C-111/86

DELAUCHE v COMMISSION

OPINION OF M R ADVOCATE GENERAL D A R M O N delivered o n 19 N o v e m b e r 1987 *

Mr President, she alleges a breach of the Staff Regu- Members of the Court, lations, in particular Article 5 (3), and of the principle of equality for men and women, a general principle of law. The second argument is based on the absence of a 1. The applicant, Mrs Evelyne Delauche, an proper statement of reasons as required by official of the Commission in Grade A 4, is Articles 7 ( 1 ) and 45 (1) of the Staff Regu- deputy head of the Staff Regulations lations. In her third submission the applicant Division of the Personnel Directorate again alleges a breach of Article 5 (3) of the (DG-IX-A1). She has brought proceedings Staff Regulations and of the principle of before the Court for the annulment of three equality for men and women, and misuse of decisions of the Commission, and also powers on the part of the defendant. claims that the Commission should be Finally, she alleges a breach of the principle ordered to pay her damages and the costs of of protection of legitimate expectations and the case. of the duty to have regard to the interests of the employee.

2. The three decisions in issue are as follows : 4. The argument based on the absence of a statement of reasons need not be the subject (1) the decision of 11 July 1985 whereby of a lengthy examination since in the Bonino judgment 1 it was stated that the the Commission rejected her application case-law according to which the appointing for the post of Head of Division IX-B1, authority is not bound to give reasons for its Administrative Rights and Remuner- decisions as regards promotion is equally ation, the vacancy notice for which was applicable where the candidates include published on 12 April 1985; women, so that the principle of equal treatment is not relevant in that respect. Moreover, at the hearing the applicant (2) the decision of 29 July 1985 nominating appeared to abandon that argument. Mr Roberto Capogrossi to that post;

7. In that submission the applicant alleges that the fact that the appointing authority did not accept her application constitutes a 6. As the Court has held, although an misuse of power on its part which was only interim or deputy posting is to be taken into explicable on the basis of the sexist policy consideration for the purposes of followed by the Commission. In reply to promotion, it does not give the person that argument it need merely be pointed out concerned the right to be reclassified.2 that the Court has consistently held that Similarly, the assistant to an official whose the appointing authority enjoys a wide post becomes vacant has no right to be discretion with regard to the choice, in the appointed to that post, even if he has interest of the service, of the best candidates the qualifications necessary to fill it. 3 for the posts to be filled. Review by the Furthermore, an official may invoke the Court of decisions taken in that domain is principle of protection of legitimate expec- limited, in essence, to ensuring that the tations only in the face of 'a situation which appointing authority has kept within implies what could be described as breach of reasonable bounds7 which are not open to an undertaking', 4 and then only when criticism8 and has not used its power in a precise assurances have been given to him manifestly incorrect way. by,the administration5 of such a kind as to '[lead] him to entertain reasonable expec- tations'. 6 In the present case, no definite undertaking was given regarding the applicant and she cannot rely on legitimate 8. From that point of view, it is not only the expectations founded on declarations of qualifications of the applicant — which are, intent showing the general trend of a needless to say, undisputed — that are to be desirable policy. In that respect the evidence taken into consideration, but also those of submitted shows that within the the ultimately successful candidate, with a Commission specific action is being taken view to carrying out a comparative exam- ination of the respective merits of the 2 — See, for example, judgment of 16 June 1971 in Cast 77/70 Prtlk v Commission [1971] ECR 561; judgment of 12 July applicants for the post. The Court cannot, 1973 in Case 28/72 Tontodonativ Commission [1973] ECR however, substitute its own assessment of 779; judgment of 19 March 1975 in Case 189/73 Van the qualifications and suitability of the Reenen v Commission [1975] ECR 445. 3 — Judgment of 29 October 1975 in Case 22/75 Kuster v candidates for that of the appointing Parliament [i97 5] ECR 1267. authority.9 4 — L Dubouis: 'Fonctionnaires et agents des Communautés européennes', chronique, Revue trimestrielle de droit européen, 1983, p. 86, especially at p. 92. 7 — Judgment of 25 February 1987 in Case 52/86 Banner v 5 — See, for example, Mr Advocate General Capotorti's Parliament [1987] ECR 979, paragraph 9. Opinion in Case 268/80 Guglielmi v Parliament [1981] 8 — Judgment of 5 February 1987 in Case 306/85 Huybrechtt v ECR 2295, especially at pp. 2307 et seq. Commission ¡19871 ECR 629, paragraph 9. 6 — Judgment of 19 May 1983 in Case 289/81 Mmridis v 9 — Judgment of 4 February 1987 in Case 324/85 Bouteiller /W«amen<[1983] ECR 1731, especially at p. 1744. [1987] ECR 529.

