Report for the Hearing delivered in Joined Cases 269 and 292/84

I — Facts and procedure

1. On 11 July 1984 the Commission, at its 745th meeting, adopted a decision providing that applications from officials in the Language Service ‘may be considered for the filling of administrative posts at the initial stage when vacancy notices are issued’. That decision was notified to members of staff of the Commission of the European Communities in Infor-Rapide No 138 of 18 July 1984.

2. The applicants in Case 269/84, C. Fabbro, F. Giuffrida and C. Herbin, officials in Category A, submitted a complaint to the Commission under Article 90 (2) of the Staff Regulations by a note of 12 October, which was registered at the Secretariat General of the Commission on 16 October 1984; they subsequently brought an action on 14 November 1984 seeking the annulment of the decision of 11 June 1984 and, on 16 November 1984, applied for an interim measure suspending the operation of that decision until the Court had given judgment on the application for annulment. By decision of 16 November 1984, adopted pursuant to the second sentence of Article 91 (4) of the Staff Regulations, the proceedings in the main action were suspended pending an express or implied decision on the complaint lodged with the Commission by the applicants. On 11 January 1985 the Commission rejected the complaints lodged by the applicants, whereupon the written procedure in the main proceedings was resumed and followed the normal course.

3. The Commission published in Vacances d'emplois No 39 of 1 August 1984 Vacancy Notice No COM/1207/84 concerning a post of administrator in Category A 7/A 6; the applicant in Case 292/84, H. Scharf, a Commission official in Category A, submitted his candidature for that post before the closing date. On 30 November 1984 the administration decided to appoint R. Teerlink, a Commission official in the Language Service, to the said vacant post and rejected the applicant's candidature by a decision notified to him on 3 December 1984. The applicant lodged a complaint against those decisions within the period prescribed in the first indent of Article 90 (2) of the Staff Regulations and, on 5 December 1984, brought an action under Article 91 (4) of the Staff Regulations seeking the annulment of the aforesaid decisions; on the same date he applied for an interim measure suspending the operation of both the decision of 30 November 1984 appointing R. Teerlink to the post and the Commission's decision of 11 July 1984. By decision of the President of the Third Chamber, dated 6 December 1984 and taken pursuant to the second sentence of Article 91 (4) of the Staff Regulations, the main proceedings were suspended pending an express or implied decision on the applicant's complaint. The Commission adopted its decision on 23 January 1985, whereupon the written procedure was resumed and followed the normal course.

4. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Third Chamber of the Court, to which the cases had been assigned, decided, on the basis of Article 95 (4) of the Rules of Procedure, to refer them to the Court with the recommendation that they should be heard by a chamber composed of five judges. By a decision of 5 March 1986 the Court, after hearing the report of the Judge-Rapporteur and the views of the Advocate General, decided to join the two cases, subject to the observations of the parties. The parties made no observations in that regard, and by an order of 18 March 1986 the two cases were joined for the purposes of the oral procedure and judgment. By a further decision of 5 March 1986 the Court assigned the cases to the Sixth Chamber. On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

1. The applicants claim that the Court should: A — In Case 269/84 (Fabbro, Giuffrida and Herbin) (i) annul the contested decision; (ii) order the Commission to pay all the costs of the case pursuant to Article 69 (2) of the Rules of Procedure, and also the expenses necessarily incurred by the applicants, in particular the costs of establishing an address for service, travel and subsistence expenses, and the fees of a lawyer, pursuant to Article 73 (b) of those Rules. B — In Case 292/84 (Scharf) (i) declare unlawful the decision of the Commission of the European Communities, taken on 11 July 1984 at its 745th meeting; (ii) declare that all decisions implementing that unlawful decision are themselves unlawful; (iii) annul, in consequence, the decision of the appointing authority of 30 November 1984 appointing, with effect from 1 December 1984, R. Teerlink, an official in the Language Service, to the post in Category A declared vacant by Vacancy Notice No COM/1207/84; (iv) annul the decision of the appointing authority of 30 November 1984, notified to the applicant on 3 December 1984, rejecting the latter's application for the post specified in Vacancy Notice No COM/1207/84; (v) order the defendant to pay all the costs of the case, pursuant to Article 69 (2) of the Rules of Procedure, and also the expenses necessarily incurred by the applicant, in particular the costs of establishing an address for service, travel and subsistence expenses and the fees of a lawyer, pursuant to Article 73 (b) of those Rules.

