61977J0075

1 . OFFICIALS - APPLICATION - IMPLIED DECISION OF REJECTION - STATEMENT OF REASONS - DECISION AGAINST WHICH THE COMPLAINT WAS DIRECTED - EXAMINATION

( STAFF REGULATIONS OF OFFICIALS , FOURTH SUBPARAGRAPH OF ART . 90 ( 2 ))

2 . OFFICIALS - AUXILIARIES - RECRUITMENT - REFUSAL ON GROUNDS OF PHYSICAL UNFITNESS - MEASURE ADVERSELY AFFECTING THE APPLICANT - STATEMENT OF REASONS - PROFESSIONAL SECRECY - DETAILED RULES

( STAFF REGULATIONS OF OFFICIALS , SECOND PARAGRAPH OF ART . 25 ; CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS OF THE COMMUNITIES , ARTS . 54 AND 55 ( 1 ) ( D ))

3 . ACT OF AN INSTITUTION - GRAVE PREJUDICE TO INTERESTS OF AN INDIVIDUAL - POSSIBILITY FOR THE PERSON CONCERNED TO EXPRESS HIS POINT OF VIEW - OBLIGATION ON THE ADMINISTRATION

1 . UNDER THE CONDITIONS REFERRED TO IN THE FOURTH SUBPARAGRAPH OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS THE STATEMENT OF REASONS ON WHICH AN IMPLIED DECISION REJECTING A COMPLAINT IS BASED IS NECESSARILY DEEMED TO BE THE SAME AS THE STATEMENT OR LACK OF STATEMENT OF REASONS FOR THE DECISION WHICH WAS THE SUBJECT OF THE UNANSWERED COMPLAINT , WITH THE RESULT THAT THE GROUNDS FOR EACH OF THEM MUST BE REVIEWED AT ONE AND THE SAME TIME .

2 . THE SUSPENSION , ON ACCOUNT OF PHYSICAL UNFITNESS , OF THE PROCEDURE FOR THE RECRUITMENT OF A CANDIDATE FOR ENGAGEMENT AS A MEMBER OF THE AUXILIARY STAFF WHO HAS SUCCESSFULLY TAKEN PART IN THE COMPETITIONS OR TESTS ORGANIZED FOR THE RECRUITMENT OF AUXILIARY STAFF CONSTITUTES A DECISION ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 25 OF THE STAFF REGULATIONS OF OFFICIALS . IN CONSEQUENCE , THE REASONS FOR SUCH A DECISION MUST BE STATED , ALTHOUGH THE DUTY TO STATE THE REASONS MUST BE RECONCILED WITH THE REQUIREMENTS OF PROFESSIONAL SECRECY 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 RECONCILIATION IS EFFECTED THROUGH THE ABILITY OF THE PERSON CONCERNED TO REQUEST AND ENSURE THE COMMUNICATION TO A DOCTOR OF HIS CHOICE OF THE GROUNDS ON WHICH HE HAS BEEN DECLARED UNFIT ; THAT INFORMATION SHOULD ENABLE THE PERSON CONCERNED , EITHER HIMSELF OR THROUGH HIS DOCTOR , TO JUDGE WHETHER THE DECISION SUSPENDING THE RECRUITMENT PROCEDURE CONFORMS WITH THE REQUIREMENTS OF THE STAFF REGULATIONS .

3 . WHEN ANY ADMINISTRATIVE BODY ADOPTS A MEASURE WHICH IS LIABLE GRAVELY TO PREJUDICE THE INTERESTS OF AN INDIVIDUAL IT IS BOUND TO PUT HIM IN A POSITION TO EXPRESS HIS POINT OF VIEW .

IN CASE 75/77

EMMA MOLLET , RESIDING AT BRUSSELS , 11 RUE G . AND J . MARTIN , REPRESENTED AND ASSISTED BY JACQUES PUTZEYS AN XAVIER LEURQUIN , ADVOCATES OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . NICKTS , HUISSIER , 17 BOULEVARD ROYAL ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DENISE SORASIO-ALLO , AN OFFICIAL EMPLOYED IN THE LEGAL SERVICE OF THE COMMISSION , ACTING AS AGENT , ASSISTED BY R . O . DALCQ AND M . GROSSMANN , ADVOCATES OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH , ADVOCATE OF THE LUXEMBOURG BAR , 2 RUE GOETHE ,

DEFENDANT ,

APPLICATION FOR :

- THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT THROUGH OFFICIAL CHANNELS OF 30 NOVEMBER 1976 RELATING TO THE REVOCATION OF THE DECISION THAT SHE WAS PHYSICALLY UNFIT CONTAINED IN A LETTER OF THE COMMISSION OF 14 SEPTEMBER 1976 ;

- COMPENSATION FOR THE MATERIAL AND NON-MATERIAL DAMAGE SUFFERED BY THE APPLICANT AS A RESULT OF THE FACT THAT THE ATTITUDE OF THE COMMISSION STILL LEAVES HER UNCERTAIN AS TO HER STATE OF HEALTH AND THE REAL REASONS FOR HER PHYSICAL UNFITNESS ;

1THE APPLICATION , WHICH WAS LODGED ON 28 JUNE 1977 , SEEKS THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT THROUGH OFFICIAL CHANNELS OF 30 NOVEMBER 1976 RELATING TO THE WITHDRAWAL OF THE DECISION THAT SHE WAS PHYSICALLY UNFIT CONTAINED IN A LETTER OF THE COMMISSION OF 14 SEPTEMBER 1976 .

