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Cite as: [1998] EUECJ C-316/97P

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JUDGMENT OF THE COURT (First Chamber)

19 November 1998 (1)

(Appeal - Officials - Sick leave - Medical certificate - Medical officer's examination - Findings at variance with the medical certificate - Obligation to state reasons - Rights of the defence)

In Case C-316/97 P,

European Parliament, represented by Manfred Peter, Head of Division, Legal Service, and Antonio Caiola, of its Legal Service, acting as Agents, with an address for service at the General Secretariat of the European Parliament, Kirchberg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities in Case T-36/96 Gaspari v Parliament [1997] ECR-SC II-595, seeking to have that judgment set aside,

the other party to the proceedings being:

Giuliana Gaspari, an official of the European Parliament, represented by Jean-Noël Louis, Thierry Demaseure, Ariane Tornel and Françoise Parmentier, of the Brussels Bar, with an address for service in Luxembourg at the offices of Fiduciaire Myson SARL, 30 Rue de Cessange,

the applicant at first instance,

THE COURT (First Chamber),

composed of: P. Jann, President of the Chamber, L. Sevón and M. Wathelet (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 18 June 1998,

after hearing the Opinion of the Advocate General at the sitting on 14 July 1998,

gives the following

Judgment

By application received at the Registry of the Court of Justice on 12 September 1997 the European Parliament brought an appeal under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 10 July 1997 in Case T-36/96 Gaspari v Parliament [1997] ECR-SC II-595 (hereinafter 'the contested judgment') annulling the decision of 22 May 1995 by which the Parliament treated Mrs Gaspari's absence on 5 May 1995 as irregular and deducted one day from her annual leave and the decision of 9 August 1995 by which the Parliament confirmed that decision.

In the contested judgment the Court of First Instance made the following findings:

'1 The applicant, an official in Grade B 2 in the Parliament, assigned to the Directorate-General for Sessional Services (DG I) in Luxembourg, sent to the defendant a certificate of incapacity for work from her attending medical practitioner dated 3 May 1995 in respect of the period from Wednesday 3 May to Friday 5 May 1995 inclusive.

2 On 4 May 1995 Dr Broutchoux, the defendant institution's medical officer in Luxembourg, went to the applicant's home to examine her.

3 Following that examination he informed her that he considered her fit to take up her duties again on the following day, Friday 5 May 1995.

4 According to the defendant, the medical officer tried in vain to contact the applicant's attending medical practitioner by telephone following the visit.
The applicant disputes that statement and claims that she telephoned her doctor after that visit.

5 She did not resume her duties until Monday 8 May 1995.

6 On that same day she sent a note to the defendant institution's Director-General of Personnel, the Budget and Finance objecting to the way in which the institution's medical officer had treated her.

7 By letter of 22 May 1995 (hereinafter "the contested decision"), the Parliament's Head of Personnel informed her, first, that her absence on 5 May 1995 was being treated as irregular, since its medical officer had informed her that she was fit to take up her duties again on that date, and second, that that day of absence would be deducted from her annual leave pursuant to Article 60 of the Staff Regulations of Officials of the European Communities (hereinafter "the Staff Regulations").

8 By letter dated 9 August 1995 he confirmed that decision.'

Under the first and second subparagraphs of Article 59(1) of the Staff Regulations,

'An official who provides evidence of incapacity to perform his duties because of sickness or accident shall automatically be entitled to sick-leave.

The official concerned shall notify his institution of his incapacity, as soon as possible and at the same time state his present address. He shall produce a medical certificate if he is absent for more than three days. He may be required to undergo a medical examination arranged by the institution.'

Article 60 of the Staff Regulations provides:

'Except in cases of sickness or accident, an official may not be absent without prior permission from his immediate superior. Without prejudice to any disciplinary measures that may apply, any unauthorised absence which is duly established shall be deducted from the annual leave of the official concerned. If he has used up his annual leave, he shall forfeit his remuneration for an equivalent period.'

On 21 August 1995 Mrs Gaspari lodged a complaint against the decision of 22 May 1995, in which she claimed, first, that in absenting herself on Friday 5 May 1995 she had merely followed to the letter the guidance given by her doctor and, second, that the observations of the medical officer (whom her attending medical practitioner 'would really like to meet') were baseless since he had never seen her before and had used methods which she described as 'partisan'.

By decision of 13 December 1995 the European Parliament rejected that complaint.

In those circumstances, by application lodged at the Registry of the Court of First Instance on 14 March 1996, Mrs Gaspari brought an action against the decisions of 22 May and 9 August 1995 in which the European Parliament treated her absence of 5 May 1995 as irregular and deducted a day from her annual leave.

The contested judgment

In support of her application, Mrs Gaspari put forward three pleas in law, alleging infringement of Article 25 of the Staff Regulations, infringement of Article 59 of the Staff Regulations and the commission of a manifest error of appraisal.

According to the second paragraph of Article 25 of the Staff Regulations:

'Any decision relating to a specific individual which is taken under these Staff Regulations shall at once be communicated in writing to the official concerned. Any decision adversely affecting an official shall state the grounds on which it is based.'

