Evelyne Delauche v. EC Commission (Case 111/86) Court of Justice of the European Communities (1ST CHAMBER) 1987 ECR 5345, [1989] 2 CMLR 565

16 December 1987

Facts:

The applicant, a woman civil servant, unsuccessfully applied six times for a promotion to the next tier. In each case the successful candidate was a man. In the past the applicant had been promoted frequently. She filed a complaint after she was passed over for the seventh time alleging sex discrimination. The Court held that the successful male applicants had been appointed for valid operational reasons unrelated to gender. The Court did not wish to limit the discretionary power of the appointment commission. The court dismissed the general statements by the Commission that the number of women in senior posts needed to be increased because, it held, those statements did not raise any legitimate expectations in the applicant which she could enforce. The action was therefore dismissed.

 The following cases were referred to in the judgment:

1. Bernardi v European Parliament (90/71), 13 July 1972: [1972] ECR 603. Gaz:90/71
2. Grassi v EC Council (188/73), 30 October 1974: [1974] ECR 1099. Gaz:188/73
3. Bonino v EC Commission (233/85), 12 February 1987: not yet reported. Gaz:233/85
4. Ragusa v EC Commission (282/81), 21 April 1983: [1983] ECR 1245. Gaz:282/81
5. Vaysse v EC Commission (26/85), 23 October 1986: [1986] ECR 3131. Gaz:26/85
6. Huybrechts v EC Commission (306/85), 5 February 1987: not yet reported. Gaz:306/85
7. Arning v EC Commission (125/80), 29 October 1981: [1981] ECR 2539. Gaz:125/80

Although the court agreed that there a need for positive action -- 'affirmative action' -- in favor of women, it asserted that this action should not be implemented by the judiciary because it viewed any such act which favors "a minority category" in conflict with the principle of formal equality. Rather such measure should be pursued by the legislature. The court suggested in its opinion other venues through which she may gain employment within the higher echelons of government. An example was the recommendation contained in the European Parliament's Resolution on the situation of women in the institutions of the European Community (European Parliament, Second Parliamentary Term, Texts adopted by the European Parliament Vol 6/87 (June 1987)). That resolution attempted to set target figures for annual progress to be made in the grades where women are under-represented.

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