C-280/80

JUDGMENT OF 3. 12. 1981 — CASE 280/80

Member State, may not seek to rely working language for the purpose of on the principle of equality of the assessment of shorthand skills in treatment to have the mother tongue connection with promotion pro- taken into account instead of that first cedure.

In Case 280/80

ANNE-LISE D'ALOYA, NÉE BAKKE, an officialin the General Secretariat of the Council of the European Communities, 16 Avenue des Mésanges, Brussels, represented by Edmond Lebrun of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Tony Biever of the Luxembourg Bar, 83 Boulevard Grande-Duchesse-Charlotte, applicant, v

COUNCIL OF THE EUROPEAN COMMUNITIES, represented by John Carbery, an Adviser in the Legal Department of the General Secretariat of the Council, acting as Agent, with an address for service in Luxembourg in the office of Douglas Fontaine, head of the Legal Department of the European Investment Bank, 100 Boulevard Konrad-Adenauer, defendant,

APPLICATION for the annulment of a decision rejecting a request that the procedure for the applicant's promotion be reopened,

Facts and Issues

The facts of the case and the arguments — either by passing a shorthand test set of the parties put forward during the by the vocational training branch written procedure may be summarized as (speed of 150 syllables per minute, follows: text dictated for three minutes) ; or

— by passing an optional shorthand test, I — S u m m a r y of the facts with the same requirements, taken as part of the recruitment competition; or

The decision of 7 October 1963 on the description of the duties and powers of — by production of a shorthand certi- officials of the General Secretariats ficate or certificate issued by an of the Councils of the European institute unconnected with the Communities, as amended by the Communities, provided that such Council Decisions of 25 June 1973 and documents gave clear information as 21 March 1974, adopted pursuant to to the knowledge and skills certified Article 5 (4) of and Annex I to the Staff and in particular that they attested Regulations of Officials, describes the the speed (which must be 150 duties of officials in grades C 4 and C 5 syllables per minute, text dictated for (typist) as those of an "official carrying three minutes) and, where applicable, out typing duties", and the duties of the number of marks awarded. officials in grades C 3 and C 2 (secretary/shorthand typist) as those of an "official carrying out shorthand- typing and secretarial duties". The promotion of an official who is a typist in grade C 4 to grade C 3 in the career Pursuant to Decision 184/78 of the bracket above therefore presupposes that Secretary-General of the Council of 12 the official must prove his shorthand May 1978, an Advisory Committee on skill. Promotion, made up of a chairman, four members appointed by the appointing authority and four members appointed by the Staff Committee was set up with the task of advising the appointing In Staff Note No 184/79 of 26 authority regarding examination of the September 1979, Council officials were comparative merits of officials eligible informed of the following ways in which for promotion. The committee draws up, from then on they might provide in respect of each year, using infor- evidence of that skill: mation from the personal files of staff on

She was recruited on 1 September 1972 as a member of the auxiliary staff in the typing pool, Norwegian section, of Directorate-General A of the Council and was subsequently appointed a Since she did not appear on the temporary servant as a typist in grade published list of officials proposed by the C 4 assigned to the English section of the Advisory Committee on Promotion for typing pool, since Norway did not promotion to grade C 3 for the year accede to the European Communities. 1979, the applicant sent a memorandum Following an open Council competition on 15 February 1980 to the appointing for the recruitment of English-language authority of the Council referring to her typists, the applicant was appointed a proved shorthand skills and asking for probationary official in grade C 4 with the situation regarding her career to be effect from 1 August 1973 and was rectified. In that memorandum, the established on 1 February 1974. Because applicant stated in particular that the of her Norwegian nationality, a dero- certificate as to her shorthand skills from gation regarding the requirement of the St Olav Videregående Skole was not nationality of a Member State of the submitted to the Advisory Committee on European Communities was granted by Promotion. the appointing authority in accordance with Article 28 (a) of the Staff Regu- lations of Officials.

