CELEX: 61976CC0005(01)
Language: en
Date: 1977-09-29
Title: Opinion of Mr Advocate General Mayras delivered on 29 September 1977. # Heinz Günther Jänsch v Commission of the European Communities. # Case 5-76.

OPINION OF MR ADVOCATE-GENERAL MAYRAS
   DELIVERED ON 29 SEPTEMBER 1977 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   Following the Court's judgment of 15 June 1976 I must now consider the substance of the action brought by Mr Jänsch. I shall analyse the applicant's claims in the reverse order to that in which he makes them.
   
            I —
         
         
            The lawfulness or ‘inapplicability’ of Article 92 of the Staff Regulations.
            Article 45 (2) of the Staff Regulations provides 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’.
            Nevertheless the second paragraph of Article 98 under Title VIII of the Special Provisions Applicable to Officials in the Scientific or Technical Services of the Joint Nuclear Research Centre of the European Atomic Energy Community provides an express derogation from this rule.
            That article provides that ‘Article 45 (2) shall not apply to officials covered by Article 92’.
            Article 92 is also contained in Title VIII and provides that the special provisions are applicable ‘to officials of the European Atomic Energy Community who occupy posts in the field of nuclear science calling for scientific or technical qualifications and who are paid from appropriations in the research and investment budget’.
            Three conditions thus require to be fulfilled:
            
                     1.
                  
                  
                     To be a scientific or technical official;
                  
               
                     2.
                  
                  
                     In the nuclear sphere;
                  
               
                     3.
                  
                  
                     To occupy a post paid from appropriations in the research and investment budget.
                  
               Before his leave on personal grounds the applicant was paid from the research and investment budget. But on 26 September 1973 he was reinstated outside the Joint Nuclear Research Centre with the Directorate-General for Energy, Euratom Safeguards Directorate in Luxembourg (inspection of the nuclear installations of the EAEC), in a post of Assistant in Grade B 3 listed in Annex I A to the Staff Regulations, a post which is paid from appropriations in the operating budget.
            The applicant, who has indeed scientific or technical qualifications in the nuclear sphere, sees in the refusal to apply to him the provisions of the second paragraph of Article 98 a violation of the principle of equality between officials since persons possessing the same qualifications and carrying out the same duties are treated differently according to the budget from which they draw their salaries.
            It is not however possible to agree with the applicant in this respect without bringing the very policy of the Community authorities in the nuclear sphere into question before the Court.
            The conditions described by the first paragraph of Article 92 are cumulative and the last is not simply ‘expletive’: it is not sufficient to have scientific or technical qualifications in the nuclear sphere to benefit from the derogation contained in the second paragraph of Article 98, for in addition it is necessary to be paid from appropriations in the research and investment budget.
            The formal distinction between operating budget and research and investment budget is not capable of involving a substantial infringement of the rule of equality of treatment of officials on the ground that they belong to different categories, for it is expressly contained in Article 174 of the Treaty establishing the European Atomic Energy Community which provides on the one hand:
            ‘(1)   The expenditure shown in the operating budget shall include in particular:
            
                     (a)
                  
                  
                     administrative expenditure;
                  
               
                     (b)
                  
                  
                     expenditure relating to safeguards and to health and safety.’
                  
               On the other hand:
            ‘(2)   The expenditure shown in the research and investment budget shall include in particular:
            
                     (a)
                  
                  
                     expenditure relating to the implementation of the Community research programme …’
                  
