Avis juridique important

Order of the President of the Court of First Instance of 2 May 1994. - Elena Candiotte v Council of the European Union. - Competition for artists - Procedure for interim relief - Intervention - Interim measures. - Case T-108/94 R. European Court reports 1994 Page II-00249

Summary Parties Grounds Operative part

++++

1. Procedure ° Intervention ° Application for interim measures ° Persons concerned ° Main proceedings relating to the annulment of a decision not to admit an artist to a competition for selecting works of art for a building of a Community institution ° Chairman and members of the Staff Committee of the institution ° Inadmissibility

(Protocol on the Statute of the Court of Justice (EEC), Art. 37, second para.)

2. Application for interim measures ° Suspension of operation of a measure ° Conditions for granting ° Serious and irreparable damage ° Balancing of all the interests involved ° Request for suspension of the work of a committee responsible for selecting works of art for a building of a Community institution

(EEC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))

1. An interest in the result of the case, within the meaning of the second paragraph of Article 37 of the Protocol on the Statute of the Court of Justice, must be understood as a direct, existing interest in the success or failure of the submissions which relate specifically to the measure whose annulment or suspension is sought.

In the context of an application for the adoption of interim measures in connection with a main action whose object is essentially the annulment of the decision not to admit a self-employed artist to the second stage of a competition for selecting the works of art to be installed in the new building of a Community institution, an application by the chairman and members of the institution' s Staff Committee to intervene in support of the form of order sought by the applicant, seeking suspension of the work of the committee for selecting works of art, is thus inadmissible. They are unable to refer to any special circumstances which could establish the existence of a personal interest in the admission of the applicant to the second stage of the competition, nor can they demonstrate that their position might be affected in a sufficiently specific manner by the outcome of the case before the Court of First Instance.

2. A court hearing an application for interim measures must assess the urgency of the interim measures sought by examining whether the operation of the disputed acts, before a decision on the substance of the case, is capable of causing the party seeking interim measures irreversible damage which could not be remedied even if the contested decision were annulled or damage which, despite its provisional nature, would be out of proportion to the defendant' s interest in having those acts implemented, even where they are the subject of proceedings. It is for the party requesting interim measures to prove that it cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences.

Those conditions are not satisfied by an application for suspension of the work of a committee responsible for selecting, in a competition for artists, the works of art to be installed in a new building of an institution, submitted by a candidate in that competition, since passing the first stage of the competition would by no means have made it certain that the applicant' s work would have been selected in the final stage, since it has not been shown that the applicant' s interests could not be accorded retroactive protection if her main application was successful, and, finally, since the damage she might suffer is not in proportion to the institution' s interest in obtaining the results of the competition at a date in line with that planned for the inauguration of the building.

In Case T-108/94 R,

Elena Candiotte, a self-employed artist, residing at Jambes (Belgium), represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue Glesener,

applicant,

v

Council of the European Union, represented by Yves Cretien, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Bruno Eynard, Director of the Legal Department of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

APPLICATION for suspension of the procedure following the notice of Artists' Competition 92/S 21-3373/FR, of 30 January 1993, and more particularly of the work of the Committee for selecting works of art to be installed in the new Council building in Brussels,

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 First Instance on 16 March 1994, the applicant brought an action under the fourth paragraph of Article 173 of the EC Treaty, seeking annulment of:

° the decision of the Selection Committee for Artists' Competition 93/S 21-3373/FR, taken on behalf of the Council of the European Union (hereinafter "the Council"), of 14 January 1994, not to admit the applicant to the second stage of that competition;

° the decision of the Selection Committee to delegate to each national working party the initial selection of applications from artists established in its national territory;

° the decision of the Committee to fix at three the number of artists to be selected by each Member State;

° the decision to draw up the list of artists admitted to the second stage of the competition.

The applicant also seeks an order requiring the Council to pay her a symbolic sum of one ECU as compensation for the damage which she claims to have suffered by reason of the Selection Committee' s decisions, in particular the decision rejecting her application.

