Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

30 May 2018 (*)

(Civil service — Officials — Sick leave — Article 59(1) of the Staff Regulations — Internal rules on medical examinations in connection with absence from work on medical grounds and periodic medical examinations of persons claiming the invalidity allowance — Medical certificate — No doctor’s stamp or signature — Long-distance medical consultation via the internet — Refusal to accept)

In Case T‑98/17,

RT, official of the European Parliament, represented by C. Bernard-Glanz, lawyer,

v

European Parliament, represented by J. Steele and E. Taneva, acting as Agents,

APPLICATION under Article 270 TFEU seeking annulment of the decision of the Parliament of 30 June 2016 rejecting a document submitted by the applicant on 27 June 2016 as inadmissible as a medical certificate prescribing sick leave,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins (Rapporteur), President, R. Barents and J. Passer, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 8 February 2018,

gives the following

Judgment

 Regulatory framework and background to the dispute

1        Article 59(1) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) provides:

‘An official who provides evidence of being unable to carry out his duties by reason of illness or accident shall 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 current address. He shall produce a medical certificate if he is absent for more than three days. This certificate must be sent on the fifth day of absence at the latest, as evidenced by the date as postmarked. Failing this, and unless failure to send the certificate is due to reasons beyond his control, the official’s absence shall be considered as unauthorised.

...’

2        Article 2(6) of the Decision of the European Parliament laying down internal rules on medical examinations in connection with absence from work on medical grounds and periodic medical examinations of persons claiming the invalidity allowance (‘the Internal Rules’) reads as follows:

‘In order to be acceptable, the medical certificate must indicate legibly the surname and forename of the official, the name and contact details of the doctor issuing the certificate and the length of the period of absence. The official must send the certificate, with a note of his/her staff number, to the Medical Leave Service at the latest on the working day after the day on which it was issued, as evidenced by the postmark. If a legible copy of the medical certificate has been sent to the Medical Leave Service within this deadline, either by fax or as a scanned attachment to an email, the official shall be required to send or hand in the original no later than the day on which he/she returns to work.

Where appropriate, the appointing authority shall assess whether exceptional circumstances justify the late forwarding of the medical certificate.’

3        The applicant, RT, who is of [confidential] (1) nationality, has been an official of the Parliament since 2008. He has been assigned to the Directorate-General for Translation in Luxembourg (Luxembourg).

4        By email of 27 June 2016 with the subject heading ‘Sick Leave certificate’, the applicant forwarded to the Medical Leave Service of the Parliament a Word document bearing the same date drawn up by Dr X., a psychiatrist practising in Malta, on the latter’s headed notepaper (‘the document of 27 June 2016’). At the hearing, the applicant indicated, without being challenged by the Parliament, that that document had been emailed to him by Dr X. on the same day that the latter had drawn it up on his computer and that, in order not to lose time, he had then immediately forwarded it to the Medical Leave Service of the Parliament via email.

5        The document of 27 June 2016 bore the applicant’s forename, surname, and staff number, as well as the forename, surname, and full contact details of Dr X., but not his stamp or handwritten signature.

6        The document of 27 June 2016, which was addressed to ‘colleagues’ of Dr X. who are not otherwise identified, stated, inter alia, the following:

‘I understand that [the applicant] was asked to resume work on Friday 17^th June 2016 due to the fact that a family doctor told him that he had to address his anger and fear issues at work. Being collaborative by nature, he obliged and set himself a target to resume work as advised.

Unfortunately, last week, [the applicant] felt unwell and reported to the nurse at work. [The applicant] and I have been in touch since then, as we do on a regular basis via the web. He therefore updated me on all that [had] happened.

Going on my assessments, the clinical picture and based on the latest developments, may I kindly ask you to consider the following:

[The applicant] suffers from mixed anxiety and depression secondary to an alleged case of harassment at work. ...

The clinical scenario warrants ongoing time away from work whereby [the applicant] can continue to undergo cognitive behavioural therapy on a regular basis with the undersigned. ...

...

Although one can understand the doctor’s good intentions, I feel that [the applicant’s] return to work may have been somewhat premature. ...

I thus recommend a further 6 calendar months, starting from today. This period should allow him to recover completely. ...’

7        By registered letter of 30 June 2016, the Director of the Directorate for Management of Support and Social Services of the Parliament’s Directorate-General (DG) for Personnel, in his capacity as appointing authority (‘the appointing authority’), informed the applicant that the document of 27 June 2016, submitted as a medical certificate, was ‘inadmissible from a legal point of view’ and that, accordingly, the applicant’s days of absence from 27 June 2016 until his return to work would be considered as irregular and deducted from his annual leave (‘the decision of 30 June 2016’).

