CELEX: 62016FO0026
Language: en
Date: 2016-07-21 00:00:00
Title: Order of the President of the Civil Service Tribunal of 21 July 2016.#HP v European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice and European Commission.#Civil service — Social security — Joint Sickness Insurance Scheme — Reimbursement of the medical expenses of the spouse of a member of the temporary staff — Rejection of a request for prior authorisation — Proceedings for interim measures — Application for interim measures — Urgency — None.#Case F-26/16 R.

ORDER OF THE PRESIDENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
21 July 2016 (*)
(Civil service — Social security — Joint Sickness Insurance Scheme — Reimbursement of the medical expenses of the spouse of a member of the temporary staff — Rejection of a request for prior authorisation — Proceedings for interim measures — Application for interim measures — Urgency — None)
In Case F‑26/16 R,
ACTION brought under Articles 278 TFEU and 157 EA, and under Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof,

HP, member of the temporary staff of the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, residing in Tallinn (Estonia), represented by M. Greinoman, lawyer,
applicant,
v

European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), represented by M. Chiodi, acting as Agent, and by A. Duron and D. Waelbroeck, lawyers,

European Commission, represented by T.S. Bohr and C. Ehrbar, acting as Agents, 
and

Office for the Administration and Payment of Individual Entitlements (PMO),

defendants,
THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL
makes the following

Order

1        By application received at the Registry of the Civil Service Tribunal on 22 May 2016, HP requests, in essence, that the Tribunal suspend the implementation of the decision of 14 March 2016 whereby the head of the Brussels (Belgium) Settlement Office of the Joint Sickness Insurance Scheme (‘JSIS’) rejected a request for prior authorisation for reimbursement of the costs of treating the Hepatitis C from which her spouse suffers.
 Factual background to the dispute

2        The applicant has been a member of the temporary staff of the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA) (‘the Agency’) since January 2013.

3        At the end of 2015, the applicant’s husband was diagnosed with Hepatitis C. West Tallinn Central Hospital (Tallinn, Estonia) recommended treating that hepatitis by administering two anti-viral drugs, Exviera and Viekirax.

4        On 12 January 2016, the applicant submitted a request to the JSIS for prior authorisation for reimbursement of the costs of using Exviera and Viekirax to treat the Hepatitis C from which her husband suffers.

5        The head of the Brussels Settlement Office rejected the request for prior authorisation by decision of 14 March 2016 (‘the contested decision’), stating that ‘at [that] stage [of the disease, Exviera and Viekirax were] not reimbursable’, but that ‘in [the event] of further developments, [the] file [would] be reconsidered’.

6        On 15 May 2016, the applicant brought a complaint against the contested decision.
 Procedure and forms of order sought

7        By separate application received at the Registry of the Tribunal on 22 May 2016, the applicant brought an action before the Tribunal chiefly seeking annulment of the contested decision. That application was registered at the Registry of the Tribunal as Case F‑26/16.

8        In the present application for interim measures, the applicant claims that the judge hearing that application should:
–        suspend the implementation of the contested decision;
–        order the defendant, either directly or through the Office for the Administration and Payment of Individual Entitlements (PMO), to pay for the treatment by Exviera and Viekirax which has been prescribed to her husband, or
–        order the defendant, either directly or through the PMO, to reimburse that treatment upon production of proof of payment.

9        By separate document of 1 June 2016, the applicant sent the Registry of the Tribunal a set of documents supplementing her application. The applicant submitted new evidence to the Tribunal on 8 June 2016.

10      In its defence observations, the Commission contends that the judge hearing the application for interim measures should reject the applicant’s claims, primarily, as inadmissible and, in the alternative, as unfounded, and order her to pay the costs.

11      In essence, the Commission argues that, as the applicant has not mentioned any plea of fact or of law capable of establishing a prima facie case for granting the measures sought, her head of claim seeking interim measures must be rejected as inadmissible.

