T-159/97

CHAVES FONSECA FERRÃO v OHIM

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE 19 June 1997 *

In Case T-159/97 R,

Luis Manuel Chaves Fonseca Ferrão, a member of the First Board of Appeal of the Office for Harmonization in the Internal Market (trade marks and designs), residing in Campello, Alicante (Spain), represented by Roland Assa, of the Luxem­ bourg Bar, with an address for service in Luxembourg at the latter's Chambers, 1 Rue Jean-Pierre Brasseur,

applicant,

v

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts and procedure

1 The Office for Harmonization in the Internal Market (trade marks and designs) ('the Office') was established by Council Regulation (EC) No 40/94 of 20 Decem­ ber 1993 on the Community trade mark (OJ 1994 L 11, p . 1). The composition and organisation 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. Provision was made for the setting up of three Boards of Appeal in the initial period.

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 No 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 Presi­ dent of the Office, as appointing authority, under Article 90(2) of the Staff Regula­ tions of Officials of the European Communities ('the Staff Regulations'), seeking the revocation of the contested decision, in particular Article 2 thereof.

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ORDER OF 19. 6. 1997 — CASE T-159/97 R

7 On 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 together with an application for interim relief seeking, pursuant to Article 185 of the EC Treaty, suspension of the operation of the aforementioned decision.

8 The Office submitted written observations on the application for interim relief by document lodged with the Court Registry on 9 June 1997.

measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Such measures must be provisional in the sense that they do not prejudge the decision on the substance of the case (see the order of the President of the Court of First Instance in Case T-191/96 R CAS Succhi di Frutta v Commission [1997] ECR II-211, paragraph 13).

12 The present application is for an order of the Court suspending operation of the contested decision. In order to give a decision on such an application, the appli­ cant's arguments as to the risk of harm in the event of delay must first be consid­ ered.

The risk of harm if interim measures are not granted

Arguments of the parties

13 The applicant considers that Article 2 of the contested decision creates a twofold hierarchical subordination with respect to the members of the Boards of Appeal of the Office; they are hierarchically subordinate to the chairmen of the Boards of Appeal, who are themselves subordinate to the Vice-President for Legal Affairs of the Office.

14 According to the applicant, that twofold hierarchical subordination is such as to interfere with the independence inherent in the duties incumbent on the members of the Boards of Appeal, 'by virtue of the wide discretion which a superior is called upon to exercise when taking all kinds of administrative decisions within a hierarchical structure'. That independence, expressly conferred on the members of the Boards of Appeal by Article 131 of Regulation No 40/94 should, rather, be shielded from 'any outside interference' throughout the duration — five years — of each member's term of office without interruption.

17 Moreover, the defendant points out that any alleged damage to the applicant's independence could derive only from specific decisions taken by the Office on the basis of the contested act, such as a systematic refusal by his superiors to grant him permission to participate in seminars or to take leave in order to exert psychologi­ cal pressure on him with the aim of having certain cases decided in a certain man­ ner. In such an event, the applicant could bring an action before the Community judicature in order to defend his independence against the prejudice caused by any such misuse of power.

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CHAVES FONSECA FERRÃO v OHIM

18 The defendant considers, furthermore, that the non-material damage alleged by the applicant could be fully compensated if the contested decision were annulled. On the other hand, if operation of that decision were to be suspended, it could give rise to serious repercussions on the proper working of the Boards of Appeal, whose members would be faced with 'anarchy with regard to taking leave, partici­ pating in missions or conferences/seminars or being physically present ... at the Office', and could also lead to unjustified delays in dealing with contested cases.

Findings of the President

19 According to well-established case-law, the urgency of the adoption of interim measures must be considered by examining whether the implementation of the contested measures, prior to the adoption of the decision of the Court on the main issue, is such as to give rise, for the party requesting the measures, to serious and irreversible harm which could not be made good if the contested decision were annulled or which, despite its interim nature, would be disproportionate to the defendant's interest in having the measures implemented, even when they are the subject of legal proceedings. It is for the applicant to prove that those conditions are satisfied (see the order in CAS Succhi di Frutta v Commission, cited above, paragraph 31).

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. On 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'. He 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.

24 The risk that the applicant's independence might in fact be impaired could mate­ rialize 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.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application for interim measures is dismissed.

2. Costs are reserved.

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