Opinion of Mr Advocate General Reischl
Mr President,
Members of the Court,
The applicant in the proceedings on which I give my opinion today entered the Commission's service on 1 October 1967 as a probationary official in Category L/A7. He became established on 1 April 1968 and was employed as an assistant translator in the Translation, Documentation, Reproduction and Library Directorate of the Directorate-General for Personnel and Administration. On 1 October 1972 he was promoted to translator in Grade L/A 6 which at that time under Annex I (A) to the Staff Regulations of Officials was the starting grade in Career Bracket L/A 6 - L/A 5. His name was one of those on the list published on 10 March 1978 of officials who fulfilled the conditions for promotion in the 1978 budget year.
On 2 May 1978 Council Regulation No 912/78 was adopted amending the Staff Regulations of Officials of the European Communities and the conditions of employment of other servants of the European Communities (Official Journal, L 119 of 3 May 1978, p. 1) which by virtue of Article 35 entered into force on 4 May 1978. Article 13 rearranged career brackets for language staff listed in Annex I (A) to the Staff Regulations of Officials. For the future Grade L/A 6 and Grade L/A 7 became one career bracket so that as from 4 May 1978 promotion from L/A 6 to L/A 5 could no longer occur, as before, within one career bracket but was considered as promotion from career bracket (L/A 7 -L/A 6) to career bracket (L/A 5 - L/A4).
After a meeting on 30 October 1978 the Heads of Administration of the institutions of the Communities recommended that in the promotion of officials of the language staff within the career brackets applying up to 3 May 1978 the rules previously in force should be applied to officials who had the required seniority on that date and promotions should be granted with effect from 1 January 1978.
That is what the Commission did. On 15 February 1979 it published among other things the list of officials who were promoted within the former career bracket to Grade L/A 5 with effect from 1 January 1978. The applicant in these proceedings was not among them.
On 26 March 1979 the applicant made a formal complaint to the appointing authority seeking the withdrawal of the decisions published on 15 February 1979 effecting promotions to Grade L/A 5. That complaint was expressly rejected by a memorandum of 27 August 1979 having already been rejected by implication by the expiry of a period of four months from the time when it was lodged. The applicant thereupon applied to the Court of Justice on 22 October 1979 seeking a declaration that the decisions relating to 1978 awarding promotion to Grade L/A 5 were void and the annulment of the rejection of the applicant's complaint.
My views on this application, which the Commission asks the Court to dismiss, are as follows :
1. First of all, the applicant complains that the Commission promoted under the old rules officials in Grade L/A 6 who had already fulfilled the requirements for promotion before 4 May 1978, which meant that the posts to be filled were not notified as vacant since by those rules the promotions were regarded as being within career brackets. In his view that constitutes a breach of Annex I (A) to the Staff Regulations of Officials as amended by Regulation No 912/78, an infringement of Articles 4, 5 (2) and (4) of the Staff Regulations and an infringement of Article 35 of Regulation No 912/78. To be correct all promotions to Grade L/A 5 after Regulation No 912/78 entered into force should have been regarded as promotions from one career bracket to another and the procedure adapted accordingly.
2. The applicant secondly complains that the decisions adopted with effect from.l January 1978 on promotions to L/A 5 within the former career bracket were not preceded by publication of the list of officials put forward for promotion by their branches and that there was also no publication of the list of officials who were regarded by the appointing authority as being most deserving of promotion to L/A 5. That constitutes first a failure to observe established practice and a breach of the principle of equal treatment because in spite of there being no publications some officials learnt unofficially of the proposals of the heads of their branches with regard to promotion and might then have been able to have them altered. Secondly, if it is accepted that such promotions could still have been dealt with under the old rules as being promotions within one career bracket then, it is alleged, that further constitutes an infringement of Articles 5 (3) and 45 (1) of the Staff Regulations and of Articles 2, 4, 5 and 7 of the Commission's decision of 21 December 1970, as amended on 14 July 1971, which laid down rules for the promotion procedure and which provides in particular that the appointing authority shall draw up a list of the officials most deserving of promotion and notify the Staff thereof forthwith.
3. One final ground of complaint, which is not to be found in the application itself, but which is rather the applicant's response to the Commission's comments on the promotion procedure adopted, is based on the fact that the proposals for the promotion of officials who had fulfilled the requirements for promotion before May 1978 did not come from the Promotion Committee but from an ad hoc committee which, as mentioned earlier, the competent member of the Commission agreed should be set up.
4. I therefore propose that the application be dismissed and that the decision as to costs be taken pursuant to Article 70 of the Rules of Procedure.
1 Translated from the German.