Case Law: Case C-404/92 P, X v. Commission, October 5, 1994, [1994] ECR 1-4737

1 Colum. J. Eur. L. 332 (1995)

Eddy De Smijter. Assistant, Institute for European Law, Katholieke Universiteit Leuven.

Right to respect for private life; Repercussions of a refusal to undergo an HIV test; Breach of the right of secrecy as regards state of health

With a view to the possibility of being employed for a period of 6 months as a member of the Commission’s temporary staff, Mr. X was asked to undergo a clinical examination in accordance with the Conditions of Employment of Other Servants of the European Communities. During the clinical examination, conducted on March 15, 1989, Mr. X declined the suggestion of the medical service that he be screened for HIV antibodies. However, on the basis of the clinical examination, and the anamnesis drawn up on the basis of a questionnaire, the medical officer nevertheless ordered that Mr. X be given blood tests in order to determine, inter alia, his T4 and T8 lymphocyte counts (hereinafter “the T4/T8 test”). The combined results lead the medical officer to conclude that Mr. X was suffering from a significant immune deficiency possibly linked to the presence of the HIV virus. On that basis, the Commission informed Mr. X by a letter of June 6, 1989, that he did not meet the physical fitness requirements for recruitment to its staff.

On July 4, 1989, Mr. X brought an action for annulment of the Commission decision. By a judgment of September 18, 1992, the Court of First Instance dismissed the application, and Mr. X appealed to the Court of Justice. He claimed that his right to protection of private life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the EHRC”) had been infringed.