Keywords
Summary

Keywords

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1. Officials ° Recruitment ° Physical fitness ° Medical Committee ° Composition ° Method of operation ° Respect for the right to a fair hearing ° Conditions

(Staff Regulations, Art. 33, second para.)

2. Officials ° Recruitment ° Refusal to appoint on grounds of physical unfitness ° Obligation to give reasons ° Purpose ° Scope ° Medical confidentiality ° Limits

(Staff Regulations, Art. 25, second para., and Art. 33)

3. Officials ° Recruitment ° Refusal to appoint on grounds of physical unfitness ° Candidate who has voluntarily declared that he is suffering from a particular illness ° Obligations on the medical officer of the institution and the appellate medical committee ° Equal treatment of candidates ° Infringement ° None

(Staff Regulations, Art. 28(e) and Art. 33, second para.)

4. Officials ° Recruitment ° Medical examination ° Purpose ° Scope ° Infringement of a person' s right to respect for his private life ° No infringement

(Treaty on European Union, Art. F(2); Staff Regulations, Art. 33)

5. Officials ° Recruitment ° Refusal to appoint on grounds of physical unfitness ° Judicial review ° Scope

(Staff Regulations, Art. 33)

Summary

1. If it is composed of three doctors, excluding the medical officer responsible for the initial opinion that a candidate is physically unfit to perform the duties envisaged, and is chosen from among the medical officers of the institutions rather than exclusively from those of the institution in question, the medical committee established by the Community legislature, which is not bound in that regard by any higher-ranking rule of Community law or by any other mandatory rule, represents for candidates a real additional guarantee capable of improving the protection of their rights.

It cannot be argued that the operation of the appellate medical committee infringes candidates' rights to a fair hearing since it is clear from the second paragraph of Article 33 of the Staff Regulations that a candidate declared physically unfit to perform the duties envisaged may refer the opinion of a doctor of his choice to the medical committee, since the institution' s medical service requested the person concerned to submit to it all the documents which he considered to be relevant and invited him to attend in person or be represented by a doctor of his choice, and since a candidate may in any event always request and ensure that the reasons for an opinion declaring him unfit are notified to a doctor of his choice, it being possible to make such notification before the medical committee is convened.

2. The obligation to give reasons, laid down by the second paragraph of Article 25 of the Staff Regulations, is intended, on the one hand, to provide the person concerned with sufficient information to determine whether the decision adversely affecting him was well founded and whether it is appropriate to bring proceedings before the Court, and, on the other, to enable the Court to review that decision.

The obligation to give reasons for a decision refusing to appoint a candidate to a post on grounds of physical unfitness must, however, be reconciled with the requirements of medical confidentiality which, except in special 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 option does not in any way preclude the possibility that the medical officer may, if he considers it to be appropriate and compatible with medical ethics, inform the person concerned directly of the reasons for his unfitness.

Furthermore, in order to assess the extent of the obligation to give reasons, it is necessary to take account of the circumstances in which a decision was taken and to consider whether the person concerned was aware of those circumstances.

3. The principle of equal treatment is breached when two categories of persons whose factual and legal circumstances disclose no essential difference are treated differently or where different situations are treated in an identical manner.

The position of a candidate for a post who voluntarily declares during the pre-recruitment medical examination that he suffers from a particular illness is in no way comparable to that of another candidate who has not made such a voluntary declaration. Despite that declaration, it is the duty of the medical officer and subsequently that of the medical committee to consider, in accordance with the combined provisions of Article 28(e) and the second paragraph of Article 33 of the Staff Regulations, whether the person in question satisfies the requisite conditions of physical fitness, since the acknowledgement by a person that he is suffering from an illness cannot in any case preclude the medical officer from giving further consideration to that circumstance, on pain of depriving the medical examination of all purpose.

4. The very principle of a pre-recruitment medical examination cannot be regarded as being contrary to a person' s right to respect for his private life, as guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with which the Community is required to comply pursuant to Article F(2) of the Treaty on European Union, in so far as it is a general principle of Community law.

That examination is designed to enable the institution not to appoint a candidate unsuitable for the duties envisaged or to recruit him and assign him to duties compatible with his state of health. That objective is perfectly lawful within any system of public administration and meets the interests of both the institutions and Community officials. In addition, the requirement of a medical examination prior to recruitment of officials is a requirement which is common to most legal systems in the Member States.

The pre-recruitment medical examination must, if it is not to be completely pointless, necessarily include a clinical examination and any supplementary biological tests considered necessary by the medical officer. The Court cannot, in the exercise of its review of legality, criticize such an assessment of an exclusively medical nature.

5. Although the Community judicature cannot, in the context of the judicial review of the legality of a refusal to recruit on grounds of physical unfitness, substitute its own assessment for an opinion which is specifically medical in nature, it is none the less its task to ascertain whether the recruitment procedure was conducted in a lawful manner and, in particular, to examine whether the refusal to recruit is based on a reasoned medical opinion establishing a comprehensible link between the medical findings which it contains and the conclusion which it draws.

It is possible for the medical officer of an institution to base a finding that a candidate is unfit not only on the existence of actual disorders but also on a medically justified prognosis of future disorders capable of jeopardizing in the foreseeable future the normal performance of the duties in question.