ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

17 December 2008

Case F-80/08 R

Fritz Harald Wenig

v

Commission of the European Communities

(Civil service – Interlocutory proceedings – Application for suspension of the operation of a decision to suspend the party concerned from his duties – Urgency not established)

Application: brought under Articles 242 EC, 243 EC, 157 EA and 158 EA, in which Mr Wenig seeks suspension of operation of the decision of 18 September 2008, taken pursuant to Articles 23 and 24 of Annex IX to the Staff Regulations, by which the Commission suspended him for an indefinite period and ordered EUR 1 000 a month to be withheld from his pay for a maximum period of six months.

Held: The application for interim relief is dismissed. Costs are reserved.

Summary

1. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – ‘Fumus boni juris’ – Urgency – Cumulative nature – Order of priority of examination and method of verification

(Arts 242 EC and 243 EC; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

2. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Balancing of all the interests involved

(Art. 242 EC; Rules of Procedure of the Civil Service Tribunal, Art. 102(2); Staff Regulations, Annex IX, Arts 23 and 24)

3. Application for interim measures – Suspension of operation of a measure – Conditions for granting – Urgency – Burden of proof

(Art. 242 EC; Rules of Procedure of the Civil Service Tribunal, Art. 102(2); Staff Regulations, Annex IX, Arts 23 and 24)

4. Application for interim measures – Suspension of operation of a measure – Retroactivity – None

(Art. 242 EC)

1. Article 102(2) of the Rules of Procedure of the Civil Service Tribunal provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative so that an application for interim measures must be rejected if one of them is absent. Furthermore, the measures applied for must be provisional, in that they must not prejudge the decision on the substance.

In the context of that overall examination the judge hearing the application for interim relief enjoys a wide margin of discretion and remains free to determine, in light of the particular features of the case, the way in which those different conditions have to be verified and the order of priority of that examination, since there is no rule of Community law imposing on him a pre‑determined analytical model for assessing the need for an interim decision.

(see paras 20-23)

See:

T-41/97 R Antillean Rice Mills v Council [1997] ECR II‑447, para. 19; T‑120/01 R De Nicola v EIB [2001] ECR-SC I‑A‑171 and II‑783, paras 12 and 13

F-38/06 R Bianchi v ETF [2006] ECR-SC I‑A‑1‑27 and II‑A‑1‑93, paras 20 and 22

2. Where, in connection with an application for suspension of operation, the judge hearing the application for interim relief, before whom the risk of serious and irreparable damage to the applicant is pleaded, weighs up the various interests involved, he must determine whether the possible annulment of the decision at issue by the court giving judgment in the main action would make it possible to reverse the situation that would be brought about by its immediate implementation and, conversely, whether suspension of operation of that decision would be such as to prevent the contested decision from being fully effective in the event of the main application being dismissed.

A decision suspending an official from his duties pursuant to Articles 23 and 24 of Annex IX to the Staff Regulations is intended to be effective throughout a given period of time. That period initially corresponds to the period of the investigation and continues further where the institution considers that the interest of the service, and sometimes of the official, requires that he be removed from his post until it has reached a final decision on the alleged infringements. Accordingly, a decision pronouncing the official’s suspension would be rendered largely ineffective if it could not operate during the period when it is supposed to do so.

Consequently, suspension of the operation of such a decision brings irreversible effects, and could even prejudge the decision of the Civil Service Tribunal in the main proceedings. The circumstances are different if the suspension of operation is not granted. The harm caused to the suspended official by damage to his reputation could possibly be remedied by annulling that decision or even, if necessary, by ordering the institution to pay damages. It is therefore appropriate, when balancing the interests involved, to take account of that irreversible nature and to suspend the operation of the decision to suspend the official only if the urgency of a suspension of operation appears indisputable.

(see paras 27-31, 36)

See:

Antillean Rice Mills v Council, para. 46; order of 30 April 2008 in T-65/08 R Spain v Commission, not published in the ECR, para. 82 and the case-law cited therein

3. The purpose of the procedure for interim relief 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 relief sought must be urgent, meaning that, in order to avoid serious and irreparable harm to the applicant’s interests, it must be ordered and produce its effects before a decision is reached in the main action. It is, moreover, for the party seeking the grant of interim relief to prove that he cannot await the outcome of the main proceedings without suffering such harm.

In so far as non-material harm results from the effects on an official’s image of a decision ordering his suspension, it is, in principle, an inescapable and immediate consequence of that decision. Moreover, suspending the implementation of such a decision would not make good any non-material damage of that nature more than the possible future annulment of the decision at the end of the main action.

Furthermore, even if the suspended official claims specific damage concerning his career which is different from the harm to his reputation, that possible damage would result from the disciplinary proceedings that might be initiated against him, not from the contested decision.

(see paras 41, 43-44)

See:

C-65/99 P(R) Willeme v Commission [1999] ECR I‑1857, paras 60 to 62

T-173/99 R Elkaïm Mazuel v Commission [1999] ECR-SC I‑A‑155 and II‑811, para. 25; De Nicola v EIB, para. 43; T‑320/02 R Esch-Leonhardt and Others v ECB [2002] ECR-SC I‑A‑325 and II‑1555, para. 27

4. A judicial decision ordering the suspension of operation of a measure is a provisional measure designed to preserve the future. Thus a suspension, unlike an annulment, cannot have retroactive scope.

(see para. 53)