JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

23 March 2000

Case T-197/98

Charlotte Rudolph

v

Commission of the European Communities

‛Officials — Time-limit for lodging a complaint — Notification of decision — Languages — Annulment of a pre-recruitment medical examination on the grounc of a false declaration’

Full text in French   II-241

Application for:

annulment of the decision of the Commission of 17 November 1997 declaring the applicant's pre-recruitmen medical examination void and requiring her to undergo ; further examination of her physical fitness and of tin decision of the Commission of 7 December 1998 annullin] the decisions of 3 July and 14 December 1995 appointing the applicant as an official, and for compensation for the nonmaterial harm allegedly sustained by the applicant.

Held:

The Commission's decision of 17 November 1997 declaring the applicant's pre-recruitment medical examination void and requiring her to undergo a further medical examination in order to ascertain her physical fitness is annulled. The Commission is ordered to pay the applicant the sums corresponding to arrears in salary plus interest at the rate of 5.5% per annum from the date on which her salary ceased to be paid. The Commission is ordered to pay the applicant EUR 5000 by way of compensation for nonmaterial harm. The remainder of the application is dismissed. The applicant is ordered to bear 10% of her own costs. The Commission shall bear its own costs and 90% of those incurred by the applicant.

Summary

1. Officials — Actions — Prior administrative complaint — Time-limits — Matter of public policy

   (Staff Regulations, Arts 90 and 91)

2. Officials — Actions — Time-limits — Starting-point — Notification — Concept — Decision addressed to an official in a language of which he has not got a good command — Exclusion

   (Staff Regulations, Art. 91(3))

3. Officials — Actions — Prior administrative complaint — Mandatory nature — Decision terminating an official's employment — Act confirming a decision declaring the pre-recruitment medical examination void — Not such a confirmatory act

   (Staff Regulations, Art. 91(2))

4. Officials — Recruitment — Medical examination — Candidate's obligation to answer the questions put — Limits

   (Staff Regulations, Art. 33)

5. Officials — Recruitment — Medical examination — Medical assessment — Judicial review — Scope

6. Officials — Actions — Object — Direction to the administration — Inadmissibility — Jurisdiction to make any order — Claim for payment — Admissibility

   (Staff Regulations, Art. 91)

7. Officials — Actions — Action for compensation — Annulment of the contested decision not providing adequate compensation for nonmaterial harm — False accusation of fraudulent conduct during the pre-recruitment medical examination

   (Staff Regulations, Art. 91)

1.  The time-limits laid down in Articles 90 and 91 of the Staff Regulations for submitting complaints and commencing actions are a matter of public policy and cannot be left to the discretion of the parties or of the Court. Consequently, the fact that the defendant did not point out during the pre-litigation stage that the complaint was out of time cannot deprive the administration of its right to raise an objection of inadmissibility at the stage of Court proceedings or exempt the Court from the obligation incumbent on it to check that the time-limits laid down in the Staff Regulations have been complied with.

   (see para. 41)

   See: T-14/91 Weyrich v Commission [1991] ECR II-235, paras 40 to 42; T-54/90 Lacroix v Commission [1991] ECR II-749, paras 24 and 25; T-128/89 Offermann v Parliament [1991] ECR II-855, para. 34; T-113/95 Mancini v Commission [1996] ECRSC I-A-185 and II-543, para. 20

2.  A decision is duly notified, within the meaning of the Staff Regulations, and causes time to begin to run for the purpose of submitting a complaint when it is communicated to the addressee and the addressee is able to have effective knowledge of its content.

   Communication of a decision in a language of which the addressee does not have a thorough knowledge is not compatible with the duty of institutions to have regard for the welfare of their officials and cannot in any way constitute effective notification causing time to begin to run for the purpose of submitting a complaint.

