62012FO0038_EN
Parties
Grounds
Operative part
Parties
In Case F‑38/12 R,
APPLICATION brought under Articles 278 TFEU and 157 EA and Article 279 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof,
BP, member of the contract staff of the European Union Agency for Fundamental Rights, residing in Vienna (Austria), represented by L. Levi and M. Vandenbussche, lawyers,
applicant,
v
European Union Agency for Fundamental Rights, represented by M. Kjærum, acting as Agent, and by B. Wägenbaur, lawyer,
defendant,
THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL
makes the following
Order
Grounds
1. By application lodged at the Registry of the Civil Service Tribunal on 19 March 2012, BP is seeking, primarily, suspension of the decisions of 27 February 2012, by which the Director of the European Union Agency for Fundamental Rights (FRA) decided, first, not to renew her contract as a member of the contract staff, and, second, to transfer the applicant to another post within the FRA until expiry of that contract (‘the contested decisions’).
Background to the dispute
2. On 1 September 2007, the applicant was recruited by the FRA under a contract as a member of the contract staff for two years to carry out duties in the ‘Procurement and Finance’ team of the ‘Administration’ department. That contract was renewed for three years, that is, until 30 August 2012.
3. By letter of 30 January 2012, the applicant requested that her contract be renewed.
4. On 27 February 2012, the Director of the FRA decided, first, not to renew the applicant’s contract, and, second, to reassign her to the ‘Communications and Awareness Raising’ department, until 30 August 2012.
5. As regards the background against which those decisions were adopted, the applicant indicates that, on several occasions, she had informed the Director of the FRA of irregularities in the award or performance of certain contracts and that, in the absence of a reaction from him, she had informed the European Anti-Fraud Office (OLAF).
6. The applicant also states that, during a meeting which took place on 27 February 2012 with the staff of the FRA, the Director of the FRA made negative and defamatory comments about her. That allegation is disputed by the FRA.
7. By letter of 5 March 2012, the applicant submitted a complaint on the basis of Article 90(2) of the Staff Regulations against the two decisions adopted on 27 February 2012 by the Director of the FRA.
8. The applicant, who commenced sick leave on 8 March 2012, indicates in her application for interim measures that she is still on sick leave.
Procedure and forms of order sought by the parties
9. By separate application received at the Registry of the Civil Service Tribunal on 19 March 2012, the applicant primarily seeks annulment of the contested decisions. That application was registered at the Registry of the Civil Service Tribunal as Case F‑38/12.
10. In the present application for interim measures, the applicant claims that the President of the Civil Service Tribunal should:
– order that application of the contested decisions be suspended;
– order renewal of her contract until the Tribunal rules on the application in the main proceedings;
– remind the Director of the FRA that he is not authorised to damage her personal and professional reputation by disclosing publicly or to unauthorised persons the irregularities which she had reported to him under the rules on whistle blowing at the FRA;
– remind the Director of the FRA that he is not authorised to make statements damaging her reputation.
11. In its observations in reply, the FRA contends that the President of the Civil Service Tribunal should dismiss the claims made by the applicant and reserve the costs.
12. By letter of 30 April 2012, the applicant sought leave to put further arguments, in writing or orally, in response to the defendant’s observations.
13. In that regard, it must be borne in mind that the judge hearing the application for interim measures is empowered to rule without first hearing the parties in their oral observations, and, a fortiori, without taking account of the written pleadings or evidence submitted on the initiative of the parties after the written procedure or a possible hearing. On that point it enjoys wide discretion (Order of the President of 30 April 2010 in Case C-113/09 P(R) Ziegler SA
v Commission, paragraphs 26 to 30).
14. In the present case, the President of the Tribunal considered that a hearing or a second exchange of pleadings was not necessary and informed the applicant accordingly.
15. In addition, in so far as, in the abovementioned letter, the applicant had already put further arguments in response to the observations made by the defendant before even having been invited to do so by the Tribunal, it must be considered that those arguments are inadmissible and that no account should be taken of them in the examination of the present case.
Law
16. Under Articles 278 TFEU and 279 TFEU, the Court of Justice of the European Union may, in cases before it, if it considers that the circumstances so require, order that operation of the contested act be suspended or prescribe any other necessary interim measures.
