Report for the Hearing delivered in Joined Cases 269 and 292/84

I — Facts and procedure

1. On 11 July 1984 the Commission, at its 745th meeting, adopted a decision providing that applications from officials in the Language Service may be considered for the filling of administrative posts at the initial stage when vacancy notices are issued.

2. The applicants in Case 269/84, C. Fabbro, F. Giuffrida and C. Herbin, officials in Category A, submitted a complaint to the Commission under Article 90 (2) of the Staff Regulations by a note of 12 October, which was registered at the Secretariat General of the Commission on 16 October 1984; they subsequently brought an action on 14 November 1984 seeking the annulment of the decision of 11 June 1984 and, on 16 November 1984, applied for an interim measure suspending the operation of that decision until the Court had given judgment on the application for annulment.

3. The Commission published in Vacances d'emplois No 39 of 1 August 1984 Vacancy Notice No COM/1207/84 concerning a post of administrator in Category A 7/A 6; the applicant in Case 292/84, H. Scharf, a Commission official in Category A, submitted his candidature for that post before the closing date.

4. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Third Chamber of the Court, to which the cases had been assigned, decided, on the basis of Article 95 (4) of the Rules of Procedure, to refer them to the Court with the recommendation that they should be heard by a chamber composed of five judges. By a decision of 5 March 1986 the Court, after hearing the report of the Judge-Rapporteur and the views of the Advocate General, decided to join the two cases, subject to the observations of the parties. The parties made no observations in that regard, and by an order of 18 March 1986 the two cases were joined for the purposes of the oral procedure and judgment.

II — Conclusions of the parties

1. The applicants claim that the Court should:

2. The Commission contends that the Court should:

III — Submissions and arguments of the parties

Admissibility of the application in Case 269/84

1. The Commission maintains that the application is inadmissible on the ground that the applicants have no present and vested personal interest in challenging the contested provision, which does not adversely affect them since it has no direct effect on their legal position.

2. The applicants maintain, with regard to the objection raised by the Commission that the application is inadmissible in its entirety, that Article 90 (2) of the Staff Regulations allows officials who have submitted a prior complaint to challenge either individual measures adopted pursuant to a general decision or the general decision itself provided it adversely affects them.

Substance

Submissions put forward in Cases 269 and 292/84

1. The applicants maintain that the decision of 11 July 1984 was adopted in breach of Article 45 (2) of the Staff Regulations, which provides that an official may be transferred from one service to another or promoted from one category to another only on the basis of a competition. In their view, that provision reveals a clear tendency on the part of the Community legislature to differentiate between posts in the various categories and services and to subject them to separate conditions of recruitment and service career, in accordance with the provisions of Article 5 (3) of the Staff Regulations.

2. The Commission, referring to the reasons which led to the adoption of the decision of 11 July 1984, states that the contested decision forms part of a set of measures concerning the careers and mobility of officials.

Submission put forward in Case 292/84

The Commission maintains, in connection with Mr Teerlink's appointment, that the (four) applications submitted for the post, including Mr Scharf's application, were subjected to a detailed comparative examination, carried out strictly on the basis of equality and involving scrutiny of the applications and personal files of those concerned, and that the candidate selected was considered the most meritorious in view of his training and professional experience.

IV — Oral procedure

At the sitting on 6 May 1986 oral argument was presented on behalf of the applicants by J.-N. Louis and on behalf of the Commission of the European Communities by H. Etienne.

The Commission stated that it did not wish to maintain the objection that Mr Herbin's complaint was submitted out of time.

The Advocate General delivered his opinion at the sitting on 11 June 1986.

1 Language of the Case: French.