ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

5 July 1996

Case T-85/96 R

Francis Alan Clarke

v

European Centre for the Development of Vocational Training

‛Officials — Posting — Suspension of operation — Interim measures’

Full text in German II-1003

Application for:

suspension of the operation of the defendant's decision to post the applicant to Thessaloniki; interim continuation of his posting to the Statistical Office of the European Communities (Luxembourg).

Decision:

Application dismissed.

Abstract of the Order

In October 1977, the applicant was engaged by the defendant, the European Centre for the Development of Vocational Training (hereinafter ‘the Centre’) under a contract of employment for an indefinite period. The contract provided that the applicant's place of employment was to be Berlin, where the Centre then had its seat.

On 1 September 1994, the Council transferred the seat of the Centre to Thessaloniki, by Council Regulation (EC) No 1131/94 of 16 May 1994 amending Regulation (EEC) No 337/75 establishing a European Centre for the Development of Vocational Training (OJ 1994 L 127, p. 1).

A ‘framework agreement’ of 23 January 1995 on social measures concerning the relocation of the Centre to Thessaloniki, concluded between the Centre's director and the staff committee laid down provisions concerning, inter alia, the establishment of staff (paragraph 4.1), the eventuality of the persons concerned being unable to leave Berlin (paragraph 4.3) and the drawing up of an individual mobility plan for persons not able to go to Thessaloniki (paragraph 4.4).

On 1 March 1995, the Centre's staff were made subject to the relevant provisions of the regulations and rules applicable to the officials and other servants of the European Communities, by Council Regulation (EC) No 251/95 of 6 February 1995 amending Regulation (EEC) No 337/75 establishing a European Centre for the Development of Vocational Training (OJ 1995 L 30, p. 1).

The applicant was appointed as a probationary official on 1 April 1995 and as an established official on 1 January 1996.

By decisions of the defendant of 7 and 31 July 1995, the applicant was posted from 1 September 1995 (the date of the actual relocation of the Centre to Thessaloniki) until 31 March 1996 to the Statistical Office of the European Communities (‘the Statistical Office’) The applicant's wife was posted to Luxembourg until 1 March 1996, on which date she was transferred to the Commission (Office for Official Publications of the European Communities, Luxembourg).

The defendant subsequently twice extended the applicant's posting to the Statistical Office (by notes of 5 and 22 April 1996), the final extension being until 31 May 1996, the expiry of the ‘time-limit [...] for becoming mobile’ (note of 22 April 1996).

In response to a further request for an extension from the applicant, the defendant informed him that it did not intend to revoke its decision to post him to Thessaloniki after 31 May 1996 (fax of 21 May 1996).

Law

In order to demonstrate the urgency of his application, that is to say, the necessity for an interim ruling to prevent him from suffering serious and irreparable damage, the applicant claims that his posting to Thessaloniki until 30 September 1996 would jeopardize his transfer to the Statistical Office, the anticipated date for which is 1 October 1996. However, Article 29(l)(c) of the Staff Regulations of the European Communities (‘the Staff Regulations’) does not make a transfer subject to the condition that the person concerned should work for the institution to which he wishes to be transferred. Moreover, none of the documents produced by the applicant permits the prima facie conclusion that his posting to Thessaloniki until 30 September 1996 might compromise the envisaged transfer (paragraphs 62 and 63).

As for the alleged threat of separation between the applicant and his wife until 1 October 1996, it should be pointed out at this stage, without prejudice to the assessment of the matter in the main action, that the applicant cannot be regarded as having an established right to an extension of his posting to Luxembourg for, inter alia, family reasons. The applicant maintains that the duration of that posting should have been calculated by reference to his seniority in the service, in accordance with paragraph 4.3 of the framework agreement. On that point, it is sufficient to observe that he did not challenge the decision of 7 July 1995 in so far as it clearly and unequivocally fixed the deadline of 31 March 1996. As for the possibility of extension provided for in paragraph 4.3, which, in the applicant's submission, applies mutatis mutandis in the context of paragraph 4.4 of the same agreement, it should be pointed out that, even if such a possibility were to be held to exist, it would fall within the discretionary power of the defendant (paragraphs 64 to 67).

See: T-24/96 R U v Cedefop [1996] ECRSC II-479, para. 63

The same considerations apply to the possibility of extension envisaged in a note of 21 February 1996 addressed to the applicant and other interested persons and, in comparable terms, addressed to the whole of the defendant's staff in a circular of 6 February 1996. As regards the alleged delay in the realization of mobility, that is to say, the possibility of applying for a transfer under Article 29(l)(c) of the Staff Regulations, the applicant has not made out a prima facie case that, without that alleged delay, he would have been able to be transferred to an available post at the Statistical Office. In addition, the adoption of provisions on the voluntary termination of service would not have conferred on him the possibility of pursuing his professional career in Luxembourg. Finally, the applicant does not establish the existence of any undertaking on the part of the defendant vis-à-vis the Statistical Office with the object of maintaining his posting until his actual transfer (paragraph 67).

In those circumstances, the present application must be examined in the light of the broad discretion which the defendant has in organizing its departments and assigning its staff accordingly. Suspension of operation of the decision can therefore be justified only by imperative and exceptional circumstances likely to cause him serious and irreparable damage (paragraph 68).

See: U v Cedefop, cited above, paras 61 to 63

The period in question is particularly short, is clearly defined and includes the summer holidays (paragraph 70).

Moreover, the interest invoked by the applicant does not have precedence over the defendant's interest in maintaining the principle that the applicant was deemed to pursue his activities in Thessaloniki after the actual relocation of the department (a principle set out in paragraph 3 of the framework agreement). In the first place, in the absence of that specific indication to the contrary, his collaboration in the tasks attaching to his post in Thessaloniki must be regarded as necessary to the normal functioning of the defendant's departments. It is not open to the applicant to plead difficulties which might result, after his absence from those departments since 1 September 1995, when from his ‘integration’ into their activities, permission for that absence was granted to him essentially in his own interest. Secondly, the risk of separating the two spouses does not arise from the raison d'être of the social measures envisaged in the framework agreement, namely the transfer of the seat of the Centre, but from the transfer of the applicant's wife, at her request, to the Publications Office in Luxembourg. The interest attaching to that transfer (for her and for the Publications Office) cannot be pleaded against the Centre in these proceedings. That conclusion is not invalidated by the mere fact that the defendant agreed to that transfer; under the Staff Regulations, the appointing authority may not oppose the principle of an official's transfer (paragraphs 71 to 73).

Operative part:

The application for interim measures is dismissed.