ORDER OF THE PRESIDENT OF THE GENERAL COURT

27 April 2010

Case T-103/10 P(R)

European Parliament

v

U

(Appeal — Civil service — Officials — Dismissal decision — Order of the President of the Civil Service Tribunal of the European Union in an application for interim measures — Lack of urgency)

Appeal: against the Order of the President of the Civil Service Tribunal of the European Union of 18 December 2009 in Case F-92/09 R U v Parliament [2009] ECR-SC I-A-1-511 and II-A-1-2771, seeking to have that order set aside.

Held: The Order of the President of the Civil Service Tribunal of the European Union of 18 December 2009 in Case F-92/09 R U v Parliament is set aside. The application for interim measures brought by Ms U is dismissed. Costs are reserved.

Summary

1.      Appeal — Pleas in law — Distortion of the clear sense of the evidence — Material inaccuracy of findings of fact resulting from documents in the case — Incomplete examination of the facts — Admissibility

Art. 256 TFEU; Statute of the Court of Justice, Annex I, Art. 10(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

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2))

3.      Application for interim measures — Conditions of admissibility — Application — Formal requirements — Statement of the pleas in law establishing a prima facie case for granting the measures sought — Lodging of an additional memorandum in order to remedy deficiencies — Incompatibility with the interim relief procedure

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Arts 44(1)(c), 104(2) and (3) and 109; Rules of Procedure of the Civil Service Tribunal, Arts 35(1)(d) and 102(2) and (3))

4.      Appeal — Pleas in law — Distortion of the clear sense of the evidence — Material inaccuracy of findings of fact resulting from documents in the case — Burden of proof

(Art. 256 TFEU)

1.      A complaint that the papers in the case at first instance do not justify a finding of urgency, which amounts to a claim that the inaccuracy of that finding results from the documents in the case and a complaint that the President of the Civil Service Tribunal did not conduct a full examination of the facts, is admissible at the appeal stage.

(see para. 32)

See: T-193/08 P Skareby v Commission [2009] ECR-SC I-B-1-83 and II-B-1-515, para. 48 and the case-law cited therein

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, or prescribe interim measures.

The urgency of an application for interim relief must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measure, although damage of a purely financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty, since normally it can be the subject of subsequent financial compensation.

Even where the damage is purely financial, an interim measure is justified if it is apparent that, without that measure, the party requesting it would be in a position likely to jeopardise his financial viability, since he would not have an amount of money which under normal circumstances should enable him to meet all the essential expenditure necessary to cater for his basic needs until a ruling is given in the main action.

However, in order to assess whether the alleged damage is of a serious and irreparable nature justifying the suspension, exceptionally, of the operation of the contested decision, the court hearing the application for interim measures must, in all cases, have specific and precise information, supported by detailed documentation, showing the financial situation of the party requesting the interim measure and enabling an assessment to be made of the likely consequences if the measures sought are not granted.

In any event, it is incumbent on the party applying for suspension of the operation of a contested decision to prove that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage.

It follows from the foregoing that, first, the party requesting the interim measure must, in order to justify the suspension of operation sought, produce supporting documentation giving an accurate and comprehensive picture of his financial situation, and, second, should the opposing party dispute the request, the court hearing the application for interim measures may not grant the application solely on the basis of unsupported statements by the party requesting the interim measure. Because interim measures may be allowed only in strictly exceptional cases, such measures may be granted only if those statements are supported by conclusive evidence.

(see paras 34-39)

See: 378/87 R Top Hit Holzvertrieb v Commission [1988] ECR 161, para. 18; C‑213/91 R Abertal and Others v Commission [1991] ECR I‑5109, para. 18; C‑471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, para. 113; T‑86/96 R Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1998] ECR II‑641, paras 64, 65 and 67; T‑143/99 R Hortiplant v Commission [1999] ECR II‑2451, para. 18; T‑163/00 R Carotti v Court of Auditors [2000] ECR-SC I‑A‑133 and II‑607, para. 8; T‑339/00 R Bactria v Commission [2001] ECR II‑1721, para. 94; T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, para. 94; T‑196/01 R Aristoteleio Panepistimio Thessalonikis v Commission [2001] ECR II‑3107, para. 32; T‑151/01 R Duales System Deutschland v Commission [2001] ECR II‑3295, para. 187; T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paras 82 and 84; T‑420/05 R II Vischim v Commission [2006] ECR II‑4085, paras 83 and 84; judgment of 25 April 2008 in T-41/08 R Vakakis v Commission, not published in the ECR, para. 52; judgment of 17 December 2009 in T-396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, para. 31 and the case-law cited therein

3.      The party seeking the interim measure must provide an accurate and comprehensive picture of his financial situation when he brings his application for interim relief. As is apparent from a reading of Article 35(1)(d) and Article 102(2) and (3) of the Rules of Procedure of the Civil Service Tribunal in conjunction with Article 44(1)(c) and Article 104(2) and (3) of the Rules of Procedure of the General Court, an application for interim relief must, in itself, enable the defendant to prepare its observations and the court hearing the application for interim relief to reach a decision, if necessary without any other supporting information, since the main factual and legal elements on which the application is based should be clear from its very wording.

The applicant, who is thus required to produce documents providing an accurate and comprehensive picture of his financial situation, must supply the court hearing the application for interim relief with information on whether or not he might obtain social welfare or equivalent benefits, together with an attestation concerning his net wealth.

The party seeking the interim measure should not be allowed to provide, at the appeal stage, additional evidence which he had omitted to produce before the President of the Civil Service Tribunal. An application for interim relief may not, as a rule, validly be supplemented by a memorandum lodged subsequently in order to remedy deficiencies, since allowing such an opportunity to ‘make good’ is incompatible not just with the speed required in applications for interim measures, but also, and particularly, with the spirit of Article 109 of the Rules of Procedure of the General Court, according to which, where an application for an interim measure is rejected, the party who made it may make a further application only if it is based on new facts.

(see paras 40, 44, 50, 58)

See: T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, para. 34; Aden and Others v Council and Commission, paras 52 and 101 to 115; T‑85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, para. 37; order of 29 January 2009 in T-352/08 R Pannon Hőerőmű v Commission, para. 31; order of 24 April 2009 in T-52/09 R Nycomed Danmark v EMEA, order of 4 February 2010 in T-385/05 TO R Portugal v Transnáutica and Commission, paras 11 to 13

4.      In considering that the condition of urgency was satisfied, even though the Community institution concerned had noted at first instance that the applicant had not presented any evidence of his financial situation and that that situation did not give rise to any urgency, the President of the Civil Service Tribunal gave precedence to mere unilateral statements by the applicant over the institution’s express denials, ignoring the fact that the applicant had not established the imminent threat of serious and irreparable damage, for which he bore the burden of proof. In doing so, the President of the Civil Service Tribunal did not conduct a full examination of the facts, so that the contested order is invalidated by a material inaccuracy in the findings resulting from the documents in the case.

(see para. 51)

See: Skareby v Commission, para. 87 and the case-law cited therein