62003CC0150_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. Ms Hectors, an applicant for a post as Dutch-language member of temporary staff for the European People’s Party and European Democrats Group within the European Parliament (hereinafter ‘the EPP-ED’) is appealing against the judgment of 23 January 2003 (2) of the Fifth Chamber of the Court of First Instance.
2. This legal challenge gives the Court of Justice the opportunity to define the scope of the discretionary powers conferred on administrative authorities in the European Union with competence to recruit temporary staff.
I – Legal background
A – The Staff Regulations of Officials of the European Communities
3. The second paragraph of Article 25 of the Staff Regulations of Officials of the European Communities (3) (‘the Staff Regulations’) provides that any decision relating to an individual which is taken under the Staff Regulations is to be communicated at once in writing to the official concerned and, if the decision adversely affects the official, it must state the grounds on which it is based.
B – Conditions of Employment of Other Servants
4. Under Article 2(c) of the Conditions of Employment of Other Servants of the European Communities (4) (hereinafter ‘the Conditions of Employment’), staff, other than officials of the Communities, engaged by a political group in the European Parliament are classified as temporary staff. For the rules governing their rights and obligations, Article 11 refers to Articles 11 to 26 of the Staff Regulations.
C – The European Parliament Rules of 15 March 1989
5. The Internal Rules of the European Parliament Bureau on the recruitment of officials and other servants (5) (hereinafter ‘the Internal Rules’) provide, in Article 8, that temporary staff for the political groups are to be recruited on the basis of proposals from an ad hoc committee, appointed by the authority empowered to conclude contracts of employment (hereinafter ‘the contracting authority’), one of whose members is appointed by the Staff Committee.
6. Article 9 provides that vacancy notices are to be advertised and outlines the procedure, stating that the selection board, after examining the candidates’ files and taking account of the criteria for the post to be filled, is to submit to the contracting authority a list of candidates who fulfil the prescribed conditions.
D – 	The procedural rules for recruiting EPP-ED staff
7. The EPP-ED Group of the European Parliament has drawn up rules for recruiting staff: under the fifth rule, the procedure is conducted before a selection board, which prepares the written and oral tests, deciding the minimum pass mark, the number of candidates on the reserve list and also the duration of that list.
8. Under the sixth rule, the board submits to the office of the Chairman of the Group a list of the candidates who have passed the tests, stating the marks obtained by each. When only one post is offered, the selection is made between the first three names on the list.
II – Background to the appeal
A – Facts
9. The contested judgment (paragraphs 5 to 21) sets out the following facts which are relevant to this appeal:
– The EPP-ED Group published a vacancy notice for a post of Dutch-language administrator, as a member of the temporary staff, undertaking planning and research in relation to the activities of the group.
– The notice laid down the following requirements: (1) university degree or equivalent professional experience; (2) an in-depth knowledge of the institutional structure of the European Union and of its activities; (3) the ability to carry out, following general guidelines, planning, analysis and compilation tasks; (4) a basic knowledge of the parliamentary group’s programmatical aims and activities, and of Community policies, ability and experience in agricultural policies being of particular value. (5) fluent Dutch and a good level of German, French or English; a knowledge of other Community languages would be taken into consideration.
– Ms Hectors submitted her candidature on 21 June 2000, and sat the written and oral tests which were held on 9 and 19 October 2000 respectively.
– As a result of those tests, the ad hoc committee recommended Ms Hectors (83.50 marks), Ms L. (73.50 marks) and Mr B. (65.25 marks) for the post.
– The selected candidates were called to a personal interview with four members of the Netherlands delegation of the parliamentary group; the meetings were held on 7 November.
– On 16 January 2001, Ms Hectors, who had been told, on 20 November, that she was on the list of successful candidates but knew nothing of the subsequent course of the procedure, asked for the relevant information.
– Her request was dealt with in a letter dated 31 January, in which the Chairman of the group informed her that Mr B. had been selected, adding:
‘In the oral and written tests held on 9 and 19 October, you obtained 83.5 marks (out of 100). You were therefore first on the list.
As is customary, the selection board submitted the names of the three candidates with the highest marks to the office of the Chairman of the [parliamentary] group, which took the decision I have already indicated.
I refer, for your information, to the following provision:
Under Article 9 [of the Internal Rules], the selection is made by the authority of the European People’s Party and European Democrats Group empowered to conclude the contract.’