2. The Commission contends that the Court should: A — In Case 269/84 (i) declare the application inadmissible; (ii) dismiss the application, in so far as is necessary, as unfounded; (iii) order the applicants to pay the costs for having initiated proceedings against a general provision which cannot adversely affect them. B — In Case 292/84 (i) dismiss the application as unfounded; (ii) order the applicant to pay the costs.

III — Submissions and arguments of the parties

Admissibility of the application in Case 269/84

1. The Commission maintains that the application is inadmissible on the ground that the applicants have no present and vested personal interest in challenging the contested provision, which does not adversely affect them since it has no direct effect on their legal position. It considers that, in view of the general nature of the contested measure, the applicants could have been directly affected only if, pursuant to that measure, their candidatures had actually been rejected in favour of an official from the Language Service; since they did not apply for the post in Category A to which an official in Category L/A was transferred, they may not challenge the general provision which made that transfer possible. The Commission adds that, in the circumstances, the contested measure is concerned only with transfers which, except in the case of a misuse of powers, cannot affect an official's career. According to the Commission, even on the assumption that there are limited prospects of internal mobility and promotion for officials in the general category, which are in any event based on widely differing considerations dependent on unforeseeable factors, it makes no difference whether the decision to transfer the official concerned was adopted in accordance with the contested procedure referred to in Article 29 (1) (a) of the Staff Regulations or in accordance with the procedure referred to in Article 29 (1) (b). The Commission considers that the transfer of officials from the Language Service to the general category does not restrict the promotion prospects of officials in that category because every official transferred from the Language Service will create a post at the same level for which an official in Category A may apply, in view of the fact that the effect of the contested decision is to allow for movement in either direction. Finally, the Commission maintains that Mr Herbin's application is inadmissible on the ground that his complaint was lodged on 19 October 1984, that is to say after the expiry of the three month period prescribed by Article 90 (2) of the Staff Regulations, which starts to run from the date of publication of the general measure concerned, namely 18 July 1984, the relevant date for this purpose being the date on which the complaint was actually registered and not the date on which it was submitted by the official concerned to his immediate superior.