8        The appointing authority justified the decision of 30 June 2016 as follows:

‘In order to be acceptable the medical certificate has to be signed and stamped by a medical doctor. [The] Parliament does not accept medical certificates which are issued on the basis of phone conversations or long-distance consultations [via the] web, when the doctor is unable to examine the patient personally.’

9        On 4 July 2016 the applicant resumed work and submitted a document to the Medical Leave Service of the Parliament that was identical in all respects to the document of 27 June 2016, except for the fact that, unlike that document, it bore Dr X.’s stamp and handwritten signature. At the hearing, the applicant explained in that regard, without being challenged by the Parliament, that Dr X., immediately after emailing him the document of 27 June 2016, had printed out that document, signed it, stamped it, and sent it to him in Luxembourg by ordinary post.

10      On 7 July 2016 the appointing authority sent the applicant an email in which, having noted that he had not submitted the ‘signed and stamped medical document established by Dr [X.]’ until 4 July 2016, it stated that it was clear from examining that document that it was not, strictly speaking, a ‘medical certificate prescribing a certified sick leave period’. It indicated that that document did not correspond to the Maltese medical certificates prescribing sick leave usually received by the Parliament but was rather a medical report which ‘recommend[ed]’ that the applicant be placed on sick leave for a period of six months.

11      In its email, the appointing authority added that, in any event, the document concerned was not admissible as a medical certificate since it had been issued on the basis of long-distance consultations via the internet. In that regard, it stated, inter alia, the following:

‘All written rules applicable to [the] Parliament concerning acceptation requirements of sick leave certificates are indeed silent as regards documents which can be issued by the way of telemedicine. Confronted with both this silence and heterogeneity of national legal and ethical rules in the field of telemedicine, and also having in mind the equity of treatment, we apply our own rules in a strict sense, which implies that we only consider as valid the sick leave certificates issued after a physical consultation of the patient by a doctor.’

12      On 7 July 2016 the applicant submitted to the Medical Leave Service of the Parliament a medical certificate issued by a doctor practising in Luxembourg, placing him on sick leave from 7 July to 9 August 2016.

13      By letter of 18 July 2016 the appointing authority informed the applicant that his absences during the period from 27 June to 6 July 2016 were considered as irregular and that those days of absence would therefore be deducted from his remaining annual leave.

14      By email of 20 July 2016 the appointing authority informed the applicant that it had altered the end date of his period of irregular absence to 3 July 2016, since he had resumed work on 4 July 2016.

15      On 9 September 2016 the applicant lodged a complaint against the decision of 30 June 2016 pursuant to Article 90(2) of the Staff Regulations, requesting that the appointing authority withdraw that decision. He remarked that it was apparent from that decision, read in conjunction with the appointing authority’s email of 7 July 2016 (see paragraphs 10 and 11 above), that the appointing authority’s decision to reject the document drawn up by Dr X. as inadmissible as a medical certificate was based on three grounds, none of which — in his view — were well founded, namely the fact that that document (i) did not bear Dr X.’s stamp or signature, (ii) did not prescribe a period of sick leave, and (iii) had been issued following a long-distance medical consultation via the internet. In that complaint, the applicant also asked the appointing authority to pay him one symbolic euro as compensation for the non-material damage which he claimed to have suffered as a result of the decision of 30 June 2016.

16      By decision of 13 January 2017 the appointing authority, in the person of the Secretary-General of the Parliament, rejected the complaint as unfounded (‘the decision rejecting the complaint’). In the first place, the appointing authority argued that a medical certificate had to bear the stamp and signature of the doctor issuing it, which was not the case for the document of 27 June 2016. In the second place, the appointing authority noted that it was not clear from the language used in that document that Dr X. actually intended to certify that the applicant was unable to work, before emphasising that a medical certificate prescribing sick leave had to be drafted in unequivocal terms, ‘leaving no doubt as to the duration of the incapacity’. In the third place, the appointing authority referred to the fact that, according to the ‘existing rules’, only medical certificates issued by a doctor following a ‘face-to-face consultation’ with the patient were acceptable. Indeed, the Medical Council of Malta had confirmed that, under the relevant Maltese rules, a medical certificate prescribing sick leave could not be issued via telemedicine. Moreover, the appointing authority considered that the claim for compensation for the non-material damage allegedly suffered by the applicant was unfounded, on the ground, in essence, that the first condition for engaging the non-contractual liability of the European Union — the unlawfulness of the institution’s alleged conduct — was not satisfied.

