Judgment of the Court (Sixth Chamber) of 21 October 1986. - C. Fabbro and others v Commission of the European Communities. - Officials - Article 45(2) of the Staff Regulations. - Joined cases 269 and 292/84.



European Court reports 1986 Page 02983



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OFFICIALS - APPLICATIONS TO THE COURT - MEASURE ADVERSELY AFFECTING AN OFFICIAL - MEANING OF TERM - STATEMENT OF FUTURE INTENTIONS OF THE ADMINISTRATION - INADMISSIBLE

( STAFF REGULATIONS OF OFFICIALS , ARTS 90 ( 2 ) AND 91 )

2 . OFFICIALS - CAREERS - ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS - TRANSFER FROM THE LANGUAGE SERVICE TO AN ADMINISTRATIVE POST IN CATEGORY A - REQUIREMENT OF A COMPETITION - ADMINISTRATIVE PRACTICE DEROGATING FROM THAT REQUIREMENT - UNLAWFUL

( STAFF REGULATIONS OF OFFICIALS , ART . 45 ( 2 ))

Summary

1 . ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , IN CONJUNCTION WITH ARTICLE 91 , MAKES THE ADMISSIBILITY OF PROCEEDINGS UNDER ARTICLE 179 OF THE EEC TREATY SUBJECT TO THE CONDITION THAT THE CONTESTED MEASURE SHOULD HAVE ADVERSELY AFFECTED THE APPLICANT . ONLY THOSE MEASURES WHICH ARE CAPABLE OF DIRECTLY AFFECTING A SPECIFIC LEGAL SITUATION MAY BE REGARDED AS ADVERSELY AFFECTING THE PERSON CONCERNED . THAT CANNOT BE SAID OF A MEASURE WHICH DOES NO MORE THAN STATE THE ADMINISTRATION ' S INTENTION , IN THE FUTURE , OF CONSIDERING APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE FOR POSTS IN CATEGORY A AND VICE VERSA AT THE STAGE REFERRED TO IN ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS . THE SIMPLE STATEMENT OF SUCH A FUTURE INTENTION IS NOT CAPABLE OF CREATING RIGHTS AND OBLIGATIONS ON THE PART OF OFFICIALS AND THUS OF ALTERING THEIR LEGAL POSITION .

2 . IT IS CLEAR FROM THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE CAREER AND SITUATION OF OFFICIALS THAT A SYSTEMATIC DISTINCTION BETWEEN CATEGORY AND SERVICE IS FUNDAMENTAL TO THEM ; A SERVICE PLACES TOGETHER OFFICIALS WHO CARRY OUT PARTICULAR DUTIES FOR WHICH SPECIFIC QUALIFICATIONS ARE REQUIRED , IN ORDER TO MAKE POSSIBLE A SEPARATE CAREER STRUCTURE TAKING INTO ACCOUNT THOSE SPECIAL FEATURES , AND MAY EMBRACE GRADES BELONGING TO ONE OR MORE CATEGORIES .

THAT DISTINCTION IS TO BE FOUND IN ARTICLE 45 ( 2 ), WHICH EXPRESSLY PROVIDES THAT ' AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER AND PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF COMPETITION ' . CONSEQUENTLY , AN OFFICIAL MAY BE TRANSFERRED FROM THE LANGUAGE SERVICE TO AN ADMINISTRATIVE POST IN CATEGORY A ONLY ON THE BASIS OF A COMPETITION . THAT PROVISION OF THE STAFF REGULATIONS ALLOWS THE ADMINISTRATION NO DISCRETION TO ACT DIFFERENTLY , AND AN EXCEPTION MAY BE MADE ONLY BY WAY OF A PROVISION HAVING THE SAME LEGAL FORCE .

