C-292/84

HARTMUT SCHARF, an official of the Commission of the European Communities in Directorate General IV, D 2, residing at 65 Rue du Vallon, 1320 Genval, assisted and represented by Jean-Noël Louis, of the Brussels Bar, 51 Rue Langeveld, Boîte Postale 16, 1180 Brussels, with an address for service in Luxembourg at the Chambers of Nicolas Decker, Avocat at the Cour d'Appel, 16 Avenue Marie-Thérèse, Boîte Postale 335, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, whose seat is at 200 B Rue de la Loi, 1049 Brussels, represented by Henri Etienne, Principal Legal Adviser, 1 — Language of the Case: French.

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acting as Agent, with an address for service in L u x e m b o u r g at the office of Manfred Beschel, a m e m b e r of the Commission's Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, defendant,

Application for the suspension, as an interim measure, of the operation (a) of the decision of 30 N o v e m b e r 1984 by which the Commission of the E u r o p e a n Communities appointed, with effect from 1 D e c e m b e r 1984, R. Teerlink, an official of the Language Service (LA), to the post in C a t e g o r y A declared vacant by V a c a n c y N o t i c e N o C O M / 1 2 0 7 / 8 4 and (b) of the Commission's decision of 11 July 1984 according t o which applications from officials of the L a n g u a g e Service m a y be considered for the filling of administrative posts in C a t e g o r y A at the initial stage w h e n vacancy notices are issued.

T h e President of the C o u r t of Justice, w h o was prevented from attending, assigned the present application for the adoption of interim measures to the President of the T h i r d C h a m b e r .

plicant brought an action under Article the experience required for their per- 91 (4) of the Staff Regulations seeking formance, which has been acknowledged annulment of the aforementioned and defended by the Commission itself decisions and, on the same date, brought in the context of applications brought the present interlocutory proceedings before the Court, and confirmed by the for suspension of the operation of the latter's judgments. decision of 30 November 1984 ap- pointing R. Teerlink and suspension of the aforementioned decision of the 9. Finally, he emphasizes that when the Commission of 11 July 1984. Community legislature wished to depart from that rule, it did so expressly, as in the case of "officials in the scientific and 4. By decision of the President of the technical services" whom the second Third Chamber, dated 6 December 1984, paragraph of Article 98 of the Staff taken pursuant to the second sentence of Regulations exempts from the re- Article 91 (4) of the Staff Regulations, quirement to take part in a competition the main proceedings were suspended in order to be promoted from one until an express or implied decision had category to another. been taken on the complaint. 9. During the oral procedure, the 5. The Commission did not submit any Commission contended that the decision written observations. of 11 July 1984 was not contrary to Article 45 (2) of the Staff Regulations, but constituted a change of ad- II — Oral procedure ministrative practice based on the abandonment of the interpretation of 6. The parties were duly summoned that provision which it had applied until and presented oral argument at the that time. sitting on 11 December 1984. The condition relating to urgency and the existence of serious and irreparable damage III — Submissions and argu- m e n t s of the p a r t i e s 11. With regard to the decision appointing Mr Teerlink, the applicant The existence of grounds establishing a observes that the consequence of the prima facie case for the measure applied former's transfer was that his post in the for Language Service was left vacant, with the result that, in order to fill it, a 7. The applicant considers that the further appointment procedure will be contested decision was adopted in breach needed. This will entail in its turn of Article 45 (2) of the Staff Regulations, another vacancy followed by another according to which an official may be similar procedure, and so on. If the transferred from one service to another contested decision is maintained in force, or promoted from one category to the likely consequence is that there will another only on the basis of a be a "chain" of appointments of officials competition. of the Language Service to posts which become vacant. It is therefore urgent that 8. He points out that that rule is the suspension of operation applied foi- justified with regard to the Language be granted in order to prevent such Service which is distinguished by the successive appointments from being specific character of its duties and of made.

