61986J0111

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1 . OFFICIALS - PROMOTION - STATEMENT OF REASONS - OBLIGATION - NONE

( STAFF REGULATIONS, ART . 45 )

2 . OFFICIALS - PROMOTION - DISCRETION OF THE ADMINISTRATION - JUDICIAL REVIEW - LIMITS

( STAFF REGULATIONS, ART . 45 )

3 . OFFICIALS - DUTY OF THE ADMINISTRATION TO HAVE REGARD TO THE INTERESTS OF THE EMPLOYEE - LIMITS - INTERESTS OF THE SERVICE

1 . THE APPOINTING AUTHORITY IS NOT REQUIRED TO GIVE REASONS FOR A DECISION ON PROMOTION EITHER TO THE OFFICIAL PROMOTED, SINCE HE CANNOT BE ADVERSELY AFFECTED BY THE DECISION, OR TO CANDIDATES WHO HAVE NOT BEEN PROMOTED, SINCE THEY MIGHT BE HARMED BY SUCH A STATEMENT OF REASONS .

2 . THE APPOINTING AUTHORITY HAS WIDE DISCRETION AS REGARDS PROMOTIONS AND THE COURT MUST RESTRICT ITS REVIEW TO CONSIDERATION OF THE QUESTION WHETHER THE APPOINTING AUTHORITY HAS USED ITS POWER IN A MANIFESTLY INCORRECT WAY .

3 . THE REQUIREMENTS OF THE DUTY TO HAVE REGARD TO THE INTERESTS OF THE EMPLOYEE CANNOT PREVENT THE APPOINTING AUTHORITY FROM ADOPTING THE MEASURES IT BELIEVES NECESSARY IN THE INTEREST OF THE SERVICE .

IN CASE 111/86

EVELYNE DELAUCHE, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN BRUSSELS, REPRESENTED BY E . LEBRUN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF T . BIEVER, AVOCAT, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY M . WOLFCARIUS, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, ASSISTED BY R . ANDERSEN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF THE COMMISSION' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANT,

APPLICATION IN THE FIRST PLACE FOR THE ANNULMENT OF THE COMMISSION' S DECISION REJECTING THE APPLICANT' S APPLICATION FOR A POST OF HEAD OF DIVISION ( VACANCY NOTICE NO COM/680/85 ) AND OF THE COMMISSION' S DECISION TO APPOINT ANOTHER CANDIDATE TO THE POST AND SECONDLY FOR AN ORDER THAT THE COMMISSION COMPENSATE THE APPLICANT FOR THE DAMAGE SUFFERED BY HER AS A RESULT OF THOSE DECISIONS,

THE COURT ( FIRST CHAMBER )

COMPOSED OF G . BOSCO, PRESIDENT OF CHAMBER, R . JOLIET AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : M . DARMON

REGISTRAR : B . PASTOR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 OCTOBER 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 19 NOVEMBER 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 12 MAY 1986, EVELYNE DELAUCHE, AN OFFICIAL OF THE COMMISSION, BROUGHT PROCEEDINGS IN THE FIRST PLACE FOR THE ANNULMENT OF THE COMMISSION' S DECISION REJECTING HER APPLICATION FOR A POST AS HEAD OF DIVISION ( VACANCY NOTICE NO COM/680/85 ) AND OF THE COMMISSION' S DECISION TO APPOINT ANOTHER CANDIDATE TO THE POST AND SECONDLY FOR AN ORDER THAT THE COMMISSION COMPENSATE HER FOR THE DAMAGE SHE SUFFERED AS A RESULT OF THOSE DECISIONS AND, MORE GENERALLY, OF THE LACK OF PROVISIONS TO PREVENT DISCRIMINATION ON GROUNDS OF SEX .

2 MRS DELAUCHE HOLDS A DEGREE IN LAW . ON 1 JANUARY 1979 SHE WAS PROMOTED TO GRADE A 4 . SINCE THEN SHE HAS APPLIED SIX TIMES FOR GRADE A 3 POSTS . ON EACH OCCASION A MALE CANDIDATE WAS APPOINTED .

