C-28/65

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, represented by its Legal Adviser, Mr Marchini-Camia, acting as Agent, with an address for service in Luxembourg at the offices of the Secretary of the Legal Department of the European Executives, 2 place de Metz,

defendant,

Application to suspend the operation of the decision concerning the applicant adopted on 7 October 1964 by the Commission of the European Atomic Energy Community,

Facts

Whereas on 12 May 1965 the applicant, head of the purchasing department certain Fonzi, lodged an application at the Registry duties referred to in the letter of 12 October; entered as Case No 28/65; and whereas this Whereas a separate document, distinct application challenged, inter alia, the deci­ from Application 28/65, lodged at the sion concerning him adopted by the Com­ Registry on 9 June 1965, the applicant ap­ mission on 7 October 1964, of which he was plied to the Court to suspend the operation notified on 12 October 1964 in a letter of the abovementioned decision; signed by the Director-General for Admin­ Whereas the defendant lodged at the Reg­ istration and Personnel; istry on 22 June 1965 observations in reply Whereas according to this decision the ap­ to the effect that the applicant's request plicant 'whilst retaining his present post' should be rejected; was allocated to the Directorate-General Whereas the parties were heard at the hear­ for Administration and Personnel in order ing on 7 July 1965; to carry out under the responsibility of the

1 — Language of the Case: Italian.

carry out under the responsibility of the head of the purchasing department' various duties;

Whereas the applicant states that there is nothing in the Regulations authorizing) the Commission to 'allocate' an official to the performance of new duties whilst continuing to occupy the post under the Staff Regulations to which he was pre­ viously appointed;

Whereas this statement raises the very point at issue before the Court in Case 28/65, namely that of the powers vested in the administration under the Regula­ tions, in particular with regard to scientific employees at Euratom, and therefore concerns the substance of the case without proving the urgency of the interim measure sought;

Whereas the applicant says that the suspension of operation of the decision allo­ cating him to Brussels is prima facie justified on the ground that the decision seeks to require the applicant to perform duties of a temporary nature;

Whereas at this interlocutory stage in the proceedings, it is appropriate to note that the Commission of the EAEC expressly disputes this point which is one for the Court to assess when it considers the application in Case 28/65;

ORDER OF 10. 3. 1966 — CASE 28/65

Whereas whatever the grounds of complaint against this decision, which has more­ over been submitted to the Court for its consideration and which the judge hearing an application for the adoption of an interim measure cannot decide in advance, the grounds set out above are not, as they stand, sufficient reason for suspending the operation of a decision which seems designed to change the applicant's place of work and—without prejudice to judgment of the Court on the substance of the case—appears to be an act falling within the Commission's sphere of responsi­ bility;

Whereas at this stage, therefore, it is appropriate to dismiss the application for suspension of the operation of the decision of 7 October 1964;

On those grounds,

Upon reading the pleadings; Upon hearing the parties; Having regard to the Treaty establishing the European Atomic Energy Community and the Statute of the Court of Justice of that Community; Having regard to the Staff Regulations of the European Atomic Energy Com­ munity; Having regard to the Rules of Procedure of the Court of Justice, especially Article 83; Having regard to the urgency of the matter;

FONZI v COMMISSION

The President of the First Chamber of the Court of Justice of the European Communities