Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

On 8 August 1972 the Council of the European Communities published two Vacancy Notices, Nos 84/72 and 86/72.

According to Notice No 86/72 two posts in Grade A6 were vacant, and according to Notice No 84/72 three posts in Grade A6 would be vacant as soon as the posts mentioned in Vacancy Notice No 83/72 had been filled by way of promotion.

The notices contained an outline of the duties connected with each post and the conditions as to eligibility for those posts. It was further stated that the posts would be filled according to the procedure laid down in the Staff Regulations, that is to say, pursuant to Articles 4 and 29.

As was made clear by a communication of 3 January 1973, two officials formerly in Grade B1 were appointed by decision of 22 December 1972 to two of the vacancies notified.

The applicant, who is also an official of the Council, in Grade B3, claims that this decision is contrary to the Staff Regulations because no competition procedure was followed. Such a competition procedure is compulsorily laid down for cases such as this by Article 45 (2) of the Staff Regulations, which states:

Although Article 29 (2) of the Staff Regulations provides that a procedure other than the competition procedure may be adopted by the appointing authority for the recruitment of Grade A1 or A2 officials and, in exceptional cases, also for recruitment to posts which require special qualifications, it is claimed that this provision applies only in respect of the appointment to posts of persons not yet appointed as officials. In addition, in the cases to which the applicant refers the conditions of Article 29 (2) cannot be said to have been fulfilled.

In accordance with Article 90 (2) of the Staff Regulations the applicant conveyed this view by way of a complaint to the Secretary General of the Council on 29. March 1973, claiming that the beforementioned decisions should be reversed. By letter of 12 June 1973, following the death of one of the officials named in her complaint, the applicant withdrew the latter in so far as it referred to that official.

The applicant received no reply to this complaint. Therefore, on 24 October 1973, she brought an application before the Court of Justice, claiming that the Court should;

The Council contends that the Court should dismiss the application.

I should like to make the following remarks as to the applicant's claims:

1 Translated from the German