T-108/94

Council of the European Union, represented by Yves Cretien, Legal Adviser, act­ ing as Agent, with an address for service in Luxembourg at the office of Bruno Eynard, Director of the Legal Department of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

APPLICATION for suspension of the procedure following the notice of Artists' Competition 92/S 21-3373/FR, of 30 January 1993, and more particularly of the

* Language of ilic case: French.

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ORDER OF 2. 5. 1994 — CASE T-108/94 R

— the decision of the Selection Committee for Artists' Competition 93/S 21-3373/FR, taken on behalf of the Council of the European Union (hereinaf­ ter 'the Council'), of 14 January 1994, not to admit the applicant to the second stage of that competition;

— the decision of the Selection Committee to delegate to each national working party the initial selection of applications from artists established in its national territory;

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— the decision of the Committee to fix at three the number of artists to be selected by each Member State;

— the decision to draw up the list of artists admitted to the second stage of the competition.

5 In a letter received at the Registry of the Court of First Instance on 12 April 1994, the defendant submitted that the application for leave to intervene should be dis­ missed as inadmissible and the interveners ordered to pay the costs of the proceed­ ings. The applicant made no submissions on this point.

6 Before the application for the adoption of interim measures and the application for leave to intervene are examined in order to determine whether they are well founded, it is appropriate to summarize the background to the dispute, as it appears from the parties' pleadings.

7 By decision of 12 June 1989 the Council set up a committee with 'the task of selecting the works of art to be ... installed in the new Council building' (Arti­ cle 4). For that purpose the Selection Committee was to organize 'on the Council's behalf a competition ... open to all artists from the Member States of the European Community; if the number of entrants is large, the competition could be held in two stages' (Article 5). The Committee has 15 members, consisting of one repre­ sentative from each Member State, one architects' representative, one representa­ tive of the General Secretariat of the Council, and one representative of the Coun­ cil's Staff Committee (Article 2).

8 The competition rules adopted by the Selection Committee were approved by the General Secretariat of the Council on 25 January 1993. Paragraph 2 of the rules states that 'The competition will consist of two stages comprising: -at stage one, an invitation for applications, the purpose of which is an initial selection of a limited number of artists on the basis of these initial applications; — at stage two, a com­ petition among projects, aimed at selecting the artists to execute the works of art for the building from those shortlisted at stage one.' According to paragraph 4 of the rules, 'the Selection Committee has set up national working parties. Each working party shall consist of the full and alternate members representing a Mem­ ber State and of the assessors whom they may co-opt'. Under paragraph 7(c), 'on

10 The application for leave to intervene was made under Article 115 of the Rules of Procedure of the Court of First Instance, and is submitted in accordance with the second paragraph of Article 37 of the Protocol on the Statute of the Court of Jus­ tice, which applies to the procedure before the Court of First Instance by virtue of the first paragraph of Article 46 of that Protocol.

11 Under the second paragraph of Article 37 of the Protocol on the Statute of the Court of Justice, the right to intervene in cases before the Court of First Instance is open to any person establishing an interest in the result of the case.

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Arguments of the parties

12 The applicants for leave to intervene consider that since they took part, in their capacity as members of the Council's Staff Committee, in the appointment of the full and alternate members of the Selection Committee for the competition in question, they have established an interest in the result of any case relating to the correctness of the procedure followed by that Committee in order to perform its task. Moreover, since the present proceedings relate to the selection of works of art to be installed in a Council building, they are directly concerned with the working conditions of the officials of that institution. That direct relationship means that all members of the Staff Committee have an interest in the result of the case, since that Committee is competent in matters of health and the decoration of places of work.

15 On this point, as is clear from the case-law, an interest in the result of a case within the meaning of the second paragraph of Article 37 of the Protocol on the Statute of the Court of Justice must be understood as a direct, existing interest in the success or failure of the submissions which relate specifically to the measure whose annul­ ment or suspension is sought (see the order of the Court of First Instance in Joined Cases T-97/92 and T-l 11/92 Rijnondt and Hocken v Commission [1993] ECR II-587, paragraphs 16 and 21).

16 The interveners have not referred to any special circumstances which could estab­ lish the existence of a personal interest in the admission of the applicant to the sec­ ond stage of the competition, nor have they demonstrated in any way that their position could be affected in a sufficiently specific manner by the outcome of the case before the Court of First Instance. In those circumstances, the interveners have not established an interest in intervening in support of the form of order sought by the applicant in these proceedings for interim measures.

17 The application for leave to intervene must therefore be dismissed.

The application for suspension of the operation of the contested act

18 Pursuant to Articles 185 and 186 of the EC Treaty in conjunction with Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a

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opinion, the Committee's decision that three artists should be selected per Member State also constitutes an infringement of the Council Decision of 12 June 1989, and moreover deprived the competition of its international character. In those circum­ stances the applicant considers that the definitive rejection of her application by the Belgian working party without her folder having been examined by the Com­ mittee must perforce be declared unlawful.

21 With respect to the requirement of urgency, the applicant argues essentially that if the competition procedure were allowed to run its course, it would not be possi­ ble, should the Court of First Instance uphold her main application, to place her in the position in which she would have been had the decision rejecting her applica­ tion not been adopted. Since the Committee has to designate in May 1994 the works of art to be installed in the new Council building, the applicant would be deprived for good of the prospect of having her work purchased and installed in that building, which would bring her recognition and prominence throughout Europe. In those circumstances, not even compensation corresponding to the value of her work would be enough to make good the damage arising from the rejection of her application.

23 The defendant further considers that there is nothing in this case to suggest that there is a risk of serious and irreparable damage. If the outcome of the action were favourable to the applicant, it would in the defendant's opinion be possible to compensate for any damage which might be found to exist. In any event, the fact that the applicant was deprived of the prospect of success in the competition in question constitutes in the defendant's opinion only potential damage — compa­ rable incidentally to that suffered by all the other unsuccessful candidates (1 464 in number) — since she would have had no guarantee of actually being successful if her application had gone through to the second stage. The defendant considers that suspension of the operations now underway in the competition would on the other hand cause the Council insuperable difficulties preventing its building from being decorated, as intended, with works of art at the time of its inauguration.

Assessment by the Court

24 In her application for the adoption of interim measures the applicant seeks essen­ tially suspension of a competition procedure which is in its final stage.

25 It is settled case-law that a court hearing an application for interim measures must assess the urgency of the interim measures to be adopted by examining whether the operation of the disputed acts, before a decision on the substance of the case, is capable of causing the party seeking interim measures irreversible damage which could not be remedied even if the contested decision were annulled or which, despite its provisional nature, would be out of proportion to the defendant's inter­ est in having those acts implemented, even where proceedings have been brought against them (see the order of the President of the Third Chamber of the Court of Justice in Case 176/88 R Harming v Parliament [1988] ECR 3915, paragraph 9).

29 Consequently, the conditions in law for the grant of the interim measures sought are not fulfilled and the application must be dismissed, without its being necessary to examine whether the arguments and pleas in law relied upon by the applicant in support of the main application constitute a prima facie case.

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On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

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