Report for the Hearing delivered in Case 111/86
1 — Account of the facts
1. Mrs Delauche has a degree in law. She was first employed by the European Communities in 1959 in Category C. Following a series of promotions, in 1965 she became a Category A official.
2. From 1965 to 1971 she worked as an administrator in the Joint Research Centre Directorate-General and then in the Directorate-General for Industrial, Technological and Scientific Affairs.
3. Since 1971 she has worked in the Directorate-General for Personnel and Administration. Until 1979 she headed the section responsible for the application of the Staff Regulations of Officials of the European Communities (hereinafter referred to as the Staff Regulations) and of the Rules applicable to other Servants. During that period she deputized for the head of division when he was absent.
4. On 1 January 1979 Mrs Delauche was promoted to grade A 4. After acting as interim head of the Individual Rights and Privileges Division for several months, since 1 November 1981 she has occupied the post of deputy head of the Staff Regulations Division.
5. Since her appointment to A 4, Mrs Delauche has applied six times for A 3 posts, mainly posts which she had occupied ad interim or where she had been deputy to the head of division. However, in each case a male candidate was appointed to the post.
6. 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.
7. Mrs Delauche and 10 other persons, all male, were candidates for that post.
8. On 6 May 1985 the Advisory Committee on Appointments to Grades A 2 and A 3 issued an opinion stating that among the candidates for the post, Mr Capogrossi, Mrs Delauche and Mr Kalbe, listed in alphabetical order, merit special consideration.
9. By a decision of 11 July 1985, which was not supported by any statement of reasons, the Commission rejected Mrs Delauche's application.
10. By a decision of 29 July 1985 the Commission appointed Mr Capogrossi to the post in question.
11. Mr Capogrossi has a degree in economics and business studies and is an actuarial specialist. After working as an actuarial expert in the Commission for two years, he was appointed an official in grade A 7 in the Directorate-General for Personnel and Administration on 1 April 1973. He reached grade A 4 on 1 January 1983. From 1 April 1984 onwards he was deputy head of the Administrative Rights and Remuneration Division, that is to say, deputy to the post of head of division to which he was subsequently appointed and in respect of which the present proceedings have been brought.
12. On 24 September 1985 Mrs Delauche lodged a complaint, seeking first of all to have the decisions which rejected her application and appointed Mr Capogrossi annulled and, secondly, claiming that a sum of BFR 150000 should be paid to her as compensation for the damage suffered by her as a result of those two decisions.
13. The Commission rejected that complaint, first on 24 January 1986 by implication and then expressly on 10 March 1986. The express decision gives the following reasons: In the case in point, the Commission took into account the career profiles of the candidates and the information contained in their periodic reports. The Commission also took into account the proposal by the Commissioner responsible for Personnel and Administration that Mr Capogrossi should be appointed, which was based on an assessment of the professional experience and personal qualities of the candidates for the post in question.
14. The action brought by Mrs Delauche was lodged at the Court Registry on 12 May 1986.
15. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry. It did, however, decide to put one question to the applicant. A reply was given within the prescribed period.
II — Conclusions of the parties
16. Mrs Dekuche claims that the Court should:
17. The Commission contends that the Court should:
III — Submissions and arguments of the parties
A — The action for annulment
(1) Breach of the principle of equal treatment for men and women, inasmuch as that principle implies that if candidates are equally qualified the candidate of the sex which is underrepresented should be entitled to preference
18. Mrs Delauche's main argument is to the effect that the contested decisions are contrary to the principle of equal treatment for men and women. In her view, if there are several candidates who are considered equally suitable to fill a post and one sex is significantly underrepresented in posts of the level in question, preference should be given to the candidate of the underrepresented sex.
19. The justification for that position lies in the fundamental importance of the principle of equality between men and women. The importance of that principle is such that the rule advocated above ought to be applied even if it is not enshrined in any written provision.
20. Mrs Delauche then goes to some length to demonstrate that the two conditions for the application of the general principle on which she relies are fulfilled in the present case.
21. As regards the condition that the candidates must be equally suitable to fill the post in question, she maintains that in its opinion of 6 May 1985 the Advisory Committee on Appointments concluded that Mrs Delauche, Mr Capogrossi and another male candidate were equally suitable to fill the post. The Commission itself, in its reply to the applicant's complaint, expressly acknowledged that her application was just as worthy of consideration as that of the successful candidate.
22. As regards the condition that women should be significantly underrepresented in posts of head of division, the applicant has produced statistics issued by the Commission which show that women occupy less than 2% of posts in Grades A 3, A 2 and A 1.
23. Consequently, the Commission should have given preference to the applicant and the contested decisions are unlawful.
24. The Commission replies that the principle of a right to preference should not be adopted because it results in the creation of inequality masquerading as equality. If that principle were adopted the chances of obtaining posts in the Communities would not be equal for all candidates but would depend on their being of a specific sex. Furthermore, there is no legal provision which lays down a right to preference on grounds of sex, and it is not for the Commission to anticipate possible legislative developments.
