ORDER OF THE PRESIDENT OF THE THIRD CHAMBER

OF THE EUROPEAN UNION

CIVIL SERVICE TRIBUNAL

11 November 2015

GM and GN

v

European Commission

‛Civil service — Staff Regulations — Reform of the Staff Regulations — New rules concerning staff careers and promotion to grade AST 10 — Changes to post types in the SysPer 2 application — Action brought to protect the applicant’s position in the event of a subsequent decision not to promote them — Decisions of the Tribunal delivered while the proceedings were pending — Discontinuance — Removal from the register — Article 103(5) of the Rules of Procedure — Incidence of costs’

Application:

under Article 270 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, by which GM and GN asked the Tribunal, first, to declare the unlawfulness of Article 45 of the Staff Regulations of Officials of the European Union (‘the New Staff Regulations’) and Annex I of those regulations, as they stood following the entry into force, on 1 January 2014, of the 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, to annul the decision of the appointing authority of the European Commission, of 14 November 2014, not to include the applicants’ names in the list of officials promoted to grade AST 10.

Held:

Case F‑81/15 is removed from the register of the Tribunal. The parties shall each bear their own costs.

Summary

Judicial proceedings — Costs — Protective action brought by an official because of uncertainty surrounding the identification of the act susceptible to challenge — Default of the defendant institution with regard to communicating the act adversely affecting an official — Applicant discontinuing the proceedings following decisions of the Civil Service Tribunal in the same field, delivered while the proceedings were current — Costs to be borne by the defendant

(Charter of Fundamental Rights of the European Union, Art. 41; Staff Regulations of Officials, 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 incurred by the other party, if they have been applied for in the other party’s observations on the discontinuance. However, upon application by the party who discontinues or withdraws from proceedings, those costs are to be borne by the other party if this appears justified by the conduct of that party.

It is appropriate to apply that provision in cases (amongst others) where the action can be seen to have been brought in order to protect against a ground of inadmissibility raised by the appointing authority.

The Civil Service Tribunal considers that the appointing authority could have acquitted itself better, with regard to the right to good administration laid down in Article 41 of the Charter of Fundamental Rights of the European Union and in compliance with its obligation under the second paragraph of Article 25 of the Staff Regulations to communicate, in writing, a decision such as the decision to change the title of the type of post occupied by the applicants in SysPer 2, which caused them to be excluded, as from 1 January 2014, from the promotion exercise under the New Staff Regulations.

Accordingly, the conduct of the appointing authority justifies an order that each party should bear their own costs.

(see paras 12-16)

See:

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