61984O0141

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - CONDITIONS GOVERNING THE GRANT OF SUCH A MEASURE

( EEC TREATY , ART . 185 ; RULES OF PROCEDURE , ART . 83 ( 2 ))

THE MEASURES AVAILABLE UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE MAY BE GRANTED BY THE JUDGE RESPONSIBLE FOR GRANTING INTERIM RELIEF , PROVIDED THERE ARE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE ADOPTION OF SUCH MEASURES ; PROVIDED THERE IS AN URGENT NEED FOR THE MEASURES , THAT IS TO SAY IT IS NECESSARY , IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE , THAT THEY SHOULD BE ADOPTED AND COME INTO EFFECT BEFORE JUDGMENT IS DELIVERED ON THE SUBSTANCE OF THE CASE ; AND , FINALLY , PROVIDED THEY ARE PROVISIONAL , THAT IS TO SAY , THEY DO NOT PREJUDGE THE SUBSTANTIVE DECISION AND DO NOT DECIDE CONTESTED POINTS OF LAW OR OF FACT AT THAT EARLY STAGE OR NEUTRALIZE IN ADVANCE THE EFFECTS OF THE DECISION TO BE GIVEN SUBSEQUENTLY ON THE SUBSTANCE OF THE CASE .

IN CASE 141/84 R

HENRI DE COMPTE , AN OFFICIAL OF THE EUROPEAN PARLIAMENT , RESIDING AT 10 AVENUE GUILLAUME , LUXEMBOURG , REPRESENTED BY GASTON VOGEL OF THE LUXEMBOURG BAR ,

APPLICANT ,

V

EUROPEAN PARLIAMENT , REPRESENTED BY ITS SECRETARY-GENERAL , H . J . OPITZ , ACTING AS AGENT , ASSISTED BY M . PETER , HEAD OF THE DIVISION FOR LEGAL AND ADMINISTRATIVE AFFAIRS , AND BY R . ANDERSEN OF THE BRUSSELS BAR , 214 AVENUE MONTJOIE , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE SECRETARIAT GENERAL OF THE EUROPEAN PARLIAMENT , KIRCHBERG ,

DEFENDANT ,

APPLICATION TO SUSPEND THE OPERATION OF THE DECISION DATED 24 MAY 1984 BY WHICH THE PRESIDENT OF THE EUROPEAN PARLIAMENT DOWNGRADED MR DE COMPTE FROM GRADE A 3 , STEP 8 TO GRADE A 7 , STEP 6 , AS A DISCIPLINARY MEASURE .

1 ACCORDING TO ARTICLE 185 OF THE EEC TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED MEASURE BE SUSPENDED . IT MAY ALSO PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURE .

2 ACCORDING TO ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT , THE SUSPENSION OF OPERATION OF A MEASURE OR THE ADOPTION OF ANY OTHER INTERIM MEASURE IS SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND OF GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE ADOPTION OF SUCH A MEASURE .

3 IN NUMEROUS PREVIOUS CASES THE COURT HAS HELD THAT SUCH A MEASURE MAY BE ADOPTED BY THE JUDGE RESPONSIBLE FOR GRANTING INTERIM RELIEF PROVIDED THERE ARE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR ITS ADOPTION ; PROVIDED THERE IS AN URGENT NEED FOR THE MEASURE , THAT IS TO SAY IT IS NECESSARY , IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE , THAT IT SHOULD BE ADOPTED AND COME INTO EFFECT BEFORE JUDGMENT IS DELIVERED ON THE SUBSTANCE OF THE CASE ; AND , FINALLY , PROVIDED THE MEASURE IS PROVISIONAL , THAT IS TO SAY , IT DOES NOT PREJUDGE THE SUBSTANTIVE DECISION AND IT DOES NOT DECIDE CONTESTED POINTS OF LAW OR OF FACT AT THAT EARLY STAGE OR NEUTRALIZE IN ADVANCE THE EFFECTS OF THE DECISION TO BE GIVEN SUBSEQUENTLY ON THE SUBSTANCE OF THE CASE .

