Order of the President of the Third Chamber of the Court of 13 December 1984. - Hartmut Scharf v Commission of the European Communities. - Official - Suspension of the operation of a measure. - Case 292/84 R.



European Court reports 1984 Page 04349



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

APPLICATION FOR INTERIM MEASURES - SUSPENSION OF THE OPERATION OF A MEASURE - INTERIM MEASURES - CONDITIONS FOR GRANTING

( RULES OF PROCEDURE , ART . 83 ( 2 ))

Summary

SUSPENSION OF OPERATION AND OTHER INTERIM MEASURES MAY BE GRANTED BY THE JUDGE RULING ON THE APPLICATION FOR INTERIM MEASURES IF IT IS SHOWN THAT THERE ARE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THEM ( FUMUS BONI JURIS ); IF THEY ARE URGENT , IN THE SENSE THAT IT IS NECESSARY , IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE , FOR THEM TO BE ADOPTED AND PRODUCE THEIR EFFECTS BEFORE THE DECISION ON THE APPLICATION FOR ANNULMENT ; AND FINALLY , IF THEY ARE PROVISIONAL , THAT IS , IF THEY ARE WITHOUT PREJUDICE TO THE DECISION ON THE SUBSTANCE OF THE CASE AND IF THEY DO NOT ALREADY DECIDE THE ISSUES OF LAW OR OF FACT IN DISPUTE , OR NEUTRALIZE IN ADVANCE THE CONSEQUENCES OF THE DECISION TO BE GIVEN LATER IN THE MAIN PROCEEDINGS .

Parties

IN CASE 292/84 R

HARTMUT SCHARF , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN DIRECTORATE GENERAL IV , D 2 , RESIDING AT 65 RUE DU VALLON , 1320 GENVAL , ASSISTED AND REPRESENTED BY JEAN-NOEL LOUIS , OF THE BRUSSELS BAR , 51 RUE LANGEVELD , BOITE POSTALE 16 , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF NICOLAS DECKER , AVOCAT AT THE COUR D ' APPEL , 16 AVENUE MARIE-THERESE , BOITE POSTALE 335 ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , WHOSE SEAT IS AT 200 B RUE DE LA LOI , 1049 BRUSSELS , REPRESENTED BY HENRI ETIENNE , PRINCIPAL LEGAL ADVISER , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE SUSPENSION , AS AN INTERIM MEASURE , OF THE OPERATION ( A ) OF THE DECISION OF 30 NOVEMBER 1984 BY WHICH THE COMMISSION OF THE EUROPEAN COMMUNITIES APPOINTED , WITH EFFECT FROM 1 DECEMBER 1984 , R . TEERLINK , AN OFFICIAL OF THE LANGUAGE SERVICE ( LA ), TO THE POST IN CATEGORY A DECLARED VACANT BY VACANCY NOTICE NO COM/1207/84 AND ( B ) OF THE COMMISSION ' S DECISION OF 11 JULY 1984 ACCORDING TO WHICH APPLICATIONS FROM OFFICIALS OF THE LANGUAGE SERVICE MAY BE CONSIDERED FOR THE FILLING OF ADMINISTRATIVE POSTS IN CATEGORY A AT THE INITIAL STAGE WHEN VACANCY NOTICES ARE ISSUED .

Grounds

1 UNDER ARTICLE 185 OF THE TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT OPERATION OF THE CONTESTED DECISION BE SUPENDED . IT MAY ALSO PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURE .

2 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT , SUSPENSION OF THE OPERATION OF A MEASURE AND DECISIONS ADOPTING OTHER INTERIM MEASURES ARE CONDITIONAL UPON THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE MEASURES APPLIED FOR .

3 IN NUMEROUS PREVIOUS CASES THE COURT HAS HELD THAT MEASURES OF THAT KIND MAY BE GRANTED BY THE JUDGE RULING ON THE APPLICATION FOR INTERIM RELIEF IF IT IS SHOWN THAT THERE ARE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THEM ( FUMUS BONI JURIS ); IF THERE IS AN URGENT NEED FOR THEM , IN THE SENSE THAT IT IS NECESSARY , IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE , FOR THEM TO BE ADOPTED AND PRODUCE THEIR EFFECTS BEFORE THE DECISION ON THE APPLICATION FOR ANNULMENT ; AND FINALLY , IF THEY ARE PROVISIONAL , THAT IS , IF THEY DO NOT PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE AND IF THEY DO NOT ALREADY DECIDE CONTESTED POINTS OF LAW OR OF FACT OR NEUTRALIZE IN ADVANCE THE CONSEQUENCES OF THE DECISION TO BE GIVEN LATER IN THE MAIN PROCEEDINGS .

