ORDER OF THE VICE-PRESIDENT OF THE COURT

28 March 2023 (*)

(Interim relief – Article 278 TFEU – Appeal – Application for suspension of operation of a measure – Judgment of the General Court of the European Union given by default – Urgency – Pecuniary damage)

In Case C‑785/22 P-R,

APPLICATION for suspension of operation under Article 278 TFEU, lodged on 27 December 2022,

Eulex Kosovo, established in Pristina (Kosovo), represented by L.‑G. Wigemark, acting as Agent, and by E. Raoult, avocate,

appellant,

the other party to the proceedings being:

SC, represented by A. Kunst, Rechtsanwältin,

applicant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By its application for interim measures, Eulex Kosovo, which is the European Union Rule of Law Mission in Kosovo and which was created by Council Joint Action 2008/124/CFSP of 4 February 2008 (OJ 2008 L 42, p. 92), asks the Court, pursuant to Article 278 TFEU, to order the suspension of operation of the judgment of the General Court of the European Union of 19 October 2022, SC v Eulex Kosovo (T‑242/17 RENV, not published, ‘the judgment under appeal’, EU:T:2022:637).

2        That application was made in parallel with an appeal brought by Eulex Kosovo on 8 March 2023 under Article 56 of the Statute of the Court of Justice of the European Union seeking to have the judgment under appeal set aside.

 Background to the dispute

3        The background to the dispute is set out in paragraphs 2 to 17 of the judgment under appeal. It may, for the purposes of the present interlocutory proceedings, be summarised as follows.

4        SC was employed by Eulex Kosovo as a prosecutor, with the status of international contractual staff, on the basis of five consecutive fixed-term contracts during the period from 4 January 2014 to 14 November 2016.

5        On 1 July 2014, SC’s direct supervisor notified her that an internal competition was being organised for the post of prosecutor. The internal competition took place in summer 2014 and was subsequently annulled.

6        In 2014, Eulex Kosovo requested the applicant on several occasions to take a driving test. The applicant failed that test three times during that period, in the last place on 22 October 2014. In September and October 2014, the applicant provided the human resources unit of Eulex Kosovo with documents attesting that she had a disability affecting her hand. Subsequently, she was again asked to take a driving test.

7        On 24 June 2016, SC was informed by letter from Eulex Kosovo’s human resources unit that a new internal competition for the post of prosecutor was planned for July 2016. By letter from the head of the human resources unit of 30 September 2016, SC was informed that she had not passed that competition. By the same letter, SC was informed that her final employment contract, which expired on 14 November 2016, would not be renewed and that the arrangements in respect thereof would be notified to her at a later date.

8        By letter of 10 October 2016, SC lodged a complaint with the Head of Eulex Kosovo against the decision not to accept her application following the 2016 internal competition and the decision not to renew her final employment contract. By letter of 31 October 2016, the Head of Eulex Kosovo rejected that complaint.

 The procedure before the General Court and the Court of Justice, and the judgment under appeal

9        By application lodged at the Registry of the General Court on 25 April 2017, SC brought an action comprising, in essence, four heads of claim. The first and second heads of claim requested the General Court to find that Eulex Kosovo had failed to fulfil its contractual and non-contractual obligations. By the third head of claim, SC asked the General Court to rule that the decision not to accept her application following the 2016 internal competition and the decision not to renew her final contract of employment were unlawful. The fourth head of claim sought an order that Eulex Kosovo pay compensation for the material and non-material damage which resulted from the breach of its contractual and non-contractual obligations.

10      By order of 19 September 2018, SC v Eulex Kosovo (T‑242/17, EU:T:2018:586), the General Court dismissed that action, pursuant to Article 126 of its Rules of Procedure, as in part manifestly inadmissible and in part manifestly lacking any foundation in law.

11      By judgment of 25 June 2020, SC v Eulex Kosovo (C‑730/18 P, EU:C:2020:505), the Court of Justice set aside that order and referred the case back to the General Court.