THE REQUIREMENT OF URGENCY AND THE EXISTENCE OF SERIOUS AND IRREPARABLE DAMAGE

4 IN PRINCIPLE , PURELY PECUNIARY DAMAGE CANNOT BE REGARDED AS IRREPARABLE OR EVEN AS DIFFICULT TO REPAIR SINCE , IN THEORY , IT MAY BE THE SUBJECT OF SUBSEQUENT FINANCIAL COMPENSATION , AS THE COURT HAS HELD ON SEVERAL OCCASIONS ( ORDER OF 17 . 9 . 1974 IN CASE 62/74 R VELOZZI V COMMISSION ( 1974 ) ECR 895 ; ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF 22 . 5 . 1980 IN CASE 33/80 R ALBINI V COUNCIL AND COMMISSION ( 1980 ) ECR 1671 ). NEVERTHELESS , THE JUDGE HEARING THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES MUST EXAMINE THE CIRCUMSTANCES OF EACH CASE . HE MUST CONSIDER THOSE MATTERS ENABLING IT TO BE ESTABLISHED WHETHER IMMEDIATE APPLICATION OF THE DECISION IN QUESTION IS LIKELY TO INVOLVE THE APPLICANT IN IRREVERSIBLE DAMAGE WHICH COULD NOT BE MADE GOOD EVEN IF THE DECISION WERE TO BE ANNULLED AND WHICH IN SPITE OF ITS PROVISIONAL NATURE WOULD BE DISPROPORTIONATE TO THE INTEREST OF THE INSTITUTION IN QUESTION , PURSUANT TO ARTICLE 185 OF THE TREATY , IN HAVING ITS DECISIONS APPLIED EVEN WHEN THEY ARE THE SUBJECT OF AN APPLICATION TO THE COURT ( ORDER OF 21 . 8 . 1980 IN CASE 174/80 R REICHARDT V COMMISSION ( 1980 ) ECR 2665 ).

5 IN THE PARTICULAR CIRCUMSTANCES OF THIS CASE IT IS CLEAR BOTH FROM AN EXAMINATION OF THE PARTIES ' WRITTEN SUBMISSIONS , IN PARTICULAR THE ANNEXES PRODUCED BY MR DE COMPTE IN SUPPORT OF HIS APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , AND FROM THE HEARING BEFORE THE JUDGE CONSIDERING THAT APPLICATION , THAT THE VERY SUBSTANTIAL REDUCTION IN MR DE COMPTE ' S REMUNERATION WHICH WOULD RESULT FROM AN IMMEDIATE APPLICATION OF THE CONTESTED DECISION WOULD COMPEL HIM TO SELL HIS PROPERTY ON UNFAVOURABLE TERMS AND THUS BE PERMANENTLY DEPRIVED OF A PART OF HIS ASSETS . EVEN IF THE COURT SUBSEQUENTLY GAVE JUDGMENT IN HIS FAVOUR WITH REGARD TO THE SUBSTANCE OF THE CASE , HE WOULD NOT BE ABLE TO RECOVER THE PROPERTY HE HAD LOST ON THE SAME TERMS .

6 FURTHERMORE , THE MEASURE SOUGHT IN THIS CASE IS CLEARLY URGENT . IN THE FIRST PLACE , THE DOWNGRADING WAS TO TAKE EFFECT FROM 15 JUNE 1984 ; SECONDLY , THE IMMEDIATE SUBSTANTIAL REDUCTION IN THE APPLICANT ' S SALARY WOULD FORCE HIM , AS HE STATED AT THE HEARING WITHOUT BEING CONTRADICTED , TO SELL AN APARTMENT WITH AS LITTLE DELAY AS POSSIBLE IN ORDER TO BE ABLE TO MEET HIS VARIOUS OBLIGATIONS .