 Procedure and forms of order sought

17      By application lodged at the Registry of the General Court on 10 February 2017, the applicant brought the present action.

18      On 28 June 2017 the General Court (Eighth Chamber) decided that a second exchange of pleadings was unnecessary. On 30 August 2017 it decided not to grant the applicant’s request to supplement the file in the case.

19      By way of a measure of organisation of procedure, adopted on the basis of Article 89(3)(d) of its Rules of Procedure, the General Court asked the Parliament to produce a copy of the document submitted to the Medical Leave Service of the Parliament by the applicant on 4 July 2016. The Parliament complied with that request within the prescribed period.

20      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure.

21      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 8 February 2018.

22      The applicant claims that the Court should:

–        annul the decision of 30 June 2016;

–        in so far as is necessary, annul the decision rejecting the complaint;

–        order the Parliament to pay the costs.

23      The Parliament contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

24      In support of the action, the applicant raises three pleas in law, alleging (i) infringement of Article 59 of the Staff Regulations and Article 2 of the Internal Rules, (ii) a manifest error of assessment and infringement of Article 59 of the Staff Regulations and Article 2 of the Internal Rules, and (iii) infringement of Article 59 of the Staff Regulations and Article 2 of the Internal Rules, failure to state reasons, and infringement of the principle of legal certainty.

25      It is appropriate to examine those three pleas in law — which concern, in essence, the merits of the reasons put forward by the appointing authority for rejecting the document of 27 June 2016 as inadmissible as a medical certificate prescribing sick leave — together.

 Arguments of the parties

26      In the first plea in law, the applicant claims that neither the Staff Regulations nor the Internal Rules provide that a medical certificate must bear the doctor’s stamp or signature in order to be admissible.

27      The Parliament contends that a medical certificate, whether it is the original or a copy, must bear the doctor’s stamp and signature, those elements being necessary to show the authenticity of the certificate and to render the person who signed and stamped it liable for its contents.

28      In the second plea in law, the applicant challenges the appointing authority’s finding that the document of 27 June 2016 is not, strictly speaking, ‘a medical certificate prescribing a certified sick leave period’. He argues that neither the Staff Regulations nor the Internal Rules specify the terminology that a practitioner should use when drawing up a medical certificate or the form that such a certificate should take. He adds that the document of 27 June 2016 is drafted in unequivocal terms, leaving no doubt as to the duration of his incapacity to work.

29      First, the Parliament asserts that it is apparent from the case-law that a medical certificate must highlight, conclusively and with sufficient precision, the incapacity to work of the person concerned. However, the document of 27 June 2016 reads, not like a medical certificate, but as if it is making recommendations and comments to other persons concerning the applicant’s state of health. Second, the Parliament refers to the fact that, in that same document, Dr X. fails to specify the ‘start and end dates’ of the period of absence from work.

30      In the third plea in law, the applicant challenges the appointing authority’s objection that the document of 27 June 2016 was issued following a long-distance medical consultation via the internet. There is, he submits, nothing in the Staff Regulations or the Internal Rules to indicate that a medical certificate issued in this way is inadmissible. Furthermore, the Parliament cannot argue on the basis of the rules of Maltese law since, in its dealings with its staff, the Parliament may apply only the Staff Regulations and the general implementing provisions giving effect thereto. The applicant also remarks that the Joint Sickness Insurance Scheme of the EU institutions provides for reimbursement in respect of consultations conducted via telemedicine. Lastly, he indicates that (i) he was suffering from a psychological problem, so that a physical examination was unnecessary, (ii) he needed to express himself in his mother tongue and there was no doctor who spoke that language in Luxembourg, (iii) Dr X. had known him for several years and was thus best equipped to understand him and to provide him with the necessary support, and (iv) he needed an urgent consultation.

31      The Parliament asserts that the lack of any reference to telemedicine in the Internal Rules does not automatically mean it is permissible to prescribe a period of absence from work following a consultation conducted on that basis. The appointing authority’s email of 7 July 2016 must be interpreted as meaning that, because the applicable rules make no mention of telemedicine and in view of the disparate nature of the relevant provisions of national law, the Administration applies the rules on the admissibility of medical certificates strictly. Furthermore, the Parliament maintains that reimbursement for a medical consultation and the admissibility of a medical certificate are ‘two unrelated issues governed by completely different conditions’, before stating that, in the absence of explicit provisions to the contrary, incapacity to work cannot be prescribed without a physical examination of the patient. Lastly, the Parliament recalls the Medical Council of Malta informing it of the fact that, under the rules in force in Malta, a medical certificate prescribing sick leave could not be issued following a consultation conducted via telemedicine.

