ORDER OF THE PRESIDENT

OF THE CIVIL SERVICE TRIBUNAL

23 February 2010

Case F-99/09 R

Elisavet Papathanasiou

v

Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM)

(Civil service — Procedure for interim relief — Members of the temporary staff — Indefinite contract with a termination clause — Application for suspension of operation of a decision terminating a contract as a member of the temporary staff — Urgency — None)

Application: brought under Articles 278 TFEU and 157 EA, as well as Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, in which Ms Papathanasiou seeks suspension, first, of OHIM’s decision of 12 March 2009 terminating her contract as a member of the temporary staff with effect from 15 November 2009, and, second, of the decision of 3 August 2009 extending to 15 February 2010 the notice period initially fixed on 15 November 2009 by the decision of 12 March 2009.

Held: The application for interim relief is dismissed. Costs are reserved.

Summary

1.      Applications for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — ‘Fumus boni juris’ — Cumulative nature — Manner and order of examination — Discretion of the judge dealing with the application for interim relief

(Arts 278 TFEU and 279 TFEU; Statute of the Court of Justice, Art. 39 and Annex I, Art. 7(1); Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

2.      Applications for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Serious and irreparable damage — Burden of proof

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

3.      Officials — Representation — Protection of staff representatives

(Staff Regulations, Annex II, Art. 1, sixth para.)

1.       Article 102(2) of the Rules of Procedure of the Civil Service Tribunal provides that applications for 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 of urgency and establishment of a prima facie case are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied. Where appropriate, the judge hearing such an application must also weigh up the interests involved.

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to 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.

(see paras 33-35)

See:

T‑173/99 R Elkaïm and Mazuel v Commission [1999] ECR‑SC I‑A‑155 and II‑811, para. 18; T‑120/01 R De Nicola v EIB [2001] ECR‑SC I‑A‑171 and II‑783, paras 12 and 13

F‑38/06 R Bianchi v ETF [2006] ECR‑SC I‑A‑1‑27 and II‑A‑1‑93, paras 20 and 22

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. Furthermore, 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.

The mere necessity of finding a job abroad does not, in itself, constitute serious and irreparable damage.

(see paras 41-42)

See:

C‑65/99 P(R) Willeme v Commission [1999] ECR I‑1857, para. 62

Elkaïm and Mazuel v Commission, para. 25; T‑320/02 R Esch-Leonhardt and Others v ECB [2002] ECR‑SC I‑A‑325 and II‑1555, para. 27

F‑19/08 R Bennett and Others v OHIM [2008] ECR‑SC I‑A‑1‑131 and II‑A‑1‑713, para. 28

3.      According to the sixth paragraph of Article 1 of Annex II to the Staff Regulations, the fact of performing the duties of a member of the Staff Committee must in no way be prejudicial to the person concerned.

In so far as the performance of duties within the Staff Committee is connected with a person’s status as a member of staff and does not exist independently of the contract which binds the staff member to an institution or agency, when the contract of a staff member who is a member of the Staff Committee comes to an end, his term of office as a staff representative within the Staff Committee automatically also ends as a consequence. It is only where ‘the fact’ of performing duties within the Staff Committee is prejudicial to a staff member, by resulting in dismissal, for instance, that the sixth paragraph of Article 1 of Annex II to the Staff Regulations is infringed.

(see paras 50-52)