ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

16 November 2011

Case F‑67/11 R

Luigi Marcuccio

v

European Commission

(Civil service – Application for interim measures – Application for suspension of operation of a measure – Urgency – None – 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 Marcuccio seeks, in essence, suspension of operation of the rejection of his application of 28 February 2011 seeking, inter alia, the adoption of measures to comply with paragraph 2 of the operative part of the judgment of 9 June 2010 in Case F‑56/09 Marcuccio v Commission.

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

Summary

1.      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

(Arts 278 TFEU and 279 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 – Urgency – Serious and irreparable damage – Burden of proof – Financial loss

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

1.      Article 102(2) of the Rules of Procedure of the Civil Service Tribunal provides that applications for the adoption of interim 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.

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 order 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 decision 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.

Where the mere suspension of the contested decision would not change the applicant’s position since it could not, of itself, in any way entitle him to have the photographs of the documents destroyed, as he requests, such a suspension would be devoid of effect and, in consequence, the applicant has no interest in requesting it. The court hearing the application for interim relief admittedly also has the power to order interim measures other than the suspension of operation of measures provided for in Article 279 TFEU, but no such measure would amount to a reversal of the situation making the main action redundant.

(see paras 15-17, 26, 27)

See:

13 January 1978, 4/78 R Salerno v Commission, para. 2; 31 July 1989, 206/89 R S. v Commission, paras 14 and 15

30 April 2008, T‑65/08 R Spain v Commission, para. 82, and the case-law cited therein

3 July 2008, F-52/08 R Plasa v Commission, paras 21 and 22, and the case‑law cited therein; 15 February 2011, F-104/10 R de Pretis Cagnodo and Trampuz de Pretis Cagnodo v Commission, para. 16

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. It is for the party applying for the grant of interim measures to adduce proof that it cannot await the outcome of the main action without suffering serious and irreparable damage of that kind.

With regard to financial loss resulting from the refusal to pay the compensation and penalty payments applied for, in order to prove that the condition of urgency is satisfied, the court hearing the application for interim measures must be given specific and precise information, supported by detailed documents, establishing the applicant’s financial situation and enabling the court to assess the consequences likely to result from the absence of the measures sought.

(see paras 19, 21)

See:

25 March 1999, C-65/99 P(R) Willeme v Commission, para. 62

10 September 1999, T‑173/99 R Elkaïm and Mazuel v Commission, para. 25; 19 December 2002, T‑320/02 R Esch-Leonhardt and Others v ECB, para. 27

27 April 2010, T‑103/10 P(R) Parliament v U, para. 37