2 By a separate document, received at the Registry of the Court of First Instance on the same date, the applicant also lodged an application under Article 185 of the EC Treaty and Article 104(1) of the Rules of Procedure of the Court of First Instance to suspend the procedure following the Notice of Artists' Competition 93/S 21-3373/FR published in the Official Journal of the European Communities on 30 January 1993 (OJ 1993 S 21, p. 48), and more particularly the work of the Committee for selecting works of art to be installed in the new Council building in Brussels.

3 The defendant submitted written observations on the application for the adoption of interim measures on 28 March 1994.

4 By application lodged at the Registry of the Court of First Instance on 6 April 1994, Jacqueline Willems, Chairman of the Council Staff Committee, and 21 members of that Committee sought leave to intervene in support of the form of order sought by the applicant in the proceedings for the adoption of interim measures.

5 In a letter received at the Registry of the Court of First Instance on 12 April 1994, the defendant submitted that the application for leave to intervene should be dismissed as inadmissible and the interveners ordered to pay the costs of the proceedings. The applicant made no submissions on this point.

6 Before the application for the adoption of interim measures and the application for leave to intervene are examined in order to determine whether they are well founded, it is appropriate to summarize the background to the dispute, as it appears from the parties' pleadings.

7 By decision of 12 June 1989 the Council set up a committee with "the task of selecting the works of art to be ... installed in the new Council building" (Article 4). For that purpose the Selection Committee was to organize "on the Council' s behalf a competition ... open to all artists from the Member States of the European Community; if the number of entrants is large, the competition could be held in two stages" (Article 5). The Committee has 15 members, consisting of one representative from each Member State, one architects' representative, one representative of the General Secretariat of the Council, and one representative of the Council' s Staff Committee (Article 2).

8 The competition rules adopted by the Selection Committee were approved by the General Secretariat of the Council on 25 January 1993. Paragraph 2 of the rules states that "The competition will consist of two stages comprising:- at stage one, an invitation for applications, the purpose of which is an initial selection of a limited number of artists on the basis of these initial applications; ° at stage two, a competition among projects, aimed at selecting the artists to execute the works of art for the building from those shortlisted at stage one." According to paragraph 4 of the rules, "the Selection Committee has set up national working parties. Each working party shall consist of the full and alternate members representing a Member State and of the assessors whom they may co-opt". Under paragraph 7(c), "on the basis of the folders submitted, each national working party shall draw up in order of preference a list of the artists it is putting forward for the second stage of the competition. The Selection Committee shall choose a maximum of 36 artists for the second stage, on the basis of the lists drawn up by the national working parties, and invite them to take part in the second stage."

9 The decision of 14 January 1994 rejecting Ms Candiotte' s application reads as follows: "Following its meeting on 28 October 1993, the Committee for Selecting Works of Art for the new Council building shortlisted 36 artists for the second round of the competition. We regret to inform you that you were not one of those shortlisted."

Law

The application for leave to intervene

10 The application for leave to intervene was made under Article 115 of the Rules of Procedure of the Court of First Instance, and is submitted in accordance with the second paragraph of Article 37 of the Protocol on the Statute of the Court of Justice, which applies to the procedure before the Court of First Instance by virtue of the first paragraph of Article 46 of that Protocol.

11 Under the second paragraph of Article 37 of the Protocol on the Statute of the Court of Justice, the right to intervene in cases before the Court of First Instance is open to any person establishing an interest in the result of the case.

Arguments of the parties

12 The applicants for leave to intervene consider that since they took part, in their capacity as members of the Council' s Staff Committee, in the appointment of the full and alternate members of the Selection Committee for the competition in question, they have established an interest in the result of any case relating to the correctness of the procedure followed by that Committee in order to perform its task. Moreover, since the present proceedings relate to the selection of works of art to be installed in a Council building, they are directly concerned with the working conditions of the officials of that institution. That direct relationship means that all members of the Staff Committee have an interest in the result of the case, since that Committee is competent in matters of health and the decoration of places of work.

