2.

There is no doubt that the present case falls within those governed by the Additional Negotiating Protocol concluded on 5 April 1978 between the Secretary-General of the Council and the organizations representing the staff. The text of the Protocol is contained in Staff Note No 77/78 of 14 April 1978 issued by the General Secretariat of the Council. The Protocol provides, under paragraph (1) of point IV thereof, that: “Any post which becomes available ... shall be communicated to the staff in the form of a notification of transfer, together with a description of the duties and an invitation to submit applications. The immediate superior shall be at liberty to choose either from candidates applying for transfers as a result of such notification or from other candidates. This choice may be made only in accordance with the criteria of the interests of the service.” However, it is also necessary to have regard to Article 7 (1) of the Staff Regulations of Officials. That provision states that: “The appointing authority shall, acting solely in the interest of the service and without regard to nationality, assign each official by appointment or transfer to a post in his category or service which corresponds to his grade. An official may apply for a transfer within his institution.” The parties hold contrasting views on the relationship between the aforementioned rules. According to the submissions for the Council, the purpose of the procedure defined in the Protocol is to provide both the administration and the staff, fully and speedily, with information which is of use in filling vacant posts in a prompt and rational manner by means of transfers within the institution. It allows both the vacancy and the criteria on the basis of which the administration proposes to fill the vacancy to be brought to the knowledge of interested officials in good time and, at the same time, it allows officials' aspirations to be brought to the notice of the administration. Such a procedure, it is maintained, has a purely exploratory and preliminary character and is accordingly wholly distinct from transfers governed by Article 7 of the Staff Regulations. The principle difference lies in the fact that under the procedure defined in the Protocol the appointing authority is not bound to decide upon requests for a transfer, whereas Article 7 of the Staff Regulations places such a duty on the administration in relation to the ordinary procedure. However, according to the submissions for the applicant, the rules of the Protocol must be construed within the framework of Article 7 of the Staff Regulations. Those rules in fact define the specific detailed rules for filling vacant posts but do not affect the nature of requests for transfer, which continue to be governed by Article 7 (1) of the Staff Regulations. Therefore, it is always for the appointing authority, and for it alone, to take a decision upon a request of that kind. It appears to me that the latter interpretation should be upheld. In the first place, the Protocol in fact speaks of “transfer” thus employing the same terminology as Article 7 of the Staff Regulations. Secondly, it is not possible for the Protocol to derogate from the Staff Regulations by conferring on officials of intermediate rank power to decide on applications for transfer, since an agreement with trade unions only involves the placing on the institution participating therein of self-imposed limits on the exercise of its own powers in regard to relations with the staff and certainly cannot amend the Staff Regulations, which have the status of a regulation. Thirdly, the text of the agreement with the trade unions does not justify the notion that it seeks to introduce a procedure which is independent of that laid down by the Staff Regulations. In particular, the power to select the official to be transferred, which the Protocol confers on the immediate superior in the department to which the transfer is to be made, may and must be construed in harmony with the power to decide on transfers which, by virtue of Article 7 of the Staff Regulations, resides with the appointing authority. I would observe in this regard that the possibility of discerning in the aforementioned provisions of the Protocol a delegation by the appointing authority to the immediate superior of the power to decide on transfers must be ruled out. In fact, it must not be forgotten that pursuant to the Council Decision of 14 May 1962 (Official Journal, English Special Edition 1963-1964, p. 4), “the powers conferred by the Staff Regulations of Officials on the appointing authority ... shall ... be exercised ... by the Secretary-General” and that he, in turn, is authorized to sub-delegate to the Director-General of Administration all or part of his powers in regard to officials in Categories B, C and D but not, however, in regard to officials in Category A, to which the applicant belongs. It must be borne in mind moreover that the Protocol speaks generally of “the immediate superior” and thus does not identify with the necessary clarity the person to whom the power was allegedly delegated. Accordingly, the argument that the Protocol contains a delegation of power must be rejected. In my opinion, a different solution may be found. The right of selection which the Protocol accords to the immediate superior is to be understood as meaning that the administration has promised the staff organizations that it will follow the point of view held by the immediate superior concerned on the filling of the vacant post and thus satisfy the requirements of the service in the most appropriate manner. But notwithstanding that, the power of formally deciding on applications for transfer remains, in accordance with the Staff Regulations, in the hands of the appointing authority and therefore, as we have seen, in the case of officials in Category A it may not be exercised otherwise than by the Secretary-General of the Council.