61985O0341

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION OF A MEASURE - INTERIM MEASURES - CONDITIONS FOR GRANTING

( RULES OF PROCEDURE , ART . 83 ( 2 ))

IN CASE 341/85 R

ERIK VAN DER STIJL , AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED AND ASSISTED BY F . HERBERT , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF N . DECKER , 16 AVENUE MARIE-THERESE ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY D . GOULOUSSIS , A LEGAL ADVISER OF THE COMMISSION , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF G . KREMLIS , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE SUSPENSION , AS AN INTERIM MEASURE , OF THE OPERATION OF THE COMMISSION ' S DECISION TO ENGAGE B . MATH AS A TEMPORARY MEMBER OF STAFF FOR A FIXED PERIOD ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 15 NOVEMBER 1985 , ERIK VAN DER STIJL , AN OFFICIAL OF THE COMMISSION IN GRADE A 4 , BROUGHT AN ACTION ASKING PRIMARILY FOR THE ANNULMENT OF THE COMMISSION ' S DECISION TO ENGAGE B . MATH TO SERVE AS HEAD OF THE INSPECTION DIVISION OF THE EURATOM SAFEGUARDS DIRECTORATE IN THE DIRECTORATE-GENERAL FOR ENERGY .

2 BY AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES LODGED ON THE SAME DAY , THE APPLICANT SEEKS THE SUSPENSION OF THE OPERATION OF THAT DECISION PURSUANT TO ARTICLE 91 ( 4 ) OF THE STAFF REGULATIONS .

3 BY A DECISION OF THE PRESIDENT OF THE COMMISSION DATED 3 NOVEMBER 1983 MR MATH WAS APPOINTED HEAD OF DIVISION ( DIRECTORATE-GENERAL FOR ENERGY , EURATOM SAFEGUARDS DIRECTORATE , INSPECTION DIVISION ) WITH RETROACTIVE EFFECT TO 28 SEPTEMBER 1983 . BY A JUDGMENT GIVEN ON 7 OCTOBER 1985 ( CASE 128/84 VAN DER STIJL V COMMISSION ( 1985 ) ECR 3281 ), THE COURT ANNULLED THAT DECISION ON THE GROUND THAT THE PROCEDURE FOLLOWED IN ORDER TO FILL THE POST IN QUESTION WAS VITIATED BY AN INFRINGEMENT OF THE REQUIREMENTS LAID DOWN IN ARTICLE 29 ( 2 ) OF THE STAFF REGULATIONS OF OFFICIALS .

4 ON 16 OCTOBER 1985 , THE COMMISSION DECIDED ( A ) TO ENGAGE MR MATH TO SERVE AS HEAD OF THE INSPECTION DIVISION OF THE DIRECTORATE-GENERAL FOR ENERGY AS A TEMPORARY MEMBER OF STAFF IN GRADE A 3 FOR A TWO-YEAR PERIOD STARTING ON 28 SEPTEMBER 1983 AND EXTENDED TO 31 DECEMBER 1985 , AND ( B ) TO RESUME WITHIN THE NEXT FEW WEEKS ITS DELIBERATIONS ON THE PROCEDURE COMMENCED IN ORDER TO FILL THE POST IN QUESTION .

5 IN HIS APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , THE APPLICANT ASKS , IN SUBSTANCE , PRIMARILY FOR AN ORDER REQUIRING THE COMMISSION TO SUSPEND THE OPERATION OF ITS DECISION OF 16 OCTOBER 1985 UNTIL THE COURT HAS GIVEN JUDGMENT IN THE MAIN ACTION . IN THE ALTERNATIVE , HE ASKS THAT THE COMMISSION BE ENJOINED FROM TAKING INTO ACCOUNT FOR THE PURPOSES OF A PERMANENT APPOINTMENT TO THE POST OF HEAD OF THE INSPECTION DIVISION THE PERIODS SERVED BY MR MATH AS A TEMPORARY MEMBER OF STAFF BETWEEN 28 SEPTEMBER 1983 AND 31 DECEMBER 1985 AND ORDERING THE COMMISSION TO ADOPT A DECISION ON THE APPLICANT ' S COMPLAINT AGAINST THE CONTESTED DECISION . IN THE FURTHER ALTERNATIVE , HE ASKS THE COURT TO PRESCRIBE ANY OTHER MEASURES WHICH IT CONSIDERS APPROPRIATE .

6 BY WAY OF ESTABLISHING THAT THE SUSPENSION OF OPERATION OF THE COMMISSION ' S DECISION IS A MATTER OF URGENCY , THE APPLICANT STATES THAT HE LODGED A COMPLAINT AGAINST THE CONTESTED DECISION ON 14 NOVEMBER 1985 . THE APPOINTING AUTHORITY MUST ADOPT A REASONED DECISION AT THE LATEST ON 15 MARCH 1986 . EVEN IF THE APPLICANT BRINGS AN ACTION AGAINST A POSSIBLE REJECTION OF HIS COMPLAINT IMMEDIATELY , THERE IS NO PROSPECT OF THE COURT ' S GIVING JUDGMENT ON THE LEGALITY OF THE CONTESTED DECISION BEFORE THE BEGINNING OF 1987 AT THE EARLIEST BECAUSE OF THE TIME TAKEN BY THE COURT PROCEDURE . IN THE MEANTIME THE APPOINTING AUTHORITY MAY HAVE ADOPTED DECISIONS MAKING A DEFINITIVE APPOINTMENT TO THE VACANT POST , AND MR MATH MAY HAVE RELIED ON HIS UNLAWFULLY ACQUIRED STATUS AS A TEMPORARY MEMBER OF STAFF , AND THE SENIORITY HE WILL HAVE IMPROPERLY ACQUIRED , IN ORDER TO SUCCEED IN THE RECRUITMENT PROCEDURES OPENED FOR THAT PURPOSE . THAT WILL MEAN THAT FURTHER DECISIONS WILL HAVE BEEN ADOPTED WHOSE ILLEGALITY FLOWS FROM THE ILLEGALITY OF THE CONTESTED DECISION , THUS COMPELLING THE APPLICANT ONCE AGAIN TO INITIATE THE COMPLAINTS PROCEDURES AND PROCEEDINGS BEFORE THE COURT SUBJECT TO THE TIME-LIMITS LAID DOWN IN ARTICLES 90 AND 91 OF THE STAFF REGULATIONS .

