C-141/84

O R D E R O F T H E PRESIDENT OF T H E T H I R D CHAMBER OF T H E C O U R T 3 JULY 1984 '

Henri de Compte v European Parliament

Case 141/84 R

Application for the adoption of interim measures— Suspension of operation — Conditions governing the grant of such a measure (EEC Treaty, Art. 185; Rules of Procedure, Art. 83 (2))

The measures available under Article should be adopted and come into effect 83 (2) of the Rules.of Procedure.may be before judgment is delivered on the granted by the judge responsible for substance of the case; and, finally, granting interim relief, provided there provided they are provisional, that is to are factual and legal grounds establishing say, they do not prejudge the substantive a prima facie case for the adoption of decision and do not decide contested such measures; provided there is . an. points of law or of fact at that early urgent need for the measures, that is to stage or neutralize in advance the effects say it is necessary, in order to avoid of the decision to be given subsequently serious and irreparable damage, that they on the substance of the case.

In Case 141/84 R

Since the President of the Court of Justice was indisposed he assigned this application for the adoption of an interim measure to the President of the Third Chamber.

ORDER

The Disciplinary Board met on several I — Facts occasions between 2 June 1983 and 10 February 1984. On 14 January 1983 the President of the European Parliament informed Mr de On the latter date the Disciplinary Board Compte of certain facts which might lead proposed by three votes to two that Mr to the institution of disciplinary pro­ de Compte should be reprimanded. The ceedings against him. two members who did not support such a measure were in favour of simply On 28 January 1983, pursuant to Article dismissing the charges against the official 87 of the Staff Regulations of Officials, in question. the Director-General for Administration, Personnel and Finance of the European Pursuant to the final paragraph of Parliament invited Mr de Compte žo Article 7 of Annex IX to the Staff Regu­ submit his views on the matters in lations Mr de Compte was given a question. hearing on 8 March 1984 by the President of the European Parliament in On 13 April 1983, pursuant to the his capacity as the appointing authority. second paragraph of Article 87 of the Staff Regulations, the President of the Parliament submitted to the Disciplinary On 16 March 1984 the President of the Board a report concerning the al­ European Parliament decided to remove legations made against Mr de Compte, Mr de Compte from his post without a a Head of Division employed as an reduction or withdrawal of his pension accountant by the Parliament. rights.

On 4 June 1984 Mr de Compte took the following steps : II — S u b m i s s i o n s a n d arguments of t h e p a r t i e s He submitted a complaint to the President of the European Parliament in which he argued that it was no longer appropriate simply to refer to the reasons (1) With regard to the requirement of given for the initial decision to remove urgency and the danger of serious and him from his post since, in the meantime, irreparable damage in the event of the the European Parliament had granted contested decision's being put into him a final discharge in respect of the effect immediately financial year in question, thereby recognizing that his activities as accountant were correct and above (a) The applicant submits the following criticism. arguments :

He brought an action before the Court Urgency is established since the down- for annulment of the aforementioned grading is to take effect on 15 June decision of 24 May 1984, by which he 1984. had been downgraded. The putting into effect of the disciplinary He applied for an interim order sus- measure adopted in respect of the pending the operation of that decision applicant would involve a monthly loss until the Court delivered judgment in the of BFR 120 000 and would cause him main action. extreme financial difficulties.

ORDER OF 3. 7. 1984 — CASE 141/84 R

Secondly, part of the expenses referred The applicant also maintained that the to by the applicant in his financial damage would be irreparable in so far as statement relates to assistance given by if the disciplinary measure was put into him voluntarily to his daughter and son- effect the Grade A 3 post which he had in-law, that is to say to members of his held would become vacant and there was family who are no longer part of his the possibility that it would be filled household. by another official before the Court's judgment was delivered. Finally, the Parliament maintains that if the Court gives judgment in favour of the applicant in the main action the (b) The European Parliament submits effect of that judgment would be to the following arguments : reinstate Mr de Compte in his previous grade with payment of the arrears of salary for the whole of the period in question. The European Parliament takes the view that it would not cause irreparable damage to the official to put the contested disciplinary measure into With regard, to the second argument effect. He would in fact remain in submitted by the applicant in support of employment and he would receive the his contention that the damage would be remuneration attaching to a Grade A 7/6 difficult to repair, the Parliament replies post, which is a reasonable salary. that since the appointing authority is

DE COMPTE v PARLIAMENT

responsible for the proper organization Fifthly, he contends that the same of its departments it is always entitled to principle was infringed once again by assign each member of it staff to any virtue of the fact that the Disciplinary post corresponding to his grade and that Board wrongly refused to suspend its no member of the staff has a right to investigations pending the result of an retain his original post indefinitely. administrative inquiry conducted by the Committee on Budgetary Control.

