ORDER OF THE GENERAL COURT (Sixth Chamber)
17 September 2018 (*)
(Procedure –– Failure to adjudicate on costs)
In Case T‑271/10 OST,
H, represented by M. Velardo, lawyer,
applicant,
v
Council of the European Union, represented by A. Vitro and F. Naert, acting as Agents,
defendant,
APPLICATION to remedy a failure to adjudicate on costs in the judgment of 11 April 2018, H v Council (T‑271/10 RENV, EU:T:2018:180),
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By order of 10 July 2014, H v Council and Others (T‑271/10, not published, ‘the first order’, EU:T:2014:702), the General Court dismissed the action brought by the applicant, H, first, for annulment, pursuant to Article 263 TFEU, of (i) the decision of 7 April 2010, signed by the Chief of Personnel of the European Union Police Mission (EUPM) in Bosnia and Herzegovina, by which the applicant was downgraded to the post of Criminal Justice Adviser — Prosecutor with the regional office of Banja Luka (Bosnia and Herzegovina), and (ii) the decision of 30 April 2010, signed by the Head of the EUPM referred to in Article 6 of Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (BiH) (OJ 2009 L 322, p. 22), confirming the decision of 7 April 2010, and, second, for damages, pursuant to Article 268 TFEU, for the harm which the applicant claimed to have suffered. Taking the view that it did not have jurisdiction to adjudicate on such an action, the General Court dismissed it in its entirety and ordered the applicant to bear her own costs and to pay the costs incurred by the Council of the European Union and the European Commission.
2 By judgment of 19 July 2016, H v Council and Commission (C‑455/14 P, ‘the judgment on appeal’, EU:C:2016:569), the Court of Justice set aside the first order, dismissed the action as inadmissible in so far as it was directed against the Commission and the EUPM, and referred the case back to the General Court for a decision on the substance of the action in so far as it was directed against the Council, reserving the costs.
3 Following the judgment on appeal, the General Court, by judgment of 11 April 2018, H v Council (T‑271/10 RENV, ‘the judgment of 11 April 2018’), dismissed the applicant’s action in its entirety and ordered her to pay the costs in accordance with Article 134(1) of the Rules of Procedure of the General Court.
Procedure and forms of order sought by the parties
4 By document lodged at the General Court Registry on 13 April 2018, the applicant sought clarification from that court concerning the costs relating to the appeal proceedings. In particular, as she was successful in the case which gave rise to the judgment on appeal and the Court of Justice had reserved the costs, the applicant takes the view that the General Court failed to adjudicate in the judgment of 11 April 2018 on the costs relating to the appeal.
5 As the applicant did not refer to any of the provisions of the Rules of Procedure, that document was classified, by decision of the President of the Sixth Chamber of the General Court of 27 April 2018, as an application under Article 165 of those rules.
6 On 27 April 2018, the application seeking a remedy for the failure to adjudicate on costs was served on the Council, which submitted its observations, pursuant to Article 165(3) of the Rules of Procedure, within the period prescribed. The Council contends that there was no failure to adjudicate on costs in the judgment of 11 April 2018.
Law
7 It is apparent from the wording of Article 165(1) of the Rules of Procedure that, where the General Court has failed to adjudicate on a specific head of claim or on costs, any party wishing to rely on that may apply to that court to supplement its decision. Article 165(4) of those rules provides that, after giving the parties an opportunity to submit their observations, the General Court is to decide, by way of an order, both on the admissibility and on the substance of the application.
Admissibility
8 It should be noted that in order for an application made on the basis of Article 165 of the Rules of Procedure to be admissible, two conditions must be satisfied; there must have been a failure to adjudicate and an application must be made within one month after delivery of the judgment or service of the order (see, to that effect, order of 11 October 1990, Sparr v Commission, T‑50/89 (92), EU:T:1990:57, paragraph 7).
9 First, with regard to the temporal requirement, as the judgment of 11 April 2018 was served on the parties on the day on which it was delivered, the applicant, by lodging her application pursuant to Article 165 of the Rules of Procedure on 13 April 2018, complied with the condition requiring such an application to be filed within one month after delivery of the judgment.
