMMISSION

the right to respect for private life and the order from that sought at first instance shall right to the protection of medical confidenti­ not be sought in an appeal. ality constituted fundamental rights pro­ tected by the Community legal order (see in addition section 22 below). 8

10 — Moreover I am doubtful whether the quotation from the judgment in Case C-18/91P must be interpreted in the Articles 113(1) and 116(1) of the Rules of sense suggested by the Commission. No single provision of Procedure provide that a different form of the Statute of the Court of Justice of the EEC or of the Rules of Procedure prohibits reliance in an appeal upon pleas in law not put forward at first instance. A number of the pleas in law typically put forward in an appeal (for example those regarding defective statement of reasons in the contested judgment) cannot even be put forward at first 8 — [1992] ECR 1-2575. at paragraph 23. instance. 9 — [1992] ECR I-3997, at paragraph 21. 11 — See paragraphs 35 and 53 et seq. of the contested judgment.

I-4751

OPINION OF MR VAN GERVEN — CASE C-404/92 P

decided in a judgment as long ago as 12 June First part: permissibility of AIDS tests on 1958 that: recruitment

I - 4752

X v COMMISSION

According to the appellant, the Court of Although the appellant's statement, by its First Instance is thus suggesting that an HIV absolute nature, and the Commission's last antibodies test (hereinafter referred to as 'an statement 4seem to me to be questionable, I HIV test') as part of the recruitment proce­ agree with the Commission that the appel­ dure is compatible with Article 8 of the lant's argument cannot be upheld because it Convention if the person concerned refers to a statement in the contested judg­ expressly agrees to it. That, he states, is an ment which in no way serves as a basis for infringement of Article 8 of the Convention the operative part of the judgment. The con­ which is so compelling that even the consent tested judgment contains no finding of fact of the person concerned cannot justify any to the effect that the applicant was subjected interference with his private life which is to an HIV test with his express consent (it incompatible with that article. appears incontestably from the facts estab­ lished that that was not the case) and a forti- ori nowhere indicates that the test was rightly carried out.

I - 4753

OPINION OF MR VAN GERVEN — CASE C-404/92 P

In fact, according to the appellant, his own quence of this, according to the Court, was doctor could not carry out the proposed that the applicant could not produce to it for examinations because Article 8 of the Con­ the first time supplementary medical opin­ vention prevents any HIV test as part of an ions (the third plea in law, to be considered examination on recruitment and thus also an later, deals with this point: below, section HIV test effected by a candidate's own doc­ 32 et seq.). Considered in the context of this tor. By failing to acknowledge that, the reasoning, the appellant's interpretation of Court of First Instance infringed Article 8 of the passage in question is by no means of the Convention. such a nature as to affect the final decision arrived at by the Court of First Instance in paragraph 51. That plea must therefore be rejected.

I - 4754

X v COMMISSION

(hereinafter referred to as a T4 / T8' test) for once more a finding of fact by the Court of the sole reason that he had refused to First Instance — more specifically the undergo a 'normal' HIV test. The fact that Court's finding that it was not shown that the T4/T8 test was applied as an alternative the T4/T8 test constitutes a concealed AIDS method of HIV testing is incompatible, he test (see also section 24 below). In his reply claims, with Article 8 of the Convention and the appellant makes it clear, however, that he with the Commission's stated practice of not is challenging only the statement of reasons systematically testing for HIV. In this con­ on which the contested judgment was based, nection the appellant draws attention, as he inasmuch as the Court of First Instance did did before the Court of First Instance, to a not take into account the report of the meet­ report drawn up on the occasion of a meet­ ing on 5 June 1989. ing of the Commission's medical officers on 5 June 1989 stating in point 8 that in the event of refusal of the HIV test the following tests were to be applied:

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OPINION OF MR VAN GERVEN — CASE C-404/92 P

thereon is clear from paragraph 31 of the had no reason to subject him to a biological contested judgment, worded as follows: examination of that kind, which is not a suit­ able basis for a reliable diagnosis. According to the applicant, the only reason for the refusal to recruit him was therefore a mere suspicion that he was seropositive.'