3 ON 12 APRIL 1985 THE COMMISSION PUBLISHED VACANCY NOTICE NO COM/680/85 FOR THE POST OF HEAD OF THE ADMINISTRATIVE RIGHTS AND REMUNERATION DIVISION . MRS DELAUCHE APPLIED FOR THE POST .

4 BY A DECISION OF 11 JULY 1985, WHICH CONTAINED NO STATEMENT OF REASONS, THE COMMISSION REJECTED MRS DELAUCHE' S APPLICATION . BY A DECISION OF 29 JULY 1985 THE COMMISSION APPOINTED MR CAPOGROSSI, WHO HAS A DEGREE IN ECONOMICS AND BUSINESS STUDIES AND IS AN ACTUARIAL SPECIALIST, TO THE POST IN QUESTION . HE HAD BEEN APPOINTED TO GRADE A 4 ON 1 JANUARY 1983 .

5 ON 24 SEPTEMBER 1985 MRS DELAUCHE LODGED A COMPLAINT AGAINST THE ABOVEMENTIONED DECISIONS . THAT COMPLAINT WAS REJECTED, FIRST ON 24 JANUARY 1986 BY IMPLICATION AND THEN EXPRESSLY ON 10 MARCH 1986 .

6 ON 12 MAY 1986 MRS DELAUCHE BROUGHT THESE PROCEEDINGS .

7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES .

THE APPLICATION FOR ANNULMENT

THE SUBMISSION BASED ON BREACH OF A RIGHT TO PREFERENCE ASSERTED BY MRS DELAUCHE

8 IN HER FIRST SUBMISSION, MRS DELAUCHE MAINTAINS THAT IF THERE ARE SEVERAL CANDIDATES WHO ARE ACKNOWLEDGED TO BE EQUALLY SUITABLE TO FILL A POST AND ONE SEX IS CONSIDERABLY UNDERREPRESENTED IN POSTS OF THE LEVEL IN QUESTION, PREFERENCE SHOULD BE GIVEN TO A CANDIDATE OF THE UNDERREPRESENTED SEX . IN THE PRESENT CASE, SHE SAYS, THE COMMISSION EXPRESSLY ACKNOWLEDGED, IN ITS REPLY TO HER COMPLAINT, THAT HER APPLICATION WAS AS WORTHY OF CONSIDERATION AS THAT OF THE SUCCESSFUL CANDIDATE . FURTHERMORE, STATISTICS ISSUED BY THE COMMISSION SHOW THAT WOMEN OCCUPY LESS THAN 2% OF GRADE A 3, A 2 AND A 1 POSTS . CONSEQUENTLY, THE COMMISSION WAS UNDER AN OBLIGATION TO GIVE PREFERENCE TO MRS DELAUCHE .

9 IT MUST BE POINTED OUT THAT THE FIRST OF THE TWO PRECONDITIONS PUT FORWARD BY MME DELAUCHE IN ORDER FOR THE APPLICANT BELONGING TO THE UNDERREPRESENTED SEX TO BE ENTITLED TO PREFERENCE IS NOT SATISFIED IN THE PRESENT CASE . IT CAN BE SEEN FROM THE REPLY GIVEN TO THE COMPLAINT THAT THE COMMISSION DID NOT CONSIDER MRS DELAUCHE TO BE AS SUITABLE AS MR CAPOGROSSI TO OCCUPY THE POST IN QUESTION . ON THE CONTRARY, THE COMMISSION CONSIDERED THAT THE INTERESTS OF THE SERVICE WOULD BE BETTER SERVED BY THE APPOINTMENT OF MR CAPOGROSSI THAN BY THE APPOINTMENT OF MRS DELAUCHE .

10 THE FIRST SUBMISSION MUST THEREFORE BE DISMISSED AND IT IS NOT NECESSARY TO EXAMINE THE QUESTION WHETHER, IF THE CONDITIONS SET OUT BY MRS DELAUCHE ARE FULFILLED, THE CANDIDATE BELONGING TO THE UNDERREPRESENTED SEX IS IN FACT ENTITLED TO PREFERENCE .

THE SUBMISSION BASED ON THE LACK OF A STATEMENT OF REASONS

11 IN HER SECOND SUBMISSION, MRS DELAUCHE CLAIMS THAT THE CONTESTED DECISIONS ARE ILLEGAL BECAUSE THEY CONTAIN NO STATEMENT OF REASONS . THERE ARE TWO GROUNDS ON WHICH A STATEMENT OF REASONS SHOULD HAVE BEEN GIVEN .

