Opinion of Mr Advocate General Darmon
Mr President,
Members of the Court,
1. Following an ad hoc selection procedure Aristides Vlachos was engaged on 15 September 1980 as a lawyer-linguist in the translation service of the Court of Justice of the European Communities which offered him a contract as a member of the auxiliary staff in Category All, Class 4. In his reply he expressed his disappointment at that grading and pointed out that his professional experience in Greece (as a judge and later as an advocate) suggested that he should be appointed to a higher grade. However, he accepted the Court's proposal when it wrote to him on 28 August 1980 and assured him that (after the 1981 Budget was adopted)
2. He considered however, that the Court of Justice had still not fulfilled the assurances given in the letter of 25 August 1980. Consequently, on 20 January 1982, he submitted a request to be established as a lawyer-reviser (Career Bracket L/A 5 - L/A 4).
3. As regards both the submissions contained in them and their subject-matter, the two applications lodged by Aristides Vlachos require the same question to be decided: in the case of an internal competition (Article 29 (1) (b)), may the appointing authority apply the provisions of the Staff Regulations relating to the advancement of officials by way of promotion (Article 45 (1) and Article 46) in order to determine the grading of successful candidates?
4. In his application in Case 21/83 Aristides Vlachos advances two series of submissions based, on the one hand, on the assurances given to him by the appointing authority about his grading and, on the other hand, on the application of Articles 31 and 32 to determine his grade and step.
5. This brings me to the essential question which I mentioned earlier and which is at the heart of the second case: may the appointing authority apply the provisions governing the determination of the grade and step of a promoted official (Article 45 (1) and Article 46 of the Staff Regulations) when grading an official who is appointed after an internal competition to occupy a post created in the category to which he belongs?
6. The parties' conflicting interpretations of the provisions of the Staff Regulations make it necessary to adopt a step-by-step approach to the question of determining the provisions of the Staff Regulations which are applicable to the applicant's grading. The scope of application of the recruitment procedure and of the promotion procedure, as established by the Staff Regulations, must first be defined; it will then be possible to determine the rules relevant to the grading of the applicant.
7. The decision of 29 June 1982 both appoints and promotes the applicant; its preamble refers in fact to Article 29 and to Articles 45 and 46. It therefore deals with a case which, in relation to the typical situations examined above, is intermediate. It applies the rules for grading a promoted official to the case of an official who has been appointed within his category (L/A) to new duties (lawyer/reviser) after passing internal competition No CJ 149/81.
8. That question should, I think, be answered as follows: Articles 31 and 32 are not applicable to the applicant's case; however, the specific circumstances of this case make it not only possible but desirable that the rules on promotion should be applied by analogy.
9. On the other hand, a number of factors suggest that the provisions on the grading of promoted officials should be applied by analogy.
1 Translated frc m the French.
2 Case 102/75, Petersen v Commission, [1976] ECR 1777, paragraph 16, and Opinion of Mr Advocate General Warner, at p. 1802.
3 Case 176/73, Van Belle v Council, Opinion of Mr Advocate General Reischl [1974] ECR at p. 1376.
4 Case 15/63, Lalsalle v Parliament, [1964] ECR 31.
5 Case 15/63, Lassalle, cited above.
6 Case 176/73, Opinion of Mr Advocate General Reischl, cited above, at p. 1374.
7 Case 176/73, Van Belle, cited above, paragraphs 21 to 24.
8 Joined Cases 55 to 76, 86, 87 and 95/71, Bernard v Commission, [1972] ECR 543, paragraphs 8 to 15, and Opinion of Mr Advocate General Roemer, at p. 569.
9 Case 15/63, Lanalle, cited above, paragraph 11; Case 176/73, Van Belle, cited above, paragraphs 5 and 6; Case 123/75, Küster v Parliament, [1976] ECR 1701, paragraph 10 at p. 1709.
10 Case 15/63, Lanalle, Opinion of Mr Advocate General Lagrange, cited above, at p. 46.
11 Case 123/75, Küster, cited above, paragraph 12; judgment of 24 March 1983 in Case 298/81, Coltasi v Parliament, [1983] ECR 1131, paragraph 17.
12 Case 14/79, Lochiteli v Council, [1979] ECR 3679, paragraph 11 ; Case 60/80, Kindermann v Commission, [1981] ECR 1329, paragraph 17; Case 178/80, Bellardi- Ricci v Commission, [1981] ECR 3187, paragraphs 18 to 20.
13 Case 9/81, Williams v Court of Auditors, [1982] ECR 3301.