ORDER OF THE PRESIDENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

28 February 2012

Case F-140/11 R

BK

v

European Commission

(Civil service — Application for interim measures — Application for suspension of operation of a measure — Investigation by the European Anti-Fraud Office (OLAF) — Invitation to an interview — Report terminating the investigation — Act adversely affecting an official — Inadmissibility of the main action)

Application: brought under Articles 278 TFEU and 157 EA, as well as Article 279 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which BK seeks, in particular, the suspension of the decision of the European Anti-Fraud Office (OLAF) of 28 October 2011 inviting him to an interview in the framework of an internal investigation, in so far as that decision announced the termination of the investigation and the drawing up of a final report on that investigation.

Held: The application for interim measures is dismissed. The costs are reserved.

Summary

1. Applications for interim measures — Suspension of operation of a measure — Contested decision partly spent when the application for interim measures was brought — Application inadmissible in part

(Art. 278 TFEU)

2. Applications for interim measures — Jurisdiction of the judge hearing the application for interim relief — Issuing of interim directions

(Art. 279 TFEU)

3. Applications for interim measures — Conditions for admissibility — Admissibility of main application — Irrelevance — Limits

(Arts 278 TFEU and 279 TFEU)

4. Officials — Actions — Act adversely affecting an official — Definition — Measures producing binding legal effects — Report by the European Anti-Fraud Office (OLAF) terminating an investigation — Announcement of the termination of the investigation and drawing up of the final report — Decision inviting an official to attend an interview and informing him of the purpose and procedure for that interview — Not included

(European Parliament and Council Regulation No 1073/1999, Art. 4(1) and (2) and Art. 9)

5. Applications for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Cumulative nature — Balancing of all the interests involved — Discretion of the judge dealing with the application for interim relief

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

6. Applications for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Burden of proof

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

1. Where part of a contested decision is spent on the date when an application for interim measures is brought, the heads of claim relating to that part are inadmissible.

(see para. 29)

See:

27 May 2011, F-5/11 R and F-15/11 R Mariën v Commission and EEAS, paras 39 and 42

2. The judge hearing the application for interim relief has the power to issue interim directions without prejudice to the decision of the judge in the main proceedings.

(see para. 31)

See:

5 August 1983, 118/83 R CMC and Others v Commission, para. 53

12 December 1995, T-203/95 R Connolly v Commission, para. 25

3. The issue of the admissibility of the main application should not generally be examined in proceedings relating to an application for interim measures, but should be reserved for the examination of the main application. To rule, at the stage of the proceedings for interim relief, on the admissibility of the main application, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Court’s decision on that application.

However, it may be necessary, particularly where it is contended that the main application to which the application for interim measures relates is manifestly inadmissible, for the Court to establish whether there are any grounds for concluding prima facie that the main application is admissible.

(see paras 32, 33)

See:

27 June 1991, C-117/91 R Bosman v Commission, para. 7

4 February 1999, T-196/98 R Peña Abizanda and Others v Commission, para. 10 and the case-law cited therein; 30 October 2003, T-125/03 R and T-253/03 R Akzo Nobel Chemicals and Akcros Chemicals v Commission, para. 56

14 December 2006, F-120/06 R Dálnoky v Commission, para. 41

4. Both in the specific context of proceedings relating to the European civil service and in proceedings generally, only measures which produce binding legal effects capable of affecting the applicant’s interests by bringing about a significant change in his legal situation constitute acts adversely affecting him which are therefore open to review.

In that respect, a report terminating an investigation by the European Anti-Fraud Office (OLAF) does not change the legal situation of the persons named in that report. In particular, the announcement that the investigation is being terminated and the final report drawn up may not be regarded as an act adversely affecting those persons.

Moreover, OLAF’s decision to invite an official or other staff member to attend an interview and, secondarily, informing him of the purpose of and procedure for that interview also does not change his legal situation significantly enough to constitute an act adversely affecting him. It is clearly a preparatory measure in the conduct of an investigation capable of resulting in a final decision which the institution concerned or the competent national legal authorities may adopt in the light of OLAF’s report terminating that investigation.

(see paras 39, 41, 42)

See:

6 April 2006, T-309/03 Camós Grau v Commission, paras 48 and 49

20 May 2010, T-261/09 P Commission v Violetti and Others, para. 46

5. Article 102(2) of the Rules of Procedure of the Civil Service Tribunal provides that applications for the adoption of interim measures must state, in particular, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for.

The conditions of urgency and establishment of a prima facie case are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied. Where appropriate, the judge hearing such an application must also balance the interests at stake.

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed.

(see paras 56-58)

See:

10 September 1999, T-173/99 R Elkaïm and Mazuel v Commission, para. 18; 9 August 2001, T-120/01 R De Nicola v EIB, paras 12 and 13

31 May 2006, F-38/06 R Bianchi v ETF, paras 20 and 22

6. The purpose of interim proceedings is not to secure reparation of damage but to guarantee the full effectiveness of the judgment on the substance. In order that the latter objective may be attained, the measures sought must be urgent in the sense that, in order to avoid serious and irreparable damage to the applicant’s interests, they must be ordered and become effective even before the decision in the main proceedings. Moreover, it is for the party applying for interim measures to adduce proof that it cannot await the outcome of the main action without suffering such damage.

(see para. 60)

See:

19 December 2002, T-320/02 R Esch-Leonhardt and Others v ECB, para. 27