ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

16 November 2011

Case F‑61/11 R

Daniele Possanzini

v

European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex)

(Civil service – Application for interim measures – Application for suspension of operation – Inadmissibility of the main action – Balancing of interests)

Application:      brought under Articles 278 TFEU and 157 EA and Article 279 TFEU, applicable to the EAEC Treaty by virtue of Article 106a thereof, in which Mr Possanzini seeks, in essence, suspension of the decisions by which Frontex refused to renew his contract as a member of the temporary staff.

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

Summary

1.      Application for interim measures – Conditions for admissibility – Admissibility of main application – Irrelevance – Limits

(Art. 278 TFEU; 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 – ‘Prima facie case’ – Urgency – Cumulative nature – Balancing of all the interests involved – Manner and order of examination – Discretion of the judge dealing with the application for interim relief – Provisional nature of the measure

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

1.      In principle, the question of the admissibility of the main action is not to be examined in proceedings for interim relief but is to be reserved for the examination of the main action, unless it is apparent at first sight that the main action is manifestly inadmissible. To determine admissibility at the interlocutory stage in cases where the admissibility of the main action cannot prima facie be ruled out would be tantamount to prejudging the Tribunal’s decision on the main action.

Furthermore, even if has not been contended by way of defence that the main action is manifestly inadmissible, the judge hearing applications for interim measures is not prevented from ruling on that point since inadmissibility in proceedings seeking review by the Court of an act constitutes a ground involving a question of public policy which may, and even must, be raised of their own motion by the Courts of the European Union.

(see paras 17, 18)

See:

4 February 1999, T‑196/98 R Peña Abizanda and Others v Commission, para. 10, and the case-law cited therein

14 December 2006, F‑120/06 R Dálnoky v Commission, para. 41

2.      The conditions relating to urgency and the prima facie merits of the application (fumus boni juris) are cumulative, which means that an application for interim measures must be dismissed where one of those conditions is not satisfied. Where appropriate, the judge hearing an application for interim relief must also balance the interests involved.

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, in the light of the specific circumstances of the case, the manner in which it must be ascertained whether those various conditions are satisfied, and the order in which this examination is to be carried out, there being no rule of law imposing a pre-established scheme of analysis within which the need to prescribe interim measures must be assessed.

Where, on an application for interim measures, the judge hearing the application before whom it is claimed that the applicant risks serious and irreparable harm balances the various interests involved, he must determine, inter alia, whether annulment of the contested measure by the ruling in the main action would make it possible for the situation which would have been brought about by the immediate operation of the measure to be reversed and, conversely, whether suspension of operation of the measure would prevent it from being fully effective in the event of the main action being dismissed.

As regards the consequences of granting suspension of operation of the refusal to renew a staff member’s contract, the mere suspension of that refusal would not change the staff member’s position since it could not, of itself, in any way entitle him to have his contract renewed, nor, by the same token, could it allow his situation to be reviewed. Such a suspension would accordingly be devoid of effect and, in consequence, the person concerned has no interest in requesting it.

(see paras 41, 42, 50, 51)

See:

31 July 1989, 206/89 R S. v Commission, paras 14 and 15

10 September 1999, T‑173/99 R Elkaïm and Mazuel v Commission, para. 18; 9 August 2001, T‑120/01 R De Nicola v EIB, para. 12; 30 April 2008, T‑65/08 R Spain v Commission, para. 82, and the case-law cited therein

31 May 2006, F‑38/06 R Bianchi v ETF, para. 20