C-206/81
ECLI:EU:C:1981:189
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ORDER OF T H E PRESIDENT OF T H E T H I R D CHAMBER OF THE COURT OF 20 JULY 1981 1
José Alvarez y European Parliament "Officials — Dismissal"
Case 206/81 R
In Case 206/81 R,
JOSÉ ALVAREZ, a probationary officialof the European Parliament, of 83 Rue de la Semois, Luxembourg, represented by Victor Biel, 18A Rue des Glacis, with an address for service in Luxembourg at the latter's Chambers, applicant, v
EUROPEAN PARLIAMENT, represented by Martin Schmidt, Director of Personnel and Social Affairs, acting as Agent,
defendant,
THE PRESIDENT OF THE THIRD CHAMBER OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
makes the following 1 — Language of the Case: French.
ORDER OF 20. 7. 1981 — CASE 206/81 R
ORDER
Facts and Issues
I — Previous history of the suspension of the operation of the dispute decision to dismiss him on the basis of his probation report. José Alvarez, who was a member of the auxiliary staff of the European Parlia- ment from 26 March 1979 to 30 III — Submissions and argu- September 1980, became on 1 October m e n t s of t h e p a r t i e s 1980 a probationary official of that institution. (a) The applicant's observations
By a letter of 19 June 1981 the Secretary The applicant claims that his dismissal on General of the European Parliament 15 July would result in making any informed Mr Alvarez that the report reparation for the damage suffered drawn up by his superior officers at the ineffective. In reality the applicant end of the period of probation was is scarcely interested in obtaining unfavourable and that he would be compensation in the form of damages dismissed on 15 July 1981. but is anxious above all that his career with the Parliament should be preserved, which would become very difficult once the dismissal had taken effect. He states II — W r i t t e n p r o c e d u r e that the Parliament cannot claim against him that an interlocutory decision could By application lodged at the Court hamper it in the proper administration of Registry on 8 July 1981 the applicant its business. brought an action primarily for the annulment of the probation report and (b) The defendant's observations the decision to dismiss him, based thereon. According to the applicant the The defendant considers that the probation report is insufficiently applicant has not demonstrated the reasoned, inaccurate and was drawn up existence of circumstances giving rise to without any objective check. He states urgency or the factual and legal grounds that the probation report and the establishing a prima facie case for the decision to dismiss him were drawn up adoption of an interim measure. with the deliberate intention "of removing a person who is too involved in On the one hand the applicant has not trade-union activities". demonstrated that the execution of the contested decision would cause him By a separate document accompanying serious or irreparable damage. On the the main application the applicant also contrary, the applicant does not deny submitted, in pursuance of Article 83 of that if he is successful in his action he the Rules of Procedure, an application may receive damages. As to his anxiety for the adoption of interim measures. that his career should be preserved, the That second application is for a defendant points out that if the Court
ALVAREZ ν PARLIAMENT
annuls the decision to dismiss him, the Finally the defendant stresses that, in fact that it has been either executed or view of the serious incidents on which suspended will no longer be material. On the decision to dismiss the applicant was the other hand a suspension of the based, a suspension of its operation operation of the decision to dismiss him would have serious effects on its would usher in a period of uncertainty authority in respect of its staff. Further, which would have repercussions on the it is by no means impossible, regard applicant's official career. being had to his attitude in the past, that the applicant might provoke fresh Furthermore the arguments put forward incidents. by the applicant do not show that his action is well founded. The facts alleged IV — Oral procedure by him in support of his action are moreover contradicted by various The parties were duly summoned and internal memoranda a copy of which is presented oral argument at the hearing appended to the defendant's obser of the application for the adoption of an vations. interim measure on 16 July 1981.
Decision
1 According to Article 185 of the Treaty actions brought before the Court of Justice do not have suspensory effect. However, the Court may, if it thinks that the circumstances so require, order the suspension of the operation of the contested decision. It may also prescribe any other necessary interim measure.
2 Article 91 (4) of the Staff Regulations of Officials of the European Communities provides that ari official may, after submitting a complaint to the appointing authority pursuant to Article 90 (2), immediately file an appeal with the Court of Justice, provided that such appeal is accompanied by an application either for a stay of execution of the contested act or for the adoption of interim measures.
3 By letter of 19 June 1981 the Secretary General of the European Parliament informed José Alvarez, a probationary official of the Parliament, that in view of the unfavourable probation report made in respect of him he would be dismissed on 15 July 1981.
ORDER OF 20. 7. 1981 — CASE 206/81 R
4 By an application, registered on 8 July 1981, José Alvarez brought an action under Article 179 of the EEC Treaty seeking primarily the annulment of his probation report and of the subsequent decision to dismiss him. By a separate document, registered on the same day, Mr Alvarez made an application for the adoption of an interim measure seeking the suspension of the operation of the decision to dismiss him.
5 Under Article 83 (2) of the Rules of Procedure of the Court a suspension of operation and a decision ordering interim measures are subject to the existence of circumstances giving rise to urgency and grounds establishing a prima facie case for the grant of such measures.
6 According to the Court's consistent case-law measures of this kind may be adopted by the judge hearing the application for such measures if it is established that their adoption is prima facie justified in fact and in law, if they are urgent in the sense that it is necessary, in order to avoid serious and irreparable damage, that they should be laid down, and should take effect, before the decision of the Court on the substance of the action and if they are provisional in the sense that they do not pre-judge the decision on the substance of the case, that is to say that they do not at this stage decide disputed points of law or of fact or neutralize in advance the consequences of the decision to be given subsequently on the substance of the action.
7 The damage which may be caused to the applicant does not satisfy the conditions set out above. In fact, even on the supposition that his action is well founded the damage which would arise from the application of the contested decision during the time necessary for the Court to deliver judgment could be made good by the grant of compensation, including, if appropriate, in view of the serious allegations made by the applicant, the grant of compensation for non-material damage.
8 On the other hand, if the unfavourable statements made in the report drawn up at the expiration of the probationary period are correct, the suspension of operation of the decision to dismiss the applicant would require the defendant to employ and pay, with no opportunity to recoup the sums thus expended, an employee whose presence in its administration would be contrary to the interests of the service.
ALVAREZ ν PARLIAMENT
9 For the reasons indicated above it is therefore impossible to grant the measure applied for.
Costs
10 In the circumstances the costs should be reserved.
On those grounds,
THE PRESIDENT OF THE THIRD CHAMBER,
by way of an interlocutory decision,
hereby orders as follows :
1. The application for the adoption of an interim measure is dismissed.
2. Costs are reserved.
Luxembourg, 20 July 1981.
For the Registrar
J. A. Pompe A. J. Mackenzie Stuart Deputy Registrar President of the Third Chamber