C-338/82
ECLI:EU:C:1982:449
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ORDER OF THE PRESIDENT OF THE COURT 23 DECEMBER 1982 '
Carlo Albertini and Mario Montagnani v Joint Nuclear Research Centre and Commission of the European Communities
Case 338/82 R
Application for the adoption of interim measures — Suspension of operation — Conditionsforgranting (Rules of Procedure, Art. 83 (2))
In Case 338/82 R
CARLO ALBERTINI AND MARIO MONTAGNANI, scientific officers at the Joint Nuclear Research Centre at Ispra, represented by Mr Angelo Ulgheri, Advocate, of the Milan Bar, and Mr Roland Michel, Advocate, of the Luxembourg Bar, with an address for service at the Chambers of the latter, 47 Avenue de la Liberté, applicants, v
JOINT NUCLEAR RESEARCH CENTRE, Ispra,
and COMMISSION OF THE EUROPEAN COMMUNITIES,
defendants,
APPLICATION for the suspension of the operation of various decisions of the Head of the Applied Mechanics Division of the Joint Nuclear Research I — Language of the case: Italian.
ORDER OF 23. 12. 1982 — CASE 331/12 R
Centre under which the applicants were forbidden to have links in the course of their duties with certain external collaborators, or to take part in a scientific conference organized by the University of Cairo, or to publish a scientific paper at that conference as well as an internal memorandum relieving the applicants of their responsibility for research into the dynamic behaviour of materials,
THE PRESIDENT OF THE SECOND CHAMBER ACTING AS PRESIDENT OF THE COURT pursuant to Article 96 (1), and the second paragraph of Article 85 and the second paragraph of Article 11 of the Rules of Procedure,
makes the following
ORDER
Facts and Issues
1. The applicants have stated that, in 2. There have been, according to the their capacity as Scientific Officers in applicants, a number of conflicts since Grades A 6 and A 4 respectively, they the appointment in 1976 of a new head have been carrying out research since the of division who has not recognized the early 1970's into the dynamic behaviour full value of the applicants' work and has of materials in the Applied Mechanics imposed unacceptable restrictions on Division of the Joint Nuclear Research their activities. The applicants, more par- Centre. They say that their work has ticularly, refer to a number of recent produced results which have placed them measures, namely: among the foremost world authorities in the field of study of reactions of materials in dynamics and the construc- tion of apparatus capable of measuring such reactions. In the course of this work (a) The refusal to allow contacts with they made many high-level scientific collaborators outside the Joint contacts among leading researchers and Nuclear Research Centre, recorded with institutes of applied mechanics in in decisions of 27 September and Europe and throughout the world. 6 October 1982;
ALBERTINI AND MONTAGNANl v JOINT NUCLEAR RESEARCH CENTRE AND COMMISSION
(b) The refusal, by decisions of 7 paper would be to cause them harm October and 5 November 1982, to professionally and to impair their authorize publication of a paper personal credibility as well as that of the prepared by the applicants in collab- Community institutions. They draw oration with two professors of the attention in particular to the danger that University of Bologna and entitled these institutions might be criticized for "Constitutive Equations of Austcnitic an attack against freedom of expression, Stainless Steels in Dynamics. in view of the scientific value of the Experiments and Calibration report in question and the prominence Procedure", and the participation of which had been given to the applicants the applicants in a scientific con- by the organizers of the conference. The ference organized on 27 December damage would be all the greater because 1982 by the University of Cairo this refusal coincides with the refusal of where that paper was to have been various external contacts and the presented; withdrawal of responsibility for the research programme which had been entrusted to them up to that point. This (c) The internal memorandum dated 10 coincidence would certainly lead to November 1982 withdrawing from comment in international scientific circles the applicants the responsibility for which would be unfavourable to the research into the dynamic behaviour good name of the Community. of materials.
7. After the applicants had drawn 3. On 10 December 1982 the applicants attention to the extreme urgency of their submitted complaints to the competent application by reason of the imminence superior authority pursuant to Article 90 of the Cairo Conference oral argument of the Staff Regulations of Officials. on their behalf was heard in pursuance of Article 84 (2) of the Rules of Procedure, on the very day on which 4. On 23 December 1982, in they lodged their application and before accordance with the combined provisions notification thereof to the defendants. of Article 91 (4) and Article 90 (2) of the Staff Regulations, they initiated proceedings for infringement of Articles 17, 21 and 24 of those regulations. 8. At that hearing questions were put to the applicants relating to the nature of the conference organized by the University of Cairo, the source of the 5. On the same day, by a separate invitation which had been sent to them document, they applied pursuant to and the liming of that invitation, the Article 83 (2) and (3) and Article 84 of nature of their participation, that is to the Rules of Procedure for suspension of say whether in a personal or official the operation of the decisions contested capacity, the nature of the paper at issue in the main action. and the connection between that paper and the duties of the applicants at the Joint Nuclear Research Centre. It 6. In support of their application the appeared from the answers given that the applicants state that the effect of the paper had been drawn up within the refusal to authorize both their partici- scope of the applicants' duties whereas pation in the Cairo Conference and the the invitation to the conference was of a personal nature. publication at that conference of their
ORDER OF 23. 12. 1982 _ CASE 338/82 R
9. During the hearing the applicants the paper to the Conference organizer admitted that only the applications and submit it only afterwards to the relating to their participation in the internal revision process. The acceptance Cairo Conference on 27 December 1982 by the organizer does not mean that the and to the publication of their paper at paper satisfies the rigorous criteria that the conference (see under (b) above) the Commission applies. Terms in the were matters of immediate urgency and letter of 30 July from the Cairo that it did not appear necessary to take a University like 'fine contribution' and decision at that suge on the other two 'favourable review' are standard formulas heads of the application for the adoption used in this kind of letter. I have to of interim measures. remind you strongly on the necessity to follow the usual rules."