– On 11 April Ms Hectors lodged a complaint against the appointment of Mr B. and the rejection of her candidature. On 28 May 2001 her complaint was rejected by the Chairman of the EPP-ED Group, who stated:
‘... Article 30 of the Staff Regulations ... (6) provides that, for each competition, the contracting authority sets up a board, which draws up a list of successful candidates, from which the authority selects the persons to be appointed to the vacant posts. Consequently, the order of the candidates is not binding.
In the circumstances, your complaint must be rejected.’
B – The pleas and arguments at first instance.
10. On 6 August 2001 Ms Hectors brought an action before the Court of First Instance in which, in addition to asking for costs against the European Parliament, she sought revocation of the appointment of Mr B., annulment of the rejection of her own candidature and of the decision of 28 May 2001, and acknowledgment of her right to compensation of one euro in respect of the damage she had suffered.
11. In support of the above claims, she put forward two procedural arguments and three on the substance. The former referred to the failure to state the grounds of the contested measures and to the inappropriate conduct of the selection procedure owing to the organisation of personal meetings with candidates for which the rules on recruitment do not provide. Of the complaints on the merits, two must be considered for the purposes of this appeal: the alleged infringement of Article 12 of the Conditions of Employment owing to disregard of the interests of the service, and the alleged infringement of the principle of equal treatment for men and women.
12. The European Parliament opposed the application, which was dismissed in its entirety in the contested judgment.
C – The grounds of the contested judgment
1. The failure to state the grounds (paragraphs 35 to 46)
13. Referring to the freedom of choice enjoyed by the Chairman of a group in the European Parliament in recruiting temporary staff, the Court of First Instance considered that the statement that the legal conditions for the proper conduct of the selection procedure had been met was adequate, that requirement having been satisfied by the replies given to Ms Hectors in the letters of 31 January and 28 May 2001.
2. The infringement of Articles 29 and 30 of the Staff Regulations, of the rules of the vacancy notice and of the principle patere quam ipse legem fecisti
(paragraphs 93 to 108)
14. According to the Chamber which gave the judgment, the rules governing the entry of officials are not applicable to the filling of a temporary staff post, which is governed by the Conditions of Employment and, in the present case, by the Internal Rules. The contracting authority has extensive power to organise the tests and, consequently, to hold personal interviews, even if no provision has been made for them.
3. The infringement of Article 12 of the Conditions of Employment (paragraphs 65 to 78)
15. In the judgment it is stated that, in selecting Mr B., the administration did not exceed the bounds of its power of decision, because it was clear from his curriculum vitae
that the person selected had the experience required by the vacancy notice, and even more experience than the applicant in the common agricultural policy sector.
4. The infringement of the principle of equal treatment (paragraphs 117 to 128)
16. For the Court of First Instance, the fact that Ms Hectors was six months pregnant when the tests were held, which was known to the members of the Netherlands delegation who interviewed her, did not give grounds for assuming that there was discrimination, so the European Parliament was not required to prove that it had observed the principle of equal treatment. In any event, in selecting Mr B., the authority responsible for deciding on the outcome of the competition neither committed an error of assessment nor infringed the prohibition against making – in connection with employment – unjustified distinctions on grounds of sex..
III – The appeal
17. The appellant puts forward four pleas in law.
18. In the first she criticises the judges hearing the case at first instance for not having corrected the improper organisation of interviews between the candidates and the members of the Netherlands delegation of the parliamentary group. The contracting authority disregarded the rules it had made for itself, infringing the principles of legality, legal certainty and proportionality.
19. The second plea is based on the general obligation to state the grounds on which decisions are based, which the Court of First Instance allegedly infringed by accepting that the contested measures could be supported by a mere reference to the applicable procedural rules. According to Ms Hectors, once the contracting authority decided to depart from the order in which the candidates were placed on the list drawn up by the selection board, it had to give a specific explanation for the decision. Furthermore, the mutual trust between the member of the temporary staff and the members of the national political group which employs him has no connection with the obligation to state the reasons for the decision, since, otherwise, the procedure to ensure that the best candidate is appointed would be unnecessary. If that relationship of trust were the decisive factor in the selection, there would be no need to organise any selection procedure.
20. Another of the grounds of appeal, the third, refers to Article 12 of the Conditions of Employment and to the concept of interests of the service, which the contested judgment infringes because, in the appellant’s opinion, Mr B. was not the most suitable candidate, if the experience of them both is compared. That provision requires that the most highly qualified candidate be recruited, so the expertise of the person selected must not be ‘sufficient’ but ‘the best’.
