Mollet v. Commission of the European Communities (Case 75/77) European Court of Justice (First Chamber) [1978] ECR 897

13 April 1978

Holding :

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.

FACTS:

The applicant, a Netherlands national by naturalization, was up for a promotion which required a physical examination. According to the Commission's doctors, the physical examination indicated that she was unfit for that post.

The recruitment board subsequently notified the applicant that was unfit for the post. They added that if she wished to know more about her condition she should have her doctor contact the head of the Medical services. Yet the notice did not inform the applicant of her entitlement (which is not legally required) to have the medical assessment of her case submitted to review by a committee of three doctors.

When the applicant's doctor asked the Medical Service to provide him with the medical justification for its opinion the Medical Service, replied, that "I wish to inform you that we formed certain reservations concerning the recruitment of Miss Mollet and, as a result, her candidature was not accepted by the administration of the Commission of the European Communities. There are no medical factors to be communicated which require treatment".

The applicant subsequently submitted a complaint to the Commission which remained unanswered for more than four months.

The applicant then brought action before this court seeking compensation under the terms of Article 54 of the Conditions of Employment of Other Servants of the Communities and Article 25 of the Staff Regulations of Officials applies by analogy to auxiliary staff.

Opinion:

That reasoning is applicable mutatis mutandis to a decision refusing, on account of physical unfitness, to engage a candidate who has successfully taken part in the competitions or tests organized for the recruitment of auxiliary staff. Such a decision adversely affects that candidate and, therefore, on the basis of Article 54 of the Conditions of Employment of Other Servants, the reasons for it must be given. However, the duty to give reasons must be reconciled with the requirements of professional secrecy which generally leaves to the doctor to decide on whether to communicate the necessary information. The appointing authority must, therefore, confine itself to giving the reasons for a decision refusing an engagement on account of physical unfitness by means of a reference to the opinion of the Medical Service of the institution concerned, which was the case in this instance.

Nevertheless, the person concerned should have the right to request the necessary information from Medical Services through a doctor of her choice in order to assess the information by a third party. However a request through a private doctor must be submitted within a reasonable time before the end of the period within which a complaint may be submitted.

In short, the unlawful aspect of the contested decision lies in the procedure by which the declaration of unfitness and, subsequently, the refusal to engage Miss Mollet were put to her. Although that consideration justifies the annulment of the contested decisions it does allow it to be decided whether the applicant does or does not possess the requisite degree of fitness, only that the report on her fitness was drawn up under conditions which were unlawful and that it must be recommenced in accordance with the proper procedure.

The court then awarded damages.

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