Parties

IN JOINED CASES 269 AND 292/84

C . FABBRO , F . GIUFFRIDA , C . HERBIN AND H . SCHARF , OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY J . N . LOUIS , OF THE BRUSSELS BAR , 51 RUE LANGEVELD ( BOX 16 ), 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF N . DECKER , 16 AVENUE MARIE-THERESE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , H . ETIENNE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR

( I ) THE ANNULMENT OF THE COMMISSION ' S DECISION OF 11 JULY 1984 , BROUGHT TO THE NOTICE OF STAFF BY ' INFOR-RAPIDE ' NO 138 OF 18 JULY 1984 , TO THE EFFECT THAT APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE COULD BE CONSIDERED FOR THE FILLING OF ADMINISTRATIVE POSTS AT THE INITIAL STAGE WHEN VACANCY NOTICES ARE ISSUED ;

( II ) A DECLARATION THAT ALL DECISIONS APPLYING THAT DECISION ARE THEMSELVES UNLAWFUL ;

( III ) THE ANNULMENT , IN CONSEQUENCE , OF THE DECISION OF 30 NOVEMBER 1984 WHEREBY R . TEERLINK , AN OFFICIAL IN THE LANGUAGE SERVICE , WAS APPOINTED WITH EFFECT FROM 1 DECEMBER 1984 TO THE POST IN CATEGORY A DECLARED VACANT BY VACANCY NOTICE NO COM/1207/84 ;

( IV ) THE ANNULMENT OF THE DECISION OF 30 NOVEMBER 1984 , NOTIFIED TO H . SCHARF ON 3 DECEMBER 1984 , REJECTING HIS APPLICATION FOR THE POST SPECIFIED IN VACANCY NOTICE NO COM/1207/84

Grounds

1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 14 NOVEMBER AND 5 DECEMBER 1984 RESPECTIVELY , THE APPLICANTS IN CASE 269/84 , C . FABBRO , F . GUIFFRIDA AND C . HERBIN , AND THE APPLICANT IN CASE 292/84 , H . SCHARF , OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN CATEGORY A , BROUGHT ACTIONS FOR

( A ) IN CASE 269/84 , THE ANNULMENT OF THE DECISION OF 11 JULY 1984 , ADOPTED BY THE COMMISSION AT ITS 745TH MEETING , IN SO FAR AS IT PROVIDES THAT APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE MAY BE CONSIDERED FOR THE FILLING OF POSTS IN CATEGORY A AT THE INITIAL STAGE WHEN VACANCY NOTICES ARE ISSUED , AND

( B ) IN CASE 292/84 , A DECLARATION THAT THE DECISION OF 11 JULY 1984 IS UNLAWFUL AND THE ANNULMENT , IN CONSEQUENCE , OF THE DECISIONS MADE ON 30 NOVEMBER 1984 PURSUANT TO THAT DECISION , BY WHICH R . TEERLINK , AN OFFICIAL IN THE LANGUAGE SERVICE , WAS APPOINTED TO A POST IN CATEGORY A DECLARED VACANT BY VACANCY NOTICE NO . COM/1207/84 AND THE APPLICATION FOR THE SAME POST SUBMITTED BY THE APPLICANT H . SCHARF , AN OFFICIAL IN CATEGORY A , WAS REJECTED .

2 THE CONTESTED DECISION IS PART OF A SERIES OF DECISIONS ON CAREER STRUCTURES ADOPTED BY THE COMMISSION AT ITS 745TH MEETING AND PUBLISHED IN THE COURRIER DU PERSONNEL , INFOR-RAPIDE , OF 18 JULY 1984 . THAT PUBLICATION STATES THAT IN FURTHERANCE OF ITS POLICY OF ENCOURAGING STAFF MOBILITY THE COMMISSION HAS DECIDED THAT APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE , LIKE THOSE OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES , MAY BE CONSIDERED FOR THE FILLING OF ADMINISTRATIVE POSTS AT THE INITIAL STAGE WHEN VACANCY NOTICES ARE ISSUED . SIMILARLY , ADMINISTRATIVE OFFICIALS MAY APPLY FOR VACANT POSTS IN THE LANGUAGE SERVICE AND IN THE SCIENTIFIC AND TECHNICAL SERVICES .

3 THE COMMISSION SUBMITS THAT THE APPLICATION IN CASE 269/84 SHOULD BE DECLARED INADMISSIBLE OR , IF NECESSARY , UNFOUNDED , AND THAT THE APPLICATION IN CASE 292/84 SHOULD BE DISMISSED AS UNFOUNDED .