21. Finally, Ms Hectors complains that the Court of First Instance erred in law in the application of the principle of equal treatment, since the fact that she was pregnant, together with the fact that the appointment was made to the only man on the shortlist, who, moreover, was last on the list, with almost 20 marks fewer than the person who was first, are evidence of the inequality complained of. Since an infringement of Article 12 of the Conditions of Employment and disregard of the interests of the service, and also an error of assessment in opting for Mr B.’s candidature were proved, the contested judgment infringes the aforementioned principle because it did not require the European Parliament to prove the absence of any discriminatory intent in its decision.
IV – Examination of the appeal
A – The first two pleas
22. Ms Hector’s appeal contains two kinds of complaint. The first two pleas are of a procedural nature, whereas the last two concern the terms of the contested administrative decision. The former should be dealt with first because, if either were upheld, it would be unnecessary to examine the others, which would be considered only in the alternative.
23. The first part of Ms Hector’s appeal is of real interest, because it raises the issue of the extent of the administration’s power of decision in the recruitment of temporary staff. Some knowledge of the characteristic features of these Community employees will help illustrate the essence of the system.
1. A few preliminary observations on temporary staff and their recruitment
24. Article 283 EC (formerly Article 212 of the EEC Treaty (7) ) shows that the staff of the Communities is made up of officials and other servants, subject always to the institutions being able to use other forms of recruitment to meet short-term needs. (8)
25. The category of other servants comprises four kinds: temporary staff, auxiliary staff, local staff and special advisers (Article 1 of the Staff Regulations). (9) Legal writers have pointed out (10) that it is impossible for any administration to fulfil its tasks only with the permanent staff, owing to inevitable increases in work in particular circumstances or the necessary occasional involvement of persons with specific qualifications and experience which a general civil service usually lacks.
26. Other servants have acquired greater importance over the years: they have come to occupy, like officials, fixed posts (11) and to carry out similar tasks, participating at the core of Community activities, so that the line separating them is blurred. (12) However, there is still one boundary which has not changed and which the former still cannot cross: continuity of employment. Whereas the appointment of officials is permanent, (13) other servants do not have job security.
27. The description ‘temporary staff’ covers several types of employee. As well as those occupying a temporary post, there are others appointed to fill a permanent post temporarily; the term also covers those engaged to assist the members of the institutions or groups of them (Article 2 of the Conditions of Employment). This last category adds to the precariousness of the job the trust which characterises the relationship between the member of the temporary staff and his principal.
28. Therefore, the distinction between officials and other servants, particularly temporary staff, lies not so much in the kind of task they perform as in the nature of the link binding them to the administration. (14) For that reason, the provisions of the Staff Regulations (Articles 11 to 26) which lay down the rights and obligations of the former apply in their entirety to the temporary staff, the only adjustments being those made necessary by the temporary nature of the post.
29. The Conditions of Employment do not provide for any kind of procedure for the recruitment of temporary staff, but the finding that, sometimes, the indeterminacy of the duration of the contract verges on permanence led the Commission (15) to make selection for some categories subject to procedures similar to those used for officials, announcing the general conditions of entry and the characteristics of the job offered, and also developing a procedure designed to be a competition based on merits, which involves the participation of an advisory board empowered to make recommendations to the contracting authority. (16) The model has been copied by the European Parliament, even for posts of trust, like the one which has given rise to the present case.
30. There is nothing, therefore, in the Conditions of Employment which imposes the obligation to follow a predetermined procedure for the selection of temporary staff, but, if an institution, in the exercise of its power to organise the way it functions, does adopt one, it must follow it scrupulously, in order to choose the person with ‘the highest standards of ability, efficiency and integrity’ (Article 12(1) of the Conditions of Employment).
31. As regards jobs such as the one at issue, which are characterised by the special bond of trust between the parties, the contracting authority has a wide discretion to select the most suitable candidate, but this power must not merge into arbitrariness. Once a job has been offered and there are several able candidates, the decision is not entirely unrestricted: it is subject to certain conditions, which must be examined for the purposes of the present case.
2. The personal interview in the procedure to fill a position of trust
32. The wide powers enjoyed by the contracting authority do not allow it to depart from the framework laid down, (17) because no one may validly contradict his own acts, as the applicant claims, invoking the Latin aphorism patere legem quam ipse fecisti (you must abide by the law in the terms in which you yourself enacted it).