               Article 7 of the Treaty provides that the research programmes shall be drawn up for a period of not more than five years. Actually so far the programmes have been approved for periods of three or four years at the most.
            It is the same in the Member States: the budgetary provisions lay down such differences in connexion with the rules applicable to officials and other staff to take account of the exceptional requirements which may arise from the adoption of programmes involving a reduction in the number of posts included in the lists of posts paid from appropriations for research.
            The Community provisions governing officials paid from appropriations in the research and investment budget ensure that they have the independence necessary to peform their duties and certain advantages are given to them with regard to salary (Article 97, possibility of the award of an advance in step in recognition of exceptional merit; Article 99, possibility of the award of a bonus for exceptional service; Article 100, special allowance for particularly arduous working conditions and so on).
            But these advantages have as a counterpart a much greater freedom of action on the part of the institutions and a ‘flexibility’ of the structures by reason of the very nature of the programmes. The conditions of the ‘normal’ career are the price for stability and permanence whilst the contingent and developing nature of nuclear research programmes is compensated for by the advantages which I have referred to. Such a system has been introduced to prevent the Joint Research Centre from being paralysed by too rigid staff regulations and also to ensure greater mobility for the research workers.
            In this respect it is hardly necessary to mention the precarious nature of the Joint Research Centre and in particular the establishment at Ispra by reason of the adoption of research programmes limited to one year.
            This budgetary distinction has been applied to EAEC officials since 1962 by the Council of that Community (Regulation No 11 of 18 December 1961) which contains the exact counterpart of the provision challenged by the applicant. Since the Treaty establishing a single Council and a single Commission of the European Communities this distinction has continued to be applied to ‘officials of the… Community who occupy posts in the field of nuclear science’. This ‘industrial-type management’ of staff has only been reinforced since the new concept of Community research which has been applied to the Joint Research Centre.
            The applicant, and this is all to his credit, used the leave on personal grounds which he took in 1966 to complete his university scientific education at his own expense. But at the expiration of his leave in 1969 the research programmes had changed, the EAEC was in a state of crisis and there was no vacant post paid from the research budget in his category or service corresponding to his grade and qualifications; as a result it was not possible to reinstate him. However, he was not made the subject of a measure assigning him non-active status owing to a reduction in the number of posts (Article 41). It was not until 1 August 1973 that it was possible to reinstate him but in a post paid from appropriations from the operating budget. He opted then for stability; he retained the grade, the step and seniority which he had attained under the regulations previously applicable to him but at the same time the special provisions of Tide VIII of the Staff Regulations were no longer applicable under the third subparagraph of Article 2 (2) of Regulation No 1543/73 of 4 June 1973.
            It is clear that the existence of too sharp distinctions between different categories of staff assigned to similar tasks and possessing similar degrees but paid on different bases constitutes a permanent source of friction and disagreement The ideal would be for only scientific or technical officials (but all officials having such qualifications in the nuclear field) to be paid on appropriations from the research budget while ‘administrative staff’ would be paid from appropriations from the operating budget.
            But in reality it is not possible to make budgetary categories coincide perfectly with categories of qualifications or the status of scientific or technical officials with the carrying out of a research programme. For example in the interests of the good running of the safeguard system and the protection of health in the nuclear field it is necessary to ensure stability in the posts of staff entrusted with those tasks.
            It should moreover be observed that ‘administrative’ officials paid from appropriations from the research budget are subject to a different treatment from ‘scientific’ or ‘technical’ officials paid from the same appropriations: they are not entitled to promotion involving a change of category or even career bracket according to the procedure applicable to the latter: none of them has so far complained of this situation.
         
      
            II —
         
         
            In these circumstances consideration of the claim based on the unlawfulness of the ‘Procedures to be implemented prior to decisions on the transfer from Category B to Category A of officials in the scientific or technical services’ can be brief.
            These procedures were published in ‘Administrative Notices’ No 19 of 16 December 1974.
            
               Mutatis mutandis they are a faithful replica of the general provisions for giving effect to the procedures for promotion within a career bracket for officials paid from appropriations from the operating budget and for administrative or scientific officials paid from appropriations from the research and investment budget.
            
                     (1)
                  
                  
                     Just like the general provisions for giving effect to the procedures for promotion of officials within a career bracket, adopted by the Commission of the European Economic Community on 17 March 1965, the conditions in question ought, I think, to have been adopted after consultation with the Staff Regulations Committee and not simply with the Central Staff Committee of the Commission: they are general provisions for giving effect to the Staff Regulations within the meaning of Article 110; they even go farther than the former since they concern a change of category without a competition. The applicant is therefore not wrong in claiming that they had a very general scope even if they are meant to apply only within a single institution and it is necessary to ensure a certain harmony in the practice of ‘promotion committees’.
                     But this formal defect cannot usefully be relied on by the applicant for in any event these conditions could not without being contrary to Article 92 allow without competition a change of category or service of officials paid from appropriations from the operating budget as claimed by the applicant.
                  
               
                     (2)
                  
                  
                     It is the same with the second head of this claim made by the applicant: assuming that the procedures may be regarded as not being limited only to officials of the scientific and technical services they nevertheless cannot derogate from Article 92 or benefit officials paid from appropriation from the operating budget even if they had or still have scientific or technical qualifications in the nuclear field within the meaning of Annex I B to the Staff Regulations. They may be relied on only by scientific or technical officials taking part in carrying out a research programme. This is the substantial discrimination of which the applicant complains and which I have said is due to the budgetary constraints, the concept of Community nuclear research and the industrial type of staff management applied in the Joint Research Centre.
                     The applicant's position is in fact quite paradoxical for he is classified in Category B whereas he has the university qualifications necessary for a classification in Category A. His case has been drawn to the attention of the administration and I can only hope that the may be promoted to Category A by means of a competition under the Staff Regulations.
                  
               
      My opinion is that the application should be dismissed;
   The Commission should be ordered to bear the costs on the issue of admissibility;
   As regards the remainder, the parties should be ordered to bear their own costs.
   (
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      )	Translated from the French.