12 THE FIRST GROUND IS THAT THE CHOICE MADE BY THE COMMISSION WAS A SURPRISING ONE . MRS DELAUCHE CONSIDERS THAT SHE CAN LAY CLAIM TO A BETTER KNOWLEDGE OF THE MATTERS LISTED IN THE VACANCY NOTICE AND TO GREATER MOBILITY THAN THE SUCCESSFUL CANDIDATE . FURTHERMORE, SHE EMPHASIZES THE FACT THAT SHE IS OLDER THAN HER FELLOW APPLICANT AND HAS GREATER SENIORITY THAN HIM IN THE INSTITUTION AND IN GRADE A 4 . THE COMMISSION OUGHT THEREFORE TO HAVE GIVEN A STATEMENT OF REASONS FOR ITS DECISION TO APPOINT MR CAPOGROSSI .

13 AS THE COURT HAS STATED, IN PARTICULAR IN ITS JUDGMENT OF 13 JULY 1972 IN CASE 90/71 BERNARDI V PARLIAMENT (( 1972 )) ECR 603 AND ITS JUDGMENT OF 30 OCTOBER 1974 IN CASE 188/73 GRASSI V COUNCIL (( 1974 )) ECR 1099, DECISIONS ON PROMOTION NEED NOT BE ACCOMPANIED BY A STATEMENT OF REASONS IN RESPECT OF THE PERSONS PROMOTED, SINCE THEY CANNOT BE ADVERSELY AFFECTED BY SUCH DECISIONS, OR IN RESPECT OF THE PERSONS NOT PROMOTED, SINCE THEY MIGHT BE HARMED BY SUCH A STATEMENT OF REASONS . MRS DELAUCHE' S FIRST ARGUMENT CANNOT THEREFORE BE ACCEPTED .

14 THE SECOND GROUND ON WHICH THE CONTESTED DECISIONS OUGHT TO HAVE CONTAINED A STATEMENT OF REASONS RELATES, IN MRS DELAUCHE' S VIEW, TO THE PARTICULAR REQUIREMENTS OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN . THAT IS TO SAY, THE APPOINTING AUTHORITY IS UNDER AN OBLIGATION TO PROVIDE A STATEMENT OF REASONS WHEN REJECTING A FEMALE APPLICANT IF THE CIRCUMSTANCES GIVE RISE TO A PRESUMPTION OF SEX DISCRIMINATION, AS IN THIS CASE . IN THE ABSENCE OF SUCH AN OBLIGATION TO PROVIDE A STATEMENT OF REASONS, A FEMALE CANDIDATE WHO WISHED TO PROVE DISCRIMINATION ON GROUNDS OF SEX WOULD BE SUBJECT TO AN IMPOSSIBLE BURDEN OF PROOF .

15 IN ITS JUDGMENT OF 12 FEBRUARY 1987 IN CASE 233/8 ( BONINO V COMMISSION (( 1987 )) ECR 739, THE COURT HAS ALREADY HELD THAT THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN DOES NOT GIVE RISE TO A DUTY TO PROVIDE A STATEMENT OF REASONS FOR DECISIONS ON PROMOTION EVEN THOUGH SOME OF THE CANDIDATES ARE WOMEN . MRS DELAUCHE' S SECOND ARGUMENT MUST THEREFORE ALSO BE REJECTED .

16 IT FOLLOWS FROM THE FOREGOING THAT THE SECOND SUBMISSION MUST BE DISMISSED .

THE SUBMISSION BASED ON BREACH OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN

17 IN HER THIRD SUBMISSION, MRS DELAUCHE CLAIMS THAT THE CONTESTED DECISIONS ARE IN BREACH OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN BECAUSE, IN ADOPTING THOSE DECISIONS, THE COMMISSION WAS GUILTY OF SEX DISCRIMINATION . MRS DELAUCHE' S PERIODIC REPORTS SHOW THAT SHE HAS ALL THE QUALIFICATIONS NEEDED FOR APPOINTMENT TO A POST OF HEAD OF DIVISION . THE REPEATED REJECTION OF HER APPLICATIONS FOR SUCH POSTS CANNOT THEREFORE BE EXPLAINED OTHERWISE THAN BY A DELIBERATE INTENTION ON THE PART OF THE COMMISSION TO AVOID ANY FEMALE APPOINTMENTS AT THAT LEVEL OF THE HIERARCHY .