2. The applicants maintain, with regard to the objection raised by the Commission that the application is inadmissible in its entirety, that Article 90 (2) of the Staff Regulations allows officials who have submitted a prior complaint to challenge either individual measures adopted pursuant to a general decision or the general decision itself provided it adversely affects them. In that regard, they explain that promotions to posts declared vacant in the various Directorates-General of the Commission entail transfers of the post provided for in the budget in the grade which the promoted official had in the Directorate-General which he is leaving to his new employment and, where appropriate, to his new Directorate-General; however, in a case where a vacant post in Category A is filled by an official from the Language Service, that transfer of budgeted posts cannot take place because, according to Article 6 of the Staff Regulations, the posts in Category A and those in the Language Service are distinct for the purposes of the budget. It follows, according to the applicants, that any transfer of an official from the Language Service to a post in Category A reduces the number of posts normally reserved for the promotion of officials in that category. The contested general decision therefore adversely affects the applicants in so far as it curtails their prospects of promotion and it confers on them a present and vested personal interest in securing the annulment of the decision. In that regard, they point out that, in this case, Mr Herbin, an official in Grade A 7, was entered on the list of officials eligible for promotion to Grade A 6 in 1984, which consisted of 60 officials of whom 52 were promoted; however, he was not promoted in view of the absence of an available post, due in part to the fact that three officials in Grade L/A 6 were transferred to A 6 posts. The promotion prospects of Mr Fabbro, an official in Grade A 6 who was entered on the list of officials eligible for promotion to Grade A 5 in 1985, were also curtailed as a result of the fact that the administration transferred two officials in Grade L/A 6 to A 6 posts. Finally, in the case of Mr Giuffrida, an official in Grade A 4, there was an unlawful increase in the potential number of applicants for any post in Grade A 3 which should become vacant, and that restricted his own prospects of promotion. With regard to the possibility referred to by the Commission of transferring officials from Category A to the Language Service, the applicants observe that not only has no such transfer taken place yet but that they have no present and vested personal interest in seeking the annulment of a decision authorizing transfers to the Language Service, which, moreover, would be prohibited in the event of the annulment of the contested decision. Finally, the applicants consider that the admissibility of their application against the contested general decision is confirmed in the first place by the Opinion of Mr Advocate General A. Trabucchi in Case 18/74 (Syndicat Général du Personnel v Commission [1974] ECR 933 at p. 951) which was concerned with an application against a notice issued by the Directorate-General for Personnel and Administration incorporating a general decision of the Commission, and secondly by the order made by the President of the Third Chamber on 13 December 1984 in Case 292/84 rejecting an application for the adoption of an interim measure suspending the operation of the Commission's decision of 11 July 1984 on the ground that the applicant, Mr Scharf, had not challenged that general decision, the implication being that he had a locus standi to do so. With regard to the Commission's objection that Mr Herbin's application is inadmissible, the applicants point out that the period for lodging a complaint starts to run from the date of publication of a general decision, that is to say the date on which the decision has actually been notified to the members of staff either by being displayed on a notice board or by being distributed in a suitable information bulletin. In this case, the contested decision, which was published on 18 July 1984 in Infor-Rapide, was not distributed until 19 July 1984 in the building on the rue de Nerviens where the applicants work. Since the dies a quo is not included in the prescribed period, the three-month period did not start to run until 20 July 1984. Accordingly, Mr Herbin's complaint was lodged on the final day of the prescribed period, namely 19 October 1984. Moreover, according to the applicants, the date on which the complaint is actually lodged, which in practice may sometimes be much later than the date on which it was submitted is of no consequence since Article 90 (3) of the Staff Regulations deals only with the submission of a complaint by an official through his immediate superior. Therefore, only the date on which the complaint is passed to the official's immediate superior should be taken into consideration, and in this case that date must be presumed to be within the prescribed period in view of the Commission's failure to furnish proof to the contrary.

