Judgment of the Court (First Chamber) of 27 October 1976. - Vivien Prais v Council of the European Communities. - Case 130-75.



European Court reports 1976 Page 01589

Greek special edition Page 00593

Portuguese special edition Page 00649

Swedish special edition Page 00201

Finnish special edition Page 00211



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - RECRUITMENT - COMPETITIONS ON THE BASIS OF TESTS - ORGANIZATION - PRINCIPLE OF EQUALITY - APPLICATION - CRITERIA

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 29 ( 1 ), ANNEX III , ARTICLES 1 AND 5 )

2 . OFFICIALS - RECRUITMENT - COMPETITIONS ON THE BASIS OF TESTS - ORGANIZATION - DATE - CERTAIN DATES IMPOSSIBLE FOR A CANDIDATE - RELIGIOUS REASONS - OBLIGATIONS ON THE PART OF THE ADMINISTRATION

( STAFF REGULATIONS OF OFFICIALS , ARTICLE 29 ( 1 ), ANNEX III , ARTICLES 1 AND 5 )

Summary

1 . WHEN A COMPETITION IS ON THE BASIS OF TESTS , THE PRINCIPLE OF EQUALITY NECESSITATES THAT THE TESTS SHALL BE ON THE SAME CONDITIONS FOR ALL CANDIDATES , AND IN THE CASE OF WRITTEN TESTS THE PRACTICAL DIFFICULTIES OF COMPARISON REQUIRE THAT THE WRITTEN TESTS FOR ALL CANDIDATES SHOULD BE THE SAME . IT IS THEREFORE OF GREAT IMPORTANCE THAT THE DATE OF THE WRITTEN TESTS SHOULD BE THE SAME FOR ALL CANDIDATES . THE INTEREST OF PARTICIPANTS NOT TO HAVE A DATE FIXED FOR A TEST WHICH IS UNSUITABLE MUST BE BALANCED AGAINST THIS NECESSITY .

2 . IF A CANDIDATE INFORMS THE APPOINTING AUTHORITY THAT RELIGIOUS REASONS MAKE CERTAIN DATES IMPOSSIBLE FOR HIM THE APPOINTING AUTHORITY SHOULD TAKE THIS INTO ACCOUNT IN FIXING THE DATE FOR WRITTEN TESTS , AND ENDEAVOUR TO AVOID SUCH DATES . ON THE OTHER HAND , IF THE CANDIDATE DOES NOT INFORM THE APPOINTING AUTHORITY IN GOOD TIME OF HIS DIFFICULTIES THE APPOINTING AUTHORITY WOULD BE JUSTIFIED IN REFUSING TO AFFORD AN ALTERNATIVE DATE , PARTICULARLY IF THERE ARE OTHER CANDIDATES WHO HAVE BEEN CONVOKED FOR THE TEST .

Parties

IN CASE 130/75

VIVIEN PRAIS , RESIDING AT 83 , WEST HEATH ROAD , LONDON NW3 ., REPRESENTED BY FRANCIS JACOBS , BARRISTER , OF THE MIDDLE TEMPLE , LONDON , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE HOME OF MRS CAROLINE REID , 21 BOULEVARD GRANDE-DUCHESSE CHARLOTTE ,

APPLICANT ,

V

COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY HENRY DARWIN , DIRECTOR-GENERAL OF THE LEGAL DEPARTMENT OF THE GENERAL SECRETARIAT OF THE COUNCIL , ACTING AS AGENT , ASSISTED BY ANTONIO SACCHETINI , LEGAL ADVISER , OF THE SAME DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF J . NICOLAAS VAN DEN HOUTEN , DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK , 2 PLACE DE METZ ,

DEFENDANT ,

AND

DAVID GRANT LAWRENCE , AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES , RESIDING AT RESIDENCE ' LES GAULOIS ' , AVENUE DES GAULOIS , BRUSSELS , REPRESENTED BY ROGER O . DALCQ , ADVOCATE , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JACQUES LOESCH , ADVOCATE , 2 RUE GOETHE ,

INTERVENER ,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DEFENDANT ' S DECISION OF 29 SEPTEMBER 1975 REJECTING THE APPLICANT ' S COMPLAINT OF 14 JULY 1975 CONCERNING THE REJECTION , ON 5 MAY 1975 , OF HER REQUEST OF 25 APRIL 1975 TO TAKE THE TESTS FOR COMPETITION COUNCIL/LA/108 AT A DATE OTHER THAN THAT FIXED BY THE DEFENDANT ; FOR ANNULMENT OF THE SAID DECISION OF 5 MAY 1975 ; FOR ANNULMENT OF THE RESULTS OF THE COMPETITION IN SO FAR AS THEY MAY HAVE BEEN AFFECTED BY THIS REFUSAL ; AND FOR DAMAGES ,