18 AS THE COURT HAS CONSISTENTLY HELD, THE APPOINTING AUTHORITY HAS WIDE DISCRETION AS REGARDS PROMOTIONS AND THE COURT MUST RESTRICT ITS REVIEW TO CONSIDERATION OF THE QUESTION WHETHER THE APPOINTING AUTHORITY HAS USED ITS POWER IN A MANIFESTLY INCORRECT WAY ( JUDGMENT OF 21 APRIL 1983 IN CASE 282/81 RAGUSA V COMMISSION (( 1983 )) ECR 1245; JUDGMENT OF 23 OCTOBER 1986 IN CASE 26/85 VAYSSE V COMMISSION (( 1986 )) ECR 3131; JUDGMENT OF 5 FEBRUARY 1987 IN CASE 306/85 HUYBRECHTS V COMMISSION (( 1987 )) ECR 629 ).

19 IN THE PRESENT CASE, THE VACANCY NOTICE IN ESSENCE REQUIRED A THOROUGH KNOWLEDGE OF THE PROVISIONS OF THE STAFF REGULATIONS AND OTHER REGULATIONS APPLICABLE TO OFFICIALS AND A PROVEN ABILITY FOR MANAGING STAFF . IT CAN BE SEEN FROM MR CAPOGROSSI' S PERIODIC REPORTS THAT FOR 12 YEARS HE HAD CARRIED OUT THE DUTIES OF AN ADMINISTRATOR IN THE AREA OF RIGHTS UNDER THE STAFF REGULATIONS VERY COMPETENTLY AND THAT IN HIS WORK HE HAD DEMONSTRATED A REMARKABLE TALENT FOR MANAGING STAFF .

20 IT DOES NOT THEREFORE APPEAR THAT IN ITS CHOICE OF THE SUCCESSFUL CANDIDATE THE COMMISSION EXERCISED ITS DISCRETION IN A MANIFESTLY ERRONEOUS WAY, OR LET ITSELF BY GUIDED BY CONSIDERATIONS UNRELATED TO THE INTERESTS OF THE SERVICE .

21 CONSEQUENTLY THE THIRD SUBMISSION MUST BE REJECTED .

THE SUBMISSION BASED ON BREACH OF THE PRINCIPLE OF PROTECTION OF LEGITIMATE EXPECTATIONS AND NEGLECT OF THE DUTY TO HAVE REGARD TO THE INTERESTS OF THE EMPLOYEE

22 IN HER FOURTH SUBMISSION, MRS DELAUCHE MAINTAINS THAT IN REJECTING HER APPLICATION THE COMMISSION BREACHED THE PRINCIPLE OF PROTECTION OF LEGITIMATE EXPECTATIONS AND NEGLECTED ITS DUTY TO HAVE REGARD TO THE INTEREST OF THE EMPLOYEE .

23 AS REGARDS BREACH OF THE PRINCIPLE OF PROTECTION OF LEGITIMATE EXPECTATIONS, MRS DELAUCHE REFERS TO THE MANY DECLARATIONS MADE BY THE COMMISSION CONCERNING THE NEED TO INCREASE THE NUMBER OF WOMEN IN POSITIONS OF RESPONSIBILITY . SHE MAINTAINS THAT, AS A RESULT OF THOSE DECLARATIONS, SHE COULD LEGITIMATELY EXPECT THAT HER APPLICATION WOULD BE SUCCESSFUL .

24 IT MUST BE POINTED OUT THAT MRS DELAUCHE DID NOT RECEIVE ANY PERSONAL ASSURANCE WHICH COULD HAVE LED HER TO HOPE THAT SHE WOULD BE PROMOTED . ACCORDINGLY SHE IS NOT IN ANY EVENT ENTITLED TO MAINTAIN THAT THE CONTESTED DECISIONS ARE IN BREACH OF THE PRINCIPLE OF PROTECTION OF LEGITIMATE EXPECTATIONS .

