Avis juridique important

Order of the President of the Court of First Instance of 18 August 1995. - Giorgio Bernardi v European Parliament. - Ombudsman - Nominations - Appointment procedure - Suspension. - Case T-146/95 R European Court reports 1995 Page II-02255

Parties Grounds Operative part

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Applications for interim measures ° Interim measures ° Conditions for granting ° Serious and irreparable damage ° Balancing of all the interests involved ° Application for the suspension of the procedure for the appointment of the Ombudsman

(EC Treaty, Art. 186; Rules of Procedure of the Court of First Instance, Art. 104(2); Rules of Procedure of the European Parliament, Rule 159(7))

In Case T-146/95 R,

Giorgio Bernardi, a former official of the European Parliament, residing in Luxembourg, represented by Giancarlo Lattanzi, of the Bar of Massa-Carrara (Italy), with an address for service in Luxembourg at the applicant' s address, 33 Rue Godchaux,

applicant,

v

European Parliament, represented by Ezio Perillo and Christian Pennera, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the Secretariat of the European Parliament,

defendant,

APPLICATION for the adoption of interim measures suspending the procedure for the appointment of the Ombudsman and for a number of directions to be issued to the European Parliament concerning the subsequent conduct of that procedure,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts and procedure

1 By application lodged at the Registry of the Court of Justice on 2 July 1995, the applicant brought an action, registered under number C-228/95, for the annulment of several acts adopted by the European Parliament pursuant to Article 138e of the Treaty establishing the European Community, in particular Rule 159 of the Rules of Procedure of the European Parliament, as amended on 16 May 1995, the notice entitled "Call for nominations for the office of Ombudsman", published on 23 May 1995 (OJ 1995 C 127, p. 4) and the other related and consequential acts concerning the procedure for consideration of the nominations for the office of Ombudsman, in particular the letter of the Secretary-General of the European Parliament of 15 June 1995 and, hence, to the reopening by the European Parliament, of the procedure for the appointment of the Ombudsman.

2 By a separate document lodged at the Registry of the Court of Justice on 2 July 1995, the applicant brought, under Article 186 of the EC Treaty and Article 83 of the Rules of Procedure of the Court of Justice, an application for interim relief, registered under number C-228/95 R, seeking interim measures, in particular to have the nomination procedure for the office of Ombudsman suspended and that the following directions be issued to the European Parliament: that the nomination of the applicant, together with supporting documents, copies of the application in the main proceedings and the application for interim relief, translated, if necessary, into the eleven official languages, be forwarded to all the Members of the European Parliament; that the applicant be heard before the vote on the nomination of the Ombudsman; finally, that the period for submission of nominations be reopened, if necessary.

3 By order of 11 July 1995, the Court of Justice found that the actions fell within the jurisdiction of the Court of First Instance and referred the two cases to that Court pursuant to Article 47 of the EC Statute of the Court of Justice. The cases were registered at the Court of First Instance on 13 July 1995 under numbers T-146/95 and T-146/95 R.

4 The European Parliament submitted its observations on the application for interim relief on 19 July 1995.

5 Before considering whether the application for interim relief is well founded, it is appropriate to summarize the relevant facts, as set out in the parties' pleadings.

6 Following the creation of the post of Ombudsman by Articles 8d and 138e of the EC Treaty and the corresponding provisions of the ECSC and Euratom Treaties, the European Parliament started the first appointment procedure in July 1994. That procedure did not result in an appointment. After modifying the applicable rules, the European Parliament initiated a new appointment procedure with the call for nominations published on 23 May 1995. Under Rule 159, as amended, of the Rules of Procedure of the European Parliament and the sole article of the call for nominations, nominations were to have the support of at least 29 Members of the European Parliament from at least two Member States and were to be forwarded to the President of the European Parliament by 16 June 1995.

7 By letter of 9 June 1995, sent to the President of the European Parliament, the applicant forwarded his nomination for the post of Ombudsman. The nomination document did not contain any signatures of Members of the European Parliament and was accompanied by a letter in which the applicant, after pointing out that he had attempted to obtain the support of the requisite 29 Members of the European Parliament contested the validity of such a condition and requested the President of the European Parliament to distribute his nomination document among its Members in order that they might support him.

8 On 15 June 1995, the Secretary-General of the European Parliament informed the applicant by letter that his nomination had been registered but that the registry had no power to intervene in the nomination procedure by distributing the nomination among the Members of the European Parliament.

9 On the same date, the applicant sent copies of his nomination to the chairmen of the "political groups of the European Parliament", asking them to circulate it among the members of their respective groups so that the remaining condition could be fulfilled. No action was taken in response to that letter.

10 On 12 July 1995, the European Parliament, meeting in plenary session, proceeded to elect an Ombudsman.

Law

11 Pursuant to the combined provisions of Articles 185 and 186 of the EC Treaty and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), the Court may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.

