ddrg/super_eurlex huggingface dataset:
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1. Applications for interim measures ° Suspension of operation ° Conditions for granting ° Prima facie case ° Disciplinary measure imposed by the appointing authority of greater severity than that proposed by the disciplinary board although based on the same assessment of the facts

(EEC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))

2. Applications for interim measures ° Suspension of operation ° Conditions for granting ° Serious and irreparable damage ° Pecuniary damage ° Non-financial damage ° Balancing of all the interests involved ° Disciplinary measure imposed long after the alleged misconduct

(EEC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))

Summary

1. For the purposes of suspending the operation of a decision imposing a penalty on an official as a disciplinary measure, the requirement of a prima facie case is satisfied where the appointing authority, without contradicting the assessment of the facts contained in the reasoned opinion of the disciplinary board, has imposed a more severe penalty than that proposed by that board and where ° although without prejudice to the question whether or not it is legal ° the characterization of the facts by the appointing authority in the contested decision at first sight causes the Court hearing the application for interim measures to entertain serious doubts.

2. As regards the precondition for suspension of the operation of a decision to be granted that there must be a risk that the person seeking suspension might suffer serious and irreparable damage, purely pecuniary damage cannot, in principle, be regarded as irreparable, or even difficult to repair, in so far as it may be the subject of financial compensation at a later stage. However, the Court hearing an application for interim measures must, having regard to the institution' s interest in enforcing the contested decision, examine the circumstances of each case and consider, on that basis, whether the decision is causing the applicant damage which could not be made good even if the decision were to be annulled in the main proceedings.

A decrease in an official' s monthly income of about 12%, resulting from his downgrading, cannot be regarded as constituting serious and irreparable damage since, if the application in the main proceedings were to be upheld, the applicant would recover the difference in salary resulting from his downgrading.

On the other hand, as regards the damage resulting both from the undermining of the applicant' s professional integrity and reputation and from the aggravation of his psychological state, it must be conceded that, in view of the fact that it was more than five years after misconduct which it describes as extremely serious and of which it had notice more than four years before commencement of the disciplinary proceedings that the appointing authority imposed a penalty on him, without being bound by any limitation period set for that purpose, the interests of the official would appear to outweigh those of the institution which imposed the penalty.
ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

20 July 1994

Case T-45/93

Paulo Branco

v

Court of Auditors of the European Communities

‛Manifest inadmissibility of the application’

Full text in Portuguese II-641

Application for:

annulment of ‘the 1992 promotions procedure of the Court of Auditors’.

Decision:

Application dismissed.

Abstract of the Order

On 17 July 1992 the appointing authority published the list of persons recommended for promotion by the Joint Promotions Committee for 1992. The Joint Committee had not made a comparative examination of the merits of the applicant because he was on leave on personal grounds and, accordingly, his name did not appear on the list.

The promotion decisions were published, respectively, between 24 July and 24 August 1992 and between 3 August and 3 September 1992.

The Joint Committee then added the name of the applicant, who had in the meantime been reinstated, to the list it had drawn up in connection with the procedure that had closed with the promotion decisions at the end of July. That list was published between 17 December 1992 and 17 January 1993.

Not having been promoted, the applicant finally lodged a complaint on 6 January 1993, seeking the annulment or amendment of the decision on promotions for 1992 so as to enable him to be entered on the promotions list. He lodged a second complaint on 4 March 1993. Both complaints were dismissed by a note of 6 May 1993.

Admissibility

The Court considers that the promotion procedure, taken as a whole, does not constitute an act adversely affecting an official. In the first place, it does not constitute a single act but a series of acts which led to promotion decisions capable of adversely affecting the applicant. Moreover, the publication of the amended list does not form part of that procedure because it was subsequent to those decisions (paragraph 24).

If it is assumed that the action is directed against the promotion decisions, it is inadmissible for failure to lodge a complaint against the promotion decisions for 1992 within the three-month time-limit prescribed by the Staff Regulations (paragraphs 25 and 26).

If it is assumed that it is directed against the publication of the amended list, the action is equally inadmissible, since the publication of that list, which was favourable to the applicant inasmuch as it included his name, did not adversely affect him (paragraphs 27 to 29).

If it is assumed that publication of the amended list may constitute a substantial new factor, justifying the applicant in submitting a request for a decision promoting him, and that the complaint by the applicant may be regarded as such a request, the decision rejecting that request on 6 May 1993 was not made the subject of a complaint submitted within the time-limit prescribed by die Staff Regulations (paragraphs 30 and 31).

