1.

The submissions which she makes in her application and in her reply are many, but the statement of her submissions makes it clear at once which is the one which raises the most important question of principle and which must be dealt with first. Is a competition internal to the institution, mentioned in Article 29 (1) (b) of the Staff Regulations, only open to officials as Miss Rauch says it is? Or is it also open, as the Commission thinks, to auxiliary staff, it being noted that if so then by parity of reasoning it must also be open to temporary staff? According to the Commission this submission is inadmissible. It says that the decision to allow auxiliary staff to take part in the competition was included in the Vacancy Notice and in the Notice of Competition, which were duly published and the legality of which the applicant did not dispute within the time-limit laid down by Article 91 of the Staff Regulations for appeals to the Court in staff cases. Therefore it is not admissible for Miss Rauch, in asking you to annul measures taken by the Selection Board for the competition, or by the appointing authority which are limited to the application of earlier decisions, to raise objections which in reality only concern those earlier decisions. This claim of inadmissibility should be set aside. Even if proceedings are out of time as regards a measure which is both a decision adversely affecting a person and the first stage of a complex administrative procedure — which seems to be the case both as regards the Vacancy Notice, according to your decision in Lassalle v European Parliament, and as regards the Notice of Competition — the illegality of these measures may be alleged in support of an appeal against the decision which terminates the procedure — in this case the appointment of Miss Kurz. On this point I can do no better than refer you to the opinion which I delivered in the case of Ley, 12 and 29/64. We must therefore decide as to the value of this submission. In support of their arguments both Miss Rauch and the Commission refer in succession to the provisions of Regulation No 31 of the Council and the intention of those who drew it up, and then the case-law represented by your judgment in the case of Wollast, nee Schmitz, of 19 March 1964. I shall now examine these various arguments. Regulation No 31 sets up both the Staff Regulations of Officials of the EEC (as well as of the EAEC) and, in a second section, the Conditions of Employment of ‘Other Servants’ of the Communities, in particular temporary staff and auxiliary staff. Article 1 of the Staff Regulations defines officials as persons appointed ‘as provided in these Staff Regulations to an established post on the staff of one of the institutions of the Communities’. With certain exceptions their recruitment is rendered conditional, particularly by Article 28 (d), upon success in a competition under the procedure laid down by Annex III. Neither Article 28 (d) nor Annex III deals exclusively with general or external competitions. I turn now to Article 29 which as I have recently had occasion to mention lays down the various methods to which the appointing authority may have recourse in order to fill vacant posts. These are in order: — Promotion or transfer within the institution; — The holding of competitions internal to the institution; — Applications for transfer made by officials of other institutions of the three Communities; — Finally the other sorts of competitions. Miss Rauch points out that the competitions internal to the institution come between two other procedures on this list: promotion or transfer. These only apply to persons who are already officials. Therefore, she says, competitions internal to the institution must also apply only to officials. As the Commission points out, the argument is not decisive. This is because the procedures set out in subparagraph (a) and (c) are methods of recruitment without competitions. While it is true that under Article 28 (d) no-one may be appointed as an official unless he has been successful in a competition, the admission of ‘other servants’ to internal competitions is not in itself incompatible with this rule of the Staff Regulations. The applicant then objects that this interpretation would be unjust. It would mean that in order to be appointed to the same post an official would have to take two competitions, one for initial recruitment, and another to be promoted, but auxiliary staff would only have to take one competition which could be described as the one for promotion. Why would that necessarily be contrary to the Staff Regulations? These Regulations make a competition mandatory for appointment as an official on entering the service, and then, by virtue of Article 45 (2), for promotion from one category to another. At this stage an official may very well find himself competing with persons from outside the institution who will be taking such a competition for the first time. Since there is no definition in the Staff Regulations and in particular in Article 29 (1) (b) as to what ‘competitions internal to the institution’ is to mean, one is forced to fall back on the Conditions of Employment applicable to auxiliary staff. And it will be seen