7 MOREOVER , AS THE EUROPEAN PARLIAMENT ACCEPTED AT THE HEARING , THE FACT THAT MR DE COMPTE CONTINUES TO RECEIVE THE SALARY ATTACHING TO GRADE A 3 FOR SEVERAL MORE MONTHS UNTIL THE COURT GIVES JUDGMENT DOES NOT DETRACT FROM THE ORGANIZATION OF THE PUBLIC SERVICE OR INVOLVE ANY RISK OF PERMANENT LOSS SINCE THE PARLIAMENT IS CERTAIN TO BE ABLE TO RECOVER ANY SUMS OVERPAID IF THE COURT DISMISSES THE APPLICATION FOR ANNULMENT .

8 IN THOSE CIRCUMSTANCES THE REQUIREMENT OF URGENCY AND THE EXISTENCE OF SERIOUS DAMAGE WHICH WOULD BE DIFFICULT TO REPAIR , IN THE EVENT OF THE CONTESTED DECISION ' S BEING APPLIED IMMEDIATELY , MUST BE REGARDED AS SATISFIED .

THE EXISTENCE OF GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUSPENDING THE OPERATION OF THE CONTESTED DECISION

9 IT MUST BE NOTED FIRST THAT THE PARLIAMENT REFRAINED FROM REPLYING , IN THE PROCEEDINGS ON THE APPLICATION FOR INTERIM RELIEF , TO THE APPLICANT ' S SUBMISSIONS IN SUPPORT OF HIS APPLICATION FOR ANNULMENT . IT IS THEREFORE IMPOSSIBLE FOR THE JUDGE HEARING THE APPLICATION FOR INTERIM RELIEF TO COME TO A CLEAR CONCLUSION , ON THE BASIS OF THE EVIDENCE AVAILABLE AT THIS STAGE , WITH REGARD TO THE RELEVANCE , ACCURACY AND NATURE OF THE CONTESTED FACTS .

10 SUCH SILENCE ON THE PART OF THE EUROPEAN PARLIAMENT DOES NOT MEAN THAT IT MAY BE REGARDED AS ACQUIESCING IN THE SUBMISSIONS MADE BY THE APPLICANT , NOR , CONVERSELY , MAY IT DEPRIVE THE APPLICANT OF THE RIGHT TO HAVE HIS APPLICATION TO SUSPEND THE OPERATION OF THE DECISION IN QUESTION EXAMINED WITH ALL THE NECESSARY CARE AND DILIGENCE .

11 IN THOSE CIRCUMSTANCES THE JUDGE RESPONSIBLE FOR GRANTING INTERIM RELIEF MUST LIMIT HIMSELF TO TAKING NOTE OF THOSE FACTORS WHICH SHOW THAT THERE IS A REAL DISPUTE BEFORE HIM AND THAT THE APPLICANT ' S CLAIM IS SUPPORTED BY SOUND ARGUMENTS . IN THIS CASE THOSE FACTORS ARE AS FOLLOWS :

( 1 ) THE DISCIPLINARY BOARD , ON COMPLETION OF A SEARCHING INQUIRY , WAS IN FAVOUR OF IMPOSING A VERY MILD SANCTION , WHEREAS THE SANCTION ULTIMATELY IMPOSED WAS SOMEWHAT SEVERE .