'In response to a request made by the Court at the hearing, the defendant lodged at the Registry of the Court of First Instance, on 20 May 1992, a report of the meeting of the doctors in the Commission's Medical Service held on 15 June 1989 and a confidential memorandum from the head of that service dated 11 August 1989, addressed to Mr L. By letter of 27 May 1992, the applicant and Paragraphs 56 and 57 of the contested judg­ the intervener submitted their observations ment summarize the Commission's argu­ on those documents.' ments in reply as follows:

Finally the fact that the Court of First Instance was convinced by these counter­ Third part: permissibility of a T4/T8 test arguments appears from this passage in para­ graph 58:

'The applicant in this case has not established 21. The third part of the appellant's first plea that he was, without his consent, subjected in law is directed against the statement of the to a specific AIDS screening test or that he Court of First Instance in paragraph 58 of was requested to undergo such a test by the the contested judgment 'that in the circum­ Commission as a precondition for his stances, having regard to the abnormalities engagement. The applicant has likewise not found in the anamnesis and clinical examina­ shown that he was subjected to a dissimu­ tion, the medical officer was entitled to lated HIV antibody screening test, since the request that such a test' (the T4/T8 test) 'be parties agree that the blood test in question, carried out'. The appellant claims that the namely the T4/T8 lymphocyte count, is not Court of First Instance infringed Article 8 of capable of establishing whether a person is the Convention by regarding it as unneces­ seropositive. Finally, it must be added that in sary for a candidate in a situation such as his the circumstances, having regard to the to give his informed consent to the carrying abnormalities found in the anamnesis and out of a T4/T8 test. clinical examination, the medical officer was entitled to request that such a test be carried out.'

It is not contested that the appellant was in 20. It may be seen sufficiently clearly from fact subjected to a T4/T8 test without his the passages quoted from the contested judg­ being individually and expressly informed ment that the Court of First Instance did thereof in advance and without his consent indeed take the applicant's arguments into being sought. However, the Commission has consideration — and did take account in its argued both before the Court of First reasoning of the report of the meeting of Instance and before the Court of Justice that

The Court of First Instance concurs in the contested judgment with the Commission's point of view. In paragraphs 56 to 59 it states to begin with that an HIV test in fact consti­ tutes an interference with physical integrity and may be carried out on a candidate only with his informed consent, but that in this case no such test was carried out. Next it states that in the circumstances of the case the medical officer was entitled to request a T4/T8 test, and decides that there was no First of all (sections 23 and 24 below) I shall infringement of Article 8 of the Convention. consider whether there was an interference with the appellant's private life (and the related right to medical confidentiality) inas­ much as, with a view to his recruitment by the Commission, a T4/T8 test was carried out on the appellant without his informed consent being sought in advance. In the event of an answer in the affirmative I shall then (sections 25 to 29 below) inquire whether or not this interference was justi­ 22. It seems to me important, before analys­ fied. This supplementary investigation is nec­ ing in detail the third part of the appellant's essary because the right to respect for private first plea in law, to define the legal issue life and to protection of medical confidenti­ which it raises. In my view the only question ality are not absolute rights, as the Court of

I - 4758

X v COMMISSION

Justice stated in the aforementioned judg­ integrity or inviolability and the right to ment in Case C-62/90: decide for himself to whom he will divulge information with regard to his state of health — are affected by the carrying out of tests such as that to which he was subjected (the T4/T8 test) or which were suggested to him (the HIV test) as well as by the consequences attached to such tests or to the refusal to undergo them.

18 — In paragrapli 58 of the contested judgment the Court of First Instance too has already observed that 'the taking of blood in order to investigate the possible presence of HIV antibodies constitutes interference with the physical integ­ rity of the person concerned'. 19 — See respectively the judgment of the European Court of Human Rights of 26 March 1985 Case of X and Y v The Netherlands, Publications of the European Court of Hmnan Rights (hereinafter referred to as 'Publications'), Series A: Judgments and Decisions {hereinafter referred to as 'Series A'), Vol.91, 1985, paragraph 22 ('"private life", a concept 23. The appellant rightly points out that two which covers the physical and moral integrity of the per­ son') and the Report of the European Commission of aspects of his private life — his physical Human Rights of 1 March 1979, Application N° 7654/76 D. Van Oostcrwijh against Belgium, Publications, Senes B Pleadings, Oral Arguments and Documents, Vol. 36, 1983, p. 10, paragraph 44 ('The disclosure or improper discovery by third persons of facts relating to physical condition, 17 — Paragraph 23 of the judgment, previously cited in health or personality may undoubtedly interfere with the applicant's privacy and private life"). footnote 8.

