C-248/97

the other party to the proceedings being:

Office for Harmonization in the Internal Market (trade marks and designs), represented by Oreste Montako, Director of its Legal Department, and João Paulo Miranda de Sousa, of the same department, acting as Agents, with an address for

* Language of the case; French.

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ORDER OF 10.9. 1997— CASE C-248/97 P(R)

service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Legal Service of the Commission of the European Communities, Wagner Centre, Kirch- berg,

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CHAVES FONSECA FERRÃO v OHIM

Facts and procedure

3 The facts which gave rise to the dispute are set out in the order under appeal as follows:

' 1 . The Office ... was established by Council Regulation (EC) N o 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). The com- position and organization of the Office are more specifically governed by Title XII (Articles 111 to 139) of that regulation.

2. The Office has several Boards of Appeal which are responsible for deciding on appeals from certain decisions taken by the Office. Each Board of Appeal consists of one chairman and two members. Three Boards of Appeal were set up initially.

5. By request dated 6 March 1997, the applicant, a member of the first Board of Appeal of the Office since 1 February 1996, asked the Commission of the Euro- pean Communities to examine the legality of the contested decision, pursuant to Article 118 of Regulation N o 40/94. By decision of 18 April 1997, communicated to the applicant by letter SG(97)D/3132 of 23 April 1997, the Commission rejected the request as inadmissible.

6. By memorandum of 22 April 1997 the applicant lodged a complaint with the President of the Office, as appointing authority, under Article 90(2) of the Staff Regulations of Officials of the European Communities ("the Staff Regulations"), seeking the revocation of the contested decision, in particular Article 2 thereof.'

4 O n the basis of Article 179 of the EC Treaty and Article 91(4) of the Staff Regula- tions, the applicant, after lodging his complaint, immediately brought before the Court of First Instance, by application lodged with the Registry on 21 May 1997, an action for the annulment of the contested decision to which was attached an application for interim measures seeking, pursuant to Article 185 of the EC Treaty, suspension of operation of the aforementioned decision.

The order under appeal

5 In the order under appeal, the President of the Court of First Instance dismissed the application for interim measures after examining the applicant's arguments as to the urgent need to order the suspension sought.

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22. The applicant has adduced no evidence to prove that the effect of the contested decision, and in particular Article 2 thereof, will, if its operation is not suspended for the duration of the main proceedings before the Court, undermine the inde- pendence which must be inherent in the decision-making duties with which the members of the Boards of Appeal are entrusted. O n the contrary, he merely affirms that the contested decision is "such as to interfere with the independence" of the members of the Boards of Appeal, that "the independent status ... would be affected", that he "would suffer serious harm should he be obliged to complete his term of office fettered by a hierarchical subordination incompatible with the duties with which the Boards of Appeal are entrusted" and, finally, that "the very func- tioning and credibility of the system of independent internal review of the deci- sions of the Office ... would be inevitably affected by the implementation ... of the contested decision". H e puts forward no specific evidence to support his allega- tions.

23. Consequently, the harm which the applicant, as member of a Board of Appeal, contemplates in his application for interim relief appears to be of a purely potential nature.

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ORDER OF 10.9.1997— CASE C-248/97 P(R)

24. The risk that the applicant's independence might in fact be impaired could materialize as actual damage only if acts adopted pursuant to the contested decision interfered with the independence he enjoys during his term of office. However, until now, there has been no act of the Office adopted pursuant to the contested decision which actually impairs the independence of the applicant, nor has he adduced any evidence which might imply the existence of such a risk.

9 The appellant sets out, at the outset, a series of factual arguments concerning his relations with the Office before and after bringing his action before the Court of First Instance, although he explicitly admits that they are of no relevance for the purposes of the appeal.

10 The appellant goes on to refute the arguments put forward by the Office in the context of the proceedings before the Court of First Instance, concerning the nature and function of the Boards of Appeal within the structure of the Office. H e sets out the situation prevailing in the European Patents Office in order to show that it is possible to reconcile the safeguarding of the independence of the members of the Boards of Appeal with the requirements of good administrative manage- ment.

1 1 As regards more specifically the application for interim measures brought before the Court of First Instance, the appellant states that the interest on which he is relying goes far beyond the sphere of his private interest and is coterminous with the interests of the legal system. Essentially, what is sought is to ensure legal pro- tection of the persons affected by the decisions of the Office, in a manner appro- priate to trademark law, by safeguarding the requisite independent status of the members of the Boards of Appeal.

1 2 As regards his claim that the statement of reasons in the order under appeal is defective, the appellant points out first of all that only a very small proportion of the facts which he had submitted is mentioned in the grounds of the order and even then inaccurately, so that it is not possible correctly to assess either 'the col- legiate nature of the Boards and the independent status of their members' or 'the far-reaching nature and the scope of the appellate duties with which the Boards of Appeal of the Office are entrusted' (page 19 of the appeal).

Findings

i6 As regards the objections raised by the Office to the admissibility of the appeal, it is sufficient to note that the plea in law alleging that the statement of reasons in the order under appeal is defective cannot be reduced to a challenge to the findings of fact made by the President of the Court of First Instance. The appeal is therefore admissible.

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CHAVES FONSECA FERRÃO v OHIM

i7 As regards the substance of the appeal, it should be observed first of all that, in the context of the overall examination of an application for suspension of operation of an act or for other interim measures, the judge hearing the application enjoys a broad discretion and is free to determine, having regard to the particular circum- stances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre-established scheme of analysis by reference to which the need to order interim measures must be assessed (orders in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR 1-2165, paragraph 23, and in Case C-180/96R United Kingdom v Commission [1996] ECR 1-3903, paragraph 45).

is In the present case, the application for interim measures was dismissed because there was no urgency for the measures sought. In the context of this appeal, therefore, considerations which relate to the existence of a prima facie case but do not call into question the lack of urgency of the measures sought cannot form grounds for setting aside, even partially, the order under appeal (order in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR 1-4971, paragraph 31).

23 Contrary to the appellant's claim, it thus appears from the order under appeal that the existence of serious and irreparable harm was considered taking into account, in so far as necessary, the nature of the independence enjoyed by the members of the Boards of Appeal of the Office.

24 Finally, the appellant is also wrong in claiming that it follows from the order under appeal that only specific acts which are adopted pursuant to the contested decision and which interfere with his independence could constitute serious and irreparable harm.

25 In paragraph 24 of the order under appeal, the President of the Court of First Instance in particular pointed out that the appellant had not adduced any evidence which might imply the existence of a 'risk' that his independence might in fact be impaired. It follows that the application for suspension was not dismissed simply because the serious and irreparable harm was based on the conjectured conduct on the part of the Office, but because it was not substantiated by evidence from which such conduct could be predicted with a sufficient degree of probability.

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CHAVES FONSECA FERRÃO v OHIM

26 It follows from the foregoing that the appellant has not proved that the statement of reasons in the order under appeal was defective.

1. The appeal is dismissed.

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ORDER OF 10.9. 1997— CASE C-248/97 P(R)

2. The parties shall each bear their own costs.

Luxembourg, 10 September 1997.

R. Grass G. C. Rodriguez Iglesias