C-157/77

Maximilienne CARO-FERNANDEZ (née Gilbeau), an official of the Commission of the European Communities, residing at 8 Chemin de la Belle Croix, Horrues (Province du Hainaut), Belgium, represented and assisted by Marcel Slusny, Advocate of the Brussels Bar, 272 Avenue Brugmann, 1180 Brussels, with an address for service in Luxembourg at the office of Jacques Marc, 38 Rue Albert 1er,

applicant, v

Commission of the European Communities, represented by its Legal Adviser, Thomas F. Cusack, acting as Agent, with an address for service in Luxem­ bourg at the office of Mario Cervino, Jean Monnet Building, Plateau de Kirchberg, defendant,

I — Language of the Case: French.

JUDGMENT OF 5. 4. 1979 — CASE 157/77

APPLICATION for:

gives the following

JUDGMENT

Facts and Issues

The facts and the arguments put forward L/A 8-L/A 7. That competition was by the parties in the course of the written organized in conjunction with Open procedure may be summarized as Competition No COM/LA/138/75. follows: According to statements made by the Commission, there was at that time almost no possibility of members of the I — Facts and written procedure French language section obtaining an appointment with assignment to Brussels. In 1975 the Commission organized The applicant, who is a Belgian national Internal Competition No COM/LA/­ and an official of the Commission in 11/75 for the purpose of constituting a Grade B 4, took part in the internal reserve to fill certain vacant posts of competition. According to the assistant' translator in career bracket Commission, the final marks obtained by

GILBEAU v COMMISSION

the applicant and a certain Miss F. were states that the marks for the tests the same. The applicant's name had appearing in the report of the selection "headed the list" only because the board of 28 November 1975 give the selection board omitted to state that they following figures for the three successful were both "ex aequo". The Commission candidates of French mother tongue:

It is, however, established that both the 1976 that "having regard to the interests of the service it is enough if I can count applicant and Miss F. refused an on one linguist of French mother tongue appointment with assignment to Luxem­ who is proficient — inter alia — in bourg. The applicant justified her refusal Italian. From that point of view there is on the grounds that she was married to a no difference between the two craftsman with a local clientele in applications. The only remaining Horrues and the surrounding areas, that her child was in the penultimate year at argument in favour of Mrs Caro- Fernandez is therefore that of her family secondary school and that her mother situation". was, at the time, 75 years old. Miss F., a French national and unmarried, had no ties in Belgium. Mr L., the third suc­ The appointing authority adopted a cessful candidate in the competition decision on the proposal made by Mr (French language section) accepted Ciancio, but in favour of Miss F. When assignment to Luxembourg and was duly recommending the appointment of Miss appointed. F. in a memorandum to the appointing authority dated 27 April 1976 Mr Baichère, Director-General for Personnel When two posts became vacant in the and Administration, referred to her staff French Language Division in Brussels Mr reports, which were better than those of Ciancio, Director of "Translation, the applicant, her higher grade (B 2) and Documentation, Reproduction of to the fact that she was older and had Documents and Library", requested Mr greater seniority.

Committee expressing regret at the fate "… The candidate who came second in of the applicant (who was placed first) in the competition, who is unmarried and comparison with that of Miss F. (who without dependants, has been appointed was placed second). In reply she to a post in the French Language received from Mr Hay, Chef de Translation Division in Brussels. I have Cabinet to Commissioner Tugendhat, a memorandum dated 28 March 1977 waited in vain to be appointed to a similar post… which referred, in particular, to an "objective consideration of various Contrary to my expectations the factors" which resulted in the decision in favour of Miss F. appointing authority has decided to allow the list of suitable candidates to expire — on 28 February 1977 — On 21 February 1977 Mr Alonso wrote without appointing me. Unless objective to Mr Baichère to ask for the applicant reasons can be given for the decision I to be appointed or, at least, for the final consider that I have been treated in a date for the validity of the competition discriminatory manner, and that the to be extended beyond 28 February decision not to appoint me to a post of 1977. It appears that Mr Baichère assistant translator in Brussels is an act rejected that request in March 1977 (his adversely affecting me. I therefore memorandum is undated) on the ground, request you by the present complaint to in particular, of the large number of remedy that situation and to appoint me assistant translators of French mother to a post of assistant translator in the tongue who were seeking transfer from translation department of the Luxembourg to Brussels and who, under Commission in Brussels, in the same way the terms of the Staff Regulations, as the other successful candidate of should receive absolute priority as French mother tongue in Internal regards any vacant post. Competition No COM/LA/11/75."

