C-269/84

ORDER OF T H E PRESIDENT OF T H E THIRD CHAMBER OF T H E COURT 13 D E C E M B E R 1984 1

Corrado Fabbro and Others v Commission ot the European Communities

Case 269/84 R

Application for the adoption of interim measures - Suspension of operation - conditions governing the grant of interim measures (Rules of Procedure, Art. 83 (2))

The operation of a measure may be damage to the applicant's interests, for suspended, and a decision prescribing them to be adopted and produce their interim measures may be granted, by the effects before the decision on the judge ruling on the application for application for annulment; and, finally, if interim relief if it is shown that there are they are provisional, that is, if they do factual and legal grounds establishing a not already prejudge contested points of prima facie case for them (fumus boni law or of fact, or neutralize in advance juris); if there is an urgent need for the consequences of the decision to be them, in the sense that it is necessary, in given later in the main proceedings. order to avoid serious and irreparable

In Case 2 6 9 / 8 4 R

v

COMMISSION OF THE EUROPEAN COMMUNITIES, whose seat is at 200 B Rue de la Loi, 1049 Brussels, represented by Henri Étienne, a Principal Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Manfred Beschel, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for the suspension of the operation of the decision of 11 July 1984, whereby the Commission provided that applications from officials in the Language Service, like those from officials in the Scientific or Technical Service, could be considered for the filling of administrative posts at the initial stage when vacancy notices are issued.

The President of the Court of Justice, who was prevented from attending, assigned the application for interim measures to the President of the Third Chamber.

ORDER

Facts and Issues

measure suspending its operation until contravention of Article 45 (2) of the the Court had given judgment on the Staff Regulations, which provides that an application for annulment. official may be transferred from one service to another or promoted from one 3. By a decision of the President of the category to another only on the basis of Third Chamber dated 16 November a competition. 1984 adopted pursuant to the second sentence of Article 91 (4) of the Staff Regulations, the proceedings in the 7. They state that that rule is justified principal action were suspended pending with respect to the Language Service, an express or implied decision on the which is characterized by functions and complaint lodged with the Commission experience whose specific nature has by the applicants. been acknowledged and defended by the Commission itself in actions before the 4. By a memorandum of 29 November C o u r t and has been confirmed by the 1984, the Commission of the European Court's decisions. Communities submitted its observations on the application for interim measures. 8. Lastly, they emphasize that when- ever the Community legislature has II — S u b m i s s i o n s and arguments decided to depart from that rule it has of the p a r t i e s done so explicitly, as in the case of officials in the Scientific and Technical Admissibility Services, who are exempted by the second paragraph of Article 98 of the Staff Regulations from participating in a 5. The Commission observes that the competition in order to transfer from application for the suspension of the one category to another. operation of the decision is ancillary to the action for annulment, and that the application is therefore inadmissible if the action for annulment is inadmissible. 9. The Commission maintains that it is In that regard, the Commission contends' wrong to dismiss out of hand the in- that the action is inadmissible as far as terpretation of Article 45 (2) of the Staff Mr Christian Herbin is concerned, on Regulations, which it adopted in its the ground that his complaint was decision of 11 July 1984, according to lodged after the expiry of the period of which officials to whom the general three months prescribed in Article 90 (2) conditions of employment apply are not of the Staff Regulations, which expired attached to any specific service, as is on 19 October 1984, and that it is permitted by the sixth subparagraph of inadmissible because the contested Article 5 (1) of the Staff Regulations, if measure constitutes a general decision that interpretation is viewed within the which cannot adversely affect the general context of a staff policy which is applicants. intended to facilitate greater mobility and the best utilization of existing staff.

The requirement of urgency and the 13. They claim that the damage would existence of serious and irreparable damage be irreparable owing to the difficulty of resulting from the immediate application of applying to the Court for annulment of the contested decision all the appointments of officials from the Language Service, which would create a vacuum detrimental to the functioning of the Commission and might lead to 11. The applicants claim, in the first a situation in which, depending on place, that the measure at issue, which is whether or not an action was brought, of a general character, has already been some of those appointments would be implemented by the Commission — annulled and others would be made numerous transfers have already taken definitive and unchallengeable, in dis- place and others are envisaged. They regard of the rules of equality of career take the view that a great many actions development and of legal certainty. are likely to be brought by officials in Category A who have been ousted for the benefit of officials from the 14. Lastly, the applicants maintain that Language Service. They emphasize that, the suspension of the operation of the in order to prevent their actions from contested decision could not impair the being time-barred, they and any other proper functioning of the Commission's ousted candidates would be obliged, if departments, since it would be no more their applications were rejected, to than a short-term extension of a practice submit a complaint under Article 90 (2) which has been followed for twenty of the Staff Regulations, and, if the years. complaint were dismissed, to bring an action before the Court. It is the prospect of such a situation, which they regard as contrary to the principle of 15. The Commission observes that keeping legal proceedings to a minimum, urgency presupposes imminent damage, which, according to the applicants, gives which is not established in the case of the rise to the urgency justifying the applicants, whose rights would be safe- suspension applied for. guarded if the decision were annulled or withdrawn and the procedure for filling the vacancies were reopened on a basis consistent with the applicants' claims. 12. They go on to claim that, unless the operation of the contested measure is suspended, they will suffer serious 16. The Commission adds that the con- damage because the acceptance of sequences and the problems resulting applications from officials in the from any annulment of appointments of Language Service reduces their own officials from the Language Service chances of promotion, especially as the would affect the latter alone and that the choice of candidates for promotion or Court has held that the right to request transfer falls within the discretion of the that the operation of a contested

3 In numerous previous cases the Court has held that measures of that kind may be granted by the judge ruling on the application for interim relief if it is shown that there are factual and legal grounds establishing a prima facie case for them (Jumus boni juris); if there is an urgent need for them, in the sense that it is necessary, in order to avoid serious and irreparable damage, for them to be adopted and produce their effects before the decision on the application for annulment; and, finally, if they are provisional, that is, if they do not prejudge the decision on the substance of the case and if they do not already decide contested points of law or of fact or neutralize in advance the consequences of the decision to be given later in the main proceedings.

4 It is therefore necessary to ascertain, without even considering the questions regarding admissibility, whether those conditions are fulfilled in this case.

ORDER OF 13. 12. 1984 — CASE 269/84 R

5 As regards the requirement of fumus boni juris, the applicants maintain that the decision of 11 July 1984 was adopted by the Commission in contravention of Article 45 (2) of the Staff Regulations, which provides that "An official may be transferred from one service to another or promoted from one category to another only on the basis of a competition", thereby preventing transfer or promotion by any other procedure and precluding a measure such as the one at issue.

6 It must be stated in that connection that the applicants' complaint is prima facie a serious one, casting grave doubt on the legality of the contested decision.

12 Lastly the applicants refer to the damage which they might suffer as a result of the implementation of the decision of 11 July 1984, in that their own chances of subsequent promotion and mobility within Category A might be lessened, owing to the acceptance of applications from officials in the Language Service whenever posts in that categoiy were to be filled.

1 3 It should be noted that such damage does not occur as an immediate and actual consequence of the contested measure and cannot become apparent until further measures are adopted in implementation of that measure. In any event, the applicants' rights would be adequately safeguarded if the Court's judgment in the main proceedings annulled the contested decision.

1 4 For the reasons stated above, the application for suspension of the operation of the measure in question cannot be granted.

Costs

15 It is appropriate, at this stage of the proceedings, to reserve the costs.

On those grounds,

2. The costs are reserved.

Luxembourg, 13 December 1984.

J. A. Pompe C. Kakouris Deputy Registrar President of the Third Chamber