Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. This case concerns the transfer procedure for a Community official within one of the institutions. The facts may be summarized briefly. A Staff Note from the General Secretariat of the Council dated 11 August 1978 and numbered 189/78 informed interested officials in Grade A 7/A 6 that they could request transfer to a post which had become vacant for one year in Directorate-General E, Directorate III, in relation to the requirements of the service arising out of negotiations for the accession of new Member States. Mr Korter submitted his application for the post on 27 September 1978 but by a note dated 6 February 1979 the head of the Personnel Branch informed him that neither his nor any similar application had been accepted.

2. There is no doubt that the present case falls within those governed by the Additional Negotiating Protocol concluded on 5 April 1978 between the Secretary-General of the Council and the organizations representing the staff. The text of the Protocol is contained in Staff Note No 77/78 of 14 April 1978 issued by the General Secretariat of the Council. The Protocol provides, under paragraph (1) of point IV thereof, that:

3. It is possible in the light of the observations set forth hitherto to examine the various stages of the procedure for temporarily filling a vacant post which was followed in the present case and in which the present dispute has its source.

4. It has been seen that the applicant complains that the defendant institution has not adopted any decision, which is capable of challenge on his request of 27 September 1978 for a transfer. In other words he accuses the administration not of refusing to appoint him to the vacant post but, rather, of failing to take a decision, favourable or otherwise, on his application. In view of that, the defendant has raised a preliminary objection to the admissibility of the application on the grounds that the applicant has no interest to sue and that the application is devoid of any substance.

5. It is appropriate in any event also to consider the complaints made in regard to the merits of the case. According to the submissions for the applicant, the administration's alleged omission infringed Articles 7, 25 and 90 of the Staff Regulations of Officials. In regard to Article 7, Mr Korter contends that since he had submitted a request for a transfer within the meaning of that provision the administration was bound to issue a decision and that by having failed to do so it contravened the provision in question. However, it is plain that such an argument cannot be upheld. Even if it is correct that Article 7 of the Staff Regulations applies to Mr Korter's request for a transfer it is not true that the administration failed to take a decision. I have sought to make clear my views on this matter and it is unnecessary for me to repeat what I have already said.

6. I therefore conclude by suggesting to the Court that it declare the action brought by Mr Korter against the Council on 25 September 1979 to be inadmissible or, alternatively, that it dismiss the action as unfounded. In viewof the nature of the dispute the parties should bear their own costs.

1 Translated from the Italian.