3.The applicants reply as follows:(a) Even if it is not strictly applicable in cases of change from one category to another, Article 46 should be applied by analogy since the situation and the problems raised by the transfer of an official to a higher category are similar to those of the appointment of an official to a higher grade within a category (Judgment of 15 December 1966, Joined Cases 15/64 and 60/65, Moreau v Commission of the EAEC [1966] ECR 459 at 467 and 468): in both cases there is a promotion, there are problems of classification and there is overlapping in the table of salaries.(b) Article 46 only expressly applies to classification of step and not that of grade; nevertheless the basic principles must be deduced from this article, in particular that an official who has been promoted cannot receive a basic salary lower than that which he had received in his former post and that the maintenance of the level of remuneration may only be ensured by means of the classification and not by the grant of a differential allowance. The grade in which the officials must be placed follows naturally from these rules.Therefore it is not possible to rely, as the Commission attempts to do, on Articles 5, 6 and 31 of the Staff Regulations and on budgetary considerations which are outside the scope of the problem.(c) Failure to apply Article 46 would have the inevitable effect of obliging the Commission to infringe other provisions of the Staff Regulations.If it were to be accepted that the Commission had a certain discretionary power whether or not to apply Article 46 (according to budgetary provisions or the requirements of recruitment) the Commission would in the end have to apply it in all those cases where the requirement of maintaining the level of the basic salary demanded it, in order to avoid infringing in particular the first paragraph of Article 62 and Article 66.(d) The applicants further consider that application of Article 46 in the present case does not come up against any particular practical or legal problems:— with regard to the budgetary position the appointing authority must, before appointing or promoting anyone, take account of these requirements. The decision of 10 March 1971 (second subparagraph of paragraph (b)) is, on the other hand, quite contrary to the budgetary provisions since under the system which it introduces officials are not paid according to the grade which they actually occupy;— moreover, application of Article 46 does not itself prejudice officials classified in the starting grade of the career bracket in the category to which the applicants were promoted. It is for the Commission to decide either to appoint the officials by promotion, which would benefit the officials classified in the starting grade of the career bracket, or to appoint them after internal competition. Once this choice has been made the Commission is no longer free as to the choice of grades. If it decided in favour of the internal competition this would imply by definition that the post concerned could not be filled by promotion or transfer.Officials who started in the higher career bracket do not necessarily possess better qualifications than the applicants whose suitability for the post is recognized by their promotion.(e) Finally the Court did not decide the problem raised in this case in the judgments in the Morina case (Judgment of 24 December 1965, Case 11/65, Morina v Parliament [1965] ECR 1017).
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