61980CO0174_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 174/80 R,
FRANS REICHARDT, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, OF 1603, 35TH STREET N.W ., WASHINGTON ( D.C .) 20007, U.S.A ., REPRESENTED BY MARC-ANTOINE PIERSON, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN WELTER, 11 B AVENUE DE LA PORTE-NEUVE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JORN PIPKORN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR SUSPENSION OF THE OPERATION OF THE DECISION OF THE DEFENDANT OF 6 JUNE 1980 TERMINATING THE ASSIGNMENT OF THE A 5-A 4 POST OCCUPIED BY THE APPLICANT AND THE ASSIGNMENT OF THE APPLICANT HIMSELF TO THE DELEGATION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES TO THE UNITED STATES IN WASHINGTON AND REASSIGNING BOTH THE POST AND ITS OCCUPANT TO DIVISION XII D 2 OF DIRECTORATE-GENERAL XII ( RESEARCH, SCIENCE AND EDUCATION ) IN BRUSSELS,
Grounds
1 HAVING REGARD TO THE ARGUMENTS PUT FORWARD BY THE PARTIES REGARDING THE LAWFULNESS OF THE CONTESTED DECISION, IT IS APPROPRIATE FOR THE JUDGE HEARING THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES TO RESTRICT THE SCOPE OF HIS CONSIDERATION ONLY TO THOSE MATTERS ENABLING IT TO BE ESTABLISHED WHETHER THERE IS ANY URGENCY IN STAYING THE DECISION AND TO ASSESS WHETHER ITS IMMEDIATE APPLICATION, THAT IS TO SAY BEFORE THE DECISION IN THE MAIN PROCEEDINGS, IS LIKELY TO INVOLVE THE APPLICANT IN IRREVERSIBLE DAMAGE WHICH COULD NOT BE MADE GOOD EVEN IF THE CONTESTED DECISION WERE ANNULLED OR WHICH IN SPITE OF ITS PROVISIONAL NATURE WOULD BE DISPROPORTIONATE TO THE
COMMISSION ' S INTEREST, PURSUANT TO ARTICLE 185 OF THE EEC TREATY, IN HAVING ITS DECISIONS APPLIED EVEN WHEN THEY ARE THE SUBJECT OF AN APPLICATION TO THE COURT .
2 THE APPLICANT REFERS IN THE FIRST PLACE TO THE MATERIAL DAMAGE WHICH HE WOULD SUFFER SINCE, HAVING REGARD TO THE FACT THAT HIS ASSIGNMENT TO WASHINGTON WAS NORMALLY TO LAST THREE YEARS, HE HAD LET FOR THE SAME PERIOD HIS HOME IN BRUSSELS WHERE HE WAS PREVIOUSLY EMPLOYED AND WHITHER THE CONTESTED DECISION IS RE-ASSIGNING HIM .
3 ANY INCONVENIENCE, HOWEVER, ARISING FROM THIS SITUATION IS NOT SUCH AS TO JUSTIFY THE STAY WHICH IS SOUGHT . IF THE NECESSITY TO PROVIDE TEMPORARILY FOR HIS INSTALLATION AND THAT OF HIS FAMILY IN BRUSSELS WERE LIKELY TO CAUSE THE APPLICANT DAMAGE AND IN PARTICULAR EXPENSE NOT COVERED BY THE ALLOWANCES WHICH THE STAFF REGULATIONS PROVIDE IN RELATION TO INSTALLATION AND RESIDENCE, SUCH DAMAGE IS CAPABLE OF BEING MADE GOOD APPROPRIATELY BY THE POSSIBILITY OF AWARDING DAMAGES . IT SEEMS MOREOVER THAT IN ANY EVENT THE APPLICANT HAS AN INTEREST IN MAINTAINING THE LETTING OF HIS HOME IN BRUSSELS UNTIL JUDGMENT ON THE ACTION WHICH HE HAS BROUGHT AGAINST THE DECISION IN QUESTION .
4 THE APPLICANT CLAIMS IN THE SECOND PLACE ' ' THAT HE HAS TAKEN MEASURES TO PROVIDE FOR THREE YEARS FOR THE LODGING OF HIS TWO DAUGHTERS WHO ARE STUDYING IN BELGIUM AND IN THE NETHERLANDS ' '
BUT IT IS NOT APPARENT WHAT IRREPARABLE DAMAGE MAY RESULT FROM THE MAINTENANCE OF THAT SITUATION UNTIL THE DECISION IN THE MAIN ACTION .
5 FINALLY, THE APPLICANT CLAIMS THAT IF THE CONTESTED DECISION WERE ANNULLED A SECOND RETURN TO WASHINGTON AFTER HIS RESETTLEMENT IN BRUSSELS WOULD CAUSE HIM SUCH DIFFICULTIES THAT HE WOULD NOT BE ABLE TO TAKE ADVANTAGE OF THE ANNULMENT .
6 THE CONSEQUENCE OF ANY ANNULMENT OF THE DECISION IN QUESTION WOULD BE TO MAINTAIN AB INITIO THE APPLICANT ' S ASSIGNMENT AND THAT OF HIS POST TO THE DELEGATION OF THE COMMISSION IN WASHINGTON AND IN THAT CASE THE APPLICANT WOULD BE RESTORED TO HIS PREVIOUS POSITION WITH ALL THE LEGAL CONSEQUENCES
CONNECTED THEREWITH AND MOREOVER WITH THE OPPORTUNITY OF OBTAINING COMPENSATION FOR ANY DAMAGE CAUSED BY THE ILLEGAL ACTIONS COMMITTED AGAINST HIM . ANY FUTURE DECISION ON HIS PART TO FOREGO THE BENEFITS OF THE JUDGMENT OF ANNULMENT CAN IN NO EVENT JUSTIFY THE STAY SOUGHT .
7 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES MUST BE DISMISSED .
Decision on costs
8 AT THE PRESENT STAGE OF THE PROCEEDINGS IT IS RIGHT TO RESERVE COSTS .
Operative part
ON THOSE GROUNDS,
THE JUDGE ACTING AS PRESIDENT OF THE COURT,
AS AN INTERLOCUTORY DECISION,
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .
2 . COSTS ARE RESERVED .