28 November 2018(*)

(Application for interim measures — Civil service — Application for suspension of operation — No urgency)

In Case T‑671/18 R,

ZU, represented by C. Bernard-Glanz, lawyer,

applicant,

European Commission, represented by G. Berscheid and R. Striani, acting as Agents,

defendant,

APPLICATION based on Articles 278 and 279 TFEU seeking a suspension of the operation of the Decision of the Directorate-General for Human Resources and Security of the European Commission of 12 October 2018 (Ares(2018)5241886 – 12/10/2018) relating to the transfer of the applicant, and of the Decision of the Directorate-General for Human Resources and Security of the European Commission of 29 October 2018 (Ares(2018)5529220 – 29/10/2018) relating to his return to headquarters,

makes the following

Background to the dispute, procedure and forms of order sought by the parties

The applicant, Mr ZU, is an official of the European Commission.

As of 1 March 2016, the applicant has been assigned to a position as a Trade Affairs Manager in the Trade and Economic Section in the EU Delegation in [confidential]. The assignment was meant to last for four and a half years, scheduled to end in August 2020.

By letter of 14 September 2018, the Directorate-General (DG) for Human Resources and Security, in its capacity as Appointing Authority, informed the applicant of its intention, based on the request of the Directorate-General for Trade (DG TRADE) and on the basis of information provided by the Head of the EU Delegation in [confidential], to terminate early his assignment to that EU Delegation and to transfer him back to his service of origin as of 1 November 2018.

The following reasons for the transfer are set out in that letter:

[confidential]

The applicant was invited to provide his comments ‘within five working days counting from receipt’ of that letter.

On 26 September 2018, the applicant provided his comments.

He argues, in essence, that the observations by DG TRADE are unfair and misleading. Amongst other things, he alleges deficiencies in the managerial practices at the Delegation, which had knock-on effects on his own performance. According to him:

‘I have had to dedicate time and resources to defend myself against acts and behaviours affecting me adversely, to the detriment of my work output, which is now used to justify a possible transfer.’

By letter of 12 October 2018 (Ares(2018)5241886 – 12/10/2018), the DG Human Resources and Security informed the applicant of its decision to bring to an end his assignment to the EU Delegation in [confidential] and to assign him as of 1 December 2018 to his service of origin (the ‘first contested decision’).

The reasons given for the first contested decision are as follows:

[confidential]

By letter of 29 October 2018 (Ares(2018)5529220 – 29/10/2018), the DG Human Resources and Security of the European Commission reiterated that the applicant was to be re-assigned to his service of origin as of 1 December 2018 and informed him of his rights and obligations in respect of the transfer (the ‘second contested decision’).

By application lodged at the Registry of the General Court on 15 November 2018, the applicant requested that the General Court annul the contested decisions.

On the same day, the applicant, by a separate document, lodged at the General Court Registry an application for interim measures pursuant to Articles 278 and 279 TFEU in which he claims that the President of the General Court should:

–suspend the operation of the contested decisions;

–order the Commission to pay the costs.

In its observations on the application for interim measures, lodged at the General Court Registry on 23 November 2018, the Commission contends that the President of the General Court should:

–dismiss the application for interim measures;

–order the applicant to pay the costs.

Law

It is apparent from a reading of Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. 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 suspension of the operation of an act contested before the General Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

The first sentence of Article 156(4) of the Rules of Procedure requires applications for interim measures 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 measure applied for’.

Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or 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 required 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 judge 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 judge hearing the application for interim measures 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 the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts. To attain that objective, urgency must usually be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

Furthermore, according to settled case-law, there is urgency only if the serious and irreparable harm feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 16 February 2017, Gollnisch v Parliament, T‑624/16 R, not published, EU:T:2017:94, paragraph 25 and the case-law cited).

Following settled case-law, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he suffered the damage. Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).

Furthermore, under the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures must ‘contain all the evidence and offers of evidence available to justify the grant of interim measures’.

Thus, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary without any other supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P-R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).

It is also established case-law that, in order to be able to determine whether the conditions set out in paragraph 21 above are met, the judge hearing the application for interim measures must have hard and precise information, supported by detailed and certified documents showing the situation of the party seeking interim relief and making it possible to examine the actual consequences which would be likely to result if the measures sought were not granted. It follows that that party, especially where it alleges harm of a financial nature, must, in principle, provide, with supporting documentation, an accurate and comprehensive picture of its financial situation (see order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).

Lastly, while the application for interim measures may be supplemented on specific points by references to documents annexed to that application, those documents cannot compensate for the failure to set out the essential elements in that application. It is not the task of the judge hearing the application for interim measures to seek, in place of the party concerned, the information that may be found in the annexes to the application for interim measures, in the main application or in the annexes to that application, which is liable to substantiate the application for interim measures. To impose such an obligation on the judge hearing the application for interim measures would also be likely to deprive of all effect Article 156(5) of the Rules of Procedure, under which the application for interim measures must be made by separate document (see order of 20 June 2014, Wilders v Parliament and Others, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 and the case-law cited).

