ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

10 September 2010

Case F-62/10 R

Jürgen Esders

v

European Commission

(Civil service — Procedure for interim relief — Application for suspension of operation of a measure — Reassignment — Rules on the rotation of officials in the Commission’s representations — 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 Mr Esders, an official in the Directorate-General for Communication at the Commission assigned to the representation in Germany, seeks suspension of the operation of the decision of 27 July 2010 reassigning him to the Commission’s headquarters from 1 September 2010.

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

Summary

1.      Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — ‘Fumus boni juris’ — Urgency — Cumulative nature — Balancing of all the interests involved

(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.      Application for interim measures — Suspension of operation of a measure — Suspension of operation of a decision reassigning to the Commission’s headquarters an official previously assigned to a representation in another Member State — Conditions for granting

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

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 Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed.

(see paras 41-43)

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. 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.

A declaration by one or more doctors is not, in itself, sufficient to establish that, if the operation of a decision reassigning to the Commission’s headquarters an official previously assigned to a representation in another Member State is not suspended, he risks suffering serious and irreparable damage. The authors of the medical certificates produced have only been able to hear the applicant’s point of view, and there is no evidence or even assertion that they had all the information and documents they needed in order to have an adequate understanding of the professional context involved.

(see paras 45, 47)

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-41/10 R Bermejo Garde v EESC [2010] ECR-SC I‑A‑1‑0000 and II‑A‑1‑0000, para. 55