C-130/75

JUDGMENT OF THE COURT (FIRST CHAMBER) 27 OCTOBER 1976 1

Vivien Prais

v Council of the European Communities

Case 130/75

Summary

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)

applicant,

1 — Language of the Case: English.

JUDGMENT OF 27. 10. 1976 — CASE 130/75

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,

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

PRAIS v COUNCIL

JUDGMENT

Facts

The facts and the arguments of the (2) of the Staff Regulations, which the parties put forward in the written Council rejected on 29 September. procedure may be summarized as follows: Thereupon the applicant, by an application dated 18 December 1975, lodged at the Registry of the Court of I — Facts and procedure Justice on 23 December 1975, originated the present proceedings. In Official Journal C 36 of 15 February 1975, page 7, the Secretariat of the By an application lodged at the Court Council published a notification of open Registry on 7 April 1976, Mr David competition, Council/LA/108, for Grant Lawrence made an application to recruitment of a legal/linguistic expert intervene in the case. (translator) of English mother tongue, and to draw up a reserve list. By an order of 21 May 1976, the Court (First Chamber) allowed the intervention. The applicant, a British national, submitted an application on the II — Conclusions of the parties prescribed form.

JUDGMENT OF 27. 10. 1976 — CASE 130/75

III — Submissions and argu­ To allow a candidate to take a written ments of the parties put test on a different date from other forward in the written candidates would create injustice for the procedure latter. It would not be possible for identical papers to be used on the two (a) Submission based on infringement of dates since there would be a risk of the second paragraph of Article 27 of disclosure to the candidates who attended the Staff Regulations on the later date thereby giving them an evident advantage. It would not be The applicant argues that the effect of possible to suggest different papers on the refusal of her request was to preclude the two dates without making the her from taking part in the competition comparison between the merits of the by reason of her religion, contrary to the candidates unfair. Furthermore, second paragraph of Article 27 of the candidates competing after others would Staff Regulations, which provides that have more time to prepare for the officials shall be selected without competition. reference to race, creed or sex. The effect of the said paragraph is that the If the practice of a second date were Community institutions must make such adopted, the variety of religious opinions arrangements for recruitment as will not in the Community would make it discriminate against candidates on the impossible for the Council to distinguish ground of their religion. between them. Apart from the question of the sincerity of the request, it would Even if there were no express provision also have to distinguish between religions in the Staff Regulations, religious the practices of which are to be observed discrimination is prohibited by by all members of them and those which Community law as being contrary to the leave this to the conscience of their fundamental rights of the individual, adherents. This would emphasize the respect for which the Court is required to question of religion in a manner hardly ensure (see Case 11/70 Internationale consistent with the Staff Regulations. Handelsgesellschaft [1970] ECR 1125 Moreover, would not the Council then and Case 4/73, Nold [1974] ECR 507). have to accord an alternative date for the

case, to treat the applicant in the same special circumstances applying to an way as other candidates who had no individual candidate In such cases there religious convictions precluding them would not be, as in the present case, any from taking the examination was in exclusion of a class of candidates. substance to discriminate against her. The Council rejoins first that if, in The injustice which would result from presenting her application, the applicant the granting of an alternative date at the had indicated that certain dates were request of one candidate has been much objectionable to her for religious reasons, exaggerated: in school and university this would have been taken into account examinations the results of examinations when a date was chosen for the taken under different examining boards competition. Moreover the name of the using different examination papers are applicant could have been withheld from regularly used as a basis of comparison. the Examining Board. Additional time for preparation is no advantage either, in the case of an The applicant should have been aware examination where little preparation is that the practice of the Community possible or where lengthy preparations institutions did not in all respects are possible. conform to that in the United Kingdom and, moreover, could not be presumed to In any case all that is required is to be identical. ensure that examinations do not fall on dates on which candidates might be If the applicant had taken this unable, on religious grounds, to sit. precaution, the interests of the other candidates would have been in no way Uncertainty concerning the permissible affected since all the candidates could grounds for granting an alternative date have been convened on a day which was is also much exaggerated. It is true that acceptable. the practice of the Council has never given rise to proceedings but no In inviting the applicant to attend the Christian denomination is affected by the examination on Friday 16 May, the matter at issue because the main Council exercised no discrimination Christian feast-days are already civil against her since it was not aware that public holidays. she was a person for whom, for reasons of religious convictions, that day created As for Muslims, there appear to be no difficulties. days on which a Muslim would be precluded on grounds of his religion The extent to which a competition can from taking an examination. The religion be arranged on successive dates must be principally concerned, therefore, is left to the discretion of the Examining Judaism. With the exception of recent Board.