Substance

Submissions put forward in Cases 269 and 292/84

1. The applicants maintain that the decision of 11 July 1984 was adopted in breach of Article 45 (2) of the Staff Regulations, which 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’. In their view, that provision reveals a clear tendency on the part of the Community legislature to differentiate between posts in the various categories and services and to subject them to separate conditions of recruitment and service career, in accordance with the provisions of Article 5 (3) of the Staff Regulations. They emphasize that this principle is reflected in the other provisions of the Staff Regulations, such as Article 7 (2) concerning temporary posting, Article 31 (1) concerning appointment and transfer, Article 7 (1) concerning the grade on appointment, Article 39 (c) concerning reinstatement following secondment, Article 40 (4) (d) concerning reinstatement following leave on personal grounds, the second subparagraph of Article 41 (3) concerning the rights of an official who is assigned to non-active status, Article 45 (1) concerning promotion, Article 102 (4) (b) concerning the classification of officials in the Language Service or the second paragraph of Article 14 of Annex VIII concerning re-instatement following a period of invalidity. According to the applicants, that principle, which led to the grouping of posts for translators or interpreters in a specific service on the ground that their professional training and qualifications are different from those required of an administrator, explains why separate competitions involving different tests are held for linguists. In that regard, they refer to Case 343/82 Michael v Commission [1983] ECR 4023, in which Mr Advocate General Reischl and the Commission itself laid emphasis on the specific nature of the activities of the Language Service, which is reflected in, and justifies specific careers for linguists, as recognized by the Court in paragraph 22 of its judgment of 1 December 1983 in the aforesaid case. They also refer to the judgment of 29 September 1976 in Case 105/75 (Giuffrida v Council [1976] ECR 1395), in which the Court held that it was necessary to comply with the requirement embodied in Article 45 (2) of the Staff Regulations in the event of transfer or promotion to a higher category or to the Language Service, in accordance with the Commission's own interpretation as set out in its defence in Case 173/84 (Rasmussen v Commission [1986] ECR 197). According to the applicants, that requirement is based on the fact that merely to belong to one of the staff categories is insufficient to determine the conditions governing service career; it is also necessary, in particular, to belong to a given service, as is clear from Article 5 (3) of the Staff Regulations, which provides that identical conditions of recruitment and service career are to apply to all officials belonging to the same category or the same service; that provision follows Article 5 (2), which expressly establishes a Language Service. The Community legislature therefore drew a clear distinction between careers in a given category and a career in the Language Service. According to the applicants, if the Commission in defence of the contested decision henceforth adopts an interpretation which involves reliance on a practice aimed at establishing uniform criteria relating to professional experience to be applied without distinction to officials in the Language Service and to other officials, this would be contrary to the views expressed by-certain Advocates General in their Opinions and by the Court in its recent case-law, which, in their view, are evidence of the continuing distinction in the Staff Regulations between the Language Service and Category A, the general category. According to the applicants, it is clear from the Opinions of the Advocates General that: (a) only relevant professional experience may be taken into consideration in determining an official's grade and step (Opinion of Mr Advocate General C. O. Lenz in Case 17/83 Angelidis v Commission [1984] ECR 2907); (b) an official in the Language Service appointed to a post in Category A must be re-classified having regard to professional experience which is relevant to his new post and which could not be taken into account in connection with his previous post (for instance in the Language Service, Opinion of Mr Advocate General C. O. Lenz in Case 273/83 Michel v Commission [1985] ECR 347); (c) the differences between the Language Service and the general service are such that an appointment of an official in the Language Service to a post in Category A and vice-versa must be regarded as a recruitment (Opinion of Advocate General Sir Gordon Slynn in Case 266/83 Samara v Commission [1985] ECR 189); (d) save in exceptional cases (Article 29 (2)) recruitment is by competition, in accordance with Articles 29 (1) and 45 (2) of the Staff Regulations; accordingly, that procedure is a rule which applies ‘whenever an official is transferred or promoted to a new category or a new service’ (Opinion of Mr Advocate General M. Darmon in Joined Cases 20 and 21/83 Vlachos v Court of Justice [1984] ECR 4149). Furthermore, the applicants consider that in its judgments of 1 December 1983 in Case 343/82 Michael v Commission and of 13 December 1984 in Joined Cases 20 and 21/83 Vlachos v Court of Justice the Court expressly stated that any practice which consists in taking account of previous professional experience not relevant to the post to be filled is contrary to the provisions of the Staff Regulations. They add that in Case 138/84 Spachis v Commission, the Commission itself determined the grade and step of an applicant for a post in the Language Service exclusively by reference to that person's experience as a translator; subsequently, when that person was appointed to a post in Category A after passing a competition, the Commission refused to determine her grade and step anew in spite of the fact that she had 10 years' professional experience which was relevant to her new post. Finally, the applicants refer to the Court's judgment of 29 September 1976 (Case 105/75, Giuffrida v Commission), as confirmed by the judgment given by the Court on 5 December 1974 in Case 176/73 (Van Belle v Council [1974] ECR 1361, 1372, paragraphs 21 to 24 of the decision). Furthermore, the applicants emphasize that the Commission was wholly unjustified in adopting the decision of 11 July 1984 particularly since, as is clear from the minutes of the meetings of the Staff Regulations Committee which were distributed to all the members of the Central and Local Staff Committees in Brussels, the unlawful nature of that decision was acknowledged at the 81st meeting of the Staff Regulations Committee in Luxembourg on 13 July 1984 both by the Council's staff representative and by the representative of the Commission's Legal Department, who had taken part in the meeting on the Commission's behalf and expressed his views in that capacity. Moreover, the representatives of the Community institutions, with the exception of the Commission, pointed out that the institutions which they represented adhered strictly to the principle laid down in Article 45 (2) of the Staff Regulations according to which transfer from one service to another or promotion from one category to another is possible only on the basis of a competition. The applicants point out that the representative of the staff emphasized at the same meeting of the Staff Regulations Committee that, according to the 1962 version of the Staff Regulations, until 31 March 1963 it was to be possible, exceptionally, to derogate from the conditions laid down by Article 45, the implication being that after that date no transfers or promotions of the kind in question would be possible without a competition. They add that at the 82nd meeting of that Committee, which was held on 28 September 1984 in Brussels after the adoption of the decision of 11 July 1984, it was pointed out that the Commission's Legal Department was opposed to the Commission's interpretation of Article 45 and that the majority of the Commission's staff representatives supported the opinion expressed by the Legal Department. Finally, the applicants refer to the Commission's reply of 11 November 1963 to Written Question No 89 of 16 October 1963 in which, inter alia, it was stated that the rule embodied in Article 45 (2) of the Staff Regulations was applicable to officials in the Language Service ‘because the professional ability required to fill a post in the Language Service is not the same as that required of officials in Category A’ and that ‘to allow an official merely to be transferred or promoted from the Language Service into Category A would be tantamount to calling in question the meaning of the distinction between Category A and the Language Service established by Article 5 of the Staff Regulations’.