25 IN RESPECT OF THE COMMISSION' S NEGLECT OF ITS DUTY TO HAVE REGARD TO THE INTERESTS OF THE EMPLOYEE, MRS DELAUCHE CLAIMS THAT AFTER THE REPEATED REJECTION OF HER APPLICATIONS FOR POSTS IN GRADE A 3, THE COMMISSION OUGHT TO HAVE TAKEN INTO ACCOUNT HER INTEREST IN FINALLY BEING PROMOTED .

26 AS THE COURT HELD IN ITS JUDGMENT OF 29 OCTOBER 1981 IN CASE 125/80 ( ARNING V COMMISSION (( 1981 )) ECR 2539, THE REQUIREMENTS OF THE DUTY TO HAVE REGARD TO THE INTERESTS OF THE EMPLOYEE CANNOT PREVENT THE AUTHORITY FROM ADOPTING THE MEASURES IT BELIEVES NECESSARY IN THE INTEREST OF THE SERVICE . AS HAS BEEN POINTED OUT ABOVE, THE ASSESSMENT MADE BY THE COMMISSION AS TO THE INTERESTS OF THE SERVICE WAS NOT VITIATED BY ANY MANIFEST ERROR . THE COMMISSION DID NOT, THEREFORE, FAIL IN ITS DUTY TO HAVE REGARD TO MRS DELAUCHE' S INTERESTS WHEN IT REJECTED HER APPLICATION .

27 THE FOURTH SUBMISSION MUST, THEREFORE, ALSO BE REJECTED .

28 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION FOR ANNULMENT IS UNFOUNDED AND MUST THEREFORE BE DISMISSED .

THE APPLICATION FOR COMPENSATION

29 MRS DELAUCHE CLAIMS THAT THE COMMISSION SHOULD BE ORDERED TO COMPENSATE HER FOR THE MATERIAL AND NON-MATERIAL DAMAGE SHE SUFFERED AS A RESULT OF THE ADOPTION OF THE CONTESTED DECISIONS AND THE COMMISSION' S FAILURE TO TAKE APPROPRIATE PRACTICAL MEASURES TO PREVENT DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO PROMOTION .

30 IT SHOULD BE BORNE IN MIND THAT THE COMMUNITY CAN ONLY BE HELD LIABLE FOR DAMAGES IF A NUMBER OF CONDITIONS ARE SATISFIED AS REGARDS THE ILLEGALITY OF THE ALLEGEDLY WRONGFUL ACT COMMITTED BY THE INSTITUTIONS, THE ACTUAL HARM SUFFERED, AND THE EXISTENCE OF A CAUSAL LINK BETWEEN THE ACT AND THE DAMAGE ALLEGED TO HAVE BEEN SUFFERED .

31 THE CLAIM BASED ON THE ADOPTION BY THE COMMISSION OF THE DECISIONS AT ISSUE IS UNFOUNDED . EXAMINATION OF THE APPLICATION FOR ANNULMENT HAS SHOWN THAT IN ADOPTING THOSE DECISIONS THE COMMISSION DID NOT COMMIT ANY ILLEGAL ACT .

32 AS REGARDS THE CLAIM THAT THE COMMISSION HAS FAILED TO TAKE APPROPRIATE PRACTICAL MEASURES TO PREVENT DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO PROMOTION, THAT IS A MATTER OF GENERAL POLICY CONCERNING THE RECRUITMENT AND PROMOTION OF WOMEN . THE CLAIM IS INADMISSIBLE INASMUCH AS MRS DELAUCHE HAS NOT SHOWN THAT, IN THESE PROCEEDINGS, SHE HAS A PERSONAL INTEREST IN CHALLENGING THE COMMISSION' S ACTIONS IN THE MATTER OF SEXUAL EQUALITY IN THE EUROPEAN CIVIL SERVICE .

33 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION FOR COMPENSATION IS UNFOUNDED AND MUST BE DISMISSED .

COSTS

34 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 THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION FOR ANNULMENT;

( 2 ) DISMISSES THE APPLICATION FOR COMPENSATION;

( 3 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .