CELEX: 62009FO0092
Language: en
Date: 2009-12-18 00:00:00
Title: Order of the President of the Civil Service Tribunal of 18 December 2009. # U v European Parliament. # Public service - Application for interim measures - Fumus boni juris. # Case F-92/09 R.

ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL
      18 December 2009
      Case F-92/09 R
      U
      v
      European Parliament
      (Civil service – Application for interim measures – Application for suspension of operation of a decision to dismiss – Urgency – Prima facie case)
      Application: brought under Articles 242 EC, 243 EC, 157 EA and 158 EA, in which U seeks, first, suspension of the Parliament’s decision
         of 6 July 2009 dismissing her and, second, the grant of interim measures.
      
      Held: Enforcement of the decision of 6 July 2009 to dismiss the applicant is suspended until the Tribunal delivers its final decision.
         There is no need to adjudicate separately on the claims for the applicant’s reinstatement or on those seeking an order for
         any measures necessary to protect her rights and interests. The costs are reserved.
      
      Summary
      1.      Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima
            facie case – Urgency – Cumulative nature – Method and order of priority of examination
      (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
      (Art. 278 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))
      3.      Officials – Remuneration – Family allowances – Dependent child allowance – Treating a person as a dependent child
      (Staff Regulations, Annex VII, Arts 2(4) and 17(2))
      4.      Officials – Dismissal for incompetence – Duty to have regard for the welfare of officials
      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 relating to urgency and a prima facie case are cumulative so that an application for interim measures must
         be rejected if one of them is absent.
      
      In the context of that overall examination the judge hearing the application for interim relief enjoys a wide margin of discretion
         and remains free to determine, in light of the particular features of the case, the way in which those different conditions
         have to be verified and the order of priority of that examination, since there is no rule of Community law imposing on him
         a pre‑determined analytical model for assessing the need for an interim decision.
      
      (see paras 40-42)
      See:
      T-120/01 R De Nicola v EIB [2001] ECR-SC I‑A‑171 and II‑783, paras 12 and 13
      
      F-38/06 R Bianchi v ETF [2006] ECR-SC I‑A‑1‑27 and II‑A‑1‑93, paras 20 and 22
      
      2.      While purely financial damage cannot, in principle, be regarded as irreparable, or even difficult to repair, because financial
         compensation can be made for it subsequently, it is, however, for the judge hearing the application for interim relief to
         determine, in the light of the particular circumstances of each case, whether the immediate execution of the contested decision
         may cause the applicant serious and imminent harm which even the annulment of the decision at the close of the main proceedings
         would be unable to repair.
      
      In such a case, the judge hearing the application for interim measures must ensure that, having regard to the circumstances
         of the applicant’s situation, he has an amount of money which, under normal circumstances, should enable him to meet all the
         essential expenditure necessary to cater for his own basic needs until a ruling is given in the main action.
      
      (see paras 47, 49-50)
      See:
      T‑549/93 R D. v Commission [1993] ECR II‑1347, para. 45; T-211/98 R Willeme v Commission [1999] ECR-SC I‑A‑15 and II‑57, para. 37; T-200/03 R V v Commission [2003] ECR-SC I‑A‑317 and II‑1549, para. 57
      
      3.      Article 2(4) of Annex VII to the Staff Regulations provides that any person whom the official has a legal responsibility to
         maintain and whose maintenance involves heavy expenditure may, exceptionally, be treated as if he were a dependent child by
         special reasoned decision of the appointing authority, based on supporting documents. However, the fact that an official has
         not requested that one of the members of his family be treated as if he were a dependent child pursuant to those provisions
         does not prove that the official is not providing financial support for his family, which has remained in his country of origin.
      
      Furthermore, Article 17(2) of Annex VII to the Staff Regulations provides that an official may have part of his remuneration
         transferred to another Member State from that in which he is employed for a dependent child or a person to whom the official
         provides evidence of having an obligation by virtue of a decision of the courts or the competent administrative authority.
         However, the fact that an official has not claimed that he satisfied the special conditions laid down in those provisions
         in order to have part of his salary transferred to his family, which has remained in his country of origin, also does not
         prove that the official is not providing financial support for that family.
      
      (see paras 59-60)
      4.      The duty to have regard for the welfare of officials requires the administration, where there is doubt as to the medical origin
         of the difficulties encountered by an official in performing the tasks falling to him or her, to take all necessary steps
         to dispel that doubt before a decision dismissing that official is adopted.
      
      Moreover, that requirement is reflected in the Parliament’s own Internal Rules on the remedial procedure to certify, deal
         with and remedy potential cases of incompetence on the part of officials, since Article 8 of those rules provides that the
         final assessor must, in certain circumstances, refer the matter to the Parliament’s medical service if he is aware of facts
         likely to show that the conduct alleged against the official could have a medical origin.
      
      Moreover, the obligations imposed on the administration by the duty to have regard for the welfare of officials are substantially
         reinforced when what is at issue is the particular situation of an official in respect of whom there are doubts regarding
         his mental health and, consequently,  his ability adequately to defend his own interests, particularly where the official
         is under threat of dismissal and therefore in a vulnerable position.
      
      (see paras 75-77)
      See:
      T-145/01 Latino v Commission [2003] ECR-SC I‑A‑59 and II‑337, para. 93
      
      F-17/05 de Brito Sequeira Carvalho v Commission [2006] ECR-SC I‑A‑1‑149 and II‑A‑1‑577, para. 72