C-316/97
ECLI:EU:C:1998:361
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PARLIAMENT v GASPARI
OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 14 July 1998 *
1. This is an appeal by the European Parlia- — O n Thursday 4 May 1995 the Parliament's ment against the judgment of the Court of medical officer in Luxembourg went to First Instance of the European Communities the applicant's home to examine her and of 10 July 1997 ' annulling its decisions of 22 informed her that she was fit to return to May and 9 August 1995 in which it decided work the following day, Friday. and confirmed, respectively, that its official, Mrs Gaspari, had been improperly absent for one day, for which reason it deducted a day from her annual leave entitlement.
— Mrs Gaspari did not resume her duties until Monday 8 May 1995. O n that same day she sent a note to the Director-General of Personnel objecting to the way in which The facts of the case the institution's medical officer had treated her.
— O n 22 May 1995 the Personnel Division informed Mrs Gaspari that it regarded her 2. The facts found proved in the judgment at absence as irregular and that the day of first instance are, briefly, as follows: absence would be treated as part of her annual leave pursuant to Article 60 of the Staff Regulations of Officials of the Euro- pean Communities. That decision was con- firmed on 9 August 1995.
— O n 3 May 1995 Mrs Gaspari submitted to the Parliament administration a medical certificate indicating that she was unfit for work from Wednesday 3 May until Friday 5 May 1995. — O n 21 August 1995 Mrs Gaspari lodged a complaint (dated 11 August) against the decision of 22 May 1995, in which she * Original language: Spanish. claimed that she had followed the guid- 1 — Case T-36/96 [1997] ECR II-595. ance given by her doctor, that the obser-
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vations of the medical officer were base- access to the medical officer's report' in order less and that the latter had adopted a 'par- to be in a position to ascertain the grounds of tisan' approach. the decision at issue and assess its merits.
— O n 13 December 1995 the Parliament rejected her complaint.
The grounds of the judgment under appeal
6. Since the report was not disclosed to the official or to her attending doctor, the state- ment of reasons in this case was confined to a mere reference to the opinion of the Parlia- 3. Of the three pleas put forward by Mrs Gas- ment's medical officer, who considered that pari in seeking annulment of the administra- Mrs Gaspari should have returned to work tive decision (no statement of reasons, infringe- on Friday 5 May. According to the Court of ment of Article 59 of the Staff Regulations First Instance, that statement of reasons was and manifest error of assessment), the Court 'merely formal and therefore insufficient to of First Instance considered only the first, allow the applicant to assess its merits'. which, in its view, was sufficient to justify a finding in her favour.
4. After stating that, strictly, the contested measure was not the report drawn up by the medical officer but the administrative deci- sion treating her absence as irregular, the Court of First Instance emphasises that, in effect, the decision was based solely on that 7. The Court of Justice adds that, in addition, report. the principle of respect for the rights of the defence was infringed in the applicant's case: since the conclusions of the medical examina- tion were not disclosed to her, Mrs Gaspari was unable to give her views on them or chal- lenge them with any chance of success. Respect 5. In the opinion of the Court of First for the rights of the defence requires that a Instance, the logical consequence of that fact person should be able to express his views on is that the official concerned must 'be granted the entire content of a medical officer's report.
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The grounds of appeal upholding the plea relating to breach of the rights of the defence, which was raised by Mrs Gaspari only in her reply.
8. The appeal is based on the following four 2 pleas: (d) In any event, there was no breach of the rights of the defence, and therefore the Court of First Instance erred in law by annulling the contested administrative decisions on that ground. (a) The Court of First Instance should have declared the application inadmissible under Article 179 of the EC Treaty since the pleas put forward in the application did not coincide with the claims set out in the prior complaint. The first ground of appeal
(b) The Court of First Instance erred in law by considering that the contested deci- sion was vitiated by the lack of, or by a 9. The European Parliament alleges, first, that defective, statement of reasons. It is the Court of First Instance should not have incumbent on the official concerned to admitted Mrs Gaspari's appeal since the pleas show that the medical officer's report was on which it was based differed from those set not well founded. Otherwise, the system out in the complaint that preceded it. provided for in Article 59(1) of the Staff Regulations would become meaningless.