Operative part:

The application is dismissed as manifestly inadmissible.
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1. Procedure - Originating application - Procedural requirements - Identification of the subject matter of the proceedings

(Statute of the Court of Justice of the European Economic Community, Art. 19; Rules of Procedure of the Court of Justice, Art. 38(1)(c))

2. Actions for annulment of measures - Time-limits - Point from which time starts to run - Act not notified to the applicant - Exact knowledge of content and grounds - Duty to request the full text of the act within a reasonable period once its existence is known

(EEC Treaty, Art. 173)

3. Actions for annulment of measures - Powers of the Community judicature - Claim for a declaration of the applicant' s entitlement - Inadmissibility

(EEC Treaty, Art. 173)
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Application for interim measures ° Suspension of operation of a measure ° Suspension of the operation of decisions authorizing the grant of aid to steel undertakings ° Conditions for granting ° Serious and irreparable damage ° Materialization of the damage dependent on future and uncertain events ° Damage of a general nature to the structure of competition ° No link with the personal situation of the applicant or its associates ° Balancing of all the interests involved

(ECSC Treaty, Art. 39; Rules of Procedure of the Court of First Instance, Art. 104(2))
Case T-290/94

Kaysersberg SA

v

Commission of the European Communities

Rules on the use of languages

Order of the Court of First Instance (First Chamber, Extended Composition), 16 August 1995 II- 2249

Summary of the Order

Procedure — Rides on the use of languages — Derogations — Conditions

(Rules of Procedure of the Court of First Instance, Art. 35)

Under Article 35(2)(b) of its Rules of Procedure, the Court of First Instance may authorize, at the request of one of the parties, and after the opposite party has been heard, the use of a language other than the language of the case for all or part of the proceedings.

Such authorization cannot be granted in respect of the written procedure where the intervener requesting it may obtain, by its own means, translations into its own working language of the submissions and other documents in the case, so that its rights would not be adversely affected.

However, as regards the oral procedure, such authorization must be granted since it allows that party to continue to be assisted by counsel of its choice, while not impairing the procedural rights of the main parties to the proceedings and, in particular, not causing any delay in the proceedings.
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1. Actions for annulment of measures ° Measures against which actions may be brought ° Refusal by the Commission to initiate proceedings against a Member State for failure to fulfil obligations ° Excluded

(EC Treaty, Arts 169, 170 and 173, fourth para.)

2. Actions for annulment of measures ° Refusal by the Commission to address to a Member State a directive or a decision concerning observance of the rules on competition by public undertakings ° Excluded

(EC Treaty, Arts 90 and 173)

Summary

1. An action for annulment brought by a natural or legal person against a decision by the Commission not to initiate proceedings against a Member State for failure to fulfil its obligations under the Treaty is inadmissible.

First, the Commission is not bound to commence proceedings under Article 169 of the Treaty but enjoys discretionary power which precludes any right on the part of individuals to require it to adopt a specific position.

Secondly, a natural or legal person requesting the Commission to commence proceedings pursuant to Article 169 of the Treaty is in fact seeking the adoption of an act which would not be of direct and individual concern to it within the meaning of the fourth paragraph of Article 173 of the Treaty and which it could not therefore challenge by means of an action for annulment in any event.

Moreover, in so far as the action seeks a declaration that the Member State has infringed certain provisions of Community law, the power to apply to the Community judicature for a declaration that a Member State has failed to fulfil its obligations does not extend, according to Articles 169 and 170, to legal or natural persons, but is held solely by the Commission and the other Member States.

2. An action for annulment brought by a natural or legal person against a decision by the Commission not to address a directive or a decision to a Member State by virtue of the powers conferred upon it by Article 90(3) of the Treaty is inadmissible.

As is apparent from that provision and the scheme of Article 90 as a whole, the power of supervision of the Commission with regard to Member States which are responsible for infringements of the rules of the Treaty, in particular those relating to competition, necessarily implies a wide margin of discretion for that institution which is not coupled with an obligation on its part to take action.
Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94

ΝΜΗ Stahlwerke GmbH and Others

v

Commission of the European Communities

‛Procedure — Joinder — Article 23 of the Protocol on the Statute of the Court of Justice of the ECSC — Defendant institution — Documents relating to the case — Production — Confidentiality’

Order of the Court of First Instance (Second Chamber, Extended Composition), 10 December 1997 II-2295

Summary of the Order

Procedure — ECSC — File forwarded by an institution to the Community court pursuant to Article 23 of the ECSC Statute of the Court of Justice — Right of access — Access to internal documents

(ECSC Statute of the Court of Justice, Art. 23)

The purpose of Article 23 of the ECSC Statute of the Court of Justice, concerning the forwarding by a Community institution to the Community court of the documents relating to a case pending before it, is to enable the Court to exercise its power of review of the legality of the contested decision, having regard to the rights of the defence, and not to guarantee all the parties unconditional and unrestricted access to the administrative file.

