Order — ECLI:EU:T:2000:103
Date: 2000-04-07
Language of the case: French
Court formation: President of the Chamber
Based on: Merger Treaty (1965)
Subject matter: Staff regulations and employment conditions - EC
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Interpretation of a judgment
Procedure: Application for interim measures - inadmissible;Action for damages

summary dismissal for grave misconduct”, the penalty prescribed by Article 38 of the Staff Regulations of the Bank, might be declared void if the Court found that such misconduct had not occurred‘ (paragraph 27). 34. Under Article 233 EC, '[t]he institution or institutions whose act has been declared void or whose failure to act has been declared contrary to this Treaty shall be required to take the necessary measures to comply with the judgment of the Court of Justice‘. 35. Article 242 EC provides that: 'Actions brought before the Court of Justice shall not have suspensory effect. The Court of Justice may, however, if it considers that circumstances so require, order that application of the contested act be suspended.‘ 36. It is clear from the documents in the present case not only that the EIB has not complied with the Hautem judgment but moreover that it refuses to do so before the Court of Justice has delivered its judgment in Case C-449/99 P. 37. By letters of 8, 22 and 30 December 1999, the EIB refused to accede to the requests of counsel for the applicant that it comply with the Hautem judgment on the ground that such compliance would be contrary to the proper administration of justice inasmuch as two paragraphs in the operative part of that judgment required to be clarified by the judgment to be delivered by the Court of Justice in Case C-449/99 P. 38. The fact remains that the EIB did not lodge an application for interim measures in order to obtain a stay of execution of the contested judgment. It cannot therefore argue that awaiting the judgment of the Court of Justice constitutes proper administration of justice. As stated above, the institution whose act has been declared void is required to take the measures necessary to comply with the judgment annulling that act. It is for the Court of Justice alone, should it consider that circumstances so require, to order that application of the contested act be suspended. 39. The EIB has argued in this regard that the reason why it had not considered it appropriate to seek a stay of execution was that, in view of the existing case-law on the matter, no stay would have been granted to it because a body such as the EIB could never prove irreparable damage. This condition governing any stay of execution would certainly be unsatisfied, it argues, since it could reasonably be argued that, in the event of a judgment upholding its appeal, it could use the legal means at its disposal to recover any amounts paid to the applicant. That being so, it appears that the EIB deliberately acted to apply a de facto stay of execution which it considered that it could not secure by legal action and that its conduct therefore constitutes an infringement of the Treaty provisions. 40. So far as concerns the EIB's offer to place on deposit an amount corresponding to the arrears of salary which the applicant ought to have received since his dismissal, suffice it to hold that such a measure does not conform to the operative part of the Hautemjudgment and cannot therefore be treated as a measure of compliance with that judgment. The EIB's assertion that such a measure would provide the applicant with all guarantees of proper compliance does not in any way alter this conclusion. It is for the Court of Justice alone to prescribe, pursuant to Article 243 EC, any interim measures which it may consider to be necessary; that is a prerogative which the EIB cannot arrogate to itself. 41. Nor can the EIB rely on the fact that the reasonable period for compliance with the Hautem judgment has not yet expired. Such an argument could be taken into account only if the EIB had begun to adopt the measures necessary for compliance with that judgment or had demonstrated its intention to take those measures without yet having had the time, for material or administrative reasons, to put them into effect. No such circumstances have been invoked by the EIB. Indeed, on the contrary, as is clear from the abovementioned correspondence and the statements made by counsel for the EIB at the hearing, the EIB has made clear its intention not to comply with the Hautem judgment but to wait for pronouncement of the judgment of the Court of Justice. 42. Finally, as regards the argument that it is vital that the Court of Justice should determine whether the link between the EIB and its staff is governed by staff regulations or is contractual, it must be remembered that compliance with the Hautem judgment does not prejudge the solution which the Court of Justice may give to such an issue in the context of the judgment on the appeal. Moreover, in its above judgment in Mills v EIB (paragraph 22), the Court of Justice ruled that: 'The system adopted for the relations between the Bank and its employees is ... contractual ...‘. 43. It follows that the conduct of the EIB in refusing to take any specific measure to comply with the Hautem judgment amounts to an infringement of Article 233 EC and consequently constitutes unlawful conduct capable of rendering the Community liable (see, to this effect, Case T-84/91 Meskens v Parliament [1992] ECR II-2335, paragraph 81, upheld by the Court of Justice in Case C-412/92 P Parliament v Meskens [1994] ECR I-3757, and Frederiksen v Parliament, cited above, paragraph 96). The existence of damage and of a causal link Arguments of the parties 44. The applicant submits that he has suffered non-material damage by reason of the EIB's failure to comply with the Hautem judgment. 