13 The defendant for its part considers that the applicants for leave to intervene have not established any legitimate interest in supporting the form of order sought by the applicant, since in its opinion they are complete strangers to the proceedings. Moreover, they have decided to act collectively in order to evade settled case-law to the effect that staff committees do not have locus standi to bring proceedings. The defendant considers that in any event the living and working conditions of officials cannot be directly affected by the fact that the applicant was not invited to take part in the second stage of the competition at issue.

Assessment by the Court

14 These proceedings concerning the application for leave to intervene are set in the context of a main action whose object is essentially the annulment of the decision not to admit the applicant to the second stage of the artists' competition for selecting the works of art to be installed in the new Council building.

15 On this point, as is clear from the case-law, an interest in the result of a case within the meaning of the second paragraph of Article 37 of the Protocol on the Statute of the Court of Justice must be understood as a direct, existing interest in the success or failure of the submissions which relate specifically to the measure whose annulment or suspension is sought (see the order of the Court of First Instance in Joined Cases T-97/92 and T-111/92 Rijnoudt and Hocken v Commission [1993] ECR II-587, paragraphs 16 and 21).

16 The interveners have not referred to any special circumstances which could establish the existence of a personal interest in the admission of the applicant to the second stage of the competition, nor have they demonstrated in any way that their position could be affected in a sufficiently specific manner by the outcome of the case before the Court of First Instance. In those circumstances, the interveners have not established an interest in intervening in support of the form of order sought by the applicant in these proceedings for interim measures.

17 The application for leave to intervene must therefore be dismissed.

The application for suspension of the operation of the contested act

18 Pursuant to Articles 185 and 186 of the EC Treaty in conjunction with 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 of First Instance may, if it considers that circumstances so require, order the operation of the contested act to be suspended or prescribe any necessary interim measures.

19 Article 104(2) of the Rules of Procedure provides that applications for the adoption of the interim measures referred to in 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 interim measures applied for. Such measures must be of an interim nature in that they must not prejudge the decision on the substance of the case. In any event, it is for the party requesting interim measures to prove that it 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 in Case T-21/93 R Peixoto v Commission [1993] ECR II-463, paragraph 17, and, as the most recent authority, the order of the President of the Court of First Instance in Case T-56/94 R Santis v Commission [1994] ECR II-0000, paragraph 15).

Arguments of the parties

20 With respect to the requirement of a prima facie case, the applicant submits that the selection procedure used in the competition in question infringed the Council Decision of 12 June 1989 and the rules of the competition, since instead of carrying out a comparative examination of all the candidates' folders, the Selection Committee delegated to the national working parties the task of examining the folders of candidates established in their respective countries. The applicant considers that by so doing the Selection Committee disregarded the very concept of a competition, which implies a real comparative examination of each application and the drawing up of a list of successful candidates in order of merit. In the applicant' s opinion, the Committee' s decision that three artists should be selected per Member State also constitutes an infringement of the Council Decision of 12 June 1989, and moreover deprived the competition of its international character. In those circumstances the applicant considers that the definitive rejection of her application by the Belgian working party without her folder having been examined by the Committee must perforce be declared unlawful.

21 With respect to the requirement of urgency, the applicant argues essentially that if the competition procedure were allowed to run its course, it would not be possible, should the Court of First Instance uphold her main application, to place her in the position in which she would have been had the decision rejecting her application not been adopted. Since the Committee has to designate in May 1994 the works of art to be installed in the new Council building, the applicant would be deprived for good of the prospect of having her work purchased and installed in that building, which would bring her recognition and prominence throughout Europe. In those circumstances, not even compensation corresponding to the value of her work would be enough to make good the damage arising from the rejection of her application.