The Secretary-General of the Council treated that memorandum as a request In the course of her career, the applicant within the meaning of Article 90 (1) was assigned to various English-language of the Staff Regulations. He informed typing posts. the applicant by a memorandum of

The applicant did not receive any reply The applicant alleges infringement of the to that complaint. Staff Regulations of Officials, in particular Articles 5 (3) and 45 (1) thereof, ultra vires acts and breach of general principles of law such as the II — W r i t t e n procedure and principles of equality, of the protection c o n c l u s i o n s of the p a r t i e s of legitimate expectation and of distri- butive justice, the principle that all administrative measures should state the By application received at the Court reasons on which they are based and that Registry on 30 December 1980 the such measures may not be vitiated by applicant brought an action against the errors of law or fact and must be legally Council, claiming that the Court should: acceptable, and the principle of pro- portionality. In that regard, the applicant makes three submissions. — Annul the Council's memorandum of 27 March 1980 rejecting the applicant's request of 15 February 1980 and the implied decision First submission rejecting the applicant's complaint of 29 May 1980; In her first submission the applicant alleges that the Council considers that — Order the Council to reopen with knowledge of shorthand in Norwegian respect to the applicant the procedure may not be relied upon for the purpose for promotion to grade C 3 — post of applying the Staff Regulations to the of secretary/shorthand typist — for applicant and that the Council's exam- the 1978 session or, at any rate, the ination of the applicant's knowledge of 1979 session; shorthand relates only to her second language, namely English, and does so — Order the Council to pay the costs. by reference to the standard set for a first language.

tongue. The Council's decision places the language secretaries is likewise no reason applicant in a less favourable position for disregarding the fact that Norwegian than other officials in the same grade is her first language. and lays down different conditions regarding her career. The decision prevents her from ever advancing beyond grade C 4 merely because her mother The Council contends that Article 5 (3) tongue is Norwegian and because that of the Staff Regulations has not been language is not an official language or a infringed and that the applicant's working language of the Community progress in her career is normal since institutions. she has the benefit of automatic advancement to the next step in her grade; neither is there any infringement of Article 45 (1) since her complete file The applicant has been in grade C 4 for was placed before the Promotion more than eight years, despite the fact Committee and the Staff Regulations do that the assessments of her work by her not guarantee any official a right to superiors are excellent, whereas the promotion. average seniority in that grade at the time of promotion to grade C 3 is 28.9 months. The applicant is not claiming a right to promotion but equality of oppor- The certificate from the St Olav Videre- tunity regarding promotion. gående Skole does not specify that the applicant can take shorthand at the speed indicated for three minutes, which is a requirement of Staff Note No 184/79. Article 45 (1) of the Staff Regulations is The certificate is therefore incomplete also infringed because, according to the and could not in any case have been applicant, the certificate as to her regarded as sufficient by the Advisory shorthand ability in Norwegian was not Committee on Promotion. The Council brought to the knowledge of the is unable to state that the administration Advisory Committee on Promotion and received that certificate, dated 29 March that committee did not reach its decision 1979, before the last meeting of the on the basis of a complete file. Several Advisory Committee on Promotion for members of the committee named by the the 1978 session, 24 April 1979, but if it applicant are prepared to give evidence had been received it would have been to that effect. placed in the applicant's personal file. As regards the 1979 promotion session, the secretary of the Advisory Committee on Promotion responsible for keeping The fact that Norwegian is neither a officials' personal files is willing to give Community language nor a working evidence that the statement was in the language of its institutions must not have file passed to the Promotion Committee any negative effect on the applicant's at the beginning of the session and that it progress in her career since she was was brought to the notice of the recruited, as a Norwegian, when committee. » Norway's accession to the Community was in prospect and she was maintained without interruption in the service of the Council thereafter. The mere fact that There is from the outset a difference the applicant was appointed an official between the applicant's situation and that following a competition for English- of the great majority of officials since