12      In addition, the heads of claim whereby the applicant seeks to obtain an order from the Tribunal for the defendant to pay or reimburse the costs of the treatment in respect of which reimbursement has been refused constitute injunctions, which are inadmissible in the context of proceedings for interim measures.

13      Moreover, the additional evidence which the applicant sent to the Tribunal on 8 June 2016 is, in the Commission’s view, inadmissible and cannot be added to the case file, in accordance with Article 116(3) of the Rules of Procedure.

14      Regarding the substance, the Commission contends, in essence, that the applicant has failed to establish, in any event, that the measures sought were urgent in the sense that they were necessary in order to prevent serious and irreparable harm to herself or to her husband.

15      In its defence observations, the Agency contends that the judge hearing the application for interim measures should reject the applicant’s heads of claim, in so far as they are directed against the Agency, as inadmissible, and order the applicant to pay the costs of the present proceedings.

16      The eu-LISA argues, in essence, that, as it was not the author of the contested decision, the applicant cannot bring proceedings against it before the Tribunal. As the Agency had delegated to the PMO the exercise of the powers conferred on the authority empowered to conclude contracts of employment, the action in the main proceedings should, it submits, be directed against the Commission alone, in accordance with the Service Level Agreement concluded with the PMO and pursuant to Article 91a of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’).
 Law

17      As a preliminary point, it should be observed that, although the applicant intended, in her application, to bring proceedings against the PMO, it should be noted that that office is a department of the Commission, attached to the Directorate-General for Personnel and Administration, with the result that the application for interim measures, in so far as it is directed against the PMO, must be regarded as being directed against the Commission.

18      That having been explained, it should be borne in mind that, under Article 115(2) of the Rules of Procedure, applications for suspension or for other interim measures must state, inter alia, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures sought.

19      According to settled case-law, the conditions of urgency and establishment of a prima facie case are cumulative, with the result that an application for interim measures must be dismissed if either of those conditions is not satisfied (orders of 12 September 2013 in De Loecker v EEAS, F‑78/13 R, EU:F:2013:134, paragraph 18, and 15 July 2015 in Wolff v EEAS, F‑94/15 R, EU:F:2015:91, paragraph 21). In addition, the judge hearing an application for interim measures must balance the interests at stake (order of 15 July 2015 in Wolff v EEAS, F‑94/15 R, EU:F:2015:91, paragraph 16).

20      In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad 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 (order of 20 January 2016 in Brouillard v Commission, F‑148/15 R, EU:F:2016:4, paragraph 9 and the case-law cited).

21      In the circumstances of the present case, it is necessary first of all to examine whether the condition of urgency is satisfied.

22      In that regard, according to settled case-law, the purpose of proceedings for interim measures is not to ensure that the damage is made good but to ensure that the judgment on the substance of the case takes full effect. For the purpose of attaining that objective, the measures sought must be urgent in so far as, in order to avoid serious and irreparable harm to the interests of the party applying for interim measures, they must be made and produce their effects before a decision is reached in the main proceedings (orders of 25 March 1999 in Willeme v Commission, C‑65/99 P(R), EU:C:1999:176, paragraph 62; 10 September 1999 in Elkaïm and Mazuel v Commission, T‑173/99 R, EU:T:1999:168, paragraph 25; and 2 October 2013 in Colart and Others v Parliament, F‑87/13 R, EU:F:2013:147, paragraph 27). In addition, it is for the party asking to be granted interim measures to adduce evidence that it cannot wait for the outcome of the main proceedings without suffering harm of that nature (order of 2 October 2013 in Colart and Others v Parliament, F‑87/13 R, EU:F:2013:147, paragraph 27).

