4.

Let me say at once that it is quite clear to me that, as the Commission maintains, once the final step of a grade is reached no further notional steps exist. The applicant refers both to the wording and the spirit of the provisions in dispute in order to maintain the contrary. According to him, the formula ‘notional steps… rising… throughout the span of the actual steps’ implies that every step, from the first to the last, is included and that if the legislature had wished to excluse the last step it would have provided ‘throughout the span of the actual steps exclusing the final step’ or ‘between the first actual step and the last’. I shall accept that the formula used is ambiguous and may, according to the context or the ratio legis, include or exclude the final step. What is, in my opinion, more interesting from the point of view of the wording is that where the French and Italian versions of Article 46 speak of ‘échelons virtuels’ or of ‘scatti virtuali’, the German version employs the phrase ‘Diensfalterszwischenstufen’, that is, ‘intermediate steps’. This term cannot apply to notional steps which would follow the last actual step. However, it is in particular the spirit of the provision in question which must be considered. In the opinion of the applicant the author of the Staff Regulations considered it reasonable to protect the ‘normal’ development of the career of an official who, on being recruited in the first step of his grade, obtains an increment every two years and two years after reaching the final step is promoted to a higher grade. This concept seriously fails to consider the distinction made by the Staff Regulations between advancement to a higher step and advancement to a higher grade: although according to Article 44 the former is automatic after an official has been at one step in his grade for two years, promotion, which involves the appointment of the official to the higher grade in his category, is under Article 45 carried out exclusively by selection. Thus, a servant who has. reached the final step in his grade has no guarantee that his salary will continue to rise or that he will ‘normally’ be promoted to a higher grade two years later. Thus, the provisions regarding notional steps contained in the second paragraph of Article 46 cannot apply to this last step. Such steps correspond to months of service representing a series of potential increases in salary which are justified to the extent to which an official may advance automatically, as a result of the mere passage of time, to a new actual step which carries a higher salary within the same grade. Once the final step has been reached it is no longer possible to advance automatically to a higher salary and there is no longer any reason for notional steps to exist. It is true that legal writers are divided on this question. While Euler (Europäisches Beamtenstatut, Vol. II, p. 376) appears to exclude the existence of notional steps within the last step of a grade, Holtz (Handbuch des Europäischen Dienstrechts, p. 325) accepts it. In my opinion, however, it follows clearly from a comparison of Articles 44 and 45 of the Staff Regulations that the second paragraph of Article 46 must be interpreted as concerning all the actual steps with the exception of the final step. It is thus as a result of a precise interpretation of that provision that, in classifying Mr Brembati in his new grade, no account was taken of ‘the notional step reached in his former grade’, and the applicant's main argument must be set aside.