CELEX: 61984CC0269
Language: en
Date: 1986-06-11 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 11 June 1986. # C. Fabbro and others v Commission of the European Communities. # Officials - Article 45(2) of the Staff Regulations. # Joined cases 269 and 292/84.

OPINION OF MR ADVOCATE GENERAL MISCHO
      delivered on 11 June 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      On 11 July 1984 the Commission decided that ‘the candidatures of officials in the Language Service and officials in the Scientific and Technical Services may be taken into consideration for the filling of administrative posts at the initial stage when vacancy notices are issued. Similarly, administrative officials may apply for any vacant post in the Language Service and in the Scientific and Technical Services’ (
            1
         )
      The ‘initial stage when vacancy notices are issued’ is that referred to in Article 29 (1) (a) of the Staff Regulations. It consists in consideration of ‘whether the post can be filled by promotion or transfer within the institution’.
      Messrs Fabbro, Giuffrida and Herbin, applicants in Case 269/84, ask the Court to annul that decision in so far as it provides that the candidatures of officials in the Language Service may be taken into consideration for the filling of administrative posts.
      Mr Scharf, the applicant in Case 292/84, asks the Court to declare that decision illegal and therefore annul the decision of the appointing authority of 30 November 1984 by which it appointed R. T., an official in the Language Service, to a Category A post declared vacant by Notice No COM/1207/84 and the decision of the appointing authority of the same day by which it rejected Mr Scharf's application for that post, by reason of the appointment of R. T.
      The applicants consider that the decision of 11 July 1984 is illegal essentially because it is contrary to Article 45 (2) of the Staff Regulations of Officials of the European Communities.
      I shall deal first of all with the question of admissibility, which concerns only Case 269/84, and then go on to consider the substance of the case.
      A — Admissibility
      
               1.
            
            
               The Commission argues that the application is inadmissible because the applicants have no present and vested personal interest in challenging the decision in issue, which does not adversely affect them inasmuch as it does not directly affect their legal position.
               The Commission considers that, in view of the general nature of the disputed measure, the applicants would be directly concerned only if, by application of that measure, their candidatures had in fact been rejected in favour of an official from the Language Service; since they have not applied for any post in Category A to which an LA official has been transferred they cannot challenge the general measure making such a transfer possible.
            
         
               2.
            
            
               The applicants argue that Article 90 (2) of the Staff Regulations allows officials, if they have first submitted a complaint, to challenge either individual measures adopted in application of a general decision or the general decision itself in so far as it has adversely affected them.
               They argue that the disputed decision constitutes an act adversely affecting them inasmuch as:
               
                        (a)
                     
                     
                        by increasing the number of officials who may submit applications during the initial stage when vacancy notices are issued it limits their chances of mobility;
                     
                  
                        (b)
                     
                     
                        in so far as officials in the Language Service may be transferred to posts in Grades A 6, A 5 and A 4 it restricts their chances of promotion, since the number of posts available for promotion is thus reduced.
                     
                  This situation is aggravated by the fact that the posts of officials in the Language Service who have been transferred cannot be transferred to Category A (argument raised in the reply).
               The applicants argue that the fact that the decision is general in nature does not mean that it is not an administrative act adversely affecting them in so far as it applies, by reason of its content, to a particularly restricted number of officials in Category A who now fulfil or may in the future fulfil the conditions for appointment to vacant administrative posts for which they will have to compete with officials from the Language Service.
               The decision thus has an immediate and clearly-determinable adverse effect on the career prospects of every official in Category A.
               Furthermore, say the applicants, the implementation of the contested decision is likely to prompt the submission of a particularly large number of administrative complaints, followed by applications to the Court. In the interests of the proper administration of justice (principle of procedural economy) the application should therefore be held admissible.
            
         
               3.
            
            
               Let me say right away that this last argument cannot be accepted; in its judgment of 30 June 1983 (Case 85/82 Schloh v Council [1983] ECR 2105) the Court held that an applicant ‘is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for the annulment of an appointment, only such claims as relate to him personally’.
               In my view, that rule is equally valid with regard to a measure of general application.
            
         
               4.
            
