C-270/84

ORDER OF T H E PRESIDENT OF T H E FIRST CHAMBER OF T H E COURT 11 DECEMBER 1984 1

Assunta Licata V Economic and Social Committee (Staff Committee — Cessation of a member's term of office)

Case 270/84 R

Application for interim measures — Suspension of operation of a measure — Conditions for granting (Rules of Procedure, Art. 83 (2))

The adoption of interim measures to effect before the decision of the Court suspend the operation of a measure is on the substance of the case in order to not considered unless the factual and avoid serious and irreparable damage to legal circumstances relied upon to obtain the party seeking them. Finally, they them establish a prima facie case for must be provisional in the sense that they granting them. In addition there must be do not prejudge the decision on the urgency in the sense that it is necessary substance of the case. for the measures to be issued and to take

In Case 270/84 R

T H E PRESIDENT OF T H E F I R S T CHAMBER O F T H E C O U R T ,

acting in pursuance of Articles 9 (4) and 96 of the Rules of P r o c e d u r e ,

makes the following

ORDER

Facts and Issues

By Decision No 1896/75 A of 28 July of Article 7 of the Conditions of Em- 1975 of the Bureau of the Economic and ployment of Other Servants. . . . " Social Committee (hereinafter referred to as "the ESC")) a staff committee was The second paragraph of Article 5 of the set up pursuant to Article 9 of the Staff decision provides that the term of office Regulations of Officials of the European of members of the Staff Committee Communities (hereinafter referred to as expires two years from the date of their "the Staff Regulations") and Article 1 of election, or after such shorter period as Annex II thereto. the Institution may appoint. The third sentence of that paragraph is Article 3 of that decision provides as worded as follows : follows : "The term of office of a member of the Committee shall also end on resignation "The Staff Committee of the Economic or on termination of service." and Social Committee shall be composed of nine members. It shall include at least Mrs Licata, who was at the time a one representative of the various cat- servant employed by the ESC, was egories and services set out in Article 5 elected to the Staff Committee as a of the Staff Regulations, and of the representative of the servants referred to servants referred to in the first paragraph in the first paragraph of Article 7 of the

After being elected, however, Mrs Licata was appointed as an official following an On 6 November 1984 Mrs Licata lodged internal competition. a complaint under Article 90 (2) of the Staff Regulations, in which she sought the annulment both of the aforesaid As the Staff Committee took the view Decision No 173/84 A and of the that that event cast doubt on Mrs implied decision by the administration to Licata's capacity to represent the exclude her from the Staff Committee. category of Other Servants, the Chairman of the ESC, after obtaining the assent of its officers and at the Without awaiting the outcome of her express request of the Staff Committee, complaint, Mrs Licata brought an action adopted Decision No 173/84 A on 7 pursuant to Article 91 (4) of the Staff May 1984, Article 2 of which replaces Regulations, for the annulment both of the third sentence of the second the aforesaid Decision No 173/84 A and paragraph of Article 5 of Decision No of the ESC's decision to organize, in 1896/75 A, mentioned above, with the pursuance thereof, ad hoc elections for following text: the purpose of filling the applicant's seat on the Staff Committee. "The term of office of a member of the Committee shall also end on resignation, termination of service or transfer to The application was lodged at the Court another category, service or conditions Registry on 14 November 1984. of employment where conditions of representativity of the Staff Committee set out in Article 3 are no longer met." By an application lodged at the Court Registry on the same day, Mrs Licata further requested that the operation of In pursuance of that decision, which was the decisions contested in the main initially suspended by the Secretary- proceedings be suspended. General of the ESC and then reinstated, the Staff Committee decided on 25 June 1984 to disregard the vote cast by Mrs In a document lodged at the Court Licata, who had none the less taken part Registry on 30 November 1984, the ESC in the meeting, and it further expressly submitted its written observations on the decided, on 28 June 1984, to regard Mrs application for suspension. Licata's term of office as having ended by virtue of the new Article 5. It therefore convened a general meeting of At the hearing on 10 December 1984 in the staff on 12 October 1984, in the the interlocutory proceedings the parties course of which it was decided to hold presented oral argument. ad hoc elections to replace Mrs Licata.

4 Before considering the merits of the application it should be recalled that, according to established case-law of the Court (see, most recently, the Order of the President of the Court of 19 July 1983, Case 120/83 R, Raznoimport v Commission, [1983] ECR 2573), the adoption of interim measures to suspend the operation of a contested measure is not considered unless the factual and legal circumstances relied upon to obtain them establish a prima facie case for granting them. In addition there must be urgency in the sense that it is necessary for the measures to be adopted and to take effect before the decision of the Court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them. Finally, the measures must be provisional in the sense that they do not prejudge the decision on the substance of the case.

5 As regards the existence of grounds establishing a prima facie case for granting the suspension applied for, Mrs Licata claims that the transfer of an elected member of the Staff Committee to a category, service or scheme of employment other than the one for which he was elected is not liable to

LICATA / ESC

eliminate his knowledge of the specific problems of the original category, service or scheme of employment. Mrs Licata concludes from the foregoing that her continued presence on the Staff Committee is in no way inconsistent with the fourth paragraph of Article 1 of Annex II to the Staff Regulations, according to which "Membership of the Staff Committee . . . shall be such as to ensure the representation of all categories of officials and of all services provided for in Article 5 of the Staff Regulations and also of the servants referred to in the first paragraph of Article 7 of the Conditions of Employment of Other Servants of the Communities." She takes the view that Decision No 173/84 A is therefore illegal.

10 The ESC has contested the validity of that ground of application, contending that the regularization of the composition of the Staff Committee cannot subsequently be delayed by suspension.

ORDER OF 11. 12. 1984 — CASE 270/84 R

1 1 That argument of the ESC cannot be accepted. The very fact that a decision taken on 7 May 1984 has not yet been followed by the election of a new: representative of the category of Other Servants shows that the urgency pleaded by the ESC for the immediate implementation of the disputed decision does not exist.

12 As regards the existence of serious and irreparable damage, Mrs Licata takes the view that preventing her from participating in the meetings of the Staff Committee distorts the representative balance within the Committee. That, according to the applicant, constitutes serious and irreparable damage, especially as the judgment of the Court of 9 March 1977 (de Dapper v Par- liament, Case 54/75, [1977] ECR 471) shows that decisions adopted by an improperly constituted Staff Committee cannot subsequently be challenged.

1 3 In reply, the ESC maintains that damage far more serious and far less susceptible of repair than that which Mrs Licata claims to have suffered would be done to the work of the Staff Committee, inasmuch as the suspension applied for would have the effect of blocking the ad hoc elections and would thereby compromise the Committee's representativity, as required by the Staff Regulations.

1 4 In that regard it should be observed that to dismiss the application for suspension would cause serious harm to the applicant and to the ESC, in the sense that the applicant would be prevented from participating in the meetings of the Staff Committee and the ESC would be obliged to hold ad hoc elections which might raise problems of legality should the Court hold the application in the main proceedings to be well founded.

by way of interim decision,

hereby orders as follows:

1. Pending delivery of judgment in the main proceedings, Decision No 173/84 A of the Chairman of the Economic and Social Committee of 7 May 1984 is suspended in so far as it introduces as a cause of cessation of a term of office as a member of the Staff Committee transier to another category, or service or scheme of employment, The ad hoc elections held in pursuance of that decision are likewise suspended.

2. The costs are reserved.

Luxembourg, 11 December 1984.

J. A. Pompe G. Bosco Deputy Registrar President of the First Chamber