position of other candidates (see Case freedom of others. But, in the applicant's 31/75, Costacurta v Commission [1975] view, arrangements should be made ECR 1563). which respect the religious beliefs of all candidates. That the Council's action was Because this may put at risk the rights not 'necessary' is shown by the practice and interests of the other candidates, the adopted in Britain and by the fact that Council would have the delicate task of such arrangements are never made by the balancing the rights and interests of the Council, which, in its letter of 29 candidate requesting an alternative date September 1975, stated that requests for and the competing rights and interests of an alternative date are invariably refused. other candidates who might be placed at a disadvantage. The Council replies that the European Convention was designed to protect a (b) Submission based on the limited number of rights. It should thus infringement of Articles 9 and 14 of be understood as limited in its scope, as a the European Convention on Human legal text. There are many rights, Rights including rights which may be recognized as human rights, which are The applicant states that, as the not guaranteed by the Convention. The European Convention on Human Rights question of the right of employment in has been ratified by all the Member the public service was the subject of States, the rights enshrined in that special consideration by the Commission instrument may be regarded as being of Human Rights in Application No among the fundamental rights to be 273/57, when that question was held to protected by Community law. The remain 'in principle, outside those Community institutions are accordingly covered by the first section of the bound to respect freedom of religion and Convention'. The present application such respect must imply a readiness to cannot, therefore, be put forward on the make the necessary administrative basis of the Convention. In connexion arrangements to enable candidates to with Application No 3798/68 the Church take examinations in accordance with of X v The United Kingdom the their religious convictions. Commission, having ruled that the right claimed for the members of the Church Article 9 (1) of the Convention proclaims to enter or to remain in residence in the

regulate in detail the administrative The Council rejoins that, in the East arrangement of competitions held for the African Asians' case, the Commission specific purpose of recruiting candidates was not content to examine the matter of into the public service. As for the Article 14 on its own but did so because argument that restrictions can be laid the alleged discrimination against the down only by 'a law', it is not the general applicants involved also potentially practice in the Member States of the degrading treatment contrary to Article 3. Community to lay down in a law the It must therefore be shown that a specific dates on which competitions for right explicitly protected by the recruitment to the public service shall be Convention is involved. carried out, which suggests that the administrations of the Member States Contrary to what was suggested by the have taken the view that the applicant, there is no case-law which subject-matter of the present application concerned other than legal prohibitions falls outside the scope of the Convention. or physical constraints within the meaning of the Convention. The East African Asians' case, cited by the In conclusion, since the Convention has applicant, concerned the freedom no application, the matter is regulated in lawfully to enter the United Kingdom. its entirety by Article 27 of the Staff The refusal of that freedom was followed Regulations. by the measure of imprisonment.

In reply, the applicant states that she has The applicant herself caused the never suggested that the Convention difficulty with which she was faced by guarantees the right of access to the failing to notify in good time the dates public service. But, even where a right which she could not accept for religious invoked is not included in the reasons.

JUDGMENT OF 27. 10. 1976 — CASE 130/75

that recruitment must be made without announced that she renounced her reference to religion. request for the annulment of the results of the competitions in so far as they had To ensure that examinations did not fall led to the recruitment of the intervener, on dates on which candidates might be David Grant Lawrence. unable, on religious grounds, to sit, it would be necessary for the Council to The latter, represented by Roger O. take steps to obtain information from Dalcq, Advocate, of the Brussels Bar, candidates concerning their religious maintained that the fact that inter­ beliefs, which it has no wish to do. Such ventions were not usual in procee­ a solution would, moreover, result in the dings of this kind and that therefore the number of available dates being rather applicant did not foresee when she limited. lodged her application that it might have that consequence, should not influence IV — Oral procedure the question of costs. The solution should be that the unsuccessful party should bear the costs of the intervention. The parties were heard at the hearing on 1 July 1976. The Advocate-General delivered his The applicant, represented by Francis opinion at the hearing on 22 September Jacobs, Barrister, of the Middle Temple, 1976.

Law

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

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.

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.

PRAIS v COUNCIL

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.

JUDGMENT OF 27. 10. 1976 — CASE 130/75

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.

3. Orders the plaintiff to bear the intervener's costs.

Donner Mertens de Wilmars O'Keeffe

Delivered in open court in Luxembourg on 27 October 1976.

A. Van Houtte A. M. Donner

Registrar President of First Chamber