            
               I think a distinction must be drawn between the nature of the complaint (which must be personal — I shall come back to that point below) and the nature of the contested decision, which may be individual or general.
               I do not share the view that an application under Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations may be brought only in respect of binding acts of an individual nature. (
                     2
                  )
               An interpretation of Article 90 which effectively ignored the words ‘a measure of a general nature’ in the first indent of Article 90 (2) would not, I think, be acceptable.
               In its judgment of 29 September 1975 (Case 54/75 De Dapper v Parliament [1976] ECR 1381) the Court held admissible an application brought by officials of the Parliament against the refusal of the President of the Parliament to recognize the irregularity of the elections held on 18 March 1975 for the appointment of the Staff Committee.
               The Court held inter alia that ‘it cannot be doubted that the applicants, who were at the same time voters and candidates in the contested elections, are qualified to bring their action and have a legal interest in doing so’ (at paragraph 27).
               In a subsequent judgment on the substance of the case the Court annulled the decision of the President of the Parliament and held that the European Parliament was obliged to disband the improperly elected committee, subject to any measures necessary in the interests of legal certainty (judgment of 9 March 1977 in Case 54/75 De Dapper v Parliament [1977] ECR 471).
               Those judgments thus concerned a measure of a general nature.
               Such measures may be contested (under the conditions which I shall set out below) without regard to the rules laid down in the second paragraph of Article 173, for Article 179 of the EEC Treaty and Articles 90 and 91 of the Staff Regulations ‘create, in the context of the Community, a special type of action as regards both subject-matter and those entitled to make use of it’ (Opinion of Mr Advocate General Trabucchi in Case 18/74 Syndicat General du Personnel v Commission [1974] ECR 933 at p. 948).
               That approach seems to me to be confirmed by two judgments in which the Court has held in particular that a dispute between an official and the institution to which he is answerable concerning compensation for damage, where it originates in the relationship of employment between the person -concerned and the institution, is pursued under Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations and lies outside the sphere of application of Articles 178 and 215 of the Treaty (see the judgments of 22 October 1975 in Case 9/75 Meyer-Burckhardt v Commission [1975] ECR 1171 and 17 February 1977 in Case 48/76 Reinarz v Commission and Council [1977] ECR 291).
            
         
               5.
            
            
               In order better to define the issue, let me set out the conditions under which applications may be made to the Court against a measure in the nature of a regulation, such as a Council regulation amending the Staff Regulations.
               
                        (a)
                     
                     
                        When an official of the Communities wishes to contest a regulation he may choose to bring an application under the second paragraph of Article 173.
                        In that case, however, the applicant must show that the act in question, although in the form of a regulation, is a decison of direct and individual concern to him. The Court has never held that to be the case.
                        Such an action follows the rules governing ordinary applications also with regard to the question of costs : it is Article 69 (2) and not Article 70 of the Rules of Procedure which applies (see the judgment of 26 February 1981 in Case 64/80 Giuffrida and Campogrande v Council [1981] ECR 693).
                     
                  
                        (b)
                     
                     
                        The mere submission of a complaint under Article 90 of the Staff Regulations is not sufficient to create a judicial remedy against a measure in the nature of a regulation.
                        The procedure provided for in Article 90 (2) applies only where the appointing authority has taken a decision or has refrained from adopting a measure prescribed by the Staff Regulations and where such conduct by the appointing authority constitutes an act adversely affecting the official (see the judgments of 16 July 1981 in Case 153/79 Bowdenv Commission [1981] ECR 2111, in particular paragraph 13 at p. 2122, and Case 154/79 Biller v Parliament [1981] ECR 2125 at p. 2138).
                     
                  
                        (c)
                     
                     
                        A measure in the nature of a regulation may, however, be contested by way of an objection of illegality.
                     
                  ‘Article 184 of the EEC Treaty gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a decision addressed to him, the validity of the provisions of regulations which form the legal basis thereof’ (see the judgment of 19 January 1984 in Case 262/80 Andersen v Parliament [1984] ECR 195, at paragraph 6, p. 203).
               A salary statement, even if it does no more than automatically apply the provisons of a Council regulation to the particular circumstances of an individual official, may constitute a measure adversely affecting him (ibid at paragraph 4).
            
         
               6.
            