It is necessary to distinguish the documents relating to the case, transmitted pursuant to Article 23 of the ECSC Statute of the Court of Justice, which remain wholly extraneous to the proceedings and are not taken into consideration by the Court of First Instance in deciding the case, from the case-file, which is constituted in accordance with Article 5(1) of the Instructions to the Registrar of the Court of First Instance and to which the parties have access under the conditions laid down in Article 5(3) of those Instructions.

Internal documents concerning the administrative procedure and the preparation of a Commission decision relating to the application of the Treaty competition rules are to be placed in the case-file, and thus communicated to the applicant, only exceptionally, if they appear prima fade to contain relevant elements of proof tending to corroborate evidence already advanced by it or if they are necessary to enable the Court to verify of its own motion, should the need arise, that the Commission is not in breach of its obligations under the Treaty. That restriction on access to internal documents is justified by the need to ensure the proper functioning of the Commission when dealing with infringements of the Treaty competition rules.

The Court of First Instance exercises its power of review only with respect to the final administrative act, and not the draft or preparatory documents relating to it.
Order of the Court of First Instance (Fifth Chamber) of 24 March 1998. - International Procurement Services SA v Commission of the European Communities. - Taxation of costs. - Case T-175/94 (92).



European Court reports 1998 Page II-00601



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1 Procedure - Costs - Recoverable costs - Meaning - Expenses necessarily incurred by the parties - Lawyer's fees incurred by European institutions

(EC Statute of the Court of Justice, Art. 17, first para., and Art. 46, first para.; Rules of Procedure of the Court of First Instance, Art. 91(b))

2 Procedure - Costs - Taxation - Recoverable costs - Meaning - Matters to be taken into account

(Rules of Procedure of the Court of First Instance, Arts 91(b) and 92(1))

Summary

3 It is clear from the first paragraph of Article 17 and the first paragraph of Article 46 of the Statute of the Court of Justice that, in proceedings before the Court of First Instance, the Community institutions are free to have recourse to the assistance of a lawyer and that the latter's remuneration comes within the concept of expenses necessarily incurred for the purpose of the proceedings, and that, under Article 91(b) of the Rules of Procedure, those costs are regarded as recoverable.

4 The Community judicature is not empowered to tax the fees payable by the parties to their own lawyers but it may determine the amount of those fees which may be recovered from the party ordered to pay the costs. Since Community law does not contain any provisions laying down a scale of fees, the Court of First Instance must freely consider the facts of the case, taking into account the purpose and nature of the proceedings and their significance from the point of view of Community law, as well as the difficulties presented by the case, the amount of work generated by the dispute for the agents and advisers involved and the financial interest which the parties had in the proceedings.
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1 Actions for failure to act - Natural or legal persons - Act sought - Regulation - Inadmissible

(EC Treaty, Art. 175, third para.)

2 Actions for failure to act - Natural or legal persons - Actionable omissions - Failure by the Council to request the Commission to submit to it proposals for the amendment of the Staff Regulations of Officials - Inadmissible

(EC Treaty, Arts 152 and 175)

Summary

3 An action brought under Article 175 of the Treaty by a natural or legal person must be dismissed as inadmissible where the only legal instrument which would satisfy the request made to the institution concerned is a regulation, since an instrument of that kind cannot be described, by reason either of its form or of its nature, as an act capable of being addressed to such a person within the meaning of the third paragraph of Article 175 of the Treaty.

Even on the assumption that an individual may complain that an institution has failed to adopt an act which, whilst not addressed to him, is of direct and individual concern to him, the action is inadmissible if the applicant is unable to show that the act in question would place him in a situation of that kind.

4 Where an action is brought by a natural or legal person for a declaration that, by failing to request the Commission to submit to it proposals for the amendment of the Staff Regulations of Officials, the Council has failed to act, in breach of Article 152 of the Treaty, that action is inadmissible, since the Council enjoys a wide discretion in that context.
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1 Actions for annulment - Action brought against a decision confirming a decision not challenged within the time-limit - Inadmissible - Definition of a confirmatory decision - Identical decision taken after re-examination of the circumstances - Excluded from the definition

(EC Treaty, Art. 173)

2 Actions for annulment - Actionable measures - Definition - Measures producing legal effects - Administrative procedure for the application of competition rules - Decision to reject a request for interim measures

(EC Treaty, Arts 85, 86 and 173, fourth para.; Regulation No 17, Art. 3(1))

Summary

3 An action for the annulment of a decision which merely confirms a previous decision not contested within the time-limit for bringing the proceedings is inadmissible. A decision is merely confirmatory of a previous decision if it contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that previous measure was addressed.

