61980J0280

1 . OFFICIALS - PROMOTION - DISCRETION OF THE APPOINTING AUTHORITY - REVIEW BY THE COURT - LIMITS

( STAFF REGULATIONS OF OFFICIALS , ART . 45 )

2 . OFFICIALS - EMPLOYMENT - POSTS IN GRADES C 3/C 2 - REQUIREMENT OF SHORTHAND PROFICIENCY - PERMISSIBILITY

( STAFF REGULATIONS OF OFFICIALS , ANNEX I )

3 . OFFICIALS - PROMOTION - CONDITION - SHORTHAND PROFICIENCY - TYPIST APPOINTED TO A POST FOR WHICH THE FIRST WORKING LANGUAGE IS NOT THE MOTHER TONGUE ( A NON-COMMUNITY LANGUAGE ) - OBLIGATION TO TAKE INTO ACCOUNT SHORTHAND SKILLS IN MOTHER TONGUE - ABSENCE - PRINCIPLE OF EQUALITY OF TREATMENT - LACK OF RELEVANCE

( STAFF REGULATIONS OF OFFICIALS , ART . 45 )

1 . IN ORDER TO EVALUATE THE INTERESTS OF THE SERVICE AND THE MERITS TO BE TAKEN INTO ACCOUNT IN CONNECTION WITH THE DECISION ON PROMOTION PROVIDED FOR IN ARTICLE 45 OF THE STAFF REGULATIONS , THE APPOINTING AUTHORITY HAS A WIDE DISCRETION AND IN THAT RESPECT THE COURT ' S REVIEW MUST BE CONFINED TO THE QUESTION WHETHER , REGARD BEING HAD TO THE BASES AND PROCEDURES AVAILABLE TO THE ADMINISTRATION FOR ITS ASSESSMENT , IT HAS REMAINED WITHIN THE PROPER BOUNDS AND HAS NOT USED ITS AUTHORITY IN A MANIFESTLY INCORRECT MANNER .

2 . THE PRINCIPLE THAT KNOWLEDGE OF SHORTHAND IS REQUIRED FOR POSTS IN GRADES C 3/C 2 WHICH ARE DEFINED IN ANNEX I TO THE STAFF REGULATIONS AS POSTS OF SECRETARIES/SHORTHAND TYPISTS IS NOT OPEN TO CRITICISM .

3 . HAVING ONCE AGREED TO BE ASSIGNED TO A POST FOR WHICH THE FIRST WORKING LANGUAGE IS NOT THE MOTHER TONGUE , AN OFFICIAL WHO IS A TYPIST , IN PARTICULAR ONE WHO IS NOT A NATIONAL OF A MEMBER STATE , MAY NOT SEEK TO RELY ON THE PRINCIPLE OF EQUALITY OF TREATMENT TO HAVE THE MOTHER TONGUE TAKEN INTO ACCOUNT INSTEAD OF THAT FIRST WORKING LANGUAGE FOR THE PURPOSE OF THE ASSESSMENT OF SHORTHAND SKILLS IN CONNECTION WITH PROMOTION PROCEDURE .

IN CASE 280/80

ANNE-LISE D ' ALOYA , NEE BAKKE , AN OFFICIAL IN THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , 16 AVENUE DES MESANGES , BRUSSELS , REPRESENTED BY EDMOND LEBRUN OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER OF THE LUXEMBOURG BAR , 83 BOULEVARD GRANDE-DUCHESSE-CHARLOTTE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY JOHN CARBERY , AN ADVISER IN THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT OF THE COUNCIL , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG IN THE OFFICE OF DOUGLAS FONTAINE , HEAD OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 100 BOULEVARD KONRAD-ADENAUER ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF A DECISION REJECTING A REQUEST THAT THE PROCEDURE FOR THE APPLICANT ' S PROMOTION BE REOPENED ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 30 DECEMBER 1980 ANNE-LISE D ' ALOYA , A COUNCIL OFFICIAL IN GRADE C 4 , BROUGHT AN ACTION SEEKING ANNULMENT OF THE DECISION REJECTING HER REQUEST THAT THE PROCEDURE FOR PROMOTION TO GRADE C 3 ( POST OF SECRETARY/SHORTHAND TYPIST ) FOR THE 1978 SESSION , OR , AT LEAST , THE 1979 SESSION , SHOULD BE REOPENED WITH RESPECT TO HER .

