ORDER OF THE PRESIDENT OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
12 June 2014
Case F‑28/14 R
Stéphane De Loecker
v
European External Action Service (EEAS)
(Civil service — Temporary staff — Termination of contract — Procedure for interim relief — Application for suspension of operation of a measure — Admissibility of main application)
Application: under Articles 278 TFEU and 157 EA, and under Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Mr De Loecker sought the suspension, pending a decision on the substance of the case: — of the decision of 20 December 2013 of the High Representative of the Union for Foreign Affairs and Security Policy (‘the High Representative’) to terminate his contract as a member of the temporary staff within the meaning of Article 2(e) of the Conditions of Employment of Other Servants of the European Union (‘the CEOS’) with effect from 31 March 2014; — of the High Representative’s refusal to hear him following the complaint of harassment which he had brought against the Chief Operating Officer of the European External Action Service (EEAS); — of the rejection of his request to designate an external investigator of very high level to examine his complaint of harassment; — of the decision to register the above complaint ‘as a request and to have it dealt with by the [Directorate-General for Human Resources and Security] of the European Commission’.
Held: Mr De Loecker’s application for interim relief is dismissed. The costs are reserved.
Summary
1. Application for interim measures — Suspension of operation of a measure — Conditions for admissibility — Applicant’s interest in obtaining suspension — Application for suspension of the operation of a decision of the High Representative not to receive an official in order to provide him with explanations for a decision — Suspension incapable of changing the applicant’s position — Inadmissibility — Application for suspension of a decision refusing to designate an investigator to examine a complaint of harassment — Admissibility
(Art. 278 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))
2. Actions brought by officials — Act adversely affecting an official — Concept — Precautionary measure — Not included
(Staff Regulations, Arts 90 and 91)
3. Actions brought by officials — Act adversely affecting an official — Concept — Decision of the High Representative to have a complaint of harassment dealt with by the services of the Commission — Not included
(Staff Regulations, Arts 90 and 91)
4. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Burden of proof — Interim proceedings not capable of providing a better remedy for non-material damage than the main proceedings — No urgency
(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))
5. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Serious and irreparable damage — Causal link between the alleged damage and the contested act
(Art. 278 TFEU)
1. An application for suspension of operation cannot, in principle, be envisaged against a negative administrative decision, since the grant of such suspension could not have the effect of changing the applicant’s position. That is precisely the case with regard to suspension of the operation of a refusal by the High Representative to grant an official an interview in order to provide him with an explanation for a decision, since the suspension would be of no practical benefit to the applicant, in so far as it could not take the place of a positive decision granting his request for an interview. Suspension of operation would thus not entail a change in the applicant’s position.
In contrast, a refusal by the High Representative to designate a high-level external investigator to examine the official’s complaint of psychological harassment is indissociable from a decision to have that complaint dealt with by the services of the institution. That refusal cannot, therefore, be regarded as a negative decision.
(see paras 27, 28)
See:
orders in Ellinikos Niognomon v Commission, T‑312/08 R, EU:T:2008:407, para. 26; and Henkel and Henkel France v Commission, T‑607/11 R, EU:T:2012:22, para. 21
order in Bermejo Garde v EESC, F‑41/10 R, EU:F:2010:89, para. 38
2. A mere precautionary measure intended to preserve a decision of the administration which is already the subject of an action is not an act adversely affecting an official.
(see para. 31)
3. Acts preparatory to a decision do not adversely affect officials and an official may rely on defects in acts prior to the decision and closely linked to it only in the context of an action challenging the decision adopted at the end of the procedure. Thus, although some purely preparatory measures may adversely affect an official inasmuch as they may influence the content of a subsequent challengeable act, those measures cannot be the subject of a separate action and must be challenged in support of an action brought against that act.
Consequently, preparatory measures constituted by a decision of the High Representative, in her capacity as the authority authorised to conclude contracts of employment for the European External Action Service, to have a complaint of harassment dealt with by the services of the Commission, and by her refusal to designate a high-level external investigator to examine that complaint, constitute guidance on how that complaint should be investigated and cannot be the subject of an independent action separate from the action against the administration’s final decision. In particular, neither the existence, if proved, of infringements of the right to be heard and the principle of impartiality nor the fact that the institution had begun an investigation in respect of a request for assistance proves, in itself, that acts adversely affecting the applicant, capable of being challenged in a direct action, had been adopted.
(see paras 34, 35, 37)
See:
orders in Santarelli v Commission, 78/87 and 220/87, EU:C:1988:255, para. 13; and Gómez-Reino v Commission, C‑471/02 P(R), EU:C:2003:210, para. 65
judgment in Latino v Commission, T‑145/01, EU:T:2003:42, para. 101
order in Nijs v Court of Auditors, F‑64/08, EU:F:2008:179, para. 17; judgments in Marcuccio v Commission, F‑65/09, EU:F:2010:149, para. 42 and the case-law cited therein; and Marcuccio v Commission, F‑1/10, EU:F:2010:166, para. 47 and the case-law cited therein
4. 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 regard, there is no urgency where the grant of suspension of operation of a measure cannot remedy the alleged non-material damage to a greater extent than the possible annulment of the contested decision at the end of the main proceedings.
(see paras 38, 55)
See:
order in De Loecker v EEAS, F‑78/13 R, EU:F:2013:134, paras 20 and 25 and the case-law cited therein
5. The grant of suspension of operation of a measure is justified only where there is a causal link between the measure in question and the alleged serious and irreparable damage and, even more precisely, where that measure is the decisive cause of that damage.
(see para. 56)
See:
order in Marcuccio v Commission, C‑399/02 P(R), EU:C:2003:90, para. 26
order in Al-Chihabi v Council, T‑593/11 R, EU:T:2011:770, para. 16 and the case-law cited therein