However, taking the view that Mrs Gaspari's arguments in support of her first plea were in fact intended also to demonstrate a breach of her rights of defence, in that, despite her request to that effect, her attending medical practitioner had not received the report from the medical officer on which the contested decision was based, the Court of First Instance expressed that plea in law in different terms on the basis that it alleged not only a breach of the obligation to state reasons but also a breach of her rights of defence (paragraph 19 of the contested judgment).

Only the first plea in law, thus supplemented, was examined by the Court of First Instance.

The Court of First Instance took the view that, whilst it was true that the act adversely affecting the official was not the report drawn up by the medical officer following his visit but the administrative decision treating her absence as irregular and deducting it from her annual leave,

'since the finding that the absence was irregular was based on the results of the medical examination referred to in the second subparagraph of Article 59(1) of the Staff Regulations, the medical officer's report constitutes the sole basis of the administrative decision at issue. In order to be well founded, any such decision should follow logically from the conclusion of the medical officer that the official concerned was fit for work during the absence at issue. That conclusion must also follow logically from the findings made during the examination' (paragraph 27).

From this the Court of First Instance inferred that,

'in order to be in a position to ascertain the grounds of the administrative decision at issue and thus properly assess its merits, the official concerned must, if he so requests, be granted access to the medical officer's report' (paragraph 28).

The Court of First Instance continued:

'30 In this case, the medical officer's report was not disclosed to the applicant although she sought such disclosure in her complaint. In those circumstances, since the grounds of the contested decision consisted merely of a reference to the finding that the medical officer had informed the applicant that he considered her fit to resume her duties on 5 May 1995 and to the fact that she did not actually do so until 8 May 1995, that statement of reasons was merely formal and therefore insufficient to allow the applicant to assess its merits.

31 It follows that the applicant, despite her request to that effect, was not in a position at any time during the pre-litigation procedure to ascertain, either direct or through her attending medical practitioner, the precise medical reasons on which the decision taken against her was based or, therefore, to state her views on the findings and conclusions of the medical officer and, if need be, contest them.

32 The principle of respect for the rights of the defence is a fundamental principle of Community law which must be observed in any procedure which is likely to result in an act adversely affecting a person, even if there are no rules governing the procedure concerned.

33 Applied to the procedure for the medical examination referred to in the second subparagraph of Article 59(1) of the Staff Regulations, that principle requires that the person concerned, assisted if need be by his attending medical practitioner, should be in a position to make his views properly known concerning the conclusions of the medical examination and contest the merits thereof (Case T-169/95 Quijano v Commission [1997] ECR II-273, paragraph 44). Since the person concerned is unable properly to contest the merits of such conclusions without being apprised of the medical findings on which they are based, that principle requires that the person concerned be in a position to make his views known on the entire report of the medical officer.

34 In this case, the possibility cannot be ruled out that the defendant would have taken a different decision if the applicant had been able to give her views on the medical officer's report. Therefore, the plea alleging breach of the applicant's rights of defence is well founded.

35 It follows that the first plea in annulment is well founded, in that, first, the decision is vitiated by a defective statement of reasons and, second, the applicant's rights of defence have been infringed.'

The appeal

In support of its appeal, the Parliament puts forward four pleas in law.

In the first place, the Parliament criticises the Court of First Instance for not declaring the application inadmissible on the ground that the claims set out in the complaint and the pleas put forward in the application did not coincide.

In that regard it need only be borne in mind that, according to settled case-law, although a complaint through administrative channels is an indispensable preliminary to bringing an action against an act adversely affecting a person to whom the Staff Regulations apply, it is not the function of that complaint to bind strictly and absolutely the judicial stage of the proceedings, provided that the claims submitted at the latter stage change neither the cause nor the object of the complaint (see, in particular, Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 9).

In this case, the action brought before the Court of First Instance was directed against the decisions which gave rise to the complaint and the pleas in law relied on in support of the claim for annulment were closely linked to the grounds of challenge in the complaint, as set out in paragraph 5 above.

The first plea must therefore be rejected as unfounded.

In its third plea, the Parliament charges the Court of First Instance with infringing Article 48(2) of its Rules of Procedure by upholding the plea relating to breach of the rights of the defence, which was raised by Mrs Gaspari only in her reply.

In that regard, it must be observed that the Court of First Instance found, in paragraph 19 of the contested judgment, that 'notwithstanding the wording of the first plea in law, which refers only to Article 25 of the Staff Regulations', Mrs Gaspari's arguments in support of this plea 'are in fact intended to show also that her rights of defence were infringed in that, despite her request to that effect, her attending medical practitioner did not receive the report of the medical officer on which the contested decision is based'. Accordingly, the plea was not new but was properly expressed in different terms by the Court of First Instance.

The third plea must therefore be rejected as unfounded.

In its second and fourth pleas, which it is appropriate to deal with together, the Parliament criticises the Court of First Instance for erring in law by considering,
first, that the decision of 22 May 1995 was vitiated by a defective statement of reasons and, second, that Mrs Gaspari's rights of defence had been infringed by the Parliament.