12      By letter of 2 June 2021, Eulex Kosovo was set a deadline by the General Court within which it was required to lodge a defence. As Eulex Kosovo failed to submit that defence within that period, the applicant, by document lodged at the Registry of the General Court on 22 November 2021, applied to the General Court, pursuant to Article 123(1) of its Rules of Procedure, for judgment by default.

13      By the judgment under appeal, the General Court, pursuant to that provision, ordered Eulex Kosovo to pay SC compensation in respect of the material damage suffered equivalent to 19 months’ gross salary, together with compensation for the non-material damage suffered, assessed ex aequo et bono at EUR 50 000.

 Forms of order sought

14      Eulex Kosovo requests the Court to order the suspension of operation of the judgment under appeal until the Court of Justice has ruled on the appeal brought against the judgment under appeal.

15      SC claims that the Court should:

–        dismiss the application for interim measures; and

–        order Eulex Kosovo to pay the costs.

 The application for interim measures

 The jurisdiction of the Vice-President of the Court and the admissibility of the application for interim measures

 Arguments

16      SC submits, in the first place, that the suspension of a judgment of the General Court given by default is governed by Article 123(4) of the Rules of Procedure of the General Court. Since that provision confers jurisdiction on the General Court to order such a suspension, the judge hearing applications for interim measures at the Court of Justice has no jurisdiction in that regard.

17      In the second place, SC raises a plea of inadmissibility alleging that Eulex Kosovo no longer has any legal interest in obtaining suspension of the judgment under appeal, in so far as SC, in her observations on Eulex Kosovo’s application before the General Court to have the judgment given by default set aside under Article 166 of its Rules of Procedure, stated that she would not seek enforcement of that judgment before the General Court had ruled on that application.

 Assessment

18      As regards, first, the argument that the judge hearing applications for interim measures at the Court of Justice has no jurisdiction to rule on the present application for interim measures, it should be noted that Article 123(4) of the Rules of Procedure of the General Court provides, inter alia, that the General Court may grant a stay of execution of a judgment by default until it has given its decision on an application under Article 166 of those Rules of Procedure to set aside the judgment.

19      Moreover, pursuant to Article 278 TFEU, read in conjunction with Article 39 of the Statute of the Court of Justice of the European Union, Article 161(1) of the Rules of Procedure of the Court of Justice and Article 1 of Decision 2012/671/EU of the Court of Justice of 23 October 2012 concerning the judicial functions of the Vice-President of the Court (OJ 2012 L 300, p. 47), the Vice-President of the Court may, if he or she considers that the circumstances so require, order that application of an act contested before the Court be suspended.

20      In that context, it must be stated that the power thus conferred on the Vice-President of the Court of Justice does not have the same purpose as that conferred on the General Court by Article 123(4) of its Rules of Procedure.

21      It is true that the Vice-President of the Court of Justice may, pursuant to Article 278 TFEU, suspend a judgment of the General Court which has been the subject of an appeal.

22      However, while suspension of a judgment by default ordered under Article 123(4) of the Rules of Procedure of the General Court produces its effects until the General Court has ruled on an application brought against that judgment, the measures adopted by the judge hearing the application for interim measures in the context of an application for interim measures ancillary to an appeal cease to apply, at the latest, at the end of the appeal proceedings (see, to that effect, order of 4 February 2022, Czech Republic v Poland (Turów mine), C‑121/21, not published, EU:C:2022:82, paragraphs 24 and 25), even if those proceedings are conducted when an application to set aside a judgment by default has not been brought before the General Court or when the latter has not yet ruled on such an application brought before it.

23      Thus, the procedure laid down in Article 123(4) of the Rules of Procedure of the General Court is intended to ensure the effectiveness of the procedure to set aside a judgment by default conducted before the General Court, whereas the purpose of the procedure for interim relief before the Court of Justice is to guarantee the full effectiveness of the future final decision of the Court of Justice, in order to prevent a lacuna in the legal protection afforded by the latter, by ensuring that serious and irreparable damage will not be caused to the party seeking the interim relief pending that final decision (see, to that effect, order of 2 July 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18 R, EU:C:2019:575, paragraph 60).

