Avis juridique important

Order of the President of the Third Chamber of the Court of 11 July 1988. - Jack Hanning v European Parliament. - Official - Interim measures. - Case 176/88 R. European Court reports 1988 Page 03915

Summary Parties Grounds Operative part

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Application for interim measures - Suspension of operation of a decision - Conditions for granting - Balancing the whole of the interests in question

( EEC Treaty, Art . 185 )

In proceedings for the suspension of the operation of a decision, when considering the requirement of urgency, the judge hearing the application for interim measures must assess whether the immediate application of the contested decision is capable of causing irreversible damage to the applicant which could not be remedied even if the contested decision were annulled and which, despite its provisional nature, would be out of proportion to the interest of the institution in question in having its decisions applied, in accordance with Article 185 of the EEC Treaty, even where proceedings have been brought before the Court against those decisions .

In Case 176/88 R

Jack Hanning, represented by Georges Vandersanden, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Alex Schmitt, 13 boulevard Royal,

applicant,

v

European Parliament, represented by Francesco Pasetti Bombardella, Jurisconsult, and Manfred Peter, Head of Division, assisted by Alex Bonn, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 22 côte d' Eich,

defendant,

APPLICATION for interim measures concerning the applicant' s participation in Competition No PE/41/A,

The President of the Third Chamber

acting under Article 91 ( 4 ) of the Staff Regulations of Officials of the European Communities and Article 83 et seq . of the Rules of Procedure,

makes the following

Order

1 By application lodged at the Court Registry on 29 June 1988, Jack Hanning brought an action under Article 91 of the Staff Regulations of Officials and the second paragraph of Article 173 of the EEC Treaty for ( a ) the annulment of the decision notified to him on 6 April 1988 by which the President of the European Parliament terminated the procedure for the recruitment of a Head of Division at the Information Office in London ( Competition No PE/41/A ) on the ground of irregularities and held that a new procedure should be commenced for that purpose, ( b ) a declaration that the applicant was entitled to be appointed following Competition No PE/41/A, and in the alternative ( c ) compensation for non-material damage and reimbursement of his travel expenses arising from participation in that competition .

2 By a separate document lodged at the Court on the same day, Mr Hanning sought an order under Article 83 of the Rules of Procedure suspending the operation of the contested decision in so far as it commenced a new recruitment procedure for the post in question .

3 By a notice published in the Official Journal of 5 December 1986 ( Official Journal 1986, C 311, p . 7 ), the European Parliament organized an open competition for the recruitment of an English-language Head of Division ( Grade A 3 ) in the London Information Office .

4 The applicant submitted his candidature and was invited to take part in the tests which were held on 6 October 1987 . By letter of 29 October 1987 the Head of the Recruitment Service informed the applicant that, as a result of the decisions taken by the Selection Board, he had been successful in the competition and that his name had been put on the list of four candidates regarded as suitable for appointment to the post in question .

5 In accordance with instructions given to him on 23 November 1987 by the Head of the Recruitment Service, the applicant underwent a medical examination on 30 November 1987 in Luxembourg .

6 The applicant claims, without being contradicted by the European Parliament, that, according to the information given to him by the Head of the Recruitment Service, the medical examination revealed nothing which would render the applicant unsuitable for performing the duties in question and the document appointing him would probably be sent for signature during the first fortnight of January 1988 .

7 By letter of 6 April 1988 the Head of the Personnel Division informed the applicant of the President' s decision to annul the recruitment procedure in Competition No PE/41/A on the ground of irregularities and to commence a new procedure, for which the competition notice had been published in Official Journal C 82 of 30 March 1988 .

8 As the Court has consistently held, applications for the suspension of operation of acts of the institutions and for interim measures cannot be considered unless the factual and legal circumstances relied upon establish a prima facie case for granting them . In addition, there must be urgency in the sense that it is necessary for the measures to be adopted and to take effect before the decision of the Court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them . Finally, the measures must be provisional in the sense that they do not prejudge the decision on the substance of the case .

10 The applicant has merely claimed that if the competition procedure currently in progress were not suspended, he would suffer serious and irreparable damage in view of the risk that his candidature might be unsuccessful at the end of that procedure whereas he had virtually been appointed to the post following the first competition, No PE/41/A .

11 The Parliament contends that the applicant would not suffer any irreparable damage if the new recruitment procedure were not suspended . He would subsequently have the opportunity to put forward his qualifications and merits and to obtain the appointment sought . On the other hand, the Parliament would suffer such damage if the new recruitment procedure were suspended in view of the delay in filling an important post and the difficulties it would lead to in the performance of the institution' s functions .

12 In that respect it must be pointed out that in his application the applicant seeks ( a ) the annulment of the contested decision which annulled Competition No PE/41/A and ordered the commencement of a new recruitment procedure and ( b ) a declaration that he is entitled to be appointed as a result of the aforementioned competition .

14 It is therefore necessary to accept the European Parliament' s contention that it is the Parliament which would suffer serious and irreparable damage as a result of the delay in the recruitment procedure if the contested decision were suspended and the application were subsequently dismissed .

15 If follows from the foregoing that the applicant has not established the risk of serious and irreparable damage and that, consequently, the application for interim measures must be dismissed without it being necessary to examine whether a prima facie case has been made out .

On those grounds,

The President of the Third Chamber

by way of interim decision,

after hearing the Advocate General,

hereby orders as follows :

( 1 ) The application for interim measures is dismissed;

( 2 ) The costs are reserved .

Luxembourg, 11 July 1988 .