61965O0018

++++

IN CASE 18/65 R

MAX GUTMANN, AN OFFICIAL OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ERNEST ARENDT, AVOCAT-AVOUE OF THE COUR D' APPEL, LUXEMBOURG, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, MR PRELLE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE SECRETARY OF THE LEGAL DEPARTMENT OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION TO SUSPEND THE OPERATION OF THE VACANCY NOTICE FOR THE POST OF PRINCIPAL ADMINISTRATOR IN CAREER BRACKET A5-A4 AT THE ISPRA CENTRE ( PRESS AND PUBLIC RELATIONS DEPARTMENT ),

WHEREAS IN HIS APPLICATION MR GUTMANN REQUESTS THAT THE OPERATION OF THE VACANCY NOTICE FOR THE POST WHICH HE PREVIOUSLY OCCUPIED AT ISPRA BE SUSPENDED;

WHEREAS THE COMMISSION OF THE EAEC CONTENDS THAT THE REQUEST IS INADMISSIBLE ON THE GROUND THAT MR GUTMANN IS NOT CHALLENGING THE VACANCY NOTICE IN QUESTION IN PROCEEDINGS BEFORE THE COURT;

WHEREAS ARTICLE 83(1 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION TO SUSPEND THE OPERATION OF ANY MEASURE IS ADMISSIBLE ONLY IF THE APPLICANT IS CHALLENGING THAT MEASURE IN PROCEEDINGS BEFORE THE COURT;

WHEREAS AN APPLICATION IS BEFORE THE COURT DIRECTED FORMALLY AGAINST THE DECISION OF 5 FEBRUARY 1965, BUT IN FACT AND IN SUBSTANCE AGAINST THE DECISION SUSPENDING MR GUTMANN FROM HIS DUTIES AT ISPRA AND AGAINST THE DECISION TRANSFERRING HIM TO BRUSSELS;

WHEREAS THE APPLICATION IN THE ABOVEMENTIONED MAIN ACTION MAY THUS HAVE A BEARING ON THE DECISIONS IN QUESTION WITH ALL THE CONSEQUENCES OF LAW THAT THIS ENTAILS, ESPECIALLY WITH REGARD TO THE ACTUAL EXISTENCE OF A VACANCY IN THE POST PREVIOUSLY OCCUPIED BY THE APPLICANT;

WHEREAS THE VACANCY NOTICE IN QUESTION HAS THE SOLE PURPOSE OF FILLING THE SAME POST AS THAT OCCUPIED BY THE APPLICANT UNTIL THE DATE OF THE CONTESTED DECISIONS AND THE VACANCY WHICH IS DISPUTED IN THE MAIN APPLICATION BEFORE THE COURT;

WHEREAS IF THE APPLICANT'S MAIN APPLICATION WERE TO BE GRANTED THIS MIGHT HAVE THE EFFECT OF MAKING THE VACANCY NOTICE IRRELEVANT;

WHEREAS, MOREOVER, THE PERIOD IN WHICH THE APPLICANT MAY LODGE AN APPEAL EXPRESSLY DIRECTED AGAINST THE VACANCY NOTICE ITSELF DOES NOT APPEAR TO HAVE EXPIRED; AND WHEREAS IT WOULD BE EXCESSIVELY FORMALISTIC IN AN APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE TO COMPEL THE PARTIES TO ENTER MULTIPLE PLEADINGS WHEN THE FACTS OF THE CASE SHOW THAT THE SUBJECT-MATTER OF THE MAIN APPLICATION AND OF THE APPLICATION FOR THE ADOPTION OF THE INTERIM MEASURE ARE SO LINKED AS CAUSE AND EFFECT THAT THE SECOND APPEARS AS THE INEVITABLE CONSEQUENCE OF THE FIRST;

WHEREAS A DECISION WITH REGARD TO THE SUSPENSION OF OPERATION APPLIED FOR DEPENDS BOTH ON AN ASSESSMENT OF THE INTERESTS OF THE SERVICE AND ON THE NEED TO SAFEGUARD ANY RIGHTS OF THE APPLICANT UNTIL JUDGMENT IS GIVEN IN THE MAIN APPLICATION;

WHEREAS IT APPEARS FROM THE FACTS OF THE CASE THAT THE CONTINUED FUNCTIONING OF THE PUBLIC RELATIONS AND PRESS DEPARTMENT OF THE JNCR AT ISPRA DOES NOT POSE ANY PARTICULAR PROBLEMS IN THE PRESENT STATE OF STAFFING;

WHEREAS IT HAS NOT BEEN CLAIMED THAT ITS ACTIVITIES HAVE BEEN INTERRUPTED OR HAVE FAILED;

WHEREAS THE CONSEQUENCES OF MR GUTMANN'S ABSENCE HAVE BEEN MITIGATED ADMITTEDLY TEMPORARILY BUT NONE THE LESS EFFECTIVELY SINCE 25 SEPTEMBER 1964;

WHEREAS THIS STATE OF AFFAIRS DOES NOT URGENTLY REQUIRE TO BE TERMINATED EVEN THOUGH IT CANNOT CONTINUE INDEFINATELY;

WHEREAS, MOREOVER, THERE IS AS YET NO NEED TO APPRAISE THE SERIOUSNESS OF THE MISCONDUCT ALLEGED AGAINST THE APPLICANT, EXAMINATION OF WHICH IS A MATTER FOR THE FINAL JUDGMENT, BUT IT IS NEVERTHELESS IN THE INTERESTS OF THE GOOD ADMINISTRATION OF JUSTICE TO ALLOW THE COURT TO DECIDE ON ALL THE FACTS OF THE CASE AT THEIR PRESENT STAGE WITHOUT THE INTRUSION OF NEW FACTORS WHICH COULD BE JUSTIFIED ONLY BY THE INTERESTS OF THE SERVICE;

WHEREAS THE INITIATION OF THE PROCEDURE FOR FILLING THE VACANT POST AT THIS TIME, UNLESS ABSOLUTELY NECESSARY, MIGHT INVOLVE CONSEQUENCES WHICH WOULD THWART THE EFFECTS OF THE JUDGMENT IN THE MAIN ACTION;

WHEREAS, MOREOVER, IT APPEARS THAT THE MAIN APPLICATION CAN BE DEALT WITH SPEEDILY;

WHEREAS, BEARING IN MIND THE NATURE AND PRESENT FUNCTIONING OF THE ADMINISTRATIVE UNIT PREVIOUSLY DIRECTED BY THE APPLICANT, A SHORT SUSPENSION OF OPERATION SEEMS COMPATIBLE WITH THE INTERESTS OF THE SERVICE;

1 . THE OPERATION OF VACANCY NOTICE NO V/IS/40/65 DATED 11 MARCH 1965 AND POSTED IN THE PREMISES OF EUROTOM IN BRUSSELS ON 24 MARCH 1965, ADVERTISING ' THE VACANT POST OF PRINCIPAL ADMINISTRATOR IN CAREER BRACKET A5-A4 ' AT THE ISPRA ESTABLISHMENT ( PRESS AND PUBLIC RELATIONS DEPARTMENT ) SHALL BE SUSPENDED UNTIL 15 JUNE 1965;

2 . THE COSTS ARE RESERVED .