            
               The first question which therefore arises in this case is whether the Commission decision of 11 July 1984 constitutes a normative measure, to be treated as a regulation (in which case the application would in any event be inadmissible because that measure was not followed by a decision of the appointing authority) or a decision of the appointing authority of a general nature (in which case it may be the subject-matter of a direct appliction, the admissibility of which requires proof that the measure has adversely affected the applicant).
               It will be noted that the decison in question
               
                        (a)
                     
                     
                        is not in the form of a regulation;
                     
                  
                        (b)
                     
                     
                        was issued by an institution which has no power to amend the Staff Regulations and does not claim to do so;
                     
                  
                        (c)
                     
                     
                        applies only to officials in the service of the Commission;
                     
                  
                        (d)
                     
                     
                        seems even to be only experimental in nature.
                     
                  In my view this measure cannot therefore be compared with a regulation.
               It is therefore a decision of the appointing authority of a general nature.
               I must now examine the circumstances in which such a decision may constitute an ‘act adversely affecting’ an official.
            
         
               7.
            
            
               The Court has held on several occasions that ‘only those acts capable of directly affecting a specific legal position can be regarded as adversely affecting an official’. (
                     3
                  )
               In its judgments of 8 October 1974 in Case 175/75 Union Syndicale, Massa and Kortner v Council (
                        4
                     ) and Case 18/74 Syndicat General du Personnel des Organismes Européens v Commission (
                        5
                     ) the Court held that, ‘although Article 179 is available as a basis on which arrangements may be made for settlement by the Court of collective as well as individual disputes between the Community and its servants, this does not alter the fact that the procedure for complaint and appeal established by Articles 90 and 91 of the Staff Regulations is designed to deal exclusively with individual disputes’.
               
               I interpret that formula as meaning that even if the measure adopted is general in nature it must affect the applicant personally, à condition which cannot be met by a union.
               In the Leclerca judgment (
                     6
                  ) the Court held that the contested Commission ‘which relates in general terms to the use of appropriations for the conclusion of contracts for studies and surveys with persons or companies outside the Commission, cannot be regarded as an act adversely affecting a former official within the meaning of Article 91 of the Staff Regulations. In so far as Mr Baichère's letter of 14 October 1979 is to be regarded not as mere information, given by an official of the Commission to a former colleague, but as embodying a decision to withhold a contract for a study by virtue of the Commission's decision of 26 June 1974, the refusal to grant the contract was addressed to the company Science and not to the applicant; therefore it concerned the applicant neither directly nor individually.’
               
               For reasons which I shall explain in a moment, I think it would have been better to use the word ‘personally’ rather than ‘individually’ in that judgment.
               In the Deshormes judgment, (
                     7
                  ) which the Commission quoted in this case without expressly referring to it, the Court used both the criterion of immediate and direct effects on the legal situation of the person concerned (paragraph 10) and that of a ‘legitimate, present, vested and sufficiently clear interest’ (paragraph 12).
               Finally, let me refer to the Schloh judgment, cited above, in which the Court used the expression ‘such claims as relate to him personally’.
            
         
               8.
            
            
               It must now be seen what result is obtained by applying those criteria to the application brought by Messrs Fabbro, Giuffrida and Herbin.
               The answer to that problem is not an easy one, and this may be a borderline case.
               In favour of admissibility one might refer to the fact that the contested decision had the immediate effect of increasing competition between the officials concerned by a transfer or a promotion, either by increasing the number of possible candidates or by diminishing the number of available posts. (Once L/A officials have been appointed to A 4 or A 6 posts, those posts are no longer available for the promotion of officials in Grades A 5 or A 7).
               It may therefore be said that in a certain manner the Commission decision ‘directly affects a specific legal situation’. The particular situation is an abstract one, that is to say the set of rules governing the admission of applications during the first stage when notices of vacant posts are published.
               However, the fact that the legal situation is changed in an abstract manner is not in itself enough to make the application inadmissible. The same is true with regard to the fact that, as the applicants themselves pointed out, the Commission decision affects all officials in Category A who may now or in the future be candidates for transfer or promotion.
               I am strongly of the view that it would not be correct to apply in regard to Articles 90 and 91 of the Staff Regulations the principles which the Court has laid down in connection with the second paragraph of Article 173, to the effect that an application brought by an individual against a regulation is inadmissible even where it is possible to determine more or less precisely the number and even the identity of the persons to whom the measure in question applies at any given time.
               In my opinion the criteria for distinguishing between the two types of action is the following:
               Decisions adopted in the form of a regulation, referred to in the second paragraph of Article 173, must be of direct and individual concern to the applicants. As the Court has held, the measure must ‘affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individually just as in the case of the person addressed’ (judgment of 18 November 1975 in Case 100/74 CAM v Commission [1975] ECR 1393).
               Articles 90 and 91, on the other hand, expressly permit the bringing of actions against measures of a general nature (so long as they are decisions of the appointing authority), that is to say against measures which apply to objectively determined situations and involve legal effects in respect of categories of persons regarded generally and in the abstract. (In defining the measures in respect of which actions may be brought, I have deliberately used the words frequently used by the Court in the context of Article 173 to hold that an action is inadmissible.)
               It is necessary merely that the persons in question, as is normal in the case of complaints through administrative channels, should be directly affected by the measures in question and have a present and vested personal interest in bringing an action.
            