 Findings of the Court

32      In the decision of 30 June 2016, the appointing authority puts forward two reasons for rejecting the document of 27 June 2016 as inadmissible as a medical certificate prescribing sick leave for the applicant. First, it invokes the fact that that document does not bear the doctor’s stamp or signature. Second, it refers to the fact that the Parliament does not accept medical certificates issued on the basis of a long-distance consultation, in particular via the internet, that is, without the doctor carrying out a physical examination of the patient.

33      In its email of 7 July 2016, the appointing authority provides an additional reason for rejecting the document of 27 June 2016, namely the fact that that document cannot be construed as a ‘medical certificate prescribing a certified sick leave period’.

34      It should be noted that the Parliament has not, at any time, called in question the applicant’s good faith, the genuineness of his health problems, or Dr X.’s integrity.

35      It must be stated that none of the three grounds relied on by the appointing authority can reasonably justify rejecting the document of 27 June 2016 as inadmissible as a medical certificate prescribing sick leave.

36      Thus, in the first place, it must be noted that, as is, incidentally, not disputed by the Parliament, neither the Staff Regulations nor the Internal Rules provide that, in order to be admissible, the medical certificate prescribing sick leave must bear the doctor’s stamp and signature. In that regard, it should be borne in mind that the only elements which, pursuant to Article 2(6) of the Internal Rules, must appear on such a certificate are the official’s surname and forename, the doctor’s name and contact details, and the length of the official’s period of absence. Those various elements are clearly included in the document of 27 June 2016.

37      In the second place, it must be pointed out that, as is moreover common ground between the parties, no provision is made in the Staff Regulations, the Internal Rules, or any other regulations applicable to the Parliament to the effect that a medical certificate prescribing sick leave is inadmissible when it has been issued following a long-distance consultation, in particular via the internet. In the same vein, it should be noted that the Parliament has yet to indicate a single existing internal rule stipulating that, in order to be admissible, such a medical certificate must have been drawn up following a physical examination of the person concerned by a doctor, despite its reference to the existence of such rules (see paragraphs 11, 16, and 31 above). As regards the fact that the Medical Council of Malta has stated that, according to the rules in force in Malta, a sick leave certificate may not be issued via telemedicine, it is irrelevant. Indeed, as the appointing authority itself notes, incidentally, in its email of 7 July 2016 (‘we apply our own rules in a strict sense’), the Parliament, in its dealings with its staff concerning periods of absence for sick leave, can only apply the rules deriving from the Staff Regulations and its internal provisions for implementing those regulations.

38      In the third place, it must be found that, contrary to the Parliament’s assertions, it is apparent from the document of 27 June 2016, in a way that is sufficiently precise and conclusive, that Dr X. is of the opinion that the applicant’s state of health means he is unable to work. In that regard, it is totally irrelevant that Dr X. uses the expression ‘I ... recommend’ rather than, for example, ‘I prescribe’, that that document is addressed to ‘colleagues’ of Dr X. who are otherwise unidentified (which may incidentally be understood as a reference to the medical officers of the institution), and that that document contains detailed observations regarding the applicant’s health problems. In this connection, it should be noted that the way in which a medical certificate prescribing sick leave must be presented and drafted is not specified in the Staff Regulations, the Internal Rules, or any other regulations applicable to the Parliament.

39      The document of 27 June 2016 also indicates with sufficient clarity and precision the period during which the applicant was unfit to work, since it refers to ‘a further 6 calendar months, starting from today’, namely from 27 June 2016, which is the date that appears at the top of the document. It must also be pointed out that, at the hearing, in response to a question put by the General Court, the Parliament eventually conceded that the start and end dates of the period of incapacity to work prescribed by Dr X. could be inferred from the document of 27 June 2016.

40      Having regard to all of the foregoing, and without it being necessary to give a specific ruling on the applicant’s head of claim made against the decision rejecting the complaint, as that decision does not have a different scope from the act in respect of which that complaint was lodged, namely the decision of 30 June 2016, the action must be upheld.

41      Accordingly, the decision of 30 June 2016 must be annulled.

 Costs

42      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, as the Parliament has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Annuls the decision of the European Parliament of 30 June 2016 rejecting the document submitted by RT on 27 June 2016 as inadmissible as a medical certificate prescribing sick leave;

2.      Orders the Parliament to pay the costs.

Delivered in open court in Luxembourg on 30 May 2018.

*      Language of the case: English.

1      Confidential data redacted.

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