ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

10 April 1995

Case T-66/95 R

Hedwig Kuchlenz-Winter

v

Commission of the European Communities

‛Officials — Admissibility — Joint Sickness Insurance Scheme — Procedure for interim relief — Interim measures’

Full text in German II-287

Application for:

interim measures principally to suspend the operation of a decision that the applicant was no longer entitled to cover under the Joint Sickness Insurance Scheme of the European Communities institutions or, alternatively, for an order that that cover should not cease on the expiry of the period laid down in Article 72(1 )b of the Staff Regulations of Officials of the European Communities.

Decision:

Application dismissed.

Abstract of the Order

The applicant is a German national residing in Luxembourg. She was an official of the European Communities from 1956 to 1963, when she stopped work and settled in Luxembourg with her husband, an official of the European Parliament. From that date onward, the applicant, who can claim no pension from the Community, has been insured through her husband by the Joint Sickness Insurance Scheme of the European Communities institutions (Joint Scheme).

The applicant, having been divorced in 1994, now wishes to leave Luxembourg and become resident in Germany.

It is not disputed that it is possible for her to be a member of a Luxembourg sickness insurance fund when she is no longer insured by the Joint Scheme, whereas it is possible for her to be a member of such a fund in Germany only in the context of an employment relationship.

Law

It is for the applicant to prove that she cannot await the outcome of the main action without suffering damage that would have serious and irreparable consequences (paragraph 12).

See: T-146/94R Williams v Court of Auditors [1994] ECRSC II-571, para. 12

Where the documents before the court demonstrate the need, it falls to the judge hearing the application for interim measures to consider whether the application may be regarded as admissible prima facie (paragraph 18).

Not only does the applicant not refer in her application for interim measures to any circumstance giving rise to urgency, but she does not put forward any pleas of fact or law establishing a prima facie case for those interim measures. It is therefore doubtful that the application for interim measures can be regarded as satisfying the conditions for admissibility laid down in Article 104(2) of the Rules of Procedure of the Court of First Instance (paragraph 19).

The applicant has adduced no evidence that would make it possible to consider the main action to be prima facie admissible. It seems that the action ought to have been brought against the European Parliament because it is apparently for the latter to say whether the divorced spouse of one of its officials may continue to enjoy cover under the Joint Scheme (paragraph 20).

The Community judicature has no jurisdiction to issue directions to either the Commission or a Member State when reviewing the legality of an act in an action for annulment (paragraph 22).

See: T-432/93, T-433/93 and T-434/93 Socurte and Others v Commission [1995] ECR II-503, para. 54

In so far as the applicant wishes to compel the Commission to use its right of initiative, that aim could be achieved, if at all, only in an action for a declaration of failure to act (paragraph 22).

With regard to the urgency of the measures applied for, the applicant has merely claimed that the fact that she cannot obtain cover against the risk of sickness in Germany would prevent her from moving from Luxembourg to Germany. None the less, it is possible for her to become a member of a Luxembourg sickness insurance fund. It has thus not been in any way established that the applicant might suffer serious and irreparable damage as the result of a refusal to grant the measures applied for (paragraph 23).

The conditions enabling the interim measures applied for to be granted have not been satisfied. The application must therefore be dismissed (paragraph 24).

Operative part:

The application for interim measures is dismissed.