2. The Commission, referring to the reasons which led to the adoption of the decision of 11 July 1984, states that the contested decision forms part of a set of measures concerning the careers and mobility of officials. The contested measure, which is restricted to transfers, is designed to open up the Language Service and extend the freedom of choice of officials in so far as it widens the scope for a transfer to a post within the institution so as to encompass as broad a range of officials as possible. The Commission points out that its aim is to ensure that its officials, and particularly those in the Language Service and in the general category, are subject to identical conditions governing recruitment and service career. In that connection, the conditions for admission are now the same for A and L/A competitions, relevant professional experience is taken into account in the same way in determining the grade and step of officials upon appointment to A and L/A posts (Decision of 1 September 1983 on the criteria for classification upon recruitment); moreover, with regard to promotion the methods of assessing the merits of officials in the Language Service and officials in Category A who do not belong to a specific service are wholly comparable. That approach is justified first of all by the fact that the education of linguists is frequently more extensive than is required by the immediate subject-matter of their work and that certain duties within the general service call for abilities which an official with linguistic experience is more likely to possess (for instance, monitoring the comparative application of directives). Secondly, although Category A, the general category, encompasses a number of professions which are, at least at the outset, very different (lawyers, economists, agronomists, veterinary surgeons, biologists, doctors, engineers, data-processing experts and nuclear scientists), that does not preclude the pursuit of identical service careers within that category or transfers at the initial stage when posts fall vacant. The Commission maintains that changes in the practice followed, such as that introduced by the contested decision of 11 July 1984, which made it possible to transfer six linguists, including two lawyers and a chemist, to Category A, are lawful in so far as they are based on objective criteria, and they do not provide grounds for drawing any inferences concerning the legality of either the old or the new practice. In that regard it refers to the identical change made in 1971 in the practice followed with regard to the transfer or promotion of officials from the scientific and technical services to the general category and it points out that the change went unchallenged. Turning to the legal questions raised, the Commission observes that the applicants' line of reasoning is based entirely on the notion that there is a clear-cut distinction between officials in Category A and officials in a specific service. In the Commission's opinion, that view is unjustified having regard to the fact that every official belongs primarily to a category and retains that status and the general characteristics although being assigned to a specific service. According to the Commission, the fact that an official belongs to a category takes precedence over his assignment to a service, as regards the rights resulting therefrom (Annex I B of the Staff Regulations — Basic posts and corresponding career brackets of officials in the scientific and technical services) with regard to his service career, given that the effects resulting from classification in a category are not merely of a pecuniary or semi-pecuniary nature. It follows that transfers within each category are legally permissible pursuant to the first sentence of Article 29. Accordingly, the Commission considers that the fundamental problem raised by these cases is the interpretation of Article 45 (2) of the Staff Regulations since it is necessary to ascertain whether or not the change introduced by the decision of 11 July 1984 in the practice followed is contrary to that provision. On that point, the Commission maintains that participation in a competition is a pre-condition for transfer or promotion from one service or category to another but not for transfer or promotion from or into a specific service whilst remaining within the same category. The Commission argues that the term ‘service’ in Article 45 (2) of the Staff Regulations consequently relates only to ‘another service’ and that the term ‘category’ relates only to a ‘higher category’. According to the Commission, that interpretation is all the more justified having regard to the Dutch and English versions of the provision in question and it is not contradicted by the second paragraph of Article 98 of the Staff Regulations, which provides that Article 45 (2) is inapplicable to officials covered by Article 92, that is to say officials in the scientific and technical services. The reason is that, although that express derogation was considered necessary for those officials, it was deemed unnecessary in the case of initial transfers or promotions from one branch of the Language Service to the other (translation and interpretation) since it constitutes a single service. With regard to the applicants' argument to the effect that Article 5 (3), which imposes identical conditions of recruitment and service career for the same service or the same category, follows Article 5 (2) establishing the Language Service, the Commission observes that if that argument were valid it would also apply to the scientific and technical services. The Commission emphasizes that the applicants seem unwilling to accept that consequence since according to their interpretation officials in the scientific and technical service do not belong to a service caught by the legal effects of Article 45 (2) and have therefore been able since 1971 to apply for general posts in Category A at the initial stage of the procedure provided for in Article 29 of the Staff Regulations. The Commission therefore maintains that the argument based on the sequence of paragraphs 2 and 3 of Article 5 of the Staff Regulations must be rejected. In its view, the sole purpose of Article 5 (2) is to make clear the application to the Language Service of the general provision set out in the final subparagraph of Article 5 (1), which provides that posts coming within the same specialized professional field may be formed into services embracing a number of grades of one or more categories; this is inapplicable to officials in the scientific and technical services since they may belong to any