Norwegian is not a Community language Regulations of Officials implies the or a working language of the Council. finding that the interests of the service It is not possible to change the were no obstacle to maintaining her in Communities' rules governing languages her post, even at a time when it was by means of a mere derogation pursuant established that Norwegian would be to Article 28 (a) of the Staff Regulations neither an official language nor a and no derogation from Article 28 (f) is working language of the Community possible. When it became apparent that institutions. Accordingly, the fact that Norway was not going to become a the applicant's mother tongue is neither a member of the Community, extension Community language nor a working of the applicant's employment was language of the Community institutions considered only because she had ought not in any way to be detrimental performed satisfactorily as a typist in to her progress in her career and may Community languages. When she was not be held against her. It is contra- established the applicant demonstrated a dictory and unacceptable to take the thorough knowledge of English. As she view at a later stage, as the applicant was appointed following a competition progresses in her career, that the for English-language typists, the ap- interests of the service prevent plicant is not in a position to accuse the consideration of her shorthand ability in Council of failure to protect her Norwegian. legitimate expectation on the grounds that it does not recognize Norwegian as her first language. Moreover, the applicant is not prevented from ever advancing beyond grade C 4 because she The applicant already works in English will become eligible for promotion as and French shorthand and her work is soon as she attains a shorthand speed of regarded by her superiors as outstanding. 150 syllables per minute in one of the Where shorthand is still used, it is in seven official and working languages of French on most occasions, in which the Community. language she possesses skill at least equal to that of the other secretaries in career bracket C 3/C 2 whose mother tongue is not French. The damaging consequences for the applicant of a refusal to take her Second submission knowledge of shorthand in Norwegian into account are thus manifestly out of all proportion to the actual interests of the service. In her second submission, which is sub- sidiary to the first, the applicant alleges that the Council, by implication but undeniably, takes the view, in the measures adopted, that the interests of the service preclude assessment of her In this case there is a manifest imbalance shorthand ability in her mother tongue between the applicant's entitlement to since it is neither an official language nor equal treatment and the bar to progress a working language of the Community in her career, on the one hand, and the institutions. real interests of the service with regard to shorthand, on the other. Those interests are minimal, since in practice shorthand is required only sporadically The applicant maintains that the dero- or on a wholly secondary basis in the gation from Article 28 (a) of the Staff Italian and German sections and it is

hardly required at all in the Dutch and To help officials and servants to achieve Danish sections. The Staff Committee of the aim of fulfilling the conditions the Secretariat of the Council has required for promotion to grade C 3, proposed that that criterion, which has shorthand courses are organized by the become a mere formality, should be General Secretariat of Council. replaced by functional criteria. The disproportion between the effective interests of the service, on the one hand, and the discrimination and serious Third submission prejudicial consequences for the appli- cant, on the other, is clearly demon- strated by the fact that the applicant already actually carries out shorthand In her third submission, which is sub- work in English and in French, in which sidiary to the other two, the applicant languages shorthand is still used to some refers to the fact that the Council extent, and that proof of her shorthand assesses the applicant's shorthand ability skills in those languages is provided by in English, having regard not to the the assessments of her superiors. standard laid down for a second language (120 syllables per minute) but to that for a first language (150 syllables The Council emphasizes that the per minute). applicant was established on the result of a competition for English-language secretaries and because she had shown the working capacity necessary in The applicant maintains that since her English and in another Community skill in shorthand is assessed only in language. If the Council informed its English, it is clearly the standard for a staff that proof of knowledge of second language which should be shorthand was necessary for promotion applied. The applicant irrefutably meets from grade C 4 to grade C 3, it was that standard by achieving 120 syllables precisely because of the importance of per minute. Moreover, the standard laid shorthand. down by the Council for a first language is very high and it is possible to do shorthand very accurately in a language The Norwegian language, and in without achieving that standard. In the particular Norwegian shorthand, are not Commission the standard is 120 syllables necessary for work in the Council. A per minute and the applicant reaches that knowledge of Norwegian shorthand speed in English. cannot therefore be regarded as a major criterion for assessing the comparative merits of officials with a view to their promotion. It is not a question of taking into account the fact that the applicant has a better knowledge of Norwegian but of The Council contests the applicant's the fact that English is only her second opinion regarding the interests of the language. The other English-language service, as far as knowledge of shorthand secretaries would not be put at a disad- is concerned. Shorthand is included in vantage if in the applicant's case English the description of duties now in force, were to be regarded as what it is, namely which was adopted by the competent her second language. A comparison of authority and may only be changed by the applicant's situation with that of a that authority. secretary whose mother tongue is a

Decision

1 By application lodged at the C o u r t Registry on 30 December 1980 Anne-Lise d'Aloya, a Council official in grade C 4, brought an action seeking annulment of the decision rejecting her request that the procedure for promotion to grade C 3 (post of secretary/shorthand typist) for the 1978

JUDGMENT OF 3. 12. 1981 — CASE 280/80

session, or, at least, the 1979 session, should be reopened with respect to her.