Grounds

1 WHEREAS , BY APPLICATION REGISTERED IN THE REGISTRY OF THE COURT ON 23 DECEMBER 1975 , THE PLAINTIFF , OF BRITISH NATIONALITY , A CANDIDATE IN OPEN COMPETITION ' COUNCIL/LA/108 ' , WITH A VIEW TO RECRUITING A LINGUISTIC EXPERT ( TRANSLATOR ) OF ENGLISH MOTHER TONGUE AND TO CREATE A RESERVE LIST , SEEKS

( A ) THE ANNULMENT OF THE DECISION , CONTAINED IN A LETTER DATED 29 SEPTEMBER 1975 , FROM THE SECRETARY-GENERAL OF THE DEFENDANT , REJECTING THE PLAINTIFF ' S COMPLAINT LODGED ON 14 JULY 1975 ,

( B ) THE ANNULMENT OF THE DEFENDANT ' S DECISION OF 5 MAY 1975 , REFUSING THE PLAINTIFF ' S REQUEST MADE BY LETTER OF 25 APRIL 1975 , FOR AN ALTERNATIVE DATE FOR THE WRITTEN TEST IN THE SAID COMPETITION ,

( C ) THE ANNULMENT OF THE RESULTS OF THE SAID COMPETITION IN SO FAR AS THEY MAY HAVE BEEN AFFECTED BY THAT REFUSAL ,

( D ) AND THE AWARD OF DAMAGES .

2 BY LETTER OF 25 APRIL 1975 , THE PLAINTIFF INFORMED THE COUNCIL THAT , BEING OF JEWISH RELIGION , AND FRIDAY , 16 MAY 1975 - THE DATE FIXED BY THE DEFENDANT FOR THE WRITTEN TEST IN THE SAID COMPETITION , WHICH SHOULD TAKE PLACE SIMULTANEOUSLY IN BRUSSELS AND LONDON - BEING THE FIRST DAY OF THE JEWISH FEAST OF SHAVUOT ( PENTECOST ), DURING WHICH IT IS NOT PERMITTED TO TRAVEL OR TO WRITE , SHE WOULD BE UNABLE TO UNDERGO THE TEST ON THAT DAY , AND ASKED THE COUNCIL TO FIX ANOTHER DAY FOR THE TEST .

3 BY LETTER OF 5 MAY 1975 , THE COUNCIL REPLIED TO THE PLAINTIFF THAT IT COULD NOT FIX ANOTHER DATE , SINCE IT WAS ESSENTIAL THAT ALL CANDIDATES SHOULD BE EXAMINED ON TESTS PASSED ON THE SAME DATE .

4 BY APPLICATION INSCRIBED ON THE REGISTER OF THE COURT ON 7 APRIL 1976 , MR DAVID GRANT LAWRENCE , A PERSON RECRUITED AS A RESULT OF THE SAID COMPETITION , SOUGHT TO INTERVENE IN THIS CASE , WHICH WAS PERMITTET BY ORDER OF THE COURT ( FIRST CHAMBER ) ON 21 MAY FOLLOWING .

5 DURING THE ORAL HEARING , THE PLAINTIFF ABANDONED HER COMPLAINT CONCERNING THE ANNULMENT OF THE RESULTS OF THE COMPETITION IN QUESTION , WHILE MAINTAINING THAT THE COSTS OF THE INTERVENTION SHOULD NOT BE BORNE BY HER .

6 THE PLAINTIFF CLAIMS FIRSTLY THAT THE REFUSAL OF HER REQUEST HAD AS A RESULT THAT BY REASON OF HER RELIGIOUS CONVICTIONS SHE WAS PREVENTED FROM TAKING PART IN THE COMPETITION , IN CONTRAVENTION OF ARTICLE 27 , SECOND PARAGRAPH OF THE STAFF REGULATIONS , WHICH PROVIDES THAT OFFICIALS SHALL BE SELECTED WITHOUT REFERENCE TO RACE , CREED OR SEX .