2 THE DUTIES CORRESPONDING TO GRADE C 3/C 2 ( SECRETARY/SHORTHAND TYPIST ) ARE DESCRIBED IN A DECISION TAKEN BY THE COUNCIL PURSUANT TO ARTICLE 5 ( 4 ) OF AND ANNEX I TO THE STAFF REGULATIONS OF OFFICIALS , AS BEING THOSE OF AN ' ' OFFICIAL CARRYING OUT SHORTHAND-TYPING AND SECRETARIAL DUTIES ' ' . THE STAFF OF THE COUNCIL WAS INFORMED , BY STAFF NOTE NO 7/79 OF 17 JANUARY 1979 , THAT PROMOTION OF AN OFFICIAL CLASSIFIED AS A TYPIST IN GRADE C 4 TO GRADE C 3 IN THE HIGHER CAREER BRACKET WAS POSSIBLE ONLY IF THE PERSON CONCERNED HAD GIVEN PRIOR EVIDENCE OF EXPERTISE IN SHORTHAND . BY STAFF NOTE NO 184/79 OF 26 SEPTEMBER 1979 IT WAS STATED THAT FROM THEN ON THOSE WHO WISHED TO DO SO COULD PROVE THAT SKILL BY PASSING A SHORTHAND TEST USING A TEXT DICTATED AT A SPEED OF 150 SYLLABLES PER MINUTE FOR THREE MINUTES , ORGANIZED EITHER WITHIN THE FRAMEWORK OF VOCATIONAL TRAINING OR AS PART OF A RECRUITMENT COMPETITION , OR BY PRODUCTION OF A CERTIFICATE ISSUED BY AN OUTSIDE INSTITUTION GIVING CLEAR DETAILS OF THE KNOWLEDGE AND SKILLS TO WHICH IT REFERRED , WITH PARTICULAR REGARD TO THE SPEED MENTIONED ABOVE .

3 THE APPLICANT IS OF NORWEGIAN NATIONALITY AND MOTHER TONGUE . SHE ENTERED THE SERVICE OF THE COUNCIL ON 1 SEPTEMBER 1972 AS A NORWEGIAN-LANGUAGE TYPIST AND A MEMBER OF THE AUXILIARY STAFF . ON 1 AUGUST 1973 , AFTER TAKING PART IN A COMPETITION FOR THE RECRUITMENT OF ENGLISH-LANGUAGE TYPISTS , SHE BECAME AN ENGLISH-LANGUAGE TYPIST , ESTABLISHED IN GRADE C 4 . IT APPEARS FROM HER PERIODIC REPORT THAT , AS PART OF HER DUTIES , SHE DOES SHORTHAND WORK IN ENGLISH AND FRENCH AND SOMETIMES WORKS IN DANISH , GERMAN AND ITALIAN . ACCORDING TO THAT REPORT HER SUPERIORS REGARD HER AS ' ' A PARTICULARLY GIFTED SECRETARY WHOSE KNOWLEDGE AND SKILL ARE OUTSTANDING ' ' .

4 IN 1979 THE APPLICANT SUBMITTED A CERTIFICATE FROM A NORWEGIAN SCHOOL DATED 29 MARCH 1979 CERTIFYING THAT IN 1971 SHE HAD PASSED A SHORTHAND EXAMINATION IN NORWEGIAN AND ENGLISH AT A SPEED CORRESPONDING , ACCORDING TO THE APPLICANT , TO 150 SYLLABLES PER MINUTE IN NORWEGIAN AND 120 SYLLABLES PER MINUTE IN ENGLISH .

