EN
ReportsofCases
ECLI:EU:F:2011 :180 1JUDGMENT O F THE CIVIL SERVICE TRIBUNAL
(Second Ch amber)
10 November 2011
Case F-18/09
Mohamed M er h zaoui
v
Council of the European Un ion
(Civil service — Officials — Promotion — Classification in grade — Local staff appointed as officials — 
Article 10 o f Annex XIII to the Staff Regulations — Article 3 of the Annex to the CEOS — 
Promotion e xercise for 2008 — Consideration o f comparative me rits of officials attached to the career 
stream AS T — Procedure based on s taff reports 2005 /2006 — Criterion o f the level of 
responsibilities exercised)
Application:brought u nder Articles 236 E C and 152 E A, in which M r Merhzaoui essentially seeks 
annulment of the Council’s decisions to assign him to th e career stream AS T 1-7 in th e 
assistants’ function g roup and no t to promote him to grade AS T 2 i n the 2008 p romotion 
procedure.
Held: The application is dismissed. The applicant is to bear his own costs and those incurred by 
the Council.
Summ ary
1. Officials — Conditions of Employment of Other Servants — Local staff — Applicability of Annex XIII 
to the Staff Regulations
(Staff Regulations, Annex XIII, Art. 10(3); Conditions of Employment of Other Servants, Annex, Art. 1(1); 
Council Regulation No 723/2004 )
2. Procedure — Introduction of new pleas during the proceedings — Conditions — New factor — 
Definition
(Rules of Procedure of the Civil Service Tribunal, Art. 43(1))
3. Officials — Actions — Pleas in law — Inadequate statement of reasons — Finding made b y the 
Tribunal of its own mo tion
4. Officials — Promotion — Consideration of comparative m erits — Administration’s discretion — 
Factors wh ich m ay be taken into consideration — Level of responsibilities exercised
(Staff Regulations, Art. 45)
5. Officials — Acts of the administration — Presumption of validity — Dispute — Burden of proof
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6. Officials — Actions — Interest in bringing proceedings — Need t o have personal grounds for 
complaint
7. Officials — Promotion — Consideration of comparative m erits — Administration’s discretion — 
Factors wh ich m ay be taken into consideration
(Staff Regulations, Art. 43)
8. 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)
1. Article 10(3) of Annex XIII to th e Staff Regulations is applicable to local staff because, under the 
terms of Article 1(1) of the Annex to the Conditions of Employment of Other Servants, the provisions 
of Annex XIII to the Staff Regulations apply by analogy to other servants emp loyed on 30 April 2004 , 
and thus also to local staff.
(see para. 35)
2. Article 43(1) of the Rules of Procedure of the Civil Service Tribunal prohibits the introduction o f 
new pleas after the first exchange of written pleadings unless th ey are based on e lements which come 
to light in th e course of the procedure. In th at respect, a j udgment of a C ourt of the European Union 
which had no t yet been delivered when th e applicant brought his action, but which me rely indicates a 
pre-existing legal situation, cannot be regarded as a n ew element.
(see para. 36)
See:
20 May 2003 , T-80/01 D iehl-Leistner v C omm ission, para. 38
3. Failure to state reasons constitutes a g round involving a m atter of public policy which must, in any 
event, be considered by the Union judicature of its own motion. Consequently, a p lea in law alleging a 
breach of the obligation to state reasons cannot be inadmissible on th e ground that it is no t presented 
in sufficient detail in the application.
(see para. 47)
See:
20 February 1997 , C-166/95 P Comm ission v D affix, para. 24
3 October 2006 , T-171/05 N ijs v C ourt of Auditors, para. 31
4. The expression ‘where appropriate’ in A rticle 45 o f the Staff Regulations me ans th at since, in 
principle, staff in th e same g rade ar e supposed to hold posts involving equivalent responsibilities, 
where th at is no t the case th at circumstance m ust be taken into consideration i n th e promotion 
procedure and, consequently, the ad ministration m ust, when considering th e comparative me rits of 
officials eligible for promotion, take a ccount of the level of responsibilities exercised by such an 
official where they exceed those no rmally conferred on a n official in his grade.
(see para. 59)
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5. An ad ministrative act is presumed to be lawful and th e burden of proof lies, in principle, with th e 
person c laiming it to be unlawful, so that it is for the applicant to provide at the very least sufficiently 
precise, objective a nd consistent information t o corroborate th e truth o r likelihood of the facts in 
support of his claim. Consequently, an official who has neither any evidence no r, at the very least, a 
body of supporting information m ust accept that promotion d ecisions ad opted ar e presumed to be 
lawful, and he cannot expect the Civil Service Tribunal to acquaint itself with all th e staff reports of 
the other promotion c andida tes and to consider th e levels of responsibilities exercised by th e 
promotion c andida tes in order to ascertain whether the appointing authority committed a m anifest 
error of assessment when it decided no t to promote him.
(see para. 61)
See:
4 February 2010 , F-15/08 W iame v C omm ission, para. 21
6. While an official is no t entitled to act in th e interests of the law or of the institutions and may put 
forward, in support of an action f or the annulment of a me asure, only such claims as relate to him 
personally, it is sufficient that the unlawfulness pleaded affected his legal situation f or a c laim b ased 
on th at unlawfulness to be regarded as on e which relates to him pe rsonally.
(see para. 63)
See:
23 January 2007 , F-43/05 C hassagne v C omm ission, para. 100
7. 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 that there is no r equirement in either the Staff Regulations or any institution’s internal rules for 
the reports and promotion p rocedures to be synchronised and th at the ad ministration e njoys a w ide 
discretion w hen organising the promotion p rocedure, eve n if it is desirable for the ad ministration t o 
make eve ry effort to have th e most recent staff reports available in order to decide on p romotions, its 
failure, in exceptional cases, to take account of those reports is no t unlawful, particularly where all the 
officials eligible for promotion h ave been treated in the same w ay.
That is particularly true where the absence of a s taff report is the result of the no rmal conduct of the 
reports procedure. Since th e appointment of officials may occur, depending on th e interests of the 
service, irrespective o f the starting da te of the appraisal period relating to th e reports procedure, it is 
therefore inevitable th at newly appointed officials will be appraised over a s horter pe riod th an th at 
used to assess th eir colleagues.
(see paras 64-67)
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
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8. 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 71, 75)
See:
26 January 1995 , T-60/94 P ierrat v C ourt of Justice, paras 31 a nd 32; 11 June 1996 , T-118/95 A nacoreta Correia v 
Comm ission, para. 82; 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 C omm ission, para. 69
8 October 2008 , F-81/07 B arbin v P arliament, para. 27