25. In any event, the first of the two preconditions put forward by the applicant in order for a right to preference to exist is not satisfied in the present case. The Commission did not consider Mrs Delauche to be as suitable as Mr Capogrossi for the post in question. It considered, on the contrary, that of all the candidates for the post Mr Capogrossi was the most suitable.
26. As regards the other condition put forward by the applicant, that is to say, that there should be considerable underrepresentation of women in posts as head of division, the Commission does not dispute the fact that that condition is satisfied. Nevertheless, it observes that the phenomenon of underrepresentation of women in positions of responsibility is not just to be found in its own institution, but may be seen in all areas of working life.
(2) Absence of a statement of reasons
27. In the alternative, Mrs Delauche maintains that the decision rejecting her application ought to have included a statement of reasons, in view of (a) the surprising choice made by the Commission, and (b) the special requirements of the principle of equal treatment for men and women.
(a) The surprising choice made by the Commission
28. In order to support her contention that the choice made by the Commission was surprising, Mrs Delauche puts forward three arguments relating to the qualifications required by the vacancy notice, to the mobility shown by herself and Mr Capogrossi respectively and, finally, to the age and seniority of the two candidates.
(i) Qualifications required by the vacancy notice
29. Mrs Delauche maintains that because of her previous duties she had acquired a better knowledge of the matters listed in the vacancy notice (Staff Regulations and related rules, personnel management problems) than the candidate who was appointed. As her periodic reports show, she had also proved herself to be capable of running a unit with a large number of staff, which was another requirement included in the vacancy notice.
30. The applicant emphatically disputes the Commission's statement that Mr Capogrossi was chosen because of his specialization in actuarial matters. According to Mrs Delauche, actuarial knowledge is irrelevant in the post of head of division, since actuarial calculations are performed by officials who work under his direction. Moreover, the vacancy notice did not require actuarial knowledge and thus such knowledge should not have been taken into consideration.
31. The Commission replies that in the exercise of his previous duties Mr Capogrossi had also acquired a thorough knowledge of the Staff Regulations and of personnel management problems. Moreover, he had proved himself to have remarkable ability in staff management, as his periodic reports consistently showed. He therefore satisfied the conditions laid down in the vacancy notice as well as Mrs Delauche.
32. Furthermore, Mr Capogrossi could lay claim to actuarial knowledge which was particularly valuable for the post as head of the Administrative Rights and Remuneration Division. That division is concerned inter alia with complicated problems regarding the surrender value of pensions which involve actuarial calculations.
(ii) The mobility demonstrated by the two candidates
33. Mrs Delauche considers that the criterion of mobility is fundamental. In this respect she draws support from a statement by the President of the Commission to the effect that promotion to grade A 3 would be possible only after one or two significant changes of assignment in each lower grade (statement reported in Spierenburg and Reform of the Commission, Administrative notices of 5 December 1980, p. 7). She emphasizes that she herself has moved several times from one administrative unit to another. Mr Capogrossi, on the other hand, has always worked in the same administrative unit and has had no real change of assignment.
34. The Commission considers that Mrs Delauche attaches too much importance to the criterion of mobility, which is not in fact mentioned in the vacancy notice. In any case, Mr Capogrossi has demonstrated mobility within his administrative unit, which was just as worthy of being taken into consideration as the changes of administrative unit which the applicant relies on. The responsibilities which Mr Capogrossi assumed within his unit increased considerably over a period of time.
(iii) Age and seniority
35. Mrs Delauche claims that her age (52 as against Mr Capogrossi's age of 42), her seniority in the institution (26 years as against 12 in Mr Capogrossi's case) and her seniority in grade A 4 (six and a half years as against two and a half years in Mr Capogrossi's case) militated in favour of her appointment.
36. The Commission maintains that factors such as age and seniority are secondary.
(b) Special requirements of the principle of equal treatment for men and women
37. Mrs Dekuche maintains that in the light of the special requirements of the principle of equal treatment for men and women, a statement of reasons should have been given for the contested decisions. She refers to the many declarations of principle made by the Commission on the subject of equality between the sexes. In order for the principle of equality between the sexes to have any real effect, the institutions should be obliged to provide a statement of reasons when rejecting a female applicant if the circumstances give rise to a presumption of sex discrimination. In the absence of such an obligation to provide a statement of reasons, a female candidate who wished to prove such discrimination would be faced with an impossible burden of proof.
38. The applicant then claims that the statement of reasons contained in the reply to her complaint only goes to confirm the arbitrary nature of the Commission's choice. In its reply the Commission in effect confined itself to referring to such vague notions as the career profiles, of the candidates, their professional experience and their personal qualities.