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OPINION OF MR VAN GERVEN — CASE C-404/92 P

24. The requirement of informed consent entails two closely-related aspects: sufficient

20 — Report of 12 July 1977, Application No 6959/75 Briigge- mann and Scheuten v Federal Republic of Germany, Deci­ sions and Reports, Vol. 10, 1978, p . 100, paragraph 56. 21 — According to A. Nieuw, 'Informed Consent', Medicine and Law, 1993, p. 125, this expression was established in the United States in Natanson v Kline [186 Kan 393, 350 P2d 1093 (1960)]: 'The law requires that the inroads made upon a person's body take place only with informed voluntary consent of that person'. See also R. Faden, T. Beauchamp and N . King, A History and Theory of Informed Consent, Oxford, 1986, and the basic study in comparative law by T. Vansweevelt: De civielrechtlijke aansprakelijkheid van tie geneesheer en het ziekenhuis, Reeks aansprakelijkheidsrecht, The Commission's statement that it follows Antwerp, 1992, pp. 262 to 306, 313 and 314. by definition from the mere decision to take 22 — See for example H . Leenen, S. Gevers and G. Pinet: The Rights of Patients in Europe, World Health Organization part in a recruitment procedure with a med­ — Regional Office for Europe, Kluwer, Deventer, 1993, pp. 7 to 47. ical examination that no unacceptable inter- 23 — See for example H . Leenen, Handboek gezondheidsrecht- Rechten van mensen in de gezondheidszorg, Alphen 1988, pp. 26 et seq., 160 et seq. and 170 et seq.; H . Nys, Geneeskunde — Recht en medisch handelen, Algemene Practische Rechtsverzameling, Brussels 1991, pp. 135 to 24 — See the works, mentioned in the previous footnote, by 138, 143 and 144. H . Leenen, p . 161, and H . Nys, pp. 135 and 136.

ference with the protected private life of the person or through his own doctor) should be applicant can take place during that medical informed in such circumstances of the pro examination seems to me to conflict with the posal to effect a T4/T8 test and should be specific appreciation inherent in the require acquainted with the scope of the test and the ment of informed consent. In the light of the possible consequences of carrying it out or considerations mentioned in the previous of refusing to undergo it. Of course an

25 concealed AIDS test, it is established that sent to the test constitutes, however, an the medical officer, followed in this matter infringement of the law since, as previously by the Medical Committee and the Commis stated, it is clear that there may in certain cir sion itself, attached (and from the beginning cumstances be interference with the appel intended to attach) very far-reaching conse lant's private life and with the right to med quences to the outcome of the T4/T8 test. ical confidentiality which is part thereof Inter alia — and, as far as can be seen, above provided that it is not possible to invoke any all ·—· the medical officer took the view on justification in law for such interference. the basis of the outcome of that test that the appellant was in the terminal stage of AIDS

25. The fact that there may be such interfer ence as already defined is not sufficient to conclude that there has been an infringement of the right to protection of private life and The requirement of informed consent the right to medical confidentiality. Accord demands, in my view, that the appellant (in ing to the case-law of the Court, 27 those rights may be restricted provided that such restrictions do in fact correspond to objec 25 — As regards that question, which involves an appreciation of tives of general interest pursued by the fact, the Court of First Instance made the definitive finding Community and do not constitute with in paragraph 58 of the contested judgment that 'the appli cant has .

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OPINION OF MR VAN GERVEN — CASE C-404/92 P

regard to the objectives pursued a dispropor­ appointed only on condition that 'he is tionate and intolerable interference which physically fit to perform his duties', whilst infringes upon the very substance of the the first paragraph of Article 13 of the Con­ rights guaranteed. The provisions of Article ditions of Employment and the first para­ 8(2) of the Convention, previously quoted in graph of Article 33 of the Staff Regulations section 12, are guidelines for this purpose: provide that before being engaged a success­ according to those provisions, interference ful candidate: by a public authority in private life may be justified if it is 'in accordance with the law', pursues one or more of the objectives set out 28 — exclusively — in Article 8(2) of the Convention and 'is necessary in a democratic society' for attaining the objective or objec­ tives pursued. That last condition means that interference in private life may not go fur­ '... shall be medically examined by one of the ther than necessary but must on the contrary institution's medical officers in order that the 29 be proportionate to the aim pursued. I institution may be satisfied that he fulfils the shall now consider whether in this case the requirements' of the relevant article. three conditions set out in Article 8(2) of the 30 Convention are met.