4 IT MUST BE SEEN WHETHER THOSE CONDITIONS ARE MET IN THIS CASE .

5 WITH REGARD , FIRST OF ALL , TO THE APPLICATION FOR SUSPENSION OF THE OPERATION OF THE GENERAL DECISION OF 11 JULY 1984 , IT SHOULD BE NOTED THAT THE APPLICANT , WHILE CLAIMING THAT THE DECISION IS UNLAWFUL HAVING REGARD TO ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS , AND WHILE ASKING THE COURT TO MAKE A FINDING TO THAT EFFECT , IS NOT SEEKING TO HAVE THE DECISION ANNULLED ; CONSEQUENTLY , THE APPLICATION , IN SO FAR AS IT SEEKS TO OBTAIN SUSPENSION OF THE OPERATION OF THAT DECISION , IS NOT ADMISSIBLE UNDER ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE .

6 ON THE OTHER HAND , THE APPLICATION MUST BE CONSIDERED IN SO FAR AS IT REFERS TO SUSPENSION OF THE OPERATION OF THE DECISION OF 30 NOVEMBER 1984 APPOINTING MR R . TEERLINK , AN OFFICIAL OF THE LANGUAGE SERVICE , TO A POST IN CATEGORY A DECLARED VACANT BY VACANCY NOTICE NO COM/1207/84 , WITH EFFECT FROM 1 DECEMBER 1984 .

7 WITH REGARD TO THE REQUIREMENT OF FUMUS BONI JURIS , THE APPLICANT CLAIMS THAT THE ABOVE APPOINTMENT IS UNLAWFUL BECAUSE IT WAS MADE IN APPLICATION OF THE GENERAL DECISION OF 11 JULY 1984 ADOPTED BY THE COMMISSION IN BREACH OF THE PROVISIONS OF ARTICLE 45 ( 2 ) OF THE STAFF REGULATIONS , WHICH PROVIDES THAT ' ' AN OFFICIAL MAY BE TRANSFERRED FROM ONE SERVICE TO ANOTHER OR PROMOTED FROM ONE CATEGORY TO ANOTHER ONLY ON THE BASIS OF A COMPETITION ' ' .

8 IT MUST BE STATED IN THAT CONNECTION THAT THE APPLICANT ' S COMPLAINT IS PRIMA FACIE A SERIOUS ONE CASTING GRAVE DOUBT ON THE LEGALITY OF THE CONTESTED DECISION .

9 SINCE THE FIRST CONDITION TO WHICH , IN PRINCIPLE , GRANT OF AN ORDER SUSPENDING THE OPERATION OF A DECISION IS THUS SATISFIED , IT MUST NOW BE CONSIDERED WHETHER THE SUSPENSION SOUGHT IS URGENT AND WHETHER IT IS NECESSARY IN ORDER TO ENSURE THAT THE APPLICANT DOES NOT SUFFER SERIOUS AND IRREPARABLE DAMAGE .

10 IT SHOULD BE NOTED IN THAT CONNECTION THAT THE DAMAGE CAUSED TO THE APPLICANT BY THE REJECTION OF HIS CANDIDATURE AND THE APPOINTMENT OF MR R . TEERLINK IS CERTAIN AND IS ESTABLISHED BY THE VERY EXISTENCE OF THE CONTESTED APPOINTMENT OF 30 NOVEMBER 1984 . SUSPENSION OF THE OPERATION OF THAT APPOINTMENT WOULD THEREFORE CONSTITUE , IN REALITY , A PROVISIONAL ANNULMENT OF IT , SOMETHING WHICH CANNOT BE ORDERED BY THE JUDGE RULING ON THE APPLICATION FOR INTERIM MEASURES .