The written procedure followed the the appointing authority was prompted normal course. not to appoint the applicant" to be proved by witnesses and to call upon By order of 3 October 1978 the Court the Commission to produce various (Second Chamber) ordered Mr Ciancio documents. and Mr Baxter to answer the following question: After commenting in its rejoinder on the requests for the production of documents "What posts of assistant translator and the examination of witnesses made corresponding to the abilities of the by the applicant in her reply the applicant, as shown by her success in Commission states that it adheres to all Internal Competition No COM/LA/­ the conclusions set out in its defence. 11/75 organized for the purpose of constituting a reserve, became vacant in the departments of the Commission in III — Submissions and arguments Brussels in the period between 7 July of the parties 1975 (the date of publication of the notice of competition) and 22 December The applicant observes that the 1977 (the date on which the application Commission has not given any reply to was lodged)?" her complaint of 27 May 1977. The Commission has not even availed II — Conclusions of the parties itself of the period provided for by way of an exception in the second section of In her application the applicant claims the second indent to Article 91 (3) of the that the Court should: Staff Regulations of Officials. The (1) Declare the implied rejection by the absence of any reply is in itself sufficient to show the inability of the Commission Commission of the applicant's to give any avowable reason for its complaint to be null and void; failure to appoint the applicant to a post (2) Declare the Commission's refusal to of assistant translator in career bracket promote the applicant to a post of L/A 8-L/A 7 after having appointed in Assistant Translator in career bracket preference to her a candidate who was L/A 8-L/A 7 or to extend the less well placed in thecompetition. That duration of validity of Competition failure is completely unjustified, as posts No COM/LA/11/75 to be null and have become vacant in the intervening void; period and there are still posts vacant at (3) Order the Commission to pay the present, since the appointing authority is costs. about to propose that six posts be filled in Brussels on the basis of the results of In its defence the Commission contends Competition No COM/LA/150/77, that the Court should: which was held even though the list of suitable candidates drawn up in (1) Declare that the application is consequence of Competition No COM/­ inadmissible; LA/11/75 was still in force. (2) In any event, dismiss it as It was up to the Commission either to unfounded; appoint the applicant before the expiry (3) Order the applicant to pay the costs. of the duration of validity of the list of suitable candidates or to order a In her reply the applicant adheres to the sufficient extension of that duration, as it conclusions set out in her application very frequently does.

In support of her argument that she has too brilliant a career being achieved been the object of discriminatory by a woman; treatment the applicant refers in The considerations which have led to particular to various remarks made about the "blocking" of the applicant's her by certain officials of the career are contrary to the principles Commission. ensuring the equality of officials and are in conflict with the very concept The applicant maintains that in those of the interests of the service. circumstances she is entitled to rely on

lations is an illustration; Furthermore, it maintains that in her complaint the applicant does not refer to (3) The Commission has failed to fulfil any specific measure capable of being its obligation towards her as laid described as an act adversely affecting down by the final paragraph of her. The complaint merely requests the Article 24 of the Staff Regulations; appointing authority to "remedy" the situation she has described (which she (4) The decision of the appointing considers unjust) and, of course, to authority not to appoint the appoint her to a post of assistant applicant is vitiated by misuse of translator in Brussels.

