61974O0023

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IN CASE 23/74 R

BERTHOLD KUESTER, AN OFFICIAL OF THE EUROPEAN PARLIAMENT, REPRESENTED BY VICTOR BIEL, ADVOCATE OF THE LUXEMBOURG BAR, OF 71, RUE DES GLACIS, LUXEMBOURG, APPLICANT,

V

EUROPEAN PARLIAMENT, REPRESENTED BY ALEX BONN, ADVOCATE OF THE LUXEMBOURG BAR, OF 22 COTE D'EICH, LUXEMBOURG, DEFENDANT,

APPLICATION TO SUSPEND THE OPERATION OF ANY MEASURE INTENDED TO FILL THE VACANT POST OF HEAD OF DIVISION OF THE SECRETARIAT OF THE COMMITTEE ON PUBLIC HEALTH AND THE ENVIRONMENT OF THE EUROPEAN PARLIAMENT,

1 BY HIS INTERIM APPLICATION MR KUESTER REQUESTS THE COURT TO SUSPEND ANY MEASURE INTENDED TO FILL THE VACANT POST OF HEAD OF DIVISION OF THE SECRETARIAT OF THE COMMITTEE ON PUBLIC HEALTH AND THE ENVIRONMENT .

2 THE EUROPEAN PARLIAMENT PLEADS THE INADMISSIBILITY OF THIS REQUEST ON THE GROUNDS THAT ITS SUBJECT-MATTER IS DIFFERENT FROM THAT OF THE MAIN APPEAL .

3 UNDER THE SECOND PARAGRAPH OF ARTICLE 83 ( 1 ) AN APPLICATION TO SUSPEND THE OPERATION OF ANY MEASURE 'SHALL BE ADMISSIBLE ONLY IF IT IS MADE BY A PARTY TO A CASE BEFORE THE COURT AND IF IT RELATES TO THAT CASE '.

4 THE OBJECT OF THE APPLICATION IN QUESTION IS TO PREVENT ONE OF THE OFFICIALS PROMOTED FOLLOWING COMPETITION NO 43/A FROM BEING APPOINTED TO THE POST OF SECRETARY OF THE COMMITTEE ON PUBLIC HEALTH AND THE ENVIRONMENT .

5 THIS APPLICATION REFERS IN EFFECT TO THE SUBMISSIONS IN THE PLEADINGS IN THE MAIN APPEAL, ONE OF WHICH TENDS TO ESTABLISH THAT THE APPLICANT IS THE DE FACTO HOLDER OF THE SAID POST, THE OTHER AIMING AT THE ANNULMENT OF COMPETITION NO 43/A .

6 THE APPLICATION TO SUSPEND THE OPERATION OF THE MEASURE, FULFILLING THE CONDITIONS LAID DOWN IN ARTICLE 83 ( 1 ), IS THEREFORE ADMISSIBLE .

7 THE APPLICANT MAINTAINS THAT IF THE POST OF SECRETARY OF THE COMMITTEE ON PUBLIC HEALTH AND THE ENVIRONMENT WAS IMMEDIATELY FILLED THIS WOULD CAUSE IRREPARABLE HARM TO HIS RIGHTS AND INTERESTS .

8 ANNULMENT OF COMPETITION NO 43/A WOULD ENSURE THE APPLICANT'S APPOINTMENT TO THE SAID SECRETARIAT ONLY IF THIS POST REMAINED VACANT DURING THE MAIN APPEAL .

9 MOREOVER, THE PARLIAMENT WOULD NOT SUFFER ANY DETRIMENT FROM THE SUSPENSION OF OPERATION .

10 ARTICLE 7 ( 1 ) OF THE STAFF REGULATIONS PROVIDES THAT THE OFFICIAL SHALL BE ASSIGNED TO A POST IN HIS CATEGORY .

11 ON THE OTHER HAND, APPRAISAL OF AN OFFICIAL'S ABILITY TO UNDERTAKE A PARTICULAR DUTY FALLS WITHIN THE COMPETENCE OF THE ADMINISTRATION .

12 CONSEQUENTLY, THE APPLICANT CANNOT CLAIM A RIGHT TO A PARTICULAR POST WITH THE SECRETARIAT OF THE COMMITTEE ON PUBLIC HEALTH AND THE ENVIRONMENT .

13 EVEN SUPPOSING THAT HE WERE TO SUCCEED IN HIS MAIN ACTION AND WAS SUBSEQUENTLY PROMOTED TO GRADE A 3, IT WOULD NEVERTHELESS BE FOR THE APPOINTING AUTHORITY TO DECIDE THE POST TO WHICH HE OUGHT TO BE ASSIGNED .

14 HIS CLAIM THAT A PARTICULAR POST BE RESERVED FOR HIM UNTIL THE CONCLUSION OF THE MAIN APPEAL, MUST THEREFORE BE DISMISSED .

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

THE PRESIDENT

AS AN INTERIM RULING,

ORDERS

1 . THE INTERIM APPLICATION IS DISMISSED;

2 . THE COSTS ARE RESERVED .