THE ADMISSIBILITY OF CASE 269/84

4 THE COMMISSION ARGUES THAT THE APPLICATION IS INADMISSIBLE SINCE THE APPLICANTS HAVE NO PRESENT AND VESTED PERSONAL INTEREST IN CONTESTING THE DECISION OF 11 JULY 1984 ; THAT DECISION DOES NOT ADVERSELY AFFECT THEM SINCE IT CANNOT DIRECTLY AFFECT THEIR LEGAL POSITION . IT EMPHASIZES THAT THEY DID NOT APPLY FOR ANY OF THE POSTS TO WHICH OFFICIALS OF THE LANGUAGE SERVICE HAVE BEEN APPOINTED . THEY WOULD BE DIRECTLY AFFECTED BY THE CONTESTED GENERAL DECISION ONLY IF , PURSUANT TO THAT DECISION , THEIR APPLICATIONS FOR A POST HAD BEEN REJECTED IN FAVOUR OF THAT OF AN OFFICIAL IN THE LANGUAGE SERVICE .

5 THE COMMISSION ADDS THAT THE MEASURE AT ISSUE CONCERNS ONLY TRANSFERS , WHICH , IN THE ABSENCE OF MISUSE OF POWERS , CAN HAVE NO EFFECT ON CAREERS , AND THAT EVEN IF IT WERE TO BE SUPPOSED THAT A DECISION TO TRANSFER AN OFFICIAL FROM THE LANGUAGE SERVICE REDUCES THE POSSIBILITIES OF MOBILITY AND THE CHANCES OF PROMOTION FOR OFFICIALS IN THE GENERAL CATEGORY , IT MAKES NO DIFFERENCE WHETHER SUCH A DECISION IS MADE AT THE FIRST STAGE OF THE PROCEDURE LAID DOWN BY ARTICLE 29 OF THE STAFF REGULATIONS OR AT A LATER STAGE .

6 FINALLY , THE COMMISSION EMPHASIZES THAT THE TRANSFER OF OFFICIALS IN THE LANGUAGE SERVICE TO POSTS IN CATEGORY A CANNOT HAVE THE EFFECT OF RESTRICTING THE POSSIBILITIES OF PROMOTION FOR OFFICIALS OF THAT CATEGORY , BECAUSE THE TRANSFER OF AN OFFICIAL IN THE LANGUAGE SERVICE MAKES AVAILABLE A POST OF THE SAME LEVEL IN THE LANGUAGE SERVICE FOR WHICH AN OFFICIAL IN CATEGORY A MAY APPLY , SINCE THE DECISION OF 11 JULY 1984 PERMITS MOVEMENT IN BOTH DIRECTIONS .

7 THE APPLICANTS ARGUE THAT , CONTRARY TO THE POSITION WITH REGARD TO PROCEEDINGS UNDER ARTICLE 173 OF THE EEC TREATY , OFFICIALS MAY , IF THEY HAVE FIRST SUBMITTED A COMPLAINT , BRING PROCEEDINGS ON THE BASIS OF ARTICLES 90 AND 91 OF THE STAFF REGULATIONS AGAINST INDIVIDUAL MEASURES ADOPTED PURSUANT TO A GENERAL DECISION OR AGAINST THE GENERAL DECISION ITSELF IF IT ADVERSELY AFFECTS THEM . IN THIS CASE THE ADVERSE EFFECT CONSISTS IN THE FACT THAT THE TRANSFER OF AN OFFICIAL IN THE LANGUAGE SERVICE TO A POST IN CATEGORY A REDUCES THE NUMBER OF POSTS NORMALLY RESERVED FOR THE PROMOTION OF OFFICIALS IN THAT CATEGORY . THEY EXPLAIN IN THAT REGARD THAT IN GENERAL AN OFFICIAL APPOINTED TO A POST DECLARED VACANT IS TRANSFERRED TO HIS NEW POST , WHICH MAY BE IN A DIFFERENT DIRECTORATE GENERAL , ALONG WITH A POST PROVIDED FOR IN THE BUDGET IN THE GRADE WHICH HE HELD IN HIS PREVIOUS DIRECTORATE GENERAL , SO THAT A VACANT POST BECOMES AVAILABLE IN THE LATTER ; THAT IS NOT POSSIBLE , HOWEVER , WHERE A VACANT POST IN CATEGORY A IS FILLED BY AN OFFICIAL FROM THE LANGUAGE SERVICE BECAUSE THERE CAN BE NO SUCH TRANSFER OF POSTS PROVIDED FOR IN THE BUDGET , SINCE UNDER ARTICLE 6 OF THE STAFF REGULATIONS POSTS IN CATEGORY A AND POSTS IN THE LANGUAGE SERVICE ARE DISTINCT FOR BUDGETARY PURPOSES .