According to the appellant and the Interna­ tional Federation those provisions are not a sufficient legal basis because they are not suf­ 31 ficiently accessible and precise. I cannot agree with that. The accessibility of the Con­ ditions of Employment and the Staff Regula­ 26. As regards the first condition, it must be tions is ensured by the fact that both legal noted that, according to Article 12(2)(d) of texts have been approved by the Council in the Conditions of Employment and Article accordance with the appropriate procedures 28(e) of the Staff Regulations, an official or a 32 and published in the Official Journal. The member of the temporary staff may be

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Commission points out in addition that the International Federation, to the 'econom­ competition notices invariably mention the ic well-being of the country'. According to obligation to undergo a medical examination. the Commission, the practice of medical As regards precision and predictability, the examination upon recruitment of members argument of the appellant and the Interna­ of staff corresponds to a social choice gener­ tional Federation that every medical exami­ ally accepted in Europe with regard to the nation carried out in connection with a distribution of social burdens (and more spe­ recruitment procedure must be separately cifically of the costs of sickness and invalid­ and expressly provided for by law seems to ity), namely that an employer does not have me obviously wrong. to bear the economic cost of sickness or invalidity resulting from a risk which the employee incurred before his recruitment. That argument does not convince me: the 'social choice' to which the Commission refers need not necessarily involve a refusal of appointment but may be effected by recourse to the second paragraph of Article 27. As regards the second condition with 28 of the Conditions of Employment. which interference in private life must com­ According to that provision, if the medical ply in order to be justifiable under Article examination shows the candidate to be suf­ 8(2) of the Convention, the Commission fering from sickness or invalidity, the argues in the first place that the medical appointing authority 'may decide that examination is for the protection of health. expenses arising from such sickness or inval­ In principle I can agree: in so far as the obli­ idity are to be excluded from the reimburse­ gation for a candidate for appointment to ment of expenditure' relating to sickness undergo a medical examination prevents his cover. being recruited to a post which might dam­ age his state of health, the examination does indeed serve to protect health. Moreover the appointment of a person who, in view of his state of health, would not be able to perform his duties properly may result in overwork and additional stress for colleagues so that the medical examination may be regarded also as protecting the health of other per­ 33 sons.

employees who are frequently absent on ment to a temporary post for six months and grounds of ill-health. in spite of his express refusal to undergo an HIV test — is in no way proportional to the objective pursued, which consists in check­ ing physical fitness for the post involved for the purpose of protecting the appellant's health and the health and rights of others. A clinical examination (supplemented by the However, the question is whether, in this usual biological tests) effected on the basis of specific case, the Commission can reasonably the general consent of the person concerned rely on the two grounds of justification to undergo a medical examination with a which, as just stated, are in principle view to appointment is undeniably propor­ regarded as acceptable, in view of the fact tionate to that objective. The position is dif­ that it is clear that the appellant was seeking ferent however if, on the occasion of that only an appointment for a period of six examination, findings are made with make a months and it was doubtful whether in that more searching examination necessary. In short period his health would have changed such a case the doctor must ask the person so rapidly as to make him physically unfit concerned for permission and give him or at for that appointment. That brings us to the least his own doctor (if the medical officer, in third condition, the requirement of propor­ view of the seriousness of the findings, tionality. expects an unfavourable psychological reac­ tion from the patient) the necessary informa­ tion so that consent may be given in full knowledge of the facts. That is so particu­ larly where the more searching examination includes a test which, whilst not an HIV test, nevertheless constitutes an immune defi­ 28. An interference in a person's private life ciency test, the findings from which may — more specifically with his physical integ­ point to the presence of the AIDS virus, and rity and right not to communicate to third where the person concerned has refused to persons facts concerning his state of health 34 undergo an HIV test. — which, as in this case, may be justified on grounds of the protection of the health or the rights and liberties of others, or both, complies with the requirement of propor­ tionality if it is not disproportionate to the objective pursued by the interference and does not infringe upon the very substance of the right guaranteed.

regards the other aspect of the protection of 'that in the circumstances, having regard to private life which arises here, namely the the abnormalities found in the anamnesis and right that facts concerning a person's state of clinical examination, the medical officer was health should not be communicated to third entitled to request that such a test be carried persons (in this case the future employer), it out' is still more obvious that the requirement of proportionality is not met if, without the informed consent of the person concerned having been obtained, facts come to light by means of a more thorough medical examina­ tion than is normal, and are brought to the attention of the future employer. As a result — that is to say, a T4/T8 lymphocyte count of the failure to obtain informed consent for — contradicts the principle set out in para­ the communication of such medical facts, the graph 45 of the judgment that: protected right is infringed in substance.