33. It therefore appears reprehensible to omit a prescribed step or to add a step not provided for in the procedure adopted. As I have had the opportunity to point out in my Opinion in Aalborg Portland and Others
v Commission, (18) defects in the procedure do not have a life of their own in isolation from the substance of the case. A decision must be annulled if, owing to the defects in the procedure leading to its adoption, it is wrong in substance or if, because the procedural defect occurred, it is impossible to form an opinion about the decision which was adopted. For that reason, Article 230 EC (formerly Article 173 of the EC Treaty), when defining the powers of the Court of Justice in actions for annulment, refers to ‘infringement of an essential procedural requirement’. Not every infringement of the selection procedure thus suffices; there has to be a fault which jeopardises the procedure’s aim of ensuring the legality, correctness and appropriateness of the decision, in order to safeguard the right of the interested parties to expect that the person selected will be the most suitable and that all the candidates should have competed on equal terms.
34. Thus, Ms Hector’s claim is weakened: although the holding of meetings – not envisaged in the vacancy notice – with the three short-listed candidates did not have a bearing on the intention to engage the most able candidate to fill the post offered, there is nothing to indicate that, if they had not taken place, she would have been selected. Nor did it harm her in relation to the others, by reducing her chances, because for all of them it was a foreseeable procedure, owing to the nature of the post offered.
35. Furthermore, the test at issue is not only justified and proportionate but is also advisable, since the relationship of trust with the members of the EPP-ED is a significant feature of the post. There is therefore nothing immoderate or irregular in arranging for the Netherlands members of the group to have talks with the three persons short-listed, because the person selected would have to work closely with them in their parliamentary work.
36. The Court of First Instance did not infringe the principles of legality, legal certainty or proportionality by declaring that, by organising personal interviews not announced in the vacancy notice, the contracting authority did not exceed its discretionary power to determine the procedure to be followed. Accordingly, the first ground of the appeal must be rejected.
37. Moreover, the judgments cited by Ms Hectors do not support her claims. The judgment given by the Court of First Instance in Coget and Others v Court of Auditors, cited above, refers specifically to a case very different from her own: the applicants sought to have an exchange of views in a procedure in which a priori
it had not been considered appropriate. The judgment recognises that the contracting authority is not required to hold meetings with the candidates, if that step is not included in the rules adopted (paragraphs 136 and 137), but it adds that nothing prohibits it from doing so. Also of no interest in that respect are the judgments of the Court of Justice in Ragusa
v Commission
and Parliament v Volger, (19) which concern the omission of procedures laid down in the vacancy notice. The former because it turned out that the procedure to which the applicant drew attention had not been omitted (paragraphs 4, 5 and 18) and the latter because the personal interview with the candidates, an essential element for an assessment of merits, had been left out in the case of one candidate but not the rest (paragraphs 8 to 16), so that the ratio decidendi was not so much that omission, in the abstract, as the discrimination suffered. The same view should be taken of the judgments in Pappas v Committee of the Regions (20) and Robinson
v Parliament, (21) mentioned by Ms Hector’s defence at the hearing, which also refer to procedural irregularities resulting from omissions: the lack of a second interview with the candidates and the exclusion of a comparative examination of their merits, respectively.
38. Also, the Court of First Instance cannot be criticised for finding justification for the interview in the element of mutual trust, since it did not upset the equality between the parties by introducing into the debate an argument not put forward by the defendant. On the contrary it has confined itself, in accordance with the principle iura novit curia, to considering specifically one of the features which characterise temporary staff, according to Article 2(c) of the Conditions of Employment.
3. The statement of reasons for the decision
39. According to the contested judgment, given the nature of the employment offered, the obligation to state reasons was fulfilled by the statement that the conditions for regularity of the recruitment procedure were satisfied (paragraph 41).
40. That assertion is unobjectionable, provided that it is regarded as the minimum threshold of the obligation of the public authorities to explain their decisions, when they affect the rights and interests of others. Article 25 of the Staff Regulations, applicable to temporary staff by virtue of Article 11 of the Conditions of Employment, requires decisions adversely affecting the addressee to be explained. The interpretation of this provision has acquired a new dimension since, in the Charter of Fundamental Rights of the European Union, (22) the obligation to state reasons forms part of the right of the Community citizens to good administration (Article 41(2), third indent).
