Opinion of Mr Advocate General Darmon delivered on 19 November 1987. - Évelyne Delauche v Commission of the European Communities. - Officials - Equal treatment for men and women. - Case 111/86.



European Court reports 1987 Page 05345



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The applicant, Mrs Evelyne Delauche, an official of the Commission in Grade A 4, is deputy head of the Staff Regulations Division of the Personnel Directorate ( DG-IX-A1 ). She has brought proceedings before the Court for the annulment of three decisions of the Commission, and also claims that the Commission should be ordered to pay her damages and the costs of the case .

2 . The three decisions in issue are as follows :

( 1 ) the decision of 11 July 1985 whereby the Commission rejected her application for the post of Head of Division IX-B1, Administrative Rights and Remuneration, the vacancy notice for which was published on 12 April 1985;

( 2 ) the decision of 29 July 1985 nominating Mr Roberto Capogrossi to that post;

( 3 ) the decision of 10 March 1986 whereby the Commission refused to uphold her complaint against the preceding decisions .

3 . The action for annulment is based on four submissions which are put forward in decreasing order of importance . First of all, she alleges a breach of the Staff Regulations, in particular Article 5 ( 3 ), and of the principle of equality for men and women, a general principle of law . The second argument is based on the absence of a proper statement of reasons as required by Articles 7 ( 1 ) and 45 ( 1 ) of the Staff Regulations . In her third submission the applicant again alleges a breach of Article 5 ( 3 ) of the Staff Regulations and of the principle of equality for men and women, and misuse of powers on the part of the defendant . Finally, she alleges a breach of the principle of protection of legitimate expectations and of the duty to have regard to the interests of the employee .

4 . The argument based on the absence of a statement of reasons need not be the subject of a lengthy examination since in the Bonino judgment ( 1 ) it was stated that the case-law according to which the appointing authority is not bound to give reasons for its decisions as regards promotion is equally applicable where the candidates include women, so that the principle of equal treatment is not relevant in that respect . Moreover, at the hearing the applicant appeared to abandon that argument .

5 . Before I come to the main arguments in the case, I should touch on the very subsidiary argument put forward concerning the alleged breach of the duty to have regard to the interests of the employee and of the principle of the protection of legitimate expectations . It is in particular claimed that the appointing authority ought to have taken into consideration the applicant' s interest in being promoted, especially since the Commission has, in many declarations, indicated that effective steps would be taken to implement the principle of equality . Furthermore, the mobility shown by Mrs Delauche and the fact that she had acted as interim head of division ought to have counted in her favour .

6 . As the Court has held, although an interim or deputy posting is to be taken into consideration for the purposes of promotion, it does not give the person concerned the right to be reclassified . ( 2 ) Similarly, the assistant to an official whose post becomes vacant has no right to be appointed to that post, even if he has the qualifications necessary to fill it . ( 3 ) Furthermore, an official may invoke the principle of protection of legitimate expectations only in the face of "a situation which implies what could be described as breach of an undertaking", ( 4 ) and then only when precise assurances have been given to him by the administration ( 5 ) of such a kind as to "(( lead )) him to entertain reasonable expectations ". ( 6 ) In the present case, no definite undertaking was given regarding the applicant and she cannot rely on legitimate expectations founded on declarations of intent showing the general trend of a desirable policy . In that respect the evidence submitted shows that within the Commission specific action is being taken with a view to improving the current situation . Moreover, that argument is linked to the argument concerning the way the appointing authority exercised its discretion, which is dealt with in the third submission in the proceedings .

7 . In that submission the applicant alleges that the fact that the appointing authority did not accept her application constitutes a misuse of power on its part which was only explicable on the basis of the sexist policy followed by the Commission . In reply to that argument it need merely be pointed out that the Court has consistently held that the appointing authority enjoys a wide discretion with regard to the choice, in the interest of the service, of the best candidates for the posts to be filled . Review by the Court of decisions taken in that domain is limited, in essence, to ensuring that the appointing authority has kept within reasonable bounds ( 7 ) which are not open to criticism ( 8 ) and has not used its power in a manifestly incorrect way .

8 . From that point of view, it is not only the qualifications of the applicant - which are, needless to say, undisputed - that are to be taken into consideration, but also those of the ultimately successful candidate, with a view to carrying out a comparative examination of the respective merits of the applicants for the post . The Court cannot, however, substitute its own assessment of the qualifications and suitability of the candidates for that of the appointing authority . ( 9 )

9 . Mr Capogrossi was, like Mme Delauche, one of three people whose applications merited particular consideration, in the opinion of the Advisory Committee on Appointments to Grades A 2 and A 3 . I cannot see any manifest error in the appointment to the post of Head of the Administrative Rights and Remuneration Division of the holder of a degree in economics and business studies with Mr Capogrossi' s experience, as evidenced by his file, whose periodic reports have been excellent and who was preferred to the other candidates, in accordance with the proposal of the Commissioner responsible for the division in question . It is perfectly understandable that knowledge of actuarial matters was judged to be a decisive factor for the post of head of a division which deals inter alia with complex pension problems . It does not follow that the other candidates shortlisted by the Advisory Committee do not have the qualifications required to occupy the post . On the contrary, the three people shortlisted by that Committee satisfied all the requirements laid down in the vacancy notice . The reasons why the Commission chose to appoint Mr Capogrossi were explained clearly in the letter of 10 March 1986 in which Vice-President Christophersen informed the applicant that her complaint had been rejected and it cannot be argued, as the applicant seeks to do, that the choice ultimately made by the appointing authority was "surprising" or vitiated by a manifest error of assessment .

