X v Commission: ECJ 5 Oct 1994

(Judgment) 1. The right to respect for private life, which is embodied in Article 8 of the European Convention on Human Rights and which derives from the common constitutional traditions of the Member States, is one of the fundamental rights protected by the Community legal order. It includes in particular a person’ s right to keep his state of health secret.
2. Restrictions may be imposed on fundamental rights protected by the Community legal order, provided that they in fact correspond to objectives of general public interest and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right protected.
3. The pre-recruitment medical examination, provided for by Article 13 of the Conditions of Employment of other Servants, is designed to enable the institution concerned to determine whether a member of the temporary staff fulfils the requirements of Article 12(2)(d) as to physical fitness. However, although the pre-recruitment examination serves a legitimate interest of the institution, that interest does not justify the carrying out of a medical test against the will of the person concerned. Nevertheless, if the person concerned, after being properly informed, withholds his consent to a test which the medical officer of the institution considers necessary in order to evaluate his suitability for the post for which he has applied, the institution cannot be obliged to take the risk of recruiting him.
4. To interpret the provisions relating to the pre-recruitment medical examination of a member of the temporary staff as imposing an obligation to respect a refusal by the person concerned only in relation to a specific Aids screening test but as allowing any other tests to be carried out which might merely point to the possible presence of the Aids virus would impair the scope of the right to respect for private life. Observance of that right requires the refusal of the person concerned to be respected in its entirety. Where that person has expressly refused to undergo an Aids screening test, that right precludes the institution concerned from carrying out any test liable to point to, or establish, the existence of that illness.
The Court opined that the right to respect for private life, embodied in article 8, ‘includes in particular a person’s right to keep his state of health secret’.
C-404/92, [1994] EUECJ C-404/92P, [1995] IRLR 320, [1994] ECR I-4737
Cited by:
CitedThe Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

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Updated: 05 January 2021; Ref: scu.161019