   (see paras 44 and 46)

   See: 5/76 Jansch v Commission [1976] ECR 1027, para. 10; T-50/92 Fiorani v Parliament [1993] ECR II-555, para. 16; T-94/92 X v Commission [1994] ECRSC I-A-149 and II-481, para. 24; T-106/95 H v Commission [1997] ECRSC I-A-133 and II-403, paras 31 and 35

3.  An action by an official against a measure which adversely affects him must have been preceded by an administrative complaint which has been rejected by express or implied decision. Owing to its premature nature, an action brought before that pre-litigation procedure has come to an end is inadmissible under Article 91(2) of the Staff Regulations.

   In that context, a decision terminating an official's employment cannot be regarded as merely confirming a previous decision based on the same facts and declaring the pre-recruitment medical examination void. The second decision clearly contains a new element by comparison with the first in that it terminates the official's employment.

   (see paras 53 to 55)

   See: 23/80 Grasselli v Commission [1980] ECR 3709, para. 18; 130/86 Du Besset v Council [1986] ECR 2619, para. 7; T-47/89 and T-82/89 Marcato v Commission [1990] ECR II-231, para. 32; T-78/91 Moat and TAO/AFI v Commission [1991] ECR II-1387, para. 3; T-82/92 Cortes Jiminez and Others v Commission [1994] ECRSC I-A-69 and II-237, para. 14

4.  The questionnaire sent to a candidate before the pre-recruitment medical examination constitutes an important element of assessment for the medical officer responsible for determining whether a candidate is physically fit for a post in the Community civil service. It must be completed honestly and in full, failing which the pre-recruitment medical examination is irregular and may be declared void by the institution concerned. None the less, the candidate is not required to declare problems about which he did not feel it necessary to consult a doctor or follow a course of treatment or, where he did consult a doctor, to make his own diagnosis in order to complete the appropriate part of the questionnaire when the doctor consulted was unable to make a diagnosis. A candidate for recruitment meets his obligations in connection with the pre-recruitment medical examination when he answers honestly and fully the questions set out in the questionnaire and any questions put by the doctor responsible for the examination.

   (see paras 77, 82 and 83)

5.  Although the Community judicature cannot substitute its own assessment for an opinion of a specifically medical nature, it is none the less required, when conducting its judicial review, to consider whether the decision of the appointing authority is based on a reasoned medical opinion establishing a comprehensible link between the medical findings which it contains and the conclusion which it draws.

   (see para. 86)

   See: 189/82 Seiler and Others v Council [1984] ECR 229, para. 15; T-10/93 A v Commission [1994] ECRSC I-A-119 and II-387, para. 61

6.  The Court of First Instance has no jurisdiction to issue directions in the context of a review of legality under Article 91 of the Staff Regulations and cannot therefore order the defendant institution to reinstate an official. However, in an action of a financial character in which the Court has unlimited jurisdiction pursuant to the second sentence of Article 91(1) of the Staff Regulations, the Court has jurisdiction to rule on the pecuniary claims for payment of arrears of the applicant's salary, plus interest.

   (see paras 33 and 92)

   See: T-15/93 Vienne v Parliament [1993] ECR II-1327, paras 41 and 42; T-588/93 G v Commission [1994] ECRSC I-A-277 and II-875, para. 26; T-130/96 Aquilino v Council [1998] ECRSC I-A-351 and II-1017, paras 41 and 42

7.  The annulment of an administrative act challenged by an official may in itself constitute appropriate and, in principle, sufficient reparation for any nonmaterial harm which the official may have sustained, unless the unlawful administrative act includes a potentially damaging assessment of the official's abilities or conduct.

   Assessments whereby the appointing authority, by accusing the person concerned of having omitted at the stage of the pre-recruitment medical examination to declare a medical history the importance of which for the determination of the opinion as to his physical fitness could not have escaped him, impugns his good faith and positively states that his conduct was fraudulent may be regarded as damaging to the extent of causing nonmaterial harm for which annulment of the contested act does not alone constitute full reparation.

   (see para. 98)

   See: C-343/87 Culin v Commission [1990] ECR I-225, paras 25 to 29; T-60/94 Pierrat v Court of Justice [1995] ECRSC I-A-23 and II-77, para. 62