ORDER OF THE PRESIDENT

OF THE CIVIL SERVICE TRIBUNAL

15 February 2011

Case F-104/10 R

Mario Alberto de Pretis Cagnodo and Serena Trampuz de Pretis Cagnodo

v

European Commission

(Civil service — Procedure for interim relief — Application for suspension of operation of a measure — Urgency — None)

Application: brought under Articles 278 TFEU and 157 EA and under Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr de Pretis Cagnodo and his spouse, Ms Trampuz de Pretis Cagnodo, seek suspension of the ‘compulsory recovery procedure’ for sums corresponding to hospitalisation costs for Ms Trampuz de Pretis Cagnodo.

Held: The application for interim relief is dismissed. Costs are reserved.

Summary

1. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — ‘Fumus boni juris’ — Urgency — Cumulative nature — Balancing of all the interests involved — Manner and order of examination — 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))

2. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Serious and irreparable damage — Burden of proof — Strictly pecuniary damage

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

3. Application for interim measures — Conditions for admissibility — Application — Formal requirements — Statement of pleas in law establishing a prima facie case for granting the measures sought

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Arts 35(1)(d) and 102(2) and (3))

1. Article 102(2) of the Rules of Procedure of the Civil Service Tribunal provides that applications for interim measures must state 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 weigh up the interests involved.

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 15-17)

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

2. The urgency of an application for interim measures must be assessed in relation to the need for an interim decision in order to prevent serious and irreparable damage to the party applying for those measures, it being clear that pecuniary damage cannot, save in exceptional circumstances, be regarded as irreparable or even as difficult to repair since it may, as a general rule, be the subject of subsequent financial compensation.

Even where the damage is purely pecuniary, interim measures are justified if it is apparent that, without those measures, the party applying for them would be in a situation capable of jeopardising his financial viability, since he would not have an amount of money which under normal circumstances should enable him to meet all the essential expenditure necessary to cater for his basic needs until a ruling is given in the main action.

However, in order to assess whether the alleged damage is of a serious and irreparable nature justifying the suspension, exceptionally, of the operation of the contested decision, the judge hearing the application must, in every case, have hard and precise information, supported by detailed documents showing the financial position of the party applying for the interim measures and allowing an assessment to be made of the probable consequences of the failure to order the measures sought.

In any event, it is incumbent on the party applying for suspension of the operation of a decision to prove that it cannot await the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences.

(see paras 23-26)

See:

22 January 1988, 378/87 R Top Hit Holzvertrieb v Commission, para. 18; 18 October 1991, C-213/91 R Abertal and Others v Commission, para. 18; 11 April 2001, C-471/00 P(R) Commission v Cambridge Healthcare Supplies, para. 113; 7 May 2002, T-306/01 R Aden and Others v Council and Commission, para. 94

2 April 1998, T-86/96 R Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission, paras 64, 65 and 67; 16 July 1999, T-143/99 R Hortiplant v Commission, para. 18; 3 July 2000, T-163/00 R Carotti v Court of Auditors, para. 8; 15 June 2001, T-339/00 R Bactria v Commission, para. 94; 18 October 2001, T-196/01 R Aristoteleio Panepistimio Thessalonikis v Commission, para. 32; 15 November 2001, T-151/01 R Duales System Deutschland v Commission, para. 187; 3 December 2002, T-181/02 R Neue Erba Lautex v Commission, para. 82; 13 October 2006, T-420/05 R II Vischim v Commission, paras 83 and 84; 25 April 2008, T-41/08 R Vakakis v Commission, para. 52

3. Where there is an allegation of pecuniary damage, the party applying for the interim measures must provide an accurate and comprehensive picture of its financial situation when the application for interim measures is submitted. It follows from Article 35(1)(d) read in conjunction with Article 102(2) and (3) of the Rules of Procedure of the Civil Service Tribunal that an application for interim measures must be sufficient in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information, since the essential elements of fact and law on which it is founded must be set out in the text of the application itself.

(see para. 28)

See:

Aden and Others v Council and Commission, para. 52

15 January 2001, T-236/00 R Stauner and Others v Parliament and Commission, para. 34; 23 May 2005, T-85/05 R Dimos Ano Liosion and Others v Commission, para. 37; 4 February 2010, T-385/05 TO Portugal v Transnáutica and Commission, paras 11 to 13