10 Second, as regard the fact that there must have been a failure to adjudicate on costs, it should be noted that such a failure to adjudicate results from an infringement by the General Court of its obligation to adjudicate on all the heads of claim before it, as set out in the application or in later submissions made by the parties (see, to that effect, order of 18 October 2017, United Parcel Service v Commission, T‑194/13 OST, not published, EU:T:2017:742, paragraph 24).
11 In that regard, it should be noted that Article 215 of the Rules of Procedure provides that where the Court of Justice sets aside a judgment or an order of the General Court and refers the case back to that court, the latter is seised of the case by the decision referring it. Under Article 219 of those rules, the General Court is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice.
12 In the present case, in the judgment on appeal, the Court of Justice set aside the first order and referred the case back to the General Court for a decision on the substance of the case in so far as it was directed against the Council and reserved the costs. Therefore, in accordance with Article 219 of its Rules of Procedure, the General Court was required, in the judgment of 11 April 2018, to decide not only on the costs relating to the proceedings instituted before it but also on the costs incurred in the appeal proceedings before the Court of Justice. It is clear that that judgment did not mention the costs relating to the appeal proceedings or those relating to the proceedings that concluded with the first order.
13 As the second condition, relating to admissibility, is fulfilled, the application to remedy a failure to adjudicate on costs is admissible.
Substance
14 In accordance with Article 133 of the Rules of Procedure, read in conjunction with Article 219 of those rules, a decision as to all the costs relating to the appeal proceedings and the proceedings initiated before the General Court is to be given in the judgment which closes the proceedings. Furthermore, Article 134(3) of those rules provides that the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
15 In the present case, it is common ground that the judgment of 11 April 2018 closing the proceedings did not grant the applicant’s application. Moreover, it is clear that, in the judgment on appeal, the Council, which had contended that the application in the proceedings which concluded with the first order was inadmissible, was unsuccessful as regards that head of claim, as well as the head of claim seeking the dismissal of the appeal.
16 Accordingly, in the light of the circumstances of the case, it is necessary to supplement paragraph 174 of the judgment of 11 April 2018 and paragraph 2 of its operative part, so that, first, the Council is to bear the costs incurred by the applicant and itself up to the time of delivery of the judgment on appeal, only in so far as they relate to the question of the admissibility of the action, and, second, the applicant is to bear all the other costs incurred by the Council and by herself both before and after that judgment was delivered.
Costs
17 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
18 In the present case, as neither party has made a claim regarding costs, each party is to be ordered to bear their own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. Paragraph 174 of the judgment of 11 April 2018, H v Council (T‑271/10 RENV, EU:T:2018:180), is amended as follows:
‘Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Nevertheless, in accordance with Article 133 of the Rules of Procedure, read in conjunction with Article 219 of those rules, a decision as to all the costs relating to the appeal proceedings and the proceedings initiated before the General Court is to be given in the judgment which closes the proceedings. Furthermore, Article 134(3) of those rules provides that the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. In the circumstances of the present case, it is appropriate to order the Council to bearthe costs incurred by the applicant and itself up to the time of delivery of the judgment on appeal, only in so far as they relate to the question of the admissibility of the action, and to order the applicant to bear all the other costs incurred by the Council and herself both before and after that judgment was delivered.’
2. Paragraph 2 of the operative part of the judgment of 11 April 2018, H v Council (T‑271/10 RENV, EU:T:2018:180), is amended as follows:
‘The Council shall bear its own costs and pay the costs incurred by H up to the time of delivery of the judgment of 19 July 2016, H v Council and Commission( C‑455/14 P, EU:C:2016:569), only in so far as they relate to the question of the admissibility of the action. H shall bear all the other costs incurred by the Council and herself both before and after that judgment was delivered.’
3. H and the Council shall bear their own costs in relation to the present application.
Luxembourg, 17 September 2018.