25 November 2021 (*)

(Interim relief – Civil service – Members of the temporary staff – Application for interim measures – Inadmissibility)

In Case T‑534/21 R,

VP,

represented by L. Levi, lawyer,

applicant,

European Centre for the Development of Vocational Training (Cedefop),

represented by T. Bontinck, A. Guillerme and T. Payan, lawyers,

defendant,

APPLICATION under Articles 278 TFEU and 279 TFEU for, first, suspension of the application of the act of Cedefop’s Executive Board to support the conclusion of its Executive Director that he re-establish the post of internal legal adviser and to initiate a selection procedure and for, second, an order to Cedefop that it keep vacant a temporary agent post at grade AD suitable for reinstating the applicant in the post of legal adviser,

makes the following

Background to the dispute, procedure and forms of order sought

The applicant, VP, was recruited by the European Centre for the Development of Vocational Training (Cedefop) on 16 November 2007 as a member of the temporary staff to perform the duties of legal adviser. Her contract was renewed until 15 November 2017.

On 30 January 2017, the Deputy Director of Cedefop, acting in her capacity as the applicant’s line manager and reporting officer, recommended to the authority empowered to conclude contracts of employment, the Director of Cedefop, that the applicant’s expiring contract be renewed for an indefinite period with effect from 16 November 2017.

On 10 March 2017, the applicant sent the Director of Cedefop a request for renewal of her contract.

On 12 May 2017, the Director of Cedefop informed the applicant that her contract of employment would not be renewed (‘the decision of 12 May 2017’).

On 9 August 2017, the applicant lodged a complaint, within the meaning of Article 90(2) of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’) against the decision of 12 May 2017 with the Appeals Committee of Cedefop.

On 1 December 2017, the Appeals Committee rejected the applicant’s complaint as unfounded.

By judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), the Court, (1) annulled the decision of 12 May 2017; (2) annulled the decision of 1 December 2017 rejecting the applicant’s complaint; (3) ordered Cedefop to pay EUR 30 000 as compensation for the material damage sustained by the applicant; (4) ordered Cedefop to pay EUR 10 000 as compensation for the non-material damage sustained by the applicant; (5) dismissed the action as to the remainder; and (6) ordered Cedefop to pay the costs.

On 8 January 2021, the applicant asked Cedefop to implement the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), in accordance with Article 266 TFEU.

By letter of 2 March 2021, the Executive Director of Cedefop replied to the applicant, stating that implementation of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), required only the payment of EUR 40 000 as compensation for the material and non-material damage sustained by the applicant, with costs added, since the effects of the unlawfulness found by the Court would be compensated for by payment of the damages ordered (‘the decision of 2 March 2021’).

On 3 March 2021, Cedefop’s Executive Board supported the Executive Director’s conclusion to re-establish the post of internal legal adviser and to initiate the selection procedure in the second half of 2021 (‘the contested act’).

On 23 March 2021, Cedefop paid the applicant EUR 47 363.66, pursuant to paragraphs 3, 4 and 6 of the operative part of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613).

On 28 April 2021, the applicant submitted a complaint under Article 90(2) of the Staff Regulations against the decision of 2 March 2021.

On 8 June 2021, after the publication of the conclusions of the meeting of the Executive Board of Cedefop of 3 March 2021 foreseeing the re-establishment of the post of internal legal adviser, the applicant submitted an update to the complaint of 28 April 2021.

By letter of 29 July 2021, Cedefop’s Appeals Committee informed the applicant that it had decided to annul the decision of 2 March 2021 since Cedefop should have asked the applicant to be heard before taking such a decision.

By letter of 23 August 2021, the applicant expressed the view to Cedefop that, in accordance with its obligations under Article 266 TFEU, it should refrain from taking any measure which would make it difficult to comply with the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), and that to that end it had to keep vacant a suitable budgetary post for her reinstatement.

