Avis juridique important

61965O0028

European Court reports French edition Page 00736 Dutch edition Page 00732 German edition Page 00762 Italian edition Page 00689 English special edition Page 00508

Parties

IN CASE 28/65 R FULVIO FONZI, AN OFFICIAL OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY MARIO GIULIANO, PROFESSOR IN THE FACULTY OF LAW OF THE UNIVERSITA DEGLI STUDI, MILAN, ADVOCATE AT THE CORTE DI CASSAZIONE, ITALY, AND THE CORTE D' APPELLO, MILAN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, AVOCAT-AVOUE, 6 RUE WILLY-GOERGEN, APPLICANT, V COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, MR MARCHINI-CAMIA, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION TO SUSPEND THE OPERATION OF THE DECISION CONCERNING THE APPLICANT ADOPTED ON 7 OCTOBER 1964 BY THE COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY,

Grounds

WHEREAS MR FONZI HAS MADE AN APPLICATION IN ACCORDANCE WITH ARTICLE 157 OF THE TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY AND ARTICLE 83 OF THE RULES OF PROCEDURE FOR THE SUSPENSION OF THE OPERATION, PENDING JUDGMENT ON HIS APPLICATION IN CASE 28/65, OF THE DECISION OF THE COMMISSION OF THE EAEC OF 7 OCTOBER 1964 ALLOCATING HIM TO THE DIRECTORATE - GENERAL FOR ADMINISTRATION AND PERSONNEL, WHICH HE IS CONTESTING IN THAT CASE; WHEREAS THE COMMISSION OF THE EAEC OBJECTS, FIRST, TO ANY CONSIDERATION OF THE SAID APPLICATION FOR SUSPENSION BEFORE THE COURT HAS DECIDED UPON THE OBJECTION AS TO ADMISSIBILITY PUT FORWARD BY THE COMMISSION WITH REGARD TO THE APPLICATION IN CASE 28/65 AGAINST THE DECISION OF 7 OCTOBER 1964, AND SECONDLY IT SUBMITS THAT THE APPLICATION FOR SUSPENSION SHOULD ALTERNATIVELY BE DISMISSED AS UNFOUNDED; WHEREAS IT IS NOT FOR THE JUDGE HEARING AN APPLICATION ON A PROCEDURAL ISSUE TO PREDETERMINE THE MERIT OF THE SUBMISSIONS OF INADMISSIBILITY BROUGHT BY THE COMMISSION IN CASE 28/65, OR TO ANTICIPATE WHETHER THE COURT WILL DECIDE TO SEPARATE THOSE ARGUMENTS FROM ITS CONSIDERATION OF THE SUBSTANCE OF THE CASE AND SO TO POSTPONE THIS ORDER UNTIL JUDGMENT IS GIVEN IN THAT CASE; WHEREAS THE APPLICATION FOR SUSPENSION ITSELF REVEALS THAT THE DISPUTED DECISION BY THE COMMISSION STATED THAT MR FONZI, ' WHILST RETAINING HIS PRESENT POST ', WAS ' ALLOCATED TO THE DIRECTORATE-GENERAL FOR ADMINISTRATION AND PERSONNEL IN ORDER TO CARRY OUT UNDER THE RESPONSIBILITY OF THE HEAD OF THE PURCHASING DEPARTMENT ' VARIOUS DUTIES; WHEREAS THE APPLICANT STATES THAT THERE IS NOTHING IN THE REGULATIONS AUTHORIZING THE COMMISSION TO ' ALLOCATE ' AN OFFICIAL TO THE PERFORMANCE OF NEW DUTIES WHILST CONTINUING TO OCCUPY THE POST UNDER THE STAFF REGULATIONS TO WHICH HE WAS PREVIOUSLY APPOINTED; WHEREAS THIS STATEMENT RAISES THE VERY POINT AT ISSUE BEFORE THE COURT IN CASE 28/65, NAMELY THAT OF THE POWERS VESTED IN THE ADMINISTRATION UNDER THE REGULATIONS, IN PARTICULAR WITH REGARD TO SCIENTIFIC EMPLOYEES AT EURATOM, AND THEREFORE CONCERNS THE SUBSTANCE OF THE CASE WITHOUT PROVING THE URGENCY OF THE INTERIM MEASURE SOUGHT; WHEREAS THE APPLICANT SAYS THAT THE SUSPENSION OF OPERATION OF THE DECISION ALLOCATING HIM TO BRUSSELS IS PRIMA FACIE JUSTIFIED ON THE GROUND THAT THE DECISION SEEKS TO REQUIRE THE APPLICANT TO PERFORM DUTIES OF A TEMPORARY NATURE; WHEREAS AT THIS INTERLOCUTORY STAGE IN THE PROCEEDINGS, IT IS APPROPRIATE TO NOTE THAT THE COMMISSION OF THE EAEC EXPRESSLY DISPUTES THIS POINT WHICH IS ONE FOR THE COURT TO ASSESS WHEN IT CONSIDERS THE APPLICATION IN CASE 28/65; WHEREAS THE APPLICANT COMPLAINS THAT THE CONTESTED DECISION IS ' INCONSISTENT AND ILLOGICAL ', AND ENDEAVOURS TO SUPPORT HIS STATEMENT BY REFERRING TO VARIOUS FACTS AND DOCUMENTS; WHEREAS THIS GROUND, TOO, CONCERNS THE SUBSTANCE OF THE CASE; WHEREAS THE APPLICANT REFERS TO HIS ENFORCED SEPARATION FROM HOME AND FAMILY AND THE SERIOUS FINANCIAL, HUMAN AND PSYCHOLOGICAL PROBLEMS WHICH THIS ENTAILS; WHEREAS AT THIS INTERLOCUTORY STAGE IN THE PROCEEDINGS IT IS SUFFICIENT TO NOTE THAT THE APPLICANT HAS ALREADY RECEIVED THE INSTALLATION ALLOWANCE, AND TO TAKE INTO ACCOUNT THE COMMISSION'S STATEMENT THAT THE APPLICANT'S TRAVEL AND REMOVAL EXPENSES WILL BE REIMBURSED AS SOON AS HIS FAMILY JOINS HIM; WHEREAS NONE OF THE SUBMISSIONS RAISED PROVES THE URGENCY OF THE MEASURE SOUGHT; WHEREAS SUCH URGENCY SEEMS IN ANY CASE TO BE DENIED BY THE FACT THAT THE DATE OF THE DISPUTED DECISION GOES BACK TO 7 OCTOBER 1964 WHILST THE APPLICATION FOR SUSPENSION WAS MADE SEVERAL MONTHS LATER, ON 9 JUNE 1965; WHEREAS WHATEVER THE GROUNDS OF COMPLAINT AGAINST THIS DECISION, WHICH HAS MOREOVER BEEN SUBMITTED TO THE COURT FOR ITS CONSIDERATION AND WHICH THE JUDGE HEARING AN APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE CANNOT DECIDE IN ADVANCE, THE GROUNDS SET OUT ABOVE ARE NOT, AS THEY STAND, SUFFICIENT REASON FOR SUSPENDING THE OPERATION OF A DECISION WHICH SEEMS DESIGNED TO CHANGE THE APPLICANT'S PLACE OF WORK AND - WITHOUT PREJUDICE TO JUDGMENT OF THE COURT ON THE SUBSTANCE OF THE CASE - APPEARS TO BE AN ACT FALLING WITHIN THE COMMISSION'S SPHERE OF RESPONSIBILITY; WHEREAS AT THIS STAGE, THEREFORE, IT IS APPROPRIATE TO DISMISS THE APPLICATION FOR SUSPENSION OF THE OPERATION OF THE DECISION OF 7 OCTOBER 1964;

Operative part

THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES HEREBY MAKES THE FOLLOWING INTERIM ORDER : 1 . THE APPLICATION TO SUSPEND THE OPERATION OF THE DECISION ADOPTED ON 7 OCTOBER 1964 BY THE COMMISSION OF THE EUROPEAN ATOMIC ENERGY COMMUNITY WITH REGARD TO THE APPLICANT IS DISMISSED; 2 . THE COSTS ARE RESERVED .