(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

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 to be allowed to take the tests, arguing that, even if the competition takes 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 ground 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 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 proclaimed.

The complainant informed Parliament's Unit "Equal Opportunities" and the Joint Committee on Equal Opportunities(2) ("COPEC") of her case.

The complainant drew 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 addressed to the Secretary-General of Parliament, dated 10 January 2005, requesting a revision of the decision concerning the complainant. The Committee drew attention to Article 1(d) of the Staff Regulations forbidding all discrimination(3) and to Article 2(2)(4) 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(5) ("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 on EU law and the Staff Regulations with regard to prohibiting discrimination in the workplace on the basis of sex, dated 7 February 2005, from a professor at the University of Glasgow and a barrister-at-law. 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

The European 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(6), 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 confirmed that the principle of equality requires that the written tests be conducted on the same date for all candidates(7). To ensure strict equality among candidates, the written tests of a 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 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, as well as with Article 29(1) of the Staff Regulations. 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(8).

As mentioned in Article 2 of the internal rules concerning recruitment of officials and other agents, in consultation with the Staff Committee, a multi-annual forecast of the needs of the institution is established each year, which forms the basis for organising external and internal competitions. The Appointing Authority, in accordance with the needs of the service, 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 complainants’ 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 has been working for Parliament.

The complainant drew attention to a number of events. On 20 and 22 June 2005, the complainant's doctor tried to induce the birth. On the date of the birth (1 July 2005), 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 a 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 phone 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 the medical service of Parliament. 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 to 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 to find 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(9).
  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)(10)). Affirmative action is also provided for by the Treaty establishing a Constitution for Europe (Article II-83(11)) and the Staff Regulations (Article 1(d)). On this basis, the complainant considered that Parliament should offer her an additional chance to get a post in the higher category or privileged admission conditions to existing chances to compensate for the inequality due to 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 list contains only 15 names, whereas the notice of competition referred to retaining a maximum of 20 names. She considered that a new internal competition could be organised to compensate 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, the requirements of the principle of equality as regards the specific situation of pregnant women(12). 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.

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.

The European 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 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.

The complainant's observations on the European 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 the attention to the short time-limit to apply. No reference to the complaint was made. It is only when the complainant was informed of Parliament's reply to the friendly solution proposal that she understood its 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' proposal. She considered that Parliament committed itself to providing her with information that was largely available and easily accessible to all officials. Furthermore, this information dealt with the certification procedure to which she would have had access irrespective of her participation in competition A/95. Parliament's reply did not take any account 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 Land Brandenburg v Sass(13).

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 considers that a friendly solution has not been reached in this case.

THE DECISION

1 Preliminary remark

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

(i) the complainant's allegation that the European Parliament's refusal to organise written tests for her on 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, 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 to 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 considers that the above-mentioned issue is 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 observes 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 appears that the complainant has 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 arrangements were reasonable. Under these circumstances and in accordance with the provisions of Article 2(8) of the Statute of the European Ombudsman(14), the Ombudsman cannot 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.

2 The European Parliament's refusal to organise new written tests for the complainant and related claims

2.1 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.

2.2 In its opinion, Parliament indicated that, once candidates have read the subject of the tests, secrecy no longer exists. According to established case-law(15), 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(16). 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 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, as well as with Article 29(1). 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(17).

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(18).

2.3 The Ombudsman first recalls 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 recognized by the Community judicature as a fundamental right guaranteed by Community law(19). The same is true with the right to respect for private and family life(20), which includes, inter alia, the freedom of procreation. The Ombudsman also recalls that the principle of non-discrimination requires that different situations must not be treated in the same way unless such treatment is objectively justified(21). 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(22). 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 affects adversely only members of one sex, and this fact cannot be adequately explained by objective factors unrelated to gender.

Moreover, the Ombudsman notes that 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, that imposed by the second subparagraph of Article 90(2) thereof, are intended, on the one hand, 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, on the other hand, to enable the Community Courts or the Ombudsman to review the decision.

2.4 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.

2.5 The Ombudsman first notes that Parliament has 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 their physical condition due to their giving 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.

2.6 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 considers that this principle, which is part of the fundamental principles of Community law(23), constitutes a legitimate objective of general interest, the pursuance of which might, but does not by itself, justify the upholding of the challenged decision. The Ombudsman takes note of Parliament's argument that, according to the case-law, the principle of equality requires that the written tests be conducted on the same date for all candidates(24). 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(25). 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)(26). "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."(27) 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 accepts, 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.

2.7 In light of the above, the Ombudsman considers 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 Parliament's opinion on the complaint to the Ombudsman, is not well founded. This is an instance of maladministration and the Ombudsman will make a draft recommendation below.

2.8 Relatedly, the Ombudsman notes 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 considers 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 2.6 of the present decision.

2.9 Finally, the Ombudsman notes 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, will deal with this claim in his final decision closing his inquiry into the present case.

3 Conclusion

3.1 The Ombudsman therefore makes the following draft recommendation to Parliament, in accordance with Article 3(6) of the Statute of the Ombudsman.

The draft recommendation

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.

Parliament and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, Parliament shall send a detailed opinion by 30 November 2006. If Parliament re-examines the propriety of its challenged refusal, on the basis of the content of the present draft recommendation, the Ombudsman will consider that Parliament has accepted his draft recommendation and will close his inquiry into this complaint. If the complainant is not satisfied with Parliament's new decision, she will have the possibility to lodge a new complaint with the Ombudsman, after having filed an appeal in accordance with Article 90(2) of the Staff Regulations.

Strasbourg, 10 August 2006

 

P. Nikiforos DIAMANDOUROS

---

(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

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

(3) 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."

(4) 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."

(5) OJ 2002 L 269.

(6) 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.

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

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

(9) 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".

(10) 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."

(11) 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."

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

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

(14) “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 (...)”

(15) 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.

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

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

(18) 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."

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

(20) 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.

(21) See, e.g., Case C-344/04 International Air Transport Association, judgment of 10 January 2006, not yet reported, paragraph 95.

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

(23) 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, judgment of 13 July 2005, not yet reported; Case T-165/03 Vonier v Commission, judgment of 10 November 2004, not yet reported.

(24) 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.

(25) 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 (...)".

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

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