ORDER OF THE PRESIDENT OF THE GENERAL COURT
22 July 2010 (*)
(Application for interim measures – Common foreign and security policy – National official seconded to the European Union Police Mission in Bosnia and Herzegovina – Decision to redeploy and downgrade – Application for suspension of operation of a measure – Admissibility – Lack of urgency)
In Case T‑271/10 R,
H, residing in Catania (Italy), represented by C. Mereu and M. Velardo, lawyers,
applicant,
v
Council of the European Union, represented by A. Vitro and G. Marhic, acting as Agents,
and
European Commission, represented by F. Erlbacher and B. Eggers, acting as Agents,
defendants,
APPLICATION for suspension of operation of the decision of 7 April 2010 of the Head of the European Union Police Mission (EUPM) in Bosnia and Herzegovina having the effect of downgrading and redeploying the applicant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Legal and factual background
1 On 11 March 2002 the Council of the European Union adopted Joint Action 2002/210/CFSP on the European Union Police Mission (EUPM) (OJ 2002 L 70, p. 1) in order to ensure until 31 December 2005 the follow-on to the United Nations International Police Task Force in Bosnia and Herzegovina. That joint action has been extended several times, most recently until 31 December 2011 by Council Decision 2009/906/CFSP of 8 December 2009 on the EUPM in Bosnia and Herzegovina (OJ 2009 L 322, p. 22), adopted under Articles 28 TEU and 43(2) TEU.
2 The mission of the EUPM is to support the relevant law enforcement agencies in Bosnia and Herzegovina in the fight against organised crime and corruption, notably focusing on State level law enforcement agencies, on enhancement of the interaction between police and prosecutor and on regional and international cooperation. The main headquarters of the EUPM is in Sarajevo (Bosnia and Herzegovina). It consists of the Head of the EUPM and the staff as defined in the operation plan. The EUPM also has four regional offices in Sarajevo, Banja Luka, Mostar and Tuzla (Bosnia and Herzegovina).
3 Articles 6, 7 and 8 of Decision 2009/906/CFSP govern, respectively, the powers and responsibilities of the Head of the EUPM, recruitment, the status and management of EUPM staff and the status of the EUPM.
4 The applicant is an Italian magistrate who was seconded by the Italian Ministry of Justice to the EUPM in Sarajevo on 14 November 2008, as a criminal justice expert, and then from 24 December 2008, as Chief of the Legal Office. Consequently, the Italian Ministry of Justice extended the applicant’s secondment as Chief of the Legal Office until December 2009, and then to December 2010.
5 By letter of 17 March 2010, sent to the Head of the EUPM policy unit, the applicant informed her superiors that she had detected some irregularities in the management of the EUPM. In addition, she requested a meeting with the Head of the EUPM in order to make known to him her findings, but according to her no such meeting ever took place.
6 By decision of 7 April 2010 signed by the Chief of Personnel, the Head of the EUPM downgraded the applicant to the post of ‘criminal justice adviser – prosecutor’ and redeployed her to the regional office of Banja Luka, with effect from 19 April 2010, due to operational reasons.
7 Further to a complaint made by the applicant, the Head of the EUPM, by letter of 30 April 2010, confirmed the decision of 7 April 2010, adding that the reason for the applicant’s redeployment was the need for prosecutorial advice in Banja Luka.
Procedure and forms of order sought by the parties
8 By application lodged at the Registry of the Court on 16 June 2010, the applicant brought an action for the annulment of the decision of 7 April 2010 and, if needed, the decision of 30 April 2010, and for the award of damages amounting to EUR 30 000, in particular to compensate her for the psychological harassment by the EUPM of which she claims to have been a victim and for the damage to her health caused by her downgrading and redeployment.
9 By separate document, lodged at the Registry of the Court on 17 June 2010, the applicant brought this application for interim measures, in which she claims, essentially, that the President of the Court should:
– suspend the operation of the decision of 7 April 2010 and, if needed, of the decision of 30 April 2010, pursuant to Article 105(2) of the Rules of Procedure of the General Court, pending the decision on the application for interim measures and, in any event, pending judgment by the Court in the main proceedings;
– grant any interim measures as appropriate;
– order the Council and the Commission to pay the costs, as well as interest at 8%.
10 In their written observations lodged at the Court Registry on 1 July 2010, the Council and the Commission contend, in essence, that the President of the Court should:
– dismiss the application for suspension of operation as inadmissible and, alternatively, as unfounded;
– order the applicant to pay the costs.
