JUDGMENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

11 July 2013

Case F‑86/12

Daria Haupt-Lizer

v

European Commission

(Civil service — Open competition EPSO/AD/60/06 — Extension of the validity of the reserve list owing to maternity leave and parental leave — Principle of equal treatment for men and women — Discrimination on the ground of sex)

Application:      brought under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Ms Haupt-Lizer seeks, primarily, annulment of the decision of 17 October 2011 not to extend the validity of the reserve list in open competition EPSO/AD/60/06 beyond 31 December 2011.

Held:      The action is dismissed. Ms Haupt-Lizer is to bear her own costs and is ordered to pay the costs incurred by the European Commission.

Summary

1.      Officials — Recruitment — Competitions — Legal nature of the relationship between the successful candidate and the institution organising an open competition — Applicability of a national law — Not included

(Staff Regulations, Art. 27)

2.      Officials — Equal treatment — Request to extend the validity of a reserve list owing to the maternity leave and parental leave of a successful candidate — Rejection — Discrimination on the ground of sex — None

(European Parliament and Council Directive 2006/54; Council Directives 92/85 and 96/34)

1.      The relationship between the institutions and the successful candidates in a competition organised in application of Article 27 of the Staff Regulations cannot be governed by the provisions of a national law.

(see para. 45)

2.      It does not follow from the provisions of EU law governing maternity leave and parental leave that a person who has exercised his right to one or other of those types of leave could require a potential employer to suspend in regard to him the procedures in which he is involved. Consequently, a successful candidate in a competition cannot maintain that the exercise of those rights objectively prevented him from taking steps to be recruited by an EU institution.

In that regard, unless there are particular medical circumstances connected with pregnancy or confinement, the fact that a woman is on maternity leave does not constitute a barrier to her taking part in a recruitment procedure. By limiting to two weeks around the confinement the period during which a woman is required not to work, the Union legislature did not mean to create a presumption that it is impossible for the person concerned to take any work-related action during the remaining weeks of maternity leave. Although a woman is entitled to decide to devote herself exclusively to her child during her maternity leave, the fact none the less remains that she cannot use her personal choice as a pretext for claiming to have been the victim of discrimination on the ground of sex.

Likewise, as regards parental leave, the fact that a person exercises his or her right to that type of leave does not prevent him or her from taking part in a recruitment procedure within the Union. That is particularly so because, as the option to take parental leave is open to both women and men, the exercise by a person of his or her right to parental leave cannot give rise to direct discrimination on the ground of sex.

(see paras 46, 49-53, 55)

See:

30 June 1998, C‑394/96 Brown, para. 22; 27 October 1998, C‑411/96 Boyle and Others, para. 58; 19 November 1998, C‑66/96 Høj Pedersen and Others, para. 33; 18 March 2004, C‑342/01 Merino Gómez, para. 32; 18 November 2004, C‑284/02 Sass, para. 32