(a)

According to the applicant, the Commission of the EEC infringed Article 110 of the Staff Regulations in so far as it failed to adopt measures for giving effect to the integration provisions in Article 102 or at least in failing to do so in accordance with the procedure under Article 110 (that is to say, after consulting the Staff Committee and the Staff Regulations Committee) and by failing to notify the staff of them. From the facts it is certain that the Commission had already laid down on 13 December 1961‘rules’ (‘un règlement’) on the composition and working procedure of the Establishment Board and on 9 March 1962 the definitive text of the ‘Internal Rules of Procedure of the Establishment Board’ (‘Règlement intérieur de la commission d'intégration’). The Director-General of Administration notified the Staff Committee of these texts on 23 March 1962, but only by way of information and not to obtain their opinion The principal question is then whether Article 102 requires measures for giving effect to it, laid down in accordance with Article 110. A whole series of factors, it is true, suggest that this question should be answered in the affirmative. — In the first place it seems to me to be certain, as I have already observed in Case 27/63, that Article 110 is not to be applied solely to provisions which especially refer to it. The decisive factor must be whether the substantive content of a provision requires the adoption of implementing measures, for example, because in their absence it would be impossible to apply it or to do so in the proper way — With regard to Article 102, the Commission's adoption of implementing measures has clearly lent serious weight to the applicant's argument. These rules lay down the composition of the Establishment Board (number of its members, nationality and required grade), the procedure by which the Board arrives at its judgment (production of documents, hearing of the persons concerned, of their superiors and of other servants), the persons who may take part in these hearings, the conditions of voting (minimum number and nationality of members present, abstention if the member has an interest in the case, decisions in the event of a tied vote), etc. (cf. for example, the provisions as to secrecy, drawing-up of minutes, the order in which evidence is called). in fact perusal of Article 102 gives the impression that it is essential to supplement it by implementing provisions. Article 102 only provides that there shall be set up in each institution an Establishment Board consisting of servants of the institution employed in a supervisory capacity, who shall be appointed thereto by the appointing authority. On the basis of a report furnished by the superiors of the servants concerned, this Board shall advise the appointing authority as to their suitability for the duties of their posts. Bearing in mind the enormous importance of the integration procedure for individual servants, this provision is by no means very detailed or precise. — In my opinion it is equally incorrect to say that the transitional provisions of Articles 102 to 109 do not form part of the Staff Regulations and that, for this reason, Article 110, which refers to the general provisions for giving effect to these Staff Regulations, is not applicable to them. From the point of view of form, all the provisions which are grouped under the title of ‘Staff Regulations of officials of the European Economic Community and of the European Atomic Energy Community’, and are contained in Articles 1 to 110, form part of the Staff Regulations. This arises from the single Article of the Regulation of the Council laying down the Staff Regulations which states: ‘The Staff Regulations of officials … of the European Economic Community and the European Atomic Energy Community are laid down in the Annex’. However I believe that in the final analysis there has been no infringement of Article 110 in the present case. In fact, the view of the Commission that Article 110 only applies to the principal provisions of the Staff Regulations which are intended to have permanent application and not to the transitional provisions which lapse after a single application seems to be correct. Two arguments may be invoked to support this. Article 110 speaks of general implementing provisions. In this connexion the adjective ‘general’, correctly understood, can only relate to the legislative nature of the implementing provisions. It must therefore be concerned with rules which are applicable to an indeterminate number of cases in the future. On the other hand Article 102 only applies to a precisely determinable number of officials, namely, to those who had a permanent post with one of the institutions of the Communities when the Staff Regulations entered into force. Moreover reference may be made to Article 107 which also appears among:he transitional provisions and which expressly requires the consultation of the staff Regulations Committee in order to idopt implementing provisions. This actor seems to me proof that in principle Article 110 does not refer to transitional provisions. If in fact it did apply to transitional provisions it would lave been unnecessary to mention the participation of the Staff Regulations Committee in Article 107, precisely because Article 110 requires the conultation of the Staff Regulations Committee as well as of the Staff Committee. Consequently, the complaint that the Commission infringed Article 110 by ailing to consult the Staff Committee and by failing to publish the internal rules of procedure of the Establishment Board before adopting those rules is unfounded.