11 In answer to a written question from the Court, the applicant stated, by document dated 7 July 2010, that she had on 2 July 2010 also brought an action before the Italian courts against the Italian Ministry of Justice seeking the annulment of the decision of 7 April 2010. Bringing that action is a precautionary measure, in case the action for annulment brought before the General Court is declared inadmissible. Proceedings before the national courts are currently blocked pending the outcome of proceedings before the General Court.
12 Further, after the Council and the Commission had lodged their observations, on 15 July 2010 the applicant submitted a reply.
Law
13 Under Articles 278 TFEU and 279 TFEU, in conjunction with Article 256(1) TFEU, the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the General Court be suspended or prescribe any necessary interim measures.
14 Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application may order suspension of operation of an act and other interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
15 In the context of that overall examination, the judge hearing the application for interim measures has a wide discretion and is free to determine, in the light of the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (orders of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
16 Lastly, it is to be noted that Article 278 TFEU establishes the principle that actions are not to have suspensory effect, since acts adopted by the institutions, bodies, offices and agencies of the European Union are presumed to be lawful. It is therefore only by way of exception that the judge hearing the application for interim measures may order that operation of the act contested before the Court be suspended or prescribe provisional measures (see, to that effect, order of the President of 17 December 2009 in Case T‑396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and case-law cited).
17 Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on the present application for interim measures and that it is not expedient first to hear oral argument from the parties.
Preliminary remarks
18 In her application for suspension, the applicant has named as defendants not only the Council and the Commission, but also the EUPM. In that regard, she states that the decision of 7 April 2010 was made by the Head of the EUPM as an administrative measure, governed by Article 6(2) and (6) of Decision 2009/906/CFSP, which did not involve any political or strategic assessment.
19 However, as is clear from Decision 2009/906/CFSP – adopted by the Council on the basis of Article 28 TEU and Article 43(2) TEU –, the EUPM does not have legal personality and there is no provision for it to be a party to proceedings before the Courts of the European Union. The EUPM is a ‘mission’, in other words, a simple activity, the duration of which is limited to two years (Article 1(2) and the second subparagraph of Article 18 of Decision 2009/906/CFSP). The EUPM has therefore not been accorded the legal status of an agency, such as the European Defence Agency, created by Council Joint Action 2004/551/CFSP of 12 July 2004 (OJ 2004 L 245, p. 17), Article 6 of which expressly provides that that agency is to have legal personality and is to enjoy the most extensive legal capacity possible under national laws. That assessment – of necessity cursory within proceedings for interim measures – is not contradicted by the fact that the EUPM seems to have some legal capacity to enter into contracts, though not specified in Decision 2009/906/CFSP, as regards the recruitment of international civilian staff and local staff and concluding technical arrangements regarding the provision of equipment, services and premises (Article 7(3), Article 8(3) and Article 12(2) of that decision).
20 Contrary to the argument advanced by the applicant, the EUPM cannot therefore be classified as a body, office or agency for the purposes of the first and fourth paragraphs of Article 263 TFEU.
21 While it is true that, under Article 44(1) of the Rules of Procedure, the applicant is to designate the party against whom the application is brought, it remains the case that the judge hearing the application for interim measures may, if necessary, clarify the formulation of the application for suspension in that regard (see, to that effect, Case 44/76 Milch-, Fett- und Eier-Kontor v Council and Commission [1977] ECR 393, paragraph 1; order in Case 85/86 Commission v EIB [1986] ECR 2215, paragraph 6; and order of 16 October 2006 in Case T‑173/06 Aisne et Nature v Commission, not published in the ECR, paragraph 17). In the present case, the Council and the Commission must therefore be considered to be the only defendants.
Admissibility
22 First, as regards the head of claim whereby the Court is invited to ‘grant any interim measures as appropriate’, it is clear that that claim is vague and imprecise, and therefore does not satisfy the conditions of Article 44(1)(d) of the Rules of Procedure, to which reference is made in Article 104(3) of those rules. Consequently, that head of claim must be declared to be manifestly inadmissible (see, to that effect, order of the President in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, paragraph 36 and case-law cited).