24      In those circumstances, it cannot be held that the jurisdiction conferred on the General Court by Article 123(4) of its Rules of Procedure is necessarily to the exclusion of the jurisdiction of the Vice-President of the Court of Justice to order an interim measure.

25      As regards, second, the plea of inadmissibility raised by SC, it must be pointed out that it is open to the judge hearing the application for interim measures to dismiss an application for interim measures on the merits without first ruling on the plea of inadmissibility raised before him or her if the proper administration of justice justifies such dismissal (see, by analogy, judgments of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 193, and of 28 January 2016, Quimitécnica.com and de Mello v Commission, C‑415/14 P, not published, EU:C:2016:58, paragraph 45).

26      In the present case, it is necessary to examine the merits of the present application for interim measures without ruling on that plea of inadmissibility.

 Substance

 Arguments

27      Eulex Kosovo submits that its appeal establishes to the requisite legal standard that the adversarial review of the action at first instance will lead the General Court to alter the result of the default proceedings, since that action lacks grounds in fact and in law.

28      In its submission, in view of the serious grounds on which the appeal is based and the disproportionate nature of the compensation granted by the General Court, it is appropriate to order suspension of operation of the judgment under appeal.

29      SC submits that the appeal is manifestly inadmissible, that it is not possible to determine whether or not the appeal is well founded, and that the condition relating to urgency is not satisfied.

 Assessment

30      It should be recalled that Article 160(3) of the Rules of Procedure of the Court of Justice provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

31      Accordingly, the court hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prime facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before judgment is given on the merits. The court hearing the application for interim relief must, where appropriate, also weigh up the interests involved. Those conditions are cumulative, so that an application for interim measures must be dismissed if one of them is not met (order of 8 April 2020, Commission v Poland, C‑791/19 R, EU:C:2020:277, paragraph 51 and the case-law cited).

32      The judge hearing the application for interim measures has a wide discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the Vice-President of the Court of 16 July 2021, ACER v Aquind, C‑46/21 P-R, not published, EU:C:2021:633, paragraph 16).

33      In the present case, it is appropriate to begin by examining the condition relating to urgency.

34      According to the settled case-law of the Court, the purpose of interlocutory proceedings is to guarantee the full effectiveness of the final future decision in order to ensure that there is no lacuna in the legal protection afforded by the Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim protection. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that nature. 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 is sufficient to show that damage is foreseeable with a sufficient degree of probability (order of 17 December 2018, Commission v Poland, C‑619/18 R, EU:C:2018:1021, paragraph 60 and the case-law cited).

35      On the assumption that the application for interim measures must be understood as meaning that Eulex Kosovo seeks to rely on a risk of serious and irreparable damage occurring, when it states that the judgment under appeal ordered it to pay compensation that is disproportionate, it must be borne in mind that damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable, since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage (see, to that effect, order of the Vice-President of the Court of 3 June 2022, Romania v Parliament and Council, C‑547/20 R, EU:C:2022:446, paragraph 40 and the case-law cited).

36      However, Eulex Kosovo does not in any way explain, in the application for interim measures, why it should be considered that payment to SC of the compensation awarded in the judgment under appeal is liable to cause it irreparable damage.

37      In particular, it does not claim, and a fortiori has not established, that the harm at issue could not be quantified or that SC would not be able to repay the amounts paid to her, should the Court ultimately set aside the judgment under appeal.

38      In those circumstances, it must be held that Eulex Kosovo has not established that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable financial damage and, therefore, that the condition relating to urgency is satisfied.

39      Having regard to the fact that the conditions for the grant of interim measures are cumulative, the application for interim measures must therefore be dismissed, without it being necessary to rule on SC’s argument that the appeal is manifestly inadmissible or to examine the conditions relating to a prima facie case and the weighing up of the interests involved.

 Costs

40      In accordance with Article 137 of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.

On those grounds, the Vice-President of the Court hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 28 March 2023.

*      Language of the case: English.