8 ACCORDING TO THE APPLICANTS , THE CONTESTED GENERAL DECISION THEREFORE ADVERSELY AFFECTS THEM IN SO FAR AS BY CURTAILING THEIR PROSPECTS OF PROMOTION IT CONFERS ON THEM A PRESENT AND VESTED PERSONAL INTEREST IN ITS ANNULMENT . THEY STATE THAT ONE OF THEM , MR HERBIN , AN OFFICIAL IN GRADE A 7 WHO WAS ENTERED ON THE LIST OF OFFICIALS ELIGIBLE FOR PROMOTION TO GRADE A 6 IN 1984 , WHICH CONTAINED 60 OFFICIALS OF WHOM 52 WERE PROMOTED , WOULD HAVE HAD MORE CHANCE OF BEING PROMOTED HAD THREE OFFICIALS IN GRADE L/A 6 NOT BEEN TRANSFERRED TO POSTS IN GRADE A 6 . SIMILARLY , THE PROSPECTS FOR PROMOTION OF ANOTHER APPLICANT , MR FABBRO , AN OFFICIAL IN GRADE A 6 WHO WAS ENTERED ON THE LIST OF OFFICIALS ELIGIBLE FOR PROMOTION TO GRADE A 5 IN 1985 , WERE DIMINISHED BY THE FACT THAT THE ADMINISTRATION TRANSFERRED TWO OFFICIALS IN GRADE L/A 6 TO POSTS IN GRADE A 6 . FINALLY , IN THE CASE OF MR GIUFFRIDA , AN OFFICIAL IN GRADE A 4 , THERE WAS AN UNLAWFUL INCREASE IN THE POTENTIAL NUMBER OF CANDIDATES FOR ANY POSTS IN GRADE A 3 WHICH SHOULD BECOME VACANT .

9 IT MUST BE POINTED OUT THAT ARTICLE 90 ( 2 ) OF THE STAFF REGULATIONS , IN CONJUNCTION WITH ARTICLE 91 , MAKES THE ADMISSIBILITY OF PROCEEDINGS UNDER ARTICLE 179 OF THE EEC TREATY SUBJECT TO THE CONDITION THAT THE CONTESTED MEASURE SHOULD HAVE ADVERSELY AFFECTED THE APPLICANT AND THAT , AS THE COURT HAS HELD ON SEVERAL OCCASIONS , ONLY THOSE MEASURES WHICH ARE CAPABLE OF DIRECTLY AFFECTING A SPECIFIC LEGAL SITUATION MAY BE REGARDED AS ADVERSELY AFFECTING THE PERSON CONCERNED .

10 AS IS CLEAR FROM ITS WORDING , THE CONTESTED MEASURE OF 11 JULY 1984 , ADOPTED WITHOUT REFERENCE TO ANY PROVISION EMPOWERING THE COMMISSION TO TAKE SUCH A MEASURE , DOES NO MORE THAN STATE THE ADMINISTRATION ' S INTENTION , IN THE FUTURE , OF CONSIDERING APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE FOR POSTS IN CATEGORY A AND APPLICATIONS FROM OFFICIALS IN CATEGORY A FOR POSTS IN THE LANGUAGE SERVICE AT THE STAGE REFERRED TO IN ARTICLE 29 ( 1 ) ( A ) OF THE STAFF REGULATIONS . THE SIMPLE STATEMENT OF SUCH AN INTENTION , TO BE CARRIED OUT IN THE FUTURE , IS NOT CAPABLE OF CREATING RIGHTS AND CORRESPONDING OBLIGATIONS ON THE PART OF OFFICIALS .

11 IT FOLLOWS THAT THE MEASURE WHOSE ANNULMENT IS SOUGHT BY THE APPLICANTS CANNOT HAVE ALTERED THEIR LEGAL POSITION . CONSEQUENTLY , THE CONTESTED MEASURE , WHICH HAS NO LEGAL EFFECT , IS NOT OF SUCH A NATURE AS TO AFFECT THEM ADVERSELY , AND THE APPLICATION IN CASE 269/84 MUST BE DISMISSED AS INADMISSIBLE .