5 THE APPLICANT ' S NAME WAS NOT INCLUDED IN THE LISTS DRAWN UP AND PUBLISHED ON 16 MAY 1979 AND 17 JANUARY 1980 BY THE ADVISORY COMMITTEE ON PROMOTION MAKING PROPOSALS FOR PROMOTION FOR THE YEARS 1978 AND 1979 . SINCE THE DECISIONS AS TO PROMOTION WERE TAKEN ON THE BASIS OF THE REPORT OF THAT ADVISORY COMMITTEE THE APPLICANT WAS NOT PROMOTED .

6 ON 15 FEBRUARY 1980 THE APPLICANT SENT A MEMORANDUM REFERRING TO HER KNOWLEDGE OF SHORTHAND IN NORWEGIAN AND IN ENGLISH TO THE APPOINTING AUTHORITY OF THE COUNCIL , IN WHICH SHE REQUESTED THAT HER MERITS SHOULD BE RE-ASSESSED FOR THE PURPOSE OF PROMOTION WITH EFFECT FROM 1 JANUARY 1978 . THE SECRETARY-GENERAL OF THE COUNCIL TREATED THAT MEMORANDUM AS A REQUEST WITHIN THE MEANING OF ARTICLE 90 ( 1 ) OF THE STAFF REGULATIONS AND INFORMED THE APPLICANT ON 27 MARCH 1980 THAT HE WAS UNABLE TO ACCEDE TO THAT REQUEST SINCE NORWEGIAN COULD NOT BE TAKEN INTO ACCOUNT AND HER CERTIFIED SHORTHAND SPEED IN ENGLISH WAS LOWER THAN THE REQUIRED SPEED .

7 A COMPLAINT AGAINST THAT DECISION REJECTING HER REQUEST , LODGED BY THE APPLICANT ON 29 MAY 1980 IN ACCORDANCE WITH ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , RECEIVED NO REPLY , AND SHE THEREUPON INSTITUTED THESE PROCEEDINGS WITH A VIEW TO HAVING THE PROCEDURE FOR PROMOTION REOPENED .

8 IN THE THREE SUBMISSIONS ON WHICH SHE RELIES TO SUPPORT HER ACTION , THE APPLICANT MAINTAINS IN SUBSTANCE THAT THE COUNCIL SHOULD , FOR THE PURPOSE OF PROMOTION , HAVE REGARDED AS SUFFICIENT HER SHORTHAND SKILLS IN HER MOTHER TONGUE , IN WHICH HER SPEED CORRESPONDS TO 150 SYLLABLES PER MINUTE , OR AT LEAST IN ENGLISH , IN WHICH HER SPEED CORRESPONDS TO 120 SYLLABLES PER MINUTE , THE SPEED REQUIRED IN THE SHORTHAND TESTS ORGANIZED BY THE COUNCIL FOR THE PURPOSE OF VOCATIONAL TRAINING IN A FOREIGN LANGUAGE . IT IS OUT OF ALL PROPORTION TO PREVENT ANY FURTHER ADVANCEMENT IN HER CAREER ON THE BASIS OF A REQUIREMENT WHICH BEARS LITTLE RELATION TO THE INTERESTS OF THE SERVICE OR TO THE WORK ACTUALLY REQUIRED OF MANY SECRETARIES , SINCE IN PRACTICE SHORTHAND IS USED MAINLY IN ENGLISH AND IN FRENCH . MOREOVER , OTHER INSTITUTIONS LIMIT THEIR REQUIREMENT TO A SPEED OF 120 SYLLABLES PER MINUTE IN THE CANDIDATE ' S MOTHER TONGUE AND THE APPLICANT ACHIEVES THAT SPEED IN ENGLISH . FINALLY , THE APPLICANT REFERS TO THE EVIDENCE OF SEVERAL PEOPLE TO ESTABLISH THAT THE CERTIFICATE AS TO HER SHORTHAND SKILLS ISSUED BY THE NORWEGIAN SCHOOL WAS NOT IN THE FILE EXAMINED BY THE ADVISORY COMMITTEE ON PROMOTION FOR THE 1978 SESSION OR FOR THE 1979 SESSION .