2IT SEEKS , IN ADDITION , COMPENSATION FOR THE MATERIAL AND NON-MATERIAL DAMAGE SUFFERED BY THE APPLICANT AS A RESULT OF THE CONTESTED DECISION AND , INDEPENDENTLY OF THAT DECISION , AS A RESULT OF THE FACT THAT THE ATTITUDE OF THE COMMISSION STILL LEAVES HER UNCERTAIN AS TO HER STATE OF HEALTH AND THE REAL REASONS FOR HER PHYSICAL UNFITNESS .

3AFTER HAVING SUCCESSFULLY TAKEN PART IN THE TESTS ORGANIZED BY THE DEFENDANT FOR THE CONSTITUTION OF A RESERVE FOR THE FUTURE RECRUITMENT OF AUXILIARY STAFF IN GRADE C VII ( DUTCH-LANGUAGE TYPISTS ), THE APPLICANT UNDERWENT ON 15 JULY 1976 THE EXAMINATION OF PHYSICAL FITNESS WHICH IS A PRELIMINARY TO ANY ENGAGEMENT , FOLLOWING WHICH THE MEDICAL SERVICE OF THE COMMISSION PRESCRIBED TWO ADDITIONAL VISITS TO NEUROPSYCHIATRISTS .

4THE RESULTS OF THOSE NEUROPSYCHIATRIC EXAMINATIONS PROMPTED THE MEDICAL SERVICE TO INFORM THE DIRECTORATE GENERAL FOR PERSONNEL AND ADMINISTRATION THAT THE APPLICANT WAS NOT PHYSICALLY FIT TO PERFORM HER DUTIES .

5BY LETTER DATED 14 SEPTEMBER 1976 THE COMMISSION INFORMED MISS MOLLET THAT THE RESULT OF HER MEDICAL EXAMINATION WAS NEGATIVE , AND THAT THIS SUSPENDED THE RECRUITMENT PROCEDURE , BUT ADDED :

' ' IF YOU WISH TO KNOW WHY YOU ARE PHYSICALLY UNFIT I SUGGEST THAT YOU ASK YOUR OWN DOCTOR TO GET IN TOUCH WITH DR SEMILLER , THE HEAD OF THE MEDICAL SERVICE . . . ' ' .

6THUS , BY LETTER DATED 4 OCTOBER 1976 , THE APPLICANT ' S DOCTOR RECEIVED THE FOLLOWING INFORMATION FROM THE MEDICAL SERVICE OF THE COMMISSION :

' ' WE FORMED CERTAIN RESERVATIONS CONCERNING THE RECRUITMENT OF MISS MOLLET . . . AS A RESULT , HER CANDIDATURE WAS NOT ACCEPTED BY THE ADMINISTRATION OF THE COMMISSION . . . THERE ARE NO MEDICAL FACTORS TO BE COMMUNICATED WHICH REQUIRE TREATMENT ' ' .

7ON 30 NOVEMBER 1976 THE APPLICANT SUBMITTED A COMPLAINT THROUGH OFFICIAL CHANNELS UNDER ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , WHICH ASKED , IF HER COMPLAINT SHOULD NOT BE ACCEPTED , THAT :

' ' THE ENTIRE MEDICAL FILE PREPARED BY THE RELEVANT SERVICE OF THE COMMISSION BE MADE AVAILABLE IMMEDIATELY TO HER DOCTOR ' ' .

8ALMOST SIX MONTHS LATER , BY LETTER OF 26 MAY 1977 , THE APPLICANT WAS ADVISED THAT A COMPLETE MEDICAL REPORT WOULD BE SENT TO HER PRIVATE DOCTOR WITHOUT DELAY .

9THE DOCTOR IN QUESTION RECEIVED THE SAID REPORT ON 8 JUNE 1977 ALTHOUGH , ACCORDING TO HIS REPLY TO A QUESTION PUT TO HIM BY THE COURT , HE WAS NOT PROVIDED WITH ANY DETAILED INFORMATION REGARDING THE TWO NEUROPSYCHIATRIC EXAMINATIONS .

