1.

It has become clear from the above considerations that the main issue in the proceedings is whether the Commission was correct in applying the principle that in cases of change of category the official must be classified in the lower grade of the career bracket of the higher category of whether, as the applicants maintain, the Staff Regulations provide that classification must be undertaken in such cases in accordance with Article 46 of the Staff Regulations which provides that ‘An official appointed to a higher grade shall, in his new grade, have the seniority corresponding to the notional step equal to or next above the notional step reached in his former grade, plus the amount of the two-yearly increment for that grade’. One group of applicants is largely of the opinion that other provisions of the regulations, namely Article 62 and Article 66, would not be complied with if the change of category were not carried out in accordance with Article 46, that is, by ensuring the maintenance of the level of basic salary by classification in the corresponding grade and step of the higher career bracket. In addition, in support of their argument, they refer to the previous practice of the Commission and the practice of other Community institutions which, they allege, corresponded to it. On the other hand in support of the method it advocates the Commission refers to the budgetary limits imposed on its personnel policy and to its freedom of organization of posts and the use of budgetary posts whereby application of the system advocated by the applicants is frequently ruled out. In addition it refers to the career bracket system under the Staff Regulations and the fact that the career prospects of A 7 and B5 officials could be detrimentally affected if the system advocated by the applicants were applied. One thing may certainly be said in respect of these arguments. The reference made by the applicants to the earlier practice of the Commission and the practice of other Community institutions is of little value in the present proceedings. The argument as to the first head of application is rather a purely legal one: whether the Staff Regulations do in fact contain principles which require application of Article 46 to cases such as these, or whether the principles of the Staff Regulations are in fact such that the general decision adopted by the Commission concerning classification criteria is more appropriate to the spirit of the Staff Regulations. It may also be said immediately that direct application of Article 46 of the Staff Regulations to cases such as these can be ruled out. This provision is contained in Chapter 3 of the Staff Regulations (‘Reports, Advancement to a Higher Step and Promotion’) directly after Article 45, that is, the provision whereby promotion shall be effected by ‘the appointment of the official to the next higher grade in the category or service to which he belongs’. It is evidently specifically intended for this case and its purpose is to determine the seniority in grade of an official appointed to a higher grade by means of the notional steps. On the other hand by its very nature it is not suitable for determining the grade itself since it presupposes that this has already been done by other provisions of the Staff Regulations. However analogous application of Article 46 can be considered. The earlier practice of the Commission shows that it is possible in practice and in theory. Here examination whether analogous application of Article 46 is in fact the only possible solution under the Staff Regulations is decisive. It may be said at once that in this examination relevant factors cannot be drawn from the decided cases cited by the applicants, that is, the judgment in Joined Cases 15/64 and 60/65 (Moreau v Commission of the EAEC [1966] ECR 459). Those cases were in fact concerned with classification on the basis of re-assessment of posts after the entry into force of the Staff Regulations and its Annexes. Whilst analogous application of Article 46 was accepted in such circumstances, that is, in cases where the grade was clearly determined by the Staff Regulations and only the steps remained to be determined and where in addition, as was stressed in the judgment, account had to be taken of the salary level then it does not necessarily follow that the same method must apply in the different situation of transfer from one category into the next higher one. The question of analogous application of Article 46 should therefore be left open for the moment. Further it is clear that decisive support for the applicants' view cannot be drawn from Articles 62 and 66 of the Staff Regulations and from the basic principle of maintenance of the level of the basic salary, that is, from the second sentence of the second paragraph of Article 46. As you know Article 62 provides that an official is entitled to the remuneration ‘carried by his grade and step’. Article 66 sets out the appropriate table. It is true that the method applied by the Commission does in certain circumstances deviate from these provisions (namely whenever the salary continues to be calculated according to the previous grade). However this is not an unacceptable disregard for the Staff Regulations. One may take the view that such a deviation is acceptable in favour of the officials if in an exceptional situation and for particular reasons it is necessary to protect acquired rights. With regard to the requirement in the second sentence of the second paragraph of Article 46 that in his new grade an official shall not receive a basic salary lower than that in his former grade, it may be said that in its context this requirement only relates to promotions in the technical sense. However if it is given wider scope and it is complied with in connexion with change of category this does not necessarily imply that the level of basic salary can only be ensured by corresponding classification in the higher career bracket. It may also be held that the principle is satisfied if, as was ordered in the general decision of the Commission of 10 March 1971, the level of the former basic salary is maintained or even if a compensatory amount ensures the maintenance of the level of the basic salary. The latter was, as you know, the view of my colleague Mr Advocate-General Gand in Case 11/65 (Morina v Parliament [1965] ECR 1017) that is in a case concerning the attempts of the defendant institution at least to maintain the salary level of a former C1 official who had been appointed following a competition to a B5 post where the basic salary lay below the level of that of Grade C1. It may also not be objected that such compensation is only provided for by the Staff Regulations for specified situations which do not include cases such as the present ones. It is clear (all the parties are agreed on this) that the Staff Regulations do not contain sufficient express rules for cases of transfer to a career bracket in a higher category. However in such a situation the granting of compensatory