4 An action for annulment may be brought only against measures which produce binding legal effects capable of affecting the applicant's interests by bringing about a significant change in his legal situation.

In order for a decision refusing a request for interim measures under Article 3(1) of Regulation No 17 to constitute an actionable measure, the Commission must have the power to order the measures requested.

In that regard, it is quite clear that the Commission has no power, in the exercise of its powers under Article 3(1) of Regulation No 17, to issue directions to national courts, to take measures concerning them in abstracto, even in its capacity as `guardian of the Treaties', or to assess the validity of their decisions. Consequently, its refusal to adopt such measures does not affect any aspect of the legal situation of the person requesting it to do so, and his interests can thus in no way be affected whether that decision is upheld or annulled.
61995B0145

Order of the Court of First Instance (Fourth Chamber) of 28 May 1997. - Proderec - Formação de Desenvolvimento de Recursos Humanos ACE v Commission of the European Communities. - Action for annulment - Contested decision withdrawn in the course of proceedings - No need to adjudicate. - Case T-145/95.



European Court reports 1997 Page II-00823
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1 Actions for failure to act - Natural or legal persons - Actionable omissions - Failure to respond clearly to grounds put forward in a complaint concerning the applicability of a directive - Inadmissible

(EC Treaty, Art. 175, third para.)

2 Actions for failure to act - Natural or legal persons - Actionable omissions - Failure to initiate an infringement procedure - Inadmissible

(EC Treaty, Arts 169, 173, fourth para., and 175, third para.)

Summary

3 An action for failure to act brought by a natural or legal person, seeking a declaration by the Court that the Commission failed to respond clearly to the grounds put forward by the applicant in its complaint concerning the applicability of a directive, is inadmissible. A natural or legal person may rely on the third paragraph of Article 175 of the Treaty only in order to seek a declaration that, in infringement of the Treaty, there has been a failure to adopt an act of which that person is a potential addressee. The applicant cannot be regarded as the potential addressee of an act of the Commission concerning the justification of its complaint, since there is no provision in the Treaty or any secondary legislation obliging the Commission to address to an individual an act embodying a finding as to the compatibility of national legislation with Community law. In any event, once the Commission has in fact responded or defined its position in response to a request made by an individual, there is no failure to act within the meaning of Article 175 of the Treaty. The fact that the measure adopted or the position defined by the institution concerned does not satisfy the applicant is of no relevance in that regard since Article 175 refers to failure to act in the sense of failing to take a decision or to define a position, and not that of adopting a measure different from that desired or considered necessary by the applicant.

4 An action for failure to act brought by a natural or legal person, seeking a declaration that, by not addressing a reasoned opinion to a Member State, the Commission, in infringement of the Treaty, failed to act, is inadmissible.

The Commission is not bound to initiate an infringement procedure against a Member State; on the contrary, it has a discretionary power of assessment, which rules out any right for individuals to require it to adopt a particular position.

Moreover, in the context of the infringement procedure laid down by Article 169 of the Treaty, the only measures which the Commission may have to take are addressed to the Member States, so that, not being a potential addressee of such a measure, a natural or legal person may not rely on the third paragraph of Article 175.
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Actions for annulment - Action challenging the decision to annul an invitation to tender issued under the PHARE Programme and the issuing of a new invitation to tender - Withdrawal of the project to which the two invitations to tender related - Action rendered devoid of purpose - No need to adjudicate

(EC Treaty, Arts 173 and 176)

Summary

An action challenging the decision of the Commission to annul an invitation to tender issued under the PHARE Programme, extending economic aid to the countries of Central and Eastern Europe, and the issuing of a new invitation to tender is rendered devoid of purpose, so that there is no longer any need for the Court to give a decision, when, during the course of the proceedings, the recipient country requests the withdrawal from the PHARE Programme of the project to which the two invitations to tender related and the Commission accedes to that request. In such a situation, in which there is no longer a contract to be awarded and any judgment of the Court annulling the contested decision and the contested new invitation to tender could not give rise to the requirement to comply referred to in Article 176 of the Treaty, the applicant no longer has any interest in obtaining their annulment.