         
               9.
            
            
               It is difficult to see how the adoption of the decison of 11 July 1984 can in itself give rise to such a situation.
               A particular Category A official may in fact never apply for transfer to a post for which an official in the Language Service is also a candidate.
               He may, on the other hand, apply and actually obtain the post, in preference to one or more officials from the Language Service.
               Similarly, a particular official may have no difficulty in obtaining promotion, either to a particular post which has been declared vacant or by way of the annual promotion procedure.
               The total number of posts to be filled by transfer or promotion may vary from year to year according to a number of factors, such as the transfer or promotion of the persons who formerly held them, death, resignation, retirement, leave on personal grounds, transfers to other institutions and the creation of new posts.
               I think therefore that the prospect of the transfer of officials from the Language Service to Category A can have only a potential effect on the ‘chances of mobility’ or ‘prospects of promotion’ of Category A officials, an effect too uncertain to give rise immediately to a ‘present and vested personal interest’. (
                     8
                  )
               In their reply and during the oral procedure counsel for the applicants argued that such an interest would in any event arise where an official on the annual list of persons eligible for promotion could not in fact be promoted since there was not a sufficient number of posts.
               Mr Herbin, he says, could not be promoted to A 6 at the end of 1984 because there were not 68 but only 67 available posts. That was allegedly due to the fact that two officials in Grade L/A 6 had been transferred to A 6 posts shortly before.
               It must be pointed out, however, that that was not yet the case when this application was brought, and that the application is not directed towards the annulment of the Commission's decision regarding promotions from A 7 to A 6 for 1984; indeed, Mr Herbin does not appear to have submitted a complaint against that decision.
               I must therefore conclude that the Commission decision of 11 July 1984 is not a measure adversely affecting the three applicants and that their application is therefore inadmissible.
            
         
               10.
            
            
               Finally, I must state my views concerning the particular problem of admissibility which arises with regard to Mr Herbin's application, for the Court has held on several occasions that the time-limits for lodging complaints and appeals are a matter of public policy and are not subject to the discretion of the parties or the Court (see in particular the judgment of 12 July 1984 in Case 227/83 Moussis v Commission [1984] ECR 3133 at paragraph 12, p. 3146).
               The edition of the Infor-Rapide bulletin publishing the contested decision bears the date 18 July 1984. Mr Herbin's complaint was registered at the General Secretariat of the Commission on 19 October 1984.
               According to the second indent of Article 90 (2) of the Staff Regulations the period for submitting a complaint starts to run ‘on the date of publication of the act if it is a measure of a general nature’.
               When asked whether the Infor-Rapide bulletin had in fact been available in all the buildings housing Commission departments in Brussels on 18 July 1984, the agent of the Commission replied that his institution did not wish to press the objection of inadmissibility which it had raised with regard to Mr Herbin's application.
               It is thus not established that the period for lodging a complaint started to run on 18 July 1984.
               Furthermore, Article 90 (3) provides that officials' complaints must be submitted through their immediate superiors. Since Mr Herbin's complaint was registered at the General Secretariat, situated in another building, on 19 October 1984, one may suppose that it was submitted to his immediate superior on 18 October. The Commission has in any event not shown otherwise.
               Finally, let me add that in a previous case the Court seems to have applied implicitly and by analogy the provisions of Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time-limits (Official Journal, English Special Edition 1971 (II), p. 354). (
                     9
                  )
               Under that regulation the dies a quo is not to be considered as falling within the period in question. The period begins to run at the beginning of the first hour of the first day and ends with the expiry of the last hour of whichever day in the last month falls on the same date as the day from which the period runs.
               Even if 18 July 1984 was regarded as the dies a quo, therefore, the period would not have expired until midnight on 19 October.
               Mr Herbin's complaint was therefore not out of time.
               The application brought by Mr Scharf (Case 292/84) presents no problem of admmissibility.
               I may therefore go on to deal with the substantive issue, which is the same in Cases 269/84 and 292/84.
            