(c) The Court of First Instance infringed 10. That allegation is nothing short of aston- Article 48(2) of its Rules of Procedure by ishing at this stage in the procedure since it was not put forward in the defence at first instance. If the Parliament's defence counsel considered the application inadmissible at first 2 — In fact, the grounds of appeal are sec out under only three headings, namely inadmissibility of the application at first instance, the logical course would have been instance, the existence of a statement o f reasons and the to raise an appropriate objection at the proper examination of an issue by the Court of First Instance of its own motion. However, in developing the latter ground of point in the procedure, namely before the appeal, the Parliament advances both substantive and proce- dural arguments, which I consider must be dealt with sepa- judicial authority responsible for dealing with rately. Although I could have referred to the first and second it. A reading of that defence is sufficient to parts of the third ground of appeal, I have chosen, for reasons of clarity, to treat them as separate grounds. show, on the contrary, that it focuses on the
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statements of reasons for the decisions and on cation to the Court incorporates further argu- the alleged error of appraisal but it makes no ments or endows those put forward earlier submissions as to the inadmissibility of with a legal guise cannot in my opinion render Mrs Gaspari's application. The defence called it inadmissible. for the application to be dismissed on sub- stantive grounds and certainly not on grounds of inadmissibility.
13. Finally, the case-law of the Court of Jus- tice allows a defect which constitutes a matter 11. In any event, there is no reason for an of public interest and affects a contested mea- application to the Court of First Instance not sure (and that category of defect includes the to put forward legal arguments which were lack of a statement of reasons and infringe- not set out in a prior complaint. The fact that ment of the rights of the defence) to be exam- the complaint and the application to the Court ined at any stage of the procedure, and the must correspond, to which the Court of Jus- applicant's right to raise the matter does not tice 3 has referred on occasion, requires that lapse merely because he failed to do so in his the applicant's claims should be the same in earlier complaint. 4 both documents and that the causa petendi should have been settled in the complaint, the entire reason for this being not to detract from the latter. But that requirement cannot be interpreted so rigidly as to prevent an The second ground of appeal applicant from adding before the Court of First Instance new arguments (or evidence) differing from those put forward in his com- plaint. There would not be much point in requiring the involvement of a lawyer in staff 14. The problem raised by the second ground cases before the Court of First Instance if his of appeal concerns the requirement that rea- role were to be confined to repeating the sons be stated for the contested decisions. As arguments already advanced by the official in I have said, they contained only a reference to his complaint without the help of a lawyer. the medical officer's report but did not tran- scribe its contents.
12. In this case, both the complaint and the application pursue the same end (a declara- tion that the decisions are void) and invoke 15. Consideration of this plea must start from the same cause of action (the allegedly a question of principle: must a Community improper conduct of the defendant institu- institution include, in the statement of rea- tion), and even some of the legal arguments sons for decisions like those at issue here, the put forward coincide. The fact that the appli- text of a report drawn up by the medical officer following his visit to the official? If
3 — See the references to that case-law in paragraph 9 of the judg- ment of the Court of First Instance of 29 March 1990 in Case 4 — Case C-166/95 P Daffix[1997] ECR I-983, paragraphs 24 and T-57/89 Alexandrakis v Commission [1990] ECR II-143. 25.
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not, may it be considered that such decisions a final assessment as to whether or not it is lack the statement of reasons required for appropriate for the official to resume duties. such administrative measures? It is precisely that final conclusion (and not the clinical background thereto) which, in turn, constitutes the statement of reasons for the administrative measure. Conversely — in order to ensure a wholly balanced approach — it cannot be required that the certificate 16. In my opinion, a decision concluding that from the official's attending medical practi- an official's absence is irregular must without tioner to the effect that he is unfit for work doubt state the reasons which prompted the contain the doctor's detailed professional institution to adopt it: if it is a decision con- assessments as to his patient's condition. cerned with absences following an examina- tion by a medical officer, when — and the official so admits — the doctor personally called on the official to return to work and the official did not do so, the decision con- tains an adequate statement of reasons if it 19. Even if it were the case that the require- sets out those facts and refers to Articles 59 ments of medical confidentiality did not extend and 60 of the Staff Regulations as being appli- so far and the medical officer might disclose cable. all his findings to the institution, that would not mean that the institution was obliged to incorporate them in the decision finding that the official's absence was irregular, a reference to the doctor's report being sufficient. Subject 17. I do not consider it necessary for such to the distinctions which I shall draw shortly, decisions to include in addition the entire text such a succinct statement of reasons may be of the report of the medical officer to the sufficient to justify the administrative mea- institution concerned or of the clinical assess- sure, provided that later, in the event of dis- ments contained in it or which might be agreement, it might have to be amplified at a obtained from the medical officer. later stage.