9 THE COUNCIL CONTENDS THAT THE PRINCIPLE OF EQUALITY OF TREATMENT , AND ALSO THE COMMUNITY INSTITUTIONS ' RULES GOVERNING LANGUAGES PURSUANT TO ARTICLE 28 ( F ) OF THE STAFF REGULATIONS OF OFFICIALS , PREVENT IT FROM TAKING THE APPLICANT ' S KNOWLEDGE OF SHORTHAND IN NORWEGIAN INTO ACCOUNT , IN VIEW OF THE FACT THAT THE APPLICANT WAS APPOINTED FOLLOWING AN ENGLISH-LANGUAGE COMPETITION AND NORWEGIAN IS NEITHER AN OFFICIAL LANGUAGE NOR A WORKING LANGUAGE OF THE COMMUNITIES . IN ENGLISH THE APPLICANT DID NOT SATISFY THE REQUIREMENT OF 150 SYLLABLES PER MINUTE WHICH THE APPOINTING AUTHORITY WAS ENTITLED TO LAY DOWN . IN ITS REJOINDER , AND IN PARTICULAR DURING THE HEARING , THE COUNCIL ALSO REJECTED THE VIEW THAT THE CERTIFICATE FROM THE NORWEGIAN SCHOOL AS TO THE APPLICANT ' S ENGLISH-LANGUAGE SHORTHAND ABILITY DEMONSTRATES A LEVEL OF SKILL CORRESPONDING TO THE COUNCIL ' S STANDARDS , EVEN IN A FOREIGN LANGUAGE . THE COUNCIL FURTHER CONTENDS THAT THE CERTIFICATE IN QUESTION , WHICH THE APPLICANT DID NOT SUBMIT UNTIL AFTER THE ADVISORY COMMITTEE ON PROMOTION HAD STARTED ITS PROCEEDINGS FOR THE YEAR 1978 , WAS IN ANY CASE INCLUDED IN THE FILE EXAMINED BY THE COMMITTEE FOR THE YEAR 1979 .

10 IT SHOULD BE EMPHASIZED IN THE FIRST PLACE THAT IN ORDER TO EVALUATE THE INTERESTS OF THE SERVICE AND THE MERITS TO BE TAKEN INTO ACCOUNT IN CONNECTION WITH THE DECISION PROVIDED FOR IN ARTICLE 45 OF THE STAFF REGULATIONS , THE APPOINTING AUTHORITY HAS A WIDE DISCRETION AND THAT , IN THAT RESPECT , THE COURT ' S REVIEW MUST BE CONFINED TO THE QUESTION WHETHER , REGARD BEING HAD TO THE BASES AND PROCEDURES AVAILABLE TO THE ADMINISTRATION FOR ITS ASSESSMENT , IT REMAINED WITHIN THE PROPER BOUNDS AND DID NOT USE ITS AUTHORITY IN A MANIFESTLY INCORRECT MANNER .

11 IN THAT CONNECTION , THE PRINCIPLE THAT KNOWLEDGE OF SHORTHAND IS REQUIRED FOR POSTS IN GRADE C 3/C 2 WHICH ARE DEFINED IN ANNEX I TO THE STAFF REGULATIONS AS POSTS OF SECRETARIES/SHORTHAND TYPISTS IS NOT OPEN TO CRITICISM .

