Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. On 2 February 1987, Mr Eckhard Sperber, an official of the Court of Justice of the European Communities, brought an action seeking the annulment of: (a) the decision of 5 March 1986 by which the Court, as appointing authority, classified him in Grade LA 6, step 3; and (b) the decision of 4 November 1986 whereby the committee of the Court responsible for such matters rejected his complaint concerning the decision appointing him.

2. On 17 June 1983 Mr Sperber was placed on the reserve list of successful candidates in Open Competition CJ 15/82 for Germanspeaking translators (Career bracket LA 6—LA 7); in the absence of permanent posts, he was then offered a contraa as a member of the temporary staff. He accepted the offer and was employed as from 3 October 1983 as a lawyer-linguist in Grade LA 6, step 3. Two years later, on 1 October 1985, Mr Sperber was placed in the next step in his grade.

3. In support of his application, Mr Sperber makes five submissions: (a) misapplication of Article 32 of the Staff Regulations; (b) breach of the principle of nondiscrimination; (c) infringement of Article 5 (3) of the Staff Regulations; (d) disregard of the principles of good management, sound administration and fairness; and (e) infringement of vested rights.

4. The two submissions are unfounded. In the first place, success in a competition and consequent inclusion on a reserve list do not give a successful candidate any right to be appointed a probationary official. The reasons for this are clear. According to Article 4 of the Staff Regulations, no appointment is to be made for any purpose other than that of filling a vacant post; if there is a shortage of posts, it is impossible to make an appointment and the conclusion of a temporary staff contract — which is not compulsory in any case — becomes the only means available to the successful candidate of entering the service of the Communities. It is therefore absurd to describe that outcome as a breach of the commitment given by the Court in 1981; that commitment too is inescapably limited by the terms of Article 4.

5. In his second submission, Mr Sperber states that, by depriving him of a step at the time of his appointment, the Court discriminated against him (a) by comparison with the other candidates in his competition who were immediately offered a permanent post (that observation is repeated in the third submission concerning infringement of Article 5 (3) of the Staff Regulations); (b) with respect to the translators who came before him, in so far as they benefited from the practice previously followed by the Court, which consisted in recognizing officials' seniority acquired as members of temporary staff; and (c) with respect to an official in Category A for whom the Court made a retroactive appointment which therefore involved recognition of the appropriate seniority.

6. The fourth submission alleges breach of the principles of good management, sound administration and fairness. Mr Sperber states that the Court promised to recognize the seniority accruing to him as a member of the temporary staff; however, it failed to fulfil that commitment and is therefore obliged today, if only because of the exceptional nature of the applicant's situation, to grant that benefit to him. Such a measure would be in conformity with the practice adopted by the other institutions. What is more important, the principles of substantive justice upon which that measure would be based were approved in the case just mentioned in which a retroactive appointment was made.

7. In view of the foregoing considerations I propose that the Court should dismiss the application brought by Mr Eckhard Sperber against the Court of Justice of the European Communities and, pursuant to Article 70 of the Rules of Procedure, order the parties to bear their own costs.

1 Translated from the Italian.