EN
ReportsofCases
ECLI:EU:F:2011 :181 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL
(Second Ch amber)
10 November 2011
Case F-20/09
Mar c Juvyns
v
Council of the European Un ion
(Civil service — Officials — Promotion — 2008 p romotion p rocedure — Consideration o f comparative 
merits — Procedure based on 2005 /2006 a nnual staff reports — Criterion o f the level of 
responsibilities exercised)
Application:brought u nder Articles 236 E C and 152 E A, in w hich M r Juvyns essentially seeks 
annulment of the Council’s decision no t to promote him to grade AS T 7 in th e 2008 
promotion p rocedure.
Held: The application is dismissed. The applicant is to bear his own costs and those incurred by 
the Council.
Summ ary
1. Officials — Actions — Prior administrative complaint — Correspondence between the complaint and 
the application — Same subject-matter and legal basis — Submissions and arguments not made in the 
complaint but closely related to it — Admissibility
(Staff Regulations, Arts 90 a nd 91)
2. Officials — Promotion — Consideration of comparative merits — Procedures
(Staff Regulations, Art. 45; Annex XIII, Art 10)
3. Officials — Promotion — Consideration of comparative m erits — Administration’s discretion — 
Factors wh ich m ay be taken into consideration
(Staff Regulations, Art. 43)
4. Officials — Promotion — Consideration of comparative merits — Factors wh ich m ay be taken into 
consideration
(Staff Regulations, Art. 45)
5. Officials — Promotion — Complaint by a c andidate wh o h as n ot been p romoted — 
Rejection de cision — Obligation to state reasons — Scope
(Staff Regulations, Arts 25 a nd 45)
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JUVYNSvCOUNCIL
1. The rule of correspondence between th e prior administrative complaint and the action a pplies on ly 
where the application a lters the relief sought, a s submitted in th e complaint, or the cause of action o f 
the dispute, and the concept of ‘cause of action’ must be given a b road interpretation.
As regards claims for annulment dir ected against a d ecision o f the ad ministration, the ‘cause of action 
of the di spute’ must be understood as th e applicant’s challenge to th e substantive legality of the 
contested decision o r, in the alternative, the challenge to its procedural legality.
(see para. 41)
See:
1 July 2010 , F-45/07 M andt v P arliament, para. 119
2. As regards officials in the AS T function g roup, Article 10 o f Annex XIII to the Staff Regulations lays 
down reference multiplier rates for determining the number of vacant posts for each grade, which vary 
for the different career streams. Since the ad ministration i s obliged to comply with th ose rates, the 
appointing authority is fully entitled to compare the me rits of officials in the AS T function g roup on ly 
with th ose of other officials in the same c areer stream.
In th at respect, comparing the me rits of officials in th e AS T function g roup by career stream for the 
purposes of the promotion p rocedure does no t infringe Article 45 o f the Staff Regulations, under 
which th e comparative me rits of all officials eligible for promotion m ust be considered, since 
Article 10 o f Annex XIII to th e Staff Regulations is a s pecial rule which derogates from th e general 
provisions of the Staff Regulations.
(see paras 42, 43)
See:
22 December 2008 , C-443/07 P C enteno Mediavilla and Others v C omm ission, para. 107, confirming the judgment of 
11 July 2007 , T-58/05 C enteno Mediavilla and Others v C omm ission, para. 129
3. Although the staff report constitutes an indispensable criterion o f assessment each time a n official’s 
career is taken into consideration f or the purpose of adopting a d ecision c oncerning his promotion, 
Article 43 o f the Staff Regulations requires that staff reports be dra wn up on ly on ce eve ry two years. 
Since the Staff Regulations do no t require the promotion p rocedure to have th e same r egularity as the 
reports procedure, they do no t preclude th e appointing authority from d eciding on a p romotion 
without having a r ecent staff report available.
Given th at there is no r equirement in either the Staff Regulations or any of the institution’s internal 
rules for the reports and promotion p rocedures to be synchronised and that the ad ministration e njoys 
a w ide di scretion w hen o rganising th e promotion p rocedure, eve n if it is desirable for th e 
administration to make eve ry effort to have th e most recent staff reports available in order to decide on 
promotions, its failure, in exceptional cases, to take a ccount of th ose reports is no t unlawful, 
particularly where all the officials eligible for promotion h ave been treated in the same w ay.
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That is particularly true where the absence of a s taff report is the result of the no rmal conduct of the 
reports procedure.
(see paras 45-47)
See:
17 December 1992 , C-68/91 M oritz v C omm ission, para. 16
15 November 2001 , T-194/99 S ebastiani v C omm ission, paras 45, 46 a nd 49
4. In view of the limited number of posts available under the budget, an institution m ay, in the course 
of the promotion p rocedure, properly take into account, as a s econdary consideration, the actual time 
worked by an official and, all other me rits being equal, give p riority for promotion t o other officials 
who, on a n objective v iew, have c arried out th eir d uties on a m ore sustained basis and th us 
contributed to the continuity and, therefore, the interests of the service during the reference pe riod to 
a much greater extent than the applicant.
In that respect, when it comes to taking account of officials’ absences in the promotion p rocedure, the 
administration is no t obliged to take di fferent account of the number of days’ leave d epending on th e 
reasons for those absences.
(see paras 50, 53)
See:
13 April 2005 , T-353/03 N ielsen v C ouncil, paras 76 a nd 77
5. Although the appointing authority is no t required to include in its decisions no t to promote officials 
the reasons for those decisions, it is, however, required to provide th ose reasons when it rejects a 
complaint from a c andida te who has no t been promoted.
The extent of the obligation t o state reasons depends on th e specific circumstances, in particular th e 
content of the me asure in question, the nature of the reasons given and th e interest which th e 
addr essee o f the me asure may have in obtaining explanations. In th e case of a s tatement of reasons 
for a d ecision ad opted in a p rocedure affecting a l arge number of individuals, such as a p romotion 
procedure, the appointing authority cannot therefore be expected, when rejecting a c omplaint, to 
provide reasons for its decision w hich go further than th e claims relied on i n th at complaint, in 
particular b y explaining why th e me rits of each of the officials eligible for promotion w ere greater 
than those of the author of the complaint.
(see paras 66, 70)
See:
26 January 1995 , T-60/94 P ierrat v C ourt of Justice, paras 31 a nd 32; 27 April 1999 , T-283/97 T hinus v C omm ission, 
para. 73; 25 October 2005 , T-83/03 S alazar Brier v C omm ission, para. 78; 23 November 2006 , T-422/04 L avagnoli v 
Comm ission, para. 69
8 October 2008 , F-81/07 B arbin v P arliament, para. 27