11 WITH REGARD TO THE SUBSEQUENT DAMAGE WHICH MIGHT RESULT FROM MAINTAINING THE APPOINTMENT IN FORCE , THE APPLICANT CLAIMS THAT THE CONTESTED DECISION COULD HAVE THE EFFECT OF SETTING IN MOTION PROCEDURES DESIGNED TO FILL THE POST FORMERLY OCCUPIED BY MR TEERLINK , AND THIS MIGHT ENTAIL A ' ' CHAIN ' ' OF APPOINTMENTS TO POSTS SUCCESSIVELY DECLARED VACANT SUCCESSIVELY IN THE LANGUAGE SERVICE . IN THAT WAY , EXECUTION OF A JUDGMENT OF THE COURT ANNULLING MR TEERLINK ' S APPOINTMENT WOULD OBLIGE THE ADMINISTRATION EITHER TO ASK THE COUNCIL TO CREATE A NEW BUDGETARY POST IN ORDER TO REINSTATE HIM IN THE LANGUAGE SERVICE , OR TO ' ' PARACHUTE ' ' HIM INTO A VACANT POST IN THAT SERVICE , TO THE DETRIMENT OF OFFICIALS OF THE LANGUAGE SERVICE ELIGIBLE FOR PROMOTION .

12 THAT SUBMISSION CANNOT BE ACCEPTED . THE SUBSEQUENT DIFFICULTIES TO WHICH THE APPLICANT REFERS DO NOT PREJUDICE ANY PARTICULAR INTEREST OF HIS OWN . AS THE COURT HAS ALREADY SAID , AN APPLICANT MAY NOT , IN SUPPORT OF HIS APPLICATION FOR SUSPENSION OF THE OPERATION OF ANY MEASURE , RELY ON THE DIFFICULTIES WHICH THE IMMEDIATE PUTTING INTO OPERATION OF THE ACT BEING CONTESTED IN THE MAIN PROCEEDINGS WOULD CREATE FOR THIRD PARTIES , SINCE THE RIGHT TO SEEK SUCH A SUSPENSION IS GRANTED TO APPLICANTS FOR THE PURPOSE OF PROTECTING THEIR OWN INTERESTS .

13 THE FOREGOING APPLIES EQUALLY TO THE APPLICANT ' S SUBMISSION BASED ON THE DIFFICULTIES WHICH MIGHT BE CAUSED FOR THE PROPER FUNCTIONING OF THE COMMISSION ' S DEPARTMENTS BY THE DISMISSAL OF THE APPLICATION FOR SUSPENSION OF THE OPERATION OF THE MEASURE IN QUESTION .

14 IN THAT CONNECTION IT SHOULD BE OBSERVED THAT THE CONTINUING IMPLEMENTATION OF THE CONTESTED DECISION IS A MATTER FOR WHICH THE COMMISSION BEARS SOLE RESPONSIBILITY AND IT IS FOR THE COMMISSION , AND IT ALONE , TO DECIDE WHETHER OR NOT TO CARRY ON WITH THE PROCEDURES CONSECUTIVE TO THE VACANCY CAUSED BY THE APPOINTMENT OF MR TEERLINK , HAVING REGARD TO THE DIFFICULTIES WHICH WOULD RESULT FROM THE POSSIBLE ANNULMENT OF THE CONTESTED MEASURE , WHOSE LEGAL BASIS IS THE GENERAL DECISION OF 11 JULY 1984 , AS TO THE LEGALITY OF WHICH THERE ARE GRAVE DOUBTS .

15 FOR THE REASONS INDICATED ABOVE , THE APPLICATION TO SUSPEND THE OPERATION OF THE DECISIONS AT ISSUE CANNOT BE GRANTED .

Decision on costs

COSTS

16 IT IS APPROPRIATE , AT THIS STAGE OF THE PROCEEDINGS , TO RESERVE THE COSTS .

Operative part

ON THOSE GROUNDS ,

HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , AND IN PARTICULAR TO ARTICLE 83 THEREOF ,

THE PRESIDENT OF THE THIRD CHAMBER , ACTING ON BEHALF OF THE PRESIDENT OF THE COURT ,

BY WAY OF INTERIM DECISION ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION IS DISMISSED ;

2 . COSTS ARE RESERVED .