In the first place, the applicant claims, in order to prove that the condition relating to urgency is satisfied, that the contested decisions amount to a ‘de facto’ dismissal since an early termination of an assignment to an EU Delegation in a third country would be ‘exceptional’ and taken only as a ‘last resort’. This would cause irreversible damage to his professional reputation. If his assignment to the EU Delegation in [confidential] were to be terminated early and he were to be removed from his current position by 1 December 2018, he would have no chances to be restored in his current position or assigned to a similar position relating to the European Union’s external action.

That argument cannot prove that the condition relating to urgency is met.

According to the established case-law of the Court of Justice, when suspension of the operation of a European Union act is sought, the grant of the interim measures requested is justified only where the act at issue constitutes the decisive cause of the alleged serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 45 and the case-law cited).

In the present case, however, it is not certain that the decisive cause of the alleged damage to the applicant’s professional reputation and to his career is to be found in the contested decisions.

In fact, according to the letter of 14 September 2018, DG TRADE, as well as the Head of the EU Delegation in [confidential], took the view that a further stay of the applicant was not in the interest of the service and that the interest of the service would be better served by replacing him with someone more apt to the challenges of the position. It appears that this conclusion is mainly based on perceived performance issues but also on the fact that the Head of the EU Delegation in [confidential] took issue with the behaviour of the applicant.

Thus, the contested decisions appear to simply draw the consequences of a situation which was deemed to be no longer tenable.

In such circumstances, the damage to the professional reputation of the applicant and to his further career prospects appears to be primarily attributable to the perception of his work output and his personal attitude shared by DG TRADE and the Head of the EU Delegation in [confidential].

To that extent, it appears that the professional reputation of the applicant and his career prospects have already suffered, and this prior to and independently of the adoption of the contested decisions.

Therefore, the question would be whether the contested decisions might involve further or increased damage to his reputation or career prospects.

In any event, even if the decisive cause of the damage to the applicant’s reputation and career prospects was the adoption of the contested decisions, that damage would persist until those decisions are annulled in the main action. In those circumstances, a suspension of operation of the contested decisions, which can be ordered only on a purely provisional basis and as part of a summary procedure, would scarcely be such as to reinstate the reputation of the applicant (see, by analogy, order of 22 December 2011, Al-Chihabi v Council, T‑593/11 R, not published, EU:T:2011:770, paragraph 32 and the case-law cited).

This is all the more so the situation given the specific circumstances of the present case. It is apparent from the case file that the relationship between the applicant and the Head of the EU Delegation in [confidential] has deteriorated over time and has become very tense. This is documented in the latter’s email of 26 April 2018 to the applicant and copied to two other officials of that Delegation, in which he wrote, amongst other things:

[confidential]

Furthermore, if the Court were to annul the contested decisions, the Commission would be required, according to Article 266 TFEU, to take the necessary measures to comply with that judgment. Accordingly, it cannot be held that the implementation of the contested decisions would deprive the applicant of any chance to be restored in his current position or assigned to a similar position relating to the European Union’s external action.

In the second place, the applicant submits that the implementation of the contested decisions would damage the image of the European Union in [confidential] and would adversely affect other members of staff of the EU Delegation in [confidential], who were also suffering from arbitrary decisions by the Head of the EU Delegation in [confidential].

In that respect, suffice it to state that, according to the case-law of the Court of Justice, the party requesting the interim measures is bound to show that it cannot await the conclusion of the main action without personally suffering damage which will have serious and irreparable consequences for it (see order of 12 June 2014, Commission

v Rusal Armenal, C‑21/14 P‑R, EU:C:2014:1749, paragraph 51 and the case-law cited).

41Accordingly, the applicant cannot invoke damage that allegedly would be caused to the reputation of the European Union in [confidential] or to other members of staff.

42In the third place, the applicant submits that he would suffer further harm, such as higher relocation costs. He estimates the financial damage resulting from the contested decisions to range from EUR 20 000 to EUR 30 000.

43In that respect, suffice it to state that, according to the case-law recalled in paragraph 22 above, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he suffered the damage.

44However, the applicant has not produced any element that would make it possible to assess his financial situation and the reality of the alleged damage.

45Accordingly, the President of the General Court is not in a position to conclude that exceptional circumstances are present which would allow the alleged damage, albeit pecuniary in nature, to be classified as irreparable.

46It follows from all of the foregoing that the application for interim measures must be rejected for lack of urgency, without it being necessary to examine the condition relating to a prima facie case or the need to weigh up the interests involved.

47By virtue of 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 rejected.

2.The costs are reserved.

Luxembourg, 28 November 2018.

Registrar

Language of the case: English.

1Confidential data omitted.