JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

15 June 2011

Case T‑510/09 P

V

v

European Commission

(Appeal — Civil service — Recruitment — Refusal of appointment on grounds of failure to meet physical fitness requirements necessary for the performance of the functions — Duty of the Civil Service Tribunal to state reasons)

Appeal:      against the judgment of the European Union Civil Service Tribunal (First Chamber) of 21 October 2009 in Case F‑33/08 V v Commission [2009] ECR-SC I‑A‑1-403 and II‑A‑1-2159 seeking the annulment of that judgment.

Held:      The judgment of the European Union Civil Service Tribunal of 21 October 2009 in Case F‑33/08 V v Commission is annulled to the extent that the Civil Service Tribunal omitted to rule on a plea in law raised by Ms V at the hearing, alleging that the president of the medical committee was not enrolled in the Belgian Medical Association. The remainder of the appeal is dismissed. The action brought by Ms V before the Civil Service Tribunal in Case F‑33/08 is dismissed. Ms V is ordered to bear her own costs and those incurred by the European Commission in the present proceedings. The costs incurred at first instance, in the case which gave rise to the judgment in V v Commission, cited above, are to be borne in accordance with the ruling given in paragraphs 2 and 3 of the operative part thereof.

Summary

1.      Officials — Recruitment — Refusal to recruit on grounds of physical unfitness — Irregularity of the medical opinion of unfitness — Medical committee’s adoption of a final opinion on the basis of the irregular opinion — Unlawfulness

(Staff Regulations, Art. 33)

2.      Procedure — Measures of organisation of procedure — Application for production of a document — Verification of confidential nature — Not applicable where refusal is based on the confidential nature of documents in respect of the Tribunal

(Rules of Procedure of the Civil Service Tribunal, Art. 44(2))

3.      Appeals — Pleas in law — Inadequate statement of reasons — Reliance by the General Court on implied reasoning — Lawfulness — Limits — Obligation to rule on each alleged infringement of law

(Statute of the Court of Justice, Art. 36 and Annex I, Art. 7(1))

1.      An irregularity vitiating the negative medical opinion of an institution’s medical officer, drawn up following the pre-recruitment medical examination, could affect the lawfulness of the final opinion issued by the medical committee, consulted pursuant to Article 33 of the Staff Regulations, and of the decision not to recruit adopted on the basis of that final opinion.

Although the medical committee may, admittedly, carry out a full and impartial review of the candidate’s situation, it cannot legitimately be consulted unless the medical officer has issued a negative medical opinion which is lawful.

(see paras 51, 52)

See: T‑10/93 A v Commission [1994] ECR-SC I‑A‑119 and II‑387, para. 27

2.      In accordance with Article 44(2) of the Rules of Procedure of the Civil Service Tribunal, the latter may make a request, by way of order, for the production of allegedly confidential documents while also having to verify whether the party claiming that the documents are confidential is justified in opposing communication of them to the other party. The only possible response to a refusal to comply with an order is for the court to draw the appropriate inferences from that refusal in the decision closing the case, provided that it has exhausted all the instruments at its disposal to obtain production of the documents at issue.

It is clear from that provision that the confidential nature of certain information may not be directly relied on against the Civil Service Tribunal. The application of that provision necessarily means that the Civil Service Tribunal is apprised of the content of the information and examines its confidentiality, in order to decide whether it can be communicated to the other party.

In that respect, where an applicant, relying on the protection of his privacy, refuses to allow the content of medically confidential documents held by the defendant to be disclosed to the Civil Service Tribunal, the Tribunal cannot apply Article 44(2) of its Rules of Procedure, since that provision does not cover a situation in which a party relies on confidentiality against the Civil Service Tribunal in order to prevent documents, which the Tribunal nevertheless regards as necessary for the outcome of the proceedings, from being submitted to it.

(see paras 72-75)

See: T‑560/08 P Commission v Meierhofer [2010] ECR II‑1739, paras 68 to 74

3.      While the obligation of the Civil Service Tribunal to state reasons, pursuant to the first sentence of Article 36 and Article 7(1) of Annex I to the Statute of the Court of Justice, does not require the Civil Service Tribunal to respond in detail to every argument advanced by the parties, particularly where the arguments were not sufficiently clear and precise and were not based on detailed evidence, it does, at the very least, require it to examine all the infringements of law alleged before it. The Tribunal’s reasons may therefore be implicit, provided that they enable the person affected by a decision of the Tribunal to be informed of the reasons on which that decision is based and the appeal court to have sufficient information in order to exercise judicial review.

In that respect, a judgment of the Civil Service Tribunal must be annulled in so far as it does not deal with a plea in law discussed at the hearing before it, which constitutes a separate plea in law that does not relate to any of the pleas raised in the written submissions. If the record of the hearing does not set out the plea and the judgment makes no mention of it, the applicant will not be able to understand the reasons why the plea was excluded from the Civil Service Tribunal’s reasoning.

(see paras 83, 85-88)

See: C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, para. 72; judgment of 25 October 2007 in C‑167/06 P Komninou and Others v Commission, not published in the ECR, para. 2; C‑16/07 P Chetcuti v Commission [2008] ECR I‑7469, para. 87