'the Court may not substitute its own judg­ 29. Since the requirement of proportionality ment for the medical opinion on specifically recognized in the case-law of the Court of medical matters'. Justice and in Article 8(2) of the Convention is thus not met, I can only come to the con­ clusion that the third part of the appellant's first plea in law must be accepted as well founded.

The second part of this plea relates to para­ graph 45 of the contested judgment in which it is stated that it is for the Court Second plea in law on appeal: contradictory statement of the reasons on which the con­ tested judgment is based

'With regard to the appellant's second sub­ mission, it is sufficient to point out that Mr Vidrányi disputes the Court of First 31. As regards the first part of the appel­ Instance's appraisal of the facts which led it lant's second plea in law, I do not regard the to declare that the medical report established passages quoted from paragraphs 58 and a comprehensible link between the findings 45 as being contradictory. In my view, the which it made and the conclusion to which it finding in question in paragraph 58 of the led. contested judgment is taken out of context by the appellant. In that paragraph the Court of First Instance was dealing with the appli­ cant's third plea in law at first instance regarding the infringement of Article 8 of the Convention. With its finding that the medi­ ... such an appraisal of the facts cannot be cal officer was entitled to request that a reviewed by the Court, which has jurisdic­ T4/T8 test be carried out, the Court simply tion only to examine whether the contested wished to state (wrongly in my view, as has judgment complied with the rules of law. already been shown) that it did not regard an infringement of Article 8 of the Convention as proved and by no means wished to give a medical opinion.

It follows that that plea also is inadmissi­ 37 ble.'

I agree with the Commission that the second 35 — Moreover the appellant relies on exactly the same facts as at first instance. part of the second plea is inadmissible 36 — Footnote 16, above. because it calls in question again findings of 37 — Vidrányi judgment, paragraphs 16, 17 and 18.

'If the person concerned wishes to challenge 33. The appellant, supported on this point the merits of the negative opinion of the by the Union Syndicale and the International medical officer, he must forward the opinion Federation, argues that the Court's refusal to of his doctor to the Medical Committee, check the validity of the Medical Commit­ together with all supporting medical docu­ tee's opinion and the statement of the rea­ ments, and, if appropriate, request that his sons on which it was based in the light of the doctor be heard by the Medical Committee. medical opinions which he had produced is The purpose of the procedure provided for incompatible with the right to a fair hearing by the second paragraph of Article 33 of the as guaranteed by Article 6 of the Conven­ Staff Regulations is to facilitate a review of tion. That article guarantees to everyone, the negative medical opinion by a body when a question arises as to 'the determina­ established under the Staff Regulations, tion of his civil rights and obligations', in which must give a final opinion as to the particular the right 'to a fair ... hearing ... by physical fitness of the candidate, having an independent and impartial tribunal'. The regard to all the documents which, at that Medical Committee, it is contended, is by no time, are contained in the medical file of the means independent since in the words of the person concerned.' second paragraph of Article 33 of the Staff

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OPINION OF MR VAN GERVEN — CASE C-404/92 P

Regulations, it is 'composed of three doc­ right to a fair hearing, as a general principle, tors chosen by the appointing authority from forms part of Community law quite apart among the institution's medical officers' (my from that article. There can therefore be no italics). In those circumstances, the appellant question of an inadmissible new plea in law 39 states, the Court of First Instance has being raised. infringed the right to a fair hearing by declaring that the Medical Committee must give 'a final opinion' as to the physical fit­ ness of a candidate.

38 — Applicable by analogy by virtue of the second paragraph of Article 13 of the Conditions of Employment. 39 — Cf. section 13, above.

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staff. It is for the administration to determine sial question of whether this case actually the nature and scope of the examinations and concerns a 'determination of civil rights and to give appropriate instructions to the doc­ obligations' within the meaning of Article tors responsible for undertaking them. 6 of the Convention. Within that framework doctors enjoy free­ dom of assessment in regard to their medical findings and assessment of the fitness of can­ 40 didates.'

44 and impartiality required. of dependence or partiality. That does not in itself constitute an infringement of the right to a fair hearing, although even an 45 appearance of dependence is best avoided. The Court of Human Rights and the Com mission of Human Rights, in their case-law on Article 6 of the Convention, have 35. First I should like to emphasize that the accepted that certain litigation may be dealt right to a fair hearing is not guaranteed sim with at first instance by bodies, in particular ply by Article 6 of the Convention on which administrative bodies, which do not comply the appellant's observations are centred but with all the requirements of Article 6 of the also constitutes a general principle of law 41 Convention. In this connection, however, (more specifically expressed in Article 6 of the Convention) the observance of which the Court of Justice and the Court of First Instance have always ensured-in staff cases as 43 — The European Commission of Human Rights has fre 42 quently decided that 'litigation concerning access to, or dis well as others. The Court of Justice can missal from, civil service falls outside tile scope of .