41. The decision to reject the candidature of one applicant and to appoint another is an upsetting one and, therefore, undoubtedly has to be properly reasoned. That is the view taken in Community case-law, according to which such acts must be reasoned, at least at the stage at which the complaint lodged by the eliminated candidate is rejected. (23)
The scope of that obligation depends on the circumstances of each case; since its purpose is both to enable the Court to review the legality of the contested decision and to provide the person concerned with the information he needs to protect his legal rights, (24) it should not contain solemn declarations, elegant clauses or abstract statements which are not directly connected with the details of the case, because, as I said on another occasion, (25) the statement of reasons is not just a courtesy or a routine formality. It is above all a rationalising factor in the exercise of power, facilitating review thereof, and also operates to prevent arbitrariness and to provide protection.
42. Against that background, the reasons that the contracting authority gave to Ms Hectors, after keeping silent, (26) to justify the decision to recruit Mr B., even though he was last on the ad hoc
committee’s list, are insufficient. The general reference to the applicable provisions and the statement that the recommendation was not binding do not give a full account of the reasons for the choice and therefore do not satisfy the requirements which, in view of its purpose, every statement of reasons must meet.
43. As I have already said, each institution has extensive freedom to organise the selection procedures for temporary staff and to choose the most suitable candidate. In the exercise of that freedom to make arrangements, it may appoint a board to examine the abilities and aptitudes of the candidates in the light of the requirements of the post, and to make recommendations. By so doing, the contracting authority loses not a jot of its discretionary power of selection. (27) However, according to Community case-law, if such a body is set up with the task of facilitating the decision, ensuring greater rigour in the appointment, by issuing a report or recommendation, its opinion is one of the factors on which the institution bases its own assessment of the candidates, (28) so that, if it departs from the board’s opinion, it is required to give reasons for its decision. (29)
44. The above principle, which was established in relation to the promotion of officials, has been extended by the Court of First Instance to the recruitment of temporary staff, because in both cases a comparison is made between several candidates, as was pointed out in the judgment in Pierrat
v Court of Justice
(paragraphs 36 and 38) (30) in a case in which the person selected was not on the shortlist. The aforementioned obligation to state the reasons for the selection also applies where, as has happened on this occasion, there is a preference for one of the short-listed candidates which does not reflect the recommended order.
45. Therefore, there is nothing to compel the contracting authority to accept the suggestion but, if it rejects the advice, it must state its reasons for doing so: first, because it is presumed that the ranking established by the advisory body reflects the relative suitability of each applicant to occupy the post offered, in accordance with Article 12 of the Conditions of Employment, which pursues the aim of recruiting as temporary staff persons of ‘the highest standard of ability, efficiency and integrity’; secondly, because the other candidates, especially those higher on the list than the person selected, are entitled to know the reasons for which a person who, in the view of a selection board, would not be the most suitable, is chosen.
46. That obligation to state reasons becomes even stronger in a case such as this one, in which the institution added a step, for which provision was not initially made, consisting of a personal interview with the members of the parliamentary group with whom the appointee would be called upon to work. Although, given the nature of the post, it is reasonable that such a step should have been incorporated in the procedure, it should be stated, since there is no documentary record of its terms, whether the decision to appoint Mr B., who was the last on the selection board’s list, with a large gap between him and the other two candidates, was the result of the impression he made on the Netherlands members of the group during the personal meetings, and appropriate explanations should be provided in that regard.
47. The European Parliament, far from following that rule of conduct, first kept quiet, and then, when asked for information by Ms Hectors, provided stereotyped and general replies and, finally, during the proceedings, supplied a belated and, accordingly, ineffective, statement of reasons; it therefore failed to fulfil the obligation to give reasons for its decision. By not seeing it that way, the Court of First Instance erred in the manner alleged by Ms Hectors in the second ground of appeal, and the judgment should therefore be annulled.
B – The secondary examination of the third and fourth pleas in law
48. If the Court of Justice considers that the contested administrative acts are lawful and, accordingly, that the Court of First Instance did not commit any legal infringement, the other two grounds of appeal, which challenge the content of the decision, should also be rejected.
49. The following observations are based on the hypothesis that, since the decision was adequately reasoned, the applicant and the Community judicature were in a position to ascertain the reasons for the contested acts, and the former to exercise her rights of defence and the latter to exercise its jurisdiction.
