Judgment of the Court (Second Chamber) of 9 July 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



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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OFFICIALS - CAREER - ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS - SYSTEMATIC DISTINCTION BETWEEN CATEGORIES AND SERVICES - TRANSFER FROM THE LANGUAGE SERVICE TO AN ADMINISTRATIVE POST IN CATEGORY A - REQUIREMENT OF A COMPETITION

( STAFF REGULATIONS, ART . 45 ( 2 )*)

Summary

IT IS CLEAR FROM THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE CAREER AND SITUATION OF OFFICIALS THAT A SYSTEMATIC DISTINCTION BETWEEN CATEGORY AND SERVICE IS FUNDAMENTAL TO THEM, INASMUCH AS A SERVICE PLACES TOGETHER OFFICIALS WHO CARRY OUT PARTICULAR DUTIES FOR WHICH SPECIFIC QUALIFICATIONS ARE REQUIRED AND MAKES POSSIBLE A SEPARATE CAREER STRUCTURE TAKING INTO ACCOUNT THOSE SPECIAL FEATURES .

THAT DISTINCTION IS TO BE FOUND IN ARTICLE 45 ( 2 ), WHICH IN PROVIDING THAT "AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION" FORMULATES A FUNDAMENTAL RULE CORRESPONDING TO THE ORGANIZATION OF THE COMMUNITY PUBLIC SERVICE INTO DIFFERENT CATEGORIES REQUIRING DISTINCT QUALIFICATIONS . IT FOLLOWS THAT A TRANSFER FROM THE LANGUAGE SERVICE TO A CATEGORY A POST CAN TAKE PLACE ONLY ON THE BASIS OF A COMPETITION .

Parties

IN CASE 279/85

RUDOLF MISSET, AN OFFICIAL OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . PUTZEYS AND X . LEURQUIN, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF G . NICKTS, 87 AVENUE GUILLAUME,

APPLICANT,

SUPPORTED BY

FABIO BOLOGNESE AND OTHERS, OFFICIALS OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY F . HERBERT, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER, 16 AVENUE MARIE-THERESE, PO BOX 335,

INTERVENERS,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY G . PEETERS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JOERG KAESER, MANAGER OF THE LEGAL DIRECTORATE OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD ADENAUER, 1020 LUXEMBOURG,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE COUNCIL' S DECISION OF 14 DECEMBER 1984 REJECTING THE APPLICANT' S REQUEST FOR A TRANSFER FROM THE LANGUAGE SERVICE TO CATEGORY A,

THE COURT ( SECOND CHAMBER )

COMPOSED OF : T.*F . O' HIGGINS, PRESIDENT OF CHAMBER, O . DUE AND K . BAHLMANN, JUDGES

ADVOCATE GENERAL : J . MISCHO

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 10 JUNE 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 11 JUNE 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 13 SEPTEMBER 1985, RUDOLF MISSET, AN OFFICIAL IN GRADE LA*7 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES, BROUGHT AN ACTION FOR THE ANNULMENT OF THE COUNCIL DECISION OF 14 DECEMBER 1984 REJECTING HIS REQUEST FOR A TRANSFER FROM THE LANGUAGE SERVICE TO A POST IN CAREER BRACKET A*7/A*6 .

2 IN SUPPORT OF ITS DECISION THE COUNCIL STATED THAT REQUESTS FOR TRANSFER TO CATEGORY A POSTS BY OFFICIALS IN THE LANGUAGE

SERVICE ARE NOT ADMISSIBLE, IN VIEW OF THE PROVISIONS OF ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS TO THE EFFECT THAT "AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION ". THE COUNCIL ESSENTIALLY MAINTAINS THAT THAT PROVISION PROHIBITS TRANSFER WITHOUT COMPETITION FROM THE LANGUAGE SERVICE TO CATEGORY A SINCE THE LATTER IS NECESSARILY DIFFERENT IN NATURE FROM THE FORMER AS REGARDS BOTH THE CRITERIA FOR RECRUITMENT AND THE TASKS AND RESPONSIBILITIES ASSIGNED TO THEM .