7 THE COMMISSION STATES THAT ITS DECISION OF 16 OCTOBER 1985 IS THE FIRST STEP TAKEN IN ORDER TO COMPLY WITH THE AFOREMENTIONED JUDGMENT BUT DOES NOT CONSTITUTE FULL IMPLEMENTATION OF THAT JUDGMENT . THE DECISION IS ALSO INTENDED TO REGULARIZE MR MATH ' S PERSONAL ADMINISTRATIVE STATUS AND TO ENSURE CONTINUITY WITHIN THE SERVICE .

8 THE COMMISSION FURTHER DENIES THE URGENCY OF THESE PROCEEDINGS FOR INTERIM MEASURES . IT STATES THAT THERE IS NO RISK OF IRREPARABLE DAMAGE TO THE APPLICANT . AT ANY STAGE IN THE NEW PROCEDURE FOR FILLING THE POST AT ISSUE AND IN THE COURSE OF ANY LEGAL PROCEEDINGS CONCERNING THAT PROCEDURE , THE APPLICANT WILL BE ABLE TO PUT FORWARD AGAINST THE APPOINTING AUTHORITY HIS CONTENTION THAT IT IS NOT ENTITLED TO TAKE INTO ACCOUNT MR MATH ' S SERVICE AS A TEMPORARY MEMBER OF STAFF .

9 THE PARTIES HAVE SET OUT THEIR POSITIONS AT LENGTH IN THE PLEADINGS AND SUBMITTED ALL THE DOCUMENTS TO WHICH IT IS NECESSARY TO HAVE REGARD IN DECIDING ON THE APPLICATION FOR INTERIM MEASURES AND THE COURT HAS NOT FOUND IT NECESSARY TO ORDER A PREPARATORY INQUIRY OR HEAR ORAL ARGUMENT FROM THE PARTIES .

10 UNDER THE TERMS OF ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , IT IS FOR THE APPLICANT TO ESTABLISH BOTH THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS MAKING OUT A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .

11 IN THIS INSTANCE IT IS SUFFICIENT TO POINT OUT , WITHOUT ITS BEING NECESSARY TO DISCUSS THE SECOND CONDITION LAID DOWN BY THAT PROVISION , THAT THE APPLICANT HAS NOT PUT FORWARD ANY GROUNDS CAPABLE OF ESTABLISHING THE URGENCY OF THE MEASURES SOUGHT .

12 IT APPEARS FROM THE INFORMATION RECEIVED BY THE COURT AT THIS STAGE THAT THE PROCEDURE FOR FILLING THE POST OF THE HEAD OF THE INSPECTION DIVISION OF THE EURATOM SAFEGUARDS DIRECTORATE IN THE DIRECTORATE-GENERAL FOR ENERGY HAS NOT YET BEEN COMPLETED . THE DECISION IN QUESTION IS MERELY A TRANSITIONAL MEASURE UNTIL 31 DECEMBER 1985 WHICH WAS ADOPTED IN ORDER TO ENSURE CONTINUITY IN THE SERVICE . THE APPLICANT WILL BE IN A POSITION TO STATE HIS CASE WITH REGARD TO THE ALLEGED ILLEGALITY OF THE DECISION OF 16 OCTOBER 1985 AT ANY STAGE IN THE COURSE OF THE CURRENT PROCEDURE FOR DEFINITIVELY FILLING THE POST . FURTHERMORE , SINCE THE ALLEGED ILLEGALITY OF THE DECISION IS ALSO THE BASIS OF HIS ACTION FOR ANNULMENT , THE APPLICANT WILL AUTOMATICALLY BE PLACED IN THE POSITION EXISTING PRIOR TO THE CONTESTED DECISION IF HE SUCCEEDS IN THAT ACTION . THAT BEING THE CASE , IT MUST BE HELD THAT THE APPLICANT HAS NOT SUCCEEDED IN ESTABLISHING THAT THE DECISION OF 16 OCTOBER 1985 CAUSES HIM IRREPARABLE DAMAGE JUSTIFYING THE GRANT OF INTERIM MEASURES BY THE COURT .

13 SINCE URGENCY IS ALSO NOT MADE OUT AS REGARDS THE ORDERS SOUGHT IN THE ALTERNATIVE , THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES MUST BE DISMISSED IN ITS ENTIRETY .

ON THOSE GROUNDS ,

THE PRESIDENT OF THE SECOND CHAMBER ,

UPON HEARING THE ADVOCATE GENERAL ,

ACTING PURSUANT TO ARTICLE 9 ( 4 ) AND ARTICLE 96 OF THE RULES OF PROCEDURE ,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .

( 2 ) COSTS ARE RESERVED .