By application lodged at the Court Registry on 1 September 2021, the applicant brought an action for, inter alia, annulment of the decision of 2 March 2021 in so far as that decision does not implement paragraphs 1 and 2 of the operative part of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613), and for annulment of the connected decision not to renew her contract of employment for an indefinite period with effect from 16 November 2017.

By separate document lodged at the Court Registry on the same day, the applicant brought the present application for interim measures, in which the applicant claims that the President of the General Court should:

–order the suspension of operation of the contested act;

–order Cedefop to keep vacant a post as temporary agent at grade AD, suitable for the reinstatement of the applicant in the post of legal advisor;

–reserve the costs.

In its observations on the application for interim measures, lodged at the Court Registry on 22 September 2021, Cedefop contends that the President of the General Court should:

–reject the application for interim measures as inadmissible;

–in the alternative, reject the application for interim measures as unfounded;

–reserve the costs.

Law

General considerations

It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order, pursuant to Article 156 of the Rules of Procedure of the General Court, that the operation of an act challenged before the Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (see order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12 and the case-law cited).

The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are to 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 measures applied for’.

The judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, 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 a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

In the context of that overall examination, the court hearing the application for interim measures enjoys a broad 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 law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

In its observations on the application for interim measures Cedefop submits that there does not exist a sufficiently close connection between, on the one hand, the interim measures sought and, on the other, the claims and subject matter of the main proceedings. In that context, it adds that the interim measures applied for fall outside the scope of the final decision which the Court may give on the main action.

In that regard, it should be borne in mind that proceedings for interim relief are ancillary to the main proceedings to which they relate, with the result that the judge hearing an application for interim measures may not adopt interim measures which would fall outside the scope of the final decision which the Court may reach on the main application, the purpose of proceedings for interim relief being to safeguard the full effectiveness of the judgment in the main proceedings (see order of 17 December 2009, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, not published, EU:T:2009:526, paragraph 38 and the case-law cited).

It follows that the admissibility of an application for the adoption of one of the interim measures referred to in Article 279 TFEU is conditional upon there being a sufficiently close link between the interim measure sought, on the one hand, and the form of order sought and the subject matter of the main action, on the other (see order of 17 December 2009, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, not published, EU:T:2009:526, paragraph 39 and the case-law cited).

In the present case, it must be found that the request to suspend the operation of the contested act, assuming that that act is formally a decision, and the request for an order to Cedefop that it keep vacant a temporary agent post at grade AD suitable for reinstating the applicant to the post of legal advisor, clearly go beyond the form of order sought and the subject matter of the action brought in the main proceedings, which does not concern the annulment of the contested act but seeks, in essence, the annulment of the decision of 2 March 2021 in that that decision does not implement paragraphs 1 and 2 of the operative part of the judgment of 16 December 2020, VP v Cedefop (T‑187/18, not published, EU:T:2020:613).

Moreover, it should be borne in mind that Cedefop’s Appeals Committee has informed the applicant that it had decided to annul the decision of 2 March 2021 since Cedefop should have asked the applicant to be heard before taking such a decision.

In those circumstances, the suspension of operation of the contested act and Cedefop’s keeping vacant a temporary agent post at grade AD suitable for reinstating the applicant to the post of legal adviser, as sought by the applicant in the present application for interim measures, do not appear, at this stage of the proceedings, to be a necessary consequence of the annulment of the decision of 2 March 2021. Accordingly, should the judge hearing the application for interim measures grant those requests, it would amount to an injunction to Cedefop to draw precise inferences from the annulment decision and, consequently, to ordering a measure which would exceed the Court’s powers in the main action (see, to that effect, order of 17 December 2009, Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, not published, EU:T:2009:526, paragraph 41 and the case-law cited).

The requests at issue must therefore be declared inadmissible, without there being any need to rule on the admissibility of the main action.

It follows from all of the foregoing that the application for interim measures must be declared inadmissible in its entirety.

In accordance with Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The costs are reserved.

Luxembourg, 25 November 2021.

Registrar

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Language of the case: English.