Opinion of Mr Advocate General Mischo delivered on 11 June 1987. - Rudolf Misset v Council of the European Communities. - Officials - Transfer of an official from the Language Service to a post in Category A. - Case 279/85.



European Court reports 1987 Page 03187



Opinion of the Advocate-General

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Mr President,

Members of the Court,

The action brought by Mr R . Misset, a translator in Grade LA*7 in the General Secretariat of the Council, once again raises the question whether officials belonging to the Language Service of the Communities ( holders of an LA post ) may be transferred to a post in the same grade in Category A without taking part in a competition .

Mr Misset and the 15 members of the Council' s Translation Department who have intervened in support of his application consider in particular that Article 45 ( 2 ) of the Staff Regulations presents no obstacle to such a transfer .

As I have already stated in the Opinion which I delivered on 11 June 1986 in Joined Cases 269 and 292/84 Fabbro, Giuffrida, Herbin and Scharf v Commission, it is not for me to assess the expediency of introducing greater mobility within the European Civil Service by, in particular, facilitating the transfer of officials from the Language Service to posts of a non-linguisticnature and vice versa . My task is simply to give my opinion on the question whether it is legally possible, under the Staff Regulations as they now stand, to make such appointments without a competition .

In my opinion the arguments put forward by the applicant and the interveners add no really new factor to those which the Commission put forward in support of the same claim in Joined Cases 269 and 292/84 .

The interveners do give a detailed description of the circumstances in which the words "transferred from one service to another" were introduced into the text of Article 45 ( 2 ). They infer from that historical summary that the requirement of a competition for linguists ( let us not forget that there is a corresponding obligation for officials in Category A wishing to become linguists ) is only a practice which has no basis in the Staff Regulations and is moreover inconsistent with them .

That opinion is however contradicted both by the definitive wording of Article 45 itself and by various other provisions of the Staff Regulations concerning the career and situation of officials which, according to the judgment given by the Court on 21 October 1986 in the abovementioned cases, ( 1 ) are based on "a systematic distinction between category and service ". The Court also held in that judgment that the "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 ".

Finally, it held that Article 45 ( 2 ) of the Staff Regulations "allows the administration no discretion to act differently", that is to say, other than by way of a competition .

In those circumstances I can propose only that the Court confirm the interpretation of the Staff Regulations given in that judgment ( essentially the same interpretation which I proposed in my Opinion of 11 June 1986 ) and dismiss the present application as unfounded .

With regard to costs, pursuant to Article 69 ( 2 ) of the Rules of Procedure the unsuccessful party is to 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 Communities .

The parties to the present action, including the interveners, must therefore bear their own costs .

(*) Translated from the French .

( 1 ) Joined Cases 269 and 292/84 C . Fabbro and Others v Commission (( 1986 )) ECR 2983 .