10. The paper whose publication is the subject of the dispute is a document 13. In a memorandum of 19 October consisting of 8 pages. It bears the 1982 the applicants explained the scope applicants' names, followed by the title of their paper and defended the scientific of engineer and the heading "Com- value of their work, expressing their mission of the European Communities, intention to maintain their request to Joint Research Centre, Ispra", as well as publish the paper and re-affirming their the names of two other engineers who wish to discuss the results at the Cairo are professors at the University of Conference with the authors of the Bologna. theories upon which they had drawn in their report.
11. It appears from the file that on 14. In a manuscript note sent to the 31 August 1981 the applicants had, as second applicant on 5 November 1982, required by Article 17 of the Staff Regu- the Head of Division stated: "Second lations, asked their head of division for Cairo Conference. I have examined the authorization to publish their paper. programme and take the view that it would not be profitable to send anyone to the conference. The programme is greatly lacking in homogeneity and for the most part is of no interest to us (production, design, industrial sessions, 12. On 7 October 1982 the head of etc.). Some distinguished names appear division sent the applicants a in the programme but we can obtain the memorandum in which he expressed the information contained in their papers by view that the major pan of the paper was other means. The materials and reports based on the work, already published, of of the session have little interest for us. I other researchers and that "the only two have invited you to withdraw your paper. pages which could give some substance Naturally my authority does not extend to the paper are very poor". For these to your external co-authors. If they wish reasons he requested the applicants to to present the paper in the name of their withdraw their paper, adding the university they will have to reach following: "It is incorrect to first send agreement with their superiors."
ALBERTINI AND MONTAGNANI . JOINT NUCLEAR RESEARCH CENTRE AND COMMISSION
Decision
1» The urgency of the application, limited to the suspension of the decisions of the head of division of 7 October and 5 November 1982 cannot be disputed, given the date of the conference in which the applicants wish to participate and present their paper.
.t In addition to the circumstances giving rise to urgency, it is incumbent on the applicants, by virtue of Article 83 (2) of the Rules of procedure, to state the factual and legal grounds establishing a prima facte case for the interim measure which they have applied for.
a In this respect the applicants rely upon the damage which would be caused to their scientific credibility by their having to withdraw from the Cairo Conference, whilst their paper already appears on the agenda and a ume appropriate to the importance of their contribution has been allocated to them for the purpose of the delivery of their address. The damage caused to their reputation as scientists would be all the greater since the conference includes many scientists of world-wide repute in their special field.
.8 On this subject it must be noted that the applicants, by allowing their contri- bution to be included in the conference agenda at a ume when they had not yet obtained the authorization required by Article 17 of the Staff Regulations and by allowing it to remain there despite the cnucal comments on their work made by the competent superior authority, have put themselves, by their own anions, in the position which they regard as prejudicial to their scientific credit. They may not, therefore, claim to force the hand oi the superior authority on the basis of a situation which they created vn-a-vu third parties on their own initiative and without any authorization.
is In view of this behaviour which is incompatible with the duues of scientific officers employed in a public research department, the applicants cannot be held to have made out a case in law, for the purposes of Article 83 (2) oí the Rules of Procedure, for the suspension of the contested decisions.
ORDER OF 23. 12. 19« — CASE 3H/Í2 R
On those grounds,
T H E PRESIDENT OF THE SECOND CHAMBER, ACTING AS PRESIDENT OF THE COURT pursuant to Articles 96 (1), 85 (2) and 11 (2) of the Rules of Procedure, hereby orders as follows:
1. The application to suspend the operation of the decisions of the Head of the Applied Mechanics Division of the Joint Nuclear Research Centre of 7 October and 5 November 1982 is dismissed.
2. A decision on the other claims is reserved.
3. Costs are reserved.
So done and ordered at Luxembourg on 23 December 1982.
P. Heim P. Pescatore Registrar President of the Second Chamber, Acting as President