1. The ‘best’ candidature
50. By her third plea, which alleges infringement of Article 12 of the Conditions of Employment and of the notion of interests of the service, the appellant seeks to have the Community judicature act as a court with the power to rule on the selection procedure and to enter a territory which, as a rule, it is forbidden to enter, either at first instance or on appeal.
51. The contested judgment states (paragraph 69) that the Court may not impose its assessment of the abilities referred to, thereby overriding that of the contracting authority, and must limit its examination to establishing whether the administrative decision was arrived at within the relevant limits, so as not to be manifestly incorrect, and that, in the present case, it did not exceed its discretion by preferring Mr B. because, as his curriculum vitae
shows, he had established that he had adequate experience in the agriculture and forestry sector (paragraphs 72, 74 and 76).
52. By now persisting in following the same line of argument, criticising the Court of First Instance for not behaving as she expected, Ms Hectors is asking the Court of Justice to put itself in the position of the administration and to impose its view on the contracting authority. By repeating that her candidature was better than that of Mr B., she is asking that the merits of the two applicants be compared in an analysis of the facts which the Court hearing the appeal is not permitted to carry out. (31)
53. In a sphere which is different but closely linked to that of this case (the promotion of officials), the Court of Justice has acknowledged that it is for the administration to carry out a comparative examination of the talents of the candidates and to choose the one who, in the light of his abilities and the tasks to be carried out, is the most suitable to fill the vacancy, (32) and that the courts are not empowered to replace that assessment with their own evaluation. (33)
54. In those circumstances, the Court of Justice cannot criticise the Court of First Instance for infringing Article 12 of the Conditions of Employment because it ratified a decision which did not select the most suitable candidate.
2. Access to the Community civil service without discrimination between men and women
55. The rejection of the fourth plea is a consequence of the failure of the previous one. Once it has been established that the Court of First Instance did not infringe Article 12 of the Conditions of Employment or the rule upholding the interests of the service, because Mr B.’s appointment is regarded as lawful, it can hardly be argued that there was discrimination. If the body on which the legal system confers decision-making powers chooses, in the correct exercise of its authority, the person suitable for the post offered, it is clear that it has not taken its decision according to spurious criteria inconsistent with the principle of equality.
56. Therefore, the appellant’s pregnancy, the awareness of her condition and the fact that the candidate ultimately selected, the only male, was last on the list, are not evidence of a sexist attitude which the European Parliament must correct. (34)
V – The decision of the Court of Justice in this case
57. If the second ground of appeal is upheld, the contested judgment will have to be set aside. Once it has been annulled, the Court of Justice, under the first paragraph of Article 54 of the EC Statute of the Court, must give a ruling on the substance of the action.
58. The inadequate reasoning of the contested administrative measures, of which Ms Hectors complained in the proceedings, prevents the Community judicature from properly carrying out the review it is required to make since, owing to that deficiency, it does not know for what reasons the contracting authority was prompted to depart from the opinion of the selection board. Thus, it is unable to analyse whether there actually was an infringement of Article 12 of the Conditions of Employment or of the principle of equality of the sexes in respect of access to the Community civil service
59. In short, the only evisageable solution would be to annul Mr B.’s appointment and the decision of 28 May 2001 rejecting the complaint lodged by Ms Hectors. It is not necessary, however, to give a ruling on the letter sent to her by the chairman of the committee on 31 January that year in answer to her request for information, which is a belated and inadequate explanation for the decision.
60. The applicant also seeks compensation of one euro for the material and non-material damage caused, but this claim is unfounded and should be rejected, since the measures it relates to, which, it is suggested in this opinion, should be annulled, do not contain any negative assessment of her qualities that would be likely to cause her any harm. (35) Furthermore, the annulment could be regarded as adequately providing the compensation she seeks. (36)
VI – Costs in the proceedings at both instances
61. Since Ms Hectors has partially succeeded__ the parties should each bear their own costs, in accordance with the first paragraph of Article 87(3) of the Rules of Procedure of the Court of First Instance. (37)
62. The costs of these appeal proceedings must be borne by the European Parliament, pursuant to the first paragraph of Article 122 in conjunction with the first paragraph of Article 69(2) of the Rules of Procedure of the Court of Justice.(38)
VII – Conclusion
63. In the light of the foregoing considerations, I propose that the Court of Justice :
(1) uhold the second ground of appeal put forward by Chantal Hectors against the judgment of the Fifth Chamber of the Court of First Instance of 23 January 2003 in Case T-181/01;
(2) set aside that judgment;
(3) allow in part the claim brought by Ms Hectors and annul Mr B.’s appointment as Assistant Administrator, as a Dutch-speaking member of the temporary staff, in the EPP-ED Group (vacancy notice No G-453), and the decision of 28 May 2001 of the Chairman of the aforementioned parliamentary group rejecting the applicant’s complaint against that appointment;
(4) dismiss the remaining grounds of appeal;
(5) order the parties to bear their own costs at first instance and order the European Parliament to pay the costs of this appeal.