18. Sometimes, medical confidentiality may 20. I consider that the key to this dispute is even prevent the medical officer from dis- to be found in the latter point. The institu- closing the results of his professional exami- tion employing the official may omit the con- nation to the institution concerned. 5 In such tent of the medical officer's report from its cases, it is sufficient for his report to contain original decision, but it may not refuse to obtain that report and make it available to the official concerned 6if the official makes a 5 — According to Article 86 of the Deontological Rules of the College of Medical Practitioners of Luxembourg, appended as Annex III to the appeal, a doctor giving a second opinion is bound by professional secrecy vis-à-vis the administration or 6 — In referring to the duty of the institution, as such, I will not organisation by whom he is contracted, and he may and must consider the question of which of its departments has to pro- disclose only his conclusions to them, on an administrative vide the official with the report. This issue (which I regard as basis, without indicating the reasons of a medical nature on entirely peripheral) was the subject of certain of the Parlia- which they are based. ment's submissions at the appeal hearing.
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legitimate request to that effect, either to 23. A refusal on the part of the institution to acquaint himself with its terms or to chal- comply with such a request will not infringe lenge an administrative measure adopted on the obligation to give a statement of reasons the basis of that medical report. but it may encroach upon the official's right to react, in full knowledge of the facts and with equality of arms, against an adverse administrative measure. In that regard, it is necessary to analyse the assessments of the Court of First Instance in the contested judg- ment concerning the rights of the defence, 21. That aspect of the question does not, upon 'which the third and fourth grounds of however, concern the requirement of a state- appeal focus. ment of reasons for an administrative mea- sure: it relates to a later phase, such as admin- istrative or judicial proceedings which might be brought against it. In view of the emi- nently specialised nature of the assessments 24. This ground of appeal should therefore of the medical officer, his report constitutes a be upheld since the Court of First Instance form of evidence which, if need be, could be erred in law by holding that the statements of compared with other evidence of the same reasons for the contested administrative deci- kind or made the subject of specialist exami- sions were inadequate. nation at the request of either party as part of the procedure for review of the administra- tive measure.
The third ground of appeal
22. I think it is appropriate to stress this 25. In its third ground of appeal 7 the Parlia- point: by way of statement of reasons for the ment criticises the Court of First Instance for measure in which it was decided that the offi- not complying with Article 48(2) of its Rules cial's absence was irregular, it was sufficient of Procedure, pursuant to which no new plea for the institution to state the proven facts may be put forward in the course of the pro- (the medical officer's examination, the express ceedings unless it is based on matters of law instruction to the official to resume duties, or fact which have come to light in the course the latter's subsequent conduct) and the pro- of the procedure. visions of the Staff Regulations applicable to such conduct, on 'which the decision was based. The official's rejection of the decision, based on her disagreement with the doctor's findings, means that in the course of the 26. Counsel for the Parliament contends that administrative complaint procedure (and a the plea as to breach of the rights of the fortiori during the judicial review) she should have access, if she so requests, to the medical report in question. But two stages are involved 7 — See footnote 2 regarding the way the grounds of appeal are here, which must not be confused. set out in the appeal.
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defence was introduced by the applicant only was raised by the applicant, as is expressly in her reply, no mention of it being made in acknowledged in the Parliament's her prior complaint. The Court of First defence; 8 Instance should not therefore have enter- tained it. A fortiori, the Court of First Instance should not have examined it on its own ini- tiative.
(b) second, whilst it is true that the heading of the first plea in law in the application referred only to the statement of reasons for the measure, it is also true that it was there emphasised that it was impossible for the official to examine and challenge 27. As regards possible differences between the substance of the contested decision, the content of the complaint and the applica- an argument which concerns the rights of tion to the Court of First Instance, I refer to the defence. what I said in relation to the first ground of appeal. I repeat that I can see no objection to the raising in the application to the Court of legal arguments additional to those raised at the administrative stage provided that there is no change in the claim or cause of action. In any event, since the defects are matters of 29. Consequently, the Court of First Instance public interest, they can always be raised at a did not contravene any rule of law in dealing, later stage. in its judgment, with a legal argument raised by the applicant in the proceedings before it.
The fourth ground of appeal 28. As regards the alleged irregularity in the course of the procedure, I again do not con- sider that Article 48 of the Rules of Proce- dure of the Court of First Instance has been infringed, for two reasons: 30. After contending that the argument con- cerning breach of the rights of the defence should have been declared inadmissible in the contested judgment, counsel for the Euro- pean Parliament asserts that, in any event, (a) first, there is no need to examine to what there was no such breach. extent that court may, of its own motion, examine certain defects of a Community measure which encroach upon funda- mental rights, since in this case the 8 — Paragraph 50 of the appeal refers to: '... The introduction by the Court of First Instance of this new argument... raised by infringement of the rights of the defence the applicant only at the stage of the Reply ...'.
