ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
11 September 2009 (*)
(Removal from the Register)
In Case F‑90/05,
ACTION under Articles 236 EC and 152 EA,
Martina Zelenková, official of the European Parliament, residing in Brussels (Belgium), represented initially by G. Vandersanden, L. Levi and C. Ronzi, lawyers, and subsequently by L. Levi, lawyer,
applicant,
v
European Parliament, represented by K. Zejdová and L.G. Knudsen, acting as Agents,
defendant,
supported by
Council of the European Union, represented initially by M. Arpio Santacruz and I. Šulce, and subsequently by M. Arpio Santacruz and M. Simm, acting as Agents,
intervener,
THE PRESIDENT OF THE SECOND CHAMBER OF THE TRIBUNAL
makes the following
Order
1 By letter received at the Tribunal Registry on 6 May 2009 by fax (the original was lodged on 8 May 2009), the applicant informed the Tribunal, in accordance with Article 74 of the Rules of Procedure, that she wished to discontinue the proceedings.
2 In the same letter, the applicant requested the Tribunal to order the defendant to pay at least part of the costs. In that regard, she noted, first of all, that the defendant refuses to accept any responsibility for payment of the costs, a position which is at odds with the practice of the other institutions in comparable cases. Next, she submitted that the questions of principle raised in the present action were considered by the Court of First Instance of the European Communities to be so important that it allocated Case T‑58/05 Centeno Mediavilla and Others v Commission to a Chamber composed of five Judges (see, in that regard, Case T‑58/05 Centeno Mediavilla and Others v Commission [2007] ECR II‑2523, paragraph 24).
3 In a letter received at the Tribunal Registry on 27 May 2009, the defendant submitted no observations on the applicant’s discontinuance.
4 However, the defendant did inform the Tribunal that it could not agree to the applicant’s request that it pay at least part of her costs. In that regard, the defendant contended that since it was ‘neither the legislator nor … the initiator’ of the reform of the Staff Regulations, it was not in a position to provide detailed information. The defendant also maintained that it had not committed any breach of the rules; nor had it been responsible for any ambiguity. Lastly, the defendant states that the action was brought after it has pledged to all staff members on 27 June 2005 that it would extend to all officials concerned – whether or not they had disputed their grading – the effects of any judgment holding Article 12(3) of Annex XIII to the Staff Regulations to be unlawful.
5 The intervener did not submit observations on the discontinuance.
The discontinuance
6 The applicant gave notice in writing that she intended to discontinue her action, without making her decision conditional upon the defendant agreeing to pay part of her costs. The discontinuance is therefore pure and simple. Accordingly, there is nothing to prevent the Tribunal from accepting it, pursuant to Article 74 of the Rules of Procedure.
7 This being so, in accordance with Article 74 of the Rules of Procedure, the present case must be removed from the Register of the Tribunal.
Costs
8 It should be borne in mind that, by virtue of Article 122 of the Rules of Procedure, Chapter 8 of Title 2 of those Rules – concerning costs – is to apply to cases brought before the Tribunal only from the date on which those Rules entered into force, that is to say, from 1 November 2007. The relevant provisions of the Rules of Procedure of the Court of First Instance are to continue to apply, mutatis mutandis, to cases pending before the Tribunal before that date, in accordance with Article 3(4) of Council Decision 2004/752/EC, Euratom, of 2 November 2004 establishing the European Union Civil Service Tribunal (OJ 2004 L 333, p. 7).
9 Under the first sentence of the first subparagraph of Article 87(5) of the Rules of Procedure of the Court of First Instance, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance. The defendant in the present case has submitted in its observations on the discontinuance that there is no reason for it to pay a share of the applicant’s costs. As a consequence, it has requested the Tribunal to order the applicant to bear her own costs.
10 However, under the second sentence of the first subparagraph of Article 8(5) of the Rules of Procedure of the Court of First Instance, upon application by the party who discontinues or withdraws from proceedings, the costs are to be borne by the other party if this appears justified by the conduct of that party.
11 In the present case, the applicant has requested that at least part of her costs be paid by the defendant for reasons of equity and because of the complexity of the legal question raised by the present case. The defendant has contended that that request is unfounded.
12 In that regard, the Tribunal notes that the defendant does not claim that it provided sufficient information regarding the implications of the reform of the Staff Regulations for the individual situation of the applicant; rather, it asserts that it was impossible for it to do so. It is apparent from the preamble to Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ 2004 L 124, p. 1) and from the legislative procedure that, in accordance with Article 283 EC, it was consulted twice on the proposal for reform of the Staff Regulations. Consequently, it has not been shown that it was impossible for the defendant to inform the applicant of the practical implications of the new provisions.
13 The Tribunal notes that, in a context which appears at first sight to be analogous, the Court of First Instance held, in Centeno Mediavilla and Others v Commission (paragraphs 160 to 165), that a failure to provide information may have given rise, in the minds of the applicants in that case, to understandable doubts about the legality of their initial grade of classification as a result of a recruitment procedure which was not free from ambiguity as regards an essential condition of appointment. The Court of First Instance inferred from this that the proceedings before it could be regarded as having been in part occasioned by the conduct of the Commission of the European Communities and, accordingly, held that in those circumstances it was fair that the Commission should be ordered to pay half of the costs incurred by the applicants.
14 In the present case, however, it appears that the applicant, who had been an official at the European Parliament since 1 December 2004, brought this action on 19 September 2005, whereas the defendant had informed all its staff members on 27 June 2005 that it would extend to all officials affected – whether or not they had disputed their grading – the effects of any judgment finding that Article 12(3) of Annex XIII to the Staff Regulations was unlawful. Moreover, the applicant accepts, impliedly but none the less definitely, that there is no material difference between her situation and that in Centeno Mediavilla and Others v Commission, in so far as she is discontinuing her action in the light of the judgment of the Court of Justice dismissing the appeal in Case C‑443/07 P Centeno Mediavilla and Others v Commission [2008] ECR I‑0000.
15 In view of that fact, the Tribunal does not consider it appropriate to extend to the applicant the approach adopted by the Court of First Instance in Case T‑58/05 Centeno Mediavilla and Others v Commission, since her action does not ultimately appear to have been justified by the conduct of the defendant.
16 That conclusion is not invalidated by the fact that the present action raised the same issues of principle as Centeno Mediavilla and Others v Commission (both C‑443/07 P and T‑58/05) or that other institutions have agreed to pay part of the costs in similar cases.
17 In those circumstances, the Tribunal considers that it must apply the first sentence of the first subparagraph of Article 87(5) of the Rules of Procedure of the Court of First Instance within the limits of the observations submitted by the defendant with regard to the discontinuance, which means that the defendant and the applicant must each bear their own costs.
18 Furthermore, Article 87(4) of the Rules of Procedure of the Court of First Instance provides that institutions which have intervened in the proceedings are to bear their own costs.
19 It follows that the Council must bear its own costs.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE TRIBUNAL
hereby orders:
1. Case F-90/05 Zelenková v Parliament is removed from the Register of the Tribunal.
2. Ms Zelenková and the European Parliament shall each bear their own costs.
3. The Council of the European Union shall bear its own costs.
Luxembourg, 11 September 2009.