payments on the basis of analogous application of the relevant provisions at least seems as sensible and appropriate as the analogous application of Article 46 advocated by the applicants. In fact, to reach the heart of the matter, the dilemma which arises over the inadequacy of the Staff Regulations in case of a change of category may only be dealt with satisfactorily of one seeks a solution which takes into account the whole system of the Staff Regulations and its underlying principles. It becomes evident that a system of career brackets based on the career brackets defined in Article 5 of the Staff Regulations is a feature of the Staff Regulations of the Communities. Its importance was emphasized in the decided cases (Case 33/67, Kurrer v Council [1968] ECR 127) after the Advocates-General (my colleagues Messrs Lagrange and Gand) had repeatedly emphasized them (the opinions in Cases 11/65 and 33/67). This system complies with the requirement of making appointments in principle to the starting grade of a category. If appointment is made to a higher career bracket then generally the lower grade should be chosen (as was emphasized in the judgment in Case 33/67). On this basis, according to the theory of career brackets, the officials are promoted to the next higher grade when they have completed a certain minimum period of service and therefore have the necessary experience, and upon consideration of the merits of all the officials concerned are deemed suitable for promotion. Change of category is clearly a rare exception (which accounts for the paucity of the rules provided for it). If the question arises then Article 45 requires a competition to be held. This guarantees that the candidates possess the qualifications for the higher career bracket. However nothing more is in fact achieved than equality with officials who are already in the higher career bracket and are in the starting grade of that career bracket. In my opinion that means that the requirement for the advancement of officials whose suitability for the higher career bracket has been shown, is in principle the same as that for officials appointed directly to that career bracket namely that they must prove their abilities for a certain minimum period before they may be considered for promotion to the next higher grade. However it would be quite contrary to the system of the Regulations for an official upon change of category to be immediately placed in the higher grade of the higher career bracket because of the remuneration in his former grade, that is to say for his position in the higher career bracket to be determined by factors (salary and seniority in the former career bracket) which bear no relation to experience and merits in the higher career bracket. It would be intolerable that in such cases officials who are transferred to a higher category should be enabled as it were to overtake other officials who were appointed directly to the higher career bracket and who have already been able to obtain some experience there. These considerations are in themselves sufficient for a solution to the present problem. It follows from them that in the case of change of category analogous application of Article 46 of the Staff Regulations is not appropriate but rather that the principle set out by the Commission in its general decision is the right one. The following considerations are also relevant. It appears to me important that the principle stated by the Commission best precludes the danger of inequality of treatment since it always entails classification in the lower grade of a higher career bracket. If we accepted the applicant's view and applied Article 46 then the possibility of classification in the higher grade of the higher career bracket would depend upon there being a corresponding post provided for in the detailed list of posts. However as the Commission rightfully emphasized that is purely a question of its discretion within the scope of the administrative organization and the use of budgetary posts and therefore is not subject to objective examination. In addition the necessity to fall back continually on Article 46 might often make transfers to a higher category more difficult. Since, as I have said, the administration is free to organize its departments and to use its budgetary posts as it thinks fit, it is not prevented from filling posts in the higher grade of a category by promotion or by recruitment and from inviting applications only for the lower grade in competitions intended for internal applicants (as was done in Case 11/65 and was accepted without criticism). However in such a situation, if only Article 46 of the Staff Regulations could be applied, it would be impossible, for example, for B1 officials in the higher steps to gain access to Category A by means of competition. The rigid principle advocated by the applicants would therefore be against the interests of the staff in the long run. Such considerations must certainly be taken into account in examining the question whether the general rule set out by the Commission with its objective provisions excluding any discretion is appropriate and compatible with the fundamental principles of the Staff Regulations. Finally it should also be said that some other objections raised by the applicants against the correctness of the conclusions to which I have so far come in no way shake my conviction. This applies to the observation that the method applied by the Commission could result in the payment of salary being made for a time according to Category B, then for a time according to Category A and subsequently according to Category B again and so on. This is correct and certainly not wholly satisfactory. However since this consequence appears inevitable if acquired rights are to be maintained and since it in addition entails no insupportable difficulties it is acceptable so long as no amendment of the Staff Regulations produces a more acceptable rule for the change of category. The same applies to the complaint that the rules adopted by the Commission could in certain circumstances lead to category B officials from various grades being classified in the same grade in Category A. In my opinion, if it is not pure theory, such an occurrence is in no way alarming since in such a situation all officials start from the same point at the beginning of a new career bracket in the higher category for which their suitability alone comes into consideration. In addition the method of the calculation of the salary as contained in the general decision of the Commission concerning classification criteria ensures that at least for remuneration, and consequently for future promotion also, the appropriate differentiation is retained. Thus in view of all the considerations raised by the first head of the application it must be held that the general decision of the Commission of 10 March 1971 does not infringe provisions of the Staff Regulations and therefore there are no grounds for annulling the appointment decisions based on it.