(d)

Even if it is accepted, contrary to that general view, that the appointment of a member of the temporary staff, whose legal position is governed by the Conditions of Employment, to be an official, who is subject to the Staff Regulations, is essentially governed by Article 45 and the following articles, this case cannot in my view be regarded, for a series of other reasons, as a promotion within the meaning of those provisions. According to the definition in Article 45 (1) a promotion is affected essentially by appointment of the official to the next higher grade in his category. Application of Article 46 by analogy makes no sense when an official is classified in the next grade but one, which cannot therefore be assessed either in accordance with Article 45 (1) or Article 45 (2). Finally, it was established in the Williams judgment ( 4 ) that Article 46 is applicable only where the career is organized in a consistent manner from the outset. The applicant in that case was first of all appointed as an official of the Audit Board in Grade A 7 and was transferred to the. Court of Auditors when it was being set'up. He was first appointed tó Grade A 7, Step 3, and later promoted to Grade A 6, Step 1. During that period the Court of Auditors recruited officials and other employees not already in the service of the Communities, who were classified on the basis of the criteria for the appointment and classification of staff which had been laid down in the meantime. In the applicants view the classification criteria thus established led to discrimination, in so far as the classification of new officials and other staff was more favourable than that of the existing officials transferred from the Audit Board. The Court of Auditors argued that its decision was justified since the applicant had been transferred and promoted in accordance with the Staff Regulations and especially Article 46 thereof. The Court of Justice had therefore to decide whether the applicant's qualifications and experience entitled him, in the light of the new criteria for the classification of staff, to a higher step, notwithstanding the provisions of Article 46. He explained that the provisions of the Staff Regulations and especially Article 46 thereof were based on the principle of equality of treatment as between officials of the same category which is embodied in Article 5 (3) of the Staff Regulations and is of central importance to the legal provisions governing employees of the European Communities. Since the career of the official concerned was not organized in a consistent manner from the outset, the Court of Justice finally declared that the Court of Auditors was not entitled to rely, in the applicant's case, upon Article 46 and ordered it to classify the applicant in the appropriate step, taking account of his experience and possibly of his qualifications in conformity with the criteria for classification. No less can be done in this case, in which the application by analogy of Article 46 would lead to the applicant's being put at a disadvantage compared to other candidates, not hitherto in the employment of the Community, who took part in the same competition and whose qualifications and experience were or-would be taken into account on the basis of Article 32.