23      Regarding, first of all, the head of claim seeking an order from the Tribunal for payment or reimbursement of the costs of the medicinal products in respect of which reimbursement was refused by the contested decision, it must be found that, by that head of claim, the applicant seeks to obtain, at the end of the proceedings for interim measures, a measure capable of imposing a possible annulment of the contested decision (see, to that effect, order of 14 July 2010 in Bermejo Garde v EESC, F‑41/10 R, EU:F:2010:89, paragraph 41). However, such a request would be contrary to both the purely ancillary nature of proceedings for interim measures in relation to the main proceedings and the necessarily interim nature of the decision taken by the judge in that context, which must neither prejudge the future decision on the substance of the case nor render it illusory by depriving it of effectiveness (orders of 16 November 2012 in Akzo Nobel and Others v Commission, T‑345/12 R, EU:T:2012:605, paragraph 25, and 20 January 2016 in Brouillard v Commission, F‑148/15 R, EU:F:2016:4, paragraph 20). As a result, such measures, which are not of an interim nature, cannot be granted in the context of the present proceedings for interim measures.

24      As regards the head of claim seeking suspension of implementation of the contested decision, the applicant argues, in order to show that the condition of urgency is satisfied, that her husband’s state of health would worsen considerably if he does not receive the treatment which has been recommended to him for his liver disease. She adds that if such were to be the case, it would expose her personally to an increased risk of transmission as long as the contested decision is not annulled and her husband is not treated, as Hepatitis C is transmitted via the sharing of everyday objects, such as certain toiletries, as well as during sexual relations.

25      However, in the first place, as noted by the Commission, it should be emphasised that the contested decision does not, in itself, prevent the applicant’s husband from undergoing the recommended treatment using Exviera and Viekirax, given that it only refuses to reimburse the costs thereof and the applicant does not establish or even claim that she does not have the necessary resources to provide for that treatment. Furthermore, the contested decision reserves the option of reviewing the request for reimbursement in the event of further development of the disease.

26      In the second place, in support of her line of argument, the applicant confines herself to mentioning, in a vague and general way, the consequences which may result in the event of a case of Hepatitis C which is not treated correctly and in sufficient time.

27      In that regard, the applicant refers to, inter alia, a publication by the World Health Organisation relating to Hepatitis C, its symptoms, its transmission paths and its potential developments, a study by the European Medicines Agency (EMA) relating to Exviera, its benefits and the conditions for its use, and to other general publications by public and private bodies relating to the treatment of Hepatitis C and the eradication thereof. However, she does not adduce any specific evidence regarding her husband’s current state of health and, in particular, does not adduce any evidence to establish that any of those outcomes would be not only likely to occur in the short term in her husband’s case in the absence of treatment, but also irreparable in view of the progression or development of his disease.

28      Thus, the results of the medical analysis, dated 6 June 2016, which the applicant sent to the Tribunal on 8 June 2016 are not, contrary to her assertions, sufficient evidence of ‘deterioration’ in her husband’s state of health likely to put him at risk of ‘irreparable harm’ to his health in the absence of treatment. First, that record of the analysis merely provides evidence of the existence of ‘chronic Hepatitis C’, without specifying the ‘degree of severity’ of the disease, in respect of which no information has been given, just as none was given in the record of the results of the analysis of November 2015; second, and most importantly, those results are not accompanied by any medical commentary capable of enlightening the Tribunal as to the degree of severity of the disease, except for the indication that a ‘fibroscan’ analysis is scheduled for 1 November 2016, that is to say, five months after the communication of those results, an analysis which is intended merely to assess the degree of fibrosis, without providing evidence by itself, unless additional information is provided, of the stage of development of the disease in question.

29      Furthermore, the applicant does not claim that her husband is already suffering from any of the conditions associated with his liver disease. Therefore, even assuming that the documents submitted by the applicant on 1 and 8 June 2016 in support of her application are admissible, those documents do not provide any evidence capable of establishing the urgency on which she has relied.

30      Nor does the applicant establish that she has been personally exposed to an increased risk of transmission of Hepatitis C as a result of the contested decision, as such transmission is clearly dependent first and foremost on the personal conduct of both the infected person and those around him, and not on the implementation of that decision.