         B — The substance of the case
      Let me emphasize first of all, in so far as it may be necessary, that it is obviously not for me to pass judgment on the policy of ‘staff mobility’ and of ‘the removal of barriers between the Language Service and other departments’ which the Commission has decided to pursue.
      Nor is the capability of the official whose appointment is contested by Mr Scharf in question here.
      The sole issue is the compatibility with the Staff Regulations in their present form of that part of the Commission's decision of 11 July 1984 which provides that applications from officials in the Language Service may be taken into account for the filling of administrative posts at the first stage when vacancy notices are published (since it is to that issue that the application is restricted).
      It will be recalled that the first stage consists in examination of ‘whether the post can be filled by promotion or transfer within the institution’.
      It is true that in its defence (at page 4) the Commission states that its decision ‘concerns only transfer and not promotion’.
      It is clear, however, that the wording of the decision is not restricted in that way; the question of promotion must also be considered, therefore.
      In support of their action the applicants rely mainly on Article 45 (2) of the Staff Regulation, and the Commission agrees that the main issue raised by this case is the interpretation of that provision.
      It seems to me, however, that Articles 7 (1) and 45 (1) of the Staff Regulations are of at least equal importance.
      Article 7 (1) provides 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.’
      Article 45 (1) provides that:
      
         ‘Promotion ... shall be effected by appointment of the official to the next higher grade in the category or service to which he belongs.’
      
      In my view those provisions preclude the transfer or promotion (in the technical sense) of an official in the Language Service to a Category A post (and vice versa). (
            10
         )
      For the sake of completeness, however, let me also consider the arguments which the parties have drawn from Article 45 (2), which provides as follows:
      ‘An official may be transferred from one service to another or promoted from one category to another only on the basis of a competition.’
      According to the applicants, that provision requires that a competition should be held each time an official from the Language Service is appointed to a Category A post or vice versa. In their application they emphasize the words ‘d'une catégorie à un -autre cadre’ [from a category to another service]. (
            *2
         )
      The applicants' main argument is that that requirement is justified by the fact that the duties of Category A officials and officials in the Language Service are different and require different training and professional qualifications.
      The Commission, on the other hand, considers that the wording of that provision requires a competition only where an official passes:
      
               (i)
            
            
               from one service to another, for example from the Language Service to the Scientific and Technical Services or vice versa (the general Category A is not, it says, to be regarded as a service) ;
            
         
               (ii)
            
            
               from one category to a higher one, for example from Category B to Category A.
            
         In the Commission's view, each official belongs in the first place to a category, and he retains that classification when he is assigned to a service.
      A transfer from the Language Service to Category A thus constitutes a transfer from a category within a service to a post in the same category but not in a specific service (similarly, a transfer from A to L/A is to be regarded as a transfer within the same category).
      What attitude should we take to those arguments?
      
               1.
            
            
               As a matter of simple common sense it would seem reasonable to say that Article 45 (2) speaks of two possibilities, that is to say,:
               movement from one service to another;
               movement from one category to a higher one.
               An interpretation based on what might be called a mathematical combination of the words, (
                     *3
                  ) however, might lead one to envisage two other possibilities, that is to say:
               movement from a service to a higher category;
               movement from a category to another service.
               Since L/A officials undoubtedly belong to a service, the two possibilities to be taken into account are therefore
               movement from one service to another;
               movement from a service to a higher category.
               With regard to the first possibility, one might be tempted to conclude that it does not apply, unless, in relation to the Language Service, Category A constitutes another service. That question can be resolved only by examination of the other relevant provisions of the Staff Regulations, to which I will return in a moment.
               In support of the second possibility reference may be made to the fact that Category A contains two further grades, and that it is therefore, if not a higher category, at least a category which offers greater prospects of advancement than those offered by the Language Service.
            