(ii) The substantive legality of the Secondly, Mr de Compte contends that disciplinary measures the principle of audi alteram partem, which constitutes a general principle of the law relating to disciplinary pro- The applicant alleges breach of the ceedings and which is confirmed by principle of non bis in idem, which Article 6 of Annex IX to the Staff forbids not only the imposition of two Regulations, was infringed since the disciplinary measures in respect of the documents which he presented to the same offence but also the institution of official in question on the occasion of two disciplinary proceedings in respect of the preliminary hearing were never the same factual situation. Mr De passed on to the Disciplinary Board. Compte considers that he had already been the subject of a transfer by way of He maintains, thirdly, that the same disciplinary measure in May 1982. principle was also infringed by virtue of the fact that the Disciplinary Board heard the evidence of three witnesses in The final discharge granted by the his absence. European Parliament on 10 April 1984 deprives the disciplinary measure of its legal basis. Fourthly, he contends that the same principle was infringed by virtue of the fact that the Disciplinary Board refused The six complaints made against Mr de to hear the evidence of witnesses called Compte are based on a mistaken inter- by the defence. pretation of the facts.

ORDER OF 3. 7. 1984 — CASE 141/84 R

The disciplinary measure is manifestly measures to stating that it will respond to disproportionate to the gravity of the the various submissions in the course of offences with which Mr de Compte is the substantive action and that for the charged, even if they can be proved, moment it merely indicates as follows : having regard to the numerous ex- That it disputes the alleged procedural tenuating circumstances in his favour, irregularities raised by the applicant; in particular the administrative, physical and human environment in which he That the final discharge given to the worked, as a result of which he was applicant does not have the scope alleged unable to discharge fully the re- by him. sponsibilities placed upon him.

adopted and come into effect before judgment is delivered on the substance of the case; and, finally, provided the measure is provisional, that is to say, it does not prejudge the substantive decision and it does not decide contested points of law or of fact at that early stage or neutralize in advance the effects of the decision to be given subsequently on the substance of the case.

T h e r e q u i r e m e n t of u r g e n c y a n d t h e e x i s t e n c e of s e r i o u s and irreparable damage

ORDER OF 3. 7. 1984 — CASE 141/84 R

6 Furthermore, the measure sought in this case is clearly urgent. In the first place, the downgrading was to take effect from 15 June 1984; secondly, the immediate substantial reduction in the applicant's salary would force him, as he stated at the hearing without being contradicted, to sell an apartment with as little delay as possible in order to be able to meet his various obligations.

7 Moreover, as the European Parliament accepted at the hearing, the fact that Mr de Compte continues to receive the salary attaching to Grade A 3 for several more months until the Court gives judgment does not detract from the organization of the public service or involve any risk of permanent loss since the Parliament is certain to be able to recover any sums overpaid if the Court dismisses the application for annulment.

s In those circumstances the requirement of urgency and the existence of serious damage which would be difficult to repair, in the event of the contested decision's being applied immediately, must be regarded as satisfied.

T h e existence of grounds establishing a prima facie case for suspending the operation of the contested decision

9 It must be noted first that the Parliament refrained from replying, in the proceedings on the application for interim relief, to the applicant's submissions in support of his application for annulment. It is therefore impossible for the judge hearing the application for interim relief to come to a clear conclusion, on the basis of the evidence available at this stage, with regard to the relevance, accuracy and nature of the contested facts.

(3) Finally, the appointing authority exhibited great uncertainty in relation to the severity of the disciplinary measure to be imposed on the applicant. Having decided on 16 March 1984 that the applicant should be removed from his post, it changed that measure on 24 May 1984 to downgrading to Grade A 7. That uncertainty is disquieting in so far as the appointing authority has not explained the reasons for its change of view. In fact the disciplinary measure imposed on 24 May, which is the subject of this application for interim relief, simply refers to the reasons given in support of the initial decision to remove the applicant from his post, reasons which were formulated before the European Parliament granted him a final discharge and before the publication of the report drawn up by the Committee on Budgetary Control.

i2 The aforementioned facts clearly cannot in any way prejudge the issue of the legality or otherwise of the contested disciplinary measure. Nevertheless, in the absence of any response on the part of the Parliament, in the course of

ORDER OF 3. 7. 1984 — CASE 141/84 R

the proceedings on the application for interim relief, to the submissions made by the applicant in support of the claim for annulment of the decision, the factors mentioned above lead to the conclusion that the applicant has established at least a prima facie case for the interim measure applied for, within the meaning of Article 83 (2) of the Rules of Procedure.

13 In those circumstances the application to suspend the operation of the measure in question must be granted.

1. The operation of the decision of 24 May 1984 imposing on Mr de Compte the disciplinary measure of downgrading to Grade A 7, step 6, shall be suspended until the Court gives judgment in the main action.

2. The costs are reserved.

Luxembourg, 3 July 1984

J. A. Pompe Y. Galmot

Deputy Registrar President of the Third Chamber