C-41/88

OPINION OF MR MISCHO — JOINED CASES C-41/88 AND C-178/88

of the Treaty (consistent case-law, see 4. Article 29(l)(a) of the Staff Regulations, the judgments of 26 January 1989 in which requires the appointing authority Case 224/87 Koutchoumoffv Commission to consider first, before filling a vacant [1989] ECR 99 and of 27 April 1989 in post, whether the post can be filled by Case 192/88 Turner v Commission [1989] promotion or transfer within the ECR 1017). institution, does not confer a right to automatic promotion on officials who 3. The appointing authority may not, by meet the conditions for promotion. means of an internal directive or other similar procedure, derogate from the mandatory provisions of the Staff Regu­ lations (see the judgment of 10 5. Article 38 of the Staff Regulations does December 1987 in Joined Cases 181 to not guarantee that, when an official 184/86 Del Plato and Others v seconded in the interests of the service is Commission [1987] ECR 4991) or create reinstated in the post formerly he in favour of officials rights which might occupied, he will maintain the grade and lead to their being classified in a manner remuneration he enjoyed in the post to contrary to the Staff Regulations. which he was seconded.

OPINION OF THE ADVOCATE GENERAL

:: Mr Advocate General Mischo delivered his Opinion on 11 October 1989. " He proposed that the Court should dismiss both applications as unfounded and order the parties to bear their own costs, in accordance with Article 70 of the Rules of Procedure .

* Original language: French.