OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER

delivered on 11 March 2004

– 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 ... 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.’

(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.

– Original language: Spanish.

– Case T-181/01 Hectors v Parliament [2003] ECR-SC I-A-19 and II-103.

– 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.

– Their publication details are the same as those of the Staff Regulations.

– 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).

– 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.

– 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)).

– 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.

– 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’.

– Fuentetaja Pastor, J.A., Función pública comunitaria, Marcial Pons, Ediciones Jurídicas y Sociales SA, Madrid-Barcelona 2000, p. 50.

– 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.

– Fuentetaja, Pastor, J.A., cited above, p. 44.

– 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.

– 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).

– European Commission (DG IX, Personnel and Administration, Recruitment Service), Guide for Selection Panels and Selection Boards, October 1996, pp. 9 and 10.

– 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.

– 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).

– 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.

– Case C-115/92 [1993] ECR I-6549.

– Case T-73/01 [2003] ECR II-0000.

– Case T-328/01 [2004] ECR II-0000.

– OJ 2000 C 364, p. 1.

– .Parliament v Volger, paragraphs 22 and 23

– 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.

– Point 19 of my Opinion of 14 June 2001 in Case C-120/99 Italy v Council [2001] ECR I-7997.

– 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.

– 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).

– See Joined Cases 44/85, 77/85, 294/85 and 295/85 Hochbaum and Rawes v Commission [1987] ECR 3259, paragraph 16.

– Case T-25/90 Schönherr v ESC [1992] ECR II-63, paragraph 29.

– Case T-60/94 [1995] ECR-SC I-A-23 and II-77.

– 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).

– See point 3 of the Opinion delivered on 15 October 1991 by Advocate General Tesauro in Hochbaum and Rawes v Commission.

– .Ragusa v Commission, paragraph 13, and Case C-277/01 P Parliament v Samper [2003] ECR I-3019, paragraph 35.

– 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.

– See, a sensu contrario, Culin v Commission, paragraphs 27 to 29.

– 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.

– Revised version (OJ 2003 C 193, p. 41).