17. According to, first, Article 39 of the Statute of the Court of Justice, applicable to the Tribunal under Article 7(1) of Annex I to that Statute, and, second, Article 103(1) of the Rules of Procedure, the President of the Tribunal has the power to grant the interim measures referred to in Articles 278 TFEU and 279 TFEU.
18. Under Article 102(2) of the Rules of Procedure, an application for interim measures must state, in particular, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for.
19. According to settled case-law, the conditions of urgency and establishment of a prima facie case are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied (Order of the President of 3 July 2008 in Case F-52/08 R Plasa v Commission, paragraph 21 and the case-law cited). In addition, the judge hearing an application for interim relief must balance the interests at stake (Order of the President of 15 February 2011 in Case F‑104/10 R de Pretis Cagnodo and Trampuz de Pretis Cagnodo
v Commission, paragraph 16).
20. In the context of this overall examination, the judge hearing the application for interim relief enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (Order in Plasa
v Commission, paragraph 22 and the case-law cited).
21. In the circumstances of the present case it is necessary first of all to examine whether the condition as to urgency is fulfilled.
22. In that regard, according to settled case-law, the purpose of the procedure for interim measures is not to ensure that the damage is made good but to ensure that the judgment on the substance of the case takes full effect. For the purpose of attaining that objective, the measures sought must be urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, they must be adopted and produce their effects before a decision is reached in the main action (Order of the President of 25 March 1999 in Case C-65/99 P(R) Willeme
v Commission, paragraph 62, Order of the President of 10 September 1999 in Case T‑173/99 R Elkaïm and Mazuel
v Commission, paragraph 25). Moreover, it is for the party seeking interim measures to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that nature (Order of the President of 19 December 2002 in Case T‑320/02 R Esch-Leonhardt and Others
v ECB, paragraph 27).
23. The applicant relies on several forms of damage, some linked to one or the other of the contested decisions, and others linked to both contested decisions.
24. As regards the contested decision announcing the re-assignment of the applicant, it is necessary to note that, having regard to the broad discretion which the institutions, bodies and agencies of the European Union have in organising their departments on the basis of the tasks entrusted to them and in assigning their staff accordingly, a re-assignment decision, even if it causes inconvenience for the officials or agents concerned, does not constitute an abnormal and unforeseeable event in their careers. In those circumstances, suspension of operation can be justified only by imperative and exceptional circumstances likely to cause the official or agent in question serious and irreparable damage (Order of the President of 12 July 1996 in Case T-93/96 R Presle
v Cedefop, paragraph 45).
25. In the present case, the applicant alleges that damage has been caused to her career. She relies, first of all, on the fact that she does not have professional experience in the field of activity of the new department to which she has been assigned, and on the fact that she risks losing the expertise which she has acquired in the field of activity of her former department.
26. However, such circumstances cannot be regarded as imperative and exceptional within the meaning of the case-law mentioned above and are therefore incapable of providing justification for an order for interim measures.
27. Next, the applicant alleges that the duties associated with her new post do not correspond to her grade. However, she limits herself to that allegation, without adducing the evidence that such harm, even if established, could not be made good by a judgment annulling a measure or by subsequent financial compensation.
28. Moreover, it is all the more difficult to establish that irreparable damage was caused to the applicant’s career as a result of the contested decision announcing her re-assignment as the applicant is expected to carry out her new duties only for a period of around six months.
29. The applicant claims that she has suffered financial damage as a result of the contested decision relating to the non-renewal of her contract.
30. In that regard, it must be borne in mind that purely financial damage cannot, save in exceptional circumstances, be regarded as irreparable, or even as being reparable only with difficulty, since, as a general rule, it can be the subject of subsequent financial compensation (Order of the President of 27 April 2010 in Case T‑103/10 P(R) U
v Parliament, paragraph 35).
31. Admittedly, even in the event of purely financial damage, an interim measure is justified if it appears that, without that measure, the party seeking it would be in a position that could imperil her financial viability, since she does not have an amount of money which under normal circumstances should enable her to meet all the expenditure necessary for satisfying her own basic needs until judgment is given on the main action (Order in U
v Parliament, paragraph 36).
32. However, in order to be able to determine whether the alleged damage is serious and irreparable and therefore provides grounds for, exceptionally, the suspension of the operation of the contested decision, the judge hearing the application must, in all cases, have clear and precise indications, supported by detailed documents that show the financial situation of the party seeking the relief and which allow him to ascertain the consequences that would probably ensue in the absence of the measures applied for (Order in U
v Parliament, paragraph 37).