12. With regard to the decision of 11 their candidatures accepted and would July 1984, the applicant considers that thus limit, unlawfully and irreversibly, there is likely to be a very large number the applicant's chances. That damage is of applications brought by officials in all the more serious because the choice Category A passed over in favour of of candidates for promotion or transfer officials of the Language Service. He is at the discretion of the appointing emphasizes that because of the danger of authority, so that a decision rejecting being out of time, those whose candi- a candidature at that stage of the datures have been rejected will be procedure would not be subject to obliged to submit a complaint under judicial review. Article 90 (2) of the Staff Regulations, and, if that complaint is rejected, to bring proceedings before the Court. According to the applicant, it is the prospect of such a situation, which he 15. The applicant then claims that ir- regards as contrary to the principle of reparable damage would result from the the efficient use of legal procedure, difficulty of asking the Court to annul a which constitutes urgency justifying the whole series of appointments, with the suspension sought. risk of creating a void in the functioning of the Commission's departments, and with the risk, according to whether or not proceedings are brought, of having some of those appointments annulled 13. The applicant then claims that and others becoming definitive and no grave and irreparable damage would longer open to challenge. That would be result from the decision appointing Mr contrary to the rule of equality in the Teerling being put into operation. The matter of career advancement and to.the applicant emphasizes that if that decision principle of legal certainty. were annulled, the administration, which would have meanwhile filled the post in the Language Service left vacant as a result of his departure, would be obliged, in order to reinstate him in his former service, to ask the Council to create a 16. Finally, the applicant claims that new budgetary post or to "parachute" suspension of the operation of the him into a vacant post to the detriment decision of 11 July 1984 cannot impair of officials of the Language Service the functioning of the Commission's eligible for promotion. According tó the departments, since it would be no more applicant, that difficulty might constrain than a short-term extension of a practice the Court not to annul the contested which has been followed for 20 years. measure and this would cause him serious and irreparable damage.

4 It must be seen whether those conditions are met in this case.

5 With regard, first of all, to the application for suspension of the operation of the general decision of 11 July 1984, it should be noted that the applicant, while claiming that the decision is unlawful having regard to Article 45 (2) of the Staff Regulations, and while asking the Court to make a finding to that effect, is not seeking to have the decision annulled; consequently, the application, in so far as it seeks to obtain suspension of the operation of that decision, is not admissible under Article 83 (1) of the Rules of Procedure.

6 On the other hand, the application must be considered in so far as it refers to suspension of the operation of the decision of 30 November 1984 appointing

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Mr R. Teerlink, an official of the Language Service, to a post in Category A declared vacant by Vacancy Notice N o COM/1207/84, with effect from 1 December 1984.

7 With regard to the requirement of fumus boni juris, the applicant claims that the above appointment is unlawful because it was made in application of the general decision of 11 July 1984 adopted by the Commission in breach of the provisions 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".

SCHARF / COMMISSION

service, to the detriment of officials of the Language Service eligible for promotion.

12 That submission cannot be accepted. The subsequent difficulties to which the applicant refers do not prejudice any particular interest of his own. As the Court has already said, an applicant may not, in support of his application for suspension of the operation of any measure, rely on the difficulties which the immediate putting into operation of the act being contested in the main proceedings would create for third parties, since the right to seek such a suspension is granted to applicants for the purpose of protecting their own interests.

13 The foregoing a p p l i e s equally to the applicant's submission based on the difficulties which might be caused for the proper functioning of the Commission's departments by the dismissal of the application for suspension of the operation of the measure in question.

1 4 In that connection it should be observed that the continuing implementation of the contested decision is a matter for which the Commission bears sole responsibility and it is for the Commission, and it alone, to decide whether or not to carry on with the procedures consecutive to the vacancy caused by the appointment of Mr Teerlink, having regard to the difficulties which would result from the possible annulment of the contested measure, whose legal basis is the general decision of 11 July 1984, as to the legality of which there are grave doubts.

15 For the reasons indicated above, the application to suspend the operation of the decisions at issue cannot be granted.

by way of interim decision,

hereby orders as follows :

1. The application is dismissed;

2. Costs are reserved.

Luxembourg, 13 December 1984.

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