Order of the President of the Third Chamber of the Court of 13 December 1984. - Corrado Fabbro and others v Commission of the European Communities. - Official - Suspension of the operation of a measure. - Case 269/84 R.



European Court reports 1984 Page 04333



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - CONDITIONS GOVERNING THE GRANT OF INTERIM MEASURES

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

Summary

THE OPERATION OF A MEASURE MAY BE SUSPENDED , AND A DECISION PRESCRIBING INTERIM MEASURES 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 TO THE APPLICANT ' S INTERESTS , 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 ALREADY PREJUDGE CONTESTED POINTS OF LAW OR OF FACT , OR NEUTRALIZE IN ADVANCE THE CONSEQUENCES OF THE DECISION TO BE GIVEN LATER IN THE MAIN PROCEEDINGS .

Parties

IN CASE 269/84 R

CORRADO FABBRO , AN OFFICIAL IN GRADE A 6 IN DIRECTORATE-GENERAL IV , B 3 , OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 91 CHAUSSEE DE WATERMAEL , 1160 BRUSSELS ;

FRANCO GIUFFRIDA , AN OFFICIAL IN GRADE A 4 IN DIRECTORATE-GENERAL IV , B 3 , OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 2 CLOS DES ACACIAS , 1150 BRUSSELS ;

CHRISTIAN HERBIN , AN OFFICIAL IN GRADE A 7 IN DIRECTORATE-GENERAL IV , D 2 , OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , RESIDING AT 30 AVENUE DU GUI , 1180 BRUSSELS ;

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 , AN AVOCAT AT THE COUR D ' APPEL , 16 AVENUE MARIE-THERESE , BOITE POSTALE 335 ,

APPLICANTS ,

V

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

DEFENDANT ,

Subject of the case

APPLICATION FOR THE SUSPENSION OF THE OPERATION OF THE DECISION OF 11 JULY 1984 , WHEREBY THE COMMISSION PROVIDED THAT APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE , LIKE THOSE FROM OFFICIALS IN THE SCIENTIFIC OR TECHNICAL SERVICE , COULD BE CONSIDERED FOR THE FILLING OF ADMINISTRATIVE POSTS AT THE INITIAL STAGE WHEN VACANCY NOTICES ARE ISSUED .

Grounds

1 UNDER ARTICLE 185 OF THE EEC TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT THE CIRCUMSTANCES SO REQUIRE , ORDER THAT THE OPERATION OF THE CONTESTED DECISION BE SUSPENDED . 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 THE ADOPTION OF A DECISION PRESCRIBING INTERIM MEASURES ARE CONDITIONAL UPON THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH MEASURES .

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 IS THEREFORE NECESSARY TO ASCERTAIN , WITHOUT EVEN CONSIDERING THE QUESTIONS REGARDING ADMISSIBILITY , WHETHER THOSE CONDITIONS ARE FULFILLED IN THIS CASE .

5 AS REGARDS THE REQUIREMENT OF FUMUS BONI JURIS , THE APPLICANTS MAINTAIN THAT THE DECISION OF 11 JULY 1984 WAS ADOPTED BY THE COMMISSION IN CONTRAVENTION 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 ' ' , THEREBY PREVENTING TRANSFER OR PROMOTION BY ANY OTHER PROCEDURE AND PRECLUDING A MEASURE SUCH AS THE ONE AT ISSUE .

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

7 SINCE THE FIRST CONDITION TO WHICH , IN PRINCIPLE , THE GRANT OF AN ORDER SUSPENDING THE OPERATION OF A DECISION IS SUBJECT IS THUS SATISFIED , THE ALLEGED URGENCY OF THE MATTER MUST NOW BE CONSIDERED AS WELL AS THE QUESTION WHETHER THE SUSPENSION APPLIED FOR IS NECESSARY IN ORDER TO ENSURE THAT THE APPLICANTS DO NOT SUFFER SERIOUS AND IRREPARABLE DAMAGE .

8 IN THAT REGARD THE APPLICANTS CONSIDER THAT THE ADOPTION OF MEASURES APPOINTING OFFICIALS FROM THE LANGUAGE SERVICE TO POSTS IN CATEGORY A PURSUANT TO THE DECISION OF 11 JULY 1984 MIGHT ASSUME SUCH PROPORTIONS THAT THE COURT ' S SUBSEQUENT ANNULMENT OF THOSE APPOINTMENTS MIGHT BECOME PROBLEMATICAL AND HAZARDOUS , SINCE THEY WOULD INVOLVE THE RISK OF CREATING A VACUUM IN AND DISTURBING THE INTERNAL FUNCTIONING OF THE COMMISSION .

9 IT MUST BE POINTED OUT THAT , AS THE COURT HAS ALREADY HELD , AN APPLICANT MAY NOT PLEAD , IN SUPPORT OF HIS REQUEST FOR A SUSPENSION , THE DISADVANTAGES WHICH WOULD BE INFLICTED ON THIRD PARTIES BY THE ANNULMENT OF THE MEASURE CONTESTED IN THE MAIN PROCEEDINGS , SINCE THE RIGHT TO SEEK SUSPENSION OF THE OPERATION OF THE CONTESTED MEASURE IS GRANTED TO APPLICANTS FOR THE PURPOSE OF PROTECTING THEIR OWN INTERESTS .

10 IT FOLLOWS THAT THE COURT CANNOT ACCEPT THE APPLICANTS ' ARGUMENT BASED ON THE ADVERSE EFFECTS ON THE PROPER FUNCTIONING OF THE COMMISSION WHICH MIGHT RESULT FROM DISMISSAL OF THE APPLICATION FOR SUSPENSION .

11 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 ALONE TO DECIDE WHETHER , IN VIEW OF THE SERIOUS DOUBTS EXPRESSED ABOVE AS TO THE LEGALITY OF THE DECISION , IT SHOULD CONTINUE TO APPLY IT OR , CONVERSELY , SHOULD REFRAIN FROM DOING SO , IN VIEW OF THE ADVERSE EFFECTS ON ITS FUNCTIONING WHICH MIGHT RESULT FROM ANNULMENT .

12 LASTLY THE APPLICANTS REFER TO THE DAMAGE WHICH THEY MIGHT SUFFER AS A RESULT OF THE IMPLEMENTATION OF THE DECISION OF 11 JULY 1984 , IN THAT THEIR OWN CHANCES OF SUBSEQUENT PROMOTION AND MOBILITY WITHIN CATEGORY A MIGHT BE LESSENED , OWING TO THE ACCEPTANCE OF APPLICATIONS FROM OFFICIALS IN THE LANGUAGE SERVICE WHENEVER POSTS IN THAT CATEGORY WERE TO BE FILLED .

13 IT SHOULD BE NOTED THAT SUCH DAMAGE DOES NOT OCCUR AS AN IMMEDIATE AND ACTUAL CONSEQUENCE OF THE CONTESTED MEASURE AND CANNOT BECOME APPARENT UNTIL FURTHER MEASURES ARE ADOPTED IN IMPLEMENTATION OF THAT MEASURE . IN ANY EVENT , THE APPLICANTS ' RIGHTS WOULD BE ADEQUATELY SAFEGUARDED IF THE COURT ' S JUDGMENT IN THE MAIN PROCEEDINGS ANNULLED THE CONTESTED DECISION .

14 FOR THE REASONS STATED ABOVE , THE APPLICATION FOR SUSPENSION OF THE OPERATION OF THE MEASURE IN QUESTION CANNOT BE GRANTED .

Decision on costs

COSTS

15 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 . THE COSTS ARE RESERVED .