The Parliament considers that the contested decision refers expressly to the results of the medical examination carried out, under Article 59(1) of the Staff Regulations, during a visit to Mrs Gaspari's home on 4 May 1995. The decision thus contains a statement of reasons in the form of the medical officer's assessment that Mrs Gaspari was fit to take up her duties again, an assessment of which she became aware on completion of that examination.

The Parliament adds that the administration enjoys no discretion regarding its response to the results of a medical examination carried out at an official's home: it could only take formal notice of the result by adopting the administrative decisions provided for by the Staff Regulations, which provide for no consultation of the official's attending medical practitioner and do not, for such matters, require a medical committee to be established in the event of a dispute. The only remedy available to an official who contests the unfavourable result of a medical examination is to request a further medical examination or to submit another certificate issued by the attending medical practitioner or by another doctor confirming the former's diagnosis. In this case neither of those steps was taken by Mrs Gaspari, who merely challenged the medical findings without adducing any evidence in support.

Regard must be had to the settled case-law of the Court of Justice according to which the purpose of the statement of the reasons on which a decision adversely affecting an official is based, required by the second paragraph of Article 25 of the Staff Regulations, is to enable the Community judicature to review the legality of the decision and to provide the person concerned with details sufficient to allow him to ascertain whether or not the decision is well founded (see, in particular, Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22, and Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 26). The requirement of a statement of reasons must be assessed in the light of the circumstances of the case, in particular the measure at issue and the nature of the reasons relied on (Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63).

Where the decision concerned concludes, following a medical examination, that an official's absence is irregular and refers expressly to the assessment of the medical officer to the effect that the official is fit to resume his duties on the day following his visit, and the official fails to comply, it is not necessary for the institution, on its own initiative, to attach to that decision, or to reproduce in the statement of reasons for it, the medical assessments made by the medical officer after his visit to the official's home.

Since such assessments may be a matter of medical secrecy or be covered by other requirements of confidentiality, it is incumbent on the person concerned himself or his attending medical practitioner, if he contests the conclusion arrived at by the medical officer, to ask the institution to notify the medical officer's medical assessments to him or to arrange for them to be notified to him through its medical service.

Nevertheless, if, following such a request, the institution does not notify those assessments, the possibility cannot be excluded that such non-disclosure may cause the official to entertain doubts as to the merits of the decision. However, in this case, as is clear from the facts as found by the Court of First Instance, the medical officer's report (although requested by Mrs Gasperi at the stage of the administrative complaint) was in fact disclosed during the litigation procedure, thereby enabling the Court of First Instance of exercise its review of the legality of the contested decision and Mrs Gaspari to verify whether it was well founded. Accordingly, the circumstances are not such that it may be concluded that the concise nature of the statement of reasons for the contested decision, thus amplified during the procedure before the Court, justifies annulment of the decision.

It follows that the Court of First Instance erred in law in finding that the contested decisions were vitiated by a defective statement of reasons.

Nor was the Court of First Instance entitled to take the view that the Parliament, in adopting the contested decision, infringed Mrs Gaspari's rights of defence.

The contested judgment must therefore be set aside on the ground that the Court of First Instance erred in law in considering, first, that the contested decision was vitiated by a defective statement of reasons and, second, that Mrs Gaspari's rights of defence had been infringed by the Parliament.

The costs at first instance

It must be observed that, as far as the costs at first instance are concerned, account must be taken of the foregoing considerations regarding the conciseness of the statement of the reasons on which the contested decision was based (see, to that effect, Case 111/83 Picciolo v Parliament [1984] ECR 2323, paragraph 30, and Joined Cases 64/86, 71/86 to 73/86 and 78/86 Sergio and Others v Commission [1984] ECR 1399, paragraphs 56 and 57).

Whatever the substantive legality of the decision, Mrs Gaspari cannot be criticised for instituting proceedings before the Court of First Instance for review of its legality. It is therefore appropriate to uphold the decision of the Court of First Instance to order the Parliament to pay all the costs at first instance.

That consideration cannot of course affect the decision on the costs of the present proceedings, which are reserved.

Reference back to the Court of First Instance

Pursuant to the first paragraph of Article 54 of the EC Statute of the Court of Justice,

'If the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.'

On those grounds,

THE COURT (First Chamber)

hereby:

1. Annuls the judgment of the Court of First Instance of 10 July 1997 in Case T-36/96 Gaspari v Parliament to the extent to which it annulled, on the ground of breach of the obligation to state reasons and breach of the rights of the defence, the decision of 22 May 1995 by which the Parliament treated Mrs Gaspari's absence on 5 May 1995 as irregular and deducted one day from her annual leave and the decision of 9 August 1995 by which the Parliament confirmed that decision;

2. Refers the case back to the Court of First Instance for it to give judgment on the other pleas in law relied on by Mrs Gaspari at first instance;

3. Reserves the costs.

JannSevón Wathelet

Delivered in open court in Luxembourg on 19 November 1998.

R. Grass P. Jann

Registrar President of the First Chamber

1: Language of the case: French.