3 IN THE APPLICANT' S VIEW, SUPPORTED BY THE INTERVENERS, SINCE OFFICIALS IN THE LANGUAGE SERVICE OCCUPY LA POSTS, THEY ALREADY FALL WITHIN CATEGORY A IN THE SAME WAY AS A OFFICIALS; THEY ARE NOT OBLIGED TO TAKE PART IN A COMPETITION IN ORDER TO TRANSFER TO A CATEGORY TO WHICH THEY ALREADY BELONG . IN THE ABSENCE OF ANY ADMINISTRATIVE SERVICE ESTABLISHED UNDER THE SIXTH PARAGRAPH OF ARTICLE 5 ( 1 ) OF THE STAFF REGULATIONS THE APPLICANT CONSIDERSTHAT HE DOES NOT FALL WITHIN ANY OF THE CASES REFERRED TO IN ARTICLE 45 ( 2 ). THE DIFFERENCES ALLEGED TO EXIST BY THE COUNCIL BETWEEN LANGUAGE POSTS AND THOSE OF A OFFICIALS ARE NO GREATER THAN THOSE BETWEEN THE POSTS OF A OFFICIALS ASSIGNED TO DIFFERENT DIRECTORATES-GENERAL . THE LATTER MAY REQUEST A TRANSFER TO A VACANT A POST WITHOUT BEING MET BY ANY LEGAL OBJECTION .

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

5 AS THE COURT HAS ALREADY HELD ( IN ITS JUDGMENT OF 5 DECEMBER 1974 IN CASE 176/83 VAN BELLE V COUNCIL (( 1974 )) ECR 1361 ),

"ARTICLE 45 ( 2 ) ... FORMULATES A FUNDAMENTAL RULE CORRESPONDING TO THE ORGANIZATION OF THE COMMUNITY PUBLIC SERVICE INTO DIFFERENT CATEGORIES REQUIRING DISTINCT QUALIFICATIONS ".

6 IT IS ALSO BECAUSE OF THE SPECIFIC QUALIFICATIONS REQUIRED BY THE SPECIALIZED NATURE OF THE POSTS OF TRANSLATORS AND INTERPRETERS AND SCIENTIFIC OR TECHNICAL POSTS THAT THE STAFF REGULATIONS HAVE DEROGATED FROM THE GENERAL RULES FOR CLASSIFYING PERMANENT POSTS OF THE COMMUNITY INSTITUTIONS IN FOUR CATEGORIES, A, B, C, D . THOSE SPECIALIZED POSTS HAVE THUS BEEN GROUPED TOGETHER TO FORM, RESPECTIVELY, A LANGUAGE SERVICE COMPRISING SIX GRADES EQUIVALENT TO GRADES 3 TO 8 OF CATEGORY A AND SCIENTIFIC OR TECHNICAL SERVICES CONTAINING THE AFOREMENTIONED FOUR CATEGORIES .

7 FOR EACH OF THOSE CATEGORIES, THE LANGUAGE SERVICE AND THE SCIENTIFIC AND TECHNICAL SERVICES, ANNEX I ( A ) AND ( B ) CONTAINS TABLES OF BASIC POSTS AND CORRESPONDING CAREER BRACKETS FOR OFFICIALS IN EACH OF THOSE CATEGORIES AND SERVICES . BY REFERENCE TO THOSE TABLES EACH INSTITUTION MUST, PURSUANT TO ARTICLE 5 ( 4 ), DEFINE THE DUTIES AND POWERS ATTACHING TO EACH BASIC POST IN THE CATEGORIES OR SERVICES .

8 PURSUANT TO ARTICLE 1 ( C ) OF ANNEX III TO THE STAFF REGULATIONS IT IS BY REFERENCE TO THE TYPE OF DUTIES AND TASKS INVOLVED IN THE POST TO BE FILLED THAT THE SELECTION CRITERIA ARE DEFINED WHICH APPLICANTS TO THE COMMUNITY CIVIL SERVICE MUST SATISFY UNDER ARTICLE 28 ( D ) OF THE STAFF REGULATIONS IN ORDER TO BE APPOINTED, FOLLOWING A COMPETITION, TO A PERMANENT POST IN ONE OF THE INSTITUTIONS .

9 PERMANENT POSTS IN THE LANGUAGE SERVICE REQUIRING SPECIAL

LINGUISTIC QUALIFICATIONS ARE THUS FILLED AFTER COMPETITIONS ORGANIZED SPECIFICALLY FOR THE PURPOSE OF ESTABLISHING THE ABILITY OF APPLICANTS TO PERFORM LINGUISTIC DUTIES, WHICH TO THAT EXTENT REQUIRE DIFFERENT QUALIFICATIONS FROM THOSE REQUIRED FOR THE PERFORMANCE OF DUTIES RELATING TO A POSTS .

