Avis juridique important

61982O0347

European Court reports 1983 Page 00065

Parties

IN CASE 347/82 R

JOSE ALVAREZ , FORMERLY A PROBATIONARY OFFICIAL OF THE EUROPEAN PARLIAMENT , REPRESENTED BY VICTOR BIEL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18A RUE DES GLACIS ,

APPLICANT ,

EUROPEAN PARLIAMENT , REPRESENTED BY MANFRED PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , ASSISTED BY ALEX BONN , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 22 COTE D ' EICH ,

DEFENDANT ,

Subject of the case

APPLICATION TO SUSPEND THE OPERATION OF THE EUROPEAN PARLIAMENT ' S DECISION OF 6 DECEMBER 1982 , BY WHICH THE APPLICANT WAS DISMISSED ,

Grounds

ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE REQUIRES THE APPLICANT TO SPECIFY THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .

AS FAR AS THE URGENCY IS CONCERNED , IT IS SUFFICIENT TO REFER TO THE GROUNDS OF THE ORDER GIVEN BY THE PRESIDENT OF THE THIRD CHAMBER ON 20 JULY 1981 . AS THE PARLIAMENT HAS FULFILLED OR OFFERED TO FULFIL ALL THE FINANCIAL OBLIGATIONS WHICH RESULTED FROM THE ANNULMENT OF THE FIRST DISMISSAL , THE APPLICANT ' S POSITION IS ESSENTIALLY THE SAME AS IT WAS AT THE TIME OF THE FIRST APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .

AS REGARDS THE GROUNDS FOR THE APPLICATION TO SUSPEND THE OPERATION OF THE DECISION , IT SHOULD BE NOTED THAT BY ITS JUDGMENT OF 6 OCTOBER 1982 , THE COURT ANNULLED THE FIRST DISMISSAL ON THE BASIS OF THE FAILURE TO RESPECT THE ADVERSARY PROCEDURE PROVIDED FOR UNDER ARTICLE 34 ( 2 ) OF THE STAFF REGULATIONS . IT REJECTED , HOWEVER , THE CLAIM FOR THE ANNULMENT OF THE PROBATION REPORT . BY COMMUNICATING TO THE APPLICANT ALL THE PAPERS ON WHICH HIS DISMISSAL IS BASED , INCLUDING THE DOCUMENTS NOT PREVIOUSLY COMMUNICATED TO HIM , THE PARLIAMENT HAS COMPLIED IN THAT REGARD WITH THE JUDGMENT OF 6 OCTOBER 1982 .

BY REFUSING , FOR HIS PART , TO SUBMIT COMMENTS ON THE DOCUMENTS COMMUNICATED TO HIM , THE APPLICANT HAS ATTEMPTED TO THWART THE ADVERSARY NATURE OF THE PROCEDURE , THE IMPORTANCE OF WHICH WAS EMPHASIZED IN THE JUDGMENT OF 6 OCTOBER 1982 . ON THE FACE OF IT , THEREFORE , HE HAS ADMITTED THAT HE IS UNABLE TO REPLY SATISFACTORILY TO THE CIRTICISMS OF HIS CONDUCT DURING HIS PERIOD OF PROBATION .

IT MUST THEREFORE BE DECLARED THAT THE APPLICANT HAS , BY HIS OWN CONDUCT , PLACED HIMSELF OUTSIDE THE CONDITIONS WHICH , WITHIN THE MEANING OF ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , MIGHT HAVE JUSTIFIED THE ADOPTION OF AN INTERIM MEASURE FOR HIS BENEFIT .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT OF THE SECOND CHAMBER , REPLACING THE PRESIDENT OF THE COURT PURSUANT TO ARTICLE 96 ( 1 ), THE SECOND PARAGRAPH OF ARTICLE 85 AND THE SECOND PARAGRAPH OF ARTICLE 11 OF THE RULES OF PROCEDURE ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION TO SUSPEND THE OPERATION OF THE DECISION OF 6 DECEMBER 1982 DISMISSING THE APPLICANT IS DISMISSED .