9. Mr Capogrossi was, like Mme Delauche, employed in 1959 in Category C 12, she one of three people whose applications moved rapidly through the different steps merited particular consideration, in the and was classified 18 months later in opinion of the Advisory Committee on Category B 10. After regular promotions Appointments to Grades A 2 and A 3. I within Grade B, she passed into Category A cannot see any manifest error in the in 1965 and to Grade A 4, which she appointment to the post of Head of the reached in 1979. The applicant maintains, Administrative Rights and Remuneration however, that because her attempts to be Division of the holder of a degree in appointed in Grade A 3 were repeatedly economics and business studies with Mr unsuccessful, the reason must lie in a policy Capogrossi's experience, as evidenced by his of sexual discrimination practised by the file, whose periodic reports have been Commission. It is hard to understand how excellent and who was preferred to the such an argument can be put forward when other candidates, in accordance with the the applicant's career to date makes it clear proposal of the Commissioner responsible that she has not been the victim of any for the division in question. It is perfectly unfavourable prejudice. understandable that knowledge of actuarial matters was judged to be a decisive factor for the post of head of a division which deals inter alia with complex pension problems. It does not follow that the other candidates shortlisted by the Advisory Committee do not have the qualifications required to occupy the post. On the contrary, the three people shortlisted by that 11. The essence of the application is in fact Committee satisfied all the requirements laid to be found in the first argument. The down in the vacancy notice. The reasons applicant seeks to have the Court uphold a why the Commission chose to appoint Mr right to preference for women where there Capogrossi were explained clearly in the is serious underrepresentation of women letter of 10 March 1986 in which Vice- and when the male and female candidates President Christophersen informed the are judged to be equally capable of applicant that her complaint had been occupying the post in question. She bases rejected and it cannot be argued, as the that right to preference on the principle of applicant seeks to do, that the choice ulti- equality, believing that only if such a right is mately made by the appointing authority recognized will the inequalities between was 'surprising' or vitiated by a manifest men and women in the higher ranks of the error of assessment. Community civil service be remedied.

as one progresses towards the higher grades. serious imbalance to the detriment of It can be seen from the report of 18 March women. 1987 on the situation of women in the European institutions, 10 prepared on behalf of the European Parliament's Committee on Women's Rights (the figures given being those valid on 6 May 1986), that out of 2 937 officials in Category A, 2 657 are men and 280 women. Small as that proportion of 14. Although there is undoubtedly a need 10% is, is it the same for each grade? N o t for positive action — 'affirmative action' at all. Up to and including Grade A 5 that — in favour of women, it does not seem to proportion is maintained and, in fact, often me that this can be accomplished by a court exceeded. From Grade A 4 onward there is ruling that women have a right to pref- a spectacular decline in the proportion of erence. It is a question, in fact, not only of women. Thus, in the latter grade, there are promotion but also of recruitment. Any only 43 women as against 817 men. In specific action in favour of a minority Grade A 3, there are six women and 347 category would find itself in conflict with men. In Grade A 2 all 132 officials are men the principle of formal equality. It is possible and in Grade A 1 there is but one woman as to imagine, however, that in certain well- against 43 men. That situation, rightly a defined circumstances and in order to attain cause for concern, is not unique to the a high-priority objective corresponding to a Commission, nor, more generally, to the choice made by society, an objective Community institutions. At both the intended to eradicate inequalities which national and international level an urgent resulted from past prejudice, measures need is felt for a means of enabling an might be taken which would erode such a increasing number of women to occupy principle but would still have adequate legal posts which on the whole and in practice foundation. have until now been mainly reserved for men.