61976CO0061_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 61/76 R
JEAN JACQUES CHARLES GEIST, AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY MARCEL SLUSNY, ADVOCATE AT THE COUR D ' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ARENDT, ADVOCATE AT THE LUXEMBOURG BAR, CENTRE LOUVIGNY, 34/B/IV RUE PHILIPPE II,
APPLICANT,
V COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY SERGIO FABRO, A MEMBER OF THE LEGAL SERVICE OF THE COMMISSION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, LEGAL ADVISER TO THE COMMISSION, BATIMENT CFL, 9, PLACE DE LA GARE,
DEFENDANT,
Subject of the case
APPLICATION FOR THE SUSPENSION OF THE OPERATION OF THE DECISION OF THE COMMISSION OF 10 DECEMBER 1975 ASSIGNING THE POST OF THE APPLICANT AND THE APPLICANT HIMSELF TO THE EAEC ESTABLISHMENT AT ISPRA .
Grounds
1 IN SUPPORT OF HIS REQUEST FOR SUSPENSION, THE APPLICANT CONTENDS THAT HAVING BEEN DIVORCED AND NOT BEING THE GUILTY PARTY HE HAS THE CUSTODY OF AND THE RESPONSIBILITY FOR HIS THREE CHILDREN WHO WERE BORN RESPECTIVELY IN 1963, 1965 AND 1967 .
2 THE DISPUTED DECISION PUT HIM ' IN A DRAMATIC SITUATION FROM THE FAMILY POINT OF VIEW ' .
3 IN FACT, IT IS NOT POSSIBLE FOR HIM EITHER TO ARRANGE FOR THE PERSON WHOM HE ENGAGED TO CARE FOR THE CHILDREN TO EMIGRATE TO ISPRA OR IMMEDIATELY TO FIND AT ISPRA A PERSON TO CARRY OUT THE SAME DUTIES IN WHOM HE COULD HAVE EQUAL CONFIDENCE .
4 FURTHER, IF THE DISPUTED DECISION WERE KEPT IN FORCE, EVEN TEMPORARILY, THAT IS TO SAY UNTIL THE COURT FOR EXAMPLE, HAD DECIDED ON THE MAIN APPLICATION, THE APPLICANT WOULD HAVE TO TERMINATE THE LEASE OF THE HOUSE WHICH HE IS OCCUPYING IN THE NETHERLANDS AND FIND ACCOMMODATION AT ISPRA OR IN THE VICINITY .
5 ON THE OTHER HAND, THE SUSPENSION REQUESTED CAN CAUSE NO DAMAGE TO THE COMMISSION, THE APPLICANT HAVING ' BEEN TRANSFERRED TO A NON-EXISTENT POST '
AND HIS NEW SUPERIORS, WHO WERE NOT CONSULTED ON HIS TRANSFER, HAVING ACCEPTED THAT THEY ARE NOT IN A POSITION TO ALLOCATE HIM DUTIES CORRESPONDING TO HIS GRADE AND HIS LEVEL .
6 IT FOLLOWS FROM ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT, THAT THE SUSPENSION OF THE OPERATION OF A DECISION CAN BE GRANTED ONLY WHERE THERE ARE CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ' ESTABLISHING A PRIMA FACIE CASE '
FOR SUCH A MEASURE .
7 IN THIS RESPECT IT SHOULD BE ACCEPTED THAT THE TRANSFER FROM ONE MEMBER STATE TO ANOTHER, AS WELL AS THE PERSONAL AND ECONOMIC DISADVANTAGES WHICH IT MAY CAUSE TO THE PERSON CONCERNED, DO NOT AMOUNT TO AN ABNORMAL EVENT IN THE CAREER OF A SCIENTIFIC OFFICIAL OF THE EAEC, THE ESTABLISHMENTS OF WHICH ARE SPREAD OVER SEVERAL MEMBER STATES AND WHICH MAY BE REQUIRED TO MEET CHANGES OF SCIENTIFIC PROGRAMMES REQUIRING IT TO RESTRUCTURE ITS DEPARTMENTS .
8 IT APPEARS FROM THE MAIN APPLICATION THAT IN 1975 - THAT IS AFTER HIS DIVORCE AND THEREFORE AT A TIME WHEN HIS FAMILY SITUATION WAS ESSENTIALLY THE SAME AS AT PRESENT - THE APPLICANT APPLIED FOR A POST WITH THE COMMISSION ' S DELEGATION IN WASHINGTON, DESPITE THE FACT THAT A TRANSFER OF RESIDENCE FROM THE NETHERLANDS TO THE UNITED STATES WAS LIABLE TO AFFECT THE LIFE OF THE PERSON CONCERNED AND THE LIVES OF HIS FAMILY TO A GREATER DEGREE THAN A TRANSFER MADE FROM ONE MEMBER STATE TO ANOTHER .
9 THE ARGUMENT OF THE APPLICANT THAT ' THE POST IN WASHINGTON HELD OUT THE PROSPECT OF HIS WORKING IN MUCH BETTER CONDITIONS THAN AT PETTEN ITSELF, AND MOST CERTAINLY THAN AT ISPRA '
PRECLUDES ACCEPTANCE OF THE APPLICANT ' S CLAIM TO HAVE ' ESTABLISHED A PRIMA FACIE CASE '
FOR THE GRANT OF THE SUSPENSION REQUESTED .
10 IN FACT SUCH AN ALLEGATION OF NECESSITY SHOWS THAT THE APPLICANT IS READY - AND THEREFORE IN A POSITION - TO ADJUST TO DIFFICULTIES EVEN GREATER THAN THOSE OF WHICH HE COMPLAINS AT PRESENT, ONCE HE CONSIDERS THAT THE TRANSFER IS CONSONANT WITH HIS INTERESTS IN THE SERVICE .
11 FURTHER, EVEN SUPPOSING THAT THE APPLICANT HAS ESTABLISHED PRIMA FACIE THAT HIS INTEGRATION INTO THE DEPARTMENTS AT ISPRA IS A MATTER OF SOME DIFFICULTY, THE APPLICATION FOR SUSPENSION CONTAINS HOWEVER NOTHING TO SHOW IN THE SAME WAY THAT, CONTRARY TO THE OPINION OF THOSE RESPONSIBLE IN THE COMMISSION AND TAKING ACCOUNT OF THE DUTIES AT PRESENT ASSIGNED TO THE APPLICANT IN THE ESTABLISHMENT AT PETTEN, HIS SCIENTIFIC ABILITIES COULD BE USED AT PETTEN WITHIN THE FRAMEWORK OF THESE DUTIES, AND IN A MANNER COMPATIBLE WITH THE INTERESTS AND THE EXIGENCIES OF THE SERVICE .
12 IN ALL THESE CIRCUMSTANCES THE PRESENT APPLICATION MUST BE REJECTED .
13 IT IS APPROPRIATE IN THE CIRCUMSTANCES TO RESERVE THE COSTS .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT,
BY WAY OF AN INTERIM RULING, HEREBY
ORDERS :
1 . THE APPLICATION IS DISMISSED ;
2 . THE COSTS ARE RESERVED .