at once that the Staff Regulations and the Conditions of Employment, different as they may be, form two parts of one and the same Regulation which thus deals with all the types of staff at the disposal of the Communities. The fact that the position of auxiliary staff is different from that of officials is self-evident. The auxiliary does not have the official's stability. The auxiliary's link with the institution is contractual; he can only be engaged for a precise task which must not include assignment to a post included in the fist of posts, except when he does so as a replacement for a limited period. The actual period of his employment, including any possible renewal of his contract, shall not exceed one year. He does not come under the social security scheme applicable to officials. But in spite of all these differences it remains a fact that the relationship between him and the institution is a relationship of public law. It is in order to help the institution to carry out its task that he is recruited. Article 54 of his conditions of employment makes most of the provisions of Tide II of the Staff Regulations, dealing with the rights and obligations of officials, applicable to him. Finally, by virtue of Article 7 of the Conditions of Employment if he has a contract for an indefinite period he is entitled to vote in elections and stand for election to the Staff Committee provided for in Article 9 of the Staff Regulations, and the Joint Committee may be consulted by the institution or by the Staff Committee on any question of a general nature concerning auxiliary staff no less than temporary staff. These points are enough to show that officials and auxiliaries are not divided into water-tight compartments. They work under different legal frameworks, in different conditions and in different capacities, but in doing so they work together in the pursuit of objectives which are those of the Community. Auxiliaries are already ‘inside’ the institution. In my view this means that we must accept that in the absence of any provision to the contrary in Article 29 they must be able to take part in internal competitions. They thus enter into competition with officials, but even though it is generally admitted that the Staff Regulations are largely based on the system of internal preference, why should this be limited to officials to the exclusion of auxiliary — or temporary — staff, who already take part to a certain extent in the institution's work? Moreover it would scarcely be realistic to overlook the point that the Communities would have little chance of recruiting these servants whom they need, if they did not give them from the beginning certain possibilities of establishment with wider and more favourable conditions than for those coming from outside. Besides, the answer which I suggest to you seems to me to be in line with the judgment of the First Chamber in Case 18/63, Wollast, nee Schmitz, of 19 March last. You are familiar with this case. A member of the auxiliary staff whose contract would in the ordinary course of events have expired on 31 January 1963 secured annulment of the decision not to prolonged her contract beyond this date because the disciplinary nature of the reasons for this decision did not seem to you to be sound in law. Since, at the time when the decision was annulled, an internal competition had been announced with a view to filling the post which she occupied, your order expressly required the defendant institution to allow the applicant to take part in the competition. It is true that Mrs Wollast had been given employment for the first time on 28 July 1959, and Miss Rauch's counsel as a result argues that she was a ‘false auxiliary’ and goes on to say that the solution in her case cannot also be applied to ‘genuine auxiliaries’ namely those who, like Miss Kurz, were engaged after 1 January 1962. But, since this latter date which was when the Staff Regulations came into force, Mrs Wollast's position had been modified and was governed by a new contract made under the rules laid down by Regulation No 31 for the ‘other servants’ and in compliance with the conditions laid down in Article 99 of the new Conditions of Employment. Furthermore I have not found anything in your judgment in Case 18/63 which supports the distinction which the applicant claims to establish restricting the scope of the decision which you took, and this is so in spite of her lengthy observations on this point. Your decision has the result of admitting to an internal competition an auxiliary whose contract was, at the time when the competition was held, governed by Regulation No 31 just as Miss Kurz's contract was. Finally, it is of little importance that Miss Kurz may, as the applicant asserts in her reply, have been mistakenly considered as an auxiliary when she should in fact have been looked upon as a member of the temporary staff. Supposing that to be true it seems to me to be without significance as members of the temporary staff have at least as close a relationship with the institution as auxiliary staff, if not more so. Therefore I would suggest that you discard this submission and come now to Miss Rauch's other arguments which will not detain us so long.