         
               2.
            
            
               . Examination of the provisions defining the term ‘service’ gives rise to the following conclusions:
               According to Article 5 (1), ‘the posts covered by the Staff Regulations shall be classified, according to the nature and importance of the duties to which they relate, in four categories A, B, C and D in descending order of rank. Category A shall comprise eight grades, ... By way of derogation from the preceding provisions, however, posts coming within the same specialized professional field may, in accordance with the procedure for revision of the Staff Regulations, be formed into services embracing a number of grades of one or more of the foregoing categories.’
               On reading that provision one might conclude that a service which contains only grades belonging to a single category may be considered to form part of that category. What, then, is the situation of a service which contains grades of several categories? Do officials of the same service belong to a different category according to the grades which they hold?
               In my view the ambiguity of Article 5 (1) is clarified by Article 5 (2), which provides that:
               ‘Posts of translators and interpreters shall be grouped in a language service designated by the letters L/A, comprising six grades equivalent (Fr: ‘assimilés’) to Grades 3 to 8 of Category A ... ’.
               In view of that provision I do not think it possible to say, as the Commission does, that each official belongs in the first place to a category and that he retains that classification when he is assigned to a service.
               Grades L/A 3 to L/A 8 are merely placed on the same footing (Fr. ‘assimilés’) (
                     *4
                  ) as Grades A 3 to A 8. There is no need to place grades on the same footing as grades in a given category if they already belong to that category.
               Furthermore, as I have already pointed out, the Language Service contains only six grades whereas Category A contains two more.
               It cannot be said, therefore, that an official belongs first to Category A and then to the Language Service, and movement from L/A to A cannot be regarded as movement ‘from one category to an equivalent category’. As we have seen, one night even argue that it is really a transfer ‘from one service to a higher category’.
               Still less can movement from A to L/A be regarded as a transfer within a single category, since the range of grades in the Language Service is less wide.
            
         
               3.
            
            
               The Commission accepts that Category A cannot be regarded as the ‘general’ or ‘administrative’ service.
               Certainly, terms of that kind are not used in the Staff Regulations.
               It is nevertheless clear that when an official from the ‘specialized professional field’ which is the Language Service moves to an administrative post in Category A he leaves his service.
               Conversely, when an official moves from Category A to the Language Service he joins, if not ‘another’ service, at least ‘a service’.
               May we not take one step further and say that he has in fact moved from one service to another?
               I think that by establishing the Language Service and the Scientific and Technical Services the Staff Regulations automatically creasted, by way of contrast, a ‘general service’ or ‘administrative service’ which contains all officials who do not belong to one of those two services.
               Seen from the point of view of the Language Service, officials in Category A necessarily belong to another service or ‘Sonderlaufbahn’, to use the particularly strong expression used in German.
               Indeed, the decision of 11 July 1984 tacitly accepts that, since it uses the terms ‘administrative post’ and ‘administrative officials’ !
            
         
               4.
            
            
               Reading Articles 7 (1), 45 (1) and 45 (2) in conjunction one may arrive at the following ‘system’, which seems to me to be logical and coherent:
               
                        (a)
                     
                     
                        A candidate for a post as an official in one of the European institutions must take part in a competition intended to ascertain his suitability for a post declared vacant in a particular category (A, B, C or D) or service (Language Service or Scientific or Technical Service).
                        If he is successful in the tests he will be appointed to that post.
                     
                  
                        (b)
                     
                     
                        Subsequently, the official may be transferred to a post in the same grade in his category or service.
                     
                  
                        (c)
                     
                     
                        An official who is promoted is appointed to the next higher grade in the category or service to which he belongs.
                     
                  
                        (d)
                     
                     
                        If he wishes to leave the category or service to which he belongs, he must take part in a futher competition.
                     
