20 September 2019 (*)

(Interim measures — Civil service — Inadmissibility)

In Case T‑727/18 R,

ZW,

applicant,

European Investment Bank (EIB),

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU for the grant of interim measures to suspend or to extend various time limits and to produce documents,

makes the following

Background to the dispute, procedure and forms of order sought

The applicant, ZW, applied for a post [confidential] (1) at the European Investment Bank (EIB) [confidential].

By email of 3 March 2017, the EIB informed the applicant of the appointment of another candidate to the abovementioned post [confidential].

By application lodged at the Court Registry on 6 December 2018, the applicant applied for legal aid.

On 5 April 2019 the EIB explained, among other things, why it did not choose the applicant for the post of [confidential].

By order of the President of the General Court of 29 April 2019, T‑727/18 AJ, the application for legal aid was dismissed.

On 25 June 2019, the EIB rejected the applicant’s request for conciliation of 22 May 2019.

On 28 June 2019, the EIB stated that the refusal to enter into a procedure of conciliation was the response to the request made by the applicant on 22 May 2019.

By application lodged at the Court Registry on 1 July 2019, the applicant made another application for legal aid, which was registered as Case T‑447/19 AJ.

Following the complaints submitted by the applicant to the EIB Complaints Mechanism (‘the EIB CM’), the EIB sent, on 12 August 2019, the Conclusions Report to the applicant.

On 22 August 2019, the EIB submitted its observations in case T‑447/19 AJ.

By application lodged at the Court Registry on 17 June 2019, the applicant brought an action for annulment of the decision of 3 March 2017. In this action for annulment, the applicant made a number of procedural requests.

By a separate document lodged at the Court Registry on 28 August 2019, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:

–‘order the suspension of the time limit to modify the application to take account of the Decision of 12 August 2019 until the production of the full text of the regulations (if any other than the EIB Staff Regulations), internal documents and practices referred to in paragraph 3.2.1 of the EIB CM Conclusions Report in case SG/H/2019/02’;

–‘order the extension of that time limit to take account of the time elapsed since 12 August 2019 when the contested decision was sent to the applicant’;

–‘order the extension of the time limit for challenging the measures referred to, expressly or by implication, in the EIB CM Conclusions Report in case SG/H/2019/02 until the expiry of the time limit to modify the application to take account of the Decision of 12 August 2019’;

–‘order the extension of the time limit for challenging the Decision of 22 August 2019 until the expiry of the time limit to modify the application to take account of the Decision of 12 August 2019’;

–‘order the extension of the time limit for bringing an action against the Decisions of 28 June 2019 and 25 June 2019 until the expiry of the time limit to modify the application to take account of the Decision of 12 August 2019’;

–‘order the extension of the time limit for bringing an action against the Decision of 5 April 2019 until the expiry of the time limit to modify the application to take account of the Decision of 12 August 2019’;

–‘order the production of the full text of the regulations, internal documents and practices referred to in paragraph 3.2.1 of the EIB CM Conclusions Report in case SG/H/2019/02’;

–‘prescribe other appropriate measures of organisation of procedure and measures of inquiry, in the light of the particular circumstances, including the production of the Selection Note making it clear where appropriate to the EIB that such measures would be undertaken in conformity with Article 103 of the Rules of Procedure of the General Court’; and

–‘order the EIB to pay the costs’.

Law

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 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 the suspension of operation of an act challenged before the General Court or prescribe any 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 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 judge hearing the application has a wide discretion and is free to determine, having regard to the specific 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).

In order to determine whether the interim measures sought are urgent, it should be borne in mind 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 judicature. To attain that objective, urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm 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 harm (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, following 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).

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 determine whether all the conditions set out in paragraphs 17 and 18 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 provide, with supporting documentation, an accurate and comprehensive picture of its financial situation (see, to that effect, 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 the application, those documents cannot compensate for the failure to set out the essential elements of 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 any effect Article 156(5) of the Rules of Procedure, under which the application for interim measures must be made by separate document (see, to that effect, order of 20 June 2014, Wilders v Parliament and Council, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 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 request the EIB to submit its observations or to hear oral argument from the parties.

The applicant, in order to establish urgency, brings forward, under the heading ‘The plea in law alleging serious and irreparable damage’ the following elements in paragraphs 51 to 53 of its application:

‘The applicant submits that the application of the interpretation, set out by the EIB in paragraph 3.2.1 of the Conclusions Report of 12 August 2019, to the extract of the selection note related to the applicant’s candidature is capable of producing legal effects of such a kind as to substantially altering the applicant’s legal situation from that which prevailed when the Decision of 3 March 2017 was notified to the applicant, and even when the application in Case T‑727/18 was lodged, and even when the application for legal aid in Case T‑447/19 AJ was lodged.

The applicant submits that the response of 12 August 2019 amounts to a notification of the decision not to place the applicant among the so called ‘suitable for the role’ candidates (see absence of a rank in the extract of the selection note relating to the applicant’s candidature), and consequently not only she was not ‘preferred’ for the contested position but neither placed among the so called ‘should be hired’ candidates, with the effect, inter alia, that (1) the decision to fill another post did not concern the applicant, and (2) was legitimately not communicated to her. Therefore, if the applicant does not exercise effectively her right of action against the Decision of 12 August 2019 she would find herself in a situation which could prejudice the outcome of the present case, as well as the outcome of any action against the Decisions of 28 June 2019 & 25 June 2019, and the Decision of 5 April 2019.

The applicant stresses that the application of the interpretation set out by the EIB in paragraph 22 of the response of 22 August 2019 to Article 42 of the EIB Staff Regulations also produces binding legal effects capable of affecting the applicant’s interests, and can be regarded as an act adversely affecting her. In that the applicant submits that the contested response amounts to a notification of the decision that Article 42 of the EIB Staff Regulations does not apply to external candidates, consequently even if the decision to fill another post did concern the applicant, as the applicant conten[d]s, the EIB was not under an obligation to communicate that decision to her.’

In the given circumstances, it must be held that, in any event, the reasoning of the applicant, set out in paragraphs 51 to 53 of its application, clearly and manifestly does not meet the requirements laid down in Article 156(4) of the Rules of Procedure in so far as it cannot be regarded as setting out to the requisite legal standard, as recalled in paragraphs 17 to 22 of the present order, the circumstances giving rise to urgency justifying the granting of the provisional measures sought by the applicant.

It follows from the foregoing that the application for interim measures must be dismissed as being inadmissible, without it being necessary to rule on the prima facie case or to weigh the interests at issue.

In accordance with Article 158(5) of the Rules of Procedure, the costs must be reserved.

On those grounds,

hereby orders:

1.The application for interim measures is dismissed.

2.The costs are reserved.

Luxembourg, 20 September 2019.

Registrar

Language of the case: English.

Confidential data omitted.