The T-I1/S9 Shell v Commission [1992] ECR 11-757, at para Invalidity Committee, for example, established by Article graph 39. 9 of the Staff Regulations, 'shall consist of three doctors, one appointed by the institution to which the official con 42 — See inter aha the judgments in Case 115/80 Démont v cerned Dclongs, one appointed by the official concerned and Commission [1981] ECR 3147, at paragraphs 6 to 12 (see one appointed by agreement between the first two doctors' particularly paragraph 11); in Case 319/85 Misset v Coimai (Article 7 of Annex II to the Staff Regulations). [19SS] ECR 1861, at paragraph 7; in Case T-S2/S9 Murato v Commission [1990] ECR 11-735, at paragraph 7S; and in 45 — Cf. the judgment of the Court of Human Rights of Case T-109/92 Lacruz Bassols v Court of Justice [1994] 22 October 1984, Sramek, Publications, Scries A, Vol. 84, ECR 11-105, at paragraphs 67 to 70. 1984, paragraph 42.

47 — The decision-making process of a Medical Committee is not lawful if the procedure before it was irregular or if the As both the Court of Justice and the Court committee relied on erroneous concepts or if there is no of First Instance have consistently held, the comprehensible link between its medical findings and the conclusions of its report. See the judgments in Case review by the Community judicature of the 189/82 Seingry, née Seller v Council [1984] ECR 229, at paragraph 15; in Case 277/84 Jänsch v Commission [1987] decisions of a Medical Committee cannot ECR 4923, at paragraph 15; and in Case T-154/89 Vidrányi v Commission [1990] ECR II-445, at paragraph 48. There is also an irregularity if the report of a Medical Committee does not contain a statement of reasons from which it is possible to judge what considerations served as the basis for the findings contained therein. Judgments in Case 257/81 K. 46 — Judgments of the Court of Human Rights of 23 June 1981, v Council [1983] ECR 1, at paragraph 17; in Case Le Compte, Van Leuven and De Meyere, Publications, T-165/89 Plug v Commission [1992] ECR II-367, at para­ Series A, Vol. 43, 1981, paragraph 51, and of 10 February graph 75; and in Case T-43/89-RV Gill v Commission 1983, Albeit and Le Compte, Publications, Seríes A, Vol. 58, [1993] ECR 11-303, at paragraph 36. 1983, paragraph 29; Opinion of the Commission of Human Rights (as formulated in the Report of 3 July 1985), pub­ 48 — See the judgments in Case 156/80 Morbelli v Commission lished as annex to the judgment of 23 April 1987, Ettl and [1981] ECR 1357, at paragraph 20; in Case 265/83 Suss v Others, Publications, Series A, Vol. 117, p. 21, paragraphs Commission [1984] ECR 4029, at paragraph 11; in Case 77 and 78; see also P. Van Dijk and G. van Hoof, 'De 2/87 Biedermann v Court of Auditors [1988] ECR 143, at Europese Conventie in theorie en praktijk', Nijmegen, paragraph 8; the Plug case (previous footnote), at paragraph 1990, pp. 340 and 341. 75; the Vidrányi case (previous footnote), at paragraph 48.

38. It was for the appellant, if he wished, in accordance with that paragraph of Article Did the Court of First Instance fail in that 33 of the Staff Regulations (and as in fact he task by refusing to take cognizance of medi­ did by letter of 9 April 1989), to submit his cal opinions which had not first been sub­ case to a Medical Committee and then, if he mitted to the Medical Committee? I do not wished, to submit to the committee the opin­ think so. Before elucidating this, it seems to ion of a doctor of his choice. The appellant me appropriate to recall the text of the sec­ did not take the latter course, although he ond paragraph of Article 33 of the Staff Reg­ had already been informed on 22 March ulations (as the Court of First Instance did in 1989 of the unfavourable opinion of the paragraph 41 of the contested judgment, medical officer and had been asked for the quoted in section 6 above). That provision is name, address and telephone number of his worded as follows: own doctor (the same doctor with whom the medical officer had then made contact by telephone on 5 April 1989: see paragraph 47 of the contested judgment, quoted in sec­ tion 2 above). Nor did the appellant by 26 May 1989, the date on which — as he had been informed (see paragraph 9 of the con­ tested judgment, quoted in section 2) — the 'Where a negative medical opinion is given as Medical Committee was to meet, provide the a result of the medical examination provided committee with the medical opinion of a for in the first paragraph, the candidate may, doctor of his choice. However, the Head of within 20 days of being notified of this opin­ the Commission Medical Service had insis­ ion by the institution, request that his case tently requested the appellant to send him all be submitted for the opinion of a medical reports or medical documentation which he committee composed of three doctors cho­ wished to submit to the Medical Committee sen by the appointing authority from among (ibid.).

It was in the light of these findings — and of doctor did not cooperate with the Medical the finding that the applicant's own doctor Committee, is not entitled to challenge the had been informed of the reasons for the statement of the reasons for the refusal to opinion that he was unfit and had received recruit him by producing to the Court for all the details concerning the signs which had the first time medical opinions which were come to light in the anamnesis and the clini­ not submitted in due time for consideration cal examination, together with a complete by that committee.' copy of the results of the blood tests carried out on the applicant (see paragraph 48 of the contested judgment, quoted in section 7) —• that the Court of First Instance had come to the conclusion in paragraph 50 that the applicant's right to a fair hearing had not been prejudiced 'by the fact that the Medical Committee failed to hear his own doctor and did not consider it appropriate to undertake a clinical examination itself'. The Court added: 'As has been pointed out, it is for the candidate who has the matter referred to the I cannot find in that reasoning by the Court Medical Committee to request a hearing of of First Instance any infringement of law or his own doctor'. more specifically any failure in the Court's task of reviewing the regularity of the Med­ ical Committee's decision-making process. In my opinion the Court of First Instance correctly formed the view that a candidate for appointment who has requested a fresh examination of his case by a Medical Com­ 39. The refusal of the Court of First mittee must himself take the initiative, if he Instance to take cognizance of medical opin­ so wishes, to provide the committee with ions which were not first submitted to the supplementary opinions by a doctor of his Medical Committee is based on its apprecia­ choice and to request the committee to hear tion of the findings already mentioned. Para­ that doctor. By neglecting to do that, the graph 51 of the contested judgment is applicant acquiesced in the committee's car­ worded as follows: rying out its investigation on the basis of the information known to it and the applicant (and his own doctor). It is therefore only on the basis of that information that the Court of First Instance can and must carry out its judicial review. The appellant's third plea in 'It must be stated, first, that the applicant's law must therefore be rejected. If the Court doctor did not arrange for the additional of Justice were to take a different view and tests suggested by the medical officer to to accept that the applicant was entitled to determine the origin of the applicant's provide the Court of First Instance for the immune deficiency and, secondly, that the first time with supplementary medical docu­ latter did not place before the Medical Com­ ments which it had to review, then that mittee the opinion of any doctor, either his Court would unavoidably be compelled to own or another. In those circumstances, this substitute its appraisal for that of a doctor, Court considers that the applicant, whose which it is not empowered to do.

T-121/89, the Court has before it, in my view, all the matters of fact (as determined by the Court of First Instance) and of law which it needs to give final judgment itself. If the Court, as already proposed, holds the third part of the appellant's first plea in law to be admissible and well founded, it must In Case T-121/89 the applicant requested the accede to the appellant's claim for annulment 49 Court of First Instance to annul primarily of the letter of 6 June 1989. That letter is in the letter of 6 June 1989 in which the Com­ fact vitiated by illegality in view of the fact mission's Director General for Personnel that the decision contained therein is based and Administration informed him that the on medical opinions which have infringed Medical Committee had confirmed the opin­ the appellant's right to protection of his pri­ ion of the medical officer of 22 March vate life by subjecting him without his 1989 and that on the basis thereof the Com­ informed consent to a T4/T8 count.

quoted in section 10 above) that if his appli­ before the Court of First Instance, the appel­ cation for annulment in that case were lant gave the reasons for this claim as fol­ upheld, that would constitute sufficient rep­ lows: aration for the material damage caused him by the measures to be annulled. In that case he therefore made no application to the Court of First Instance for the reparation of that damage. In Case T-13/90 he claimed, 'The applicant has suffered serious non- apart from the annulment of the contested material damage as a result of the accusations measures, an order that the Commission made against him by the Commission's med­ should pay him a lump sum of BFR ical officer. 10 000 000 as compensation for non-material damage which he claims to have suffered owing to the Commission's conduct. In his appeal the appellant claims that the contested judgment should be quashed and that his claims at first instance be upheld. These accusations, which might have had serious consequences both morally and psy­ chologically, caused and continue to cause the applicant damage which the Commission is required to make good.