                  Such a movement constitutes neither transfer nor promotion, but simply a ‘passage’. (
                     *5
                  )
               As Mr H. Henrich's has put it, it is a horizontal or vertical change of career path. (
                     11
                  )
               That view of the matter seems to me to be confirmed by the judgment of the Court of 5 December 1974 (Case 176/73 Van Belle v Council [1974] ECR 1361, 1372) even if that case concerned a movement from one category to a higher one.
               After referring to the defendant's argument to the effect that Article 45 (2) ‘merely rules out the possibility of promotion where a vacant post is filled by the movement of an official from one category to another, but refers, in respect of other cases, to the different recruitment possibilities provided for by Article 29, in both paragraph (2) and paragraph (1)’, the Court held that:
               ‘Article 45 (2) does not have the purely negative scope attributed to it by the defendant, but, on the contrary, formulates a fundamental rule corresponding to the organization of the Community public service to different categories requiring distinct qualifications.
               
               The very words ‘only on the basis of a competition’ indicate not only that promotion is not possible but that only a competition is admissible.
               
               Moreover, if the provision at issue were concerned only to exclude promotion, while leaving open the possibility of other methods of recruitment, it would be superfluous, since promotion is already ruled out for the purposes of movement between categories by Article 45 (1). ’
               
               Reference may also be made to the judgment of the Court in the Besnard cae (judgment of 13 July 1972 in Joined Cases 55 to 76, 86, 87 and 95/71 [1972] ECR 543).
            
         
               5.
            
            
               The fact that, from the point of view of the Language Service, Category A constitutes another service is further demonstrated by the wording of other provisions of the Staff Regulations which draw a very clear distinction between the two types of posts.
               Article 5 (3) provides that identificai conditions of recruitment and service career are to apply to all officials belonging to the same category or the same service.
               The Staff Regulations thus do not provide that the conditions of recruitment and service career must be the same for category A as for the Language Service, or vice versa.
               Equal treatment is required within Category A on the one hand and within the Language Service on the other.
               It is thus clear that they constitute two separate streams. Leaving aside Article 7 (1) and 45 (1), to which I have already referred, that is further demonstrated by the following provisions:
               Article 7 (2) : Temporary postings: an official may occupy temporarily only a post in a career bracket in his category or service which is higher than his substantive career bracket.
               Article 31 (1): Appointment of officials in Category A or the Language Service, to the starting grade of their category of service.
               Article 39 (e): Reinstatement after secondment: an official must be reinstated in the first post corresponding to his grade which falls vacant in his category or service.
               Article 40 (4) (d) : Reinstatement after leave on personal grounds: an official must be reinstated in the first post corresponding to his grade which falls vacant in his category or service.
               Article 41 (3), second paragraph: Rights of an official assigned non-active status: An official has priority for reinstatement in any post in his category or service corresponding to his grade.
               Article 102 (4) (b): Establishment of officials in the Language Service: A derogation, with regard to officials in that service, from Article 102 (1), which concerns in particular officials in Category A.
               Annex VIII: Article 14, second paragraph: Reinstatement after a period of invalidity. Any official must be reinstated in the first post which falls vacant in his category or service.
               It follows from all the foregoing that for the purposes of the interpretation of Article 45 (2), movement from the Language Service to Category A must be regarded as movement to ‘another service’ and can therefore take place only on the basis of a competition.
               That is what the Court has already held in its judgment of 20 June 1985 in Case 138/84 (Spachis v Commission [1985] ECR 1939) where it twice used the expression ‘cadre administratif’ [administrative service] (
                     *6
                  ) and stated that under Article 45 (2) a transfer from the Language Service to an administrative post ‘could take place only on the basis of a competition’ (paragraph 10).
               That interpretation was shared by the Commission until 1984. It is still that of the Council (see the letter of 6 November 1984 from the Director General for Personnel and Administration at the Council, attached to the rejoinder).
               For all those reasons I therefore propose that the Court confirm its judgment in Case 138/84 (Spachis) and, with regard to Case 292/84 between Mr Scharf and the Commission:
               
                        (a)
                     
                     
                        Declare illegal the Commission's decision of 11 July 1984 in so far as it permits the consideration of applications from officials in the Language Service for the filling of administrative posts at the initial stage when vacancy notices are issued;
                     
