1.

It should first be ascertained whether, in publishing the decision regarding the appointment of an official to one of the notified posts in Grade A6 the Council infringed provisions of the Staff Regulations, in that Article 29 (2) of the Staff Regulations, referred to by the Council, is relevant only for the appointment to posts of persons who are not yet employees of the Communities (so-called external appointments), and in that, according to Article 45 (2) of the Staff Regulations, where an official is promoted from one category to another a competition must be held. The Council firmly refutes this point of view. It is convinced that Article 29 (2) of the Staff Regulations is relevant not only for first recruitment, that is to say for external appointment, but also in general terms for any type of competition procedure. As for Article 45 (2), it does not peremptorily lay down that a competition must be held, but merely refers in general to the provisions relating to appointment contained in the chapter entitled Recruitment, including Article 29 (2). Let us begin the examination of this controversy with an interpretation of Article 29 (2). If in fact it is only to be taken into account for cases of external appointment, that is to say, not for officials of the Communities who are to be moved to a higher category, there would be no point in raising the question whether Article 45 (2) excludes recourse to Article 29 (2) in the case of movement from one category to another. In support of her view the applicant adduces arguments based in the main upon the wording of the provisions of the Staff Regulations. She points to the fact that Article 29 (2) is concerned with ‘recruitment’, and claims that Article 28, which deals with the appointment of officials, contains, in subparagraph (d), with reference to the competition procedure, an express reservation relating to Article 29 (2). Moreover, she invokes the principle of the ratio legis. In her opinion, it is only when an official is originally recruited that there can be any sense in dispensing with the competition procedure, since to require this could lead to a situation where a person specially qualified for a post could not be found in the service of the Community. Finally, she refers to the opinion of the former Advocate-General Lagrange in relation to Article 29 (2). Clearly, the last of these arguments carries the least weight, since the relevant opinion was concerned with an examination of an entirely different problem. The statement was simply made there, quite incidentally and without any deep study of the point which concerns us, that Article 29 (2) concerns the recruitment of candidates who are not yet in the service of the Communities. Next, as regards the arguments based upon an exegesis of the text, it is important to point out immediately that the concept ‘recruitment’, as used in Article 29 (2), does not necessarily bear the interpretation placed upon it by the applicant. In principle, it might be sufficient to state that in Article 29 (2) the expression ‘recruitment’ is used merely in respect of Grades A1 and A2 officials, not — as is of relevance in this case — in respect of other grades. However, I will not leave it at that. Analysis of the general scheme of the Staff Regulations shows that the concept ‘recruitment’ must in fact not be understood in the narrow sense of appointment to the service, that is to say in the sense of external appointment. Rather, it is a general concept which, understood correctly, embraces all possible forms of appointment to posts. To this extent the Council is correct in referring to the fact that Article 4 in Title I (‘General Provisions’) contrasts appointments with promotions. It, shows that there are two ways of filling a vacancy, namely: promotion, which according to the definition contained in Article 45 is effected by appointment to the next higher grade, and all other types of appointment. This last concept therefore includes all possible forms of appointment to vacancies, not only transfer within the institutions (Article 29 (1) (a)) and transfer of officials from other institutions (Article 29 (1) (c)) — neither case involves a change of grade — but also the filling of posts on the basis of a competition procedure, whether a competition internal to an institution or internal to the Communities, in which all servants may take part, or an open competition to which persons not employed by the Communities are also admitted. A similar line of argument may be adduced from Article 7, which deals with appointment and transfer, and makes clear by this juxtaposition that ‘appointment’ is a general concept. It is further of interest that Chapter 1 of Title III also supports this view. It is headed ‘Recruitment’ but contains, as is clear from Article 29, rules for the various ways of filling vacancies, with the exception of promotion, to which a special chapter is devoted in Title III. Although it is true that the majority of provisions in the Chapter headed ‘Recruitment’ in which this term is employed deal with the appointment of officials, this is not always so, as is shown especially by Article 32. As regards in particular Article 28, upon which, in view of the argument adduced from subparagraph (d), the applicant lays so great an emphasis, in my view the Council has convincingly demonstrated that this Article is by no means relevant in respect only of the original recruitment of an official, but also above all for other ways of filling posts, that is to say, including those ways in which recourse is had to officials of the Communities. In fact in such cases it may also be necessary to conduct an examination as to the requirement relating to nationality and possible exceptions thereto, as to the fulfilment of military service obligations, as to the requirements relating to the appropriate character references as to suitability for the performance of duties, as to the required physical fitness and as to the requisite knowledge of languages. Finally, the following remarks are also important in relation to the arguments which may be adduced from the text of the Staff Regulations. Quite clearly, Article 29 (1) contains general rules for the filling of posts, in that it provides for a number of tests to be carried out in a given order. Article 29 (2) then admits of exceptions in specified cases in relation to the competition procedure. This drafting technique, that is to say the enumeration of exceptions in a subparagraph to a provision of general application, certainly supports the view that the provision creating the exceptions is also of fundamental relevance for all means of filling vacancies. If this had not been intended, the authors of the Staff Regulations would no doubt either have devoted a special article to the provision creating the exceptions or otherwise made quite clear that only a limited application was intended, for which, as I have already shown, the use