10 THE SPECIFIC NATURE OF THE DUTIES PERFORMED BY OFFICIALS IN THE LANGUAGE SERVICE IS, MOREOVER, RECOGNIZED BY THE APPLICANT HIMSELF, WHO STATES IN HIS APPLICATION THAT A SPECIFIC TEST OF ABILITY IN THE AREAS OF INTERPRETATION AND TRANSLATION IS NECESSARY FOR THE TRANSFER OF AN A OFFICIAL TO THE LANGUAGE SERVICE .

11 IT FOLLOWS THAT THE DUTIES AND POWERS OF A OFFICIALS ARE DIFFERENT FROM THOSE OF OFFICIALS IN THE LANGUAGE SERVICE . THE SPECIFIC ABILITY OF THE LATTER TO PERFORM TASKS RELATING TO A POSTS MUST THEREFORE BE ASSESSED, AS THE STAFF REGULATIONS NOW STAND, BY MEANS OF COMPETITIONS ORGANIZED SPECIFICALLY TO FILL A POSTS, WHICH A OFFICIALS MUST THEMSELVES PASS PURSUANT TO ARTICLE 28 ( D ) OF THE STAFF REGULATIONS BEFORE BEING APPOINTED TO SUCH POSTS .

12 AS THE COURT HAS ALREADY HAD OCCASION TO POINT OUT ( JUDGMENT OF 21 OCTOBER 1986 IN JOINED CASES 269 AND 292/84 FABBRO AND OTHERS V COMMISSION (( 1986 )) ECR 2983 ), THE TERMS "CATEGORY" AND "SERVICE" ARE USED IN THE STAFF REGULATIONS TO DEFINE TWO DISTINCT CONCEPTS WITH SPECIFIC LEGAL EFFECTS . THE STAFF REGULATIONS PROVIDE FOR CERTAIN SERVICES ( THE LANGUAGE SERVICE AND THE SCIENTIFIC AND TECHNICAL SERVICES ) AND ENVISAGE THE POSSIBILITY OF ESTABLISHING OTHERS, IN ORDER TO PLACE TOGETHER OFFICIALS WHO CARRY OUT PARTICULAR DUTIES FOR WHICH SPECIFIC QUALIFICATIONS ARE REQUIRED AND MAKE POSSIBLE A SEPARATE CAREER

STRUCTURE TAKING INTO ACCOUNT THOSE SPECIAL FEATURES . FURTHERMORE, IT IS CLEAR FROM THE PROVISIONS OF THE STAFF REGULATIONS CONCERNING THE CAREER AND SITUATION OF OFFICIALS THAT A SYSTEMATIC DISTINCTION BETWEEN CATEGORY AND SERVICE IS FUNDAMENTAL TO THEM . INDEED, AT THE HEARING, THE INTERVENERS ARGUED THAT THE DISTINCTION IN SOME PROVISIONS OF THE STAFF REGULATIONS BETWEEN "SERVICES AND CATEGORIES" COULD BE EXPLAINED AS RELATING TO DUTIES OR CAREERS WHICH, DEPENDING ON WHETHER THEY ARE IN A CATEGORY OR SERVICE, ARE IN FACT DIFFERENT .

13 WHATEVER ITS HISTORICAL BACKGROUND, ARTICLE 45 ( 2 ) ADOPTS THE DISTINCTION BETWEEN CATEGORY A AND THE LANGUAGE SERVICE IN THAT TRANSFER FROM THE LANGUAGE SERVICE TO A CATEGORY A POST NECESSARILY INVOLVES LEAVING A SPECIALIST SERVICE AND UNDERTAKING THE PERFORMANCE OF DUTIES AND POWERS RELATING TO A CATEGORY A POST REQUIRING QUALIFICATIONS OTHER THAN LINGUISTIC EXPERTISE . TO THAT EXTENT TRANSFER FROM THE LANGUAGE SERVICE TO A CATEGORY A POST CAN TAKE PLACE ONLY ON THE BASIS OF A COMPETITION, AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 20 JUNE 1985 ( CASE 138/84 SPACHIS V COMMISSION (( 1985 )) ECR 1945 ).

14 IN VIEW OF THE FOREGOING IT MUST BE CONCLUDED THAT THE CLAIM FOR ANNULMENT BASED ON THE INCORRECT APPLICATION OF ARTICLE 45 ( 2 ) MUST BE DISMISSED .

Decision on costs

COSTS

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER ARTICLE 70 OF THOSE RULES, INSTITUTIONS ARE TO BEAR THEIR OWN COSTS IN PROCEEDINGS BROUGHT BY SERVANTS OF THE COMMUNITIES .

Operative part

ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION;

( 2 ) ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .