Strasbourg, 2 August 2007

Dear Mrs P.,

On 29 October 2004, you submitted a complaint to the European Ombudsman against the European Parliament concerning competition A/95 organised by Parliament.

On 22 November 2004, I forwarded the complaint to the President of Parliament. On 9 February 2005, you sent me additional documents. On 23 February 2005, I forwarded them to Parliament and decided to extend the deadline for Parliament to reply. On 28 February 2005 Parliament sent its opinion. I forwarded it to you with an invitation to make observations, which you sent on 31 May 2005.

On 27 September 2005, I wrote to the President of Parliament seeking a friendly solution to your complaint. On 14 November 2005 and 15 December 2005 Parliament sent its reply. I forwarded it to you with an invitation to make observations, which you sent on 17 January 2006.

On 10 August 2006, I made a draft recommendation to Parliament. On 20 November 2006 and 7 December 2006, Parliament sent me its detailed opinion concerning this draft recommendation. On 20 December 2006, a copy of this detailed opinion was forwarded to you and you were invited to make observations, which you sent on 30 January 2007.

My services responded to your telephone requests for information on the status of your complaint on the following dates: 25 November 2004, 4 January 2005, 9 February 2005, 13 and 27 June 2005, 2 August 2005, 3 and 21 October 2005, 2, 12 and 14 December 2005, 2 March 2006, 6, 12 and 20 September 2006.

I sent you information on the handling of your complaint on 27 September 2005, 9 November 2005, 8 December 2005, 31 May 2006 and 26 September 2006.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts are, in summary, as follows:

The complainant has been a B-category official working for the European Parliament since 1 September 1994.

On 18 February 2004, she applied for internal competition A/95 (Administrators) organised by Parliament. When applying, she mentioned that she was pregnant and that she was due to give birth on 17 June 2004.

On 4 June 2004, the Selection Board invited her to the tests, which were to take place on 2 July 2004. On 12 June 2004, the complainant wrote to Parliament, indicating that, as she would be breastfeeding her child, she would need some flexibility during the tests, that is, leaving the room between two tests and beginning the tests later than the other candidates, provided that she could finish the tests later. On 17 June 2004, Parliament informed her that she would be allowed to leave the room, but that it would be impossible to grant her more time than the other candidates. The complainant considered these conditions as unacceptable and contacted Parliament by telephone.

On 28 June 2004, she informed Parliament that the baby had not yet been born and that she was planning to take the tests while pregnant.

On 1 July 2004, she gave birth. On the same day, she informed Parliament that she would not be able to attend the tests and requested, in a letter to Parliament, to take them later.

On 2 July 2004, the tests took place.

On 15 July 2004, Parliament replied negatively to her request.

On 31 July 2004, she lodged an appeal in accordance with Article 90(2) of the Staff Regulations against Parliament's decision of 15 July 2004. She argued that the reason for excluding her from the competition was in contradiction with the principle of non-discrimination based on sex and constituted inequality for women as regards their promotion. Equality between women and men is a fundamental principle of Community law. The principle of non-discrimination is stated in the Charter of Fundamental Rights of the EU and in the Staff Regulations. According to the complainant, it is impossible for a woman, one day after having given birth, to take part in a competition, whereas it is possible for a man who has recently become a father. The disadvantage for women is even greater, as internal competitions are rarely organised by the institutions. The complainant requested that she be allowed to take the tests, arguing that, even if the competition were to take place at different times, the principle of equality between candidates is complied with, as the Selection Board can assess candidates according to the same criteria and tests of comparable difficulty can be organised.

On 14 October 2004, Parliament rejected her appeal, on the grounds that, according to the case-law of the Community Courts, tests should take place on the same date for all candidates. As regards the argument that tests could be organised at different times, Parliament noted that, as soon as candidates read the tests, secrecy is no longer maintained. Moreover, the rule of anonymity would be breached. It also stated that a competition cannot be challenged because one candidate is absent, be it for medical, practical or other reasons.

In her complaint to the European Ombudsman, the complainant maintained the arguments submitted in her appeal. She also argued that the Appointing Authority did not take a stand on her argument that she was discriminated against. She disagreed with the arguments of the Appointing Authority which classified her pregnancy as a medical problem. She considered that the condition of pregnant woman was inescapable and could be predicted to a certain degree. She was pregnant before the publication of the competition. The Selection Board was aware of her state when it chose to organise the tests on 2 July. Consequently, it was also aware of the risk of compromising her participation in the competition and thus of discriminating against her. Even if the birth had occurred on the anticipated date, she would not have taken part in the competition on the same conditions as the other candidates because of fatigue after the birth of a child and the conditions for breastfeeding. Moreover, she proved that she had an interest in this competition and that she could not take part in it only because she had given birth. She argued that non-discrimination was a fundamental principle of Community law and was at the basis of Parliament's personnel policy. She considered that it was in Parliament's interest to find a solution to her case, so as to avoid being in contradiction with principles it has proclaimed.

The complainant informed Parliament's Unit "Equal Opportunities" and the Joint Committee on Equal Opportunities(1) ("COPEC") of her case.

The complainant drew the Ombudsman's attention to the fact that the competition was still ongoing and hoped that a solution could be found within the framework of the competition.

The complainant alleged that Parliament's refusal to organise written tests for her at a later date was discriminatory. She claimed that she should be allowed to take the tests and, if this were not possible, that she should be given the same possibility of promotion as that given by competition A/95 within a reasonable time-limit. She also claimed that future competitions should take account of the particular situation of women who are pregnant.

On 9 February 2005, the complainant sent two additional documents which were relevant to her complaint.

The first document was a letter from COPEC, which was addressed to the Secretary-General of Parliament, was dated 10 January 2005, and contained a request for a revision of the decision concerning the complainant. The Committee drew attention to Article 1(d) of the Staff Regulations forbidding all discrimination(2) and to Article 2(2)(3) of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions(4) ("Directive 2002/73/EC"). The Committee argued that both provisions, which were recently adopted, were likely to modify the case-law of the Community Courts and that it would be appropriate to take them into account, even if they were not directly applicable.

The second document was an opinion from a professor at the University of Glasgow and a barrister-at-law on EU law and the Staff Regulations, which concerned the prohibition of discrimination in the workplace on the basis of sex, and was dated 7 February 2005. The opinion concluded that the decision to exclude the complainant ignored well-established principles of equal treatment and non-discrimination set out in EU legislation and Community case-law and expressed the hope that the institution and the complainant would find a solution capable of providing the complainant with the opportunity for career progression, which she had been wrongly denied.

THE INQUIRY

Parliament's opinion

Parliament's opinion on the complaint can be summarised as follows:

The possibility to take part in the written tests of competition A/95

Parliament indicated that, once candidates have read the subject of the tests, secrecy no longer exists. According to established case-law(5), the Selection Board shall make sure that the principle of equality of treatment, which is a fundamental principle of Community law, is complied with during a competition. The Court confirmed that the principle of equality requires that written tests be conducted on the same date for all candidates(6). To ensure strict equality among candidates, the written tests of a given competition should be identical and take place on the same day.

Moreover, there would be a breach of the rule of anonymity if different written tests were corrected by the Selection Board.

In conclusion, Parliament's decision to reject the complainant's request was well founded.

The possibility of a promotion similar to that offered by competition A/95

Parliament recalled that the Staff Regulations confer on the institutions a wide discretion as regards the organisation of competitions. The exercise of that discretion must be compatible with the mandatory requirements of Article 29(1) of the Staff Regulations, as well as of the first paragraph of Article 27, according to which recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. The choice to be made in the exercise of that power must always be governed by the requirements of the post to be filled and, more generally, the interests of the service(7).

As mentioned in Article 2 of the internal rules concerning recruitment of officials and other agents, in consultation with the Staff Committee, the institution establishes a multi-annual forecast of its needs each year, which forms the basis for organising external and internal competitions. In accordance with the needs of the service, the Appointing Authority specifies the admission criteria in each notice of competition.

If the complainant wishes to be promoted, she has the possibility to take part in competitions which may be organised in the future and which correspond to her diplomas and professional experience. She could also benefit from the new certification procedure provided for in Article 45(a) of the Staff Regulations. This procedure will enable an official in function group AST to be appointed to a post in function group AD.

Sex discrimination and the special condition of women

Parliament applies a policy of equal opportunities and favours applications from qualified women and men, excluding all types of discrimination based on handicap, race, religion, age or sexual orientation.

All steps considered as reasonable are taken to ensure that all candidates can take part in competitions on an equal basis. That is the reason why the complainant's baby accompanied by a third person would have been given access to the test room and that the complainant would have been allowed to exit the room to breastfeed her baby.

The refusal to organise the tests on a different date for the complainant is not based on her sex, but on the fact that a competition cannot be cancelled because one candidate could not be present, be it for medical, practical or other reasons. In effect, the case-law does not allow a Selection Board to organise the tests on a different date for one candidate, given that such a decision would be annulled by the Court.

The complainant's observations

In her observations, the complainant made, in summary, the following points:

Competition A/95 is, to the knowledge of the complainant, the first internal competition organised in the A category since she began to work for Parliament.

The complainant drew attention to a number of events. On 20 and 22 June 2004, the complainant's doctor tried to induce the birth. On the date of the birth (1 July 2004), she informed Parliament by telephone that she would not be able to take part in the tests on the following day. She was advised to participate, because this would be her only chance to take part in the competition.

On 8 March 2005, the complainant was granted a special mention in the 2005 edition of the Equality Awards from COPEC

"for actively drawing the attention of the institution to the risk of gender based discrimination related to the organisation of competitions and selections, especially in the case of maternity. She is also drawing the attention to the lack of specific rules permitting recent mothers to breastfeed at exams and to have extra exam time allocated to them. [The complainant] is urging the institution to review current procedures in order to avoid cases of gender discrimination in future competitions".

The complainant argued that if the policy of equal opportunities and the principle of non-discrimination had been correctly applied, she would not have been excluded from the competition because she had given birth. Discrimination against her was the result of the following series of events:

- Parliament's failure to inform the complainant that the date of her childbirth had not been taken into account in establishing the date of the tests

On the occasion of a telephone call with Parliament's services, she was told that it was impossible, when setting the date of the tests, to take account of childbirths. If the complainant had been informed that the date of her childbirth had not been taken into account, she could have reacted earlier (in February or March), by contacting Parliament or by appealing against this decision.

- the date of the tests

The fact that the date of the tests was two weeks after the anticipated date of the childbirth was likely to reduce the complainant's chance of taking part in the competition. The date falls within a period during which the mother is recovering from the childbirth and taking care of the new baby. Such information is widely known and could have been provided by Parliament's medical service. Moreover, only 107 applications had been received for this competition, which means that it was possible to determine an appropriate date.

The only possibility given by Parliament to the complainant was to take part in the tests which lasted a day, whereas this was physically impossible, as shown by a medical certificate.

- the conditions for breastfeeding

The complainant stated that it was not because of the conditions imposed by Parliament that she did not take part in the competition. However, they would have been highly discriminatory as regards the time allocated to her.

She considered that the Ombudsman should take a stand on these conditions and possibly help Parliament establish appropriate rules for breastfeeding women and their babies.

Needs of breastfeeding women vary according to the age of the baby. During the first weeks following childbirth, women and their babies should benefit from a private room and adequate time for breastfeeding.

The conditions foreseen by Parliament to allow breastfeeding during the tests mean either that the mother has less time than the other candidates for the tests because she breastfeeds her baby during the tests or she leaves a starving baby crying. The complainant considered that such conditions could not allow her to take part in the tests on an equal basis and that these conditions were not reasonable.

- Parliament's lack of will to consider an alternative to taking part in the tests on 2 July

The complainant argued that she was never contacted by Parliament in order to search for suitable conditions for her to take the tests. She could have been allowed to take the tests in her hospital room on 2 July.

- the refusal to set a second date for the tests

The complainant disagreed with Parliament's position. The case-law mentioned by Parliament predates Directive 2002/73. This text is likely to modify the current case-law(8).

According to the complainant, the rule about anonymity is not clear. Oral tests are not anonymous. Moreover, there is no anonymity when one subject is chosen only by one candidate, or when only one candidate takes a test in a particular language.

- the refusal to offer alternatives

The EC Treaty provides a legal basis for affirmative action (Article 141(4)(9)). Affirmative action is also provided for by the Treaty establishing a Constitution for Europe (Article II-83(10)) and the Staff Regulations (Article 1(d)). On this basis, the complainant considered that Parliament should give her additional chances of getting a post in the higher category in order to compensate for the inequality caused by her exclusion from the competition.

If Parliament is right to consider that there was no discrimination against the complainant, the only reasons to explain why she did not take part in the competition is her lack of will or the fact that she gave birth, which is, according to her, a clear case of inequality.

The complainant maintained that competition A/95 should be reopened and that a new series of tests should be organised. She noted that the shortlist issuing from the competition contains only 15 names, whereas the notice of competition referred to short-listing a maximum of 20 names. She considered that a new internal competition could be organised to compensate her for the discrimination against her.

As regards the certification procedure, she argued that rules could provide for affirmative action to remedy inequalities. She could be selected in the first group of candidates in 2005 or 2006, which would constitute a reasonable deadline. However, if the Ombudsman recommends compensation, she is ready to consider other options.

The complainant argued that Parliament did not reply to her argument that future competitions and selection procedures should provide for the special condition of women, in particular as regards maternity.

In conclusion, the complainant pointed out that she did everything to take part in the competition as speedily as possible. The complaint that she lodged with the Ombudsman should be understood as a positive approach to a problem which concerns pregnant women and an institution which does not comply with its own principles. She preferred to seek a constructive approach rather than to initiate legal proceedings.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of Parliament's opinion and the complainant's observations, the Ombudsman did not consider that Parliament had responded adequately to the complainant's allegation and claims. In accordance with Article 3(5) of his Statute, he therefore wrote to the President of Parliament to propose a friendly solution.

The proposal for a friendly solution

The Ombudsman took the view that, in the handling of the present case, Parliament appeared to have relied exclusively on the case-law on competitions, which does not deal with the situation of pregnant women, and to have failed to give any weight to the case-law which elaborates, in a variety of circumstances, on the requirements of the principle of equality as regards the specific situation of pregnant women(11). His provisional conclusion was that Parliament, in good faith and without any deliberate intent to discriminate, had failed to strike a balance between the two aspects of equality that were pertinent to the present case and that this was an instance of maladministration.

The Ombudsman noted that Parliament had itself suggested that the complainant could take part in future competitions and could also benefit from the new certification procedure provided for in Article 45(a) of the Staff Regulations. The Ombudsman suggested that Parliament could consider providing concrete information to the complainant concerning these possibilities, as they relate to her circumstances.

Parliament's reply to the Ombudsman’s proposal for a friendly solution

In reply to the Ombudsman's proposal, Parliament made the following points:

Parliament agreed to the friendly solution proposal.

The relevant departments therefore formally undertook to notify the complainant of the certification procedure arrangements as soon as the relevant planning schedule was adopted by the competent authority.

As regards internal competitions in which the complainant might take part, Parliament had no plans at this stage to organise any such competitions.

The complainant's observations on Parliament’s reply

The complainant's observations can be summarised as follows:

On 2 December 2005, the complainant received an e-mail from the Director of Directorate Human Resources Strategy, in which he informed her of the coming publication of the call for expression of interest for the certification procedure and drew her attention to the short time-limit to apply. No reference to the complaint was made. It was only when the complainant was informed of Parliament's reply to the friendly solution proposal that she understood why she received an e-mail. At first, she believed that the e-mail had been sent to everyone.

The complainant did not consider that Parliament had replied favourably to the Ombudsman's proposal. She considered that Parliament committed itself to providing her with information that was widely available and easily accessible to all officials. Furthermore, this information dealt with the certification procedure to which she would have had access anyway, irrespective of her participation in competition A/95. Parliament's reply did not take any account of her circumstances, as analysed in the Ombudsman's friendly solution proposal. No compensation for the loss she suffered was offered. She referred to Case C-284/02 Sass(12).

In conclusion, she pointed out that Parliament's reply was not satisfactory and requested that Parliament make an appropriate proposal in order to comply with the principle of equity.

In light of the above observations made by the complainant, the Ombudsman considered that a friendly solution had not been reached in this case.

THE DRAFT RECOMMENDATION

On 10 August 2006, the Ombudsman addressed the following draft recommendation to Parliament in accordance with Article 3 (6) of his Statute:

Parliament's contested refusal to organise a new series of tests on a different date for candidates who failed to attend the exams on the date the competition took place, because of their physical condition due to their giving birth to a child, involves de facto gender discrimination. Apart from that, such a refusal may make the exercise of the fundamental freedom of procreation much less attractive to female candidates and, hence, may involve a real and appreciable burden upon their right to respect for private life. Therefore, Parliament has to show that the refusal at issue serves a legitimate objective of general interest and is proportional to the achievement of this objective. The principle of equal treatment of candidates, referred to in essence by Parliament, constitutes a legitimate objective of general interest, the pursuance of which might, but does not by itself, justify the upholding of the challenged decision. Parliament should have also addressed the issue of compliance with the principle of proportionality, which pertains to a fair balancing of the competing principles and interests involved in the challenged refusal. Parliament's failure to do so means that Parliament's contested refusal is not well founded. This is an instance of maladministration. Hence, Parliament should consider re-examining the propriety of its challenged refusal, after adequately examining the issue whether the principle of proportionality has been complied with. In this context, Parliament should consider examining, inter alia, the complainant's argument that it failed to (properly) take into account the likely date of the birth of her child, in establishing the date of the tests.

This draft recommendation was based on the following considerations:

Preliminary remark

1.1 As mentioned in the European Ombudsman's letter dated 22 November 2004, the Ombudsman's inquiry into the present complaint concerned:

(i) the complainant's allegation that the European Parliament's refusal to organise written tests for her at a later date was discriminatory; and

(ii) the complainant's claims that

(a) she should be allowed to take the tests and, if this is not possible, that she should, within a reasonable time-limit, be given the same possibility of promotion as that given by competition A/95; and

(b) that future competitions should take account of the particular situation of women who are pregnant.

In her observations on Parliament's opinion on her complaint, the complainant referred, inter alia, to the issue of the conditions for breastfeeding. The complainant stated that it was not because of the conditions imposed by Parliament that she did not take part in the competition. However, these conditions would have been highly discriminatory as regards the time allocated to her. She considered that the Ombudsman should take a stand on these conditions and possibly help Parliament establish appropriate rules for breastfeeding women and their babies.

In her complaint to the Ombudsman, the complainant indicated that her arguments were similar to the ones she submitted in her Article 90(2) appeal, in which she contested Parliament's decision of 15 July 2004 and asked to be allowed to take the written tests of the competition. She invited the Ombudsman to refer to her Article 90(2) appeal. She further stated that she would like to add certain further considerations. Among these considerations, she mentioned the conditions for breastfeeding established by Parliament, which she considered as unacceptable for a newborn. She indicated that, in the first days following childbirth, the timing and duration of each feeding required by a baby were not predictable. Moreover, if breastfeeding poses difficulties in the beginning, this might be painful for the mother and might jeopardise breastfeeding. The Ombudsman considered that the above-mentioned issue was an argument in support of the complainant's allegation that her participation in the competition would not have taken place under the same conditions as the other candidates.

1.2 However, the Ombudsman observed that the above allegation was made by the complainant for the first time in her observations. The complaint to the Ombudsman did not contain such an allegation, which, therefore, did not fall within the scope of the Ombudsman's inquiry, as specified in his letter of 22 November 2004. Moreover, it appeared that the complainant had not exhausted all the possibilities of internal administrative remedies as regards Parliament's decision on the conditions of breastfeeding her child, since the complainant's Article 90(2) appeal was not directed against this decision. Parliament did not, in its decision on the Article 90(2) or in its opinion, deal with this specific argument and only stated in its opinion that the current arrangements were reasonable. Under these circumstances and in accordance with the provisions of Article 2(8) of the Statute of the European Ombudsman(13), the Ombudsman could not accept the complainant's invitation to take a position on this issue. However, the complainant may consider filing a new complaint with the Ombudsman regarding this matter, after having exhausted the possibilities of internal administrative remedies.

As regards the European Parliament's alleged refusal to organise new written tests for the complainant and related claims

1.3 On 18 February 2004, the complainant applied for internal competition A/95 organised by Parliament, mentioning that she was pregnant. She was invited to the tests, which were to take place on 2 July 2004. The complainant gave birth on 1 July 2004. On the same day, she informed Parliament that she would not be able to attend the tests and requested to take them on a later date. Parliament refused to organise the tests on another date.

The complainant argued that it was impossible for her to take the tests one day after having given birth. She considered that there would have been no breach of the principle of equality if the tests had been organised at different times. She disagreed with Parliament's classification of her pregnancy as a medical problem.

In summary, the complainant alleged that Parliament's refusal to organise written tests for her on a later date was discriminatory. She claimed that she should be allowed to take the tests and, if this were not possible, that she should, within a reasonable time-limit, be given the same possibility of promotion as that given by competition A/95. She also claimed that future competitions should take account of the particular situation of women who are pregnant.

1.4 In its opinion, Parliament indicated that, once candidates have read the subject of the tests, secrecy no longer exists. According to established case-law(14), the Selection Board shall make sure during a competition that the principle of equality of treatment, which is a fundamental principle of Community law, is complied with. The Court has also confirmed that the principle of equality requires that the written tests be conducted on the same date for all candidates(15). Moreover, there would be a breach of the rule of anonymity if different written tests were corrected by the Selection Board. In conclusion, Parliament argued that its decision to reject the complainant's request was well founded.

The refusal to organise the tests on a different date for the complainant was not based on her sex, but on the fact that a competition cannot be cancelled because one candidate could not be present, be it for medical, practical or other reasons. In effect, the case-law does not allow a Selection Board to organise the tests on a different date for one candidate, given that such a decision would be annulled by the Court.

Parliament recalled that the Staff Regulations confer on the institutions a wide discretion as regards the organisation of competitions. The exercise of that discretion must be compatible with Article 29(1), as well as with Article 27, according to which recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. The choice to be made in the exercise of that power must always be governed by the requirements of the post to be filled and, more generally, the interests of the service(16).

Parliament also pointed out that, if the complainant wishes to be promoted, she has the possibility to take part in competitions which could be organised in the future and which correspond to her diplomas and professional experience. She could also benefit from the new certification procedure provided for in Article 45(a) of the Staff Regulations(17).

1.5 The Ombudsman first recalled that, according to Article 21 of the Charter of Fundamental Rights:

"Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited."

Equal treatment of both sexes has been explicitly recognised by the Community judicature as a fundamental right guaranteed by Community law(18). The same is true with the right to respect for private and family life(19), which includes, inter alia, the freedom of procreation. The Ombudsman also recalled that the principle of non-discrimination required that different situations must not be treated in the same way unless such treatment is objectively justified(20). In the context of gender classifications, or classifications involving burdens upon a fundamental right, this implies that the defender of the challenged classification has to show that the classification serves a legitimate objective of general interest and that the means employed are proportional to the achievement of this objective(21). In this regard, one must also bear in mind that the principle of non-discrimination on the basis of gender covers not only direct but also indirect or de facto discrimination, which may be found, in particular, when a neutral (i.e., not explicitly gender-based) classification adversely affects members of one sex only, and this fact cannot be adequately explained by objective factors unrelated to gender.

Moreover, the Ombudsman referred to the duty to state reasons imposed by the second paragraph of Article 25 of the Staff Regulations and, as regards decisions taken as a result of a complaint, the duty to state reasons imposed by the second subparagraph of Article 90(2) thereof. The Ombudsman noted that these provisions are intended (i) to provide the persons concerned with sufficient details to enable them to assess whether the decision was well founded and whether it would be expedient to challenge the decision before the Community Courts or the Ombudsman, and (ii) to enable the Community Courts or the Ombudsman to review the decision.

1.6 In this case, Parliament has observed that its refusal to organise the tests on a different date for the complainant is not based on her sex, but on the fact that:

• according to the case-law, tests should take place on the same date for all candidates, and, hence, a Selection Board may not organise the tests on a different date for one candidate;
• a competition cannot be cancelled or challenged because one candidate could not be present, be it for medical, practical or other reasons;
• as soon as candidates read the tests, secrecy would no longer be maintained;
• the rule of anonymity would be breached;
• the case-law does not allow the Selection Board to organise the tests on a different date for one candidate.

1.7 The Ombudsman first noted that Parliament had based its challenged refusal on a distinction between candidates who presented themselves at the exams and candidates who did not, "be it for medical, practical or other reasons". Hence, the classification appears, on its face, to be sex neutral. Nevertheless, the decision at issue involves de facto gender discrimination, in the sense described above, as regards candidates finding themselves in a situation similar to the one of the complainant on the date of the exams. The refusal to organise a new series of tests on a different date for candidates who failed to appear at the exams on the date the competition took place, because of the physical condition resulting from having given birth to a child, can affect only members of the female sex. Moreover, this fact cannot be explained by objective factors other than the gender of the candidates concerned. Apart from that, such a refusal may make the exercise of the fundamental freedom of procreation much less attractive to female candidates and, hence, may involve a real and appreciable burden upon their right to respect for private life. Therefore, Parliament has to show that the refusal at issue serves a legitimate objective of general interest and is proportional to the achievement of this objective.

1.8 As to the first part of the inquiry (objective), Parliament has made, in essence, reference to the principle of equal treatment of candidates. The Ombudsman considered that this principle, which is part of the fundamental principles of Community law(22), constitutes a legitimate objective of general interest, the pursuit of which might, but does not by itself, justify the upholding of the challenged decision. The Ombudsman took note of Parliament's argument that, according to the case-law, the principle of equality requires that written tests be conducted on the same date for all candidates(23). However, this requirement does not appear to have been examined and applied by the Community Courts in relation to candidates found in a situation comparable to the one of the complainant in the present case, where due regard must be also had to the principles of non-discrimination on the basis of gender and of respect for private and family life. Besides, the case-law shows that the same requirement is not absolute, and may be set aside especially when candidates have been unlawfully prevented from participating in the tests(24). In this regard, the Court of Justice has held that (i) the interest of candidates not to have a date fixed for the written tests which is unsuitable for them must be balanced against the necessity that the date of the written tests should be the same for all candidates, and (ii) if a candidate informs the competent Appointing Authority that religious reasons make certain dates impossible for him or her, the Authority

"should take this into account in fixing the date for written tests and endeavour to avoid such dates" (emphasis added)(25). "On the other hand if the candidate does not inform the (...) Authority in good time of his difficulties, the (...) Authority would be justified in refusing to afford an alternative date, particularly if there are other candidates who have been convoked for the test."(26)

Taking into account that the exercise of the freedom of procreation is also a fundamental right of the individual, the Ombudsman finds that similar principles are applicable when a female candidate informs the Appointing Authority organising a competition that reasons pertaining to her being pregnant and to her giving birth to a child in the reasonably foreseeable future render virtually impossible or excessively difficult her participation in the competition on certain dates. Accordingly, the Ombudsman accepted, in relevant part, the complainant's claim that the particular situation of pregnant candidates should be taken into account by the competent appointing authorities in the context of future competitions.

1.9 In light of the above, the Ombudsman considered that Parliament should have also addressed the second part of the inquiry (proportionality), which pertains to striking a fair balance between the competing principles and interests involved. Nevertheless, Parliament has failed to examine the issue whether, and to offer adequate reasons why, the principle of proportionality has been complied with. Under these circumstances, Parliament's contested refusal, as confirmed by Parliament's decision on the complainant's Article 90(2) appeal and by its opinion on the complaint to the Ombudsman, was not well founded. This was an instance of maladministration and the Ombudsman made a draft recommendation.

1.10 Relatedly, the Ombudsman noted that, in her observations on Parliament's opinion on her complaint, the complainant pointed out that the challenged refusal was the result, inter alia, of Parliament's failure to (properly) take into account the likely date of the birth of her child, in establishing the date of the tests. The Ombudsman considered that, in the context of the proper implementation of his draft recommendation, Parliament should also adequately address this argument, taking into account the Ombudsman's remarks at the end of point 1.8 above.

1.11 Finally, the Ombudsman noted that, in view of the nature of the maladministration identified above and of the content of his draft recommendation, it would not be appropriate, in the context of the present decision, to deal with the complainant's claim that she should, within a reasonable time-limit, be allowed to take the tests and, if this is not possible, that she should be given the same possibility of promotion as that given by competition A/95. The Ombudsman, therefore, would deal with this claim in his final decision closing his inquiry into the present case.

Parliament's detailed opinion

Parliament's detailed opinion can be summarised as follows:

1. Fixing the date of the tests

In its opinion, Parliament stated that it took due account of the complainant's legitimate interests, since the tests were organised at a date that was two weeks later than the date indicated by her for the childbirth. Upon receipt of the invitation to participate, the complainant did not protest against that date and thus Parliament did not have any reason to reconsider it.

In this respect, Parliament recalled that it had relied on the judgment in Case 130/75 Prais v Council(27) which is also cited in the Ombudsman's draft recommendation:

"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.

It is therefore of great importance that the date of the written tests should be the same for all candidates.

The interests of participants not to have a date fixed for the test which is unsuitable must be balanced against this necessity.

If a candidate informs the appointing authority that the religious reasons make certain dates impossible for him, the appointing authority should take this into account in fixing the date for written tests, and endeavour to avoid such dates.

On the other hand, if the candidate does not inform the appointing authority in good time of his difficulties, the appointing authority would be justified in refusing to afford an alternative date, particularly if there are other candidates who have been convoked for the test."

In accordance with the above judgment, Parliament balanced the interest of the complainant in not having the date of tests set for 17 June, which was the expected date of her childbirth, with the interest of the other participants in the competition and the interest of Parliament.

However, after the Ombudsman submitted the draft recommendation to Parliament, Parliament, when reviewing the procedure in connection with setting the date for the written tests, realised that it could have provided for a longer span between the date of expected birth and the date of the written tests. Parliament recognised that due to the inherent uncertainty in predicting the date of birth, it would have been desirable if the written tests had been organised at a later date.

2. Organisation of a second round of the tests

Parliament remarked that its decision to refuse to organise separate tests for the complainant was based on existing case-law and therefore fully respected the principle of proportionality. Indeed, the principle that, in competitions, the written tests must take place on the same date for all candidates is well established in the case-law(28).

It is true that, on one occasion, the Court of First Instance concluded that it was justified to organise a second round of tests(29). However, in the opinion of Parliament, in that case, the derogation from the main principle was based on reasons which are essentially different from the situation of the complainant.

Thus, in the above-mentioned case, the reason for organising a second round was that one of the conditions of admissibility in the original competition notice was illegal. In the present case, the procedure of the internal competition was perfectly legal. Parliament therefore took the view that it would have been unlawful to organise a second round of tests exclusively for the complainant.

Taking into account that the refusal to organise separate tests for the complainant was based on objective criteria, Parliament considered that no discrimination, direct or indirect, took place.

3. Alternatives for progression in career

In its previous opinion on the complaint, Parliament stated that it was contrary to European civil service law to provide for privileged conditions in obtaining a higher post. Staff Regulations confer on the institutions a wide discretion as regards the organisation of competitions and selection procedures. However, the exercise of this discretion must be compatible with the mandatory requirements of Articles 27 and 29(1) of the Staff Regulations and the choice to be made must always be governed by the requirements of the post to be filled and, more generally, by the interests of the service(30). It is also contrary to the existing case-law and the principle of equality to grant a person a promotion solely on the basis of gender as part of affirmative action(31).

Furthermore, Parliament observed that the fact that a candidate takes part in the written tests in the competition in no way guarantees employment in a higher grade. The candidate must first obtain a pass mark in those tests, then pass an oral test and be included in the reserve list, then there should be a post available in a higher grade and finally the laureate should be selected, from amongst all applicants, to be nominated to that post.

Considering the above, granting a special advantage to the complainant because she could not take part in the written tests would mean that the other participants in the competition in question would be discriminated against.

On the other hand, following the Ombudsman's proposal for a friendly solution, Parliament undertook to provide the complainant with concrete information concerning the possibility of participating in the certification procedure provided for in Article 45(a) of the Staff Regulations.

In execution of this undertaking, the Director of Human Resources of Parliament informed the complainant on 2 December 2005 by e-mail about the imminent publication of the certification procedure. In this message, the complainant's attention was drawn to the fact that the deadline for applying for the procedure was very short.

However, in her observations, the complainant considered that such a response did not sufficiently meet her expectations. She claimed that the information provided was widely available to everyone and that she believed that the said e-mail was sent to all officials.

Parliament did not agree with the complainant's position. The above-mentioned e-mail was sent only to her and provided her with information, which at that time was not available to other officials. Since the deadline set for applicants to take part in the certification procedure was very short, this prior information served to give her additional time to assemble the necessary documents.

Indeed, the complainant was at present taking part in the certification procedure. She was selected to be part of the first group of candidates for the procedure, which corresponds to her claims in the complaint. Should she be successful, she would be included in the reserve list for an employment in a higher grade.

4. Conditions of future competition

Parliament recognised the need for a general revision of the conditions for the participation of breastfeeding women in competitions. It therefore undertook to establish clear guidelines providing more appropriate conditions for breastfeeding women or women who have recently given birth, when participating in competitions organised by Parliament. In these guidelines, the question relating to extra time for breastfeeding women as well as the institution's policy on the setting of the date of the written test for pregnant women would be addressed in detail.

Parliament concluded that, when determining the date of the written tests, it did take into account the expected date of birth. Nevertheless, Parliament recognised that, taking into account the uncertainty inherent in estimating the date of birth, the time span between the aforementioned date and the date of the tests was too short. Parliament also recognised the need for a general revision of the conditions for the participation of breastfeeding women in competitions and undertook to establish clear internal guidelines on the issue. Parliament's decision to refuse to organise separate tests for the complainant was based on well-established case-law according to which tests must take place on the same date for all candidates. Indeed, after careful consideration of this case-law and upon balancing the needs of the complainant over those of the other candidates and the institution, Parliament considered that it would be unlawful to organise a second round of written tests. Following the Ombudsman's proposal for a friendly solution, the Director of Human Resources of Parliament informed the complainant by means of a personal e-mail about the imminent publication of the certification procedure provided for in Article 45(a) of the Staff Regulations. In this message, her attention was drawn to the fact that the deadline for applying for the procedure was very short, and this allowed her additional time to assemble the necessary documents. The complainant was subsequently selected to be part of the first group of candidates for the procedure. Should she be successful, she will be included in the reserve list for employment in a higher grade.

The complainant's observations

The complainant's observations can be summarised as follows:

As regards the date of the tests, the complainant was pleased to note that Parliament considered that it would have been desirable if the written tests were organised at a later date. According to the complainant, the date of the tests was not unacceptable in absolute terms. Two scenarios were possible. First, the date would have been acceptable if she had given birth at a date closer to the planned date or earlier if conditions facilitating breastfeeding would have existed(32). Second, the date would have been unacceptable, which is what happened. Parliament should have taken appropriate measures to allow her to take part in the competition, rather than exclude her because she was absent.

The complainant understood that the impossibility of setting an exact date for childbirth makes it difficult to set a date for tests. However, excluding a candidate because she gave birth is discriminatory. To avoid discrimination, pregnant candidates should be given assurances that they would be able to participate in tests whatever the date of the childbirth.

Moreover, according to the complainant, the judgment in Case 130/75 Prais v Council is not applicable to the present situation. The date of a childbirth is not predictable, which is not the case as regards the date of a religious feast(33).

In conclusion, the complainant welcomed Parliament's conclusions as regards the fixing of the date of the tests and, in particular, the general revision of the conditions for the participation of breastfeeding women in competitions.

She also welcomed, despite the Ombudsman's decision not to take a position on breastfeeding during competitions, the fact that Parliament undertook to set clear guidelines providing for more appropriate conditions for breastfeeding women.

As regards her claims included in her complaint that she should be allowed to take part in competition A/95 and be given the same possibility of promotion as that given by competition A/95 within a reasonable time-limit, the complainant indicated that they could be considered as null and void, as her name is on the list of officials having passed the certification.

THE DECISION

1 Parliament's refusal to organise new written tests for the complainant and related claims

1.1 On 18 February 2004, the complainant applied for internal competition A/95 organised by the European Parliament, mentioning that she was pregnant and that she was due to give birth on 17 June 2004. She was invited to the tests, which were to take place on 2 July 2004. The complainant gave birth on 1 July 2004. On the same day, she informed Parliament that she would not be able to attend the tests and requested that she take them on a later date. Parliament refused to organise the tests on another date.

The complainant argued that it was impossible for her to take the tests one day after having given birth. She considered that there would have been no breach of the principle of equality, if the tests had been organised at different times. She disagreed with Parliament's classification of her pregnancy as a medical problem.

In summary, the complainant alleged that Parliament's refusal to organise written tests for her on a later date was discriminatory. She claimed that she should be allowed to take the tests and, if this were not possible, that she should, within a reasonable time-limit, be given the same possibility of promotion as that given by competition A/95. She also claimed that future competitions should take account of the particular situation of women who are pregnant.

1.2 In its opinion, Parliament indicated that, once candidates have read the subject of the tests, secrecy no longer exists. According to the established case-law of the Community Courts(34), the Selection Board shall make sure during a competition that the principle of equality of treatment, which is a fundamental principle of Community law, is complied with. The Court has also confirmed that the principle of equality requires that the written tests be conducted on the same date for all candidates(35). Moreover, there would be a breach of the rule of anonymity if different written tests were corrected by the Selection Board. In conclusion, Parliament argued that its decision to reject the complainant's request was well founded.

The refusal to organise the tests on a different date for the complainant was not based on her sex, but on the fact that a competition cannot be cancelled because one candidate could not be present, be it for medical, practical or other reasons. In effect, the case-law does not allow a Selection Board to organise the tests on a different date for one candidate, given that such a decision would be annulled by the Court.

Parliament recalled that the Staff Regulations confer on the institutions a wide discretion as regards the organisation of competitions. The exercise of that discretion must be compatible with Article 29(1), as well as with Article 27, according to which recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity. The choice to be made in the exercise of that power must always be governed by the requirements of the post to be filled and, more generally, the interests of the service(36).

Parliament also pointed out that, if the complainant wishes to be promoted, she has the possibility to take part in competitions which could be organised in the future and which correspond to her diplomas and professional experience. She could also benefit from the new certification procedure provided for in Article 45(a) of the Staff Regulations(37).

1.3 On 27 September 2005, the Ombudsman wrote to the President of Parliament seeking a friendly solution to the complaint. The Ombudsman took the view that, in the handling of the present case, Parliament appeared to have relied exclusively on the case-law on competitions, which does not deal with the situation of pregnant women, and to have failed to give any weight to the case-law which elaborates, in a variety of circumstances, on the requirements of the principle of equality as regards the specific situation of pregnant women(38). His provisional conclusion was that Parliament, in good faith and without any deliberate intent to discriminate, had failed to strike a balance between the two aspects of equality relevant in the present case and that this was an instance of maladministration.

Parliament agreed to the friendly solution proposal and the relevant departments therefore formally undertook to notify the complainant of the certification procedure arrangements, as soon as the relevant planning schedule is adopted by the competent authority. As regards internal competitions in which the complainant might take part, Parliament had no plans at this stage to organise any such competitions.

In her observations, the complainant was not satisfied with Parliament's reply because it provided her with information widely available and easily accessible to all officials and to which she would have had access irrespective of her participation in competition A/95.

Therefore, the Ombudsman considered that a friendly solution had not been reached.

1.4 On 10 August 2006, the Ombudsman addressed, in accordance with Article 3 (6) of his Statute, a draft recommendation to Parliament, which was as follows:

Parliament's contested refusal to organise a new series of tests on a different date for candidates who failed to attend the exams on the date the competition took place, because of their physical condition due to their giving birth to a child, involves de facto gender discrimination. Apart from that, such a refusal may make the exercise of the fundamental freedom of procreation much less attractive to female candidates and, hence, may involve a real and appreciable burden upon their right to respect for private life. Therefore, Parliament has to show that the refusal at issue serves a legitimate objective of general interest and is proportional to the achievement of this objective. The principle of equal treatment of candidates, referred to in essence by Parliament, constitutes a legitimate objective of general interest, the pursuance of which might, but does not by itself, justify the upholding of the challenged decision. Parliament should have also addressed the issue of compliance with the principle of proportionality, which pertains to a fair balancing of the competing principles and interests involved in the challenged refusal. Parliament's failure to do so means that Parliament's contested refusal is not well founded. This is an instance of maladministration. Hence, Parliament should consider re-examining the propriety of its challenged refusal, after adequately examining the issue whether the principle of proportionality has been complied with. In this context, Parliament should consider examining, inter alia, the complainant's argument that it failed to (properly) take into account the likely date of the birth of her child, in establishing the date of the tests.

The Ombudsman's draft recommendation was based on an analysis which was presented, in full, above.

1.5 In its detailed opinion, Parliament explained that it took due account of the complainant's legitimate interests since the tests were organised at a date that was two weeks later than the date indicated by her for the childbirth. Upon receipt of the invitation to participate, the complainant did not protest against that date and thus Parliament did not have any reason to reconsider it. Parliament stated that it had relied on Case 130/75 Prais v Council(39) and had balanced the interest of the complainant in not having the date of tests set for 17 June, which was the planned date of her childbirth, with the interest of the other participants in the competition and the interest of Parliament. However, after the Ombudsman submitted his draft recommendation to Parliament, it realised that it could have provided for a longer span between the date of expected birth and the date of the written tests. Parliament recognised that due to the inherent uncertainty in predicting the date of birth, it would have been desirable if the written tests had been organised at a later date.

As regards the organisation of a second round of the tests, Parliament remarked that its decision to refuse to organise separate tests for the complainant was based on existing case-law and therefore fully respected the principle of proportionality. Indeed, the principle that, in competitions, the written tests must take place on the same date for all candidates is well established in the case-law(40). It noted that there was one derogation from this principle, because one of the conditions of admissibility in the original competition notice was illegal. In the present case, the procedure of the internal competition was perfectly legal. Parliament therefore took the view that it would have been unlawful to organise a second round of tests exclusively for the complainant. Taking into account that the refusal to organise separate tests for the complainant was based on objective criteria, Parliament considered that no discrimination, direct or indirect, took place.

As regards alternatives for career advancement, Parliament, in its previous opinion on the complaint, stated that it was contrary to European civil service law to provide a person with privileged conditions in obtaining a higher post. It is also contrary to the existing case-law and the principle of equality to grant a person a promotion solely on the basis of gender as part of affirmative action(41). Considering the above, granting a special advantage to the complainant because she could not take part in the written tests would have the result that the other participants in the competition in question would be discriminated against.

On the other hand, following the Ombudsman's proposal for a friendly solution, Parliament undertook to provide the complainant with concrete information concerning the possibility of participating in the certification procedure. In execution of this undertaking, the Director of Human Resources of Parliament, informed the complainant on 2 December 2005 by e-mail about the imminent publication of the certification procedure. In this message, the complainant's attention was drawn to the fact that the deadline for applying for the procedure was very short. The above-mentioned e-mail was sent only to the complainant and provided her with information, which at that time was not available to other officials. Since the deadline set for applicants to take part in the certification procedure was very short, this prior information served to give her additional time to assemble the necessary documents.

As regards the conditions of future competition, Parliament recognised the need for a general revision of the conditions for the participation of breastfeeding women in competitions. It therefore undertook to establish clear guidelines providing more appropriate conditions for breastfeeding women or women who have recently given birth, when participating in competitions organised by Parliament. In these guidelines, the question relating to extra time for breastfeeding women, as well as the institution's policy on the setting of the date of the written test for pregnant women would be addressed in detail.

1.6 In her observations, the complainant was pleased to note that Parliament considered that it would have been desirable if the written tests had been organised at a later date. According to the complainant, the date of the tests was not unacceptable in absolute terms. Two scenarios were possible. First, the date would have been acceptable if she had given birth at a date closer to the planned date or earlier if conditions allowing breastfeeding would have existed(42). Second, the date would have been unacceptable, which is what happened. Parliament should have taken appropriate measures to allow her to take part in the competition, rather than exclude her because she was absent.

The complainant understood that the impossibility of setting an exact date of a childbirth makes it difficult to set a date for tests. However, excluding a candidate because she gave birth is discriminatory. To avoid discrimination, pregnant candidates should be given assurances that they would be able to participate in tests whatever the date of the childbirth. The complainant welcomed Parliament's conclusions as regards the fixing of the date of the tests and, in particular, the general revision of the conditions for the participation of breastfeeding women in competitions. As regards her claims, she indicated that her claim that she should be allowed to take part in competition A/95 and her claim that she should be given the same possibility of promotion as that given by competition A/95 within a reasonable time-limit could be considered as null and void, as her name is on the list of officials having passed the certification.

1.7 In its reply to the Ombudsman's draft recommendation, Parliament addressed the issue of compliance with the principle of proportionality, which pertains to a fair balancing of the competing principles and interests involved. In the same reply, Parliament also considered whether, in this context, it showed that, when establishing the date of the tests, it took properly into account the information it had received from the complainant about the likely date of the childbirth. In relation to these points, the Ombudsman notes the following:

(a) Parliament's argument that it took due account of the complainant's legitimate interests, since the tests were organised at a date that was two weeks later than the date indicated by her for the childbirth, is not convincing. In this context, due consideration must be given both to the inherent uncertainty in the date of the labour, which occurs, in many cases, several days after the day initially predicted. Furthermore, due consideration must also be given to the postnatal physical condition of the woman who has given birth and the time needed for an adequate recovery, for the purposes of her participation in a competition like the one here concerned. In this regard, the Ombudsman notes that the time needed for such an adequate recovery varies depending on the circumstances, but certainly, as a matter of common knowledge, clearly exceeding, in many cases, a two-week period(43). The combination of these two factors does not appear to have been properly considered by Parliament in the complainant's case.

(b) Parliament's argument that, upon receipt of the invitation to participate in competition A/95, the complainant did not protest against the date fixed for the test and thus Parliament did not have any reason to reconsider it, cannot equally be accepted, mainly in light of the observation made above in paragraph (a) of the present point 1.7. Relatedly, it must also be noted that the mere fact that the complainant, who was not necessarily aware of what principles of good administration required in her case, did not object to the date of the test established by Parliament could neither relieve Parliament of its obligation to act in accordance with principles of good administration nor justify its failure to do so.

(c) Parliament has admitted that it could have organised the test at a later date.

(d) As explained in the draft recommendation addressed to Parliament (see its point 1.8 above), according to the case-law, the principle of equal treatment requires that written tests should be conducted on the same date for all candidates. However, this requirement may not be applicable in a situation comparable to the complainant's situation in the present case and may be set aside, especially when candidates have been unlawfully prevented from participating in the tests, which means that the procedure of the competition is vitiated by this illegality.

(e) Taking the above into account, Parliament's conclusion that it fully respected the principle of proportionality and properly balanced, in accordance with Case 130/75 Prais v Council, the interest of the complainant with the interest of the other participants in the competition and also of the institution has not been substantiated. Parliament has, thus, failed to discharge the burden referred to in point 1.7 of the draft recommendation, presented above.

1.8 For these reasons, the Ombudsman maintains his finding that Parliament's challenged refusal was not well founded.

1.9 Following this refusal, the complainant initially claimed that she should be allowed to take the tests and, if this were not possible, that she should, within a reasonable time-limit, be given the same possibility of promotion as that given by competition A/95. The Ombudsman notes that the complainant has stated, in her observations, that these claims could be considered as null and void. He also remarks that, in its reply to his draft recommendation, Parliament made the welcome commitment to revise, on the basis of clear guidelines, both the conditions for the participation in future competitions of women who have recently given birth and its policy on the setting of test dates for pregnant candidates. In light of the above, the Ombudsman does not consider it justified to further pursue the matter.

1.10 As regards Parliament's commitment to revise the conditions for the participation of breastfeeding women in competitions, the Ombudsman will make a further remark below.

2 Conclusion

Parliament's contested refusal to organise a new series of tests on a different date for a candidate, like the complainant, who failed to attend the exams on the date the competition took place, because of her physical condition resulting from having given birth to a child, was not well-founded. For the reasons indicated in point 1.9 of the present decision, the Ombudsman does not consider it justified to further pursue the matter. He therefore closes the case.

The President of Parliament will be informed of this decision.

FURTHER REMARK

The Ombudsman welcomes Parliament's commitment to revise the conditions for the participation of breastfeeding women in competitions, to the extent that the relevant rules reflect a careful and fair balancing of the competing interests and principles involved, including the principle of equal treatment of candidates.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) COPEC's general tasks are to propose all appropriate measures to ensure equal opportunities between men and women in Parliament and to monitor proper implementation of the measures taken.

(2) Article 1(d) states the following: "In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited."

(3) Article 2(2) states the following: "(...) Less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC shall constitute discrimination within the meaning of this Directive."

(4) OJ 2002 L 269, p. 15.

(5) See Case T-43/91 Hoyer v Commission [1994] ECR-SC I-A-91 and II-297; Case T-44/91 Smets v Commission [1994] ECR-SC I-A-97 and II-319.

(6) See Case T-132/89 Gallone v Council [1990] ECR II-549.

(7) See Case T-294/97 Carrasco Benitez v Commission [1998] ECR-SC I-A-601 and II-1819.

(8) The Ombudsman understands that the complainant refers to Article 2(7) of Directive 76/207/EEC which states the following: "Less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC shall constitute discrimination within the meaning of this Directive".

(9) Article 141(4) states: "With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers."

(10) Article II-83 states: "Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex."

(11) The relevant case-law, referred to in the friendly solution proposal, also concerned sex discrimination in relation to maternity leave.

(12) Case C-284/02 Sass [2004] ECR I-11143, paragraphs 35-36.

(13) "No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all possibilities for submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned (...)".

(14) See Case T-43/91 Hoyer v Commission [1994] ECR-SC I-A-91 and II-297; Case T-44/91 Smets v Commission [1994] ECR-SC I-A-97 and II-319.

(15) See Case T-132/89 Gallone v Council [1990] ECR II-549.

(16) See Case T-294/97 Carrasco Benitez v Commission [1998] ECR-SC I-A-601 and II-1819.

(17) Article 45(a) of the Staff Regulations states the following:

"By way of derogation from Article 5(3)(b) and (c), an official in function group AST may, from grade 5, be appointed to a post in function group AD, on condition that:

(a) he has been selected in accordance with the procedure laid down in paragraph 2 of this Article to take part in a compulsory training programme as set out in point (b) of this paragraph,

(b) he has completed a training programme defined by the Appointing Authority comprising a set of compulsory training modules, and

(c) he is on the list drawn up by the Appointing Authority of candidates who have passed an oral and written examination demonstrating that he has successfully taken part in the training programme mentioned under point (b) of this paragraph. The contents of this examination shall be determined in accordance with Article 7(2)(c) of Annex III."

(18) See, e.g., Joined Cases 75/82 and 117/82 Razzouk and Beydoun v Commission [1984] ECR 1509, paragraph 16.

(19) See, e.g., Case C-404/92 P X v Commission [1994] ECR I-4737, paragraph 17; Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 46.

(20) See, e.g., Case C-344/04 International Air Transport Association [2006] ECR I-403, paragraph 95.

(21) Cf. Case C-404/92 P X v Commission, cited above, paragraph 18, concerning restrictions on the right to respect for private life.

(22) See Case T-173/99 Elkaïm and Mazuel v Commission [2000] ECR-SC I-A-101 and II-433, paragraph 87; Case T-5/04 Scano v Commission [2005] ECR-SC I-A-205 and II-931; Case T-165/03 Vonier v Commission [2004] ECR-SC I-A-343 and II-1575.

(23) See Case 130/75 Prais v Council [1976] ECR 1589, paragraph 14; Case T-132/89 Gallone v Council [1990] ECR II-549, paragraph 36.

(24) See Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 36 (not available in English): "force est de constater que la Commission n'a pas violé le principe d'égalité de traitement et de non-discrimination ni en décidant qu'il fallait organiser une seconde série d'épreuves écrites afin de permettre à des candidats, illégalement empêchés de participer (...) d'y prendre part, ni en décidant que les questions posées lors de la seconde série d'épreuves devaient être différentes de celles formulées lors de la première série d'épreuves écrites (...)".

(25) See Case 130/75 Prais v Council [1976] ECR 1589, paragraphs 14-16.

(26) Case 130/75 Prais v Council, cited above, paragraph 17.

(27) Case 130/75 Prais v Council [1976] ECR 1589, paragraphs 13-17.

(28) Case 130/75 Prais v Council [1976] ECR 1589, paragraph 14; Case T-132/89 Gallone v Council [1990] ECR II-549, paragraph 36.

(29) See Case T-53/00 Angioli v Commission [2003] ECR II-73, paragraph 36.

(30) Case T-294/97 Carrasco Benitez v Commission [1998] ECR II-1819.

(31) Case C-450/93 Kalanke v Bremen [1995] ECR I-3051, paragraph 24.

(32) The complainant recalled that she was informed of these conditions only when she received the Parliament's letter dated 17 June 2004.

(33) When the complainant applied for the competition in February 2004, she provided Parliament with all information as regards her pregnancy and the planned date of the childbirth.

(34) See Case T-43/91 Hoyer v Commission [1994] ECR-SC I-A-91 and II-297; Case T-44/91 Smets v Commission [1994] ECR-SC I-A-97 and II-319.

(35) See Case T-132/89 Gallone v Council [1990] ECR II-549.

(36) See Case T-294/97 Carrasco Benitez v Commission [1998] ECR-SC I-A-601 and II-1819.

(37) Article 45 (a) of the Staff Regulations states the following:

"By way of derogation from Article 5(3)(b) and (c), an official in function group AST may, from grade 5, be appointed to a post in function group AD, on condition that:

(a) he has been selected in accordance with the procedure laid down in paragraph 2 of this Article to take part in a compulsory training programme as set out in point (b) of this paragraph,

(b) he has completed a training programme defined by the Appointing Authority comprising a set of compulsory training modules, and

(c) he is on the list drawn up by the Appointing Authority of candidates who have passed an oral and written examination demonstrating that he has successfully taken part in the training programme mentioned under point (b) of this paragraph. The contents of this examination shall be determined in accordance with Article 7(2)(c) of Annex III."

(38) The relevant case-law, referred to in the friendly solution proposal, also concerned sex discrimination in relation to maternity leave.

(39) Case 130/75 Prais v Council [1976] ECR 1589, paragraphs 13-17.

(40) Case 130/75 Prais v Council [1976] ECR 1589, paragraph 14; Case T-132/89 Gallone v Council [1990] ECR II-549, paragraph 36.

(41) Case C-450/93 Kalanke v Bremen [1995] ECR I-3051, paragraph 24.

(42) The complainant recalled that she was informed of these conditions only when she received Parliament's letter dated 17 June 2004.

(43) Hence, the complainant's interest that had to be balanced was not simply her interest in not having the date of tests set for 17 June (the foreseen date of the delivery), which Parliament stated it balanced in accordance with Case 130/75 Prais v Council, cited above, but rather her interest in being able to participate in the competition and in having fair terms of participation, taking into account her postnatal physical condition and her need for adequate recovery.