12 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that an application for interim measures under Articles 185 and 186 of the Treaty must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the measure applied for. Such measures must be of an interim nature and must not prejudice the final judgment (see the order of the President of the Court of First Instance of 23 November 1994 in Case T-356/94 R Vecchi v Commission [1994] ECR-SC II-805, paragraph 11).

Arguments of the parties

13 Referring to his application in the main proceedings, the applicant claims that there is a prima facie case on the basis of four pleas in law: first, the lack of competence of the official who "decided" whether nominations were admissible; secondly, the infringement of essential procedural requirements, notably on account of the lack of a clear and unequivocal procedure and, in particular, of a valid decision on the admissibility of nominations; thirdly, the incompatibility of Rule 159 of the Rules of Procedure of the European Parliament and the call for nominations with the EC Treaty and its implementing rules; and, finally, misuse of powers, in particular an abuse of procedure the effect of which was to exclude nominations of citizens of the European Union offering every guarantee of the independence and competence required.

14 As regards the urgency of the measure applied for and the risk of serious and irreparable damage to him, the applicant refers to the importance of the role of the Ombudsman, the specific risk that the procedure adopted by the European Parliament could lead to errors in the selection of candidates and the absence of any decisions on the matter by the Community judicature.

15 The European Parliament, on the other hand, states that the application for interim measures was not notified to it until 18 July 1995, whereas the Ombudsman had been appointed from 12 July. Accordingly, the application for interim measures, seeking the suspension of the procedure for the appointment of the Ombudsman, has become devoid of purpose and there is therefore no need to give a decision.

Findings of the President of the Court of First Instance

16 It is appropriate to consider first the European Parliament' s contention that this application for interim measures has become devoid of purpose since it was not notified to it until six days after the appointment of the Ombudsman.

17 The applicant himself acknowledges that he was aware of the letter from the Secretary-General of the European Parliament informing him that the registry was not empowered to circulate the applicant' s nomination among the Members on 15 June 1995. Mr Bernardi' s applications were not received at the Court of First Instance, the court with jurisdiction in disputes between individuals and the Community institutions, until 13 July 1995. That delay is attributable to the applicant who, by addressing his action to the Court of Justice, disregarded Article 3(1)(c) of the abovementioned Decision 88/591 of 24 October 1988, as amended by Decision 93/350 of 8 June 1993, cited above, and thus made recourse necessary to the referral procedure under the second paragraph of Article 47 of the EC Statute of the Court of Justice.

18 However, under Rule 159(7) of the Rules of Procedure of the European Parliament, the procedure for the appointment and the taking up office of the Ombudsman is brought to an end when the person appointed takes the oath before the Court of Justice, which has not yet taken place. In those circumstances, it cannot be considered that an application for suspension and other interim measures, as made by the applicant, has become vain and, therefore, devoid of all purpose. It should therefore be considered whether the conditions for the granting of the measures sought are met.

19 As regards the condition of urgency, it has consistently been held that the judge hearing an application for interim measures must assess the urgency of adopting such measures by examining whether implementation of the contested act, before a decision is made on the substance, is capable of causing the party making the application irreparable harm which could not be remedied even if the Court of First Instance were subsequently to annul the contested decision. In any event, the interim measures sought must not, despite their provisional nature, be out of proportion to the defendant institution' s interest in having its acts implemented, even where an action has been brought against those acts (see the order in Vecchi v Commission, cited above, paragraph 17).

20 It is also settled case-law that the applicant must prove that he cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences (see the order of the President of the Court of First Instance of 16 February 1995 in Case T-5/95 R Amicale des Résidents du Square d' Auvergne v Commission [1995] ECR-SC II-255, paragraph 15).

21 As observed above at paragraph 14, the applicant merely puts forward general arguments on the office of the Ombudsman, without mentioning any particularity of it which might constitute prima facie evidence of a risk of serious and irreparable damage to him. In particular, there is nothing to demonstrate that any interest which the applicant might have in being able to participate in the procedure for the appointment of the Ombudsman could not be adequately protected within the framework of a judgment annulling, if necessary, the disputed appointment procedure.

22 Furthermore, it is necessary to strike a balance between the interests at stake and to observe that a hypothetical suspension of the appointment procedure would entail, for the public interest relating to the creation of the office of the Ombudsman and the entry into office of the first Ombudsman, negative consequences out of proportion to the individual interest of the applicant in having that procedure annulled, particularly since more than a year has elapsed since the opening of the previous appointment procedure.

23 In those circumstances, and without its being necessary to consider whether the pleas in law and arguments relied upon by the applicant in support of his application constitute a prima facie case, it must be held that the conditions for the grant of the interim measures sought are not fulfilled and the application must be dismissed.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application for interim measures is dismissed.

2. The costs are reserved.

Luxembourg, 18 August 1995.