12 STAFF NOTE NO 184/79 OF 26 SEPTEMBER 1979 CONCERNING PROMOTION FROM GRADE C 4 TO GRADE C 3 STATES THAT THE REQUIRED SHORTHAND SPEED IS 150 SYLLABLES PER MINUTE AND PROVIDES FOR THREE POSSIBLE WAYS OF PROVING THAT SKILL . SUCH PROOF , WHICH IS ESSENTIAL FOR THE PURPOSES OF PROMOTION , MUST ACCORDING TO THE COMMUNICATION IN QUESTION BE PROVIDED ONLY IN THE MANNER SPECIFIED THEREIN , WHICH EXCLUDES ANY OTHER EVIDENCE OF THE REQUIRED SKILL .

13 STAFF NOTE NO 184/79 DOES NOT SPECIFY THE LANGUAGE IN WHICH OFFICIALS MAY OR MUST PROVE THEIR SHORTHAND SKILLS . IT IS TRUE THAT IN ANOTHER STAFF NOTE , NO 114/79 OF 29 MAY 1979 , CONCERNING THE SHORTHAND TESTS ORGANIZED WITHIN THE FRAMEWORK OF VOCATIONAL TRAINING , THE SPEED OF 150 SYLLABLES PER MINUTE WAS EXPRESSLY LAID DOWN FOR TESTS TAKEN IN THE CANDIDATE ' S MOTHER TONGUE . HOWEVER , IT IS WRONG TO INFER THEREFROM THAT IN STAFF NOTE NO 184/79 REGARDING PROMOTION THAT REQUIREMENT WAS LAID DOWN FOR THE OFFICIAL ' S MOTHER TONGUE WITHOUT REGARD TO THE LANGUAGE PRESENTED IN A COMPETITION BEFORE APPOINTMENT , WHICH IS DESCRIBED AS THE FIRST WORKING LANGUAGE IN THE DESCRIPTION OF THE POST WHICH THE OFFICIAL OCCUPIES , AND REGARDLESS OF WHETHER THAT LANGUAGE IS AN OFFICIAL LANGUAGE OF THE COMMUNITIES AND A WORKING LANGUAGE OF THE COUNCIL . HAVING ONCE AGREED TO BE ASSIGNED TO A POST FOR WHICH THE FIRST WORKING LANGUAGE IS NOT THE MOTHER TONGUE , AN OFFICIAL WHO IS A TYPIST , IN PARTICULAR ONE WHO IS NOT A NATIONAL OF A MEMBER STATE , MAY NOT SEEK TO RELY ON THE PRINCIPLE OF EQUALITY OF TREATMENT TO HAVE THE MOTHER TONGUE TAKEN INTO ACCOUNT INSTEAD OF THAT FIRST WORKING LANGUAGE FOR THE PURPOSE OF THE ASSESSMENT OF SHORTHAND SKILLS IN ACCORDANCE WITH STAFF NOTE NO 184/79 .

14 THE VARIOUS ITEMS IN THE APPLICANT ' S FILE WERE NOT SUFFICIENT TO INDICATE THAT SHE HAD PROVED HER SHORTHAND SKILL IN HER FIRST LANGUAGE , AS INDICATED ABOVE . IN PARTICULAR , THE CERTIFICATE FROM THE NORWEGIAN SCHOOL WHERE THE APPLICANT HAD BEEN TRAINED COULD NOT BE TAKEN INTO CONSIDERATION FOR THAT PURPOSE SINCE IT DID NOT ESTABLISH THAT THE APPLICANT COULD TAKE SHORTHAND AT A SPEED CORRESPONDING TO 150 SYLLABLES PER MINUTE IN HER FIRST WORKING LANGUAGE , ENGLISH . THE QUESTION WHETHER THAT CERTIFICATE WAS OR WAS NOT IN THE FILE EXAMINED BY THE ADVISORY COMMITTEE ON PROMOTION DURING ITS PROCEEDINGS IN RESPECT OF 1978 AND 1979 IS THEREFORE WITHOUT RELEVANCE TO THE DECISION TO BE MADE IN THIS CASE SINCE IT IS ESTABLISHED THAT IT COULD HAVE NO BEARING ON THE COMMITTEE ' S ASSESSMENT IN ACCORDANCE WITH THE CRITERIA LAID DOWN IN STAFF NOTE NO 184/79 .