GILBEAU v COMMISSION

Whether that rejection is express or no opposition to the entry into Category implied is not conclusive; what is A of an official from Category C (the essential is to be able to determine the appointment of Miss F. is evidence of date on which the period for submitting that) or to the achievement of a more a complaint begins to run, as provided brilliant or better than average career by for in the third indent to Article 90 (2). a woman.

JUDGMENT OF 5. 4. 1979 — CASE 157/77

Ir indeed avowable reasons on the part of the the applicant's complaint must in this Commission. The absence of any reply is instance be regarded as relating to the in itself an infringement of the Staff refusal to extend the duration of validity Regulations and is prejudicial to the of the competition, there was also official in question. If the official receives another request: that made on her behalf a reply within the periods laid down and by Mr Alonso on 21 February 1977 in has therefore an additional period of his letter to Mr Baichère.

In those circumstances the duration of validity of the competition. applicant requests the Court, in the alter native, to order the Commission in any event to bear all or pan of her costs, if As regards her second and third she does not receive satisfaction from the submissions, the applicant maintains, in Court. particular, that in the absence of any urgent reasons relating to the interests of the service, and in this instance none has As regards the Commission's argument ever been indicated, the appointing that the application is not admissible, the authority is failing in its duty to give applicant considers that the distinction general assistance as well as in the between a request and a complaint must specific duty laid down by the final not be applied in an excessively formal paragraph of Article 24 of the Staff Regu

GILBEAU v COMMISSION

official to receive the promotion for since, first, there were no avowable which he is eligible, either through the reasons for the refusal to appoint her, as implementation of Article 45 of the Staff there was subsequently at least one post Regulations or following a competition. vacant in Brussels and, secondly, there The Court is judge of whether the was no reason to act, as was done in her conduct of the appointing authority is in case, in a manner which conflicts with accordance with Article 24 of the Staff the established rules at the Commission, Regulations. that is, to allow a list of suitable can­ didates to expire without having promoted the candidate classified in first place (and the same reasoning applies in The final paragraph of Article 24 of the the case of a first place ex aequo). In any Staff Regulations must be interpreted in event, if there is any doubt in the mind such a way that when a question of of the Court the applicant requests that a promotion arises (and the same applies certain number of witnesses be heard, mutatis mutandis where the promotion whose names she lists in conclusion in occurs as the result of a competition) the her statement. appointing authority will not be abie to disregard the advanced vocational training of the official (in this instance, further education at university level) in In its rejoinder the Commission stresses the absence of compelling reasons that it does not maintain that it was relating to the interests of the service. impossible "to release a post for the No such reasons have ever been given, applicant in Brussels". It recalls that unless it be in a rather unconvincing when the two competitions (internal and manner when preference was given to open) were organized in 1975 there was Miss F., and were not given subsequently no post vacant in Brussels. when at least one post was vacant and the administration failed to allocate it in favour of the applicant. Two posts subsequently became vacant unexpectedly.

received only 4.5 marks out of 20). It follows that in the light of the requirements existing in 1977 the On those grounds the principle laid applicant was unable to lay any claims to down by the wording of the final the new posts allocated by the budgetary paragraph of Article 24 of the Staff Regu­ authority for the financial year 1977, lations finds its classic application in the which completely justified the decision context of both promotions within the not to extend the reserve list drawn up in' grade and promotions from one career consequence of Competition No COM/­ bracket to another. LA/11/75 beyond February 1977.

The assertions of the applicant The Commission adheres to its concerning an alleged misuse of powers conclusions on the question of the are quite without foundation. In fact the admissibility of the application. two posts in question were filled by:

GILBEAU v COMMISSION

The applicant, represented by Marcel departments in Brussels in order to fill a Slusny, Advocate at the Cour d'Appel, post of assistant translator. Brussels, and the Commission, represented by its Legal Adviser, Thomas The transfer took place even though F. Cusack, acting as Agent, presented there were more cogent social reasons to oral argument at the same hearing. justify the promotion of the applicant to The Advocate General delivered his that post. opinion at the hearing on 22 February The letter states further that after the 1979. expiry of the period of validity of the list of suitable candidates six transfers were made from within the institution or from V — Application submitted after the closure of the oral other institutions to posts of translator with the Commission in Brussels (three procedure of which were to posts of assistant By letter from her adviser dated 13 translator). March 1979 the applicant referred to certain facts which came to her After stating that she was unable to give that information at the hearing the knowledge after the hearing on 14 December 1978. applicant requested the Court to initiate the procedures provided for in Articles According to that letter the applicant has 60 and/or 61 of the Rules of Procedure. identified the official who during the period of validity of the list of suitable Having regard to the grounds of candidates drawn up in consequence of judgment set out in the present decision Competition No COM/LA/11/75 was the Court has not considered it necessary transferred from the departments of the to give effect to the aforementioned Commission in Luxembourg to its application.

5 When subsequently in the course of 1976 two posts for translators of French mother tongue became vacant in the services of the Commission in Brussels Miss F. was appointed to one of them while the other was filled by the transfer to Brussels of an official employed in Luxembourg.

6 Although the final date for the validity of the list of suitable candidates drawn up in consequence of the aforementioned internal competition was deferred from 31 December 1976 to 28 February 1977 the applicant remained after the expiry of that period the only successful candidate in that competition not to have been appointed to a post of assistant translator.

7 By a complaint by way of Article 90 (2) of the Staff Regulations of Officials submitted to the appointing authority on 27 May 1977 the applicant stated that the decision not to appoint her to a post of assistant translator in Brussels constituted discriminatory treatment and is therefore an act adversely affecting her.

8 She requested that that situation be remedied and that she ve appointed "to a post of assistant translator in the translation department … in Brussels, in the same way as the other successful candidate of French mother tongue in Internal Competition No COM/LA/11/75".

9 Since no reply was received to that complaint, on 22 December 1977 the applicant lodged the present application which was received at the Court Registry on 23 December 1977. The application seeks the annulment of the implied decision rejecting the complaint as well as of the refusal of the Commission either to promote the applicant to a post of assistant translator in career bracket L/A 8-LA 7 or to extend further the duration of validity of the competition.

15 Up to the time of the applicant's refusal of that appointment, therefore, the Commission did not in any way fail in its obligations towards her deriving from the provisions of Article 24 of the Staff Regulations as a whole.

16 Although the applicant does not contest the appointment of Miss F. and her assignment to the services of the Commission in Brussels she criticizes the appointing authority for having failed to appoint her in like manner to another post of assistant translator which became vacant in Brussels during the duration of validity of the list of suitable candidates and which was filled by the transfer of another official from the services of the Commission in Luxembourg.

17 In that regard she relies on the provisions of Article 29 of the Staff Regu­ lations in order, as it were, to claim a prior right to that post, as a successful candidate in an internal competition, over an official wishing to be assigned to it by way of transfer.

18 However, that argument receives no support from the wording of Article 29 itself, which establishes the necessary recruitment procedures so that vacant posts may be filled by officials selected on the basis of objective criteria and solely in the interests of the service.

JUDGMENT OF 5. 4. 1979 — CASE 157/77

19 In the light of the foregoing considerations the fact that the Commission's choice did not fall upon the applicant but rather upon an official who was already employed in the language service does not appear to be open to objective criticism.

26 In support of that ground of complaint the applicant refers to various complaints allegedly made in that connexion by certain officials of the Commission.

GILBEAU v COMMISSION

27 However, those are factors which cannot be adduced to support the argument of a misuse of powers on the part of the Commission.

28 In the light of all of the foregoing considerations the application must be dismissed as unfounded, with the result that it is unnecessary to consider the question of admissibility raised by the Commission.

Costs

29 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.

Mackenzie Stuart Sørensen Touffait

Delivered in open court in Luxembourg on 5 April 1979.

A. Van Houtte A. J. Mackenzie Stuart Registrar President of the Second Chamber