7 IN ADDITION THE PLAINTIFF CLAIMS THAT RELIGIOUS DISCRIMINATION IS PROHIBITED BY COMMUNITY LAW AS BEING CONTRARY TO THE FUNDAMENTAL RIGHTS OF THE INDIVIDUAL , RESPECT FOR WHICH THE COURT IS BOUND TO ENSURE .

8 THE PLAINTIFF ALSO RELIES ON ARTICLE 9 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS , PARAGRAPH ( 2 ) OF WHICH PROVIDES AS FOLLOWS : ' FREEDOM TO MANIFEST ONE ' S RELIGIONS OR BELIEFS SHALL BE SUBJECT ONLY TO SUCH LIMITATIONS AS ARE PRESCRIBED BY LAW AND ARE NECESSARY IN A DEMOCRATIC SOCIETY IN THE INTERESTS OF PUBLIC SAFETY , FOR THE PROTECTION OF PUBLIC ORDER , HEALTH OR MORALS , OR FOR THE PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS ' . SINCE THE EUROPEAN CONVENTION HAS BEEN RATIFIED BY ALL THE MEMBER STATES THE RIGHTS ENSHRINED IN IT ARE , ACCORDING TO THE PLAINTIFF , TO BE REGARDED AS INCLUDED IN THE FUNDAMENTAL RIGHTS TO BE PROTECTED BY COMMUNITY LAW .

9 THE PLAINTIFF CLAIMS THAT ARTICLE 27 OF THE STAFF REGULATIONS IS TO BE INTERPRETED IN SUCH A MANNER THAT THE DEFENDANT SHOULD SO ARRANGE THE DATES OF TESTS FOR COMPETITIONS TO ENTER ITS SERVICE AS TO ENABLE EVERY CANDIDATE TO TAKE PART IN THE TESTS , WHATEVER HIS RELIGIOUS CIRCUMSTANCES . ALTERNATIVELY THE RIGHT OF FREEDOM OF RELIGION GUARANTEED BY THE EUROPEAN CONVENTION SO REQUIRES .

10 THE DEFENDANT DOES NOT DENY THAT ARTICLE 27 OF THE STAFF REGULATIONS REQUIRES THAT OFFICIALS SHALL BE SELECTED WITHOUT REFERENCE TO RACE , CREED OR SEX , NOR DOES IT SEEK TO SUGGEST THAT THE RIGHT OF FREEDOM OF RELIGION AS EMBODIED IN THE EUROPEAN CONVENTION DOES NOT FORM PART OF THE FUNDAMENTAL RIGHTS RECOGNIZED IN COMMUNITY LAW , BUT SAYS THAT NEITHER THE STAFF REGULATIONS NOR THE EUROPEAN CONVENTION ARE TO BE UNDERSTOOD AS ACCORDING TO THE PLAINTIFF THE RIGHTS SHE CLAIMS .

11 THE DEFENDANT SUBMITS THAT SUCH AN OBLIGATION WOULD FORCE IT TO SET UP AN ELABORATE ADMINISTRATIVE MACHINERY . ARTICLE 27 DOES NOT LIMIT ITS APPLICATION TO ANY PARTICULAR CREEDS BY ENUMERATING THEM , AND IT WOULD BE NECESSARY TO ASCERTAIN THE DETAILS OF ALL RELIGIONS PRACTISED IN ANY MEMBER STATE IN ORDER TO AVOID FIXING FOR A TEST A DATE OR A TIME WHICH MIGHT OFFEND AGAINST THE TENETS OF ANY SUCH RELIGION AND MAKE IT IMPOSSIBLE FOR A CANDIDATE OF THAT RELIGIOUS PERSUASION TO TAKE PART IN THE TEST .

12 THE STAFF REGULATIONS ENVISAGE THAT WHEN A VACANT POST IS BEING FILLED , AND IT IS DECIDED NOT TO FILL IT BY PROMOTION OR TRANSFER , THE SELECTION OF THE CANDIDATE TO BE APPOINTED SHALL , IN GENERAL , BE MADE BY FOLLOWING THE PROCEDURE OF COMPETITION WHICH MAY BE ON THE BASIS OF QUALIFICATIONS OR OF TESTS OR OF BOTH QUALIFICATIONS AND TESTS .

13 WHEN THE COMPETITION IS ON THE BASIS OF TESTS , THE PRINCIPLE OF EQUALITY NECESSITATES THAT THE TESTS SHALL BE ON THE SAME CONDITIONS FOR ALL CANDIDATES , AND IN THE CASE OF WRITTEN TESTS THE PRACTICAL DIFFICULTIES OF COMPARISON REQUIRE THAT THE WRITTEN TESTS FOR ALL CANDIDATES SHOULD BE THE SAME .