(1) .
(2)
–	Case T-181/01 Hectors
v Parliament
[2003] ECR-SC I-A-19 and II-103.
(3)
–	Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ, English Special Edition 1968(I), p. 30). That measure, which amended Council Regulation No 31 (EEC), 11 (EAEC) of 18 December 1961 ( Journal Officiel
1962 45, p. 1385), has itself been amended on numerous occasions.
(4)
–	Their publication details are the same as those of the Staff Regulations.
(5)
–	Internal Rules on the recruitment of officials and other servants, and on change of grade or service (consolidated text following the amendments which came into force in 1989, 1992, 1994, 1995, 1996, 1997, 1998 and 2001).
(6)
– He ought to have referred to Articles 8 and 9 of the Internal Rules or to the fifth and sixth rules of the parliamentary group.
(7)
–	Article 212 of the EEC Treaty which (like Article 186 of the EAEC Treaty) was repealed by Article 24(2) of the Treaty of 8 April 1965 establishing a Single Council and a Single Commission of the European Communities, includes, without amendment, the content of the second subparagraph of Article 24(1). This legislative operation was carried out in the Treaty of Amsterdam (Article 6(71)).
(8)
–	These employees, who make up the category known as ‘external staff’, to whom neither the Staff Regulations nor the Conditions of Employment apply, are in turn divided into two groups. The first comprises national experts on secondment, correspondents, visiting scientists and stagiaires, who are governed by the specific rules of each institution. The second group covers employment relationships governed by private law: recruitment under contracts governed by general employment law, contracts through placement agencies and temporary staff engaged under agreements concluded with temporary employment agencies, among others.
(9)
–	The Proposal for a Council Regulation amending the Staff Regulations and the Conditions of Employment (COM (2002) 213 final) adds the category of ‘contract staff’.
(10)
–	Fuentetaja Pastor, J.A., Función pública comunitaria, Marcial Pons, Ediciones Jurídicas y Sociales SA, Madrid-Barcelona 2000, p. 50.
(11)
–	When defining the term ‘official’, Article 1 of the Staff Regulations refers to established posts. Servants, whether temporary or auxiliary, may also be appointed to this kind of post, as is clear from Articles 2(b) and (d) and 3(b) of the Staff Regulations. Penaud, J., in ‘La fonction publique des Communautés Européennes’, Problèmes politiques et sociaux, La Documentation Française, No 617, Paris, 13 October 1989, p. 11, has pointed out that a person is not recruited to the temporary staff on the basis that he is to occupy a temporary post; that may be the case, but he may end up with a permanent job.
(12)
–	Fuentetaja, Pastor, J.A., cited above, p. 44.
(13)
–	The first paragraph of Article 1 of the Staff Regulations states that ‘“official of the Communities” means any person who has been appointed ... to an established post on the staff of one of the institutions of the Communities ...’ That article, read in conjunction with the provisions of the Conditions of Employment limiting the term of the contracts concluded with other servants, shows that the essence of being an official lies in the fact that the post is permanent and is occupied on a permanent basis.
(14)
–	However, the term ‘Community civil service’ should be limited to the tasks of guiding, devising, reviewing, interpreting and implementing the policies of the European Union, carried out by employees covered by the Staff Regulations, either in permanent posts or, depending on the nature of the assignment, in temporary posts, whereas physical, merely auxiliary tasks, could well be governed by a different system, closer to labour law institutions. It appears that the aforementioned Proposal for a Council Regulation amending the Staff Regulations and the Conditions of Employment is in part pursuing that idea, by creating the role of ‘contract staff’ for manual, service or support operations (Article 3(1), first indent).
(15)
–	European Commission (DG IX, Personnel and Administration, Recruitment Service), Guide for Selection Panels and Selection Boards, October 1996, pp. 9 and 10.
