ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

28 August 1996

Case T-l 12/96 R

Jean-Claude Séché

v

Commission of the European Communities

‛Officials — Rejection of a candidature and appointment of another candidate — Interim relief — Application for suspension of operation — Urgency — None’

Full text in French II-1121

Application for:

suspension of the operation of the Commission decisions of 22 May 1996 rejecting the applicant's candidature and appointing another candidate to the post of Principal Legal Adviser declared vacant by Notice COM/20/96.

Decision:

Application dismissed.

Abstract of the Order

The applicant is an official in Grade A 3 at the Commission, where he performs the duties of head of team in the Legal Service. Following the publication of two vacancy notices for posts of Principal Legal Adviser at Grade A 2, he submitted his candidature for the two posts to be filled. By note of 8 May 1996, he was informed that the Consultative Committee on Appointments had expressed the opinion that four candidatures, including his own, could be taken into consideration. Those four candidates were, in alphabetical order, Mr B, Mrs D, Mr M and the applicant.

By decision of 8 May 1996, the Commission appointed Mr B to perform the duties of Principal Adviser in the Legal Service on an interim basis. On 22 May 1996, it appointed Mrs D and Mr M to the posts declared vacant in the above notices. On 14 June 1996, the applicant was informed of the rejection of his candidature.

Law

The measures applied for must be provisional in the sense that they do not prejudge the decision on the substance of the case (paragraph 11).

See: T-41/96 R Bayer v Commission [1996] ECR II-0000, para. 13

Urgency

The urgency for adopting interim measures must be assessed by examining whether implementation of the contested acts, before a decision is taken by the Court of First Instance in the main proceedings, is capable of causing serious and irreversible damage to the applicant which could not be remedied, even if the contested decision were annulled, or which, despite its provisional nature, would be out of proportion to the interest of the defendant institution in having those acts implemented, even where they form the subject-matter of an action. It is for the applicant to prove that those conditions are met (paragraph 16).

See: T-589/93 R Ryan-Slieridanv FEACVT [1994] ECRSC II-257. para. 19; T-85/96 R Clarke v Cedefop [1996] ECRSC II-1003, para. 62

The mere fact that a candidate is close to retirement is not, in principle, capable of affecting the course of the procedure for filling the post in question or, in particular, the date on which any appointment should take effect. In particular, where an official close to the age of retirement obtains the annulment of decisions rejecting his candidature for a post and appointing another candidate, his rights are sufficiently guaranteed by his ability to claim damages for any refusal or impossibility to appoint him to the post in question (paragraph 18).

See: T-41/95 Moat v Commission [1996] ECRSC II-939, paras 40 and 41

So far as concerns, more specifically, the alleged damage to the applicant's professional reputation by reason of the rejection of his candidature and the appointment of another candidate to the post in question, the President considers that there is, prima facie, no tangible evidence for that allegation (paragraph 20).

Moreover, even if, which is not established at this stage, the applicant's authority within the team he leads and in his professional relations with other directorates-general of the Commission were affected by the refusal of the appointing authority to promote him to the post of Principal Legal Adviser, such nonmaterial damage would not be irreversible in the event of the contested decisions being annulled. A judgment of the Court of First Instance upholding the applicant's claim for annulment and ruling on his claim for compensation for nonmaterial damage would in any event be sufficient to reestablish his professional reputation. In that regard, it would be for the Court of First Instance to determine, in accordance with settled case-law, whether the annulment sought in itself constitutes appropriate and, in principle — that is to say, in the absence of any explicitly negative assessment of the applicant's abilities, capable of harming him — sufficient compensation for any nonmaterial damage which the applicant may have suffered by reason of the contested decisions. In any event, if annulment of the measures in question were not sufficient fully to compensate him for the nonmaterial damage in respect of which the claim is made, such damage could be compensated for, in appropriate cases, by upholding the applicant's claim in his main action for an order requiring the Commission to pay him one symbolic ecu by way of compensation for any nonmaterial damage sustained (paragraph 21).

See: T-58/92 Moat v Commission [1993] ECR II-1443, para. 71

Operative part:

The application for interim measures is dismissed.