Language of document : ECLI:EU:F:2015:91

ORDER OF THE PRESIDENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

15 July 2015

Case F‑94/15 R

Oren Wolff

v

European External Action Service (EEAS)

(Civil service — Interim measures — Application for a suspension of operation — Elections to the Staff Committee — Urgency — None — Balance of the interests at stake)

Application:      under Articles 278 TFEU and 157 EA, as well as under Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr Wolff seeks suspension of the operation of the decision of 23 April 2015 by which the European External Action service (EEAS) rejected his request for the results of the election of members of the Staff Committee to be declared invalid.

Held:      Mr Wolff’s application for interim measures is rejected. The costs are reserved.

Summary

1.      Actions brought by officials — Interest in bringing proceedings — Proceedings concerning elections to the Staff Committee — Official entitled to vote at the time of the elections

(Staff Regulations, Arts 90 and 91)

2.      Application for interim measures — Suspension of operation of a measure — Conditions for granting — Urgency — Serious and irreparable damage — Damage suffered by an official in his capacity as a voter in the Staff Committee elections — Fact not in itself constituting serious damage — Impact on right to an effective judicial remedy — None

(Art. 278 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Staff Regulations, Arts 90 and 91; Rules of Procedure of the Civil Service Tribunal, Art. 115(2))

3.      Application for interim measures — Suspension of operation of a measure — Conditions for granting — Serious and irreparable damage — Definition

(Art. 278 TFEU)

4.      Application for interim measures — Suspension of operation of a measure — Conditions for granting — Urgency — Serious and irreparable damage — Damage suffered by an official in his capacity as a voter in the Staff Committee elections — Balancing of all the interests involved — No urgency

(Art. 278 TFEU; Staff Regulations, Annex II, Art. 1)

1.      As far as concerns the staff representation bodies of an institution, and as regards the possibility of bringing an action for annulment or taking part in such proceedings, every voter has a direct and existing interest in the elections being held in conditions and according to voting arrangements which comply with the provisions of the Staff Regulations governing voting procedure.

In that regard, provided that he was entitled to vote in the Staff Committee elections and that he relies on that entitlement to seek a judicial review of their outcome, an official would not lose his interest in bringing proceedings solely because, by definition, the term of office of the Staff Committee resulting from those elections would expire in the course of the proceedings.

(see paras 25, 30)

See:

Judgment of 24 September 1996 in Marx Esser and del Amo Martinez v Parliament, T‑182/94, EU:T:1996:130, para. 40

Order of 19 July 2011 in Bömcke v EIB, F‑105/10, EU:F:2011:122, paras 23 and 24

2.      Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the Union are presumed to be lawful. It is therefore only in exceptional cases that a court hearing an application for interim measures may order the suspension of the operation of an act contested before the court adjudicating on the substance. Consequently, the condition of urgency, and more precisely the need, to which a suspension of operation is subject in particular, for the applicant to be fully entitled to rely on a risk of serious and irreparable damage, must not be confused with the requirement that, in order for an official to be able validly to bring proceedings under Articles 90 and 91 of the Staff Regulations, he must have a personal interest in the annulment of the contested measure.

In that regard, the fact that an official is entitled to vote in elections to the Staff Committee and that he, like every voter, has an interest in his representatives being elected under lawful conditions is therefore not sufficient to prove a risk of serious and irreparable damage capable of justifying suspension of the operation of the contested decision.

Moreover, although Article 47 of the Charter of Fundamental Rights of the European Union guarantees everyone the right to an effective judicial remedy, that right is subject to implicitly accepted limitations, since, by its very nature, it demands regulation and cannot therefore have the effect that the provisions of Article 278 TFEU are disregarded, from which it follows that a suspension of operation may not be ordered if a risk of serious and irreparable damage has not been established.

(see paras 26, 27, 29)

See:

Order of 27 April 2010 in Parliament v U, T‑103/10 P(R), EU:T:2010:164, para. 34

3.      The suspension of operation of a measure does not per se depend on the advantage which those benefiting from the contested measure might derive from it, but on the serious and irreparable damage which that measure might cause to the applicant’s personal interests.

(see para. 33)

4.      In an application for interim measures, the condition of urgency is not satisfied in the case of an application for suspension of the operation of a decision rejecting an official’s request for the outcome of the election of members of a Staff Committee to be declared invalid, since, in any event, the balancing of the interests at stake comes out in favour of the institution concerned.

The holding of periodic elections is justified by the need to ensure that the ideas of the elected representatives keep pace with fundamental developments in the electorate, since over time there is a risk that representatives will no longer reflect voters’ prevailing aspirations. That would be the risk if the former Staff Committee was reinstated pending a decision of the Union judicature on an action for annulment of the outcome of the elections to that Committee, whereas the Union legislature considered, in adopting Article 1 of Annex II to the Staff Regulations, that a Staff Committee should be renewed at the latest every three years in order to ensure that it is representative. Furthermore, the previous Staff Committee would be less effectively representative if its powers were confined merely to dealing with day-to-day business. Such a restriction, intended to be of short duration, would be liable to disrupt the internal management of the institution concerned each time that institution had to have recourse to the Staff Committee or to other bodies with members appointed by it, such as the Joint Committee on Promotions, the Reports Committee and the Social Committee.

In that regard, in circumstances where a challenge to the election of the current Staff Committee is based solely on the fact that the election committee extended the voting period for a second time in order to achieve a quorum, instead of holding a second ballot which would have allowed the elections to be validated on the basis of the participation of a simple majority, it is important to balance the — albeit disputed — broad and current representativeness of the new Staff Committee against the outdated and less effectively representative old Committee, and to decide that the interest of the institution concerned in having up-to-date and fully operational staff representation responsible for maintaining constant contact with the staff and for helping to ensure the proper functioning of departments takes precedence over the interest of one voter.

(see paras 37-40)