15 IT FOLLOWS THAT THE ADVISORY COMMITTEE ON PROMOTION AND THE APPOINTING AUTHORITY CORRECTLY ASSESSED THE APPLICANT ' S SHORTHAND SKILLS HAVING REGARD TO THE CRITERIA LAID DOWN IN STAFF NOTE NO 184/79 .

16 HOWEVER , THE CRITERIA LAID DOWN IN STAFF NOTE NO 184/79 MAY APPEAR TO BE INFLEXIBLE IN CERTAIN RESPECTS AND , AT LEAST WITH REGARD TO CERTAIN OFFICIALS , THEY BEAR LITTLE RELATIONSHIP TO THE ACTUAL WORK TO BE DONE AND THE MERITS OF THE PERSONS CONCERNED . IN PARTICULAR , THE NOTE MAKES NO PROVISION FOR THE POSSIBILITY OF RELIANCE ON OTHER MERITS TO COMPENSATE FOR THE ABSENCE OF PROVED SHORTHAND SKILL AT THE REQUIRED SPEED IN THE FIRST WORKING LANGUAGE OR OF TAKING INTO ACCOUNT KNOWLEDGE OF SHORTHAND IN OTHER LANGUAGES , EVEN WHERE THAT KNOWLEDGE IS ACTUALLY USED IN PRACTICE AND IS RECORDED IN THE PERIODIC REPORTS .

17 NEVERTHELESS , THERE ARE NO GROUNDS FOR CONSIDERING THAT , WHEN DRAWING UP STAFF NOTE NO 184/79 , THE APPOINTING AUTHORITY EXCEEDED THE LIMITS OF ITS DISCRETION IN THAT FIELD . IT IS FOR THE ADMINISTRATION TO DETERMINE ITS CRITERIA FOR SELECTION IN THE EXERCISE OF ITS DISCRETION , HAVING REGARD TO THE EXIGENCIES OF THE RATIONAL ORGANIZATION OF ITS VARIOUS DEPARTMENTS AND THERE IS NOTHING TO PREVENT IT FROM LAYING DOWN FOR THAT PURPOSE MORE RIGOROUS CRITERIA THAN THOSE ADOPTED BY OTHER COMMUNITY INSTITUTIONS . THE COURT IS NOT EMPOWERED TO SUBSTITUTE ITS ASSESSMENT FOR THAT OF THE ADMINISTRATION , NOR MAY IT , IN PARTICULAR , AMEND OR SUPPLEMENT THE CRITERIA LAID DOWN IN STAFF NOTE NO 184/79 .

18 BY APPLYING THE CRITERIA THUS DETERMINED TO THE APPLICANT ' S CASE AND BY TAKING THE VIEW THAT SHE SHOULD NOT BE PROMOTED WITHIN THE FRAMEWORK OF THE PROMOTIONS FOR THE YEARS 1978 AND 1979 ON THE GROUND THAT SHE DID NOT SATISFY THE CONDITIONS LAID DOWN IN THE NOTE IN QUESTION , THE APPOINTING AUTHORITY DID NOT USE ITS DISCRETION IN A MANIFESTLY INCORRECT WAY .

19 THE APPLICATION MUST THEREFORE BE DISMISSED AS UNFOUNDED .

20 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 70 OF THOSE RULES COSTS INCURRED BY THE INSTITUTIONS IN PROCEEDINGS BY SERVANTS OF THE COMMUNITIES ARE TO BE BORNE BY THE INSTITUTIONS .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PARTIES TO PAY THEIR OWN COSTS .