THE SUBSTANCE OF CASE 292/84

12 THE APPLICANT SUBMITS THAT THE CONTESTED DECISIONS ARE UNLAWFUL ON THE GROUND THAT THEY ARE CONTRARY TO 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 ' .

13 THE APPLICANT CONSIDERS THAT THAT PROVISION REFLECTS THE INTENTION OF THE LEGISLATURE TO DISTINGUISH BETWEEN POSTS IN DIFFERENT CATEGORIES AND SERVICES AND TO MAKE THEM SUBJECT TO DIFFERENT CONDITIONS OF RECRUITMENT AND SERVICE CAREER , IN ACCORDANCE WITH ARTICLE 5 OF THE STAFF REGULATIONS ; THE LEGISLATURE MAKES A DISTINCTION NOT ONLY BETWEEN CATEGORIES BUT ALSO BETWEEN CATEGORIES AND SERVICES . IN THAT REGARD THE APPLICANT RELIES NOT ONLY ON ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS BUT ALSO ON ARTICLES 7 ( 1 ) AND ( 2 ), 31 ( 1 ), 39 ( E ) AND 40 ( D ), THE SECOND SUBPARAGRAPH OF ARTICLE 41 ( 3 ), ARTICLES 45 ( 1 ) AND 102 ( 4 ) AND THE SECOND PARAGRAPH OF ARTICLE 14 OF ANNEX VIII .

14 ACCORDING TO THE APPLICANT , THE GROUPING OF POSTS IN THE LANGUAGE SERVICE , IN PARTICULAR , IS FOUNDED ON SPECIFIC REQUIREMENTS OF EDUCATION AND PROFESSIONAL QUALIFICATIONS WHICH NECESSARILY ENTAIL CONDITIONS OF RECRUITMENT DIFFERENT FROM THOSE APPLICABLE TO CATEGORY A , AS THE COURT HAS ALREADY HELD . FURTHERMORE , THE COMMISSION ' S PRACTICE IN THE PAST HAS ALWAYS BEEN IN CONFORMITY WITH THAT DISTINCTION .

15 THE COMMISSION REFERS TO THE EXPEDIENCY OF THE DECISION OF 11 JULY 1984 AND STATES THAT IT FORMED PART OF A SERIES OF MEASURES INTENDED TO PERMIT GREATER STAFF MOBILITY AND THE REMOVAL OF BARRIERS BETWEEN THE LANGUAGE SERVICE AND OTHER DEPARTMENTS , RESULTING IN GREATER FREEDOM OF CHOICE FOR OFFICIALS AND ALLOWING THE ADMINISTRATION TO FILL POSTS IN THE INTERESTS OF THE SERVICE WITH THE MINIMUM OF FORMALITIES . WITH REGARD TO LAWYER/LINGUISTS , THE ASSIMILATION OF THE CONDITIONS OF RECRUITMENT AND SERVICE CAREER TO THOSE APPLICABLE TO OFFICIALS IN CATEGORY A WHO DO NOT BELONG TO A SPECIFIC SERVICE IS JUSTIFIED ON THE ONE HAND BY THE FACT THAT THE EDUCATION OF LAWYER/LINGUISTS IS OFTEN MORE EXTENSIVE THAN IS REQUIRED BY THE IMMEDIATE SUBJECT MATTER OF THEIR WORK , AND ON THE OTHER BY THE DIVERSITY OF THE EDUCATION OF OFFICIALS IN CATEGORY A . FINALLY , THE COMMISSION EMPHASIZES THAT THE POSSIBILITY THUS GIVEN TO LAWYER/LINGUISTS OF APPLYING FOR POSTS IN CATEGORY A APPLIES EQUALLY IN THE OPPOSITE DIRECTION TO OFFICIALS IN CATEGORY A , AND THAT IT HAS EXISTED SINCE 1971 FOR OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES .

16 WITH REGARD TO THE INTERPRETATION OF ARTICLE 45 ( 2 ) OF THE STATUTE THE COMMISSION PUTS FORWARD AN ARGUMENT BASED ON THE VIEW THAT SERVICES ARE ESTABLISHED WITHIN A CATEGORY . IT THEREFORE CONSIDERS THAT THE FACT THAT AN OFFICIAL IS ASSIGNED TO A SERVICE DOES NOT DEPRIVE HIM OF HIS STATUS AS AN OFFICIAL BELONGING TO THE CATEGORY WITHIN WHICH THAT SERVICE IS ESTABLISHED , AND THAT THE RIGHTS WHICH ARISE FROM THE FACT THAT HE BELONGS TO THAT CATEGORY ARE NOT MERELY PECUNIARY IN NATURE .

17 WITH REGARD TO CONDITIONS OF RECRUITMENT AND SERVICE CAREER THE COMMISSION THEREFORE ARGUES THAT ARTICLE 5 ( 3 ) DOES NOT SEPARATE ' CATEGORIES ' AND ' SERVICES ' . THE WORD ' RESPECTIVEMENT ' ( RESPECTIVELY ) IN THE FRENCH VERSION OF ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS , WHICH STATES THAT IDENTICAL CONDITIONS OF RECRUITMENT AND SERVICE CAREER ARE TO APPLY TO OFFICIALS BELONGING TO THE SAME CATEGORY OR SERVICE , REFERS NOT TO THE TERMS ' CATEGORY ' AND ' SERVICE ' BUT TO THE PHRASES ' IDENTICAL CONDITIONS OF RECRUITMENT ' AND ' SERVICE CAREER ' , AS IS CLEAR FROM THE GERMAN AND ENGLISH VERSIONS OF THAT PROVISION . THE FACT THAT ARTICLE 5 ( 2 ) OF THE STAFF REGULATIONS , WHICH ESTABLISHES THE LANGUAGE SERVICE , PRECEDES ARTICLE 5 ( 3 ) DOES NOT PROVIDE ANY BASIS FOR THE OPPOSITE CONCLUSION . CONSEQUENTLY , SAYS THE COMMISSION , ARTICLE 5 ( 3 ) OF THE STAFF REGULATIONS DOES NOT PREVENT THE GRADUAL ESTABLISHMENT OF IDENTICAL CONDITIONS OF RECRUITMENT AND SERVICE CAREER FOR OFFICIALS IN CATEGORY A WHO ARE NOT ASSIGNED TO A SPECIFIC SERVICE AND FOR OFFICIALS IN THE LANGUAGE SERVICE , SO THAT IT IS POSSIBLE TO ADOPT A NEW PRACTICE UNDER WHICH NON-LINGUISTIC PROFESSIONAL EXPERIENCE MAY BE TAKEN INTO CONSIDERATION FOR OFFICIALS IN THE LANGUAGE SERVICE AND OFFICIALS IN CATEGORY A MAY RELY ON EXPERIENCE WHICH IS PRIMARILY IN THE LINGUISTIC FIELD .

18 THE COMMISSION THUS ARGUES THAT , SINCE THE LEGAL PROVISIONS APPLICABLE UNDER THE STAFF REGULATIONS TO OFFICIALS BELONGING TO THE SAME CATEGORY ARE AS A MATTER OF PRINCIPLE IDENTICAL , A PROPOSITION WHICH IS NOT CONTRADICTED BY ANYTHING IN THE PROVISIONS OF THE STAFF REGULATIONS CITED ABOVE , AN OFFICIAL MAY , WITHOUT TAKING PART IN A COMPETITION , MOVE FROM A SERVICE ESTABLISHED WITHIN A CATEGORY TO A POST IN THAT SAME CATEGORY BUT NOT IN ANY SPECIFIC SERVICE , AND THAT MOVE IS NOT TO BE REGARDED AS A RECRUITMENT .

19 THE COMMISSION CONSIDERS THAT ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS REQUIRES A COMPETITION FOR ANY TRANSFER FROM ONE SERVICE TO ANOTHER OR FROM ONE CATEGORY TO A HIGHER ONE BUT NOT FOR A TRANSFER FROM A SERVICE WITHIN A CATEGORY TO A POST IN THE SAME CATEGORY BUT NOT IN A SERVICE OR VICE VERSA . AS THE DUTCH AND ENGLISH VERSIONS OF ARTICLE 45 ( 2 ) CLEARLY SHOW , THE USE OF THE PHRASE ' ONE SERVICE ' IMPLIES THAT A COMPETITION IS REQUIRED ONLY FOR TRANSFER TO ' ANOTHER ' SERVICE , AND SIMILARLY THE PHRASE ' ONE CATEGORY ' IMPLIES THAT A COMPETITION IS REQUIRED ONLY FOR PROMOTION TO A HIGHER CATEGORY .