33. In the present case, according to her own statements, the applicant receives a monthly salary of EUR 3 300 and, as from September 2012, she will receive unemployment benefit of an amount of EUR 1 980 per month.
34. Furthermore, it is apparent from the documents before the Tribunal that in 2008 the applicant bought an apartment in Vienna (Austria) for EUR 156 500. The applicant states that she must spend EUR 1 233.72 per month, first, for the total costs relating to reimbursement of the loan linked to that purchase and, second, for all of the charges relating to living in that apartment (including internet access and cable television). Therefore, for the time being she has a disposable monthly income of EUR 2 066.28 to enable her to satisfy her other basic needs. As from September 2012, on the assumption that her contract with the FRA is not renewed and that she will consequently be unemployed, she will have a monthly disposable income of EUR 746.28, which represents a monthly loss of EUR 1 320.
35. Moreover, although the applicant states that she provides financial assistance to her father who lives in Romania, she does not furnish any documentary evidence to substantiate that allegation.
36. The applicant adds that she must pay part of her healthcare costs and that she must pay legal costs. However, she does not indicate the amount of those costs and does not furnish any evidence in that regard.
37. Moreover, the applicant, who is married, indicates that her spouse resides and works in Barcelona (Spain), that he pays a monthly rent of EUR 1 200 and that he must support the needs of his own parents and his own two children. However, no documents are produced as evidence of those costs.
38. In particular, the applicant adduces no evidence of the income which her spouse receives, income which must be taken into account, in principle, in the examination of the applicant’s ability to satisfy her basic needs.
39. Neither is it apparent from the documents before the Tribunal that the applicant has dependant children.
40. Finally, the applicant indicates that she owns, with her husband, an apartment in Bucharest (Romania). Therefore she owns two apartments.
41. In the light of the above considerations, in particular the uncertainty as regards the determination of the total income out of which the applicant can satisfy her own basic needs, it must be concluded that she has not established the existence of exceptional circumstances which could cause the financial damage which she alleges to be regarded as being irreparable or even reparable only with difficulty.
42. Although the party seeking interim measures is not required to prove that he is in need, he must however, according to the case-law of the European Union Civil Service Tribunal referred to in paragraph 32 of the present Order, show that he is unable to meet all the expenditure necessary for satisfying his own basic needs.
43. As regards the damage to the health of the applicant, which, she claims, was caused by the contested decisions, that applicant merely produces a medical certificate, dated 8 March 2012, from which it is apparent that she has psychosomatic disorder, caused by stress and mild depression.
44. That document alone, does not establish that there has been serious and irreparable damage. Moreover, the existence of a sufficient link between the health problems from which the applicant suffers and the interim measures which she seeks in the present application for interim relief – those interim measures being supposed to prevent the persistence of the health problems in question – has not been demonstrated.
45. Finally, even supposing that the applicant intends to plead distinct damage, deriving from the possibility that the Director of the FRA, by his public statements or by the circulation of written words which adversely affect her personal and professional reputation, such damage is not established.
46. In fact and although that assertion is disputed by the defence, the applicant merely alleges, without establishing, that during the meeting which was held on 27 February 2012 with the staff of the FRA, the Director of the FRA made negative and defamatory comments about her.
47. In addition, the applicant produces an electronic mail from the same day addressed to the staff of the FRA by a head of department of the FRA, in which he refers to the allegations made during that meeting. However, neither the content nor the tone of that electronic mail, which, moreover, do not mention the applicant’s name, point to the conclusion that damage was done to the honour or reputation of the applicant.
48. In any event, the evidence on which the applicant relies concerns isolated incidents. However, to justify granting the interim measures applied for, the applicant needs to establish that such incidents may recur, which, in the present case, she fails to do.
49. In conclusion, it follows from the foregoing considerations that the condition as to urgency is not fulfilled.
50. As was pointed out at paragraph 19 of the present order, that condition is one of the cumulative conditions which must be fulfilled in order to enable the President of the Tribunal to order the adoption of interim measures.
51. Accordingly, the claims set out in the present application for interim measures must be dismissed, without it being necessary to examine whether the condition with regard to a prima facie case is fulfilled.
Operative part
On those grounds,
THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL
hereby orders:
1. BP’s application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 14 June 2012.