( 2)ON 10 APRIL 1984 THE EUROPEAN PARLIAMENT GRANTED TO MR DE COMPTE , BY A SUBSTANTIAL MAJORITY , ON THE BASIS OF A REPORT DRAWN UP BY ITS COMMITTEE ON BUDGETARY CONTROL , A FINAL DISCHARGE IN RESPECT OF THE ACCOUNTING YEAR IN QUESTION . IT IS TRUE THAT THE FINAL DISCHARGE PROCEDURE , WHICH IS INTENDED TO DETERMINE WHETHER THE ACCOUNTS ARE ACCURATE AND IN THE PROPER FORM , IS DIFFERENT FROM DISCIPLINARY PROCEEDINGS , WHICH ARE INTENDED TO DETERMINE THE ACCOUNTANT ' S RESPONSIBILITY . NEVERTHELESS , FOLLOWING THE METICULOUS EXAMINATION OF MR DE COMPTE ' S ACTIVITIES UNDERTAKEN BY THE PARLIAMENT ' S COMMITTEE ON BUDGETARY CONTROL ITS APPRAISAL OF THE APPLICANT ' S RESPONSIBILITY IN RELATION TO THE PRINCIPAL COMPLAINTS MADE AGAINST HIM IS FAR REMOVED FROM THAT OF THE APPOINTING AUTHORITY .

( 3)FINALLY , THE APPOINTING AUTHORITY EXHIBITED GREAT UNCERTAINTY IN RELATION TO THE SEVERITY OF THE DISCIPLINARY MEASURE TO BE IMPOSED ON THE APPLICANT . HAVING DECIDED ON 16 MARCH 1984 THAT THE APPLICANT SHOULD BE REMOVED FROM HIS POST , IT CHANGED THAT MEASURE ON 24 MAY 1984 TO DOWNGRADING TO GRADE A 7 . THAT UNCERTAINTY IS DISQUIETING IN SO FAR AS THE APPOINTING AUTHORITY HAS NOT EXPLAINED THE REASONS FOR ITS CHANGE OF VIEW . IN FACT THE DISCIPLINARY MEASURE IMPOSED ON 24 MAY , WHICH IS THE SUBJECT OF THIS APPLICATION FOR INTERIM RELIEF , SIMPLY REFERS TO THE REASONS GIVEN IN SUPPORT OF THE INITIAL DECISION TO REMOVE THE APPLICANT FROM HIS POST , REASONS WHICH WERE FORMULATED BEFORE THE EUROPEAN PARLIAMENT GRANTED HIM A FINAL DISCHARGE AND BEFORE THE PUBLICATION OF THE REPORT DRAWN UP BY THE COMMITTEE ON BUDGETARY CONTROL .

12 THE AFOREMENTIONED FACTS CLEARLY CANNOT IN ANY WAY PREJUDGE THE ISSUE OF THE LEGALITY OR OTHERWISE OF THE CONTESTED DISCIPLINARY MEASURE . NEVERTHELESS , IN THE ABSENCE OF ANY RESPONSE ON THE PART OF THE PARLIAMENT , IN THE COURSE OF THE PROCEEDINGS ON THE APPLICATION FOR INTERIM RELIEF , TO THE SUBMISSIONS MADE BY THE APPLICANT IN SUPPORT OF THE CLAIM FOR ANNULMENT OF THE DECISION , THE FACTORS MENTIONED ABOVE LEAD TO THE CONCLUSION THAT THE APPLICANT HAS ESTABLISHED AT LEAST A PRIMA FACIE CASE FOR THE INTERIM MEASURE APPLIED FOR , WITHIN THE MEANING OF ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE .

13 IN THOSE CIRCUMSTANCES THE APPLICATION TO SUSPEND THE OPERATION OF THE MEASURE IN QUESTION MUST BE GRANTED .

COSTS

14 IT IS APPROPRIATE , AT THIS STAGE , TO RESERVE COSTS .

ON THOSE GROUNDS ,

THE PRESIDENT OF THE THIRD CHAMBER , ACTING ON BEHALF OF THE PRESIDENT OF THE COURT ,

BY WAY OF INTERIM DECISION ,

HEREBY ORDERS AS FOLLOWS :

1 . THE OPERATION OF THE DECISION OF 24 MAY 1984 IMPOSING ON MR DE COMPTE THE DISCIPLINARY MEASURE OF DOWNGRADING TO GRADE A 7 , STEP 6 , SHALL BE SUSPENDED UNTIL THE COURT GIVES JUDGMENT IN THE MAIN ACTION .

2.THE COSTS ARE RESERVED .