23 Second, since the decision of 7 April 2010 and the decision of 30 April 2010 were made in the area of the common foreign and security policy (CFSP), governed by Title V of the Treaty on European Union, the Council and the Commission challenge the jurisdiction of the Court to hear either the main action or the application for interim measures related to it. The defendants rely on the second subparagraph of Article 24(1) TEU and the first paragraph of Article 275 TFEU, according to which measures taken in the area of CFSP can be the subject of an action for annulment only to a limited extent. Moreover, they refer to Article 8(2) of Decision 2009/906/CFSP, according to which it is not the institutions of the European Union or the EUPM, but the authorities of the State which seconded a staff member to the EUPM, who are to be responsible for answering any claims linked to that secondment, from or concerning that staff member. The Council and the Commission observe that, being aware of that legal situation, the applicant brought on 4 June 2010 before the Italian courts an action for the annulment of the decision of 7 April 2010 and an application for suspension of operation of that decision.
24 In that regard, it must be borne in mind that it is the Council which created the EUPM and that, while the Head of the EUPM is responsible for the EUPM and issues instructions to all EUPM staff (Article 6(1) and (3) of Decision 2009/906/CFSP), the Council retains responsibility for the action of the EUPM in several respects (Article 9(2) and (4), Article 10(1) and (2) and Article 13(1) and (3) of Decision 2009/906/CFSP). As regards the Commission, it has a role for budgetary and financial purposes in the management of the EUPM (Article 6(4) and Article 12(3) of Decision 2009/906/CFSP). Moreover, in the present case, the applicant has asserted, and is not contradicted by the Council or the Commission, that the Head of the EUPM had been recruited by the Commission.
25 In those circumstances, it cannot be ruled out, at first glance, that the decision of 7 April 2010 and the decision of 30 April 2010, formally taken by the Head of the EUPM, are attributable to the Council or to the Commission to the extent that the Head of the EUPM legally acted on behalf of one of those institutions. On this view, it should be ensured that those institutions do not evade any review by the Courts of the European Union in respect of purely administrative decisions which are taken in relation to staff management within the EUPM, which would be clearly separable from the ‘political’ measures taken as part of the CFSP. Where such a decision adversely affects the person to whom it is addressed and significantly alters that person’s legal position, it cannot be acceptable in a European Union based on the rule of law that such a decision escape any judicial review (see, by analogy, Case T‑411/06 Sogelma v EAR [2008] ECR II‑2771, paragraph 36).
26 However, it is unnecessary to consider further the issue of admissibility within these proceedings, since the application for interim measures must, in any event, be dismissed for lack of urgency.
Urgency
27 The applicant asserts that, after notification of the decision of 7 April 2010, she started to suffer from health problems. In that regard, she invokes medical certificates according to which her health problems might be related to the stress caused by her redeployment, her downgrading and the more general situation of psychological harassment. That harassment is ongoing because of the permanent effects of the redeployment and downgrading. Consequently, it is probable that the damage to her health will become greater. The downgrading also harms the applicant’s reputation. She adds that the psychological and professional damage she has suffered is due to the fact that the functions now assigned to her are less prestigious than those for which she was seconded. Further, the current functions are carried out in a more uncomfortable, regional office (Banja Luka), which is more difficult to reach than Sarajevo.
28 The Council and the Commission do not accept those arguments and contend that the applicant has not demonstrated urgency.
29 In that regard, it must be recalled that, in accordance with settled case-law, the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable harm to the party applying for those measures. In order to assess whether the alleged harm is of that kind and therefore justifies the suspension, by way of exception, of operation of the decisions of 7 April and 30 April 2010, the Court must have concrete and specific information, supported by detailed documents, which make it possible to assess the consequences which would, in all probability, ensue if the requested interim measures were not granted. In any event, it is for the party seeking such measures to prove that it cannot await the outcome of the main proceedings, while the Court, faced with the other party’s contentions, cannot grant an application for interim measures on the basis of mere unsupported assertions from the party seeking the interim measures. Taking into consideration the fact that the grant of interim measures is strictly exceptional, they can be ordered only if those assertions are supported by conclusive evidence (see, to that effect, orders of the President of 27 April 2010 in Case T‑103/10 P(R) Parliament v U, not published in the ECR, paragraphs 37 to 39 and case-law cited, and of 30 April 2010 in Case T‑18/10 R Inuit Tapiriit Kanatami v Parliament and Council, not published in the ECR, paragraph 105 and case-law cited).
30 In the present case, it must be observed that the applicant does not claim to have suffered any pecuniary damage, in terms of loss of salary or allowances, because of the downgrading and redeployment of which she complains. The extent of the alleged harm is therefore limited, in essence, to the damage allegedly caused by the contested measures to the applicant’s health, her reputation, and the prestige and comfort associated with the post of Chief of the Legal Office which she held in Sarajevo within the EUPM.
