Opinion of Mr Advocate General Mischo

Mr President,

Members of the Court,

On 11 July 1984 the Commission decided that the candidatures of officials in the Language Service and officials in the Scientific and Technical Services may be taken into consideration for the filling of administrative posts at the initial stage when vacancy notices are issued. Similarly, administrative officials may apply for any vacant post in the Language Service and in the Scientific and Technical Services

The initial stage when vacancy notices are issued is that referred to in Article 29 (1) (a) of the Staff Regulations. It consists in consideration of whether the post can be filled by promotion or transfer within the institution.

Messrs Fabbro, Giuffrida and Herbin, applicants in Case 269/84, ask the Court to annul that decision in so far as it provides that the candidatures of officials in the Language Service may be taken into consideration for the filling of administrative posts.

Mr Scharf, the applicant in Case 292/84, asks the Court to declare that decision illegal and therefore annul the decision of the appointing authority of 30 November 1984 by which it appointed R. T., an official in the Language Service, to a Category A post declared vacant by Notice No COM/1207/84 and the decision of the appointing authority of the same day by which it rejected Mr Scharf's application for that post, by reason of the appointment of R. T.

The applicants consider that the decision of 11 July 1984 is illegal essentially because it is contrary to Article 45 (2) of the Staff Regulations of Officials of the European Communities.

I shall deal first of all with the question of admissibility, which concerns only Case 269/84, and then go on to consider the substance of the case.

A — Admissibility

1. The Commission argues that the application is inadmissible because the applicants have no present and vested personal interest in challenging the decision in issue, which does not adversely affect them inasmuch as it does not directly affect their legal position.

2. The applicants argue that Article 90 (2) of the Staff Regulations allows officials, if they have first submitted a complaint, to challenge either individual measures adopted in application of a general decision or the general decision itself in so far as it has adversely affected them.

3. Let me say right away that this last argument cannot be accepted; in its judgment of 30 June 1983 (Case 85/82 Schloh v Council [1983] ECR 2105) the Court held that an applicant is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for the annulment of an appointment, only such claims as relate to him personally.

4. I think a distinction must be drawn between the nature of the complaint (which must be personal — I shall come back to that point below) and the nature of the contested decision, which may be individual or general.

5. In order better to define the issue, let me set out the conditions under which applications may be made to the Court against a measure in the nature of a regulation, such as a Council regulation amending the Staff Regulations.

6. The first question which therefore arises in this case is whether the Commission decision of 11 July 1984 constitutes a normative measure, to be treated as a regulation (in which case the application would in any event be inadmissible because that measure was not followed by a decision of the appointing authority) or a decision of the appointing authority of a general nature (in which case it may be the subject-matter of a direct appliction, the admissibility of which requires proof that the measure has adversely affected the applicant).

7. The Court has held on several occasions that only those acts capable of directly affecting a specific legal position can be regarded as adversely affecting an official.

8. It must now be seen what result is obtained by applying those criteria to the application brought by Messrs Fabbro, Giuffrida and Herbin.

9. It is difficult to see how the adoption of the decison of 11 July 1984 can in itself give rise to such a situation.

10. Finally, I must state my views concerning the particular problem of admissibility which arises with regard to Mr Herbin's application, for the Court has held on several occasions that the time-limits for lodging complaints and appeals are a matter of public policy and are not subject to the discretion of the parties or the Court (see in particular the judgment of 12 July 1984 in Case 227/83 Moussis v Commission [1984] ECR 3133 at paragraph 12, p. 3146).

B — The substance of the case

Let me emphasize first of all, in so far as it may be necessary, that it is obviously not for me to pass judgment on the policy of staff mobility and of the removal of barriers between the Language Service and other departments which the Commission has decided to pursue.

Nor is the capability of the official whose appointment is contested by Mr Scharf in question here.

The sole issue is the compatibility with the Staff Regulations in their present form of that part of the Commission's decision of 11 July 1984 which provides that applications from officials in the Language Service may be taken into account for the filling of administrative posts at the first stage when vacancy notices are published (since it is to that issue that the application is restricted).

It will be recalled that the first stage consists in examination of whether the post can be filled by promotion or transfer within the institution.

It is true that in its defence (at page 4) the Commission states that its decision concerns only transfer and not promotion.

It is clear, however, that the wording of the decision is not restricted in that way; the question of promotion must also be considered, therefore.

In support of their action the applicants rely mainly on Article 45 (2) of the Staff Regulation, and the Commission agrees that the main issue raised by this case is the interpretation of that provision.