45. He points out that he, together with his family, is in a situation of uncertainty. Although he has obtained a favourable judgment, compliance with which would re-establish his rights, he must await the outcome of the appeal even though the EIB has not requested a stay of execution of that judgment. 46. The applicant submits in this regard that his present situation is extremely precarious since, apart from the ever-increasing financial problems resulting from the decision to dismiss him, and notwithstanding the fact that he is entitled not to have to seek employment again, he is not in the situation of a servant of the EIB either. 47. Further, the failure to comply with the Hautem judgment leaves doubts as to the applicant's professional competence and integrity. Potential employers whom he might contact would be entitled to raise doubts as to his work-related qualities (Case T-59/92 Caronna v Commission [1993] ECR II-1129). 48. The EIB denies that there has been any non-material damage. In its view, it appears at the very least bold for the applicant to plead his integrity when he has been guilty of conduct which, even if it did not, in the Court's view, justify dismissal, was at least adjudged to be serious. In any event, the EIB asserts that it has not put in question, even indirectly, the integrity of the applicant, in particular vis-à-vis employers whom he has approached for the purpose of finding work. 49. Second, the EIB argues that there is no direct causal link between the alleged fault and the damage which the applicant pleads. 50. Given that the damage pleaded by the applicant relates to the consequences of the dismissal decision and not to those of non-compliance with the Hautem judgment, it has not been established that such damage would not have arisen had the EIB properly complied with that judgment. Findings of the Court 51. With regard to damage, the refusal by a Community institution or body to comply with a judgment of the Court of First Instance, even if such a refusal is limited to the period between delivery of that judgment and that of the judgment to be delivered by the Court of Justice on the appeal, will adversely affect the confidence that litigants must have in the Community judicial system, which is based, in particular, on respect for the decisions made by the Community Courts. Consequently, irrespective of any material damage which might result from non-compliance with a judgment, an express refusal to comply with it will in itself involve non-material damage for the party who has obtained a judgment in his favour. 52. Furthermore, the unlawful conduct of the EIB has unquestionably placed the applicant in a prolonged state of uncertainty and anxiety with regard to the recognition of his rights and his professional future, whilst the indeterminate nature of his present work status has also caused him difficulties in finding employment. This situation manifestly constitutes non-material damage (Meskens v Parliament, cited above, paragraph 89, and Frederiksen v Parliament, paragraphs 110 and 112). 53. With regard to the causal link, suffice it to hold that the non-material damage incurred by the applicant is directly attributable to the EIB's decision not to comply with the Hautem judgment and would not have arisen had the EIB properly complied with that judgment. 54. It follows that the existence of a causal link between the unlawful conduct of the EIB and the damage caused has been established. Conclusion 55. In view of the particular circumstances of this case and having regard to the significance of the non-material damage incurred by the applicant, the award of EUR 25 000 should represent appropriate compensation for that damage. Costs 56. Under Article 87(2) 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. However, Article 88 of those Rules provides that in proceedings between the Communities and their servants the institutions are to bear their own costs. 57. Since the EIB has been unsuccessful in the main action, it must be ordered to pay all the costs in accordance with the form of order sought by the applicant. 58. Concerning the costs of the proceedings for interim measures, since the applicant has been unsuccessful, each party must be ordered to pay its own costs. 59. Pursuant to Article 97(3) of the Rules of Procedure, the decision as to costs may order payment to the cashier of the Court of the whole or any part of amounts advanced as legal aid. The Registrar is required to take steps to obtain the recovery of those sums from the party ordered to pay them. 60. By order of 26 June 2000, the President of the Fifth Chamber of the Court granted the applicant legal aid in the maximum amount of EUR 8 000. An advance of EUR 3 000 was granted to the applicant's lawyer in respect of his expenses and fees. The EIB must therefore be required to pay to the cashier of the Court the sum of EUR 3 000, or any lower amount justified by the applicant as expenses connected to the main action. Should the expenses relating to the main proceedings exceed EUR 3 000, the remaining amount should be paid by the EIB directly to the applicant. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber), hereby: 1. Orders the European Investment Bank to pay to the applicant EUR 25 000 in reparation of the non-material damage which he has incurred; 2. Orders the European Investment Bank to pay the costs relating to the main proceedings; 3. Orders the European Investment Bank to pay to the cashier of the Court the sum of EUR 3 000, or any lower amount justified by the applicant as expenses relating to the main proceedings; 4. Orders each party to bear its own costs in regard to the proceedings for interim measures. García-Valdecasas Lindh Cooke Delivered in open court in Luxembourg on 12 December 2000. H. Jung P. Lindh Registrar President 1: Language of the case: French. ECR