31 It is clear that the only evidence adduced by the applicant in this context relates to her alleged health problems. For that purpose, she submits four medical certificates, annexed to the application for interim measures, dated 26 April, 4 May, 24 May and 9 June 2010, which show that she was suffering from chronic bronchitis, accompanied by constant coughing, nausea and fever, entitling her to sick leave, respectively, of 3, 12 and 4 days. Only in the certificate of 9 June 2010 does the attending doctor state that there ‘could be a causal link between the frequency of the illness and the physical and psychological stress’. That is mere supposition which, it may be added, does not specify that the physical and psychological stress concerned were caused solely by the decisions of 7 April and 30 April 2010.
32 In those circumstances, the Court can only find that the applicant has failed to demonstrate that the assertions relating to the damage to her health are based on conclusive evidence, within the meaning of the case-law cited in paragraph 29 above, on the basis that the issue of whether that damage is serious can be left open. It seems moreover that the applicant herself recognises that the causal link between the decisions of 7 April and 30 April 2010 and her illness is questionable when she states that ‘it is not excluded’ that her health problems could be related to the stress caused by the redeployment, the downgrading and the more general situation of psychological harassment. In that context, it is not enough for the applicant – who has the onus of proving the alleged urgency – to assert, in her observations of 15 July 2010, that the Council and the Commission have, for their part, failed to indicate what factors other than her redeployment and downgrading could have caused her health problems.
33 In any event, the applicant has stated, by document dated 24 June 2010 in answer to a written question from the Court, that she had meanwhile in fact taken up her new post in Banja Luka, and she does not report that her sick leave has been extended. It can be concluded that the health problems which had caused such leave to be taken were transitory and that the damage caused to the applicant’s health, assuming it to be proved, had already occurred. That damage could therefore no longer be prevented by granting the suspension requested. According to settled case-law, the purpose of interim proceedings is not to secure reparation of damage already suffered (see order of the President of 8 June 2009 in Case T‑149/09 R Dover v Parliament, not published in the ECR, paragraph 37 and case-law cited).
34 That conclusion is not invalidated by the medical certificate dated 21 June 2010, issued by the emergency ward of a health centre in Banja Luka, which the applicant submitted as an annex to her observations of 15 July 2010. Again, there are no grounds on which to hold that the decisions of 7 and 30 April 2010 caused the health problem disclosed in that certificate. Moreover, the applicant has not alleged, far less demonstrated, that that problem had been so serious that it entitled her to take sick leave.
35 As regards the other types of harm claimed by the applicant, she has provided no evidence to substantiate them, but has confined herself to mere assertions. Having regard to the defendants’ contentions, those assertions therefore cannot justify the grant of the suspension sought (see paragraph 29 above).
36 Furthermore, the harm claimed to reside in the fact that the new duties which the applicant has to carry out in the regional office of Banja Luka are less prestigious and comfortable than those which were the basis of her secondment to Sarajevo cannot, in the absence of more detailed factual information, be described as serious having regard to the objectives of the common foreign and security policy pursued by the EUPM, namely to support the relevant law enforcement agencies in Bosnia and Herzegovina in the fight against organised crime and corruption (the first paragraph of Article 2 of Decision 2009/906/CFSP).
37 As regards the damage to the applicant’s reputation, assuming that to be proved, it was already caused by the decision of 7 April 2010, so that the alleged harm under this heading has already occurred. As stated above in paragraph 33, the purpose of interim proceedings is not to secure reparation of damage already suffered. Moreover, annulment of the decision of 7 April 2010 and the decision of 30 April 2010 on conclusion of the main proceedings would provide sufficient reparation for the alleged non-material damage (see, to that effect, order in Dover v Parliament, paragraph 37 and case-law cited), for the entire period extending to the end of those proceedings. Furthermore, the applicant has not even claimed, far less established, that it would not be possible for her to apply to the Italian Ministry of Justice for the termination of her secondment to the EUPM, in so far as she considers her current administrative position intolerable, and thereby remove herself from a situation which she finds damaging.
38 It follows from the foregoing that this application for interim measures, to the extent that it is admissible, must be dismissed for lack of urgency, and it is unnecessary to consider whether the condition that there is a prima facie case is satisfied.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The Council of the European Union and the European Commission are considered to be the only defendants.
2. The application for interim measures is dismissed.
3. Costs are reserved.
Luxembourg, 22 July 2010.