10 . It is also difficult to see how Mrs Delauche can accuse the Commission of adopting a sexist and discriminatory attitude towards her . In fact she has had a very remarkable career . Having initially been employed in 1959 in Category C 12, she moved rapidly through the different steps and was classified 18 months later in Category B 10 . After regular promotions within Grade B, she passed into Category A in 1965 and to Grade A 4, which she reached in 1979 . The applicant maintains, however, that because her attempts to be appointed in Grade A 3 were repeatedly unsuccessful, the reason must lie in a policy of sexual discrimination practised by the Commission . It is hard to understand how such an argument can be put forward when the applicant' s career to date makes it clear that she has not been the victim of any unfavourable prejudice .

11 . The essence of the application is in fact to be found in the first argument . The applicant seeks to have the Court uphold a right to preference for women where there is serious underrepresentation of women and when the male and female candidates are judged to be equally capable of occupying the post in question . She bases that right to preference on the principle of equality, believing that only if such a right is recognized will the inequalities between men and women in the higher ranks of the Community civil service be remedied .

12 . It cannot be denied that there does exist, within the Commission, a regrettable numerical imbalance between men and women in the A Category, to take just that category, which becomes more pronounced as one progresses towards the higher grades . It can be seen from the report of 18 March 1987 on the situation of women in the European institutions, ( 10 ) prepared on behalf of the European Parliament' s Committee on Women' s Rights ( the figures given being those valid on 6 May 1986 ), that out of 2 937 officials in Category A, 2 657 are men and 280 women . Small as that proportion of 10% is, is it the same for each grade? Not at all . Up to and including Grade A 5 that proportion is maintained and, in fact, often exceeded . From Grade A 4 onward there is a spectacular decline in the proportion of women . Thus, in the latter grade, there are only 43 women as against 817 men . In Grade A 3, there are six women and 347 men . In Grade A 2 all 132 officials are men and in Grade A 1 there is but one woman as against 43 men . That situation, rightly a cause for concern, is not unique to the Commission, nor, more generally, to the Community institutions . At both the national and international level an urgent need is felt for a means of enabling an increasing number of women to occupy posts which on the whole and in practice have until now been mainly reserved for men .

13 . It is against that background that the applicant seeks to establish a right to preference for women . In essence, she maintains that where several candidates of both sexes who are equally suitable and have identical qualifications apply for a specific post, a woman should be chosen if, in the composition of the group concerned, there is a serious imbalance to the detriment of women .

14 . Although there is undoubtedly a need for positive action - "affirmative action" - in favour of women, it does not seem to me that this can be accomplished by a court ruling that women have a right to preference . It is a question, in fact, not only of promotion but also of recruitment . Any specific action in favour of a minority category would find itself in conflict with the principle of formal equality . It is possible to imagine, however, that in certain well-defined circumstances and in order to attain a high-priority objective corresponding to a choice made by society, an objective intended to eradicate inequalities which resulted from past prejudice, measures might be taken which would erode such a principle but would still have adequate legal foundation .

15 . There are many techniques, already advocated or used in other contexts, which might be possible . One could envisage, for example, in accordance with the recommendation contained in the European Parliament' s Resolution on the situation of women in the institutions of the European Community, ( 11 ) the setting of target figures for annual progress to be made in the grades where women are under-represented . One could also envisage the adoption of a system of quotas for recruitment and promotion, or again the application of different standards according to whether men or women are involved . But in Community law such measures may only be taken by the legislature, and until the adoption of such measures, the legality of which the Court would no doubt be called upon to review, there is only one rule which can be applied, that of sexual neutrality . In the absence of any specific provision, the applicant does not, therefore, have any right to preference .

16 . Since no fault or illegality on the part of the Commission has been established, I propose that the action should be dismissed and each of the parties ordered to pay their own costs .

(*) Translated from the French .

( 1 ) Judgment of 12 February 1987 in Case 233/85 Bonino v Commission (( 1987 )) ECR 739 .

( 2 ) See, for example, judgment of 16 June 1971 in Case 77/70 Prelle v Commission (( 1971 )) ECR 561; judgment of 12 July 1973 in Case 28/72 Tontodonati v Commission (( 1973 )) ECR 779; judgment of 19 March 1975 in Case 189/73 Van Reenen v Commission (( 1975 )) ECR 445 .

( 3 ) Judgment of 29 October 1975 in Case 22/75 Koester v Parliament (( 1975 )) ECR 1267 .

( 4 ) L . Dubouis:"Fonctionnaires et agents des Communautés européennes", chronique, Revue trimestrielle de droit européen, 1983, p . 86, especially at p . 92 .

( 5 ) See, for example, Mr Advocate General Capotorti' s Opinion in Case 268/80 Guglielmi v Parliament (( 1981 )) ECR 2295, especially at pp . 2307 et seq .

( 6 ) Judgment of 19 May 1983 in Case 289/81 Mavridis v Parliament (( 1983 )) ECR 1731, especially at p . 1744 .

( 7 ) Judgment of 25 February 1987 in Case 52/86 Banner v Parliament (( 1987 )) ECR 979, paragraph 9 .

( 8 ) Judgment of 5 February 1987 in Case 306/85 Huybrechts v Commission (( 1987 )) ECR 629 .

( 9 ) Judgment of 4 February 1987 in Case 324/85 Bouteiller v Commmission (( 1987 )) ECR 529 .

( 10 ) European Parliament, Papers for the 1986-87 sitting, 18 March 1987, A Series, Document A2-257/86 .

( 11 ) European Parliament, Second Parliamentary Term, "Texts adopted by the European Parliament", Volume 6/87, June 1987 .