2 The duties corresponding to grade C 3/C 2 (secretary/shorthand typist) are described in a decision taken by the Council pursuant to Article 5 (4) of and Annex I to the Staff Regulations of Officials, as being those of an "official carrying out shorthand-typing and secretarial duties". The staff of the Council was informed, by Staff Note No 7/79 of 17 January 1979, that promotion of an official classified as a typist in grade C 4 to grade C 3 in the higher career bracket was possible only if the person concerned had given prior evidence of expertise in shorthand. By Staff Note No 184/79 of 26 September 1979 it was stated that from then on those who wished to do so could prove that skill by passing a shorthand test using a text dictated at a speed of 150 syllables per minute for three minutes, organized either within the framework of vocational training or as part of a recruitment competition, or by production of a certificate issued by an outside institution giving clear details of the knowledge and skills to which it referred, with particular regard to the speed mentioned above.

3 The applicant is of Norwegian nationality and mother tongue. She entered the service of the Council on 1 September 1972 as a Norwegian-language typist and a member of the auxiliary staff. On 1 August 1973, after taking part in a competition for the recruitment of English-language typists, she became an English-language typist, established in grade C 4. It appears from her periodic report that, as part of her duties, she does shorthand work in English and French and sometimes works in Danish, German and Italian. According to that report her superiors regard her as "a particularly gifted secretary whose knowledge and skill are outstanding".

8 In the three submissions on which she relies to support her action, the applicant maintains in substance that the Council should, for the purpose of promotion, have regarded as sufficient her shorthand skills in her mother tongue, in which her speed corresponds to 150 syllables per minute, or at least in English, in which her speed corresponds to 120 syllables per minute, the speed required in the shorthand tests organized by the Council for the purpose of vocational training in a foreign language. It is out of all pro- portion to prevent any further advancement in her career on the basis of a requirement which bears little relation to the interests of the service or to the work actually required of many secretaries, since in practice shorthand is used mainly in English and in French. Moreover, other institutions limit their requirement to a speed of 120 syllables per minute in the candidate's mother tongue and the applicant achieves that speed in English. Finally, the applicant refers to the evidence of several people to establish that the certificate as to her shorthand skills issued by the Norwegian school was not in the file

JUDGMENT OF 3. 12. 1981 — CASE 280/80

examined by the Advisory Committee on Promotion for the 1978 session or for the 1979 session.

1 1 In that connection, the principle that knowledge of shorthand is required for posts in grade C 3/C 2 which are defined in Annex I to the Staff Regulations as posts of secretaries/shorthand typists is not open to criticism.

D'ALOYA v COUNCIL

1 2 Staff Note No 184/79 of 26 September 1979 concerning promotion from grade C 4 to grade C 3 states that the required shorthand speed is 150 syllables per minute and provides for three possible ways of proving that skill. Such proof, which is essential for the purposes of promotion, must according to the communication in question be provided only in the manner specified therein, which excludes any other evidence of the required skill.

JUDGMENT OF 3. 12. 1981 — CASE 280/80

in respect of 1978 and 1979 is therefore without relevance to the decision to be made in this case since it is established that it could have no bearing on the committee's assessment in accordance with the criteria laid down in Staff Note No 184/79.

1 5 It follows that the Advisory Committee on Promotion and the appointing authority correctly assessed the applicant's shorthand skills having regard to the criteria laid down in Staff Note No 184/79.

16 However, the criteria laid down in Staff Note No 184/79 may appear to be inflexible in certain respects and, at least with regard to certain officials, they bear little relationship to the actual work to be done and the merits of the persons concerned. In particular, the note makes no provision for the possibility of reliance on other merits to compensate for the absence of proved shorthand skill at the required speed in the first working language or of taking into account knowledge of shorthand in other languages, even where that knowledge is actually used in practice and is recorded in the periodic reports.

17 Nevertheless, there are no grounds for considering that, when drawing up Staff Note No 184/79, the appointing authority exceeded the limits of its discretion in that field. It is for the administration to determine its criteria for selection in the exercise of its discretion, having regard to the exigencies of the rational organization of its various departments and there is nothing to prevent it from laying down for that purpose more rigorous criteria than those adopted by other Community institutions. The Court is not empowered to substitute its assessment for that of the administration, nor may it, in particular, amend or supplement the criteria laid down in Staff Note No 184/79.

T H E COURT (Third Chamber)

hereby:

1. Dismisses the application;

2. Orders the parties to pay their own costs.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 3 December 1981.