C-173/82
ECLI:EU:C:1982:405
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INTERIM ORDER 29 NOVEMBER 1982 1
Gilbert Castille ν Commission of the European Communities
Case 173/82 R
Application for the adoption of interim measures — Suspension of operation — Interim measures — Conditions for granting (Rules of Procedure, Art. 83 (2))
An application to suspend the operation substantive action and if they are pro of a measure and other interim measures visional in the sense that they do not may be granted by the judge hearing the prejudge the substantive decision, that is case if, on factual and legal grounds, a to say they do not decide at this stage prima facie case is established, if they are points of law or fact in issue, or nullify urgent in the sense that it is necessary, so in advance the effects of the decision to as to avoid grave and irreparable harm, be delivered subsequently on the sub for them to be adopted and take effect stantive action. prior to the decision of the Court on the
In Case 173/82 R
GILBERT CASTILLE, an official of the Commission of the European Communities, residing at 40 Rue Mertens, Brussels, assisted and represented by Marcel Slusny of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, Centre Louvigny, 34/B/IV, Rue Philippe-II, applicant,
v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Joseph Griesmar, acting as Agent, assisted by Daniel Jacob, of the Brussels
I — Language of the Case: French.
INTERIM ORDER 29. 11. 1982 — CASE 173/82 R
Bar, 93 Avenue Brillat-Savarin, Brussels, with an address for service in Luxembourg at the office of Oreste Montalto, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg, defendant,
APPLICATION to suspend promotions to Grade A 4 in respect of 1982,
T H E JUDGE DESIGNATED BY THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
makes the following
ORDER
Facts
I — Background to the dispute II — Written procedure By an application received at the Court Registry on 28 June 1982, the applicant, pursuant to Article 91 (4) of the Suff Regulations of Officials, brought an In 1977 Gilbert Castille, a Grade A 5 action for annulment of the decision not official of the Commission since 1969, to include his name on the list of officials was placed on the list of officials put recommended for promotion to Grade forward by the departments for A 4 for 1982. promotion to Grade A4. That list was readopted without amendment in 1978. By a separate document, registered on Subsequendy, Mr Castille's name did not the same date, the applicant also appear on the list of officials submitted, pursuant to Article 83 of the recommended for promotion to Grade Rules of Procedure of the Court, an A 4 in 1979, 1980, 1981 or 1982. application for the adoption of interim
CASTILLE ν COMMISSION
measures. That application seeks the of officials recommended for promotion suspension of promotions to Grade A 4 is merely a measure preparatory to the for 1982. promotion itself. It states further that the applicant is not likely to suffer grave and irreparable harm, since if he were suc Since the President of the Court of cessful in his action he might be granted Justice was prevented from attending, on damages or even obtain the annulment of 29 June 1982, he delegated Judge Bosco, the promotions made. It also claims that at that time President of the First the interests of the service ought in any Chamber, to hear the interlocutory case to take precedence over the interests application. Consequently, Judge Bosco of the applicant. heard the parties at the sitting on 15 July 1982.
III — Submissions and argu ments of the parties IV — Oral procedure
(a) Observations of the applicant The parties, duly summoned, were heard at the sitting on 15 July 1982. The applicant claims that the contested decision was adopted in the absence of the periodic reports relating to him in respect of 1977/78 and 1979/81, is based on unlawful discrimination, does not state the grounds on which it was based and is vitiated by a misuse of powers. V — Subsequent developments
He justifies his application for the promotion procedure to be suspended by At the end of that sitting the parties claiming that, if that procedure were to agreed to accelerate the written continue, he would be likely to suffer procedure so that the hearing of the grave and irreparable harm inasmuch as, substantive action might be fixed for 21 even if the Court were to grant his October 1982 and in circumstances application as regards the substance of enabling the Court to deliver its the main proceedings, it might, following judgment before the end of the year, its most recent decisions, refrain from thus absorbing the application for the annulling the promotions made in the adoption of interim measures. meantime.
The urgency of the measures applied for Since the panics were however unable to stems from the fact that the promotion complete the written procedure in the procedure has already been initiated. period agreed between them it has not yet been possible to fix a date for the hearing in the oral procedure. (b) Observations of the defendant It is therefore necessary to adjudicate The Commission maintains that there is separately upon the application for the no urgency since the drawing-up of a list adoption of interim measures.
INTERIM ORDER 29. 11. 1982 — CASE 173/82 R
Decision
1 Anicie 185 of the Treaty provides that actions brought before the Court of Justice shall not have suspensory effect. However, the Court may, if it considers that the circumstances so require, order the operation of the contested decision to be suspended. It may also prescribe any other interim measure which it considers necessary.
2 Article 83 (2) of the Rules of Procedure of the Court provides that an application for suspension of operation and for the adoption of interim measures may be granted only where the circumstances of the case give rise to urgency and there are grounds establishing a prima facie case for the grant of such measures.
3 In accordance with the well-established case-law of the Court, an application for measures of that kind may be granted by the judge hearing it if, on factual and legal grounds, a prima facie case is established, if they are urgent in the sense that it is necessary, so as to avoid grave and irreparable harm, for them to be adopted and take effect prior to the decision of the Court on the substantive action and if they are provisional in the sense that they do not prejudge the substantive decision, that is to say they do not decide at this stage points of law or fact in issue, or nullify in advance the effects of the decision to be delivered subsequently on the substantive action.
4 It is clear from the documents in the case that more than 112 officials have been recommended by departments of the Commission for promotion to Grade A 4 and that of those 50 may be promoted according to budgetary availability. Excessive delay in proceeding with those promotions would prejudice the interests of the service and constitute a breach of the principle of good administration. To outweigh those effects it is necessary for the applicant's case to be supported by convincing arguments.
CASTILLE ν COMMISSION
5 In this case the applicant has not adduced any evidence to establish prima facie that his application is well founded. In any event there is nothing to prevent any damage which might be suffered by the applicant from being properly made good.
6 For the reasons set out above the measure applied for cannot therefore be granted.
Costs
7 It is appropriate in the circumstances to reserve costs.
On those grounds,
THE JUDGE DESIGNATED BY THE PRESIDENT,
by way of interim decision,
hereby orders as follows:
1. The application is dismissed.
2. The costs are reserved.
Luxembourg, 29 November 1982
J. A. Pompe G. Bosco Deputy Registrar The Judge designated by the President