39. It follows from the foregoing that the Commission has not properly justified its choice.
40. The Commission claims that it was under no duty to give reasons for the contested decisions. It points out in this connection that the Court has held that an institution is under no duty towards unsuccessful candidates to state the reasons on which decisions of promotion are based, since such a statement of reasons might be harmful to those candidates (judgment of 13 July 1972 in Case 90/71 Bernardi v Parliament [1972] ECR 603; judgment of 30 October 1974 in Case 188/73 Grassi v Council [1974] ECR 1099). More particularly, as regards the alleged requirement to provide a statement of reasons for the rejection of a female candidate's application, the Commission points out that the Court has already rejected that proposition in its judgment of 12 February 1987 in Case 233/85 Bonino v Commission [1987] ECR 739.
41. The Commission further submits that it is well established that the appointing authority has wide discretion as regards promotions and that the Court will only censure manifest errors in the exercise of that discretion (judgment of 24 March 1983 in Case 298/81 Coiussi v Parliament [1983] ECR 1131, and judgment of 4 February 1987 in Case 324/85 Bouteiller v Commission [1987] ECR 529). In this case the selection of Mr Capogrossi was not vitiated by such an error. In view of his experience, especially in the actuarial field, and his remarkable ability in staff management, it was reasonable for the Commission to consider that he was more suitable than the other candidates for the post in question.
(3) Sex discrimination and ultra vires conduct
42. In the alternative, Mrs Delauche maintains that for years the Commission has subtly discriminated against her on grounds of sex.
43. In that connection she emphasizes the fact that before applying for the post in question she had already applied six times for A 3 posts, mainly for posts in which she had deputized or which she had occupied ad interim, and each time a male candidate was successful.
44. The Commission's attitude towards her was all the more unjustified because her periodic reports had always emphasized the ability to manage staff which she displayed when acting as deputy or interim head of a division.
45. In the circumstances, the Commission's decision to appoint Mr Capogrossi can only be explained as discrimination on the grounds of sex and is therefore ultra vires.
46. The Commission denies that the appointment of male candidates to posts for which the applicant had previously been a candidate was based on sexist considerations. In any case, the applicant did not contest those decisions of appointment within the prescribed period and cannot, therefore, rely on their alleged illegality in support of this action.
47. The Commission then points out that the applicant, who was originally employed in Category C, has been promoted several times during her career. It is quite ribrmal that as an official rises in the hierarchy the rhythm of promotion should slow down.
48. Moreover, there are far fewer female than male candidates for high-ranking posts. Hence there is quite naturally a greater possibility that the successful candidate will be a man. In this case, among the 11 candidates for the post there were 10 men. The fact that the successful candidate was a man is therefore no indication of sex discrimination.
(4) Breach of the principle of protection of legitimate expectations and failure to have regard to the interests of the employee
49. In the further alternative. Mrs Delauche argues that when it rejected her application the Commission breached the principle of protection of legitimate expectations and failed to have regard to her interests as an employee.
50. As regards breach of the principle of protection of legitimate expectations, Mrs Delauche refers first of all to the many solemn declarations made by the Commission concerning the effective implementation of equal treatment for men and women, secondly to the declaration of the President of the Commission on the subject of mobility as a criterion for appointment to Grade A 3 and, thirdly, to the fact that she had performed the duties of head of division on a temporary basis, whereas Mr Capogrossi had not. She considers that in the circumstances she could legitimately expect to be promoted.
51. The applicant also maintains that the general policy adopted in recent years by the Commission as regards equality of treatment between men and women is open to criticism, in particular because the Commission has not fulfilled its commitments in that area.
52. In reply to those arguments the Commission maintains that Mrs Delauche never received any specific assurances that she would be appointed to the post in question. She cannot therefore claim that there has been a breach of the principle of protection of legitimate expectations.
53. Moreover, the applicant has no standing to criticize the general policy adopted by the Commission on the subject of equal treatment for men and women. The arguments put forward in that connection by the applicant should not, therefore, be examined. In any case, those arguments are not well founded, since the Commission has put into operation a programme of positive action with a view to giving effect to the principle of equality in that area.
54. In her submission that the Commission did not fulfil its duty to have regard to her interests as an employee, Mrs Delauche argues that the Commission ought to have taken into account her interest in finally being appointed head of a division.
55. The Commission replies that the requirements of the duty to have regard to the interest of the employee do not extend to its being obliged, in a particular case, to give preference to a specific candidate.
B — The action for compensation
56. Mrs Delauche maintains that the Commission is guilty of maladministration because it rejected her application on grounds of sex and because in general it has failed to take adequate practical steps to ensure that there is no discrimination on grounds of sex as regards promotion.
57. If her action for damages is successful, she considers the sum of BFR 150000 appropriate compensation for the material and nonmaterial damage she has suffered.
58. She also claims compensation in the event that her action for annulment should be dismissed, but puts forward no specific amount.
59. The Commission argues that if her action for annulment is successful, the annulment of the contested decisions will itself constitute adequate reparation.
60. If the action for annulment fails, it must follow that Mrs Delauche's rights have not been infringed. It is moreover clear that the alleged failure of the Commission to adopt general measures in the area of sexual equality cannot give rise to a right to compensation in favour of an individual.
61. The action for compensation should therefore be dismissed in any event.
1 Language of the Case: French.