JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

27 October 1994

Case T-47/93

C

v

Commission of the European Communities

‛Officials — Recruitment — Extension of the validity of the list of suitable candidates in Competition EUR/B/16 — Medical finding of unfitness — Action for annulment — Action for damages’

Full text in French   II-743

Application for:

first, annulment of the decision extending the validity of the list of suitable candidates for Competition EUR/B/16 in relation to the applicant, and, secondly, damages.

Decision:

Order for damages against the Commission; for the rest, application dismissed.

Abstract of the Judgment

On 22 February 1991 the relevant officers of the Commission requested publication of a vacancy notice so as to recruit the applicant, who had been successful in an open competition.

On 24 April 1991 the Commission's medical officer issued a finding of unfitness on the grounds of a hepatitis B infection. Following an appeal by the applicant, the medical committee confirmed that finding on 31 May 1991, subject to reexamination at a later date.

Although the Commission had informed the applicant on 26 April 1991 that it would notify him of its decision concerning the assessment of his physical fitness, it did not make any decision in relation to the applicant concerning the post for which he had initially been selected.

On 12 May 1992 the applicant was informed that, after reexamining his case, the medical committee had issued a finding of ‘conditional’ fitness.

On 27 May 1992, after the expiry on 30 June 1991 of the list of suitable candidates in the competition, the applicant, who was no longer eligible for appointment to a vacant post, requested compensation for the material and nonmaterial damage he had suffered through not having been recruited as a result of the initial findings of physical unfitness.

On 16 September 1992 the Commission extended the validity of the list of suitable candidates in relation to the applicant.

By a complaint lodged on 21 December 1992, the applicant challenged the legality both of the refusal to recruit him following the findings of physical unfitness and of the decision of 16 September 1992. He also claimed payment of the remuneration to which he would have been entitled had he been recruited to the post of librarian and archivist and BFR 100000 in compensation for material and nonmaterial damage.

That complaint was rejected by letter of 26 April 1993, and the applicant brought this action on 21 July 1993.

The claim for annulment of the decision extending the validity of the list of suitable candidates in relation to the applicant

Although the applicant is not a member of the Community staff, he has the capacity to bring proceedings by virtue of Article 179 of the EC Treaty and Articles 90 and 91 of the Staff Regulations, since, as a successful candidate in an open competition who has been denied a post, he claims die status of an official and thus acquires, in accordance with Article 90(1) of the Staff Regulations, die status of a person to whom diose regulations apply (paragraph 21).

See: T-37/93 Stagakis v Parliament [1994] ECRSC II-451, para. 16

The existence of an act adversely affecting an official, within the meaning of Articles 90(2) and 91(1) of the Staff Regulations, is an essential precondition for die admissibility of any action for annulment brought by an official against an institution, die only acts which adversely affect an official being diose which are capable of directly affecting his legal position (paragraph 22).

See: T-510/93 Obst v Commission [1994] ECRSC II-461, para. 22

Since die contested decision extended die validity of die list of suitable candidates in relation to die applicant, opened new recruitment possibilities for him, and could not prejudice his rights, it did not adversely affect him. The applicant does not therefore have sufficient interest in challenging the contested decision, and die application for annulment is inadmissible (paragraphs 23 and 24).

The claim for damages

Admissibility

Where an official wishes to bring an action for damages against his employing institution, the pre-litigation procedure required under the Staff Regulations varies according to whether the damage for which compensation is sought has been caused by an act adversely affecting an official within the meaning of Article 90(2) of the Staff Regulations, or has been caused by conduct that is not in the nature of a decision. In the first case, the admissibility of the action for compensation is subject to the condition that the person concerned should have submitted to the appointing authority, within the prescribed period, a complaint against the act which caused the damage and to the condition that he should have brought the action within three months of the rejection of his complaint. In the second case, on the other hand, the administrative procedure which has to precede the action for damages is in two stages, namely a request first, followed by a complaint against the express or implied rejection of that request (paragraph 30).

See: T-94/92 X v Commission [1994] ECRSC II-481, para. 29

The Court finds that the latter procedure, which is applicable because no decision was made in relation to the post for which the applicant had initially been selected, has been complied with in this case. This action for damages is therefore admissible, having been brought within the time-limit prescribed by the Staff Regulations, despite the Commission's allegations to the contrary (paragraphs 32 and 37).

Having realized on 12 May 1992, at the time he became aware of the finding of ‘conditional’ fitness, that the initial findings of unfitness had cost him his recruitment chances, the applicant submitted a request for compensation on 27 May 1992, followed on 21 December 1992 by a complaint against the decision of 16 September 1992. Although that complaint does not refer directly to the request for compensation, it does substantially envisage the implicit rejection of that request by the decision of 16 September 1992, bearing in mind that the request and the complaint must be interpreted and understood by the administration with all the care that a large and well-equipped organization owes to those having dealings with it, including members of its staff. In any event, an implied decision rejecting the request for compensation took place on 27 September 1992 (paragraphs 34 and 36).

See: 54/77 Herpels v Commission [1978] ECR 585, para. 47

Substance

The purpose of the medical examination provided for in Article 33 of the Staff Regulations is to enable the institution concerned to determine whether, from the point of view of his health, the candidate is capable of fulfilling all the obligations which are likely to be his, having regard to the nature of those duties. The Court notes that, regarding that determination, the Staff Regulations refer the assessment of all questions of a medical nature to medical officers and, where necessary, to the medical committee. The Court's power of judicial review cannot therefore extend to medical appraisals in the strict sense, which must be considered definitive, provided the conditions in which they are made are not irregular. On the other hand, judicial review may extend to the regularity of the procedure followed at the medical examination, especially where reference is made to the medical committee, and also to the regularity of the opinions issued, in order to determine whether the reasons given for those opinions enable the reader to assess the considerations on which their conclusions were based and whether a comprehensible link has been established between the medical findings they contain and the conclusions which they reach (paragraphs 46 and 47).

See: T-165/89 Plug v Commission [1992] ECR II-367, para. 75

Although the applicant's health showed no disorders likely to prevent him from fulfilling all the obligations he was likely to encounter in the performance of his duties, the medical committee nevertheless declared him unfit on the ground that the progression of his infection was not complete. Whilst it is possible to base a finding of unfitness on a medically-justified prognosis of future disorders capable of jeopardizing the normal performance of those duties within the foreseeable future, that does not apply in the present case; the medical committee withdrew its finding of unfitness not because of any development in the applicant's health, which remained stable, but after a reexamination of the situation with regard to his hepatological balance in particular and after the issuing of an opinion by an independent doctor. The two findings of physical unfitness issued in May 1991 are therefore vitiated by a manifest error of assessment (paragraphs 48 to 50).

See: X v Commission, cited above, para. 45

Since the applicant would have been recruited to the post for which he had been selected, had he not been declared physically unfit, the erroneous medical opinions have deprived him of a recruitment opportunity. Moreover, by filling the post before the medical committee made its finding of ‘conditional’ fitness or, at any rate, by failing — contrary to the assurance it gave — to make any decision as to the applicant's recruitment which was capable of being challenged, the Commission has deprived him of all possibility of being recruited (paragraph 53).

Since the loss of an opportunity constitutes reparable damage, the Court considers, ex aequo et bono, that damages of BFR 500000 are appropriate (paragraphs 54 and 55).

See: T-13/92 Moat v Commission [1993] ECR II-287

Operative part;

1.	The Commission is ordered to pay the applicant damages of BFR 500000.

2.	The remainder of the application is dismissed.