ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

22 April 1996

Case T-23/96 R

Elsa de Persio

v

Commission of the European Communities

‛Officials — Summary proceedings — Suspension of operation of a measure — Interim measures’

Full text in Italian II-527

Application for:

suspension of operation of the Commission's decision transferring the applicant to the Translation Service of that institution and for her immediate reassignment to the post which she occupied in the Office for Official Publications of the European Communities.

Decision:

Application dismissed.

Abstract of the Order

As part of her duties the applicant, an official in Category LA in the Translation Service of the Commission in Brussels, has responsibility for the Italian version of the Celex system. When the Office for Official Publications of the European Communities (‘OP’) was made responsible for management of that system, the applicant was transferred to the OP where she was entrusted with duties in connection with the Celex system appropriate to Category A officials. When the Celex group's operations were moved to Luxembourg the applicant refused to be transferred there to carry out the same duties as in Brussels. On 24 October 1994 she submitted a request to be placed definitively in Category A. That request was not granted.

By decision of 22 December 1995 the applicant was reassigned to the Translation Service. On 4 February 1996 she lodged a complaint against that decision.

Law

The interim measures referred to in Articles 185 and 186 of the Treaty must be provisional in that they must not prejudge the decision on the substance (paragraph 19).

See: T-235/95 R Goldstein v Commission [27.2.96], not published in the ECR

Admissibility

In her application the applicant indicates, albeit imprecisely, the factual matters necessary for the assessment of an alleged risk of damage, in that she claims to have suffered irreparable damage to her mental and physical health, her reputation, her freedom to carry on a profession and her chances of remaining in a Category A post as a result of the contested decision and the threatening actions of the administration (paragraph 21).

Substance

The conditions relating to urgency are satisfied whenever an interlocutory order is necessary to avoid serious and irreparable harm to the person concerned. The party seeking suspension of the operation of a measure is therefore required to furnish proof that he cannot await the conclusion of the main action without personally suffering damage which would have serious and irreparable effects for him (paragraph 34).

Sec: 142/87 R Belgium v Commission [1987] ECR 2589, paras 23 and 24

As regards the risk of harm, there is nothing in the documents in the case before the Court concerning any risks of irreversible damage to the applicant's mental and physical health, her reputation or career arising from the contested decisions or the allegedly threatening conduct of the Commission (paragraph 36).

As regards the damage caused by her alleged ‘Ousting’ from her Category A post in Brussels with the OP, any judgment annulling the decision reassigning the applicant to the Translation Service and/or the decision rejecting her request to be placed in Category A will constrain the administration to reassign her and, when it takes a decision about her, exercising its discretion, the administration will be able to take into consideration the applicant's statements on the matter (paragraph 38).

As regards more specifically the applicant's request to be reinstated in the same workplace and with the same duties as before, the fact that complete restoration of the previous situation might be impossible is not to be regarded as an event attached by a causal link to the decisions or conduct at issue in these proceedings and, consequently, that impossibility cannot constitute a sufficient basis for the adoption of an interim measure having that specific effect. The present proceedings are solely concerned with the decisions of the administration which are intended to affect the applicant's situation under the Staff Regulations and not with the various decisions by which that administration has decided to alter its organization (paragraph 39).

Furthermore, interim measures in summary proceedings must not, despite their provisional nature, be out of proportion to the defendant institution's interest in having its decisions implemented, even where those decisions form the subject-matter of an action (paragraph 40).

See: T-589/93 R Ryan-SheridanvEFILWC [1994]ECRSC II-257, para. 19;T-356/94R Vecchi v Commission [1994] ECRSC II-805, para. 17

As regards the damage consisting of the alleged definitive loss of the chance to move into Category A, reassignment to the Translation Service does not definitively and irreversibly deprive the applicant of the opportunity to go into Category A, since under Article 45(3) and (4) of the Staff Regulations, she has the same right as before to put forward her candidature for Category A posts and, if she decides to exercise that right, she will in any event be able to rely on the experience gained during the period of her service with the OP. If the decision rejecting her request to be placed in Category A were to be annulled, the applicant's position under the Staff Regulations could therefore be reconsidered by the administration (paragraph 41).

Operative part:

The application for interim measures is dismissed.