22 The defendant considers for its part that the Selection Committee acted in accordance with the Council Decision of 12 June 1989 and did not exceed the extensive powers conferred on it for organizing the competition in question. Thus the fact that the Committee wished to select at least one artist per Member State and made the appropriate arrangements for that purpose follows, in the defendant' s opinion, from a consideration of political expediency arising in connection with the installation of works of art in a building intended for Council meetings. With respect in particular to the introduction of the initial selection at national level of three candidates, involving the delegation to the national working parties of the task of examining applications from their nationals, the defendant considers that such a measure proved to be especially appropriate in view of the 1 500 applications received by the General Secretariat of the Council between 30 January and 30 June 1993. Moreover, in the defendant' s opinion, the Selection Committee was right to consider that the choice it would have to make between 36 works submitted in the second stage would leave it enough scope for making the final selection of works during May 1994.

23 The defendant further considers that there is nothing in this case to suggest that there is a risk of serious and irreparable damage. If the outcome of the action were favourable to the applicant, it would in the defendant' s opinion be possible to compensate for any damage which might be found to exist. In any event, the fact that the applicant was deprived of the prospect of success in the competition in question constitutes in the defendant' s opinion only potential damage ° comparable incidentally to that suffered by all the other unsuccessful candidates (1 464 in number) ° since she would have had no guarantee of actually being successful if her application had gone through to the second stage. The defendant considers that suspension of the operations now underway in the competition would on the other hand cause the Council insuperable difficulties preventing its building from being decorated, as intended, with works of art at the time of its inauguration.

Assessment by the Court

24 In her application for the adoption of interim measures the applicant seeks essentially suspension of a competition procedure which is in its final stage.

25 It is settled case-law that a court hearing an application for interim measures must assess the urgency of the interim measures to be adopted by examining whether the operation of the disputed acts, before a decision on the substance of the case, is capable of causing the party seeking interim measures irreversible damage which could not be remedied even if the contested decision were annulled or which, despite its provisional nature, would be out of proportion to the defendant' s interest in having those acts implemented, even where proceedings have been brought against them (see the order of the President of the Third Chamber of the Court of Justice in Case 176/88 R Hanning v Parliament [1988] ECR 3915, paragraph 9).

26 In the present case, while the contested decision has indeed deprived the applicant of "the prospect of being included among the applicants invited to submit a proposal for a work of art and consequently of having her work purchased and installed in the new Council building", it is nevertheless the case that even if the applicant had succeeded in passing the first stage of the competition, it is not certain that she would have been successful in the competition and her work purchased and installed in the Council building following the competition. Accordingly, the circumstances put forward by the applicant cannot be regarded as the necessary consequences of the implementation of the contested decisions (see the order of the President of the Court of First Instance in Case T-564/93 R Hecq v Commission [1994] ECR C II-1, paragraph 31).

27 In any event, if the Court of First Instance were to uphold the main application, the defendant would have to adopt the necessary measures for ensuring appropriate protection of the applicant' s interests. The applicant has not referred to any circumstances which might prevent her interests from being accorded retroactive protection. Accordingly, no irreparable damage could be caused by failure to suspend the operation of the contested acts.

28 It follows that the applicant has not established that in the absence of the interim measures sought the acts in question could cause her irreparable damage which could no longer be remedied by compliance with a judgment of the Court of First Instance, and in any event that the damage she might suffer would be manifestly out of proportion to the defendant' s interest in completing the competition procedure in question. On the contrary, it is apparent that suspension of the operations in question would be manifestly out of proportion to the Council' s interest in obtaining the results of the competition, having regard in particular to the planned timetable for the inauguration of its new building.

29 Consequently, the conditions in law for the grant of the interim measures sought are not fulfilled and the application must be dismissed, without its being necessary to examine whether the arguments and pleas in law relied upon by the applicant in support of the main application constitute a prima facie case.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application for leave to intervene is dismissed.

2. The application for the adoption of interim measures is dismissed.

3. The costs are reserved.

Luxembourg, 2 May 1994.