10MOREOVER , THE COMMISSION FAILED TO REPLY TO THE APPLICANT ' S COMPLAINT , WITH THE RESULT THAT WITH EFFECT FROM 30 MARCH 1977 ITS SILENCE CONSTITUTED AN IMPLIED DECISION OF REJECTION , THE ANNULMENT OF WHICH IS SOUGHT BY MISS MOLLET IN THE PRESENT APPLICATION .

11IN SUPPORT OF HER APPLICATION THE APPLICANT REFERS TO THE ABSENCE , IN INFRINGEMENT OF ARTICLE 54 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS AND OF THE SECOND PARAGRAPH OF ARTICLE 25 OF THE STAFF REGULATIONS , WHICH IS APPLICABLE BY ANALOGY , OF ANY STATEMENT OF REASONS FOR THE IMPLIED DECISION RESULTING FROM THE COMMISSION ' S SILENCE .

12UNDER THE CONDITIONS REFERRED TO IN THE FOURTH SUBPARAGRAPH OF ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS THE STATEMENT OF REASONS ON WHICH AN IMPLIED DECISION REJECTING A COMPLAINT IS BASED IS NECESSARILY DEEMED TO BE THE SAME AS THE STATEMENT OR LACK OF STATEMENT OF REASONS FOR THE DECISION WHICH WAS THE SUBJECT OF THE UNANSWERED COMPLAINT , WITH THE RESULT THAT THE GROUNDS FOR EACH OF THEM MUST BE REVIEWED AT ONE AND THE SAME TIME .

13THE SUSPENSION , ON ACCOUNT OF PHYSICAL UNFITNESS , OF THE PROCEDURE FOR THE RECRUITMENT OF A CANDIDATE FOR ENGAGEMENT AS A MEMBER OF THE AUXILIARY STAFF WHO HAS SUCCESSFULLY TAKEN PART IN THE COMPETITIONS OR TESTS ORGANIZED FOR THE RECRUITMENT OF AUXILIARY STAFF CONSTITUTES A DECISION ADVERSELY AFFECTING HIM WITHIN THE MEANING OF ARTICLE 25 OF THE STAFF REGULATIONS OF OFFICIALS , WHICH IS APPLICABLE BY ANALOGY TO OTHER SERVANTS BY VIRTUE OF ARTICLE 54 OF THE CONDITIONS OF EMPLOYMENT OF OTHER SERVANTS .

14IN CONSEQUENCE , THE REASONS FOR SUCH A DECISION MUST BE STATED .

15THE DUTY TO STATE THE REASONS MUST BE RECONCILED WITH THE REQUIREMENTS OF PROFESSIONAL SECRECY 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 .

16THAT RECONCILIATION IS EFFECTED THROUGH THE ABILITY OF THE PERSON CONCERNED TO REQUEST AND ENSURE THE COMMUNICATION TO A DOCTOR OF HIS CHOICE OF THE GROUNDS ON WHICH HE HAS BEEN DECLARED UNFIT ; THAT INFORMATION SHOULD ENABLE THE PERSON CONCERNED , EITHER HIMSELF OR THROUGH HIS DOCTOR , TO JUDGE WHETHER THE DECISION SUSPENDING THE RECRUITMENT PROCEDURE CONFORMS WITH THE REQUIREMENTS OF THE STAFF REGULATIONS .

17THE STATEMENT OF GROUNDS CONTAINED IN THE COMMUNICATION OF 14 SEPTEMBER 1976 WAS ADEQUATE PROVIDED THAT , WITHIN A REASONABLE TIME AND IN ANY CASE BEFORE THE END OF THE PERIOD WITHIN WHICH A COMPLAINT MUST BE SUBMITTED , THE APPLICANT ' S PRIVATE DOCTOR WAS PUT IN A POSITION TO ACQUAINT HIMSELF WITH THE REASONS FOR THE DECISION AND TO ADVISE THE APPLICANT WHETHER IT WAS POSSIBLE TO CONTEST THE GROUND ON WHICH SHE WAS DECLARED UNFIT .

18THE MEDICAL REPORT CONCERNING THE UNFITNESS OF THE APPLICANT WAS SENT TO HER PRIVATE DOCTOR ONLY AFTER THE EXPIRY OF THE PERIOD WITHIN WHICH A COMPLAINT MUST BE SUBMITTED .

19THE SAID DOCTOR WAS THEREFORE NOT INFORMED AND PUT IN A POSITION IN GOOD TIME TO ADVISE THE APPLICANT WHETHER IT WAS POSSIBLE TO CONTEST THE REASONS WHICH LED TO THE CONCLUSION THAT SHE WAS PHYSICALLY UNFIT TO PERFORM THE DUTIES IN QUESTION .