of the term ‘recruitment’ is not sufficient. Although thus far an analysis of the provisions and the concepts used therein supports the interpretation put forward by the Council, mention must also be made — and this is by no means an insignificant matter — of a consideration concerning the objective of this legislation. According to the Staff Regulations (cf. Articles 3 and 5 of Annex III) the competition procedure is so structured that an independent selection board considers a number of candidates and thereafter draws up a list of suitable candidates, from which the appointing authority chooses the one to be appointed. Therefore the procedure presupposes a number of candidates of a comparable standard. It therefore follows that the application of this procedure — seen purely in the context of the present case — is pointless when it is a question of filling a post requiring special technical knowledge, that is to say where the post requires qualifications possessed only by a single candidate or by a very limited number of candidates (cf. Euler, Europäisches Beamtenstatut, vol. 1, p. 265). On the basis of this fact it must be recognized that Article 29 (2) is general in scope and that its application is not restricted to external appointments. If in fact the provision were to be narrowly interpreted the consequence of this, in a case where an official was eligible for a certain post on account of his special qualifications, would be that a competition would nevertheless have to be held or that only an outsider could be appointed. Both solutions would clearly be unacceptable, the first, because a pointless competition would have to be held, the second, because it would not take account of the interests of European officials, who have priority in appointment procedures under the system contained in the Staff Regulations. It is my opinion, on all the above grounds, that Article 29 (2) must also be applied when a post requiring special technical knowledge is to be filled by an official of the Communities. It further remains to be considered — this being the second point of relevance in relation to the first ground of complaint — whether Article 45 (2) makes a competition procedure mandatory for a case of promotion to a higher category, with the result that in such circumstances Article 29 (2) is not applicable. -In this connexion the applicant refers to the wording of Article 45 (2), which she compares in particular with that of Article 28 (d). Furthermore, she makes reference to findings reached in the judgment in Joined Cases 55 to 76, 86, 87 and 95/71 (Judgment of 13 July 1972, Besnard and others v Commission of the European Communities, Recueil 1972, p. 543) and in the opinion in Case 15/63 (Judgment of 4 March 1964, Lassalle v European Parliament, [1964] ECR, 40). It must also be stated in this connexion that the opinion cited by the applicant and the judgment upon which she relies do not necessarily support her point of view. The judgment in question (Recueil 1972, pp. 562 et seq.) does not deal with the problem which concerns us here, but solely with the question whether Article 46 must also be applied in the event of a change of category. Article 45 (2) is mentioned in passing, although in effect it is merely repeated verbatim. The position is similar with regard to the opinion in Case 15/63 ([1964] ECR 47). Furthermore the latter contains (at p. 46) the statement that access to a new service or to a new category can normally only take place after competition, which leads to the conclusion that this rule may be waived in exceptional cases. If the textual comparison proposed by the applicant is considered closely it may indeed be conceded that Article 45 (2) could support the argument that a competition is mandatory in the event of a change of category precisely because it states that such a promotion may be effected ‘only on the basis of a competition’, whereas Article 29 (2) states that ‘a procedure other than the competition procedure’ may be adopted. It is also a matter for thought that, unlike Article 28 (d), Article 45 (2) contains no reservation with regard to Article 29 (2). However, there are good grounds for not adopting the interpretation put forward by the applicant. It should be stated here that it is a commonly accepted fact that such arguments, based upon the text, are of no great value in interpreting subordinate Community legislation. On the other hand, it is important to note that Article 45 (2) constitutes a statement as to promotion procedure, and that its main significance lies in the fact that it excludes promotion in cases of change of category. Furthermore, we should here recall the objective of Article 29 (2), mentioned above. In fact it may be said that the result of attempts to interpret Article 45 (2) is predetermined by what we observed in regard to Article 29 (2). For if it is true that a competition for the filling of a post requiring special technical knowledge is pointless and that Article 29 (2) therefore also applies in respect of internal appointments, it appears illogical to exclude the applicability of Article 29 (2) precisely in cases- of a change of category. If this were done the consequence, in situations where an official from a lower category was eligible for appointment to such a post, would be either that a pointless competition would have to be held or that the appointing authority would be restricted to accepting candidates in the same category as the post to be filled or external candidates. Such a result can hardly be welcomed if a sensible interpretation of the Staff Regulations is being advocated, that is to say an interpretation which takes account of the furthering of the careers of officials of the Communities. I am therefore in agreement with the Council when it states that Article 45 (2) is to be understood in the sense of a general reference to the rules for competitions as they are laid down in Article 29, that is to say, in conjunction with Article 29 (2). Moreover, it cannot be objected that this conflicts with the underlying reasoning of Article 45 (2), which does not permit the appointing authority to effect changes of category by means of selection. In this connexion the Council has rightly remarked that the filling of every post even after a competition has been held, is a matter of selection by the appointing authority. The decisive factor therefore is not that a selection has been effected but rather that there has been no competition in the context of the promotion procedure on the basis of merit. However, there can be no question of a competition in the lastmentioned sense in connexion with the application of Article 29 (2) and therefore the interpretation which I have put forward is in fact not in conflict with Article 45 (2). All this leads to the conclusion that the arguments put forward in support of the first ground of complaint do not justify a declaration that the application should be upheld.