Finally the Commission published in the Official Journal a summary of the claims and From that I deduce that, in the appellant's pleas in law put forward by the applicant in view, if the letter of 6 June 1989 referred to his claim for annulment. in Case T-121/89 were to be annulled, judg­ ment would at the same time be given as to any material damage arising therefrom. As the appellant is not claiming any compensa­ tion for that, the Court would be acting ultra petita if it were to award any. By publishing in the preamble to that docu­ ment the initials of the applicant and his place of residence in Portugal, the Commis­ sion has infringed the principle of strict con­ fidentiality which it should have observed in such a delicate matter.

'it is only where a direct link exists between an action for annulment and an action for damages that the latter action is admissible as being ancillary to the action for annulment without its necessarily having to be preceded If the Court of Justice, as proposed above, by a request made to the appointing author­ accepts the third part of the first plea in law ity for compensation for the damage alleg­ on appeal and finds the appellant's claim for edly suffered and by a complaint challenging annulment, on those grounds, admissible and well founded, his claim for compensation for non-material damage can naturally no longer 51 — The opposite is also true: the inadmissibility of a claim for annulment leads to the inadmissibility of a claim for com­ pensation for damage which is closely connected therewith. See inter AHA the judgments in Case 129/75 Hirschberg v Commission [1976] ECR 1259, at paragraph 22; in Case 50 — Paragraph 73 of the contested judgment might wrongly give 33/80 Albim v Council and Commission [1981] ECR 2141, the impression that the applicant was claiming compensa­ at paragraph 18; and in Case T-5/90 Marcato v Commission tion for non-material damage solely for the second reason. [1991] ECR II-731. at paragraph 49.

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53 — The appellant is contesting here not the Commission's deci­ sion to subject him without his knowledge to a T4/TS test and to find him, partly on the basis thereof, physically unfit 52 — Latham v Commission [1994] ECR II-61, at paragraph 34, but the Commission's conduct in publishing in the Official and [1994] ECR II-83, at paragraph 37. Journal his initials and his place of residence in Portugal.

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Staff Regulations. The official may submit a such damage to be made good. It is only complaint to the administration only against against the decision rejecting such a request a decision rejecting that request, in accor­ that the person concerned may submit a 54 dance with Article 90(2).' complaint to the administration, pursuant to Article 90(2).' 55

55 — Judgment previously cited in footnote 51, paragraphs 49 54 — [1989] ECR 1877, at paragraph 22. — en

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on that hypothesis would be the act put forward before either the Court of First adversely affecting him within the meaning Instance or the Court of Justice regarding of Article 90(2) of the Staff Regulations). the non-material damage which the appellant alleges that he suffered as a result of the con­ duct of the medical officer and of the Com­ mission decision based thereon. In any event, any consideration of, in particular, the extent of the non-material damage suffered and the causal link between that damage and the Accordingly 'the administrative procedure unlawful nature of the Commission's con­ did not follow that normal course, which is duct constitutes an appreciation of fact 56 mandatory under the Staff Regulations' which the Court of Justice has no jurisdic­ and on that ground the contested judgment tion to entertain in the context of an 57 correctly decided that that part of the claim appeal. I therefore propose that the Court for compensation was inadmissible. of Justice refer the case back to the Court of First Instance for a decision as to the validity of the claim for compensation for the non- material damage which the appellant alleg­ edly suffered as a result of the conduct of the medical officer and the Commission's refusal, based thereon, to recognize the 47. On the basis of the foregoing consider­ appellant's physical fitness. ations I propose that the Court, giving judg­ ment itself, should declare the appellant's claim for compensation for non-material damage to be admissible, but only in so far as that claim is connected with the conduct of the medical officer on which the Commis­ sion's refusal to recognize the appellant's Costs physical fitness is based.

49. In conclusion I propose that the Court should:

(1) declare the third part of the first plea in law on appeal admissible and well founded and reject the other parts of that plea and the remaining pleas;

(2) quash the contested judgment in so far as it declares that:

— the medical officer was entitled in the circumstances of the case to subject the appellant to a T4/T8 lymphocyte count;

— the parties should bear their own costs;

(3) giving judgment itself, annul the letter of 6 June 1989 in which the Commis­ sion's Director General for Personnel and Administration informed the appel­ lant that the Commission took the view that he did not comply with the con­ ditions of physical fitness for recruitment;