20IN -SUGGESTING THAT THE APPLICANT SHOULD INVITE HER OWN DECTOR TO ASK TO BE INFORMED OF THE GROUNDS JUSTIFYING THE DECLARATION THAT SHE WAS PHYSICALLY UNFIT , THE ADMINISTRATION INTENDED TO GIVE HER THE MEANS OF EFFECTIVELY CHALLENGING THOSE GROUNDS .

21THAT OPPORTUNITY WAS NOT GIVEN TO THE APPLICANT , WITH THE RESULT THAT THE COMMISSION VIOLATED THE GENERAL PRINCIPLE THAT WHEN ANY ADMINISTRATIVE BODY ADOPTS A MEASURE WHICH IS LIABLE GRAVELY TO PREJUDICE THE INTERESTS OF AN INDIVIDUAL IT IS BOUND TO PUT HIM IN A POSITION TO EXPRESS HIS POINT OF VIEW .

22FOR THAT REASON BOTH THE DECISION THAT THE APPLICANT WAS PHYSICALLY UNFIT CONTAINED IN THE LETTER FROM THE COMMISSION OF 14 SEPTEMBER 1976 AND THE IMPLIED DECISION REJECTING HER COMPLAINT MUST BE ANNULLED .

23IT IS FOR THE COMMISSION TO TAKE THE NECESSARY STEPS TO GIVE EFFECT TO THIS JUDGMENT .

24CONSIDERATION OF THE OTHER SUBMISSIONS PUT FORWARD BY THE APPLICANT IS PURPOSELESS .

25THE APPLICANT ALSO REQUESTS THE COURT TO RULE THAT AS A RESULT OF THE DECISION ANNULLED SHE HAS SUFFERED MATERIAL AND NON-MATERIAL DAMAGE , THE AMOUNT OF WHICH SHOULD BE FIXED AT BFRS 2 050 000 , AND THAT AS A RESULT OF THE GROSSLY WRONGFUL ATTITUDE OF THE COMMISSION THE APPLICANT HAS SUFFERED NON- MATERIAL DAMAGE , THE AMOUNT OF WHICH SHOULD BE FIXED AT BFRS 50 000 .

26AS REGARDS COMPENSATION FOR THE MATERIAL DAMAGE WHICH THE APPLICANT MAINTAINS THAT SHE SUFFERED AS A RESULT OF THE FACT THAT THE SUSPENSION OF THE RECRUITMENT PROCEDURE CAUSED HER TO LOSE THE BENEFIT OF REMUNERATION , NO SUCH COMPENSATION CAN BE AWARDED SINCE SHE DOES NOT DERIVE ANY RIGHT TO BE ENGAGED FROM THE MERE RECOGNITION OF THE FACT THAT SHE IS PHYSICALLY FIT .

27ON THE OTHER HAND , AS REGARDS THE NON-MATERIAL DAMAGE WHICH THE APPLICANT CLAIMS TO HAVE SUFFERED AS A RESULT OF THE STATE OF UNCERTAINTY IN WHICH SHE WAS LEFT REGARDING HER STATE OF HEALTH , SHE IS JUSTIFIED IN HER CLAIM FOR COMPENSATION .

28EVEN IF THE MEDICAL REPORT ON THE APPLICANT ' S PHYSICAL UNFITNESS , WHICH WAS COMMUNICATED TO HER PRIVATE DOCTOR ON 8 JUNE 1977 , MAY BE REGARDED AS SUFFICIENT , IN THE ABSENCE OF ANY DETAILED REPORTS BY THE TWO SPECIALIST NEUROPSYCHIATRISTS , TO ENABLE THE APPLICANT , THROUGH HER OWN DOCTOR , TO JUDGE WHETHER THE DEFENDANT ' S DECISION CONFORMS WITH THE REQUIREMENTS OF THE STAFF REGULATIONS , SHE WAS NEVERTHELESS LEFT WITHOUT ANY JUSTIFICATION IN A STATE OF UNCERTAINTY REGARDING HER STATE OF HEALTH UNTIL 8 JUNE 1977 .

29THAT DAMAGE WILL BE FAIRLY COMPENSATED BY THE AWARD OF A SUM OF BFRS 50 000 .

COSTS

30UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

31THE DEFENDANT HAS FAILED IN ITS DEFENCE .

32IT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE ACTION .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . ANNULS THE DECISION THAT THE APPLICANT WAS PHYSICALLY UNFIT CONTAINED IN THE LETTER OF THE COMMISSION DATED 14 SEPTEMBER 1976 AND THE IMPLIED DECISION REJECTING THE APPLICANT ' S COMPLAINT ;

2 . ORDERS THE DEFENDANT TO MAKE GOOD THE NON-MATERIAL DAMAGE SUFFERED BY THE APPLICANT BY THE AWARD OF A SUM OF BFRS 50 000 ;

3 . ORDERS THE DEFENDANT TO PAY ALL THE COSTS .