(16)
–	In any event, the procedures for selecting officials are not per se applicable to temporary staff, as the Court of First Instance pointed out in its judgment in Case T-95/01 Coget and Others
v Court of Auditors
[2001] ECR-SC I-A-191 and II-879, paragraph 56, to which it refers in paragraph 94 of the judgment which is the subject of this appeal.
(17)
–	The Court of Justice has so stated in relation to the conditions required for submitting an application (Case C-107/90 P Hochbaum
v Commission
[1992] ECR I-157, paragraph 9) or for taking up the post (Case C-343/87 Culin
v Commission
[1990] ECR I-225, paragraph 19), and also in relation to the introduction of a preliminary procedure of consultation of a recruitment committee (Case 282/81 Ragusa
v Commission
[1983] ECR 1245, paragraph 18).
(18)
–	Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P [2004] ECR I-0000.
(19)
–	Case C-115/92 [1993] ECR I-6549.
(20)
–	Case T-73/01 [2003] ECR II-0000.
(21)
–	Case T-328/01 [2004] ECR II-0000.
(22)
–	OJ 2000 C 364, p. 1.
(23)
–	Parliament
v Volger, paragraphs 22 and 23
(24)
– See Joined Cases 33/79 and 75/79 Kuhner
v Commission
[1980] ECR 1677, paragraph 15; Case 176/82 Nebe
v Commission
[1983] ECR 2475, paragraph 21; Case 69/83 Lux
v Court of Auditors
[1984] ECR 2447, paragraph 36; and Case C-169/88 Prelle
v Commission
[1989] ECR 4335, paragraph 9.
(25)
– Point 19 of my Opinion of 14 June 2001 in Case C-120/99 Italy
v Council
[2001] ECR I-7997.
(26)
–	In Parliament
v Volger, the Court of Justice pointed out that, although the appointing authority is not, in general, required to reply to a complaint, the position is different where the decision at issue is not reasoned (paragraph 23) – silence being a lack of reasons taken to the extreme.
(27)
–	In Case T-217/96 Fabert-Goossens
v Commission
[1998] ECR-SC I-A-607 and II-1841, the Court of First Instance pointed out that the institutions have a very wide discretion to choose between the candidates included on the lists of suitable applicants, in that they are under no obligation, once the selection procedure has begun, to ensure that it ends with the vacancy being filled or to follow the exact order in which those who have passed the tests are listed (paragraph 28).
(28)
–	See Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes
v Commission
[1987] ECR 3259, paragraph 16.
(29)
–	Case T-25/90 Schönherr
v ESC
[1992] ECR II-63, paragraph 29.
(30)
–	Case T-60/94 [1995] ECR-SC I-A-23 and II-77.
(31)
–	It is undisputed that the Court of Justice may only correct a legal infringement committed by the Court of First Instance but never establish the facts – without prejudice to its right to review their legal characterisation (see Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others
v Commission
[2001] ECR I-4717, paragraph 78; Case C-315/99 P Ismeri Europa
v Court of Auditors
[2001] ECR I-5281, paragraph 19; and Aalborg Portland and Others
v Commission, cited above, paragraphs 47 to 49).
(32)
–	See point 3 of the Opinion delivered on 15 October 1991 by Advocate General Tesauro in Hochbaum and Rawes
v Commission .
(33)
–	Ragusa
v Commission, paragraph 13, and Case C-277/01 P Parliament
v Samper
[2003] ECR I-3019, paragraph 35.
(34)
–	Since Case 20/71 Sabbatini
v Parliament
[1972] ECR 345, the Court of Justice has recognised the need to ensure equality between men and women employed by the Community, a principle which implies the application not only of the provisions of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) but also those of the Community directives adopted in this sphere, in accordance with the judgment in Joined Cases 75/82 and 117/82 Razzouk and Beydoun
v Commission
[1984] ECR 1509. Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) provide, in Articles 4(1) and 10(1) respectively, that, where an applicant adduces evidence of discriminatory treatment, it is for the defendant to prove that there has been no breach of the principle of equal treatment.
(35)
–	See, a sensu contrario, Culin
v Commission, paragraphs 27 to 29.
(36)
–	See Hochbaum and Rawes
v Commission and Culin
v Commission, paragraphs 22 and 26 respectively. Reference may also be made to Case 128/84 Van der Stijl
v Commission
[1985] ECR 3281, paragraph 26.
(37)
–	Revised version (OJ 2003 C 193, p. 41).
(38)
–	Revised version (OJ 2003 C 193, p. 1).