JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

10 November 2011





Case F-20/09





Marc Juvyns

v

Council of the European Union

(Civil service – Officials – Promotion – 2008 promotion procedure – Consideration of comparative merits – Procedure based on 2005/2006 annual staff reports – Criterion of the level of responsibilities exercised)

Application: brought under Articles 236 EC and 152 EA, in which Mr Juvyns essentially seeks annulment of the Council’s decision not to promote him to grade AST 7 in the 2008 promotion procedure.

Held: The application is dismissed. The applicant is to bear his own costs and those incurred by the Council.

Summary

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 and 91)

2. Officials – Promotion – Consideration of comparative merits – Procedures

(Staff Regulations, Art. 45; Annex XIII, Art 10)

3. Officials – Promotion – Consideration of comparative merits – Administration’s discretion – Factors which may be taken into consideration

(Staff Regulations, Art. 43)

4. Officials – Promotion – Consideration of comparative merits – Factors which may be taken into consideration

(Staff Regulations, Art. 45)

5. Officials – Promotion – Complaint by a candidate who has not been promoted – Rejection decision – Obligation to state reasons – Scope

(Staff Regulations, Arts 25 and 45)

1. The rule of correspondence between the prior administrative complaint and the action applies only where the application alters the relief sought, as submitted in the complaint, or the cause of action of the dispute, and the concept of ‘cause of action’ must be given a broad interpretation.

As regards claims for annulment directed against a decision of the administration, the ‘cause of action of the dispute’ must be understood as the applicant’s challenge to the substantive legality of the contested decision or, in the alternative, the challenge to its procedural legality.

(see para. 41)

See:

1 July 2010, F-45/07 Mandt v Parliament, para. 119

2. As regards officials in the AST function group, Article 10 of 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 administration is obliged to comply with those rates, the appointing authority is fully entitled to compare the merits of officials in the AST function group only with those of other officials in the same career stream.

In that respect, comparing the merits of officials in the AST function group by career stream for the purposes of the promotion procedure does not infringe Article 45 of the Staff Regulations, under which the comparative merits of all officials eligible for promotion must be considered, since Article 10 of Annex XIII to the Staff Regulations is a special rule which derogates from the general provisions of the Staff Regulations.

(see paras 42, 43)

See:

22 December 2008, C-443/07 P Centeno Mediavilla and Others v Commission, para. 107, confirming the judgment of 11 July 2007, T-58/05 Centeno Mediavilla and Others v Commission, para. 129

3. Although the staff report constitutes an indispensable criterion of assessment each time an official’s career is taken into consideration for the purpose of adopting a decision concerning his promotion, Article 43 of the Staff Regulations requires that staff reports be drawn up only once every two years. Since the Staff Regulations do not require the promotion procedure to have the same regularity as the reports procedure, they do not preclude the appointing authority from deciding on a promotion without having a recent staff report available.

Given that there is no requirement in either the Staff Regulations or any of the institution’s internal rules for the reports and promotion procedures to be synchronised and that the administration enjoys a wide discretion when organising the promotion procedure, even if it is desirable for the administration to make every effort to have the most recent staff reports available in order to decide on promotions, its failure, in exceptional cases, to take account of those reports is not unlawful, particularly where all the officials eligible for promotion have been treated in the same way.

That is particularly true where the absence of a staff report is the result of the normal conduct of the reports procedure.

(see paras 45-47)

See:

17 December 1992, C-68/91 Moritz v Commission, para. 16

15 November 2001, T-194/99 Sebastiani v Commission, paras 45, 46 and 49

4. In view of the limited number of posts available under the budget, an institution may, in the course of the promotion procedure, properly take into account, as a secondary consideration, the actual time worked by an official and, all other merits being equal, give priority for promotion to other officials who, on an objective view, have carried out their duties on a more sustained basis and thus contributed to the continuity and, therefore, the interests of the service during the reference period to a much greater extent than the applicant.

In that respect, when it comes to taking account of officials’ absences in the promotion procedure, the administration is not obliged to take different account of the number of days’ leave depending on the reasons for those absences.

(see paras 50, 53)

See:

13 April 2005, T-353/03 Nielsen v Council, paras 76 and 77

5. Although the appointing authority is not required to include in its decisions not to promote officials the reasons for those decisions, it is, however, required to provide those reasons when it rejects a complaint from a candidate who has not been promoted.

The extent of the obligation to state reasons depends on the specific circumstances, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressee of the measure may have in obtaining explanations. In the case of a statement of reasons for a decision adopted in a procedure affecting a large number of individuals, such as a promotion procedure, the appointing authority cannot therefore be expected, when rejecting a complaint, to provide reasons for its decision which go further than the claims relied on in that complaint, in particular by explaining why the merits of each of the officials eligible for promotion were greater than those of the author of the complaint.

(see paras 66, 70)

See:

26 January 1995, T-60/94 Pierrat v Court of Justice, paras 31 and 32; 27 April 1999, T-283/97 Thinus v Commission, para. 73; 25 October 2005, T-83/03 Salazar Brier v Commission, para. 78; 23 November 2006, T-422/04 Lavagnoli v Commission, para. 69

8 October 2008, F-81/07 Barbin v Parliament, para. 27