                  
                        (b)
                     
                     
                        Annul the decision of the appointing authority of 30 November 1984 by which the Commission appointed R. T., an official in the Language Service, to the post declared vacant by Vacancy Notice No COM/1207/84;
                     
                  
                        (c)
                     
                     
                        Annul the decision of the appointing authority of 30 November 1984 rejecting Mr Scharf's application for the post which was the subject-matter of Vacancy Notice No COM/1207/84;
                     
                  
                        (d)
                     
                     
                        Order the defendant to pay the costs, pursuant to Articles 69 (2) and 73 (b) of the Rules of Procedure.
                     
                  With regard to Case 269/84, between Messrs Fabbro, Giuffrida and Herbin and the Commission, I propose that the action should be declared inadmissible. As a matter of strict law that should entail the payent by the applicants of the costs, subject to the application of Article 70 of the Rules of Procedure.
            
         (
            *1
         )	Translated from the French.
      (
            1
         )	Text published in Infor-Rapide [Staff Information Bulletin] No 138 of 18 July 1984
      (
            2
         )	See the Opinion of Mr Advocate General Capotorti in Case 167/80 (Curtis v Commission and Parliament [19811 ECR 1499 at pp. 1525 and 1526) and the Opinion of Mrs Advocate General Rozès in Joined Cases 28 and 165/80 Leclercq v Commission [1981] ECR 2251 at p. 2260).
      (
            3
         )	Judgments of 1 July 1964 in Cases 26/63 Pisloj v Comminuti [1964] ECR 341 and Case 78/63 Huber v Commisiion [1964] ECR 367.
      Judgment of 10 December 1969 in Case 32/68 Granelli v Commission [1969] ECR 505. Judgment of 11 July 1974 in Joined Cases 177/73 and 5/74 Reharzv Comminimi [1974] ECR 819 at p. 828.
      (
            4
         )	[1974] ECR 917 at p. 926.
      (
            5
         )	[1974] ECR 933 at p. 945.
      (
            6
         )	Judgment of 17 September 1981 in Joined Cases 28 and 165/80 [1981] ECR 2251 at p. 2257.
      (
            7
         )	Judgment of 1 February 1979 in Case 17/78 [1979] ECR 189 at p. 197.
      (
            8
         )	Let me add, for what it may be worth, that in the judgment of 25 November 1976 (Case 123/75 Küster v Parliament [1976] ECR 1701 at paragraphs 10 to 12), the Court held that ‘although Anicie 29 (1) (a) of the Staff Regulations provides that, before filling a vacant post ¡n an institution, the appointing authority shall first consider whether the post can be filled by promotion or transfer within the institutions, it does not give officials who fulfil the conditions for promotion a personai right to promotion,’ and that ‘promotion shall be exclusively by selection’.
      (
            9
         )	Judgment of 26 November 1981 in Case 195/80 Michel v Parliament [1981] ECR 2861.
      (
            10
         )	See A. M. Euler, Europäisches Beamtenstatut, Carl Heymanns Verlag K. G., p. 90 (Volume I) and page 359 (Volume II) A (4) 2.
      (
            *2
         )	Translator's note: This argument reflects the wording of the French version of the staff Regulations, which speaks of ‘le passage d'un fonctionnaire d'un cadre ou d'une catégorie à un autre cadre ou à une catégorie supérieure’.
      (
            *3
         )	Translator's note: Thai is to say, the wording of the French version.
      (
            *4
         )	Translator's note: The French word ‘assimilé’ implies a lesser degree of identity than the word ‘equivalent’ used in the English version.
      (
            *5
         )	Translator's note: The French version of Article 45 (2) uses this neutral term (equals ‘movement’), whereas the English version speaks of transfer and promotion.
      (
            11
         )	‘Horizontaler und vertikaler Laufbahnwechscl’, in H. Henrichs: Die Rechtsprechung des Europäischen Gerichtshofs in Pcrsonalsachen, Europarcchl 1980, p. 138).
      (
            *6
         )	Translator's note: The English translation of that judgment follows the strict wording of the Staff Regulations and thus uses the expression ‘an administrative post’.