It seems to me, however, that Articles 7 (1) and 45 (1) of the Staff Regulations are of at least equal importance.

Article 7 (1) provides that:

Article 45 (1) provides that:

In my view those provisions preclude the transfer or promotion (in the technical sense) of an official in the Language Service to a Category A post (and vice versa).

For the sake of completeness, however, let me also consider the arguments which the parties have drawn from Article 45 (2), which provides as follows:

According to the applicants, that provision requires that a competition should be held each time an official from the Language Service is appointed to a Category A post or vice versa. In their application they emphasize the words d'une catégorie à un -autre cadre [from a category to another service].

The applicants' main argument is that that requirement is justified by the fact that the duties of Category A officials and officials in the Language Service are different and require different training and professional qualifications.

The Commission, on the other hand, considers that the wording of that provision requires a competition only where an official passes:

In the Commission's view, each official belongs in the first place to a category, and he retains that classification when he is assigned to a service.

A transfer from the Language Service to Category A thus constitutes a transfer from a category within a service to a post in the same category but not in a specific service (similarly, a transfer from A to L/A is to be regarded as a transfer within the same category).

What attitude should we take to those arguments?

1. As a matter of simple common sense it would seem reasonable to say that Article 45 (2) speaks of two possibilities, that is to say,:

2. . Examination of the provisions defining the term service gives rise to the following conclusions:

3. The Commission accepts that Category A cannot be regarded as the general or administrative service.

4. Reading Articles 7 (1), 45 (1) and 45 (2) in conjunction one may arrive at the following system, which seems to me to be logical and coherent:

5. The fact that, from the point of view of the Language Service, Category A constitutes another service is further demonstrated by the wording of other provisions of the Staff Regulations which draw a very clear distinction between the two types of posts.

1 Translated from the French.

2 Text published in Infor-Rapide [Staff Information Bulletin] No 138 of 18 July 1984

3 See the Opinion of Mr Advocate General Capotorti in Case 167/80 (Curtis v Commission and Parliament [19811 ECR 1499 at pp. 1525 and 1526) and the Opinion of Mrs Advocate General Rozès in Joined Cases 28 and 165/80 Leclercq v Commission [1981] ECR 2251 at p. 2260).

4 Judgments of 1 July 1964 in Cases 26/63 Pisloj v Comminuti [1964] ECR 341 and Case 78/63 Huber v Commisiion [1964] ECR 367. Judgment of 10 December 1969 in Case 32/68 Granelli v Commission [1969] ECR 505. Judgment of 11 July 1974 in Joined Cases 177/73 and 5/74 Reharzv Comminimi [1974] ECR 819 at p. 828.

5 [1974] ECR 917 at p. 926.

6 [1974] ECR 933 at p. 945.

7 Judgment of 17 September 1981 in Joined Cases 28 and 165/80 [1981] ECR 2251 at p. 2257.

8 Judgment of 1 February 1979 in Case 17/78 [1979] ECR 189 at p. 197.

9 Let me add, for what it may be worth, that in the judgment of 25 November 1976 (Case 123/75 Küster v Parliament [1976] ECR 1701 at paragraphs 10 to 12), the Court held that although Anicie 29 (1) (a) of the Staff Regulations provides that, before filling a vacant post ¡n an institution, the appointing authority shall first consider whether the post can be filled by promotion or transfer within the institutions, it does not give officials who fulfil the conditions for promotion a personai right to promotion, and that promotion shall be exclusively by selection.

10 Judgment of 26 November 1981 in Case 195/80 Michel v Parliament [1981] ECR 2861.

11 See A. M. Euler, Europäisches Beamtenstatut, Carl Heymanns Verlag K. G., p. 90 (Volume I) and page 359 (Volume II) A (4) 2.

12 Translator's note: This argument reflects the wording of the French version of the staff Regulations, which speaks of le passage d'un fonctionnaire d'un cadre ou d'une catégorie à un autre cadre ou à une catégorie supérieure.

13 Translator's note: Thai is to say, the wording of the French version.

14 Translator's note: The French word assimilé implies a lesser degree of identity than the word equivalent used in the English version.

15 Translator's note: The French version of Article 45 (2) uses this neutral term (equals movement), whereas the English version speaks of transfer and promotion.

16 Horizontaler und vertikaler Laufbahnwechscl, in H. Henrichs: Die Rechtsprechung des Europäischen Gerichtshofs in Pcrsonalsachen, Europarcchl 1980, p. 138).

17 Translator's note: The English translation of that judgment follows the strict wording of the Staff Regulations and thus uses the expression an administrative post.