category or grade, as is clear from Annex I B to the Staff Regulations. Furthermore, the Commission considers that Article 5 (3) of the Staff Regulations does not have the meaning attributed to it by the applicants. It maintains that the term ‘respectivement’ used in the French version does not apply to the terms ‘category’ and ‘service’, which precede it, but to the phrases ‘identical conditions of recruitment’ and ‘service career’, as is clear from the English version (which does not contain the word ‘respectively’) and from the German version (‘jeweils’). Furthermore, the phrase ‘identical conditions of recruitment’ means, according to the Commission, that those conditions must be identical for the general category, on the one hand, and for the various services, on the other, with the result that the conditions applicable to the general category may differ from those applicable to a service, without there being any bar to pursuing a staff policy designed to equalize the conditions of recruitment and service career, at least as regards such general conditions as education, duration of studies and the criteria for taking into account professional experience, as opposed to special conditions, such as relevant training and experience, which may differ even within the general category. The Commission also points out that even if the interpretation adopted is that, according to Article 5 (2) of the Staff Regulations, classification in a service nullifies the effect of classification in the general category, that would not support the conclusion that transfer or promotion from one to the other is equivalent to recruitment and must consequently be subject to the rules on recruitment. The Commission emphasizes in that regard that by treating the transfer of officials from Category L/A to the general category as equivalent to recruitment the applicants are labouring under a misconception, inasmuch as they take as a basis for their argument certain examples of the ‘re-classification’ of officials in the Language Service as officials in the general category where this was the inevitable result of the substantive differences in the conditions of recruitment and service career which existed in the past, whereas in view of the existence of parallel conditions of recruitment and service career, transfer or promotion to the general category does not now affect the grade and step of the official concerned. The Commission also challenges the relevance of the judgments and opinions cited by applicants. It points out that in the Angelidis, Michel, Samara and Spachis cases, the contested decisions were adopted prior to the measure of 11 July 1984, that is to say prior to the implementation of the new policy concerning careers and mobility. In so far as those judgments refer to decisions concerning classification, they relate to the application of the old decision repealed by the decision of 1 September 1983, which is currently in force; according to the latter decision all relevant professional experience is to be taken into account, not just experience relevant to the post to be filled; that is not contrary to the Staff Regulations because Article 32 thereof refers to ‘special experience’ of the person concerned and not to a given post. Nor is the Opinion in the Vlachos case relevant either, because a transfer or promotion from the Language Service to Category A is neither a transfer or promotion to a new category nor a transfer or promotion to a service, since Category A is not a service. In the Giuffrida case, moreover, the Court merely penalized a misuse of power involving the organization of a competition designed to remedy the anomalous administrative position of the person concerned in order to appoint him. In referring to the need to organize a competition on the basis of qualifications and tests, the Court sought to strengthen the justification for a moral obligation contracted by the Council towards the staff, and in declaring that an internal competition may result in transfer or promotion to a higher category or to the Language Service, the Court did not state its views on whether it was possible for officials in the Language Service to fill a vacant post in Category A by transfer. Finally, the Van Belle case was concerned with the promotion of an official from Category B to Category A under Article 29 (2), in which case the requirement that a competition must be organized cannot be contested. The Commission adds that the applicants' reference to the transitional provision contained in the 1962 version of the Staff Regulations, to the effect that it was possible until 31 March 1963 to derogate in exceptional cases from the provisions of Article 45, is not relevant to this case because the derogations concerned applied only to changes from one category to another and from one service to another, without affecting the interpretation of the contested provision in relation to the specific problem raised by this case. Similarly, as regards its reply to a written question in 1963, the Commission emphasizes that the circumstances on which it was based at the time have changed. Finally, the Commission considers that the opinion expressed by the member of its Legal Department who sits on the Staff Regulations Committee is not binding on it because it is merely the opinion of a lawyer placed at the disposal of that committee. It refers to a passage in the minutes of the meeting of the Staff Regulations Committee held on 28 September 1984 stating that ‘the Commission's representative wishes to point out that the Commission's decision of 11 July 1984 was taken without any objections on the part of the Commission's Legal Department’.

Submission put forward in Case 292/84

The Commission maintains, in connection with Mr Teerlink's appointment, that the (four) applications submitted for the post, including Mr Scharf's application, were subjected to a detailed comparative examination, carried out strictly on the basis of equality and involving scrutiny of the applications and personal files of those concerned, and that the candidate selected was considered the most meritorious in view of his training and professional experience.

IV — Oral procedure

At the sitting on 6 May 1986 oral argument was presented on behalf of the applicants by J.-N. Louis and on behalf of the Commission of the European Communities by H. Etienne.

The Commission stated that it did not wish to maintain the objection that Mr Herbin's complaint was submitted out of time.

The Advocate General delivered his opinion at the sitting on 11 June 1986.

C. Kakouris

Judge-Rapporteur

1 Language of the Case: French.