14 IT IS THEREFORE OF GREAT IMPORTANCE THAT THE DATE OF THE WRITTEN TESTS SHOULD BE THE SAME FOR ALL CANDIDATES .

15 THE INTEREST OF PARTICIPANTS NOT TO HAVE A DATE FIXED FOR THE TEST WHICH IS UNSUITABLE MUST BE BALANCED AGAINST THIS NECESSITY .

16 IF A CANDIDATE INFORMS THE APPOINTING AUTHORITY THAT RELIGIOUS REASONS MAKE CERTAIN DATES IMPOSSIBLE FOR HIM THE APPOINTING AUTHORITY SHOULD TAKE THIS INTO ACCOUNT IN FIXING THE DATE FOR WRITTEN TESTS , AND ENDEAVOUR TO AVOID SUCH DATES .

17 ON THE OTHER HAND IF THE CANDIDATE DOES NOT INFORM THE APPOINTING AUTHORITY IN GOOD TIME OF HIS DIFFICULTIES , THE APPOINTING AUTHORITY WOULD BE JUSTIFIED IN REFUSING TO AFFORD AN ALTERNATIVE DATE , PARTICULARLY IF THERE ARE OTHER CANDIDATES WHO HAVE BEEN CONVOKED FOR THE TEST .

18 IF IT IS DESIRABLE THAT AN APPOINTING AUTHORITY INFORMS ITSELF IN A GENERAL WAY OF DATES WHICH MIGHT BE UNSUITABLE FOR RELIGIOUS REASONS , AND SEEKS TO AVOID FIXING SUCH DATES FOR TESTS , NEVERTHELESS , FOR THE REASONS INDICATED ABOVE , NEITHER THE STAFF REGULATIONS NOR THE FUNDAMENTAL RIGHTS ALREADY REFERRED TO CAN BE CONSIDERED AS IMPOSING ON THE APPOINTING AUTHORITY A DUTY TO AVOID A CONFLICT WITH A RELIGIOUS REQUIREMENT OF WHICH THE AUTHORITY HAS NOT BEEN INFORMED .

19 IN SO FAR AS THE DEFENDANT , IF INFORMED OF THE DIFFICULTY IN GOOD TIME , WOULD HAVE BEEN OBLIGED TO TAKE REASONABLE STEPS TO AVOID FIXING FOR A TEST A DATE WHICH WOULD MAKE IT IMPOSSIBLE FOR A PERSON OF A PARTICULAR RELIGIOUS PERSUASION TO UNDERGO THE TEST , IT CAN BE SAID THAT THE DEFENDANT IN THE PRESENT CASE WAS NOT INFORMED OF THE UNSUITABILITY OF CERTAIN DAYS UNTIL THE DATE FOR THE TEST HAD BEEN FIXED , AND THE DEFENDANT WAS IN ITS DISCRETION ENTITLED TO REFUSE TO FIX A DIFFERENT DATE WHEN THE OTHER CANDIDATES HAD ALREADY BEEN CONVOKED .

20 FOR THESE REASONS THE PLAINTIFF ' S CLAIM SHOULD BE REJECTED .

Decision on costs

COSTS

21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

22 THE PLAINTIFF HAS FAILED IN HER SUBMISSIONS .

23 HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE , IN PROCEEDINGS UNDER ARTICLE 95 ( 2 ) OF THE RULES , INSTITUTIONS SHALL BEAR THEIR OWN COSTS .

24 IN SO FAR AS THE COSTS OF INTERVENER ARE CONCERNED , THE INTERVENER HAD A LEGITIMATE RIGHT TO INTERVENE TO PROTECT HIS APPOINTMENT MADE AS A RESULT OF THE COMPETITION IN QUESTION , AND IT IS , THEREFORE , NOT APPROPRIATE THAT , HAVING SUCCEEDED IN HIS INTERVENTION , HE SHOULD BE MADE TO BEAR HIS OWN COSTS .

25 FOR THIS REASON THE PLAINTIFF SHOULD BEAR THE INTERVENER ' S COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE PLAINTIFF AND THE COUNCIL TO BEAR THEIR OWN COSTS ;

3 . ORDERS THE PLAINTIFF TO BEAR THE INTERVENER ' S COSTS .