ORDER OF THE PRESIDENT OF THE THIRD CHAMBER

OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

11 November 2015

GK and GH

v

European Commission

‛Civil service — Staff Regulations — Reform of the Staff Regulations — New rules on career and promotion to grades AD 13 and AD 14 — Amendments to the types of posts in the Sysper 2 application — Action brought as a precautionary measure against a subsequent decision not to promote the applicant — Decisions of the Tribunal adopted in the course of the proceedings — Withdrawal — Removal from the register — Article 103(5) of the Rules of Procedure — Allocation of costs’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which GK and GH claimed that the Tribunal should, first, find that Article 45 of the Staff Regulations of Officials of the European Union (‘the new Staff Regulations’) and Annex I to the Staff Regulations, in the version resulting from the entry into force, on 1 January 2014, of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (OJ 2013 L 287, p. 15) and, secondly, annul the decisions of the appointing authority of the European Commission of 14 November 2014 not to include the applicants’ names on the list of officials promoted to grade AD 13.

Held:

Case F‑80/15 is removed from the register of the Tribunal. Each party is to bear its own costs.

Summary

Judicial proceedings — Costs — Action brought by an official as a precautionary measure due to uncertainty concerning the identification of the challengeable act — Failure of the defendant institution as regards communication of the act adversely affecting an official — Withdrawal by the applicant following decisions of the Civil Service Tribunal on the matter adopted in the course of the proceedings — Costs awarded against the defendant

(Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations, Art. 25(2); Rules of Procedure of the Civil Service Tribunal, Art. 103(5))

Under Article 103(5) of the Rules of Procedure of the Civil Service Tribunal, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs, if they have been applied for in the observations of the other party on the discontinuance. However, upon application by the party who discontinues or withdraws from proceedings, those costs shall be borne by the other party if this appears justified by the conduct of that party.

That provision is to be applied inter alia in the case of actions which are brought as a precautionary measure to protect against a plea of inadmissibility relied on by the appointing authority.

The Civil Service Tribunal takes the view that the appointing authority could have done more, with regard to the right to good administration provided for in Article 41 of the Charter of Fundamental Rights of the European Union and under Article 25(2) of the Staff Regulations, to fulfil its obligation to communicate in writing a decision such as the decision to amend in SysPer 2 the title of the type of post occupied by the applicants, the consequence of which was, with effect from 1 January 2014, to exclude them from the promotion procedure under the new Staff Regulations.

Accordingly, the conduct of the appointing authority justifies each party bearing its own costs.

(see paras 12-16)

See:

Order of 16 July 2015 in FG v Commission, F‑20/15, EU:F:2015:93, para. 70