20 FINALLY , THE COMMISSION STATES THAT TO REQUIRE A COMPETITION FOR THE TRANSFER OF OFFICIALS FROM THE LANGUAGE SERVICE TO POSTS IN CATEGORY A NOT IN A SPECIFIC SERVICE WOULD LEAD TO THE IMPOSITION OF THE SAME REQUIREMENT FOR OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES ; SINCE 1971 , HOWEVER , THE LATTER HAVE BEEN ABLE TO TRANSFER TO GENERAL POSTS IN CATEGORY A .

21 IT MUST BE POINTED OUT THAT THE TERMS ' CATEGORY ' AND ' SERVICE ' AS USED IN THE STAFF REGULATIONS DEFINE TWO DISTINCT CONCEPTS WITH SPECIFIC LEGAL EFFECTS . THE STAFF REGULATIONS PROVIDE FOR CERTAIN SERVICES ( THE LANGUAGE SERVICE AND THE SCIENTIFIC AND TECHNICAL SERVICES ) AND ENVISAGES THE POSSIBILITY OF ESTABLISHING OTHERS , IN ORDER TO PLACE TOGETHER OFFICIALS WHO CARRY OUT PARTICULAR DUTIES FOR WHICH SPECIFIC QUALIFICATIONS ARE REQUIRED AND MAKE POSSIBLE A SEPARATE CAREER STRUCTURE TAKING INTO ACCOUNT THOSE SPECIAL FEATURES . THE COMMISSION ' S ARGUMENT THAT THE EFFECTS OF AN OFFICIAL ' S BEING ASSIGNED TO A SERVICE ARE NEUTRALIZED BY THE CONSEQUENCES UNDER THE STAFF REGULATIONS OF HIS BELONGING TO A CATEGORY HAS NO BASIS IN THE STAFF REGULATIONS . ON THE CONTRARY , ACCORDING TO THE LAST SENTENCE OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS A SERVICE MAY EMBRACE GRADES BELONGING TO ONE OR SEVERAL CATEGORIES . FURTHERMORE , IT MAY CLEARLY BE SEEN FROM THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE CAREER AND SITUATION OF OFFICIALS THAT A SYSTEMATIC DISTINCTION BETWEEN CATEGORY AND SERVICE IS FUNDAMENTAL TO THEM .

22 THAT MAY BE SAID OF THE PROVISIONS CONCERNING THE ASSIGNMENT OF OFFICIALS BY APPOINTMENT OR TRANSFER ( ARTICLE 7 ( 1 )), TEMPORARY POSTINGS ( ARTICLE 7 ( 2 )), APPOINTMENT ( ARTICLE 31 ( 1 )), REINSTATEMENT AFTER SECONDMENT ( ARTICLE 39 ( E )) OR AFTER LEAVE ON PERSONAL GROUNDS ( ARTICLE 40 ( 4 ) ( B )), NON-ACTIVE STATUS ( THE SECOND SUBPARAGRAPH OF ARTICLE 41 ( 3 )), PROMOTION ( ARTICLE 45 ( 1 )), THE ESTABLISHMENT OF OFFICIALS IN THE LANGUAGE SERVICE ( ARTICLE 102 ( 4 ) ( B )) OR REINSTATEMENT AFTER A PERIOD OF INVALIDITY ( SECOND PARAGRAPH OF ARTICLE 14 OF ANNEX VIII ).

23 THE DISTINCTION BETWEEN CATEGORY AND SERVICE IS ALSO TO BE FOUND IN ARTICLE 45 ( 2 ), WHICH EXPRESSLY PROVIDES THAT ' AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER AND PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION ' . CONSEQUENTLY , AS THE COURT HELD IN ITS JUDGMENT OF 20 JUNE 1985 IN CASE 138/84 ( SPACHIS V COMMISSION ( 1985 ) ECR 1939 ) AN OFFICIAL MAY BE TRANSFERRED FROM THE LANGUAGE SERVICE TO AN ADMINISTRATIVE POST IN CATEGORY A ONLY ON THE BASIS OF A COMPETITION .

