ORDER OF THE PRESIDENT OF THE CIVIL SERVICE TRIBUNAL
8 September 2011
Case F-51/11 R
(Civil service – Procedure for interim relief – Application for suspension of operation of a measure)
Application: brought under Articles 278 TFEU and 157 EA and also Article 279 TFEU, applicable to the EAEC Treaty pursuant to Article 106a thereof, whereby Mr Pachitis seeks suspension of the operation of the decision of 14 February 2011 of the European Personnel Selection Office (EPSO) inviting him to re-sit the tests for access to Open Competition EPSO/AD/77/06, in application of the judgment of the Civil Service Tribunal of 15 June 2010 in Case F-35/08 Pachitis v Commission (under appeal before the General Court of the European Union in Case T-361/10 P).
Held: The application for interim measures is dismissed.
1. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Cumulative nature – Balancing of all the interests involved – Order of examination and means of verification – Discretion of the judge dealing with the application for interim relief
(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 102(2))
2. Applications for interim measures – Suspension of operation of a measure – Conditions of admissibility – Prima facie admissibility of the main action
(Art. 278 TFEU; Rules of Procedure of the Civil Service Tribunal, Article 102(2))
3. Officials – Actions – Act adversely affecting an official – Preparatory act
(Staff Regulations of officials, Arts 90 and 91)
4. Actions for annulment – Action brought against a decision confirming a decision which was not contested within the prescribed period – Inadmissibility
1. The conditions relating to the urgency of the application and a prima facie case (fumus boni juris) are cumulative, so that an application for interim measures must be dismissed where one of those conditions is not satisfied. Where appropriate, the judge hearing the application will 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, in the light of the particular features of the case, the way in which those various conditions must be verified and also the order in which they will be examined, since there is no rule of law imposing a pre-established plan for determining the necessity to make an interim order.
(see paras 15, 16)
10 September 1999, T-173/99 R Elkaïm and Mazuel v Commission, para. 18
3 July 2008, F-52/08 R Plasa v Commission, paras 21 and 22 and the case-law cited
2. The question of the admissibility of the main action must not, in principle, be examined in the context of an application for interim measures, but must be reserved for the analysis of that action, save where it is prima facie manifestly inadmissible. To rule, at the stage of the proceedings for interim measures, on the admissibility of the main action, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Tribunal’s decision on the main action.
(see para. 17)
4 February 1999, T-196/98 R Peña Abizanda and Others v Commission, para. 10 and the case-law cited
14 December 2006, F-126/06 R Dálnoky v Commission, para. 41
3. The mere invitation to sit tests giving access to a competition is not an act adversely affecting the person concerned, since it does not affect the possibility for the candidate to be successful in the tests in question and then to obtain marks in the competition tests that will allow him to be included on the reserve list.
(see para. 21)
22 June 1990, T-32/89 and T-39/89 Marcopoulos v Court of Justice, para. 22
23 September 2009, F-22/05 RENV Neophytou v Commission, para. 71
4. An action for annulment brought against a decision which merely confirms an earlier decision which was not challenged within the period prescribed for that purpose is inadmissible. A decision is a mere confirmation of an earlier decision if it contains no new factors by comparison with the earlier measure and was not preceded by any re-examination of the situation of the person to whom the earlier measure was addressed.
(see para. 28)
9 March 1978, 54/77 Herpels v Commission, paras 11 to 14; 10 December 1980, 23/80 Grasselli v Commission, para. 18
26 October 200, T-83/99 to T-85/99 Ripa di Meana and Others v Parliament, paras 33 and 34
19 December 2006, F-78/06 Suhadolnik v Court of Justice, paras 31 and 32; 15 July 2008, F-28/08 Pouzol v Court of Auditors, para. 45