ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

14 July 2010

Case F‑41/10 R

Moises Bermejo Garde

v

European Economic and Social Committee (EESC)

(Civil service — Procedure for interim relief — Application for suspension of operation of a decision — Urgency — None)

Application: brought under Articles 278 TFEU and 157 EA, as well as Article 279 TFEU, applicable to the EAEC Treaty in accordance with Article 106a thereof, in which Mr Bermejo Garde seeks suspension, in particular, of the decision of the President of the EESC of 13 April 2010 reassigning him, with effect from 6 April 2010, as a head of unit in the Directorate for Logistics of the EESC.

Held: The applicant’s application for interim relief is dismissed. Costs are reserved.

Summary

1.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — ‘Fumus boni juris’ — Urgency — Cumulative nature

(Arts 278 TFEU and 279 TFEU; Statute of the Court of Justice, Art. 39 and Annex I, Art. 7(1); Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

2.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Burden of proof

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

3.      Application for interim measures — Suspension of operation of a measure — Conditions for granting — Serious and irreparable damage — Interest of the applicant in obtaining the suspension sought — Negative administrative decision

(Art. 278 TFEU)

4.      Application for interim measures — Jurisdiction of the judge hearing the application for interim relief — Issuing of interim directions

(Art. 279 TFEU; Statute of the Court of Justice, Art. 39)

5.      Application for interim measures — Suspension of operation of a measure — Suspension of operation of a reassignment decision

(Art. 278 TFEU)

1.      According to the provisions of Articles 278 TFEU, 279 TFEU and 157 EA, and of Article 39 of the Statute of the Court of Justice, applicable to the Civil Service Tribunal under Article 7(1) of Annex I to that Statute, the Tribunal may, if it considers that circumstances require it, order suspension of operation of the contested act or other interim measures. Under Article 102(2) of the Rules of Procedure, an application for interim measures must state, in particular, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The conditions of urgency and establishment of a prima facie case are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied. In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances 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 within which the need to order interim measures must be assessed.

(see paras 19-22)

See:

T‑120/01 R De Nicola v EIB [2001] ECR‑SC I‑A‑171 and II‑783, paras 12 and 13

F‑38/06 R Bianchi v ETF [2006] ECR‑SC I‑A‑1‑27 and II‑A‑1‑93, paras 20 and 22

2.      The purpose of interim proceedings is not to secure reparation of damage but to guarantee the full effectiveness of the judgment on the substance. In order that the latter objective may be attained, the measures sought must be urgent in the sense that, in order to avoid serious and irreparable damage to the applicant’s interests, they must be ordered and become effective even before the decision in the main proceedings. Moreover, it is for the party applying for interim measures to adduce proof that it cannot await the outcome of the main action without suffering such damage. In that respect, the serious and irreparable damage alleged can be taken into account by the judge hearing the application for relief only to the extent that it is likely to be caused to the interests of the party seeking the relief.

(see paras 25, 28, 85)

See:

C‑65/99 P(R) Willeme v Commission [1999] ECR I‑1857, para. 62

T‑173/99 R Elkaïm and Mazuel v Commission [1999] ECR‑SC I‑A‑155 and II‑811, para. 25; T‑52/01 R Schaefer v Commission [2001] ECR‑SC I‑A‑115 and II‑543, para. 47; T‑320/02 R Esch-Leonhardt and Others v ECB [2002] ECR‑SC I‑A‑325 and II‑1555, para. 27

3.       An application for suspension of operation cannot, in principle, be envisaged against a negative administrative decision, since the grant of suspension could not have the effect of changing the applicant’s position. However, the suspension of operation of a negative measure might be envisaged where a negative decision refuses to maintain the applicant’s current position, thus bringing about a change in that position. On the other hand, a negative decision which does not bring about any change in the applicant’s position cannot be suspended.

(see paras 38, 40, 42)

See:

76/88 R La Terza v Court of Justice [1988] ECR 1741, para. 18; C‑89/97 P(R) Moccia Irme v Commission [1997] ECR I‑2327, para. 45

4.      When hearing an application for interim measures, the court may resort not only to various forms of intervention to meet the specific requirements of each case, in other words not only to directions, in so far as they are without prejudice to the decision of the court hearing the main proceedings, but also to the simple expedient of reminding a party to comply with existing provisions, since such a reminder may well be an appropriate remedy, complying with the principles which govern the procedure for interim relief and capable of provisionally ensuring appropriate protection of the applicant’s rights.

(see para. 44)

See:

T‑203/95 R Connolly v Commission [1995] ECR II‑2919, paras 25, 43 and 44

5.      In the light of the wide margin of discretion that the institutions enjoy in the organisation of their departments according to the tasks entrusted to them and, at the same time, in the assignment of their staff, a reassignment decision, even if it brings disadvantages for the officials concerned, does not constitute an unusual and unexpected event in their career. That being so, the suspension of operation of such a decision is justified only where there are compelling and exceptional circumstances capable of causing serious and irreparable harm to the official in question.

(see para. 47)

See:

T‑93/96 R Presle v Cedefop [1996] ECR‑SC I‑A‑369 and II‑1093, para. 45