24 CONTRARY TO THE COMMISSION ' S ARGUMENT , THAT PROVISION OF THE STAFF REGULATIONS , WHICH THE COURT TREATED AS FUNDAMENTAL IN ITS JUDGMENT OF 5 DECEMBER 1974 IN CASE 176/73 ( VAN BELLE V COUNCIL ( 1974 ) ECR 1361 ), ALLOWS THE ADMINISTRATION NO DISCRETION TO ACT DIFFERENTLY , AND AN EXCEPTION MAY BE MADE ONLY BY WAY OF A PROVISION HAVING THE SAME LEGAL FORCE , SUCH AS THE SECOND PARAGRAPH OF ARTICLE 98 , WHICH PROVIDES THAT ' ARTICLE 45 ( 2 ) SHALL NOT APPLY TO OFFICIALS COVERED BY ARTICLE 92 ' , THAT IS TO SAY OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES . THERE IS NO SUCH PROVISION WITH REGARD TO THE LANGUAGE SERVICE .

25 THE COMMISSION ARGUES IN THAT REGARD THAT NO ARGUMENT A CONTRARIO MAY BE MADE ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 98 BECAUSE THAT EXCEPTION WAS ESTABLISHED IN ORDER TO ALLOW TRANSFERS OF OFFICIALS BETWEEN THE SCIENTIFIC AND TECHNICAL SERVICES WITHOUT THE REQUIREMENT OF A COMPETITION . THE COMMISSION ' S ARGUMENT IS UNFOUNDED . THE SECOND PARAGRAPH OF ARTICLE 98 DOES NOT ESTABLISH A PARTIAL EXCEPTION ALLOWING THE TRANSFER OF OFFICIALS FROM ONE SERVICE TO ANOTHER BUT A TOTAL EXCEPTION TO THE RULE LAID DOWN BY ARTICLE 45 ( 2 ) AND THUS ALLOWS THE TRANSFER OF OFFICIALS IN THE SCIENTIFIC AND TECHNICAL SERVICES NOT ONLY BETWEEN SERVICES BUT ALSO TO A CATEGORY , AND VICE VERSA .

26 IT MUST THEREFORE BE HELD THAT THE CONTESTED DECISIONS OF 30 NOVEMBER 1984 APPOINTING R . TEERLINK , AN OFFICIAL IN THE LANGUAGE SERVICE , TO THE CATEGORY A POST DECLARED VACANT BY VACANCY NOTICE NO . COM/1207/84 AND REJECTING THE APPLICANT ' S CANDIDATURE FOR THAT POST ARE CONTRARY TO ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS AND MUST BE ANNULLED .

Decision on costs

COSTS

27 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS .

HOWEVER , UNDER ARTICLE 70 OF THE RULES OF PROCEDURE THE INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITY .

28 THE PARTIES IN CASE 269/84 MUST THEREFORE BEAR THEIR OWN COSTS ; SINCE THE COMMISSION HAS BEEN UNSUCCESSFUL IN CASE 292/84 , IT MUST BE ORDERED TO PAY THE COSTS OF THAT CASE .

Operative part

ON THOSE GROUNDS

THE COURT ( SIXTH CHAMBER )

HEREBY DECIDES :

( 1 ) THE APPLICATION IN CASE 269/84 IS DISMISSED AS INADMISSIBLE .

( 2 ) IN CASE 292/84 , THE COMMISSION ' S DECISIONS OF 30 NOVEMBER 1984 APPOINTING R . TEERLINK , AN OFFICIAL IN THE LANGUAGE SERVICE , TO THE CATEGORY A POST DECLARED VACANT BY VACANCY NOTICE NO COM/1207/84 AND REJECTING THE APPLICANT ' S CANDIDATURE FOR THAT POST ARE ANNULLED .

( 3 ) THE PARTIES IN CASE 269/84 ARE ORDERED TO PAY THEIR OWN COSTS .

( 4 ) THE COMMISSION IS ORDERED TO PAY THE COSTS IN CASE 292/84 .