ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL

25 April 2008

Case F-19/08 R

Kelly-Marie Bennett and Others

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Civil service – Interim measures – Application to suspend the operation of a measure – Competition notice – Urgency – None)

Application: brought under Articles 242 EC, 243 EC, 157 EA and 158 EA, in which three members of the temporary staff of OHIM seek suspension of Competition Notice OHIM/AD/02/07 – Administrators (AD 6) in the field of industrial property, published in the Official Journal of the European Union of 12 December 2007 (OJ C 300 A, p. 17), and nine other members of the temporary staff of OHIM seek suspension of Competition Notice OHIM/AST/02/07 – Assistants (AST 3) in the field of industrial property, published in the Official Journal of the European Union of 12 December 2007 (OJ C 300 A, p. 50).

Held: The application for interim measures 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 242 EC and 243 EC; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

2.      Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Serious and irreparable damage – Burden of proof

(Arts 242 EC and 243 EC; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))

1.      Under Article 102(2) of the Rules of Procedure of the Civil Service Tribunal 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent. 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 for interim relief enjoys a wide margin of discretion and remains free to determine, in light of the particular features of the case, the way in which those different conditions have to be verified and the order of priority of that examination, since there is no rule of Community law imposing on him a predetermined analytical model for assessing the need for an interim decision.

(see paras 15-17)

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. It is for the party applying for the grant of interim measures to adduce proof that it cannot await the outcome of the main action without suffering serious and irreparable damage of that kind. Although it is correct that, in order to establish the existence of serious and irreparable damage, it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the applicant is required to prove the facts forming the basis of his claim that serious and irreparable damage is likely.

Purely financial damage cannot, in principle, be regarded as irreparable, or even difficult to repair, because financial compensation can be made for it subsequently Similarly, the mere necessity of finding a job abroad does not, in itself, constitute serious and irreparable damage.

(see paras 24, 25, 27-28)

See:

C-65/99 P(R) Willeme v Commission [1999] ECR I‑1857, para. 62

T-549/93 R D. v Commission [1993] ECR II‑1347, para. 45; Elkaïm and Mazuel v Commission, para. 25; T-192/01 R Lior v Commission [2001] ECR II‑3657, para. 49; T-320/02 R Esch-Leonhardt and Others v ECB [2002] ECR-SC I‑A‑325 and II‑1555, para. 27

F-98/07 R Petrilli v Commission [2007] ECR-SC I-A-1-0000 and II-A-1-0000, para. 36; F-64/07 R S v Parliament [2008] ECR-SC I-A-1-0000 and II-A-1-0000, para. 31