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31. A clarification is called for before this particularly in view of the fact that Counsel ground of appeal is considered: the question for the Parliament has not alleged that there whether or not the Parliament actually denied has been any distortion of evidence, which is the applicant access to the medical report. It directly and immediately inferable therefrom, is a matter to which the contested judgment it must be conceded that in her complaint makes no reference whatsoever under the Mrs Gaspari sought access to the medical heading 'Facts', nor is there any reference to report. Does the defendant institution's lack it under the headings 'Pre-litigation proce- of response to that request affect retroactively dure' or 'Procedure before the Court'. Nev- the validity of the decisions antedating the ertheless, later, in examining the legal issues, complaint? the Court of First Instance states twice that the applicant asked in her complaint for dis- closure of the medical report (paragraphs 30 and 31).
35. In my view, the answer must be negative: I have already stated that the decisions with 32. The applicant's complaint was very suc- which the complaint was concerned were suf- cinct, being confined to two statements: '(1) ficient to explain to their addressee the rea- I merely followed to the letter the guidance sons for which the administration regarded given by my doctor, namely that three days her absence as irregular. Also, Mrs Gaspari off work were necessary; (2) the observations admits that she received from the medical of the medical officer (whom my attending officer who visited her a direction to return medical practitioner would really like to meet) to work the next day, the obvious explana- were baseless since it was the first time he tion for which is that he considered her fit to had seen me and on other occasions he has do so. If the official needed the detailed used these partisan methods, as demonstrated medical report (for example, to show it to her by the attached note from the Staff Com- attending medical practitioner) she could have mittee dated 30 May 1995'. asked for it at any time before making the complaint, with a view to complaining in greater detail.
33. For its part, the Parliament insists that the applicant acknowledged at the hearing before the Court of First Instance that she had never asked to examine the medical offic- er's report. 36. In any event, the Parliament's (implicit) refusal to make the medical report available to the official, as requested in the terms described above, could be a reason for annul- ling the decision which disposed of the admin- istrative complaint, on the ground of possible 34. Since the Court of First Instance estab- breach of the rights of the defence whilst the lishes the facts and an appeal does not repre- complaint was being dealt with, but not for sent an appropriate time to review them, annulling the original decisions.
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37. That difference, I believe, needs to be 39. In conclusion, it is appropriate to uphold emphasised: first, the decisions at issue in the fourth ground of appeal as well, since the these proceedings contained from the outset Court of First Instance erred in law in annul- an adequate statement of reasons since they ling the two contested decisions by reason of made it clear to the person concerned why an event (the failure to respond to the later the administration considered her absence request for disclosure of the medical report) irregular. Second, even if it is conceded that which postdated them and cannot affect their the Parliament, at the official's request, should validity. have given her a copy of the medical report (finally produced in the proceedings before the Court of First Instance), that does not affect the requirement of a statement of rea- sons but relates to an item of evidence which 40. Finally, since the Court of First Instance could be challenged in complaint proceedings did not give judgment on the other pleas in and, a fortiori, in proceedings before the law put forward by the applicant at first Court. instance, regarding which problems remain regarding the assessment of the facts and evaluation of evidence, it is appropriate, in accordance with Article 54 of the EC Statute of the Court of Justice, to refer the case back 38. Therefore, if there was any breach of the to that court for judgment. rights of the defence, it occurred when the contested decisions had already been adopted. It is thus a defect which affects not those decisions but a subsequent administrative mea- sure — like the decision disposing of the 41. Since in my view the circumstances envis- complaint. Paradoxically, that last measure aged in Article 122 of the Rules of Procedure was not annulled by the contested judgment, of the Court of Justice are not present, there which declared void only the decisions of 22 is no need for the judgment to give any direc- May and 9 August 1995. tions as to costs.
Conclusion
42. I therefore suggest t h a t t h e C o u r t of Justice s h o u l d u p h o l d t h e appeal b r o u g h t b y the E u r o p e a n P a r l i a m e n t and s h o u l d :
(1) set aside the j u d g m e n t of t h e C o u r t of F i r s t Instance of 10 J u l y 1997 in C a s e T-36/96;
(2) refer the case back t o t h e C o u r t of First I n s t a n c e for it t o give j u d g m e n t o n the o t h e r pleas in law p u t f o r w a r d b y t h e applicant;
(3) reserve the costs.
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