31      Lastly, it should also be emphasised that the contested decision is a negative administrative decision, in that it concerns a refusal to reimburse the costs of medicinal products recommended for the treatment of the disease from which the applicant’s husband suffers. Suspending the implementation of that negative decision would not enable the applicant’s husband to receive such treatment in the present case, which would require a positive decision from the Settlements Office of the JSIS (see, to that effect, orders of 23 January 2012 in Henkel and Henkel France v Commission, T‑607/11 R, EU:T:2012:22, paragraph 21, and 20 January 2016 in Brouillard v Commission, F‑148/15 R, EU:F:2016:4, paragraph 19).

32      In those circumstances, the applicant cannot validly claim that the implementation of the contested decision would expose her and her husband, on whose behalf she submitted the request for reimbursement, to serious and irreparable harm, with the result that the condition of urgency is not satisfied.

33      That conclusion cannot be called into question by the fact that certain Member States of the European Union, such as Slovakia, the Czech Republic, Germany, the United Kingdom and the Netherlands, would reimburse the costs of the anti-viral drugs recommended for the treatment of her husband’s Hepatitis C, including from the initial stages of that disease. In any event, such a fact — which, moreover, is not supported by any explanation or argument — relating to the conditions for the reimbursement of costs of medicinal products on the basis of national laws has no effect on the assessment of the condition of urgency in the context of the present proceedings for interim measures.

34      The same is true as regards the assertion that other developed countries, such as the United States, also take the view that a person infected with the Hepatitis C virus would be exposed to irreparable harm in the absence of treatment, as was claimed by the applicant in support of her additional documents sent to the Tribunal on 8 June 2016, making reference to, inter alia, case-law handed down by a district court in Washington.

35      Similarly, no relevance attaches to the fact that the Charter of Fundamental Rights of the European Union states, in Article 31, that every worker has the right to working conditions which respect his or her health, safety and dignity, and that it guarantees, in Article 35, the right of every person to benefit from medical treatment under the conditions established by national laws and practices and to enjoy a high level of human health protection in the implementation of all Union policies and activities. The reference made to Article 1e of the Staff Regulations, which makes provision, inter alia, for officials in active employment to have access ‘to measures of a social nature, including specific measures to reconcile working life with family life’, is also ineffective.

36      In any event, such arguments cannot be used as a basis for establishing an urgent need to suspend the implementation of the contested decision, since the unlawfulness of an administrative decision, as a rule, has no effect on the assessment of the condition of urgency. By contrast, those arguments regarding lawfulness may be taken into account for the purposes of assessing the condition of establishment of a prima facie case (see, to that effect, order of 12 September 2013 in De Loecker v EEAS, F‑78/13 R, EU:F:2013:134, paragraphs 25 and 29).

37      However, given that, in view of the foregoing, the applicant has not established urgency, there is no need to determine whether the condition of establishment of a prima facie case would be satisfied in the present case, as the conditions mentioned in paragraph 19 above are cumulative.

38      In those circumstances, the heads of claim in the present application for interim measures must be rejected, without it being necessary either to give a ruling regarding the condition of establishment of a prima facie case or to balance the interests at stake; in addition, it is unnecessary to give a ruling at this stage regarding the objection of inadmissibility raised by eu-LISA.
 Costs

39      Article 100 of the Rules of Procedure provides that a decision as to costs is to be given in the judgment or order which closes the proceedings, which is to be understood as the decision bringing the main action to an end (order of 14 July 2010 in Bermejo Garde v EESC, F‑41/10 R, EU:F:2010:89, paragraph 91 and the case-law cited).

40      Accordingly, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL
hereby orders:
1.      HP’s application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 21 July 2016.

W. Hakenberg
 
      S. Van Raepenbusch

Registrar
 
      President

* Language of the case: English.